Unit I

Definition of Environment
Environment’ defined under the Environmental Protection Act, 1986,
‘Environment’ includes Water, air and land and the inter-relationship which
exists among and between, water, air, land, and human beings, other living
creatures, plants, microorganisms and property
•According to Einstein, “the environment is everything that isn’t me”

Meaning And Concept Of ‘environmental Pollution

Section 2 (b) of Environment (Protection) Act, 1986- “environmental pollutant”
means any solid, liquid or gaseous substance present in such concentration as
may be, or tend to be injurious to the environment.

Section 2 (c) of Environment (Protection) Act, 1986- "environmental pollution"

means the presence in the environment of any environment pollutants.
3. According to Section 2(e) of The Water (Prevention and Control of Pollution)
Act, 1974,"Pollution" means such or such contamination of water or such
alteration of the physical, chemical or biological properties of water or such
discharge of any sewage or trade effluent or of any other liquid, gaseous or
solid substance into water (whether directly or indirectly) as may, or is likely to,
create a nuisance or render such water harmful or injurious to public health or
safety, or to domestic, commercial, industrial, agricultural or other legitimate
uses, or to the life and health of animals or plants or of aquatic organisms.

Environmental pollution consists of five basic types of pollution, namely, air,

water, soil, noise and light.
•Pollution is the introduction of contaminants into the natural environment
that can cause adverse change. Pollution can take the form of chemical
substances or energy, such as noise, heat or light.

TYPES OF POLLUTION
AIR POLLUTION:
● Air pollution is by far the most harmful form of pollution in our
environment. Air pollution is caused by the injurious smoke emitted by
cars, buses, trucks, trains, and factories, namely sulphur dioxide, carbon
monoxide and nitrogen oxides. Even smoke from burning leaves
 and cigarettes are harmful to the environment causing a lot of damage
to man and the atmosphere.
● Evidence of increasing air pollution is seen in lung cancer, asthma,
allergies, and various breathing problems along with severe and
irreparable damage to flora and fauna.
● Even the most natural phenomenon of migratory birds has been
hampered, with severe air pollution preventing them from reaching
their seasonal metropolitan destinations for centuries.
● Chlorofluorocarbons (CFC), released from refrigerators,
air-conditioners, deodorants and insect repellents cause severe
damage to the Earth’s environment. This gas has slowly damaged
the atmosphere and depleted the ozone layer leading to global warming
● According to Section 2(a) of The Air (Prevention and Control of Pollution)
Act, 1981,"air pollutant" means any solid, liquid or gaseous substance
[(including noise)] present in the atmosphere in such concentration as
may be or tend to be injurious to human beings or other living creatures
or plants or property or environment

WATER POLLUTION:
● Water pollution caused industrial waste products released into lakes,
rivers, and other water bodies, has made marine life no longer
hospitable.
● Humans pollute water with large scale disposal of garbage, flowers,
ashes and other household waste. In many rural areas one can
still find people bathing and cooking in the same water, making it
incredibly filthy. Acid rain further adds to water pollution in the water.
● In addition to these, thermal pollution and the depletion of
dissolved oxygen aggravate the already worsened condition of the
water bodies. Water pollution can also indirectly occur as an
offshoot of soil pollution – through surface runoff and leaching to
groundwater.

NOISE POLLUTION:
•Noise pollution, soil pollution and light pollution too are the damaging the
environment at an alarming rate.
•Noise pollution includes aircraft noise, noise of cars, buses, and trucks,
vehicle horns, loudspeakers, and industry noise, as well as high-intensity
sonar effects which are extremely harmful for the environment.
•Maximum noise pollution occurs due to one of modern science’s best
discoveries – the motor vehicle, which is responsible for about ninety percent
of all unwanted noise worldwide..

SOIL POLLUTION:
● Soil pollution, which can also be called soil contamination, is a
result of acid rain, polluted water, fertilizers etc., which leads to bad
crops.
● Soil contamination occurs when chemicals are released by spill or
underground storage tank leakage which releases heavy contaminants
into the soil.
● These may include hydrocarbons, heavy metals, herbicides, pesticides
and chlorinated hydrocarbons.
LIGHT POLLUTION:
● Light Pollution includes light trespass, over-illumination and astronomical
interference.

