This article is written by Ravi Shankar Pandey, 1st year student, Dr. Ram Manohar Lohia National Law University, Lucknow. He has discussed the evolution of environmental tort in India, the role of Indian judiciary in its evolution and has pointed out the reasons for paucity in tortious- litigation concerning environmental harm.

Introduction

Tort law and environmental harms due to pollution are interrelated with each other so closely that even today in spite of huge legal development, majority of all the cases relating to environmental harm comes under the ambit of four types of torts which are- Trespass, Nuisance, Strict Liability and Negligence.

In India, tort law comes into effect with the aid of Article 372(1) of the constitution which states that “all the laws which were in force before the independence, until repealed or replaced with new legislation by a competent authority, will not lose their existence and will remain in force within the territory of India”. In addition, it must be kept in mind that the State (both central and state govt.) can be sued by its name under Article 300 of Indian Constitution.

Background

The present Indian legal system is formulated on what is known as the Anglo-Indian Judicial system which in 1772, was adopted by Warren Hastings through judicial plans and became the base for later legal developments. Similarly, judges were advised to act on the ideals of “equity, justice and good conscience” in the absence of proper legislation or when there were loopholes in them. It was believed that these ideas were able to fill the gaps between the laws. Later after the codification of a number of laws, Common law was still dominating Indian laws and thus, even today when there is no codification of the law of torts, most of the precedents and rules of Common laws are followed in India.

Role of Torts in the protection of the environment

Before and after the development of torts in issues concerning environment damage, it was heavily debated that whether tort which is used for private remedy by providing damages can be employed in the prevention of environmental degradation? Stephan Shavell, a renowned professor and economist remarked that “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, more efficient and better remedies are available as compared to torts”[1].

• Tort means a civil wrong. In case when there is damage to the environment, it plays its role.
• It is more focused on curing and awarding the damages rather than prevention and hence, it is helpful.
• The environment and Earth’s biome is not personal property and hence one cannot claim reparations for its damage.
• While it is considered that tort is more focused on harm rather than risk measurement, this concept is not fully true as in cases of negligence probability and foreseeability of risk is a key factor which is considered while seeking damages.
• In tort, negligence generally reflects the fault of the defendant. The same applies to environment polluter based on the strict liability doctrine established in Rylands v. Fletcher.
• When there is personal harm resulting from environmental destruction, the remedy can be sought.

Role of Indian judiciary in extending tortious liability in cases of environmental harm

• In India, judicial activism and increase in environmental- tort litigation started with the catastrophe in Bhopal gas leak accident in which, due to the leak of poisonous MIC (Methyl Isocyanate) gas, millions of people suffered from a health problem and over 2,500 people died with the immediate poisonous effect of the gas. With such massive harm to the environment and human life, the doctrine of absolute liability began to evolve in India and finally evolved in the MC Mehta case.
• Bhopal tragedy was an eye-opening accident for people with different backgrounds including state and central governments, media persons, litigators, social activists and even industrial managements also. After the tragic accident, a new feature was introduced in the Indian judicial system when people started linking tort with the environment and there was a growth in the concept of exemplary damages (heavier amount).
• The new doctrine of absolute liability which developed after Bhopal Gas Tragedy is different from the English concept of strict liability that comes into effect with certain exceptions and defence such as plaintiff’s consent and his own fault or act of God etc. Whereas, there are no defences available to the defendant in cases relating to absolute liability.
• Fully developed in MC Mehta v. Union Of India[2], absolute liability can be represented in the form of an equation as:

