Tort is generally understood to be a civil wrong. It is an action or omission that has been done to violate duty imposed by law. Tort law is generally concerned with:

1. Protecting rights, allocating risks, and preventing losses;
2. providing the right to seek injunctions;
3. providing remedies by way of damages and compensations.

Even though tort law is not concerned with the protection of third-party objectives, such as environmental protection, it is one of the oldest remedies to redress environmental harm. The question which this paper aims to explore is How has tort law responded to environmental harm issues in India? The Indian judiciary has applied principles of torts on various environmental law cases where people's right to a clean and healthy environment has been violated.

The law of torts in India is based on common law. Some of the important principles of tort include nuisance, negligence, trespass, vicarious liability, strict and absolute liability.

1. The doctrine of Strict Liability:
   This principle was first evolved in Rylands V Fletcher. In this case, Blackburn J. opined that any a person who for his purposes brings on his land and keeps and collects anything likely to do mischief, if it escapes must keep it at his peril and if he does not do so, is prima facie answerable for all the damages which is the natural consequence of that escape. [1]
    
2. The doctrine of Absolute Liability:
   This principle was first applied by the Supreme Court of India in M.C. Mehta v Union of India (Oleum Gas Leak Case). In this case, the supreme court held that" an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on an account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part."[2]
    

Tort Law remedies for Environmental Harm:
Tortious liabilities for environmental harm is available in the following forms:
Trespass to land:
Section 441 of the Indian Penal Code says that Whoever enters into or upon property in the possession of another with intent to commit an offense or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with the intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offense is said to commit "criminal trespass".

Nuisance:
Nuisance is something that annoys or something offensive. If an act interferes with the comfort, health, and safety of an individual, it can be termed as a nuisance. It is an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it. It is an injury to the right of a person in possession of a property to undistributed enjoyment of it and results from improper use by another person in his property.[3]

This remedy of a nuisance, however, concerning environmental harm suffers from various limitations. The reasonableness of a defendant's conduct is a question mark or otherwise, the unreasonableness on the defendant's part is very difficult to prove. In cases of pollution, it is very difficult to establish the causal link between the pollutant and the injury as there is a need for more technical evidence. Also, material harm conducted by the government is very difficult to prove in pollution-related cases. [4]

Public Nuisance:
Public Nuisance is interference with the right of the public in general as opposed to inference with the rights of a private person. Section 268 of the Indian Penal Code, 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 the 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.

For example, a heap of sand, contaminated water on streets, untreated garbage on road, etc. Section 133 of the Code of Criminal Procedure, gives power to the magistrate to take initiatives to remove public nuisance and act on the information received by the police or any other person.

The magistrate can first issue a conditional order and after making an inquiry he can issue an absolute order. Section 188 of the Indian Penal Code provides punishment for the disobedience of the order. If the disobedience continues, it may result in imprisonment of up to one month and a fine that may extend to Rs 200. And, if the disobedience is such that it causes a threat to human life, health, and safety, the imprisonment may extend to six months and a fine up to Rs 1000.

Municipal Council, Ratlam V Vardhichand, AIR 1980 SC 1622
According to the facts of the case, residents Ratlam were suffering for a long time from a pungent smell that was emanating from open drains. The slums in the locality did not have lavatories and therefore, people were forced to excrete on the streets and banks of the drain. The constructed part of the drain was blocked which resulted in breeding mosquitoes. The people approached the SDM after the Municipal Council's inaction to their requests.

The SDM under section 133 of the CrPC issued the following orders:

• Prepare a permanent plan to ensure a proper flow in Nallah within six months;
• Construct a proper drainage system and where there is no drain, it should be constructed immediately within six months;
• Water flowing from the septic tanks and other water flowing from the residential houses should be channelized and should stop stinking and should have a proper flow so that the water may flow easily towards the Nallah, within six months;
• Pits should be covered so that there is no accumulation of water and there is no breeding of mosquitoes, within two months.

The Municipal council appealed to the trial court and then to the high court that the order could not be compiled due to lack of finances. Both the courts affirmed the SDM's orders and then there was a special leave petition file in the Supreme Court. The issue, in this case, was whether the court can compel a statutory body to carry out its duty by constructing sanitation facilities for people in those areas at a great cost and within the specified time?

The court held that CrPC does not recognize financial crunch as a basis of exonerating statutory liability. The human rights of the people have to be protected despite the financial crunch under the constitution. If the order of the SDM is denied or refused, it may attract a penalty under section 188 of the Indian Penal Code. The court also quoted the M.P Municipalities Act which stated that the Municipal Council must clean streets and properly dispose of rubbish.

