PRECAUTIONARY PRINCIPLE

Introduction
The precautionary principle states that if there is risk of severe damage to humans and/or the
environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason
for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-
and-see approach to environmental protection. When there is uncertainty regarding the impacts
of an activity, the precautionary principle advocates action to anticipate and avert environmental
harm.

Article 3 of the UN Framework Convention on Climate Change was just one in a long list of
international agreements that contained the precautionary principle, making it one of the most
popular legal concepts in international environmental law today. Whereas traditional regulatory
practices are reactive, precautionary measures are preventive and pre-emptive. In its simplest
form, the precautionary principle (also known as PP) provides that if there is a risk of severe
damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite
scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast
with the traditional reactive wait-and-see approach to environmental protection.

Often available scientific evidence provides us cause for concern but does not give conclusive
information. In such scenarios, risk assessment compels us to strike a balance between the need
to protect health and environment on one hand and the foregone advantages of strict restrictions
that may turn out to be unwarranted. It is in this context the role for precautionary principle (PP)
emerges. While deciding the need and timing of the application of the PP, it is important to
clearly understand the principle and its consequences.1

Origin of the Precautionary Principle

In his address to the Parliamentary Earth Summit of the UN Conference on Environment and
Development, the Dalai Lama of Tibet noted that “in the seventeenth century, [Tibetan
leadership] began enacting decrees to protect the environment and so we may have been one of
the first nations to [enforce] environmental regulations!” The Theravada scriptures of Buddhism
provide the earliest written sources which could accommodate the concept of precaution.
Theravada teaches not to commit harm, the Buddha urging his followers to refrain from
‘unwholesome action’ and monks prohibited from ‘injuring plants and seeds’2.

Undeniably, the origin of the concept of precaution may well be found in the history of
civilization. In the early stage of civilization, humans had a holistic attitude towards nature which
was regarded with sacred veneration. Nature was revered as the provider of life and therefore
exploitation of its generosity was considered unethical. Subsequently, nature’s mystery was
unraveled by the teachings of monotheistic religions and corresponding developments in science.
This elevated the status of humans above the environment. The regard to human life became

1
www.toppr.com
2
Environment and development, UN

1|Page
primordial and gave humans the right to exploit nature without ethical limitation. The struggle to
survive and protect human health led to the early use of the concept of precaution.

Concept and Definition

The term ‘precautionary principle’ had its origin in the German word Vorsorgeprinzip. An
alternative translation of this word would mean ‘foresight principle’ – which could have given an
active and positive impression, as against the reactive and perhaps negative connotation attached
with precaution. Though the principle had its roots in the German environmental policy, it has
entered the centre-stage of the global environmental policy in the past two-and-half decades with
several global environmental treaties invoking the PP for decision making. In simple terms, the
PP conveys the common-sense based advice – to err on the side of caution. The principle intends
to prevent harm to humans, environment, and eco-system at large. Before looking at some of the
widely used definitions of the PP, it would be helpful to understand the context and rationale.

Precautionary Principle in Indian Law

The Indian courts have particularly embraced the precautionary principle.

1) Vellore Citizens Welfare Forum v. Union of India, the petitioners filed a petition in the
public interest under Article 32 of the Constitution of India, directed against the pollution
caused by enormous discharge of untreated effluent by the tanneries and other industries
in the State of Tamil Nadu. The Supreme Court of India noted that:

“Though the leather industry is of vital importance to the country as it generates foreign
exchange and provides employment avenues it has no right to destroy the ecology, degrade the
environment and pose as a health hazard”. The Court recognized that a balance must be struck
between the economy and the environment: It reviewed the development of the concept of
sustainable development in the international sphere, from the Stockholm Declaration of
1972, Our Common Future in 1987 and Caring for the Earth in 1991, to the Earth Summit and
the Rio Declaration in 1992. It went on to state:3

The Supreme Court held that “the precautionary principle and the polluter pays principle are part
of the environmental law of the country”.

