THE PRECAUTIONARY PRINCIPLE IN THE INDIAN COURTS
The most common definition of precautionary principle can be found in the Rio Declaration. U.N. reports, states that, “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”
Although, it is true that the basis of environmental damage should be scientific, but if there is a threat to the environment, a corrective action must be taken and lack of certainty will not lead to failure to act.
Both international environmental law and the domestic law of different countries have acknowledged the precautionary principle. It has been incorporated into many international conventions and national and local legislations. It has also been raised in many cases before the international and domestic courts.
To fathom the concept of precautionary principle, it is first important to understand the difference between prevention and precaution. Precaution deals with cases where there no damage has yet occurred and neither a proof of occurrence of the same is present. On the other hand, prevention is based on a definite risk. Precaution does not require such definite risk; mere suspicion of a risk is adequate for precaution. International law acknowledges these two as two diverse principles.
As far as the interpretation of the precautionary principle in concerned, it is ambiguous as to what amount of risk prompts the application of it. The stronger version of this principle states that, “the potentially risky activity is banned until the proponent of the activity demonstrates that it poses no (or acceptable) risk.” In other words, the burden of proof shifts to the proponent of the activity to establish that the activity is benign. The opponents argue that the shift in the burden of proof impedes innovation, creativity and development.
Perhaps, this is the reason behind this principle not having a strong support in international law. International law has not unequivocally declared this principle as a customary international law.
The Indian courts have designed a set of principles that govern Environmental Law in India. Article 21 of the Indian Constitution deals with right to life. In Subhash Kumar v. State of Bihar, the Supreme Court of India has extended this Article to include ‘the right of enjoyment of pollution free water and air.’ Indian courts have adopted many international and foreign environment law principles. The precautionary principle is one of these principles. The Court requires strict application of all these principles for the protection of the environment.
In the Vellore Citizens’ Welfare Forum case(1996) 5 SCC 647 which is a landmark judgement in environmental law in India, the precautionary principle was applied strictly. The Supreme Court identified three elements to this principle. The first element is that it is the responsibility of the State government and the statutory authorities to prevent, anticipate and attack the causes of detriment to the environment. According to the second element, lack of scientific certainty must not be used as a defence for inaction in cases of environmental degradation. This was borrowed from the Rio declaration. The third element shifts the burden to prove that the activity is harmless to the environment to the industrialist. The Court acknowledged in this case that the precautionary principle is an indispensable feature of sustainable development.
In the case of T.N. Godavarman Thirumalpad v. UOI and Others 1996) 5 SCC 647 the court said that in the application of sustainable development, progress and environmental protection must be balanced. This is known as the principle of proportionality.
The Vellore citizens’ welfare forum case was filed by a group of citizens to coerce the government authorities to take action against some tanneries which discharged untreated waste thus violating the existing environmental laws. The facts of the case did not indicate a risk to the environment or scientific certainty. But the existing laws prohibited such discharge. The Court reiterated the precautionary principle in this case and also declared it to be a part of both domestic environmental law and custom.
In many succeeding case laws before the court, it reiterated the precautionary principle and emphasised the need for scientific inputs for adequate action against harm to the environment. In most of these cases the court implied that it is better to be safe than sorry.
The main issue in the case of A.P. Pollution Control Board v. M.V. Nayadu (2001) 2 SCC 62 was whether a hazardous industry must be allowed to be established within 10 km of reservoirs used for drinking water. The court held that since the degree of potential risk is so high in this case, therefore, this is exactly where this principle comes into play.
In the landmark judgement of M.C. Mehta v. UOI (1996) 5 SCC 647, the Supreme Court ordered the industries in the vicinity of the Taj Mahal to use natural gas as a substitute of coal/coke as a fuel. The court stated that the pollution must be controlled at any cost. The court also stated that the burden of proof is on the industry to prove beyond reasonable doubt that the use of coke/coal is benevolent for the environment.
In the Vellore citizens’ welfare forum case, the Supreme Court held that the burden of proof that the industrial activity is benign for the environment in on the proponent of the activity. This strict application of the precautionary principle leads to regulatory paralysis. In all subsequent cases, it was assumed that except when the activity is proved to be completely benign for the environment, it is assumed to be harmful to the environment. Industrialists exonerate their burden of proof by depicting the absence of ecological or medical distress.
If the effects of an industrial activity is known, then the precautionary principle is not invoked. Rather, the principle of sustainable development is applied. The Bombay High Court in the case of Bombay Environmental Action Group v State of Maharashtra, held that the precautionary principle had no application in this case as there was no scientific uncertainty.
It is important to discuss the legal status of the precautionary principle. In the Vellore case, it was held that both precautionary and polluter pays principle were domestic law as well as customary international law. Articles 21, 47, 48A and 51A(g) of the Indian Constitution along with statutory environmental laws are sufficient to prove it domestic law. The Court said that it is a well-established fact that Sustainable Development is part of a customary international law, though its features are not yet determined. Also, there are many international instruments proving precautionary principle to be an international law such as the Rio Declaration, Agenda 21, and the Brundtland Report.
