Tort is a civil wrong which refers to any action or omission that violates the
duty imposed by law and leads to unliquidated damages. It is concerned with
allocation of risk and prevention of losses that are bound to occur in
society. As the industrial society flourishes, issues of environmental
degradation and compensation to the victims of environmental harm
increases. While the Supreme court follows the common law of torts as per
Article 372(1) of the Constitution, there have been certain innovations and
developments that are necessary to meet new challenges in the field of
The research paper aims to analyze firstly, the intersection between law of
torts and environmental issues, secondly, the applicability of tortious
principles of nuisance, negligence, trespass, strict and absolute liability to
matters of environmental harm and thirdly, the role of Indian judiciary in
extending these liabilities to specific cases of environmental damages.
Applicability Of Law Of Torts To Environmental Issues
Tort law is concerned with protecting the private rights of an individual
whereas environmental law concerns itself with multitude of interests and
objectives that are public interests. Due to difference in objectives, the
potential of tort law in its applicability to environmental issues is
questioned. Tort suits require fault of a defendant and a link needs to be
established between the hazardous activity and environmental damage. This
requires scientific skills and technical knowledge. In cases of several
unidentified defendants, individual tort action does not work.
However, the objective of tort law is corrective justice: it is concerned with
correcting a wrong. As compensation is given to the defendant, it promotes the
compensatory nature of torts and focuses on reparation rather than
punishment. Cane argues that tort has a bipolar nature that looks at harm and
simultaneously, at the compensation for harm. So, tort theories have been
applied to remedy harms to the environment. This occurs where harm is to a
certain area of people or a class of persons.
The torts of negligence, nuisance, trespass to land or strict liability have
been used to cover cases of environmental harm. In cases of toxic torts, a
plaintiff while seeking for compensation for harm towards him/her also benefits
Nuisance is unlawful and unreasonable interference with the plaintiff's use or
enjoyment of land or anything which annoys, offends or hurts. Nuisance
may be private or public in nature. Any act that interferes with the comfort,
health or safety due to smell, noise, fumes, dust, etc. is covered under
In Ram Baj Singh v Babulal
, the defendant had built a brick
grinding machine in front of a medical practitioner's chamber and it generated a
lot of dust and noise. It polluted the atmosphere and caused physical
inconvenience to the plaintiff. The Court called this noise nuisance and
controllable under torts. In several other cases, courts have followed
similar lines of reasoning where the matters related to dust, fumes, etc.
However, the main issue in using nuisance against environmental damages is the
technical difficulty to prove unreasonableness of defendant's conduct and
establishment of causal link between the pollutant and the injury.
Negligence is the breach of duty of care caused by omission to do something
which a reasonable man would do or doing something which a prudent and
reasonable man will not do. The plaintiff has to prove that (a) The
defendant was under a duty to exercise due care to avoid damage; (b) there was
breach of duty and (c) there was damage caused due to defendant's breach of
In Naresh Dutt v State of UP
, fumes emanated from chemical pesticides stored
in residential area which caused death of 3 children and an infant in mother's
womb. It was held to be a clear case of negligence. Similarly, in Mukesh Textile
Mills and B. Venkatappa, the court applied tort of negligence to prevent
activity causing environmental pollution.
The main problem here lies in establishing connection between negligent act of
defendant and injury to plaintiff. Unlike cases like Oleum Gas leak case,
where the impact of pollutant is widespread and visible, sometimes pollutants
show effects after considerable period of time during which, the area may also
get contaminated by other pollutants.
Trespass means direct and deliberate interference with the possession of land
through some tangible object without lawful justification. If action is not
deliberate or direct, the case may fall under nuisance or negligence. In cases
for environmental damages, plaintiff needs to show direct injury to his
surroundings which makes claims of trespass difficult as air or noise pollution
lack physical interference.
Thus, unless he claims for damages to land due
to contamination of soil by defendant, no action for trespass would sustain.
Thus, this tort is seldom used for environmental damages as courts tend to rely
on criminal law for such claims like in PC Cherian.
In Rylands v Fletcher, the rule of strict liability was laid down by
Blackburn J. which was affirmed by Lord Cairns in House of Lords. This rule is
also known as no-fault liability as it considers liability on defendant's part
even without any fault and this aspect has significant relevance in issues
of environmental pollution related to fire, gas, explosions, etc.
There are several exceptions to this rule like vis major, plaintiff's own fault,
act of third party, statutory authority, etc.
However, due to rise in inherently dangerous and hazardous activities of
industries today, the Supreme court laid down the new concept of Absolute
Role Of Judiciary In Extending Tortious Liability To Environmental Cases:
The rule of absolute liability was evolved by the Supreme Court in M.C.
Mehta v Union of India through a public interest litigation. The Court could
have asked the parties to go to lower courts for compensation but it entertained
the PIL and evolved the rule of absolute liability, devoid of any
exceptions, for industries engaged in hazardous activities.
Not only this, Chief Justice Bhagwati also remarked,
"the larger the enterprise, the greater will be the amount of compensation
payable by it".
