Common law and criminal law remedies for environmental harm

1. Pollution as a tort

February 2025 asked whether an act causing environmental pollution is a tort. It is, under four heads.

• Private nuisance: unlawful interference with a person's use or enjoyment of land, or of some right over it. Smoke, fumes, noise, vibration, effluent seeping into a neighbour's well. Indian examples are the Allahabad High Court cases in the Torts note: a flour mill in a residential area (Radhey Shyam v. Gur Prasad, 1978) and a brick-grinding machine whose dust entered a doctor's clinic (Ram Raj Singh v. Babulal, 1982), both restrained by injunction. Locality matters, but a defendant cannot plead that the plaintiff came to the nuisance, or that the activity is useful to the public.
• Public nuisance: an act that causes common injury or annoyance to the public. An individual can sue only on proof of special damage beyond that suffered by the public; otherwise the Advocate-General, or two or more persons with the court's leave, may sue for declaration and injunction under section 91 of the Code of Civil Procedure, 1908.
• Negligence: failure to take reasonable care in handling pollutants, for example a poorly maintained effluent pond that bursts.
• Trespass: direct and intentional entry of a substance onto another's land, such as dumping waste on it.
• Strict and absolute liability: Rylands v. Fletcher (escape of a dangerous thing brought onto land for a non-natural use) and the stricter Indian rule in M.C. Mehta v. Union of India, 1986 INSC 281, (1987) 1 SCC 395, under which a hazardous enterprise is liable without any of the exceptions.

Remedies: damages, injunction (temporary, under Order XXXIX of the CPC, and permanent, under the Specific Relief Act, 1963), and abatement.

2. Limits of the common law

• It protects property and persons, not the environment as such: a polluted river with no riparian owner to sue goes unremedied.
• The plaintiff must prove causation, which is hard where many polluters contribute or harm appears years later.
• Litigation is slow and costly; victims are often poor.
• Damages compensate after the event; they do not prevent harm or set standards.
• Courts balance interests case by case, which gives no uniform standard to industry.

These gaps explain the consent-and-standards model of the Water and Air Acts, the umbrella powers of the 1986 Act, and the NGT's power under sections 15 and 17 of its Act to award compensation and restitution of the environment itself.

3. Environmental crimes as public nuisance under the BNS

The Bharatiya Nyaya Sanhita, 2023 (in force from 1 July 2024) carries over Chapter XIV of the IPC as Chapter XV, “Of offences affecting the public health, safety, convenience, decency and morals”.

• s.270 (old s.268): public nuisance, any act or illegal omission which causes common injury, danger or annoyance to the public or to people in the vicinity. A common nuisance is not excused because it causes some convenience or advantage.
• s.271 and s.272 (old ss.269, 270): negligent and malignant acts likely to spread infection of a disease dangerous to life.
• s.279 (old s.277): voluntarily corrupting or fouling the water of a public spring or reservoir so as to render it less fit for the purpose for which it is ordinarily used.
• s.280 (old s.278): voluntarily vitiating the atmosphere so as to make it noxious to the health of persons dwelling, carrying on business or passing in the neighbourhood or along a public way.
• ss.286 to 291 (old ss.284 to 289): negligent conduct with poisonous substances, fire and combustibles, explosives, machinery and animals.
• s.292 (old s.290): public nuisance not otherwise punishable, fine up to one thousand rupees; s.293 (old s.291): continuing a nuisance after injunction by a public servant.

Mischief (s.324 onwards) also reaches some environmental harm, such as destroying or diminishing the utility of a water supply. The penalties are small, which is the usual criticism: the BNS provisions deter individuals, not industry.

4. Abatement of public nuisance by the magistrate

June 2025 asked for the criminal law provisions relating to the abatement of public nuisance. The main one is section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (old s.133 CrPC). A District Magistrate, Sub-divisional Magistrate or Executive Magistrate empowered by the State may, on a police report or other information, make a conditional order requiring the person responsible to remove an unlawful obstruction or nuisance from a public place, or to stop or regulate a trade or occupation injurious to the health or physical comfort of the community, or to remove or secure a dangerous building, tank or well, within a fixed time, or to appear and show cause. The following sections set out the procedure: the person may show cause, the magistrate may hold an inquiry, and the order is made absolute if cause is not shown; disobedience is punishable. Urgent cases can be handled by an order under s.163 BNSS (old s.144).

• Municipal Council, Ratlam v. Vardhichand, 1980 INSC 138, (1980) 4 SCC 162: the magistrate's order under s.133 directing the municipality to build drains was upheld; lack of funds is no defence to a statutory duty. Krishna Iyer J. called s.133 a provision that can be used to make public bodies perform their duty to the community.
• State of M.P. v. Kedia Leather and Liquor Ltd., 2003 INSC 405, (2003) 7 SCC 389: the Water and Air Acts do not impliedly repeal s.133. The two operate in different fields and can co-exist, so a magistrate may still act against a polluting industry. The same reasoning applies to s.152 BNSS.

5. The Bhopal gas disaster case

On the night of 2–3 December 1984, about forty tonnes of methyl isocyanate escaped from the Union Carbide India Ltd. pesticide plant at Bhopal. Thousands died within days and several hundred thousand were injured; the effects on health and on soil and groundwater continue. The legal sequence:

• Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985: the Union of India became the sole representative of the victims (parens patriae).
• Suits filed by the Union in New York were dismissed in 1986 on forum non conveniens, on condition that Union Carbide Corporation submit to Indian jurisdiction.
• Settlement, February 1989: the Supreme Court recorded a settlement of US $470 million in full and final settlement of all claims, civil and criminal; reasons in Union Carbide Corporation v. Union of India, 1989 INSC 179, (1989) 3 SCC 38.
• Charan Lal Sahu v. Union of India, 1989 INSC 395, (1990) 1 SCC 613: the 1985 Act was upheld.
• In review, in 1991, the Court restored the criminal prosecutions, which the settlement had quashed, while keeping the civil settlement.
• Keshub Mahindra v. State of M.P., 1996 INSC 1053, (1996) 6 SCC 129: the charges against the accused officers were reduced from culpable homicide (s.304 Part II IPC) to causing death by negligence (s.304A IPC). Convictions in 2010 carried two years' imprisonment, and a curative petition by the CBI to restore the graver charge was dismissed in C.B.I. v. Keshub Mahindra, 2011 INSC 378.
• Union of India v. Union Carbide Corporation, 2023 INSC 222: a Constitution Bench dismissed the Union's curative petitions for additional compensation.

A critical analysis (February 2025 set the Supreme Court's Bhopal decision as a 10-mark question) should make these points: the settlement was far below the M.C. Mehta measure of compensation tied to the size and capacity of the enterprise; victims were not heard before it; the criminal law was weakened by the reduction to s.304A; and the parent company escaped Indian jurisdiction in practice. On the positive side, the disaster produced the Environment (Protection) Act, 1986, the rule of absolute liability, the Public Liability Insurance Act, 1991 and, later, the NGT.

How this is examined

The papers set this topic as “common law principles for the protection of the environment” (August 2024), “pollution as a tort” and “environmental crimes as public nuisance and their punishment” (February 2025), “criminal law provisions on abatement of public nuisance” (June 2025) and “the Bhopal gas disaster case” (January 2026). The criminal law answer has two halves: the BNS offences with their old IPC numbers, and s.152 BNSS with Ratlam and Kedia Leather.