Tort is a civil wrong which refers to any action or omission that violates the duty imposed by law and leads to unliquidated damages.[1] It is concerned with allocation of risk and prevention of losses that are bound to occur in society.[2] As the industrial society flourishes, issues of environmental degradation and compensation to the victims of environmental harm increases.[3] While the Supreme court follows the common law of torts as per Article 372(1) of the Constitution[4], there have been certain innovations and developments that are necessary to meet new challenges in the field of environmental protection.[5]

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.[6] 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.[7] This requires scientific skills and technical knowledge. In cases of several unidentified defendants, individual tort action does not work.[8]

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.[9] Cane argues that tort has a bipolar nature that looks at harm and simultaneously, at the compensation for harm.[10] 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.[11]

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[12], a plaintiff while seeking for compensation for harm towards him/her also benefits the environment.

Nuisance:

Nuisance is unlawful and unreasonable interference with the plaintiff's use or enjoyment of land[13] or anything which annoys, offends or hurts[14]. 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 nuisance.

In Ram Baj Singh v Babulal[15], 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.[16] In several other cases[17], 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.[18]

Negligence:

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.[19] 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 duty.[20]

In Naresh Dutt v State of UP[21], 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[22] and B. Venkatappa[23], 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[24], 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.[25]

Trespass:

Trespass means direct and deliberate interference with the possession of land through some tangible object without lawful justification.[26] 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.[27]

Thus, unless he claims for damages to land due to contamination of soil by defendant[28], no action for trespass would sustain. Thus, this tort is seldom used for environmental damages as courts tend to rely on criminal law[29] for such claims like in PC Cherian[30].

Strict Liability:

In Rylands v Fletcher[31], the rule of strict liability[32] 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[33] and this aspect has significant relevance in issues of environmental pollution related to fire[34], gas[35], explosions[36], 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 liability.

Role Of Judiciary In Extending Tortious Liability To Environmental Cases:

The rule of absolute liability[37] was evolved by the Supreme Court in M.C. Mehta v Union of India[38] 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[39], 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".[40]

The court opened new pathway by also accepting the polluter pays principle[41] as part of environmental law. The court, in M.C. Mehta v Kamal Nath[42], 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.[43] 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.

Conclusion:
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[44] by the government in the field of environmental law.

End-Notes:

1. W.E. Peel and J. Goudkamp, Winfield and Jolowicz on Tort (19th edn, Sweet and Maxwell 2014).
2. ibid.
3. 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.
4. 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 competent authority'.
5. Dr Madhuri Parikh, 'Tortious Liability for Environmental Harm: A Tale of Judicial Craftsmanship' (2013) 2(2) Nirma University Law Journal 75.
6. Charu Sharma, Tortious Liability for Environmental Claims in India: A Comparative Review (LexisNexis 2017).
7. ibid.
8. Sharma (n 6).
9. Parikh (n 5) 78.
10. Peter Cane, 'Using Tort Law to Enforce Environmental Regulations' (2002) 41 Washburn L.J. 427.
11. 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.
12. Sharma (n 6).
13. Goudkamp (n 1).
14. Durga Prasad v State of Rajasthan AIR 1962 Raj 92.
15. AIR 1982 All 285.
16. ibid.
17. 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.
18. Priyadarshini (n 3) 467.
19. Akshay Sapre, Ratanlal & Dhirajlal: The Law of Torts (28th edn, LexisNexis 2019).
20. John Murphy and Christian Witting, Street on Torts (13th edn, Oxford University Press 2012).
21. 1995 Supp (3) SCC 144.
22. Mukesh Textile Mills (P) Ltd. v H.R. Subramanya Sastry and Ors. AIR 1987 Kant 87.
23. B. Venkatappa v B. Lovis AIR 1986 AP 239.
24. M.C. Mehta v Union of India (1987) 1 SCC 395.
25. 'How enforcement of Law of Torts Can Save Environmental Degradation in India' (Legal Service India) accessed 26 December 2020.
26. Dr R.K. Bangia, The Law of Torts Including Motor Vehicles Act and Consumer Protection Act (21st edn, Allahabad Law Agency 2008).
27. Sharma (n 6).
28. Jones v Llanwrst Urban Council (1908-1910) ALL ER 922 [as cited in Sharma (n 6)].
29. See Section 133 of the Code of Criminal Procedure Code; Section 268 of Indian Penal Code.
30. PC Cherian v State of Kerala 1981 Ker LT 113.
31. (1868) LR 3 HL 330.
32. 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".
33. Bangia (n 26).
34. Rainhan Chemical Works Ltd. v Belvedere Fish Guano Co. (1921) 2 AC 465.
35. Batcheller v Tunbridge Wells Gas Co. (1901) 48 L.T. 765.
36. T.C. Balakrishnan v T.R. Subramaniam AIR 1968 Ker 151.
37. 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-�-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher".
38. (1987) 1 SCC 395.
39. Parikh (n 5) 82.
40. M.C. Mehta (n 38).
41. Indian Council for Enviro-Legal Action v UOI AIR 1996 SC 1466.
42. (1997) 1 SCC 388.
43. Parikh (n 5) 86.
44. 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.