The court opened new pathway by also accepting the polluter pays
principle as part of environmental law. The court, in M.C. Mehta v Kamal
Nath, had put pollution as a civil wrong against society and opined that
those who causes pollution should pay exemplary damages. Thus, through a liberal
interpretation of Articles 32 and 226 of Constitution, the Indian judiciary has
evolved new doctrines of tortious liability and awarding compensation through
public interest litigation. The judiciary, through creative interpretation
of Article 21, not only protected the fundamental rights but also served to
protect the right to a clean environment.
Through this paper, the researcher has highlighted the various environmental
torts used in claims for environmental damages and how judicial activism has
increased environment related tort litigations in India. However even after
these developments, it is not possible for tort law to cover every aspect of
environmental degradation. The reduced realm of tort law in protecting the
environment has served as a catalyst for plethora of legislations by the
government in the field of environmental law.
- W.E. Peel and J. Goudkamp, Winfield and Jolowicz on Tort (19th edn, Sweet
and Maxwell 2014).
- M. Tony Matthew and L. Priyadarshini, 'Tortious Liability for Environmental
Harm in India- A Review' (2018) 120(5) International Journal of Pure and Applied
Mathematics < http://www.acadpubl.eu/hub/> accessed 26 December 2020.
- The Constitution of India 1950, Article 372(1) states: 'Notwithstanding
the repeal by this Constitution of the enactments referred to in Article 395
but subject to the other provisions of this Constitution, all the laws in
force in the territory of India immediately before the commencement of this
Constitution, all the laws in force in the territory of India immediately
before the commencement of this Constitution shall continue in force therein
until altered or repealed or amended by a competent Legislature or other
- Dr Madhuri Parikh, 'Tortious Liability for Environmental Harm: A Tale of
Judicial Craftsmanship' (2013) 2(2) Nirma University Law Journal 75.
- Charu Sharma, Tortious Liability for Environmental Claims in India: A
Comparative Review (LexisNexis 2017).
- Sharma (n 6).
- Parikh (n 5) 78.
- Peter Cane, 'Using Tort Law to Enforce Environmental Regulations' (2002)
41 Washburn L.J. 427.
- Mark Latham, Victor E. Schwartz and Christopher E. Appel, 'The Intersection
of Tort and Environmental Law: Where the Twains Should Meet and Depart' (2011)
80 Fordham L. Rev. 737.
- Sharma (n 6).
- Goudkamp (n 1).
- Durga Prasad v State of Rajasthan AIR 1962 Raj 92.
- AIR 1982 All 285.
- St. Helen Smelting Co. v Tipping (1865) 77 HCL 642; V. Lakshmipathy and
Ors. v State of Karnataka and Ors. AIR 1992 Kant 57; The Land Mortgage Bank of
India v Ahmedbhoy Habibbhoy and Kesowram Ramanand (1883) ILR 8 Bom 35.
- Priyadarshini (n 3) 467.
- Akshay Sapre, Ratanlal & Dhirajlal: The Law of Torts (28th edn, LexisNexis
- John Murphy and Christian Witting, Street on Torts (13th edn, Oxford
University Press 2012).
- 1995 Supp (3) SCC 144.
- Mukesh Textile Mills (P) Ltd. v H.R. Subramanya Sastry and Ors. AIR 1987
- B. Venkatappa v B. Lovis AIR 1986 AP 239.
- M.C. Mehta v Union of India (1987) 1 SCC 395.
- 'How enforcement of Law of Torts Can Save Environmental Degradation in
India' (Legal Service India) accessed 26 December 2020.
- Dr R.K. Bangia, The Law of Torts Including Motor Vehicles Act and Consumer
Protection Act (21st edn, Allahabad Law Agency 2008).
- Sharma (n 6).
- Jones v Llanwrst Urban Council (1908-1910) ALL ER 922 [as cited in Sharma
- See Section 133 of the Code of Criminal Procedure Code; Section 268 of
Indian Penal Code.
- PC Cherian v State of Kerala 1981 Ker LT 113.
- (1868) LR 3 HL 330.
- The rule of Strict Liability states that: "the person who for his own
purposes brings on his lands and collects and keeps there anything likely to
do mischief if it escapes, must keep it in at his peril, and, if he does not
do so, is prima facie answerable for all the damage which is the natural
consequence of its escape".
- Bangia (n 26).
- Rainhan Chemical Works Ltd. v Belvedere Fish Guano Co. (1921) 2 AC 465.
- Batcheller v Tunbridge Wells Gas Co. (1901) 48 L.T. 765.
- T.C. Balakrishnan v T.R. Subramaniam AIR 1968 Ker 151.
- The rule of absolute liability states that: "an enterprise is engaged in
a hazardous or inherently dangerous activity and harm results to anyone on
account of an accident in the operation of such hazardous or inherently
dangerous activity resulting, for example, in the escape of toxic gas, the
enterprise is 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 which operate vis-à-vis the tortious principle of strict liability under the rule in
Rylands v. Fletcher".
- (1987) 1 SCC 395.
- Parikh (n 5) 82.
- M.C. Mehta (n 38).
- Indian Council for Enviro-Legal Action v UOI AIR 1996 SC 1466.
- (1997) 1 SCC 388.
- Parikh (n 5) 86.
- The Environment Protection Act 1986; The Water (Prevention and Control
of pollution) Act 1974; The Air (Prevention and Control of Pollution) Act
1981; The National Green Tribunal Act 2010; etc.