NAME :-TEJESHWAR PANDEY

PRN:-20010422138
SECTION :-D
BATCH :-2020-2025
SUBJECT :-ENVIRONMENTAL LAW
 DEVELOPMENT AND APPLICATION OF
PRECAUTIONARY PRINCIPLE IN INDIA

Abstract
The Precautionary Principle has been adopted in many environmental
instruments all over the world. The principle states that if there is a
risk of severe damage to the environment absence of any scientific or
conclusive proof is not to be given as a reason for the inaction. The
Precautionary Principle shifts the burden of proof on the shoulders of
the person who is arguing that the activity he is carrying out is not
harmful. The principle follows the approach of being safe than being
sorry. This principle is in contrast to the wait-and-watch approach
which is generally followed in environmental issues. The
Precautionary Principle encourages “action taking” to antedate and
prevent damage to the environment. The Precautionary Principle is
one of the most popular legal approaches in the field of environmental
law today. Whereas traditional approaches are reactive, this approach
encourages “action taking” to antedate and prevent damage to the
environment.
Many times the scientific evidence do not give any conclusive
information. In such a case risk assessment should be done and a
balance should be maintained between protection of the environment
and unnecessary and extensive restrictions. In such a scenario,
Precautionary Principle is used. While applying the principle, it is
very crucial to understand the consequences of applying it.
INTRODUCTION

Origin of Precautionary Principle

To understand the concept of Precautionary Principle, it is very
important that we should go through a brief history of how the
Precautionary Principle originated. In one of the Parliamentary Earth
Summit of UN Conference on Environment and Development, Dalai
Lama stated that Tibet may be the first country in which the principle
originated because from the seventeenth century itself Tibet started to
take proactive measures so save the environment. For them, the
struggle between protection of environment and safeguard of human
health gave rise to the concept.

Under the contemporary public policy, this principle can be traced

back to the 1950s under the name of “safe minimum standards of
conservation.” Some major environmental issues in the 1960s, for
instance, the DDT (dichloro diphenyl trichloroethane) case paved the
way for the principle based on the idea of assimilative capacity. This
idea stated that environment and humans can tolerate disturbances
only to a certain extent, and this amount can be calculated and
governed. Then in the 1970s, the Germans probably became the first
country to provide for a precautionary approach in its legislations and
policies towards the protection and the conservation of the
environment.

Definition of Precautionary Principle

There are two definitions of Precautionary Principle which are widely
accepted-

1. The first definition is given in the Rio Declaration of 1992. It

states that in order to protect the environment every state
should apply the principle to the best of their abilities. When
there are chances of irreversible and serious damage, lack of
full scientific should not be the reason for the postponement
of preventive measure.
2. The second definition is based on the Wingspread Statement
on Precautionary Principle, which was given 1998. This
definition states that when there is a threat to the environment
and human health, precautionary measures should be taken
 even when full scientific data is not available. The principle
should examine the alternative options available (even the
option of taking no action).
There is a significant difference between the two definitions. The first
definition talks about “irreversible and serious damage, but the second
definition talks about “harm” to the environment and human health in
general. Thus, the scope of the second definition is wider.

Precautionary Principle-International Instruments

The Precautionary Principle appeared on the global stage in the
1980s. It was first acknowledged formally in the Preamble to the
Vienna Convention for the Protection of the Ozone Layer. The parties
who were signatory to the Convention acknowledged the
precautionary measures which have already been taken at the
international and the national levels to protect the ozone
layer. Banking on this recognition, the Montreal Protocol was
introduced in 1987 where the signatories agreed to undertake
precautionary measures to control the emission of substances which
depleted the ozone layer. In this Protocol also, measures taken earlier
to reduce the emission of chlorofluorocarbons were recognized. The
need to adopt which were precautionary in nature was also recognized
in the Second North Sea Conference Ministerial Declaration (the
London Declaration) in 1987. At the Third Sea Conference, the
parties came to a decision that they would continue applying
preventive measures to prevent damage, even there is no scientific
evidence. The precautionary principle was also included in the
Convention on the Protection of the Marine Environment of the
North-East Atlantic, which was introduced in the year 1992.

