This article is written by PSN Gowrish.
Table of Contents
Introduction
The term environment refers to the surroundings where you live. Today the environment is facing a lot of problems i.e., it is getting polluted due to lack of reasonable care and negligence on the part of people and also on the part of the government in framing various policies and amending the laws which deal with environmental protection.
There are various laws which deal with environmental protection. Some of the important laws which have effectively been used to contain and control the various forms of environmental pollution are as follows:
- Law of Torts
- Indian Penal Code 1860
- Criminal Procedure Code 1973
- Factories Act 1948
- National Environmental Tribunal Act, 1995
The above laws are discussed below:
Environmental Pollution as a Tort
Justice Saghir Ahmed of supreme court has aptly observed in unequivocal terms, that:
“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 for restoration of the environment and ecology. In addition to damages, the person guilty of causing pollution can also be held liable to pay exemplary damages, so that it may act as the deterrent for others not to cause pollution in any manner.”[1]
In this case, a motel was discharging its untreated effluents in the river Beas, thereby causing water pollution. The construction of the motel also interfered with the natural flow of the river. The motel was directed to pay compensation and it was also declared that ‘pollution fine’ can also be imposed on such polluters by following the statutory procedure.
Tort law is basically a part of common law, is based on judicial pronouncements. There are various torts which provide relief for environmental pollution under various headings. Torts relating to environmental protection are:
- Nuisance
- Trespass
- Negligence
- Strict Liability
Nuisance and Environmental Pollution
It has been rightly observed that the deepest doctrinal roots of modern environmental law are found in common law principles of Nuisance.[2]
This law covers various kinds of activities which pollute the environment. Nuisance means “an unlawful interference with the use and enjoyment of land or property, or some right over, or in connection with it”. It is a recurring state of affairs. This covers the escape of deleterious things and inconvenience to another. Nuisance generally means anything which annoys, hurts or that which is offensive. It may be through escape of water, smoke, fumes, gas, noise, heat, vibration, germs, trees etc..
There are 2 categories of Nuisance namely:
- Public Nuisance; and
- Private Nuisance
Public Nuisance is a crime and is covered under the Indian Penal Code (Section 268 and 291) and Criminal Procedure Code (Section 133 and 144).
In Dhannal Lal v. Chittar Singh,[3] the M.P. High court held that the constant noise, if abnormal or unusual, can be actionable if it interferes with another’s physical comfort. The person causing nuisance may be restrained by injunction, although he may be conducting his business in a proper manner according to the rules framed in this behalf either by the municipality or by the state.
The following factors are material in deciding whether the discomfort is substantial as to make it actionable:
- Degree of intensity
- Duration
- Locality
- The mode of using the property
In the famous River Ganga pollution case[4], the Supreme Court declared that the nuisance caused by the pollution of the river Ganga is a public nuisance, which is widespread in range and indiscriminate in its effect. Since this affects the community at large, one can move the court through Public Interest Litigation. In this case, tanneries were discharging their untreated effluents into the river and many nallahs were also releasing the city waste into the river, thereby causing water pollution. The court issued various detailed directions to the Municipal Corporation of Kanpur city to maintain the wholesomeness of water of the river by taking necessary steps to stop the release of industrial effluents and municipal waste into the river Ganga.
Despite all these, there are few remedies for Private Nuisance under Tort law. They are as follows:
- Abatement: It means removal of a nuisance by the party injured but it must be peaceably, without danger to life or limb. For this a prior notice and adequate opportunity must be given to the other party before entering upon the land of another.
- Damages: Aggrieved party can bring an action for damages.
- Injunction: It is a court’s order for restraining the other party from continuing an activity which is causing a nuisance. It must be proved before the court that the injury cannot adequately be compensated. Injunctions have been dealt with by Specific Relief Act, 1963 from sections 36 to 42 and the code of Civil Procedure, 1908.
Trespass
Trespass is very closely related to nuisance and it occasionally invoked in environmental cases. Trespass requires an intentional invasion of the Plaintiff’s interest in the exclusive possession of property. No substantial injury need be shown for a plaintiff to succeed in an action for trespass. The only requirement to establish a trespass is that there must be an intentional un privileged physical entry by a person or object on land possessed by another.