2) In M.C Mehta v. Kamal Nath[xlix], the Supreme Court of India affirmed the decision
in Vellore Citizens’ Welfare Forum v Union on India[l] upholding the precautionary
principle as part of the environmental law of India.4

3) AP Pollution Control Board v. Prof. M V Nayudu[lii], the Supreme Court

comprehensively reviewed the precautionary principle. An application was submitted by
a company to the Pollution Control Board for permission to set up an industry for
production on “BSS Castor Oil Derivatives”. Although a letter of intent had later been
received by the company, the Pollution Control Board did not give its no objection
3
www.lawnotes.com
4
www.legalbites.in

2|Page
 certificate to the location of the industry on the site proposed by it. The Pollution Control
Board, while rejecting the application for consent, inter alia, stated that the factory fell
under the red category of polluting industry and it would not be desirable to locate such
an industry in the catchment area of Himayat Sagar, a lake in Andhra Pradesh. The
appeal filed by the company against the decision of the Pollution Control Board was
accepted by the appellate authority. A writ petition was filed in the nature of public
interest litigation and also by the Gram Panchayat challenging the order of the appellate
authority but the writ petition was dismissed by the High Court. On the other hand, the
writ petition filed by the company was allowed and the High Court directed the Pollution
Board to grant consent subject to such conditions as may be imposed by it. The decision
of the High Court was the subject matter of challenge in the Supreme Court of India. The
Supreme Court referred to the difficulty courts face in dealing with highly technological
or scientific data. The Court noted that uncertainty in science in the environmental
context has led international conferences to formulate new legal theories and rules of
evidence. One of these is the precautionary principle.

4) In Narmada Bachao Andolan v. Union of India, the Court was called upon to decide
various legal questions arising from the Sardar Sarovar Project involving the construction
of a dam on the Narmada River. An environmental clearance had been given for the
project. At the time it was granted there was no obligation to obtain any statutory
clearance and hence the environmental clearance granted was essentially administrative
in character. Nevertheless, the environmental clearance was challenged. It was alleged
the necessary particulars in regard to the environmental impact of the Project were not
available when the environmental clearance was given and it therefore could not have
been given. It was further alleged that the execution of the Project, having diverse and far
reaching environmental impact, without proper study and understanding of the
environmental impacts and without proper planning of mitigate measures, was a violation
of fundamental rights of life of the affected people guaranteed under Article 21 of the
Constitution of India. In the course of judgment, the majority noted the submission of the
petitioners that “in cases pertaining to the environment, the onus of proof is on the person
who wants to change the status quo and, therefore, it is for the respondents to satisfy the
Court that there will be no environmental degradation”.5

Polluter Pays Principle

History

The Polluter Pays Principle was first introduced in 1972 by the Organization for Economic
Cooperation and Development (OECD) Guiding Principles concerning International Economic
Aspects of Environmental policies where under the polluter was held responsible for the
environmental damage and pollution. Subsequently, the Rio Declaration laid down the guidelines
for sustainable development meaning thereby a strategy to cater the needs of the present

5
www.lawnotes.com

3|Page
generation without compromising the needs of the future generation. In furtherance of the aim of
sustainable development Rio Declaration Principle 16 of the Rio Declaration enshrined the
Polluter Pays principle stating that the polluter should bear the cost of pollution.6

The Concept

The Polluter Pays Principle imposes liability on a person who pollutes the environment to
compensate for the damage caused and return the environment to its original state regardless of
the intent.

View of the Indian Judiciary

The Indian Judiciary has incorporated the Polluter Pays Principle as being a part of the
Environmental Law regime is evident from the judgments passed.

1) Indian Council for Enviro-Legal Action vs. Union of India7

The Court held that once the activity carried on is hazardous or inherently dangerous, the
person carrying on such activity is liable to make good the loss caused to any other
person by his activity irrespective of the fact whether he took reasonable care while
carrying on his activity. The rule is premised upon the very nature of the activity carried
on.
2) Vellore Citizens' Welfare Forum vs. Union of India 8
The Court interpreted the meaning of the Polluter Pays Principle as the absolute liability
for harm to the environment extends not only to compensate the victims of the pollution
but also the cost of restoring the environmental degradation. Remediation of the damaged
environment is part of the process of 'Sustainable Development' and as such the polluter
is liable to pay the cost to the individual sufferers as well as the cost of reversing the
damaged ecology."
3) The Oleum Gas Leak case (M.C. Mehta vs. Union of India) 9
The Court laid down that an enterprise engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of persons working in the
factory and to those residing in the surrounding areas, owes an absolute and non-
delegable duty to the community to ensure that no harm results to any one on account of
hazardous or inherently dangerous nature of the activity which it has undertaken. The
enterprise is absolutely liable to compensate for such harm and irrespective of all
reasonable care taken on his account. The larger and more prosperous the enterprise,
greater must be the amount of the compensation payable for the harm caused on account