ENVIRONMENTAL ISSUES DUE TO POLLUTION

1.Soil Degradation: Globally, food security depends on whether or not soils
are in good condition to produce crops. According to UN estimates, about 12
million hectares of farmland a year get seriously degraded. Soils get damaged
due to many reasons. Such reasons include erosion, overgrazing,
overexposure to pollutants, monoculture planting, soil compaction, land-use
conversion and many more.
2.Global Warming: Climate changes like global warming are the result of
human practices like the emission of greenhouse gases. Global warming leads
to rising temperatures of the oceans and the earth’ surface causing natural
disasters that include flooding, melting of polar ice caps, rise in sea levels and
also unnatural patterns of precipitation such as flash floods, hurricanes,
wildfires, drought, excessive snow or desertification.
3.Natural Resource Depletion: Another crucial current environmental
problem is the depletion of Natural resources. We, humans, use so many
natural resources that it would need almost 1.5 Earths to cover all our needs.
Increased use of natural resources leads to a number of other environmental
issues, such as industrialization, population growth and air pollution. Over
time, natural resource depletion will lead to an energy crisis. The chemicals
emitted from many natural resources contribute to climate change. Fossil fuel
consumption results in the emission of greenhouse gases, which is primarily
responsible for global warming and climate change.
4.Waste Disposal: The overconsumption of resources and the creation of
plastics are creating a global crisis of waste disposal. Developed countries are
notorious for producing an excessive amount of waste or garbage and
dumping their waste in the oceans and less developed countries. Nuclear
waste disposal has tremendous health hazards associated with it. Plastic, fast
food, packaging and cheap electronic wastes threaten the well being of
humans. Waste disposal is, therefore, one of the urgent current environmental
problems.
5.Deforestation: Our forests are natural sinks of carbon dioxide and produce
fresh oxygen, as well as helps in regulating temperature and rainfall. At
present, forests cover 30% of the land, but every year tree cover is lost,
amounting to the country of Panama due to the growing population demand for
more food, shelter and cloth. Deforestation simply means clearing of green
cover and make that land available for residential, industrial or commercial
purposes.
6.Loss of Biodiversity: Human activity is leading to the extinction of species
and habitats and loss of biodiversity. Ecosystems, which took millions of years
to perfect, are in danger when any species population is decimating.
7.Climate Change: Climate change is yet another environmental problem that
has surfaced in the last couple of decades. It occurs due to the rise in global
warming, which happens due to the increase in temperature of the atmosphere
by burning fossil fuels and the release of harmful gases by industries.
8.Ozone Layer Depletion: The ozone layer is an invisible layer of protection
around the planet that protects us from the sun’s harmful rays. The depletion
of the crucial Ozone layer of the atmosphere is attributed to pollution caused
by Chlorine and Bromide found in Chloro-fluoro carbons (CFCs). CFCs are
banned in many industries and consumer products. The ozone layer is
valuable because it prevents harmful UV radiation from reaching the earth.
This is one of the most important current environmental problems.
9.Acid Rain: Acid Rain occurs due to the presence of certain pollutants in the
atmosphere. Acid rain can be caused due to combustion of fossil fuels or
erupting volcanoes or rotting vegetation which releases sulfur dioxide and
nitrogen oxide into the atmosphere. Acid rain is a known environmental
problem that can have a serious effect on human health, wildlife and aquatic
species.
Environment and Constitutional provision

Development of environment protection in India can be analysed in 2 parts that

are-
➢Pre 1972 and
➢post 1972.
● In the Pre 1972 era, there were no precise and definitive environmental
policies and the planning commission did not attempt to develop any
policies for environment protection in India. Article 21 was interpreted
narrowly and did not include the right to a pollution-free environment.
● However, this changed after the United Nations Conference on the
Human Environment, Stockholm, 1972 in which the Declaration on the
Human environment was devised. This was the beginning of an
environmental movement in not only India but also in the world.
Evolution
● The relationship between man and his environment is undergoing
profound changes in the wake of modern scientific and technological
developments. In India, from time to time various laws have been
enacted for the protection of the environment, flora, and fauna, and the
Indian Constitution is the first Constitution in the world which contains
specific provisions for the protection and improvement of the
environment.
● In India, in view of the various constitutional provisions and other
statutory provisions contained in various laws relating to environmental
protection, the Supreme Court has held that the essential feature of
 “sustainable development” such as the “Precautionary Principle” and the
“Polluter Pays Principle” are part of Environmental law of the country.

1.Preamble Of The Constitution Of India

The word ‘Socialist’ in the Preamble expresses that India focuses on social
development, harmony, and protection of every citizen. Keeping environmental
degradation in mind and the aim of the Socialist State as laid down in the
Preamble, the State and every citizen has the responsibility to protect and
prevent further degradation of the environment.

2.The Seventh Schedule

The Seventh Schedule gives power to the Central and State governments to
protect the environment and ensure sustainable development. These powers
are listed in the Union list, State list and Concurrent list.

The Forty- Second Amendment Act

Environmental protection and improvement were explicitly incorporated into
the Constitution by the Constitution (Forty- Second Amendment) Act of 1976.
● Article 48A was added to the Directive Principles of State Policy. It
declares: ‘The State shall endeavour to protect and improve the
environment and to safeguard the forest and wildlife of the country.’
● Article 51A(g) in a new chapter entitled ‘Fundamental Duties’, imposes a
similar responsibility on every citizen to protect and improve the natural
environment including forests, lakes, rivers, and wildlife, and to have
compassion for living creatures.
Together, the provisions highlight the national consensus on the importance of
environmental protection and improvement and lay the foundation for
jurisprudence of environmental protection

3.State’s Responsibility To Protect Environment (Article 48a)

The State shall endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country.
This Article was insured by 42nd Amendment, 1976.
The reason for adding this Article in Directive Principles of State Policy was to
ensure Fundamental Rights of the citizens under Articles 14 and 21 for a
healthy environment.
 ● By inserting this Article in the Constitution of India, the State can be held
directly liable for the violation of Fundamental Rights of citizens relating
to the environment, which was not possible before.
● Hamid Khan v. State of Madhya Pradesh (1996) There was negligence
on the part of the State in supplying water from hand pumps. Due to such
negligence, colossal damage was caused to the people in the locality.
● On the basis of Article48A, the court held that the State is liable for not
performing its duty.
● Sher Singh vs State Of Haryana & Punjab (2014)- There is a
Constitutional obligation on the State under Article 48A and 51A (g).