The Bergen Ministerial Declaration on Sustainable Development in

the Economic Commission for Europe Region, 1990 stated that the
precautionary principle has a very crucial link with the concept of
sustainable development. The Convention on the Ban of Import into
Africa and the Control of Transboundary Movement and Management
of Hazardous Wastes within Africa, 1991 (Bamako Convention)
stated that the signatories should adopt and implement precautionary
and preventive measures to prevent the release of such substances in
the environment which harms the environment, even when there is
scientific proof available that such substances are causing the harm.

In the year 1992, the signatories of the Helsinki Convention on the

Protection and Use of Transboundary Watercourses and International
Lakes was introduced. The signatories to this Convention decided to
be guided by the Precautionary Principle.

The year of 1992 was very important in this regard. There was a
convergence of the precautionary principle and the climate change
issue in International Law. The Precautionary Principle was
acknowledged on an international level when the UN Framework
Convention on Climate Change was adopted.

Precautionary Principle and Indian Law

The Indian Judiciary actively supports the Precautionary Principle. In
the judicial pronouncement of Vellore Citizens Welfare Forum v
UOI,[13] the Court opined that sustainable development t is the need
of the hour. The court emphasized on the fact that there should be a
balance between economic growth and protection of the environment.
The Court rejected the traditional concept that ecology and
development are opposed to each other. The Court also reviewed the
development of the concept of sustainable development in the
international sphere. The Court referred to the Stockholm Declaration
of 1972, Caring for Earth, 1991, the Earth Summit, and the Rio
Declaration of 1992 and opined that the Precautionary Principle and
the Polluter Pays Principle are indispensable features of Sustainable
Development. In the case of M C Mehta v Kamal Nath, the Supreme
Court reiterated the decision given in Vellore Citizens Welfare Forum
case stating that the Precautionary Principle is a part of the
environment law in India.

The Precautionary Principle was very comprehensively reviewed by

the Apex Court in the case of AP Control Pollution Board vs. Prof M
V Nayadu. The Court stated that it is better to go wrong in taking
caution and prevent environmental harm rather than waiting for the
issue to materialize into an irreversible problem. The Court opined
that the Precautionary Principle was evolved because of lack of
scientific certainty only, and the principle involves anticipating the
harm the environment may suffer and act on the basis of that. In the
case of Narmada Bachao Andolan v UOI, the Apex Court very clearly
laid down the proposition of law, and specifically of Precautionary
Principle. The Court stated that when an issue pertains to
environmental damage, the onus of proof is on the person who is
contending that the activities carried on by him are not harmful to the
environment. The party who is giving such contention also has to
satisfy the Court of the same, that there will be no environmental
degradation due to his activities.

APPLICATION OF PRECAUTIONARY PRINCIPLES

In the Vellore case1 , the Supreme Court was presented with the issue
regarding the discharge of untreated chemical effluents, which was
causing harm and polluting the River Palar. The Supreme Court was
shown clear evidence as to the cause of the pollution, which was the
discharge of untreated chemical waste from the tanneries. It was also
scientifically proven that the discharge was the cause of the pollution,
and hence there was no ‘scientific uncertainty’ attached to it. The
laws laid down at the time also opposed the action in question. The
Supreme court, therefore, applied the precautionary principle. After
this judgement, there was a consistent application of this principle
similarly. The court would apply this principle in the cases where it
was certain or foreseeable that the action in question would cause
damage to the environment or the people.

