Common law remedies for the environmental protection
In India, there are a plethora of legal provisions which seek to guard the environment from attacks from the humanity . Along with the various Constitutional provisions, there are several legislative enactments passed by the Parliament of India in order to achieve the constitutional objective of ensuring a wholesome environment to the citizens of India. To name a few, they are Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981; Environment (Protection) Act, 1986. Also, there are several provisions under the Indian legal code , 1860, which highlight the penal provisions just in case of injury sustained by a person on account of environmental damage caused by any other individual. Also, there are ample remedies available under the common law vis-à-vis environmental protection like nuisance, trespass, negligence and strict liability.
Constitutional provisions vis-à-vis Environmental Protection
The directive principles of State Policy and therefore the chapter on fundamental duties explicitly enunciate the national commitment to guard and improve the environment. “It is now well settled legal principle that right to pollution free environment is that the fundamental right and right of a citizen.”1 “The Supreme Court in its judicial pronouncements held that the “precautionary principle” and “polluter pay principle” is law of land.2″
Before the 42nd Amendment, the word ‘environment’ wasn’t mentioned within the Indian Constitution. By this Amendment, Article 48-A was added within the directive principles of state policy and by Article 51-A, a replacement provision was inserted within the sort of fundamental duty. According to Article 48-A “the State shall Endeavour to guard and improve the environment and to safeguard the forests and wildlife of the country”.
As per the sub-clause (g) of Art. 51-A, “It shall be the duty of each citizen of India to guard and improve the natural environment including forests, lakes, rivers and wildlife and to possess compassion for living creatures”.
In Rural Litigation and Entitlement Kendra v. State of UP, the Hon’ble Supreme Court observed that protection of environment is not only a duty of the state under Article 48-A, but the citizens of India are also duty bound to protect the environment under Article 51-A (g) of the Constitution. Originally fundamental duty incorporated in the Constitution was not directly enforceable. However, with the passage of your time and thru broad interpretation , necessary stimulus was provided to realize the target behind the incorporation of fundamental duty within the Constitution for the protection of environment. In L. K. Koolwal v. State of Rajasthan and Ors
In M.C.Mehta v. State of Orissa , court observed that there cannot be any right without the duty. So if there’s insanitation within the environment it’ll severely affect the lifetime of citizens and hence it’s the violation of fundamental rights of citizens. Hence, it’s the duty of the citizen to ascertain that the rights which are provided to them under the constitution are fulfilled by the state. In AIIMS Students’ Union v. AIIMS and Ors, Supreme Court observed that even though fundamental duties are not enforceable by the court of law, it still gives important guidance for the interpretation of constitutional provisions for the protection of environment. Court also emphasised that fundamental duties should be given its full meaning as intended by the 42nd constitutional amendment. When the court is approached to give effect to directive principles of state policy and fundamental rights, it cannot run away from its responsibility by saying that priorities are a matter of policy.
Part III of the Constitution deals with Fundamental Rights. Herein, Article 21 deals with right to life. This right would be meaningless if there’s no healthy environment for the citizens to measure in. In M.C. Mehta v. Union of India the Supreme Court held that the right to live in pollution- free environment is a part of fundamental right to life under Article-21 of the Constitution. In Subhash Kumar v. State of Bihar, Hon’ble Supreme court held that right to life under Article 21 includes the right to enjoyment of pollution free water and air. In P.A. Jacob v. Superintendent of Police, Kottayam, the court held that subjecting an unwilling person to disastrous levels of noise pollution would amount to infringement of fundamental right of an individual under Article 21 of the Constitution of India.
Common Law remedies against pollution
Under Common Law, there are 4 different remedies against pollution, and these are – nuisance, negligence, trespass and strict liability.