4.Citizen’s Obligation To Protect Environment (Article 51A (G))

Article 51A - Fundamental duties.— (g) to protect and improve the natural
environment including forests, lakes, rivers and wildlife and having
compassion for living creatures;
T.N. Godavarman Thirumulpad v. Union of India & Ors. (2002)-
The Court held that the Articles 484 and 51A (g) laid down the jurisprudence of
environmental law, stating that “Today, the State and the citizens are under an
obligation to protect and improve the environment, including forests, lakes,
rivers and to have compassion for living creatures.
Sachidanand Pandey Vs. State of W.B.
Supreme Court said:
“Whenever a problem of ecology is brought before the court, the court is
bound to bear in mind Article 48A and 51A(g). When the court is called upon to
give effect to DPSP and Fundamental Duties, the court is not to shrug its
shoulders and say that priorities are a matter of policy and so it is a matter of
policy making authority.
T Damodar Rao vs. S.O. Municipal Corporation Hyderabad
Protection of the environment is not only the duty of citizens but also an
obligation of the State.

6.Right To Equality And Environmental Protection(Article 14)

Article 14 - Equality before law.- The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of
India.
Article 14 cast a duty upon the State to act fairly in case of any action for
environmental protection. Also, the State should always consider the
protection of the environment and the prevention of environmental pollution
while making any decisions for development. If the State is unable to do so, it
is a violation of Article 14.
Kinkri Devi vs State of H.P.: The High Court held that indiscriminate granting
of mining licence and rampant mining without due regard to life, liberty and
property, the court would be left with no alternative but to issue writs, orders
and directions incl. the order for closure of mines… till the government comes
up with a long term plan to regulate exploitation of minerals without detriment
to the environment.
Bangalore Medical Trust Vs. B.S. Muddappa: The SC thwarted the attempt
to convert a public park into a nursing home.

7.Freedom Of Occupation, Trade Or Business And Environment (Article

19(1)(G))
Article 19(1) (g) - to practice any profession, or to carry on any occupation,
trade or business. Article 19(1) (g) provides for the Fundamental Right to carry
on any occupation, trade or business. But Article 19(6) also provides for
reasonable restriction. The State has power under Article 19(6) to impose
reasonable restrictions on any occupation, trade or business which is likely to
harm the environment. This restriction works on the principle of Sustainable
Development.&
In S. Jagannath Vs. Union of India (1996), the Apex Court banned Shrimp
Farming by modern technology because it was causing degradation of
ecosystem, polluting ground water, and reduction of plantation.
The purpose is to avoid the ecological imbalance and degradation of the
atmosphere in the name of carrying on a trade, business, occupation or
carrying on any profession. Thus, in the name of business or profession, one
cannot cause harm to the environment.

In M.C Mehta v. Union of India, AIR 1988 SC 1037 certain tanneries were
discharging effluents in the holy river Ganga which was causing water
pollution. Further, no primary treatment plant was being set up despite the
constant reminders. It was held by the court to stop the tanneries from working
because the effluents drained were ten times more noxious as compared to
the ordinary sewage water which flows into the river.
•The court ordered while directing tanneries to be stopped from working which
have failed to take necessary steps as required for the primary treatment of
effluents from the industries. The court while passing this order contended
that, though the court is conscious about the unemployment that might usher
due to the closure of the tanneries but health, life and ecology holds greater
importance in the eyes of law.
In M.C Mehta v. Union of India, 1994, it was directed by the Supreme Court
that the industries who did not comply or adhere to, with the prior direction of
the Hon’ble court regarding the installation of air pollution controlling system
should be closed. In this case, the supreme court laid down its greater
emphasis on Article 19(6) of the Constitution.

5.Article 21 and the Right to Wholesome Environment

It was the Maneka Gandhi Vs. Union Of India that heralded the new era of
judicial thought. The court started recognizing several unarticulated liberties
that were implied by Article 21 and during this process, the Supreme Court
interpreted, after some hesitation, the right to life and personal liberty to
include the right to a wholesome environment.
The conflict between development needs and environmental protection has
been the most controversial issue before the courts in deciding environmental
matters.
RLEK Vs. State of Uttar Pradesh case (1985): It was the first case relating to
environment and ecology in India.
•The RLEK and a group of citizens wrote to SC against progressive mining
which denuded Mussoorie Hills of trees and forest covers and accelerated soil
erosion resulting in landslides and blockage of underground water channels.
•The letter was converted to a writ petition.
•The court ordered the closure of a number of limestone quarries.
In V. Lakshmipathy v. State of Karnataka the same issue came before the
High Court of Karnataka. The High Court held that once a development plan
had earmarked the area for residential purposes, the land was bound to be put
to such use only. Thus, High Courts, it seems, were more enthusiastic and
active in accepting and declaring that ‘right to life’ in Article 21 includes ‘right to
the environment’.
Article 21 of the Constitution of India provides for the right to life and personal
liberty.
Article 21 of the Constitution of India provides for the right to life and personal
liberty. It states that “no person shall be deprived of his life or personal liberty
excepting to procedure established by law.”
Environmental Protection trough PIL

Introduction
•PIL has revolutionised the traditional adversary litigation. Today a person
acting bona fide and having sufficient interest can move the courts for
redressing public injury, enforcing public duty, protecting social and
collective rights and vindicating public interest. (S.P. Gupta and ors. Vs
UOI).
•In most PIL, the subject matter of litigation has been a grievance against
the violation of basic human rights of poor and helpless or about govt.
policy. Most of environment litigation in India falls under this category.