The provision is mandatory as it uses the word "shall". Also, section 123 of the act has no saving clause when the municipality is penniless. The court approved the plan made by the authorities costing 6 lakhs to be completed within one year. The SDM should inspect every three months and any breaches were to be treated with the penalty under section 188 of the IPC. [5]

The court's affirmative action against the municipality, in this case, encouraged many public-spirited individuals to file an appeal to solve local environmental problems. It opened doors for people to file cases to seek remedies for environmental pollution. The case has indirectly used the concept of tort consciousness. The court has not merely used the provisions of CrPC as a neutral onlooker but has relentlessly enforced the law when people in misery cry for justice. The Municipal Corporation could not take advantage of the non-available of funds to refrain from doing their duties for the welfare of society. The concerned authorities must approach the financial institutions for loans and use the money judiciously for removing public nuisance.[6]

Negligence:
Negligence results when there is a duty to take care of and the same is not taken care of and it results in some harm to another person. The result is some kind of loss, inconvenience, and annoyance to others. The plaintiff must show that there was a breach of duty, the defendant was under the duty to take reasonable care that could have to avoid damages and the consequential damages must have resulted from the breach of the duty and must be foreseeable.

It is another tort on which common-law action to prevent environmental pollution can be instituted. The problem with the cases of negligence is that it is difficult to establish a causal connection between the negligent act and the injury caused. It is also difficult to prove if the latent effect of the injury remains in effect for along period. [7] The other two remedies i.e., the doctrine of strict liability and the doctrine of absolute liability have been discussed above.

Problems with Common Law Remedy under Torts:
The common law remedies for environmental harm are provided under the law of torts. Plaintiff may sue for damages, seek an injunction, or both. The main issue with this is the damages awarded have less money value, depreciation of damages awarded at the end of litigation due to high inflation rate, prolonged litigation, etc., makes the litigation less successful for the victim.

The relief does not deterrent the polluter and is not an effective relief to abate pollution. In India, a common-law remedy is used in very few cases to control pollution. It is because, litigation is an expensive and lengthy affair and secondly, many people do not perceive that environmental pollution cases could be brought in court under the law of torts. Thirdly, the burden of proof in cases of environmental pollution is highly technical which a common man may not be able to understand. [8]

M.C. Mehta V Union of India AIR 1987 SC 1086
In this case, a writ petition was filed for the closure or relocation of various units Shriram Foods and Fertilizers Industries on the ground that they were hazardous and harmful to the community. While the writ petition was pending, a leakage of oleum gas on December 4th and 5th from one of the units of Sriram Fertilizers caused the death of an advocate and several others were severely injured. The Delhi Legal Aid and Advice Board filed applications seeking compensation for those who were affected. Since the writ involved questions related to article 21 and article 32 of the constitution, the matter was referred to a larger bench of five judges.

The question, in this case, was, what is the measure of liability of an enterprise which is engaged in a hazardous or inherently dangerous activity, and if by activities carried out in such industries, people die or get injured? Does the principle in Rylands Fletcher apply or is there any other principle to govern this case?

Article 32 of the constitution, does not merely confer on the court to issue a direction, order or writ to uphold the fundamental rights but it also creates an obligation on the courts to protect the fundamental rights of the people. And for this purpose, the court has all the ancillary and incidental powers to forge new remedies and fashion new strategies to enforce fundamental rights. The power of the court is not only injunctive in nature but also remedial in scope and provides against the breach of fundamental rights. The court can award compensation in cases where the infringement is patent and incontrovertible. [9]

The next question to deal with was whether article 21 is available against Shriram Industries which was owned by Delhi Clothes Mills Limited, a public company limited by shares and which is engaged in an industry vital to the public interest and with the potential to affect life and health of people?

The court held that if an analysis of declaration Industrial Policy Resolutions and the Industries Development and Regulation Act, 1951 is undertaken, we find that the activity of producing chemicals and fertilizers is deemed by the state to be an industry of vital public interest, whose public import necessitates that the activity should be carried by the state itself, in interim period with state support and under state control, a private corporation may also be permitted to supplement the state support. [10]

It was decided in this case that, where an enterprise is engaged in a hazardous or inherently dangerous activity and it harms anyone on account of such activity, the enterprise is strictly and liable to compensate all those affected. There should be no exceptions. The enterprise cannot escape liability by showing that it had taken proper care and there was no negligence on its part. If an enterprise is permitted to carry out any harmful activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising out of such hazardous activity. The court also states measures of compensation in the cases of absolute liability should be co-related to the magnitude of enterprise and should be exemplary to have a deterrent effect.[11]

