Common Law Remedies For The Environmental Protection

Common law remedies for the environmental
protection
Introduction
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 Penal 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.
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, the court explained the ambit of Article 51-A. It is true that
it’s the duty of the citizen to guard the environment under Article 51-A (g) of the
Constitution but this text also creates a right in the favour of the citizen to move to
the court for the enforcement of the Article 51-A(g).
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.
1. Nuisance
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 is 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
defence.
2. Negligence
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.
3.Trespass
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 unreasonable
interference with the use of one’s property. In the case of Fairview Farms,
Incorporated v Reynolds Metals Company[vii], the court held that air borne
metals deposited on the land of the plaintiff’s land constituted trespass and
damages were asked to be paid.
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.
Conclusion
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.

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Common law remedies for the environmental

Constitutional provisions vis-à-vis

Common Law remedies against pollution

The principle of strict liability was laid down in the case of Rylands v

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