The report to the Indian Ministry of Law, Justice and Company Affairs by
Justice Bhagwati and Justice Krishna Iyer and thereby keeps the
grievances of the poor from reaching the courts. Expressly recommended
lowering the locus standi requirement as a means of allowing concerned
citizens to file cases on behalf of the underprivileged.
•As a result, the definition of “persons aggrieved” was broadened. The
second modification to the standings doctrine was to allow a concerned
citizen (or a voluntary organization) to sue, not as representative of
others, but in his or her own right as a member of the citizenry to whom a
public duty is owed, referred to as “citizen standing.” The need for this
standing was as a check on the abuse of executive authority in a modern
welfare state.
In India, since the government’s regulatory competences give it enormous
power, the misuse of power and authority is bound to happen. At times,
government policy or inaction may threaten the environment. In such
cases, application of the traditional standing doctrine could preclude
citizens from seeking protection. Thus, the Supreme Court of India has
expanded standing to enable citizens to challenge government actions in
the public interest, even though the citizen himself suffered little or no
harm.
 RLEK, Dehradun Vs. State of U.P.
•the Supreme Court, explaining the nature and purpose of PIL, stated that
PIL is a challenge and an opportunity to Government to ensure basic
human right to deprived Sections.
•The Court did not want to curb the power of executive authority but to
protect the poor against violation of their basic human rights, and this way
is merely arresting in the relations of Constitutional objectives.

MC Mehta vs. Union of India, 1991 Delhi Vehicular pollution Case

•Union territory of Delhi has a total population of 96 lakhs. Out of this
population approximately 90 lakh people reside in urban areas. This
petition was filed by M.C. Mehta requested the Court to pass appropriate
orders for the reduction of vehicular pollution in Delhi. The Supreme Court
directed the Central government to take steps to spread information and
knowledge relating to the environment through audio visual media and
also passed directions to introduce the environment as a compulsory
subject in educational institutions.
•It was held to be the duty of the government to see that air did not
become contaminated due to vehicular pollution. The apex Court again
confirming the right to healthy environment is a basic human rights and
stated that right to clean air also contained under Article 21 which refer to
right to life.

Distinctive features of PIL

1. The scope of the law is not limited by a specific historical event, such
as breach of contract or personal injury, but is consciously shaped
by the court and the parties.
2. The party structure is not limited to individual adversaries
3. The inquiry is not a simple investigation of past events but its an
inquiry into contemporary problems undertaken by legislative bodies
4. Relief Is not limited to compensation for past wrong but is often
prospective, flexible and remedial having broad impact on many
persons regardless of whether they were a party to the lawsuit or
not.
5. The relief is often negotiated by parties rather than imposed by court
 6. The judgement does not end the court’s involvement but requires a
continuing administrative role by judiciary
7. The judge is not passive but plays an active role in organising and
shaping the litigation
8. The subject matter of litigation is not a private dispute but a public
policy matter.

Potential Dangers of Relaxing Locus Standi

1. However, giving “public spirited” citizens the right to move courts can
have other negative effects.
2. First, it is not yet clear that there would be a substantial number of
citizens who would choose to move the courts on the behalf of an
affected community. That is, a rational choice theory does not
explain why a citizen would do so. The same arguments that apply
to the undersupply of public goods, apply here as well. If, however,
there is a private gain to the person or persons who initiate PIL, it
becomes imperative to know what these gains are.
3. The danger remains that PIL may be used to serve private interests.
In such a case, the judge has to decide whether to admit the case or
not.

Chhetriya pardushan mukti sangharsh samiti vs State of U.P.

AIR 1990 SC 2060
•SC rejected a petition which was motivated by an ancient grudge and
enmity. It was held that in view of long held animosity and prima facie
compliance with pollution statutes, there was no justification for judicial
intervention as the industry could furnish elementary proof that the
petitioner had a history of blackmailing people.

Tort & Environmental Law

The statute that exists against environmental pollution is the

Environmental Protection Act, 1986. This act was enacted after the
unfortunate and gruesome case called the Bhopal Gas Tragedy.
Although it appears that the environmental Protection Act is sufficient to
deal with the cases related to pollution of land, water, and air etc. but
essentially speaking the scope of the act is a bit narrow. It basically
implies that the act is just of a preventive nature while the tort law also
works as a remedial tool.The only way victims of environmental pollution
can seek justice is by demanding compensation.
Often times, environmental pollution is caused by large companies (eg.
Chemical companies) that harm an individual and/or his property. Since
litigation is a very expensive process, it is hard for an individual to take
the protection of statutes. The protection of statutes is not sufficient. For
individual claims tort law is a preferable option as it focuses on providing
damages to the injured party. It remains effective even after so many
years have passed since independence.