A similar application of the precautionary principle was observed in

the M.C Mehta vs Union of India (Taj Trapezium) case2, where it was
shown that pollution was being caused by the industries which were
near the Taj Mahal. This pollution was being caused as the industries
were using coal for their industrial activities. the court stated, “It is

1 Vellore Citizens’ Welfare Forum v. Union of India and others, (1996) 5 S.C.C.
2
M.C Mehta v. Union of India, 1988 SC 1037.
rather proved beyond doubt that the emissions generated by the use of
coke/coal by the industries in the TTZ are the main polluters of the
ambient air.” Hence, there was no scientific uncertainty about the
cause of the pollution. Accordingly, the precautionary principle was
again applied in this case, and the court also shifted the burden of
proof upon the industries. Another case where we can see a similar
application of the precautionary principle is the A.P. Pollution Control
Board Case3. Similar to the other cases, the Supreme Court was given
evidence that the construction of a hazardous industry near a water
reservoir would be extremely harmful. This principle was applied in
this case as well as there was no scientific uncertainty as to the
damages which would have been caused. In these cases, it can be
observed that the precautionary principle was being consistently
applied where there was enough evidence that showed to prove that
there was no scientific uncertainty as to the cause of the
damage/pollution. The inconsistency in the application of this
principal was first observed in the Narmada Bachao Andolan (NBA)
case4 . In this case, a PIL was filed to oppose the construction of a
huge dam on the Narmada River as the environmental impacts were
extremely severe. The Supreme Court was shown evidence that such a
construction would result in harmful ecological damage. This
construction was also causing the uprooting of many tribal and
Adivasi settlements which had been staying in those areas for years.
Evidence was also shown as to the damage and trauma this
construction was causing to these settlements. The Supreme Court,
however, did not apply the precautionary principle. Instead, the court
applied the principle of sustainable development. The Supreme Court
justified its decision by stating that “we cannot presume that there will
be ecological damage just merely on the basis that the construction of
the dam will result in some changes” This clearly shows that the court
was favouring the construction rather than concerning the
environment. This judgement caused there to be an inconsistency in
the judicial approach with respect to the application of the
Precautionary Principle

3 Andhra Pradesh Pollution Control Board v. MV Nayudu, 1999(2) S.C.C 718

4 Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.
ANALYSING THE APPLICATION

The main criticism related to the precautionary principle is that it is

ill-defined and isambiguous in nature. The precautionary principle
tells us only what not to do without defining the term ‘serious threat’,
which weakens the legal certainty that leads to inconsistent and
unprincipled decisions. But it is not only the principle that causes the
inconsistency; it is also the application of this principle that must be
blamed for it. This ambiguity and ill-defining character of the
precautionary principle has adversely affected the outcome of the
litigations in India and has led to the political economy of the
environmental dispute. This can be understood by comparing the
Vellore case and the Narmada Bachao Andolan (NBA) case, where
contrasting judicial decisions were given by the Supreme Court. This
comparison also shows the inconsistency of the judicial approach
while applying the precautionary principle. In the case of the NBA,
the precautionary principle was not applied by the Supreme Court as
we can see that already a large amount of money was spent initially. It
should also be noted that the actual gainer from the Dam was the
Gujarat Industries rather than the people residing in that area, as the
construction of such a huge project would definitely result in some
significant earnings also, as this Dam was going to be the Second
largest Dam in the world which can be seen as the factor that led to
the inconsistent approach. It is also pertinent to note that the victims
were the indigenous people living there for almost a decade
Therefore, it would not be wrong to say that their limited political
agency and the adverse financial conditions have affected the
decision. The ‘balancing out’ technique used by the court to justify
the environmental damages as well as the harms caused to the
settlements by citing this construction as a necessary project for
economic development was seen to be heavily inconsistent with the
ongoing application of the precautionary principle. Apart from this, in
the case of Vellore, we see that the earners were the foreign entities
from those tanneries. There were no strings attached to this project by
the State, nor there was any national or international pride at stake.
Hence, on one side, the ambiguity can benefit the sufferers and
protect the environment from any harm, but on the other side, there is
the NBA case, which suggests that there is a need for parameters in
the principle. These parameters will help ensure that the ambiguity
has been removed and will also bring consistency in the application of
this principle. While referring to the Brundtland Report, The Rio
Declaration and Agenda 21, the Supreme Court derived three
elements for the ‘precautionary principle’. This principle plays a
significant role on a national as well as international level. The reason
behind such emphasis is that this principle helps courts take action to
lessen or prevent the actions that are causing or will cause indefinite
or irreversible harm to the environment and human life. The beauty of
this principle is that such measures can be taken even when there is
scientific uncertainty about the damage which the action in question
will cause. The Indian Courts have made the precautionary principle
extremely broad and ambiguous in nature by broadening the
implication of the principle. The nature of the application of the
principle of precaution by the Indian Courts is such that the principle
takes a precautionary role in the cases where there is scientific
uncertainty, while in the cases where there is irreversible damage or
no scientific uncertainty, the principle takes a preventive role. This is
problematic as the application of this principle is difficult in cases
where there isn’t well-established evidence despite there being
damage or other such ambiguous cases. As there are many new
emerging types of pollutions, environmental hazards, etc., the impacts
of which can be new and unforceable to us in the current times, the
inconsistent implication of this principle may cause unprecedented
harm to the future generation

