PRECAUTIONARY PRINCIPLE

SUBMITTED TO:
PROF. HRISHIKESH MANU
FACULTY OF ENVIRONMENTAL LAW
SUBMITTED BY:
SHUBHI

FINAL DRAFT SUBMITTED FOR THE COURSE OF

ENVIRONMENTAL LAW FOR THE COURSE
BBA LLB.(HONS.)

september , 2018

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

1
 ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have ever faced. Though

this project has been presented by me but there are many people who remained in veil, who

gave their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher PROF. HRISHIKESH MANU without

the kind support and help of whom the completion of the project was a herculean task for me.

She donated her valuable time from her busy schedule to help me to complete this project and

suggested me from where and how to collect information and data.

I am very thankful to the librarian who provided me several books on this topic which proved

beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was very

useful and could not be ignored in writing the project. I want to convey a most sincere thanks

to my parents for helping me throughout the project.

SHUBHI MISHRA

ROLL NO. 1439

7th SEMESTER

Objectives of the Study:

To study all the aspects environmental law precisely the precautionary principle.

2
Hypothesis:
The general view of the researcher is to find that should precautionary principal be a statutory requirement
universally.

Research Methodology:
The researcher has used doctrinal method in her research, that is, extensive use of literary sources and materials.
The researcher mainly uses secondary sources to provide substance to the research analysis. In some cases, the
researcher shall be bound to extract materials directly from the literary work of certain authors which the
researcher intend to adequately cite and notify in due course of time.

Sources of Data:
The researcher will collect the data from the following sources:

Secondary Sources: Books

Websites
Articles

Limitations of the Study:

Though this is an immense project and pages can be written over the topic due to time, finance, and territorial
constraints the researcher has been compelled to deal with a limited number of concepts only.

Contents

Objectives of the Study:........................................................................................................................................................ 2

Hypothesis: ............................................................................................................................................................................ 3

Research Methodology: ........................................................................................................................................................ 3

3
Sources of Data: .................................................................................................................................................................... 3

Limitations of the Study: ...................................................................................................................................................... 3

INTRODUCTION................................................................................................................................................................. 5

CHAPTER 1 .......................................................................................................................................................................... 7

INTERNATIONAL AGREEMENTS AND DECLARATIONS. ..................................................................................... 7

CHAPTER 2 .......................................................................................................................................................................... 8

PRECAUTIONARY PRINCIPLE IN INDIA .................................................................................................................... 8

CHAPTER 3 ........................................................................................................................................................................ 10

THE PRECAUTIONARY PRINCIPLE IN INDIAN COURTS .................................................................................... 10

CHAPTER 4 ........................................................................................................................................................................ 16

PRECAUTIONARY PRINCIPLE AS A RULE OF CUSTOMARY LAW .................................................................. 16

CONCLUSION ................................................................................................................................................................... 18

4
INTRODUCTION.
The precautionary principle (or precautionary approach) generally defines actions on issues
considered to be uncertain, for instance applied in assessing risk management. The principle is
used by policy makers to justify discretionary decisions in situations where there is the
possibility of harm from making a certain decision (e.g. taking a particular course of action)
when extensive scientific knowledge on the matter is lacking. The principle implies that there is
a social responsibility to protect the public from exposure to harm, when scientific investigation
has found a plausible risk. These protections can be relaxed only if further scientific findings
emerge that provide sound evidence that no harm will result.

In some legal systems, as in law of the European Union, the application of the precautionary
principle has been made a statutory requirement in some areas of law.

Regarding international conduct, the first endorsement of the principle was in 1982 when the
World Charter for Nature was adopted by the United Nations General Assembly, while its first
international implementation was in 1987 through the Montreal Protocol. Soon after, the
principle integrated with many other legally binding international treaties such as the Rio
Declaration and Kyoto Protocol.

The concept "precautionary principle" is generally considered to have arisen in English from a
translation of the German term Vorsorgeprinzip in the 1980s. In 1988, Konrad von Moltke
described the German concept for a British audience, which he translated into English as the
precautionary principle.

5
The concepts underpinning the precautionary principle pre-date the term's inception. For
example, the essence of the principle is captured in a number of cautionary aphorisms such as
"an ounce of prevention is worth a pound of cure", "better safe than sorry", and "look before
you leap". The precautionary principle may also be interpreted as the evolution of the "ancient-
medical principle" of "first, do no harm" to apply to institutions and institutional decision-
making processes rather than individuals.

In economics, the Precautionary Principle has been analysed in terms of "the effect on rational
decision-making", of "the interaction of irreversibility" and "uncertainty". Authors such as
Epstein and Arrow and Fischer (1974) show that "irreversibility of possible future
consequences" creates a "quasi-option effect" which should induce a "risk-neutral" society to
favour current decisions that allow for more flexibility in the future. Gollier et al. (2000)
conclude that "more scientific uncertainty as to the distribution of a future risk that is, a larger
variability of beliefs – should induce society to take stronger prevention measures today" .

