Civil liability for environmental damage: an assessment of environmental claims under private and public law in India

The role of civil liability including tort law in addressing environmental claims in India had until recently been minimal.Tort law remedies with its limited scope had not been pursued or seriously considered for environmental claims until the Bhopal gas disaster in 1984-85. It is only after 1995 that tort law remedies have been explored to overcome inadequacies of the existing environmental liability regime based predominantly on public law liability tools in India. .Notwithstanding the difficulties in the use of tort law for addressing environmental claims, in recent years the Supreme Court, and most recently, the Parliament, have categorically re-engaged with tort law to utilise its functions and remedies to address environmental claims. Although the Supreme Court of India has used the public law liability tools to address most environmental claims by recognising a constitutional environmental right, reiterating a constitutional duty and statutory liability it has simultaneously recognized an environmental constitutional tort within the same case. As research indicates, tort law remedies and functions have been increasingly adopted by the Supreme Court to vindicate environmental claims by allowing for compensatory and reparative award of damages. In addition, the National Green Tribunal Act 2010 [NGTA] recognizes civil liability for environmental damage arising from the violation of the seven specific laws enumerated under Act. It allows the victims to seek compensation for personal injury and damage to property arising from violation of the person’s environmental right and/or regulatory laws listed under the Act. This new liability regime for environmental claims, therefore, includes features of public law liability and private law liability for vindication of environmental claims. The mixed liability approach adopted by the Supreme Court as discussed above indicates a reengagement with tort law. In this context, the question that this thesis addresses is the extent and ambit of civil liability and tort law to address environmental claims and interests in India. The thesis proceeds to examine the role, function and nature of tort law within environmental context. It emphasises the inadequacies and gaps within the existing legal liability instruments and processes and highlights the potential advantages, limitations and connections that tort has in dealing with certain environmental claims. It establishes that the manner in which tort functions of compensation and deterrence have become amalgamated with the objectives of environmental law, the boundaries between public and private law have blurred. It is argued that within the current environmental jurisprudence, civil liability instruments including tort can play a positive role to supplement the public law liability tools used to address environmental claims in India.