Nuisance includes any act, omission, injury, damage, annoyance or offense to the sense of sight, smell, hearing or which is of could also be dangerous to life or injurious to health or property. Nuisance are often either nuisance – interference with a right that’s exclusively enjoyed by a private , or common nuisance – interference with a right concerning public. Since pollution of the environment is an interference of a right enjoyed by the general public , Section 268 of the Indian Penal code which states that “a person is guilty of a common nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the general public or to the people in general who dwell or occupy property within the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
A common nuisance isn’t excused on the bottom that it causes some convenience or advantage” will apply. In India, an action for common nuisance are often brought before a court either through a lawsuit under Section 91 of the Code of Civil Procedure or a criminal suit under Sections 133 to 143 of the Criminal Procedure Code.
A private individual can only file a complaint for public nuisance when he has incurred some foreseeable and substantial damage over and above that sustained by the public at large or when the interference of a public right involves the infringement of a private right.[iv] In the case of Ramlal v Mustafabad Oil and Oil Ginning Factory[v], the court held that if any noise created out of an activity crosses the threshold of attracting liability, the argument that the noise is arising out of a legal activity cannot be a defense.
Negligence simply put, is the breach of duty of care which results in loss or injury to the person to whom the duty is owed. Where there is a duty to take care, reasonable care must be taken to avoid acts or omissions that can be foreseen to cause loss or injury. However, in order to bring a successful claim of negligence it is imperative to prove both a direct link between the negligent act and the damage caused and the failure on the respondent to take reasonable care where such care was required. In the case of Naresh Dutt Tyagi v State of Uttar Pradesh[vi], the Supreme Court held the leakage of fumes from a pesticide plant which caused the death of four people, to be clear case of negligence.
Trespass is an unlawful interference with the property in the possession of another. It is an intentional physical entry by a person or an object on land that is possessed by another. It is different from nuisance because here there must be an intentional invasion of property while in nuisance it must be an unreason able interference with the use of one’s property. In the case of Fairview Farms, Incorporated v Reynolds Metals Company
4. The principle of strict liability
The principle of strict liability was laid down in the case of Rylands v Fletcher[viii] where the court held 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 answerable for all the damage which is the natural consequence of its escape.” In the Indian scenario, the principle of strict liability was applied in the case of C Mehta v Union of India[ix], where the Supreme Court held that any enterprise that conducts hazardous or inherently dangerous activities is strictly liable for any damage arising out of such activity. In addition to this, in the case of Union Carbide Corporation v Union of India[x], the Supreme Court held that compensation must be proportionate to the extent of the damage caused. There are however, five exceptions to the rule of strict liability and these are: act of God, act committed by a third party, any fault of the plaintiff himself, act committed after obtaining consent of the plaintiff and act arising out of natural use of the land by the defendant.
“It also needs to be noted that Section 16 of Environment Act and Section 47 of The Water Act are parimateria to each other. Herein, it is paramount that the complaint contains specific averments against the accused. It is not out of place to mention that the provisions of Section 16 of the Environment (Protection) Act 1986 are parimateria to the Section 141 of the Negotiable Instrument Act as well as Section 25 of the Contract Labour (Regulation and Abolition) Act, 1970, and Section 278 B of the Income Tax Act. The Hon’ble Supreme Court while dealing with the cases under Negotiable instruments Act in National Small Industries Corporation Ltd. vs Harmeet Singh Pental and another reported in 2010 (3) S.C.C. 330 has held that it is mandatory for the complainant to make averments in the complaint petition that the accused is directly in charge and was responsible to the company for the conduct of the business of the company. The Hon’ble Supreme Court said that if the said necessary ingredient is missing in the complaint petition, then in that case, prosecution launched against the accused cannot be sustained.”20
It has been observed that there are more than enough legislations that try to deal with the menace of environment degradation. The massive amount of legislation has led to a situation of confusion and difficulty in enforcement. To deal with the same, there is a need for a strong integrated legislation that can provide a much clearer and integrated approach which can provide the necessary protection to environment. Also, the pollution boards have been given the powers to launch prosecution before the court of law to bring the violators to book as far as environmental degradation is concerned. The idea of giving quasi judicial powers to these boards can be considered so they can impose penalty upon those who violate the law and also reduce the burden on the already overburdened courts.
Author: Pragya Sinha,
Symbiosis law college,nagpur . 1st year