In Arvidson v. Reynolds metals company,[5] the court observed that the aluminium was produced by the defendants plant in a manner that unavoidably caused fluorides of some types escaping from the plants, if ingested in excessive quantities, were capable of causing damage to cattle. Nevertheless, the court found for the defendant on the ground that large scale production of aluminium is essential to national defence.
However, the trespass theory is inadequate to control the air pollution. The difficulty in identifying the correct source of air pollution in an area, the cost of litigation and the willingness of the people to accept the status quo tends to discourage filing if trespass suits.
Negligence
It is another specific tort which prevents environmental pollution. It is a failure to exercise that care which the circumstances demands in any given situation. Where there is a duty to take care, reasonable care must be taken which can be foreseen to be likely to cause physical injury to person or property.[6] The casual relationship must be shown by the plaintiff between the negligence of the defendant and the injury of the plaintiff.
But the casual relationship between the negligent act and the injury suffered is not necessary to be proved by the plaintiff when a deadly pollutant like carbon monoxide is discharged in air admittedly under the defendants exclusive control as was decided in Greyhound corporation v. Blakley[7]. Therefore a public man can bring an action for lung damage caused by fine dust particles against the local cement and like factories. Eg., National silicon factory at Baroda, rich corosilance of combined with water produces hydrochloric acid and silica, its fumes can damage lungs. The fibres entering into the body of man cannot be seen by the naked eyes and cause damage to the lungs of a man. Such cases call for a very high degree of care”.
In Mukesh Textile Mills (p) ltd v. H.R.Subramanya sastri[8], common law action for negligence was applied to prevent any activity causing environmental pollution.
Doctrine of strict liability
This tort is comparatively new (1868). The rule in Rylands v. Fletcher is known as the tort of strict liability. It is a liability without fault on the part of the defendant is very significant in relation to cases arising from environmental pollution because it has been applied to a remarkable variety of things via fire gas, explosions, electricity, oil etc., Further this rule applies equally to the injuries caused to person[9]and property[10]. But unless there is an escape of the noxious substance or article from the land of the defendant where it is kept, to the land of the plaintiff, there is no liability under the rule[11]. It was applied by the courts in many cases.
Rejecting the theory of strict liability the Supreme Court of India in the case M.C. Mehta v. Union of India[12](oleum gas leakage case) declared that we have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with unusual situations on account of hazardous or dangerous industry. We should not hesitate to evolve principles of liability though such principles might have evolved in England.
It is observed by Justice Bhagavati that such industry must be held strictly and absolutely liable for causing harm as a part of social cost for carrying on hazardous activity.
In this case:
- there was leakage of Oleum Gas.
- It was a toxic gas from the Shriram food and fertilizer industry on December 4, 1985.
- As a result of this an advocate died on account of inhalation of oleum gas and several persons were taken ill. The industry was held liable on the principle of Absolute Liability.
- Later the same thing was again approved in the Bhopal Gas tragedy case.[13]
Related provisions of Indian Penal Code, 1860
- The IPC has a chapter on “Offences affecting the public health, safety, convenience” (chapter 16).
- Section 268 deals with Public Nuisance. Thus an act which tends to or causes interference with the health safety, comfort, convenience of the public at large will be considered as Public Nuisance.
- Section 290 provides punishment for public nuisance with a fine which may extends to Rs. 200.
- In Kurnool municipality case,[14] it was held that the municipality can be convicted for not maintaining the cleanliness of the town under section 290.
- The Kerala High court held that smoking, in any form, in a public place is a public nuisance and cases can be filed under section 290 of the IPC[15] and it is violative of the right to life provided under Article 21 of the constitution.
Various provisions which deals with the pollution are as follows:
- Section 269: negligent act likely to spread infection of disease dangerous to life.
- Section 270: Malignant act likely to spread infection of disease dangerous to life.
- Section 277: Fouling water of public spring or reservoir.
- Section 278: Making the atmosphere noxious to health.
- Section 284: Negligent conduct with respect to poisonous substance.
- Section 285: Negligent conduct with respect to fire or combustible matter.
