Pollution is the introduction of pollutants into the environment thereby causing adverse damage to the quality of land, air or water. Pollution is a by-product of every activity that we undertake in our daily lives from causing air pollution due to vehicular emissions to generating waste that causes water and land pollution. Excessive pollution has harmful effects like climate change and global warming, the consequences of which the world is facing now in the form of natural disasters and decreasing biodiversity. People have finally realized the need to protect the environment and that realization was accompanied by various legislations to safeguard the environment and to penalize pollution.
Constitutional Provisions related to the Environment
The word ‘environment’ was not mentioned in the Constitution of India until the 42nd Constitutional Amendment in 1975 added Article 48-A and Article 51-A to the Constitution. Article 48-A states that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country” while Article 51-A(g) states that all citizens have a duty to “protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.” These Articles fall within the ambit of Directive Principles of State Policy which means that they are not enforceable but over time, judicial activism has paved the way to make them enforceable. In the case of M.C Mehta Union of India[i], the Supreme Court interpreted Article 21 of the Constitution that protects life and personal liberty as inclusive of the right to a clean and pollution-free environment. The Supreme Court also included the right to pollution-free water and an environment free from noise pollution as part of the Right to life and personal liberty under Article 21 in the cases of Subhash Kumar v State of Bihar[ii] and P.A Jacob v Superintendent of Police, Kottayam[iii], respectively.
Under Common Law, there are 4 different remedies against pollution, and these are – nuisance, negligence, trespass and strict liability.
1. Nuisance includes any act, omission, injury, damage, annoyance or offense to the sense of sight, smell, hearing or which is of may be dangerous to life or injurious to health or property. Nuisance can be either private nuisance – interference with a right that is exclusively enjoyed by an individual, or public nuisance – interference with a right pertaining to public. Since pollution of the environment is an interference of a right enjoyed by the public, Section 268 of the Indian Penal Code which states that “a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in 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 is not excused on the ground that it causes some convenience or advantage” will apply. In India, an action for public nuisance can be brought before a court either through a civil suit 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.
2. 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 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 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.
Penal Provisions relating to environmental protection
Section 268 of the Indian Penal Code defines nuisance as “any act or illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.” But Section 290 makes public nuisance punishable. In the case of K. Ramakrishnan v State of Kerala[xi], the court held that smoking in public falls within the ambit of public nuisance and hence is punishable. Sections 269 and 271 of the Indian Penal Code punish acts that are likely to spread dangerous diseases with imprisonment up to 6 months or fine, or both. Section 277 of the Indian Penal Code states that “whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both” and this Section is used to punish water pollution.
Two primary legislations that are the Water (Prevention and Control of Pollution) Act, 1974 and the Environment (Protection) Act, 1986 also penalize violations of their provisions. Section 47(1) of the Water (Prevention and Control of Pollution) Act, 1974 states that every person in charge of the conduct or business of a Company will be liable to be punished for any offence committed by a company, with the exception of any act done without the knowledge of a person in charge of the company.
There are more than enough provisions and legislations dealing with environmental pollution and the remedies for the same but with the numerous legislations comes confusion and chaos as to which remedy or punishment to apply. Therefore, there is an imminent need, especially with climate change and global warming posing a serious threat to the world, for an integrated legislation that will deal with environmental safeguards and will also lay down punishments for violations of the same.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] M.C Mehta v Union of India, AIR 1987 SC 1086.
[ii] Subhash Kumar v State of Bihar AIR 1990 SC 420.
[iii] P.A Jacob v Superintendent of Police, Kottayam AIR 1993 Ker 1.
[iv] V.K Beena Kumari, Environmental Pollution and Common Law Remedies, Cochin Law Review 101, 103-104.
[v] Ramlal v Mustafabad Oil and Oil Ginning Factory AIR 1968 P&H 399.
[vi] Naresh Dutt Tyagi v State of Uttar Pradesh AIR 1995 Supp (3) SCC 144.
[vii] Fairview Farms, Incorporated v Reynolds Metals Company, 176 F. Supp. 178.
[viii] Rylands v Fletcher (1868) L.R. 3 H.L. 330.
[ix] M.C Mehta v Union of India, AIR 1987 SC 1086.
[x] Union Carbide Corporation v Union of India (1991) 4 SCC 584.
[xi] K. Ramakrishnan v State of Kerala, AIR 1999 Ker. 385.