The Bhopal Gas Tragedy: Pursuing Environmental Justice
Thirty-six years have passed since the disastrous Bhopal Gas Tragedy. The massive discharge of the lethal gas from the Union Carbide factory in Bhopal killed over 2500 people, either as they slept or fled in terror during the night. Hundreds more have died since and thousands have been injured or affected to this day. With the possible exception of Chernobyl, the Bhopal disaster can be said to be the worst possible industrial disaster in the history of India. [12]

The activists place the death toll at 8000 within two weeks and another 8000 have died since from the gas-related diseases. Immediately after the disaster, UCC (Union Carbide Corporation) began to disassociate itself from the gas leak. It aimed to shift the aim to UCIL(Union Carbide India Limited), stating that the plant was wholly built and operated by the Indian Subsidiary. The toxic plume had barely cleared when, on December 7, the first multi-billionaire suit was filed by an American Attorney in the U.S. court. [13]

The Settlement: Union Carbide Corporation V Union of India AIR 1990 SC 273
The UCC had to pay a sum of USD 470 million to UOI in full settlement of all claims, rights, and liabilities, related to and arising out of the Bhopal Gas Disaster. The aforesaid sum was to be paid to the UCC on or before March 31, 1989. The court considered the sum of USD 470 million to be just and equitable, to avoid delay and uncertainty and ensure immediate payment. Higher as compared to compensation under workmen compensation laws. Based on the Oleum Gas case, compensation should be co-related to the magnitude of the enterprise and have a deterrent effect.[14]

Union Carbide Corporation v Union of India AIR 1992 Sc 248
The main foundation of the challenge was two-fold:
The criminal cases could not have been compounded or quashed and immunity against criminal action could not be granted, and The quantum of compensation settled was grossly low
It was held in this case that the Supreme Court has wide powers under article 136 and article 142 (1) whereby the court has plenary jurisdiction in the matters of hearing of appeals by granting special leave against any kind of judgment or an order made by court or tribunal in any cause of matter and the power to be exercised despite the limitations of the specific provisions for an appeal contained in the constitution or other laws.

The power is given to the Supreme Court by article 136 is, however, like special or residuary powers which are exercisable outside the purview of the ordinary laws in cases where the needs of justice demand interference of the Supreme Court. The expression "cause of matter" in article 142(1) covers almost every proceeding in the court. The court set aside the order that quashed and set aside criminal proceedings as well as impermissibility of future criminal liability. The settlement is not hit by section 23 or section 24 of the Indian Contract Act and that no part of the consideration for payment of 470 million US dollars was unlawful. [15]

The court approved 750 crores as the settlement amount and observed that this case "concerns the legal limits to be envisaged in the vital interests of the protection of the constitutional rights of the citizenry, and of the environment, on the permissibility of such ultra-hazardous technologies and to prescribe absolute and deterrent standards of liability if harm is caused by such enterprises. The prospects of the exploitation of cheap labor and of captive-markets, it is said, induces multi-nationals to enter into the developing countries for such economic-exploitation and that this was eminently an appropriate case for a careful assessment of the legal and Constitutional safeguards stemming from these vital issues of great contemporary relevance." [16]

Great Expectations:
There were many criticisms posed to the way this case was dealt with by the court. Professor Upendra Baxi said that "constantly since the settlement orders, the judicial discourse emphasized the need to protect and promote the integrity of the judicial process from misinformed criticism. [17]

He then went on elaborating justice Kennan's great expectations from the Indian Courts:
"This the court is firmly convinced that the Indian Legal system is in a better position than the American courts to determine the cause of the tragic event and therefore, fix liability. Further, the Indian courts have all the information needed to arrive at the number of compensations to be awarded to the victims. The Union of India is a world power in 1986, and its courts have the proven capacity to mete out fair and equal justice. To deprive the Indian Judiciary of this opportunity to stand tall before the world and to pass judgment on behalf of its people would be to revive the history of subservience and subjugation from which India has emerged.[18]

The litigation did not produce any determination of the cause of the catastrophe. It did not produce the liability of Union Carbide Corporation, UNCIL, Government of India, or Madhya Pradesh. It did not produce compensation/damages based on access to all relevant information about the post-catastrophe past, present, and future of men, women, and children colonized by the MIC and related toxic substances. [19]

The Bhopal Act: Bureaucratization of Justice
The Bhopal Act was a limited measure. While it left open the establishment of a compensation commission, it presupposed that the solution to this disaster could be achieved through the traditional legal process. Its primary effect was to shift the conduct of litigation from the individual victims to the government. The hostility of the Bhopal Act is based on the concern that underlies the distrust of class actions in mass injury suits. There have been arguments that class action "bureaucratize" justice by taking the conduct of the litigation out of the hands of the victims. The class form, cannot respond to the individual needs of the victims and cannot provide individual remedies to the individual. [20]