Absolute liability = Strict liability- exceptions/defences

• In MC Mehta, there was a leak of poisonous oleum gas (H2O7S2) from Shriram food and fertilizers Ltd situated in Delhi. A new series of PIL initiated by Mahesh Chandra Mehta, a public interest attorney started. The court could have ordered to file a suit in the lower courts and ask for damages and compensation. But instead of doing so, it came up with a concrete doctrine of absolute liability so that the industrializing Indian economy may be able to deal with new challenges coming from harmful industries.
• The court also gave Deep Pocket Theory of Compensation and Justice P N Bhagwati (later CJI) observed, “larger the enterprise or industry will be, larger will be the amount of compensation that will be paid if there is an inherently hazardous or dangerous activity is carried out” and a very wide interpretation of Art. 32 was formulated with the introduction of new rights and remedies.
• The MC Mehta case opened new possibilities in tortious environment litigation and a new technique of issuing a direction under Art. 32 was invoked.
• Consumer Education and Research Centre (CERC) v. Union of India[3]– Although the principle of absolute liability was not revisited but the court introduced new liabilities and stated, “the compensation given in case of damage is not limited to the workers with visible symptoms of the disease during the course of their employment but extends to those workers also who suffer from any disease after their retirement”. The court also showed the sign that in case of a violation of fundamental rights, directions under Art. 32 are not limited to the State but can be extended to other persons and company acting under any statutory power or license.
• Indian Council for Enviro-legal action v. Union of India[4]– In this case upholding the judgement in MC Mehta, the court observed “the law needs to accommodate itself with the changing needs of the society especially in a country like India where economic and social transformation is a challenge due to rapid industrialization” and applied the polluter-pays’ principle. The court also observed that the newly developed principles of tortious liability are effective in PIL concerning environmental harm. The court stating the rationale of MC Mehta asked the government to ensure the remedy for the victims and directed the government to take necessary steps by levying a cost on the defendants if they fail to do so. Other important things that the Court stated were:

1. The court is competent to provide an instant and adequate remedy if there is a need.
2. The victim suffering any personal damage is not limited to the civil process. He can directly approach the court under Art. 32 of the constitution.
3. The court is concerned particularly about those harms which consist of both personal (human rights violation) and environmental damage. In such cases, those who are responsible for the act will be required to pay repair costs also.
4. The court is serious about shifting the line or parallel between the administrative process and adjudication.
5. There would be the creation of tribunals and committees to look into such socio-legal issues inflicting harm to both an individual and the environment.

• Bandhua Mukti Morcha v. Union Of India[5]– This was a landmark judgement due to the fact that in this judgement the Hon’ble Supreme Court stated that “the power of the court under Article 32 which deals with right to constitutional remedies is not limited only with issuing directions, guidelines or writ to enforce fundamental rights but it puts an obligation on the Court to check whether the fundamental rights of the people are protected or not”.

This was also declared that for protecting the fundamental rights the court is vested with enormous power (both ancillary and incidental) and has the right to invent new types of remedies and strategies for fundamental rights’ enforcement.

• MC Mehta v. Kamal Nath & Ors.[6]– In this judgement, 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 again”. However, the Court differentiated between fine and exemplary damage by saying that both are the results of different types of considerations. The Court restated that its powers are not limited and thus it can award damages through PIL’s and writs under Art. 32.

Why is there a lack of environmental-tort litigation in India?

Although the role of the Supreme Court in the evolution of environmental-tort is immense, there is still a lack of litigation in that field. While analysing the situation, there are many reasons that we find for such a void in tortious litigation. Some of these are as follows:

1. There is a lack of compatibility assessment between societal needs and law. Judges and litigators involve themselves into rigorous technicality over an issue rather than solving it simply as per societal needs.
2. Our Indian legal system fails to acknowledge public and civil remedies while trying cases on personal relationships in society.
3. There is a tendency growing in people of India to prefer mediation over such issues rather than going for litigation on similar lines with the Western world.
4. Litigation involves and demands a large amount of money, time and labour which people seek to avoid at any cost and even after going through the time-taking process, they are not assured that they are going to get remedy or not in such cases of torts.
5. The primitive (under grown) condition of substantive law on such points, especially on State’s vicarious liability for the act of its servants.
6. There is confusion created on the minds of lawyers due to availability of different types of laws on similar issues which acts as a hindrance in environmental-tort litigation.
7. The general public is unaware of the legal development on this point of law. They don’t know their rights and hence, do not seek remedy from the courts.
8. Due to the negligible codification of the law of tort, it is difficult to access the law.
9. Government employees and bureaucrats do not take recourse to the legitimate claims of the public. They are in habit of dissuading their claims even when they are aware that their claims are enforceable.  

Conclusion

In the end, it may be said that, although there is a dearth of tort and especially environmental torts litigation in India, the recent developments in the past three decades have been satisfactory. After combining tort law with rights under the constitution and extending the enforcement under Art. 32, it is now easier for the general public to get a remedy when 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.

[1] Stephan Shavell, “Economic Analysis of Accidental Law” (Harvard University Press, 1987), 279.

[2] AIR 1987 SC 1086.

[3] AIR 1995 SC 922.

[4] AIR 1996 SC 1466.

[5] (1984) 3 SC 161.

[6] AIR 2002 SC 1515.