In modern parlance, the issues related to the environment largely falls under the head of public nuisance which has been defined under section 268 of Indian Penal Code as follows:
"A person is guilty of 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".
Any person committing public nuisance shall be punished with a fine of Rs.200 as per the provisions of section 268 of IPC by filing a complaint to the magistrate. A better recourse to the environmental tort can be sort by utilizing sections 133 to 144 of the Cr.P.C. The magistrate is empowered to pass a conditional order for the removal of public nuisance within a fixed period of time under section 133 of Cr.P.C. Failure to comply with a final order within the specified time period results in disobedience and calls for a penalty as per the provisions of section 188 of IPC. The Supreme Court has power to issue directions or orders or writs under Articles 32 and 226 of the Constitution in the matters of environment. A person can file a writ petition taking plea of infringement of healthful environment as construed by the Article 21 of the Constitution.
In P.C. Cherian v. State of Kerala, the Kerala High Court held that the carbon particles emitted from two rubber factories amounted to public nuisance. The court held that the magistrate was justified in invoking his power under section 133 of the Cr.P.C and thereby stopping the petitioners from mixing carbon in their factories. However, the court held that the petitioners may restart the mixing of carbon in their factories after introduction of appropriate gadgets and instruments which would prevent the emanation of carbon black in the atmosphere.
In Municipal Council, Ratlam v. Vardhichand, the Supreme Court rejected the appeal of the Municipal council and held that the magistrate order was just under section 133 of Cr.P.C as environmental pollution in Ratlam affected a large section of people due to the unhygienic condition of sewer, polluters, garbage, filths, spills from drainage which was an outcome of haphazard town planning and under financed enforcement agencies.
Thus, the law of tort has a direct connection with the environment in which we live and the sufferings faced by the humans on account of human injustices, be it in the name of development, thereby exploiting the very essence and nature of the environment, bringing in imbalances and discomfort to most of us to which we are a silent spectator. The aftermaths of such exploitation has resulted in some of the greatest disasters in the world in the name of global warming, earthquakes, seasonal imbalances resulting in droughts or excessive rain causing floods. The understanding and sensitivity of the issue brought great concern across the world. The concern for the environmental protection has resulted in demand for environmental justice, enactment and enforcement of environmental protection, regulation laws.
Dr. Saroj kant Choudhary
BHMS,MBA,MPS,PGDIPR Laws, LLB (IIT, Kgp)-pursuing