The use of parens patriae power was further problematic because the Indian government was in a situation of considerable conflict of interest. India, itself a major owner of the Bhopal enterprise, could be viewed as lax in administering its health and safety requirements. Apart from the Indian government's potential liability in the case, Bhopal gas also became a political liability. And the imperatives of containing the political damage control could conflict with the best interests of the victims.[21]

Conclusion:
In India, there had been limitations in tort-based litigation. However, it cannot be denied that the principles of tort have helped us to address the issues of environmental law in quite an efficient manner. It can be concluded that there are three possible outcomes of tort-based litigation in environmental law. (i) compensation(ii) directions/injunctions (iii) punishment. Causing death by negligence is an offense. In Ratlam case, to bring more validity or to nourish the order of an executive magistrate arising out of section 133 of CRPC, Justice Krishna Iyer attracted sec 188 of IPC. If the order of the public servant does not comply, it will attract a penalty. The parent idea is arising from the principle of torts when accompanied by other statutes may have different outcomes.

In, the case, of Bhopal Gas Tragedy, some limitations to tort-based litigation were explored. The disaster raised moral, legal, and ethical questions regarding the liability of various stakeholders. The question of liabilities of parent companies for their subsidiaries, of transnational corporations engaged in hazardous activities remained unclear. Apart from this, Investigations following the Bhopal Disaster revealed that the responsibility of both the company and government went beyond the mere neglect of elementary safety measures. However, after many years of litigations, it remains unclear who must near the 'legal responsibility'.

There is no doubt that tort law in India has been a traditional remedy to environmental harm. It has encouraged many environmental statutes and regulations in the past few decades. The courts have done a notable job in developing tortious liability in environmental law in India. However, there is a great paucity in tort law in India which makes its credibility a debatable issue. There have been several issues such as failure to encourage the pursuit of remedies of civil nature, the technical approach, delay in litigation, expensive litigation, etc.,

Despite these hurdles, the recent development of combining tort law with the constitutional right of personal liberty and its remedy through compensation is a good step. The present state of tort law characterized by rapid development within the public law domain has created a new legal framework for environmental protection in India. [22]

End-Notes:

1. Swarnendu Chatterjee & Kritika Khanna, Bhopal to Vizag – A jurisprudential analysis of the tortious liability for companies SCC Online (2020), Bhopal to Vizag – A jurisprudential analysis of the tortious liability for companies.
2. Ibid
3. legal Service India, Nuisance: A Tort, http://www.legalservicesindia.com/article/825/Nuisance:-A-Tort.html (last visited Dec 13, 2020).
4. M Tony Mathew & L Priyadarshini, TORTIOUS LIABILITY FOR ENVIRONMENTAL HARM IN INDIA-A REVIEW, 120 No. 5 2018, International Journal of Pure and Applied MATHEMATICS.
5. Municipal Council, Ratlam V Vardhichand, AIR 1980 SC 1622
6. Nikhil Verma - et al., Municipal Corporation, Ratlam vs. Shri Vardhichand & ors. Law Times Journal (2020), http://lawtimesjournal.in/municipal-corporation-ratlam-vs-shri-vardhichand-ors/ (last visited Dec 13, 2020).
7. M Tony Mathew & L Priyadarshini, TORTIOUS LIABILITY FOR ENVIRONMENTAL HARM IN INDIA-A REVIEW, 120 No. 5 2018, International Journal of Pure and Applied MATHEMATICS
8. Ibid
9. M.C. Mehta V Union of India AIR 1987 SC 1086
10. Ibid
11. Ibid
12. Cassels, Jamie. "The Uncertain Promise of Law: Lessons from Bhopal." Osgoode Hall Law Journal 29.1 (1991) : 1-50
13. K. Fortun et al., The Bhopal disaster and its aftermath: a review Environmental Health (1970), https://ehjournal.biomedcentral.com/articles/10.1186/1476-069X-4-6 (last visited Dec 13, 2020)
14. Union Carbide Corporation V Union of India AIR 1990 SC 273
15. Union Carbide Corporation v Union of India AIR 1992 Sc 248
16. Ibid
17. Baxi, Upendra, and Amita Dhanda, eds. Valiant Victims and Lethal Litigations: The Bhopal Case. Indian Law Institute and N.M. Tripathi, 1990
18. Ibid
19. Ibid
20. Cassels, Jamie. "The Uncertain Promise of Law: Lessons from Bhopal." Osgoode Hall Law Journal 29.1 (1991) : 1-50
21. Ibid
22. Madhuri Parikh, TORTIOUS LIBILITY FOR ENVIRIONMENTAL HARM: A TALE OF JUDICIAL CRAFTMANSHIP,