Environment and Law of Torts – The Nexus In-Between
Keywords – environment, environmental laws, law of torts, Nexus, environmental policies
Written By – Diksha Bhargav
Introduction
In the last four decades, we have witnessed an explosion of laws affecting environmental interests. With the evolution of environmental policies during the 1970s, the legal landscape has become robust with targeted legislation governing wildlife protection, hazardous wastes, and water and, air pollution. The government of India established the National Green Tribunal with the intent to provide effective and expeditious disposal of cases that are related to the protection and conservation of the environment, forests, and other natural resources. Before this time, the legal system fell back predominantly on tort law to right environmental wrongs.
Therefore the law of tort has played a major gap-filling role. Presently tort law is used in addition to statutes and provides a legal method to acquire compensation when a person is harmed due to environmental pollution caused by another. But as we know that the basic principle for applying tort law is when there is personal damage to property or body. However, we can still find that the environmental doctrine finds its roots in tort law. There is a nexus between the law of torts and environmental law.
Through this article, we understand the connection between the two laws and even with this connection why there is a need for separate laws.
Scope of Tort Law in the protection of the environment
The law of torts in India is based on common law. It is well-known that common law was originally introduced in India by the Britishers and it continues to apply here as a consequence of Art. 372 (1) of the Indian Constitution.
The basic feature of tort is that it is a civil wrong and the Law of Torts deals with the remedy for infractions of private rights. Due to this characteristic of the law of torts, its role in the protection of the environment has always been in question. Environmental protection is a third-party objective and the law of torts does not deal with third-party rights. However, time and again the Indian Judiciary has applied the principles of the law of torts in the protection of the environment. This is because of the uncanny similarities between the objectives of the law of torts and environmental protection. A few of the similarities are summarized in the table below.
| Basis | Law of Torts | Environmental protection |
| Scope | Comes into play when something is gone wrong. | It is required when there is environmental damage. |
| Objective | Much more concerned with the cure than prevention i.e. remedy. | It provides a remedy or compensation for any environmental damage. |
| Result | It primarily focuses on reparation and not punishment. | Environmental protection also focuses on restoring the damage done. |
| Liability | Under the law of torts, the liability is fault-based. | Under environmental protection also the liability is fault-based. |
With this parallel drawn, we can say that law of torts has a lot of potential for environmental protection. Most of the environmental pollution cases of tort in India fall under four major categories –Nuisance, Negligence, Strict Liability, and trespass.
Another question that might arise is the necessity for specific environmental legislation when we have tort law that covers environmental law as well. The answer simply lies in the rule of interpretation that a specific law will always prevail over a general law. A codified law provides an extensive remedy and liability for any damage than an uncodified law and the fact that the tort system and environmental laws do not always further the same objectives.
Development of Environment law in India
In 1976 the Indian Constitution was amended to include protection of the environment as a duty of the state under article 48A. Under Article 51A (g) it is the fundamental duty of the citizen of India to protect the environment. The recognition of the right to a healthy environment has served as a landmark in the field of environmental justice in India. But the perhaps the most significant enactment was Environmental Protection Act under Article 253 of the Constitution The Act seeks to mandate compulsory insurance to provide immediate relief to the victims of an accident caused while handling any hazardous substance. The Act was passed in the backdrop of the Oleum Gas Leak case and the Bhopal Disaster. It was passed to consolidate the law about an enterprise’s liability while handling any hazardous substance.
The Act’s primary goal is to protect members of economically weaker sections of the society who cannot afford prolonged litigation in a court of law. The Act has been built around providing immediate compensation in terms of an industrial accident and does not address the issue of preventing the accident in the first place. The Object of the Act clarifies that it applies only to accidents or incidents which result from the handling of hazardous substances.
Principles that are common to Law of Torts and Environmental Law in India
After the Bhopal gas leak tragedy, when the judiciary did not have any specific legislation to address the issue of industrial harm to the environment the principle of absolute liability evolved. The Indian judiciary did not find the doctrine of strict liability as laid down in the case of Rylands v Fletcher, sufficient to address the matters. Therefore absolute liability is for the harm caused by industry engaged in hazardous and inherently dangerous activities that are free from exceptions to the strict liability. The absolute liability rule which was formed under the Law of torts is still used under the Environmental law.
Further the Hon’ble Supreme Court in the case of M.C. Mehta v. Union of India AIR 1987 SC 1086. observed that the ‘Polluter Pays Principle’ is a more relevant principle that necessitated the payment of exemplary damages for harming the environment as a way to hold the polluter responsible to better the harm caused by them and not the government or the people. Therefore we can say that polluter pays principle is an extension of the rule of absolute liability because it exposes the polluter to two-fold liability, namely, compensation to the victims of pollution and ecological restoration.
In the Indian Council for Enviro-Legal Action v. Union of India AIR 1996 SC 1446, the Supreme Court supported Mehta’s case and pointed out the rationale for fixing the absolute liability on the hazardous industry. In this case, the polluter pays principle was applied. The Court directed the government to take all steps and to levy the costs on the respondents if they fail to carry out remedial actions.
In M.C Mehta v. Kamal Nath and Ors. (1997) I SCC 388, the Supreme Court held, “Pollution is a civil wrong. By its very nature, it is a Tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution, has to pay damages (compensation) for restoration of the environment and ecology.
Conclusion
The judiciary has resorted to fundamental rights, the directive principle of state policy, and the fundamental duties of citizens in the constitution for the development of environmental jurisprudence. When we did not have any environmental legislation judiciary very artfully applied the principles of tort law to provide a remedy for environmental damages. The judicial craftsmanship is seen in the use of private law remedies for the public wrong in environmental cases. The Bhopal gas leak tragedy was the turning point in the evolution of environmental laws through this case important environmental doctrines were evolved which have their roots in tort law.
However, even with this intersection of tort law and environmental law, we do need well-defined fields of law that are vital for a variety of reasons but the most important reason is that the tort system and environmental laws do not always further the same objectives.
With this, we could conclude that there is a nexus between tort law and environmental law as the modern environmental principle find their genesis in tort law. However, the principle of tortious liability only deals with the matters in which the environmental damage has already happened, but does not lay down any precautionary measures in this respect. Moreover, the compensation provided under tort law seems inadequate many times. The principles of tortious liability need to be widened further to protect the environment from any harm.
References
- “The Evolution of Tort Law and Related Developments in India after the Bhopal Gas Leak: An Assessment” by Prof.(Dr) T.R Subramanya & Ms. Shreyasi Bhattacharya. https://www.cmr.edu.in/school-of-legal-studies/journal/wp
- “Doctrine of Absolute Liability vis-a-vis Right to a Safe Environment” by Ritwik Jaiswal Amity University, Noida. http://www.penacclaims.com/wp-content/uploads/2020/05/Ritwik-Jaiswal.pdf
- “Tortious liability for environmental harm: a tale of judicial craftsmanship” by Dr. Madhuri Parikh. http://docs.manupatra.in/newsline/articles/Upload/1B0960FF-9DFE-4A43-917D-065ED5E6EE03.pdf
- Environmental remedies under Tort Laws by Niharika on Legal Service India https://www.legalserviceindia.com/legal/article-768-environmental-remedies-under-law-of-torts.
- Environmental pollution as a tort by Bhanvi Juvekar on Ipleaders https://blog.ipleaders.in/environmental-pollution-as-a-tort-overview-and-analysis/
