Environmental degradation or ecological despoliation is significantly known to
be an umbrella concept. It covers a wide variety of issues like deterioration of
environment through depletion of natural resources, pollution which in turn
results in loss of biodiversity, extinction of animals, deforestation,
desertification, global warming etc. The foremost cause of environmental decay
can be narrowed down to two things-one being human negligence and other being
These two things are further coupled with the adverse effects of
industrialization, urbanization, modernization, population and economic growth
along with increase in energy consumption and agricultural intensification.
Furthermore the lack of environmental value
has made us to over-exploit the
natural resources - which are definitely not free and unlimited. Owing to
all these reasons, Environmental degradation
has been listed as one of the ten
threats officially cautioned by the High-level Panel on Threats, Challenges and
Change of the United Nations.
In India, due to increased national concern for environmental conservation,
authorities have over the last couple of decades started taking steps to
increase the scope and impact of environmental laws, local government laws,
criminal laws, tort laws and other protection schemes.
Tort Law and Environment
In simple language one can say that tort implies a civil wrong. It is to be
understood here that the law of torts whose main objective is to rectify a
private wrong by providing compensation or damages, is it potential enough to be
employed in the prevention of environmental degradation? According to Stephan
Shavell a renowned professor and economist:
Risk control measures and compensation goals are to be met separately but the
case is different in torts where both can be harnessed simultaneously on equal
footing and while considering environmental concerns. Tort liability for harm
rests on risk creators. It is in the link between compensation and risk-control
that the distinctiveness of tort law resides. Tort law is two sided, looking
both to harm and to the compensation of harm.
Because of this unique bilateral structure the tort law is said to be best
suited in the environmental law context.Now on analyzing the law of torts it is
seen that the majority of the cases relating to environmental harm falls under
the five specific kinds of torts. They are nuisance, negligence, trespass,
strict liability and absolute liability.
In tort law nuisance is defined as the unlawful interference with the
plaintiff's use or enjoyment of land. It can also be explained as something that
annoys, hurts or offends the comfort, health and safety of the plaintiff.
Nuisance can be used as a strong weapon against environmental pollution
including pollution to water, land and air which is caused due to escape of
smoke, dust, fumes, gas, noise, heat, vibrations from mills and factories.
Nuisance is of two kinds: the first is public nuisance, which is mostly a crime
but can also be used as tort if special damages can be proved and the second
being private nuisance which is substantial and unreasonable interference with
the use and enjoyment of one's private land.
In Ram Baj Singh v Babu Lal
 the Allahabad High Court held that the generation
of noise and dust from the brick grinding machine located opposite to a doctor's
chamber amounted to private nuisance because it had caused inconvenience,
physical discomfort and annoyance to the medical practitioner and his patients.
Exposure of unwilling persons to dangerous and disastrous levels of noise
amounts to noise pollution or noise nuisance and it comes under the purview of
law of torts.
The main drawback in using the tort of nuisance as a remedy for preventing
environmental damage is the fact of the unreasonableness of the defendant's
conduct which is often difficult to prove and the plaintiff's lack of standing
to sue. However once proved nuisance is quite an easy way to protect the
environment from polluters.
Tort law defines negligence as the failure to exercise the normal duty of care
that a reasonably prudent man would exercise in like circumstances. In order to
bring an action of negligence, the plaintiff must show that:
- The defendant was under a duty to take reasonable care to avoid the
damage complained of;
- There was a breach of duty by the defendant;
- It was this breach of duty by the defendant that resulted in some loss
or damage to the plaintiff.
Generally causal relationship must be shown by the plaintiff between the
negligence of the defendant and the injury caused to the plaintiff. But it was
decided in Greherend Corporation v. Blackely
(1958) causal relationship between
the negligent act and the injury suffered is not necessary to be proved by the
plaintiff when a deadly pollution like carbon monoxide is discharged in the air
admittedly under the defendant's exclusive control.
A prominent difficulty faced in cases of negligence is the ability to prove the
connection between the acts of negligence by the person and the damage caused to
the plaintiff. When the pollutant is highly toxic like methyl-iso-cyanate as in
the Bhopal Gas Leak case, the impact and the harm caused is easier to prove
specifically because the pollutant acts fast and is widespread over a same area.
But in most environmental situations it becomes harder specifically because some
contaminants take time to have an effect on their surroundings because of being
slow poisons. It is also hard because during that period of time, the same area
could have faced a various number of other contaminants.
Trespass requires intentional invasion of the plaintiff's property by means of a
tangible or a non-tangible object. An example of trespass in an environmental
situation might be if a person deliberately sprays pesticides or dumps waste on
another's property or continuously discharges waste in the river. However, a
trespass action will not be successful unless the interference is deliberate.
if pesticides being used on A's property accidentally blow onto B's
land, it is unlikely that this would constitute trespass.
In the case of Martin v. Reynolds Metal Company
(1959 ) the court modified the
original definition of trespass to bring industrial pollution within the ambit
of liability. The case defined trespass as the invasion of land owners right to
exclusive possession, whether by visible or invisible substance.