Thus, tort law in addition to statutes provides a legal method to acquire

compensation when a person is harmed due to environmental pollution
caused by another.
But as we know that tort law can be used only when there is personal
damage to property or body. Environmental pollution affects the
environment at large, thus tort law can be used only when there is
environmental damage.

Environmental pollution under tort law

Environmental pollution can be a part of tort law under the following
categories in India-
● Nuisance,
● Trespass,
● Negligence, and
● Strict Liability.

Tort of nuisance
It is said that the deepest doctrinal roots of modern environmental law are
found in the common law principles of nuisance.
Nuisance is the unlawful interference with a person’s use and enjoyment
of his own land/property. It can be attributed to any sort of disturbance
that hampers one’s ability to enjoy his space without hindrance.

For a person to bring charges for the same, one must prove that he is
facing unnecessary disturbances. The actions of the defendant have to
be unreasonable in order for an act to be considered as a nuisance.

Nuisance can be of two types:

Public nuisance: Public nuisance is caused when the action of one
affects many individuals or affects a community at large. It is an act or
omission that affects the health, safety, and/or the dignifiable standard of
living of many people at once.
For example, in the cases of:
Ram Lal vs Mustafabad Oil And Cotton Ginning(1968): It was held
that when the noise level crosses a certain threshold value it should be
considered as a public nuisance. It falls under the category of noise
pollution. It is a public nuisance as it causes discomfort to many at once.
It is important to note that it does not matter whether the activity that
caused harm was legal. The fact that it is causing harm is enough to
award compensation.

Private nuisance: Private nuisance is caused when a person is harmed

individually. This can happen in two scenarios:
● The pollution causes harm to only an individual and does not affect
many people.
● The pollution caused harm to a group of people but that person
suffered additional harm individually apart from the harm that is
caused to everybody in that group.
In cases of nuisance, to determine liability it is important to look at two
factors:

Foreseeability: If the accident/incident was foreseeable and could be

prevented then the defendants are to be held liable.
Eg. In the case of- Overseas Tankship (U.K.) Ltd. v. Miller S. S. Co.
Pty.(1966) oil was spilt from the ships of the defendants which caused a
fire and caused harm to the plaintiffs. It happened due to the
carelessness of the defendants which means that the incident was
foreseeable. The defendants were held liable.

Reasonableness: In nuisance cases, the burden of proving

unreasonableness is often difficult because the reasonableness of the
defendant’s conduct is determined by weighing its utility against the
gravity of harm to the plaintiff.

Trespass
Trespass is an unlawful interference with one’s property. Trespass is
entering someone’s property by breaching its boundaries without the
owner’s permission. Thus to claim trespass:
Trespass is a direct offence. One has to show that somebody/ some
substance entered their property causing harm.
The fact that trespass has to be a direct offence is an important factor
because it is the only point that distinguishes it from nuisance.

● Trespass has to be intentional in nature.

● It is also important to note that it is not necessary to show harm in
cases of trespass. It is only important to show that an object or a
person entered the plaintiff’s property without their permission.
In the case of Fairview Farms, Inc. v. Reynolds Metals
Company(1959), there were airborne liquids and substances on the
plaintiff’s property which were considered to be trespass. The defendants
were held liable and an injunction was not provided because the
defendants rectified their position so that no further harm is caused.

Negligence
There are situations when an individual/company fails to take reasonable
care. Due to a lack of exercise of due obligation and failure to fulfill their
duty to take care, the damage is caused to another party. This
act/omission to not take reasonable care is called negligence.
Care is an abstract term therefore, the question is: how do we know if
sufficient care was taken or not?

● To determine whether reasonable care was taken or not it is

important to know the degree of relation between the act of
negligence and the accident.
● It is important to know that if the party was truly not negligent and
had exercised care, then the said incident would not have taken
place. Thus, reasonable care has to be determined by looking at the
degree of damage caused.
● Reasonable care can only be exercised if the risk is known and the
harmful events could have been foreseen. Thus, reasonable care
will be measured with respect to the risk taken and the degree of
harm caused to the victims.
For example, the case of Hagy v. Allied Chemical & Dye Corp(1953). In
this case, the plaintiff blamed the defendant for harm caused to her
larynx. This harm according to her was caused when she drove through a
smog covered area with her husband. This smog she said contained
sulphuric acid components leaked from the defendant’s plant negligently.
In this case, it was difficult to establish a connection between the injury
and the negligent act. This was because the larynx was cancerous and
she would have to undergo surgery even if she had not driven through the
smog-filled area. As one can safely interpret from the above explanation
that since a connection was not established between the act of
negligence and injury caused it was impossible to hold the defendants
liable.
Another aspect of negligence is that: Negligence overlaps with the
provision of nuisance. This can be seen in cases where the negligent act
extends for a long period of time causing unlawful interference with one’s
enjoyment of land causing a nuisance. For example, in the case of
Rylands v. Fletcher(1868) if the negligent act allows the escape of a
non-natural and dangerous thing which the defendant has brought on his
land.
The upside of claiming negligence is that the defendants have to prove to
the court and convince the judge that their actions/omissions were not
negligent. It is up to the defendants to prove that reasonable care was
taken and all preventive measures were in place to prevent a harmful
accident. If the defendants fail to prove their innocence then damages are
provided to the plaintiffs.

