• Nisha Gupta

Torts and Environment: Crafts by Courts

If you were to ask someone with a legal background to define “tort”, they would do one these things: translate the French word ‘tortem’, tell you about the Pigeon Hole Theory, or simply tell you that there is no specific definition for the same. In its essence, the primary aims of the law of tort include,

  • providing relief to ‘injured’ parties for ‘injury’ caused by others,

  • imposing liability on parties responsible for the ‘injury’, and,

  • deterring others from committing ‘injurious’ acts.

The word ‘injury’ (and its derivatives) here is not used in the literal sense. ‘Injury’ in legal terms is defined as an infringement of a person’s rights. These are not just fundamental rights, such as those of life, liberty and privacy, which are often protected by Constitutional means, but also include a wide spectrum of other rights that a person possess in ‘rem’ (against the world at large). Law of tort provides remedy in scenarios where these rights are infringed by other parties (state or otherwise), without cause. The cause of the infringement is very important, in the absence of a justifiable cause, there is no ‘injury’ but only ‘damage’. For instance, if someone digs a hole on the road right outside your garage, preventing you from taking your car for a drive, it is a damage. This damage becomes legally remediable if the person digging fails to come up with a justifiable cause for the same, in that scenario it is an ‘injury’. If however, that individual was properly designated by the state to, say repair a pipeline underneath, there is no ‘injury’ and despite the ‘damage’ caused, there is no legal remedy.

This situation is referred to with the Latin phrase, damnum sine injuria (damage without an injury). The reverse of this situation injuria sine damno is a situation where there is no actual loss but a legal right has been violated. The most famous instance is that of Ashby v. White (1703) 2 LR 938. In this case, the plaintiff (person filing the claim) was wrongfully denied the right to vote in an election. The candidate whom the plaintiff wanted to vote for won regardless, but the court held the he (and in those days a voter was always ‘he’) was entitled a claim as the right had been violated. Tort cases, when brought in court offer varying layers of defences to the defendants. In particular, cases of negligence have historically required proof of ‘duty of care’ and ‘remoteness or foreseeability of damage’. If the plaintiff fails to prove, for instance that he/she was entitled to a duty of care on part of the defendant, and that the damage caused was foreseeable by the negligent action of the defendant, there is no injury.

An exception to this is ‘No Fault Liability’, also called ‘Strict Liability’. In the case of Rylands v. Fletcher, the House of Lords propounded the rule of ‘strict liability’ for damages caused by a person for bringing dangerous things on his land. For strict liability to apply, there are conditions that need to be fulfilled and exceptions for escaping responsibility thereafter are fewer than normal cases. However, despite fewer exceptions, strict liability was not a wide enough concept to circumvent the ‘foreseeability of damage’ test. This led to a lot of cases, especially one’s concerning the environment, being dismissed in favor of defendants. The most notable among these was Cambridge Water Co. v. Eastern Counties (1994) 1 All ER (HL) 53, where chemical slippage through a factory floor leading to damages in the plaintiffs borehole was not held to be ‘injurious’ on account of foreseeability.

India saw the mishandling of the Bhopal Gas Tragedy case and that became the trigger for the Hon’ble Supreme Court of India to fix the problem. The solution came in the case of M.C. Mehta v. Union of India 1987 SCR (1) 819, which originated in the aftermath of oleum gas leak from Shriram Food and Fertilisers Ltd. complex at Delhi. This incident took place within a year of the infamous Bhopal Gas Leak.

To adequately deal with the challenges put forth by the fast industrialization of the Indian economy, the Court refused to accept the exceptions to the rule of strict liability for hazardous industries.

Instead, it evolved a new principle of absolute liability which lay down new norms to adjudicate on the matters of environmental damages caused by industries engaged in these hazardous and inherently dangerous activities. Coining the term, the then Chief Justice of India P.N. Bhagwati, declared that the new rule was not subject to any of the exceptions under the rule in Rylands v. Fletcher UKHL 1, (1868) LR 3 HL 330. Justifying the same, Justice Bhagwati said that any industry indulging in such an activity “for private profit has a social obligation to compensate those suffering therefrom” and that “enterprise alone has the resource to discover and guard against such hazards and dangers.” That was not the end, the court further held that the measure of compensation must be co-related to the magnitude and capacity of the enterprise. Thus, ensuring just and equitable compensation for the damage caused.

Mahesh Chandra Mehta- Indian Environmentalist and Goldman Environmental Prize winner (1996).

Similarly, M.C. Mehta v. Kamal Nath (1997)1 SCC 388, famously known as the Beas River Case, was a landmark case in Indian environmental law. The doctrine of public trust, that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public's use was applied in by the Supreme Court. The judgement affirmed that "pollution is a civil wrong”. By its very nature, pollution was established as tort committed against the community as a whole. It followed therefore that anyone guilty of causing pollution, would have to pay damages for restoration of the environment and ecology.

In accordance with the doctrine of “public trust”, the judgement also recognised the right to clean and wholesome environment as a fundamental right under Article 21 of the Constitution of India which enshrines the principle of Right to Life. Therefore, any interference with this fundamental right can see writ petitions being filed under Articles 32 and 226 of the Constitution to the Supreme Court and the High Court respectively. This expanded protection not only allows the citizen direct access to the higher judiciary in cases of environmental damages, it allows enables the state to take pre-emptive action in furtherance of fundamental rights.

This dynamic approach adopted by the judiciary in creating tortious liability for environmental damage under the principles of absolute liability and public trust, have furthered the development of litigation in India. Through its craftsmanship, the judiciary has not only ensured that those responsible are held accountable, but has also allowed for payment of exemplary damages so as to deter irresponsible behavior, and protect the environment.

About The Author

Nisha Gupta is a budding lawyer, MUNer, and an avid Manchester United Football Club fan. Nisha graduated from DPS International School, and is currently pursuing B.B.A. LL.B. from National Law University, Jodhpur. With a flair for words, she takes a keen interest in expanding her horizons and outlook on life through reading, and for the lives of those around her, by writing (and talking a lot).

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