CONCLUSION

This inconsistent approach by the Supreme Court has raised many

doubts regarding the application of the precautionary principle. In
today’s world, the judgements given out by the judges have a massive
impact on not only the current society but also the future generations
as the precedents set must be considered. The judges, while giving
judgements, especially those related to the environment, should not
only consider the factors which are in play now but also consider the
implications that their decisions will have on future generations. It is
essential that the courts should not be inconsistent while applying the
principles as it is their responsibility to maintain consistency among
the cases which have been delivered. As observed in this paper, the
inconsistent implication of the precautionary principle has caused a
vague and subjective difference between precaution and prevention,
and this ambiguity can be considered a potential threat for future
judgements. The threat of climate change is very real, and the
environmental changes which have been happening around the world
are slowly starting to show the horrors caused if we are careless about
the environment. We must keep in mind that if we keep on harming
the environment in the name of social development, we will end up
inflicting irreversible damage upon the earth.

This is why it is essential for judges to weed out such inconsistency.

Also, the Supreme Court's shifting stance on environmental issues is
cause for concern today when environmental deterioration has drawn
worldwide attention. Let us hope that the Indian judiciary does not
overlook the importance of environmental protection alongside
development in this period of development.

Judiciary plays an immense role in linking the law with the concept of
sustainable development. So, it is vital that the judiciary also supports
this kind of approaches. The support of the judiciary is required so
that protection of environment gets a legal sanctity. As an offshoot of
legal recognition, the Precautionary Principle was also adopted by the
National Environmental Policy as a guiding principle. However, there
is still a long way to go for the Precautionary Principle to gain its
rightful place in the field of environmental law. And till it does not
get its rightful place, it will be very difficult to implement it.

REFERENCES

[1] http://www.lumes.lu.se/database/alumni/04.05/theses/rabbi_deloso.pdf

[2] http://coe.mse.ac.in/dp/Precaution-Kavi.pdf
[3] Address of His Holiness the XIV Dalai Lama on 7 June 1992 to the Parliamentary Earth
Summit (Global Forum) of the United Nations Conference on Environment and Development
(UNCED) held in Rio de Janeiro, Brazil (Environment and Development Desk, 2004: 26).

[4] http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_10
jan06_preston.pdf

[5] Principle 15 of Rio Declaration.

[6] Vienna Convention for the Protection of the Ozone Layer: Preamble.

[7] Montreal Protocol on Substances that Deplete the Ozone Layer: Paras 6 and 8.

[8] Second North Sea Conference Ministerial Declaration, 1987: Articles VII, XV(i) and
XVI, http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_
10jan06_preston.pdf

[9] Convention on the Protection of the Marine Environment of the North–East Atlantic:
Article 2(2) (a). This Convention is not yet in force.

[10] Bergen Ministerial Declaration on Sustainable Development in the Economic

Commission for Europe Region: para 7.

[11] Bamako Convention: Article 4(3) (f).

[12] Helsinki Convention on the Protection and Use of Transboundary Watercourses and
International Lakes: Article 2(5) (a).

[13] AIR 1996 SC 2715.

[14] (1997) 1 SCC 388.

[15] AIR 1999 SC 812.

[16] AIR 2000 SC 3751.