Strict Liability
Tort law also constitutes the Doctrine of Strict Liability. Strict liability
means that a person has to show that he/she did not voluntarily
participate in the said incident as a result of their own actions. The
Doctrine of Strict Liability is also known as liability without fault. A person
who brings upon himself perils through his own negligent actions is not
awarded damages.

The downside of this is that the burden of proof rests on the shoulders of
the plaintiff. In environmental pollution-related cases, it becomes very
hard to prove and bring forward evidence against the defendants. This
doctrine was talked about in detail in the case of Rylands v.
Fletcher(1868).
Due to its disadvantages, the principle of Absolute Liability was
developed which is discussed below:

Landmark Judgments
MC Mehta v. Union Of India
This case is considered a landmark judgement because the principle of
Absolute Liability was developed fully in this case.
In this case, there was a leak of oleum gas from Shriram food and
fertilisers Ltd situated in Delhi. Oleum is a poisonous gas.
The principle of absolute liability states that the liability in such cases is
not a function of defences under strict liability such as self participation,
act of god, etc.
Absolute liability means an exceptional condition where the liability of the
accused party is so grave that no form of defence employed is sufficient
excuse for their non-performance of practising reasonable care and failing
to recognize their duty towards the society and environment. Absolute
liability is especially important in cases when irreparable and grievous
harm is caused.
In this case, the Deep Pocket theory was also formulated. This meant that
the larger the corporation is, the larger will be the damages paid by them
to the hurt.

Bhopal Gas Tragedy

In the Bhopal Gas Tragedy (Union Carbide Corporation vs Union Of India
Etc, 1989) case many died in the city of Bhopal due to the leak of Methyl
Isocyanate gas. It caused the instant death of millions of people who
came in contact with the gas. The gas leak polluted water and land of
Bhopal which rendered the use of two of the most essential substances
for survival useless. Since the land and water were polluted, generations
suffered and continue to suffer because of birth deformities.
In this case, because such grievous harm was caused, India realised
the importance of checks and balances and enacted the Environment
Protection Act 1986. This case also opened gates for the principle of
absolute liability as the duty of care and liability of the defendant was
large and inexcusable. The death of millions cannot be excused on the
basis of any defence.

Conclusion:
The evolution of tort law in relation to environmental pollution has paved a
pathway for those who are harmed by the same to gain compensation. It
has also cautioned companies in the business of hazardous substances
towards their liability. This evolution has made way for better
administration of justice. Further evolution of the principle of Absolute
Liability (the only part that is unique to the needs of India and has not
been adopted from English law) demands greater accountability and
protects rights through remedy/compensation. It is accepted that threat to
one’s life is a grievous crime and cannot be excused under any
circumstances
Crimes & Environmental Law

Indian Penal Code, 1860

There are also quite a few penal provisions under the Indian Penal Code,
1860, and the Criminal Procedure Code, 1973. Chapter XIV of the IPC
lists down offences pertaining to public health and safety. To start with,
Section 268 classifies environmental crimes as a public nuisance and
Section 290 penalises the offence causing a public nuisance with a fine
extending up to Rs 200. Thus those who act or omit causing injury to
others by environmental pollution, then they can be subjected to
prosecution. Like in the case of K Ramakrishnan v. The State of Kerala
(1999), it was held that smoking in public places causes public nuisance
and is therefore punishable under IPC. Again, in Murli S. Deora v. Union
of India (2001), the Supreme Court held that smoking in a public place is
a violation of the fundamental right of those who don’t smoke under
Article 21.
Section 277 is applied for preventing water pollution and imposes
imprisonment up to three months or a fine up to Rs 500 or both. The
section uses terms such as public spring or reservoir whose interpretation
by the courts has been quite restrictive as it does not include running
water of rivers, streams, and canals. Similarly, under Section 278, a fine
up to Rs 500 is imposed on anyone who voluntarily spoils the surrounding
by making it harmful for anyone’s health in general dwelling, or carrying a
business in the neighbourhood, or passing along the way of the public.
Besides these, Sections 426, 430, 431, and 432 of IPC penalises any
pollution caused by mischief.

Criminal Procedure Code, 1973

Similarly, under the Indian Criminal Procedure Code of 1973, under its
Chapter X, “Maintenance of public order and tranquility, provides
preventive and mitigating measures for public nuisance cases pertaining
to water, air, soil, and unsanitary/unhygienic conditions.

Section 133 provides for the remedy to environmental pollution in general

by empowering a District Magistrate and Sub-Divisional Magistrate to
stop the nuisance. Any order made under this provision shall not be
questioned in any civil court. The term nuisance as defined in the case of
Govind Singh v. Shanti Sarup (1978), the court took a very liberal
interpretation and included the disposal of substances, the construction of
structures, the conduct of occupation, and trade, and confinement or
disposal of any dangerous animal into its meaning. However, a private
dispute cannot invoke this section and it should be a case of imminent
danger affecting the public interest. Further, this section is also
independent of sanctions in other environmental laws and statutes.