6
 CHAPTER 1
INTERNATIONAL AGREEMENTS AND DECLARATIONS.
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.[6] 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. 1

1
http://www.lumes.lu.se/database/alumni/04.05/theses/rabbi_deloso.pdf
7
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.

CHAPTER 2
PRECAUTIONARY PRINCIPLE IN INDIA
The Indian Judiciary actively supports the Precautionary Principle. In the judicial
pronouncement of Vellore Citizens Welfare Forum v UOI, the Court opined that

8
 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.2
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.

2
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).
9
 CHAPTER 3

THE PRECAUTIONARY PRINCIPLE IN INDIAN COURTS

AP POLLUTION CONTROL BOARD CASE

VELLORE CITIZEN

NARMADA BACHAO NADOLAN.

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

10
 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.3

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.

he 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.

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

3
] 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
11
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

12
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

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.
13
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 of sustainable development’, ‘imperative for preserving ecology,’ and
‘part of the 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.
14
 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.4

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’.Many policymakers 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.

4
ENCIRONMENTAL LAW BY GURDEEP SINGH.
15
 CHAPTER 4

PRECAUTIONARY PRINCIPLE AS A RULE OF CUSTOMARY LAW

The status of the precautionary principle as a rule of customary law is significant because a

rule of customary law creates obligations for all states, except those that have persistently

objected to the practice and its legal consequences. The statute of International Court of Justice

defines customary international law as “evidence of general practice accepted as law” . The

Nicaragua case and the North Sea Continental Shelf case complement this article of the
16
 Statute and clarify two requirements of customary international law. According to

International Court of Justice, customary international law arises when nations follow a

practice in an extensive and virtually uniform manner and this practice is followed with the

conviction that it is obligatory to do so under international law (opinio juris). 5 Consequently,

the opposition of some states does not interfere with the development of a customary rule .

However, the best indicators of state practice remain the instruments of international law and

state domestic law. Currently, the precautionary principle is used in more than 90 international

declarations and agreements . In this context, the number of ratifications (majority of treaties

are multilateral) and the number of states signing declarations also reflect broad acceptance of

the rule by states . The abundance of treaties and declarations incorporating the precautionary

principle provides at least an estimate of state practice and acceptance, which implies that the

precautionary principle is crystallizing into a rule of customary environmental law. Another

primary indicator of state practice is domestic law. The precautionary principle is widely used

in the domestic environmental law of Germany, Belgium and the Nordic countries (Denmark,

Norway, Sweden, Finland and Island) . In 1992, the principle became part of National Strategy

for Ecologically Sustainable Development in Australia. In 1993, the principle was

incorporated into Australia’s Environmental Protection Act . In 1996, the precautionary

principle was defined in the Oceans Act of Canada]. Even US law makes some indirect

allusions to the precautionary principle (as measures) when dealing with questions of food

safety and air pollution . Furthermore, as a part of environmental impact assessment, the

5
Convention on the Protection of the Marine Environment of the North–East Atlantic: Article 2(2) (a). This Convention is not yet in
force.
17
precautionary principle may be found in the local laws of about fifty countries. These

examples illustrate the wide implementation of the procedural aspect of the precautionary

principle.

CONCLUSION
Apart from being a part of the environmental protection instruments, Precautionary Principle

has also become a crucial part of the Public International Law. With the law gaining significant

momentum in the sphere of sustainable development, it is only inevitable that concept such as

these is accepted by all the nations. Precautionary Principle, a fundamental element of

sustainable development has been discussed much in the legal context, but improvements are
18
still needed in implementation. Many countries still do not follow such principles because they

believe that it’ll add to unnecessary expenditures and cost, to react proactively, without any

concrete data. They believe in relying upon conclusive data to formulate plans and policies.

This is done with the view that when plans and policies are made on the basis of conclusive

data, they are at their optimal level.

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.

It is clear that the law on sustainable development is gaining momentum at local, national,

regional, and international levels. While the four fundamental elements of sustainable

development – the precautionary principle, intergenerational and intra generational equity, the

conservation of biological diversity and ecological integrity, and the internalisation of

environmental costs – have been much discussed and promulgated in various international and

national legal contexts, there is still a long way to go in terms of their implementation.

19
The role of the judiciary in relation to the law of sustainable development is thus of the greatest

importance[]. As an offshoot of the judicial recognition the National Environmental Policy

adopted precautionary principle as a guiding principle[lxxiii]. However, it is still a long way

to go before the PP takes its rightful place in Indian environmental laws and even more

importantly gets effectively implemented.

BIBLIOGRAPHY

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).

20
[4]

http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_10jan06_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.

21