- Section 286: Negligent conduct with respect to explosive substance.
- Section 425 to 440: Includes various types of mischief including mischief by killing of maiming animals and cattle.
Since the punishment for the above mentioned offences are too meagre, looking to the present day gigantic problem of environmental pollution, therefore, most of the provisions are in effect and are not helpful in curbing the problem of environmental pollution.
Provisions under Cr.PC, 1973
Chapter 10 of the criminal procedure code, 1973, part B has provided a provision for public nuisance which relates to environmental pollution. Section 133 of Cr.PC empowers a district magistrate, sub divisional Magistrate, to stop the nuisance on receiving the information.
Under this section, the court issues the conditional orders for the removal of nuisance[16]. But in the case of disobedience of orders, the court can impose penalties provided under Section 188 of Indian Penal Code which includes the imprisonment of six months and a fine which may extend to one thousand rupees.
The imperative tone of Section 133 of Cr.PC read with punitive temper of Section 188 of IPC make the prohibitory act a mandatory duty[17]. The decision of supreme court in Ratlam Municipality case[18] has made it clear that a citizen can always bank upon Section 133 for the removal of the nuisance of pollution. Corporate bodies like companies and corporations can also be held responsible for pollution nuisance under these provisions.
The court observed that whenever there is a public nuisance, the presence of Section 133 must be felt and any contrary opinion is contrary to the law.
But it is not clear that the municipalities and other local bodies can initiate prosecution proceedings against industries and factories for causing environmental pollution. Therefore it is suggested that the prosecution power may also be vested in the municipalities and other local body authorities of the pollution control board.
Even in the Oleum Gas Leakage from the Sriram food and fertilizer industry, New Delhi, The District Magistrate, Delhi ordered to close down the factory under Section 133 of Cr.PC. This case culminated into a historical case in the field of the liability of industries engaged in a dangerous activity.
Section 133 is independent and different from other pollution laws
The supreme court in the State of M.P. v. Kedia Leather and Liquor Ltd.[19] has declared that the area of section 133 of the code and pollution laws like the Water Act, 1974 and the Air Act 1981, are different and not identical in nature. While Section 133 is in the nature of preventive measure, the provisions contained in the above two acts are not only creative but also preventive and penal. The provisions appear to be mutually exclusive and different in their respective fields and there was no impediment for their existence side by side. Moreover , passing of new pollution control laws, as mentioned above, does not repeal Section 133 of the code.
Factories Act, 1948
One of the basic laws dealing with environmental pollution from industries is the Factories Act of 1948. The term occupation used in the environment (protection) Act, 1986 has been adopted from the factories Act.
In various cases related to environmental pollution Taz trapazeium case[20], Kanpur tanneries case[21], Modi distilleries case[22], Asbestos Industries case[23] etc., this act has been referred to by the supreme court.
It is the first act which deals with the industrial safety, discharge of pollutants, hazardous substances and occupational health and welfare of the workers.
Section 12 of the Act provides that the occupier is duty bound to follow effective arrangements in the factory for treatment of wastes and effluents due to manufacturing process is carried on in the factory as to render them innocuous.
Section 14 deals with dust and fumes.
An amendment was made to the Factories Act in the year 1987 and a new Chapter 4-A was incorporated in it. It is related to provisions which deal with hazardous work. They are as follows:
Chapter 4-A
Section 41A: Constitution of site appraisal committees.
Section 41B: Compulsory disclosure of information by occupier involving hazardous process.
Section 41C: Specific responsibility of the occupier in relation to hazardous process.
Section 41D: Power of central government to appoint inquiry committee.
Section 41E: Emergency standards.
Section 41F: Permissible limits for chemicals and toxic substances.
Section 41G: Worker’s participation in safety management.
Section 41H: Right of workers to warn about the imminent danger.
Section 87, 87A and 96A also includes various provisions which authorises various state governments to cease the factory which exposes the workers to any hazardous work. Section 96A deals with the punishment which may extend to seven years and a fine which may extend to two lakh rupees.
We can consider chapter 4-A as a welcome venture as it provides for the regulation of hazardous substances so as to protect the health of workmen. Though it is quite comprehensive in nature, it does not provide for citizen’s suits.