There are certain other penal provisions primarily in two environmental

legislations which are The Water (Prevention and Control of Pollution)
Act, 1974, and Environment (Protection) Act, 1986. Section 47 of the
Water Act makes a person vicariously liable for an offence committed by
a company with that person being in charge of the business of the
company. And another is Section 16 which of the Environment Act which
is pari materia (similar) to Section 47 of the Water Act.

Still, once these sections were regarded to be the saviour and the
guardian against environmental crimes but today these have been found
to be highly inadequate since the violation of these sections attracts a
meagre amount of penalty which in most cases would deter the
prosecution from initiating any proceedings.
 Unit II

Water (Prevention and Control of Pollution) Act, 1974

Introduction
The Act came into force in 1974 and is applicable to the states of Assam,
Bihar, Madhya Pradesh, Gujrat, Haryana, Tripura, West Bengal, Jammu
and Kashmir, Rajasthan, Kerala, and the union territories. It could also be
adopted by any state through a resolution passed declaring to adopt the
Act. The Water (Prevention and Control) Act, 1974 was introduced to
prevent and control water pollution and to restore and maintain the
wholesomeness of water for the establishment.
The Act also confers some powers to the established bodies such as the
central board and the state board to control pollution of the water bodies.

Definitions
Section 2 of the Act contain certain definitions:
1. “ Board “ means either the central board or the state board.
2. Section 2 (e) of the Act defines what is pollution, according to
Section 2(e) pollution means any contamination of water or alteration
of the physical, chemical and biological properties of water or
disposing of any sewage waste in water which is likely to cause
nuisance or renders such water to be harmful to public health or
safety or to domestic, industrial or other legitimate use or harmful to
the life and health of the animals and aquatic plants.
3. Includes- watercourse (flowing or dry), inland water whether natural
or artificial, subterranean water or sea or tidal waters as the state
may prescribe from time to time.
4. According to Section 2 (b) Central Board means Central Pollution
Control Board.
5. According to Section 2 (h) State Board means State Pollution
Control Board.
Agencies for controlling Water Pollution
There are two agencies set up as per the Act for controlling and
preventing water pollution.

Central Board- Central Pollution Control Board

Constitution and Composition (Section 3)

The Central Government through a notice in the official gazette has the
power to assign or set up a Central Board named as Central Pollution
Control Board. As far as the composition of the board is concerned the
Central Board is to contain the following members:

1. A chairman who has the knowledge or has practical experience in

dealing with cases relating to environmental protection. The
chairman is to be appointed by the central government only.
2. Not more than 5 officials to represent the central government.
3. Not more than 5 members to be nominated by the central
government from the members of the State Board.
4. Maximum 3 members appointed by the central government to
represent the interests of agriculture, fisheries, trade or any other
interest as the government may seem fit.
5. 2 persons to represent the companies or corporations owned,
controlled or by the central government.
6. A full-time member secretary having complete knowledge,
experience and qualification of scientific management and
prevention of environmental pollution.

Functions of Central Board (Section 16)

1. Advise the Central Government on any matter concerning the
prevention and control of water pollution.
2. Coordinate the activities of the State Boards and resolve disputes
among them.
3. provide technical assistance and guidance to the State Boards, carry
out and sponsor investigations and research relating to problems of
water pollution and prevention, control or abatement of water
pollution.
 4. Plan and organise the training of persons engaged or to be engaged
in for the prevention, control or abatement of water pollution on such
terms and conditions as the Central Board may specify.
5. Organise through mass media a comprehensive program regarding
the prevention and control of water pollution.

State Board- State Pollution Control Board

Constitution and Composition (Section 4)

1. The state government through an official notice in the Gazette has
the power to assign or set up a state board named as State Pollution
Control Board. The composition of the state board is as follows:
2. A Chairman who either has the knowledge or some experience in
dealing with cases relating to environmental pollution.
3. Not more than 5 members appointed by the state government to
represent the government.
4. Not more than 2 persons by the state government who are
functioning as members of the local authorities within the state
5. Not more than 3 persons nominated by the state government to
represent the interest of fisheries, agriculture, trade and any other
interest as the government may seem fit.
6. 2 person from companies, corporations which are either controlled,
owned or managed by the state.
7. A member secretary who has the knowledge, qualifications, and
experience in dealing with cases pertaining to environmental
pollution.

Functions of State Board (Section 17)

1. To plan a comprehensive program for preventing and controlling the
pollution of the wells and streams in the state and to secure its
execution.
2. To advise the State Government on matters relating to prevention
and controlling water pollution.
3. Collaborating with the central board to train persons employed or to
be employed in preventing, controlling water pollution.
 4. To lay down, modify the effluent standards of sewage and trade
effluents and for the quality of receiving water resulting from the
discharge of effluents and to classify waters of the state.
5. To evolve methods of utilizing the sewage and suitable trade
effluents in agriculture.
6. The state Board has the authority to set up laboratories to enable
the board to perform its function efficiently, including collecting
samples of water from any stream or sewage or trade effluents.

