Tortious Liability in India

Jun 18, 2020

In a common language, the term ‘tort’ refers to a civil wrong that further causes some other party to hurt and bear the loss or harm thereby creating a legal liability on the person who had committed such an act. Tort law which is non codified law, refers to the set of rules that provides remedies and solutions to those individuals who have suffered harm by the arbitrary acts of another person. This law is based on the impression that people are responsible legally for the consequences of their actions if they cause harm to another person or entity no matter whether they are intentional or accidental. The term ‘Tort Liability’ is a legal obligation to compensate the person who has suffered harm. The wrongdoer is obligated by the Court. 

Today, commonly the cases are related to environmental issues and the damage or the harm caused, comes under the domain of four types of torts which are- Trespass, Nuisance, Strict Liability and Negligence.  Environmental harm caused due to pollution and the tort law are interconnected with each other. India has seen an overabundance of legislation which covers various facets of the environment in order to ensure its conservation. However, due to loopholes in the laws or perhaps, the relaxed attitude of the authorities to implement the laws, these legislations have only remained a law. The Supreme Court has held that the right to life and personal liberty is enshrined under Article 21 and stated that it includes a right to have a pollution free environment. However, Indian Environmental Law has seen substantial development in the last two decades, with the constitutional courts laying down the basic principles related to the environmental jurisprudence. The law of torts in India, which remained uncodified, followed the English law in almost all aspects in its field.

Nuisance can be defined as anything which infuriates, damages or an act which is offensive in nature. It may be public or private in nature as well. Hence, those acts that are intrusive with the health or safety of a citizen are covered under nuisance. The nuisance may be due to odour, sound, fumes or gas or heat, germs, vibrations etc. The action taken against nuisance with respect to the environmental law is not essentially depending upon injury, it could even simply constitute aggravation, welfare, health, or convenience or safety as well. The suits related to the environment are usually related to those practices that encroach upon a person’s right to enjoy his/her own property. The nuisance must establish an unreasonable and objectionable public or private use of one’s land to the detriment of another’s. 

The other specific tort on which a common law action to prevent environmental pollution can be instituted is called negligence. It can be defined as any act of omission or commission i.e. when there is a responsibility of a person to take care and that activity has not been committed which results in some sort of damage or harm to another person. In the action of negligence, the result is some kind of a loss, inconvenience or annoyance to another.

The plaintiff must show

  • That there has been a violation of the duty
  • Due to this breach there is a consequential damage

In the case of Naresh Dutt Tyagi vs State of UP, in a storage area, there were chemical pesticides stored which were in a residential area. There was a leakage and fumes were stemming from the pesticides through the ventilators which resulted in the death of children and an unborn child. It was held that it was a clear case of negligence. 

Trespass means a deliberate invasion in the property belonging to the plaintiff in his exclusive possession. This interference may be direct or indirectly through some kind of object as well. In the environment related problems, tort of trespass constitutes a deliberate throwing of waste either directly on the plaintiff’s property or in such circumstances as it will be carried to the land of the plaintiff by natural forces. It may be gases or even invisible fumes.

Strict liability is another tort that enforces legal responsibility for damages or injuries even if the person who was found guilty and strictly liable, did not act with fault or negligence. Therefore, the plaintiff in the case needs to prove the defendant’s intention or even his negligence. The plaintiff needs to substantiate that

  • The defendant triggered the particular act in question 
  • The plaintiff had suffered a damage 

These rules usually derive from the case laws and are not mentioned in some legislation. The rule of Strict Liability was originated in the case of Rylands vs. Fletcher. In India, the rule of strict liability has evolved into a new principle that is absolute liability in the case of MC Mehta V. Union of India.  The difference between absolute and strict liability is that in the former there is no defence provided to the defendant and in the latter the defendant gets a chance to escape from the liability. 





Although there is a lack of proper implementation of environmental litigation in India, still the recent developments in the past three decades have been satisfactory. The combination of the tort law and the rights provided under the constitution and extending the enforcement under Art. 32 makes it easier for the general public to get a remedy.