Although there are many definitions of precaution, the most cited and least controversial is the definition in the Rio Declaration that provides:
‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’
Prevention is based on the concept of certain risk while precaution is distinguished by the degree of uncertainty that abounds. Precaution is not premised on a perfect understanding of any given risk, rather it is sufficient that a risk is suspected, conjectured or feared. Precaution is triggered by risk potential, and it often requires a risk analysis. Since precaution leaves behind the realm of rational certainty, precaution necessarily gives rise to controversy and its application to conflict.
It is also unclear what consequences the application of this principle has for the burden of proof in discrete cases. In stronger versions of this principle, the potentially risky activity is banned until the proponent of the activity demonstrates that it poses no (or acceptable) risk. In these versions, the burden of proof shifts to the proponent of the activity to demonstrate that the activity is benign, and a standard of proof – acceptable risk, no risk etc.– is set.
The Indian courts have embraced certain principles of international and foreign environmental law - some established and others nascent - to be ‘essential features of sustainable development’, ‘imperative for preserving ecology,’ and ‘part of environmental law of India.’
Third, the Supreme Court in the Vellore Citizens’ Welfare Forum case adopted the controversial strong version of the precautionary principle into Indian law. This case is oft cited in the academic literature and is universally admired as a landmark judgment illustrative of the creativity, intellectual openness and mettle of Indian Courts. The Vellore case as well as the case law it has spawned therefore merits careful scrutiny.
In Vellore Citizens’ Welfare Forum, the Supreme Court identified three elements to the precautionary principle. The first is that ‘environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.’ The second, borrowing from the Rio principle formulation, is that ‘where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation’. The third element shifts the burden of proof to the developer/industrialist.
The Vellore Citizens’ Welfare Forum case is telegraphic in its treatment of the precautionary principle. It does not raise or address any of the interpretational questions that plague the precautionary principle in international environmental law. It does not in the municipal context clarify what degree of risk triggers application of this principle, what specific action should be taken when the application of this principle is triggered and the extent to which cost plays a role in the choice of measures to be taken in response to the risk.
The Court does, however, import the balancing exercise inherent in the sustainable development principle into the application of the precautionary principle. In the Vellore Citizens’ Welfare Forum case it held that the precautionary principle and the polluter pays principles are ‘essential features of sustainable development’.
Although the NGT is required to apply the precautionary principle in reaching decisions, this principle is neither relevant nor necessary in the context of its exercise of jurisdiction, which in any case is extensive.
In the Vellore Citizens' Welfare Forum case the Supreme Court held the precautionary and the polluter pays principles are part of the domestic environmental law, as well – arguably – as customary international law. In the Court’s reasoning Articles 21, 47, 48A and 51A(g), as well as India’s network of statutory environmental laws, were sufficient to render the precautionary and the polluter pays principles part of the domestic environmental law. Further, the Court declared that ‘sustainable development as a balancing concept between ecology and development has been accepted as a part of the Customary International Law although its salient features are yet to be finalized by international law jurists’.
This analysis of the case law on the precautionary principle reveals the following. First, that the courts often engage the precautionary principle when the background conditions for its engagement (viz scientific uncertainty) are not met. Second that the courts are in reality engaging the preventive principle in as far as they are crafting responses to known (not unknown or unknowable) risks. In other words, the courts while they cite the precautionary principle, are in fact engaging prevention broadly conceived rather than precaution narrowly conceived. Third, they treat the notions of sustainable development and precaution/prevention as a fungible mix of elements, justifying, therefore, a balancing exercise between development and environmental concerns and priorities. While such a balancing exercise may be essential and inevitable in environmental cases, invoking the precautionary principle permits the courts to shift the burden of proof to the industrialist, and fundamentally change the dynamics of the decision-making process.
The precautionary principle has been defined in many international treaties and domestic legislation. The application of principle requires interpretation of it by the policymakers. The absence of a widely agreed upon definition undermines the precautionary principle. The different interpretation of the principle leads to decision makers responding differently to different industrial activities.
To apply to implement precautionary effectively, its suitable place must be found in the intersecting spheres of politics and science. The most important factor to be taken into account is the degree to which science should drive policymaking. The crux of the principle is the relationship between the expert knowledge of scientists and the value choices of public officials.
The definition of the precautionary principle in various international instruments such as the Rio Declaration includes the phrase ‘lack of certainty’. This implies that there are cases where there can be full certainty. However, the policymakers as well as the scientists must accept that uncertainty is an inevitable part of environmental policymaking.
Another fact which must be acknowledged while applying the precautionary principle is that is the significance of ignorance. Sometimes, an action is taken based on notional threats to the environment without a proper risk assessment.
Many scientists have criticised both international and domestic environmental law for undermining the role of science in defining the precautionary principle. Many policy makers argue that precautionary principle is based entirely on legislative and administrative aspects and not concerned with science. However, in reality the principle is not anti-science and depends on science. This disagreement arises because science has failed in providing a full proof protection to the environment.
Author: Navin Kumar Jaggi