Prevention and Control of Water Pollution

According to Section 19 of the Act, the state board has the power to limit
the territorial jurisdiction of any order passed by it in matters relating to
prevention and controlling water pollution. This means that the orders
passed by the state board will only apply in the areas that are affected by
water pollution .it is up to the state board to determine which area is to be
declared water polluted and which is not, this can be done by making
reference to a map or making reference to a line of any watershed or the
boundary of any district.
According to Section 20 of the Act, the state board also has the power to
inspect any land, conduct surveys or gauge in an area if it thinks fit for
controlling or preventing water pollution. It can also ask any company,
industry to dispose of the information pertaining to the construction,
installation, and operation of its establishment. Section 21 of the Act
empowers the state board or any employee on its behalf to analyse any
stream or well for the purpose of preventing and controlling water use.

The state board also has the power to stop any person from entering into
any poisonous, noxious or polluting matter determined in accordance with
the standards laid down in the Act. According to Section 25, no person is
allowed to set up an industry or start a new operation or processor to any
treatment of sewage without prior approval of the state board, the state
board may grant him a notice of approval and only after that he is entitled
to continue or start a new business.
If a person starts a new operation before prior approval of the board, the
board may impose any conditions as it may think fit for not obtaining
notice of approval. Section 27 of the Act gives power to the state board
not to grant any notice for setting up an industry or continuation of an
existing operation. If the company has been granted permission with
some conditions attached, the state board has the power to review those
conditions which it attached before giving the notice of approval.

Joint Board
An agreement may be entered into by the state government of one state
with the state government of another state to set up a joint Board.
Similarly, the Central Government and the government of other union
territories can also enter into an agreement for constituting a joint board.

Composition of Joint Board (Section 14)

A joint board consists of the following members namely:

1. A chairman who has the knowledge, experience, and qualifications

in matters relating to prevention and controlling environmental
pollution.
2. 2 members from each state government nominated by their
respective state to represent the state.
3. A nonofficial appointed by each state to represent the interests of
agriculture, fisheries, trade or any other interest of the participating
state.
4. 2 members from the companies, corporations nominated by the
central government which are owned, controlled or managed by the
participating state.
5. A full-time member secretary who has the required skills, experience
and qualifications in science, engineering or management aspect of
controlling and preventing pollution to be appointed by the central
government.
Disqualification of Members (Section 6)
Section 6 of the Act mentions the grounds on which a member can be
disqualified from being a member of the board:

1. A person who is judged insolvent or has not paid his debts or has
compounded with his creditors cannot become a member.
2. A person of unsound mind or who has been convicted of such an
offense which according to the central government or state
government may involve moral turpitude.
3. If a person is holding any office of profit or is a salaried employee of
any company, firm which is connected with the board in that situation
also he can be a member of any board.
4. If a member has misused his powers by virtue of being a member or
holding any position in connection with the board, then the central
government or for that matter the state government may disqualify
that member in the general interest of the public.

Meetings of the Board (Section 8)

According to Section 8, in every three months the board has to conduct a
meeting and review all the laws and the orders implemented by it , apart
from that it also has to discuss the future plan of Action, if the chairman of
the board thinks that an urgent meeting is required to address a particular
issue then in that case meeting among the members of the board can be
held at any time as prescribed by the chairman.

Constitution of the committees (Section 9)

Section 9 permits the central or state board to constitute a committee of
members either from the existing members or totally new members who
do not have any connection with the company for the performance of the
duties laid down in the Act.
Members of the committee shall meet at any time or at any place and
shall observe any rule or procedure as it may consider necessary for the
performance of its duties. The members will be paid fees, allowances for
attending meetings and performing functions of the board from time to
time.
Provision of appeals (Section 28)
Any person who is aggrieved by the decision of the state board made
under section 25 to section 227, has 30 days time to make an appeal in
the concerned appellate authority as established by the state
government. The appellate authority may consist of a single person or
three people as the government may think fit.

Penalties
1. If any person fails to comply with the orders of the board under
subsection 2 and 3 of Section 20 then in that case on conviction he
is punishable for imprisonment for 3 months or fine or both.
2. If the person fails to comply with orders of the board under clause e
of subsection 1 of Section 32 or with subsection 2 of Section 33
then, in that case, the person would be punishable with
imprisonment for 6 months extending to 6 years or a fine or both.
3. Apart from the above-mentioned penalties. Section 42 mentions
penalties for different kinds of Acts namely:

1. If any person removes, destroys or pull down any notice put up by

the board.
2. If someone obstructs the member of the board or any other person
who is Acting under the board.
3. If a person fails to produce any information as required by the
member of the board for the performance of his duties.
4. Or if he gives any information to the members which he knows to be
false.
5. Then In all the above Acts if the person is convicted he would be
punishable by imprisonment for a maximum period of 3 months or
fine that may extend up to 10,000 rupees or both.

Conclusion:
Water pollution is a big issue in India and controlling and preventing it is
another big issue, till now we are not able to create awareness among the
people regarding the importance of conserving water bodies, this Act
certainly provides various agencies that will look to prevent and control
water pollution, the Act lays down various procedures for filing a
complaint and the powers of each and every board. However more needs
to be done and the Act should be made more comprehensive, more
participation should be given to the locals and punishments should be
made stricter so that it Acts as a strong deterrence. Above all these more
emphasis should be given on the implementation aspect as just by
making laws you can not control pollution, proper implementation is also
required.