There is another act called Insecticides Act, 1968 which also empowers the central and state governments to prohibit the sale and distribution and the use of dangerous insecticides.
A survey and comparison with the laws of other countries reveals that it lacks effective implementation machinery and various deadly pesticides like Agent Orange are not banned by this Act.
The National Environmental Tribunal Act, 1995
The Environmental Protection Act, 1986 under Section 3(3) is empowered with the adequate powers to constitute an authority for the purpose of exercising and performing such powers and functions as are necessary to protect and improve the environment, the parliament passed this act and the President assented on june 17, 1995.
Objective:
To provide Strict liability for damages arising out of any accident occurring while handling hazardous substances and for the establishment of a National Environmental Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to give relief and compensation for damages to persons, property and the environment and for matters connected therewith or incidental thereto.
- This act consists of 31 sections divided into 5 chapters.
- The tribunal is not bound to follow the procedure laid down by the civil procedure code, 1908 and it shall be guided by the principles of justice, equity and good conscience.
- It empowers itself to regulate its own proceedings.
- It has to be given an official gazette for its establishment and for its benches.
- It consists of judicial and technical members who are expertized in the fields of administration, science, and other technical aspects related to the problems of the environment.
The tribunal and its benches are empowered to award the compensation payable on the ground of any damage to the environment which shall be remitted to the authority as provided under Section 7A of the Public Liability Insurance Act, 1991 for being credited to the environmental relief fund. This shall be utilised for improving the damaged environment[24].
Section 25 deals with the penalty for the failure to comply with the orders of the tribunals. The punishment may extend upto to imprisonment of three years or with fine which may extend upto ten lakh rupees or both.
Its proceedings are judicial in nature and the officer shall be deemed to be a public servant within the meaning of Section 21 of IPC, 1860.
However the National Environmental Tribunal Act, 1995 has got laudable objectives to achieve, but this has yet to be fully effectively implemented.
Conclusion
Even though there are many acts and enactments which deal with environmental protection, most of them have not practically been implemented and more over most of the corporate institutions are taking advantage of these environmental protection laws and making it a defence for their faults and liabilities. The Bhopal gas case is the best example on this point, in this case, the Dow chemicals made the concept of sustainable development as a defence and refused to pay the compensation for those who suffered injuries and death. There are many cases like this. So, as far as my opinion is concerned the law making bodies should keep one point of view that it has to make laws for the wellbeing of the people not in favour of companies.
Even the government has to implement effective policies in order to protect the environment.
The municipal corporation of Bengaluru is striving hard in the fields of environmental protection. From 2005, it started a green programme in the city and started planting various trees on the lanes and the dividers of the roads in order to prevent air pollution. That is the reason the city is often called as Garden city.
Despite all these laws and government policies which have implemented various schemes in order to control the pollution, we, as a responsible citizen moreover as a human being must join our hand to control the pollution. As it’s our society we have the moral obligation to make it clean, healthy and secure.
References
[1] M.C.Mehta v. Kamal Nath, (2000) 6 SCC 213
[2] Rogers: Winfield and Jolowicz on Tort, (1984), at p.377
[3] AIR 1959 MP 240
[4] 10 WR 803 (1862)
[5] 125 F SUPP 486 (W.D.Wash) 1954
[6] Donogue v. Stevenson (1932) AC 562 Per lord Atkin
[7] (1968) 262 F 2nd 401
[8] AIR 1987 Kant 87
[9] Rylands v. Fletcher (1868) LR 3 HC 330
[10] Waschock v. Moffat 379 PA 441
[11] Read v. Lyons and Co (1974) AC 156
[12] (1997) 2 SCC 353
[13] 1994 Supp (3) SCC 328
[14] 1973 Cr L.J. 1277 (AP)
[15] AIR 1999 Ker 385
[16] (1979) 2 SCC 267
[17] (1980) 4 SCC 162
[18] Ibid
[19] (2003) 6 SCC 213
[20] (1997) 2 SCC 353
[21] (1988) 1 SCC 471
[22] (1987) 3 SCC 684
[23] (1995) 3 SCC 42
[24] Section 22
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
