Viability of the Precautionary Principle in India
[Taj Trapexium Case- M.C. Mehta v UoI - a vehement manifestation of the precautionary principle]
A very important constituent of the international environmental law regime, the Precautionary Principle, as gauged under Principle 15 of Rio Declaration, essentially espouses that a lack of full scientific certainty, when undertaking a project, in situations where there are threats or risks of environmental damage, shall not be used as a reason for postponing cost-effective measures. In India, the precautionary principle was accepted along with the ‘polluter pays’ principle in the Sludge Case and the Vellore Citizens Forum Case, where the Court directed the assessment of the damage to ecology and environment imposed on the polluters responsibility of paying compensation. The Supreme Court was appraised of the pollution caused by the enormous discharge of untreated effluents by tanneries and other industries in the state of Tamil Nadu. The petitioner highlighted the potential harm that can be caused and that the untreated effluents would contaminate the water resulting in non-availability of potable water, thereby causing immense harm to the agricultural practices undertaken by the farmers. The Court iterated that “the precautionary principle and the polluter pays principle have been accepted as a part of the law of the land. Under Article 21, 47, 48A and 51A(g) of the Constitution of India and the Water Act, Air Act and Environmental Protection Act, this approach has been subsumed.”
Legality of Precautionary Principle
Divulging further into the legality of the Precautionary Principle, the Court considered and accepted the principle as a part of customary international law thus making it enforceable under the domestic legal system. Similarly in the case of Vijaynagar Education Trust v Karnataka State Pollution Control Board, Karnataka, the Karnataka High Court accepted that the precautionary doctrine is now part and parcel of the Constitutional mandate for the protection and improvement of the environment. Thereafter, the Precautionary Principle came to be directly applied in the case of M C Mehta v Union of India for protecting the Taj Mahal from air pollution and in the case of Andhra Pradesh Pollution Control Board v MV Nayudu. In the latter, the apex court observed that it is better to err on the side of caution and prevent the consequent environmental harm rather than run the risk of irreversible damage.
The Court traced the development of the precautionary approach by mentioning that earlier the concept was based on the ‘assimilative capacity’ rule as provided under Principle 6 of the Stockholm Declaration of the UN Conference on Human Environment, 1972, whereby the principle already assumed that science will be able to provide the policy-makers with the information and the respective necessary technical expertise would be available when environmental harm was predicted and there would be sufficient time to act so that such harm can be avoided. However, it was in 1982 when the United Nations General Assembly Resolution on World Charter for Nature where the emphasis shifted to ‘Precautionary Principle’ which is further showcased in Principle 15 of the Rio Declaration as mentioned above.
Burden of Proof
The Courts implied that the Precautionary Principle led to the special principle of burden of proof in environmental cases. Often termed as the reversal of burden of proof, it said that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden showing in the absence of a ‘reasonable ecological or medical concern.’
Relocation: A Precautionary Approach
Sometimes, the Courts also undertake the policy of relocation when practically implementing the precautionary approach in India. In the Calcutta Tanneries Case, the Court ordered the polluting tanneries (almost 550 in number) operating in the city of Calcutta (present day Kolkata), to relocate themselves from their present location and make a shift to a new leather complex set up by the West Bengal Government. The Courts have also been able to take stern steps where it has stopped construction of or simply cancelled the projected under the implementation of precautionary approach. The Supreme Court of India in the case of Badhkal v Surajkund Lakes, while interpreting the Precautionary Principle in the present case, made it mandatory for the State Government to anticipate, prevent and attack the very causes of environmental degradation. It further ordered that in order to protect the two lakes from any sort of environmental harm, it was necessary that the construction activity be limited in the close vicinity of lakes, thus stopping the project from expanding.
Thus, the Precautionary Principle or rather the precautionary approach, is a practical tool of environment management that is interpreted and applied differently depending upon the context. The context hugely matters in this regard because depending upon whether the principle is being used as a ‘sword’, to challenge a decision in relation to which the risks are alleged to be too great- or as a ‘shield’, to protect a decision that attached too much weight to residual risks.
Hence, though the principle of precautionary approach might have different versions according to the various regimes it is followed in, two constant dynamics of the principle remain: a) the existence of a scientific basis to prove a claim and b) the existence of potential harm or risk that will lead to environmental degradation. The principle has been able to save the environment in a number of cases as mentioned above, globally as well as in India and hence must remain a basic and constituent principle of the Environmental Law Regime.
Graduating in the year 2019 from NUSRL, I worked for 13 months at Export-Import Bank of India as a legal officer. I have always had an interest in Environmental Law whereby I was an octa-finalist in the 21 Stetson International Environmental Law Moot Court Competition and have also completed an online course on the same subject from University of North Carolina.