Remedies available under common law vis‐à‐vis Environmental Protection

Introduction

In India, there square measure a excess of legal provisions that get to shield the atmosphere from attacks from the civilization. Together with the varied Constitutional provisions, there square measure many legislative enactments gone by the Parliament of Republic of {india|Bharat|Asian country|Asian nation} so as to attain the constitutional objective of making certain a wholesome atmosphere to the voters of India. To call some, they’re Water (Prevention and management of Pollution) Act, 1974; Air (Prevention and management of Pollution) Act, 1981; atmosphere (Protection) Act, 1986. Also, there square measure many provisions beneath the Indian legal code, 1860, that highlight the penal provisions just in case of injury sustained by any person on account of environmental harm caused by the other individual. Also, there square measure ample remedies obtainable beneath 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 also the chapter on elementary duties expressly enunciate the national commitment to shield and improve the atmosphere. “It is currently well settled principle that right to pollution free atmosphere is that the elementary right and right of a national.”1 “The Supreme Court in its judicial pronouncements control that the “precautionary principle” and “polluter pay principle” is law of land.2”

Before the forty second modification, the word ‘environment’ wasn’t mentioned within the Indian Constitution. By this modification, Article 48-A was supplementary within the directive principles of state policy and by Article 51-A, a brand new provision was inserted within the type of elementary duty. In step with Article 48-A “the State shall Endeavour to shield and improve the atmosphere and to safeguard the forests and life of the country”.

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Remedies obtainable beneath common law vis-à-vis Environmental Protection

a) Nuisance

Nuisance is expounded to unlawful interference with one’s enjoyment of land or any right arising from it, thereto. It should be classified into common nuisance or nuisance. Because the name suggests, common nuisance deals with interference with a right bearing on public. Whereas, nuisance is interference with right that is exercised solely by a non-public entity or a private. There square measure some remedies obtainable vis-à-vis common nuisance in Criminal Procedure Code, 1973. Section ninety one of the Criminal Procedure Code, 1973 prescribes that a suit is also filed to get an appropriate relief or injunction for any explanation for action touching or probably to have an effect on common nuisance. Also, in Criminal Procedure Code, a official is sceptered to restrain a person from winding up associate act that will offer impact to common nuisance.10

b) Negligence

It is a degree to notice that so as to bring a triple-crown action vis-à-vis negligence, it’s necessary to ascertain a right away nexus between negligence and also the harm caused. The opposite ingredient that constitutes negligence is that the respondent failed to take sufficient care to avoid common nuisance that the person was needed to require such care beneath the law. In Naresh Dutt Tyagi v. State of Uttar Pradesh13, fumes discharged from the pesticides leaked to a close-by property through ventilators that resulted within the death of 3 kids and craniate during a pregnant lady. It had been control by the court that it had been a clear-cut case of negligence.

c) Trespass

It is associate unlawful interference with another’s possession of property. The first ingredient to ascertain a case of trespass is that there ought to be associate intentional invasion of another’s physical possession of property. Thus, 2 primary ingredients to ascertain a case of trespass are:

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i.) There ought to be intentional interference

ii.) Such interference ought to be direct in nature

d) Strict Liability

The thought of strict liability started from the case of Rylands v. Fletcher14, “the one who, for his own functions, brings on his land and collects and keeps there something probably to try and do mischief, if it escapes, should keep it in at his own peril and if he doesn’t do therefore, is clear accountable for all the harm that is that the natural consequence of its escape”15. The exceptions to the rule of strict liability square measure as follows:

i.) Act of God

ii.) Act committed by a 3rd party

iii.) Any fault committed by litigant himself

iv.) An act committed once getting expressed or inexplicit consent of the litigant

v.) Natural use of land by the litigant

Penal Provision vis-à-vis Environmental Protection

There square measure specific penal provisions in varied legislations for the protection of atmosphere. Chapter XIV of the Indian legal code (hereinafter referred as IPC), containing section 268 to 294-A, deals with offences with reference to public health, safety etc. the most object of those provisions is to shield the general public health, safety and convenience by rendering those acts punishable that build the atmosphere contaminated and dangerous to the lifetime of a private.

 

Author: Ayush Srivastava,
Prayag vidhi Mahavidyalaya 1st year / law

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