The concept of strict liability first came upon in the United Kingdom when many
accidents took place during the Industrial revolution, which were going
un-redressed and the courts were paralyzed in penalising the people who were
committing the crimes. The rule of strict liability was evolved while deciding
the case of Rylands v. Fletcher
The rule has the following components which need to be essentially fulfilled
before it is applied:
- A person (defendant) must bring and collect material on his own land;
- The thing that is brought onto the land must be likely to do mischief if
- The thing stored must be non-natural;
- Escape of such thing from the defendant's land must cause some damage
to the plaintiff;
This sort of liability has only a few exceptions
- An act of God
- An act of a third party (sabotage)
- Plaintiff's prior consent is taken by the defendant before such thing is
- Plaintiff's own mistake
- Statutory authority
The doctrine of strict liability is also known as the rule of no-fault liability
as it considers liability without fault on the part of the defendant and
particularly this aspect of the doctrine has significant relevance in the
matters related to environmental pollution. It is related to variety of things
like water, fire, gas, explosions, electricity, oil, noxious fumes, colliery
spoil, poisonous vegetation etc.
The Indian rule of absolute liability was evolved in M. C. Mehta v. Union of
(AIR 1987) which is popularly known as the Oleum gas leakage case. There
was leakage of Oleum gas from one of the units of Shriram Food and Fertilizer
Industry on December 4, 1985 which resulted in serious consequences. The Supreme
Court could have avoided a decision on the applications by asking parties to
approach the subordinate court by filing suits for compensation. Instead, the
Court proceeded to formulate the principle of absolute liability.
The principle of absolute liability states that when an enterprise is engaged in
any hazardous and inherently dangerous activity and due to its operation severe
harm is caused then the enterprise will be strictly and absolutely liable to
compensate all those who are affected by the accident and such liability is not
subject to any of the exceptions of the rule of strict liability.
The court also
held that compensation must be correlated to the magnitude and capacity of the
enterprise. The larger and more prosperous the enterprise, the greater must be
the amount of compensation payable by it.
The Bhopal Gas leak tragedy in which 40 tons of methyl isocyanate (MIC) escaped
into the atmosphere and caused death of 3,500 people and injured nearly 2,00,000
permanently ,occurred two years before the Mehta judgment but it was decided
after Mehta case by applying the new rule of absolute liability. Separate
settlements were decided for the fatal cases, disability cases, temporary or
partial disabilities and other problems.
It is important to mention here that in the MC Mehta v. Kamal Nath & Ors the
court put pollution in the category of civil wrong and stated that polluting the
environment is a tort committed against the whole community. The Court was also
of the view that “the person who is responsible for damaging the ecology and
environment may be forced to pay exemplary damages also so that such award may
prove as an example for others to prevent them from repeating the same mistake
Of all the torts mentioned above, the principle of liability has been the most
effective in making polluters take responsibility for their actions. With the
birth of Public Interest Litigation, liability has become a primary aid to those
who are suffering due to increase in industrial pollution.
However, apart from
these due to the widespread increase in judicial activism some basic proactive
concepts and environment principles like Sustainable Development, Polluter pays
Principle, Precautionary Principle and Life-Cycle Assessment are also followed
to control, prevent and punish the wrongdoers.
The environment and Earth's biome is not anyone's personal property but if we
want to gift our future generation a better life we surely have to change the
paradigm of our interaction with the environment. The nature doesn't owe us
anything so we must understand that it is not our job to control and manage
it either but can surely protect and prevent it from further decay. In order to
reduce any future impacts on the environment city planners, industry developers
and resource managers must consider the long term effects of development on the
environment. With sound planning, public awareness and community participation,
future environmental degradation can be prevented.
Nevertheless while evaluating the potential of tort law in matters related to
environment protection as a compensation and risk control mechanism it is
important to understand how interpretation of tortious liability rules is done
by the Indian judiciary in cases related to environment protection. Although we
may find that there is a dearth of environmental torts litigation in India, but
the recent developments in the past three decades have been found to be quite
After combining tort law with rights under the Constitution and extending its
enforcement under Article 32, it is now easier for the general public to get a
remedy than compared to the scenario before MC Mehta
. Similarly, with the
emergence of bodies like National Green Tribunal (NGT) and Forest Survey of
India, keeping a check on the issues of environmental harms and degradation has
become very efficient and works of these bodies are also helpful in increasing
the awareness of the general public. Overall, the effectiveness of remedy with
the advent of Deep-Pocket theory had revolutionized environment related to tort
litigation in India.
- Stephan Shavell, Economic Analysis Of Accidental Law 279 (Harvard University
- Durga Prasad v. State, AIR 1962 Raj. 92
- Ryan v. Victoria (City) (1999)
- AIR 1982 All 285
- (1997)1 SCC 388
- Dr. R.K. Bangia's Law of torts