6
https://www.letemps.ch/sciences/aux-origines-crise-ecologique
7
1996(3) SCC 212
8
1996(5) SCC 647
9
AIR 1987 SC 1086

4|Page
 of an accident in the carrying on of the hazardous or inherently dangerous activity by the
enterprise.
4) M. C. Mehta vs Kamal Nath & Ors 10
The Court held that pollution is a civil wrong and is a tort committed against the
community as a whole. Thus, any person guilty of causing pollution has to pay damages
(compensation) for restoration of the environment and ecology. Under the Polluter Pays
Principle, it is not the role of Government to meet the costs involved in either prevention
of such damage, or in carrying out remedial action, because the effect of this would be to
shift the financial burden of the pollution incident to the taxpayer.

Conclusion

Although the Polluter Pays Principle has helped to mitigate the damage being caused to the
environment to some extent, the provision remains an inadequate remedy as ambiguity persists
regarding clear identification of the actual polluter. The polluter may a part of the "production
chain" and it is difficult to impose the liability on such polluter when the courts consider the
parameters of extent and contribution of causing pollution.

DOCTRINE OF PUBLIC TRUST

INTRODUCTION

The doctrine of public trust has evolved over the years to emerge as one of the core principles for
the judiciary to substantiate the legitimacy of governmental action that interferes with the use by
the general public of natural resources. The incorporation of this doctrine into our legal system
has resulted in the imposition of a much required check upon governmental authorities who seek
to divest State control over such natural resources in favor of private parties. Though the origin
of the doctrine can be traced to ancient times and it is of considerable vintage in the United
States, its application in the Indian legal system is a modern development.

Scope and History of Doctrine of Public Trust

The history of the doctrine is traced to the Roman emperor, Justinian. In Book II of his Institutes,
Emperor Justinian proclaims: By the law of nature these things are common to mankind—the air,
running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to
approach the seashore.

10
(1997)1SCC388

5|Page
The public trust doctrine “is based on the notion that the public holds inviolable rights in certain
lands and resources, and that regardless of title ownership”, and that “the state retains certain
rights in such lands and resources in trust for the public.”This conception of public rights has two
ancient bases. “First, under Roman law the air, running water, the sea, and consequently the sea
shore’ were the property of no man but rather were common to all.” “Second, early English
common law provided that title to tidelands had two components”: “the King’s right of jus
privatum, which could be alienated, and the jus publicum rights of navigation and fishing, which
were held by the King in inalienable trust for the public”.

Various Public properties; including rivers, the seashore, and the air, are held by the government
in trusteeship for the uninterrupted use of the public. The Sovereign could not make clandestine
transfer of public trust properties which the public had a right to enjoy to any private parties if
such transfer when affected could interfere with the interest of the public at large.

Concerted efforts have been adopted to incorporate this doctrine to protect an array of public
properties like non traversable waters, public land, and sand parks and to relate it to both public
and private lands. The Supreme Court of California in its celebrated decision in Illinois Central
R.R. Co. v Illinois has broadened the definition of public trust by including ecological and
aesthetic considerations. It would be incorrect to say that public trusts doctrine is not without its
fair share of disapproval. However despite the staunch criticism it is being increasingly related to
sustainable development, the precautionary principle and bio-diversity protection and a host of
other new environmental law principles. The doctrine links the right of public access to public
trusts with a precondition of accountability while making decisive decisions on such resources.
Additionally, not only can the doctrine be put to use for the protection of public from improper
application of planning law but also faulty environmental impact assessment.11

Doctrine of Public Trust and United Nations

The Stockholm Declaration of United Nations on Human Environment clearly indicates this
determining proposition: “The natural resources of the earth, including the air, water, land, flora
and fauna and especially representative samples of natural system, must be safeguarded for the
benefit of present and future generations through careful planning or management, as
appropriate… “

The Doctrine can also be used to influence policy debates and public scoping sessions and
hearings. Through this influence, agencies can be forced to prove that their actions are not
harmful to the environment to that extent that they will result in the destruction of a public
resource. If the agencies fall short of providing a more environmentally benign alternative, then a
Public Trust law suit can be brought up. Such actions often lead to long and arduous law suits
but fortunately many important precedents in this regard have been established.12

The doctrine of Public Trust in the Indian Legal system

11
www.legalbites.in
12
www.legalskills.com

6|Page
The watershed as far as the doctrine of public trust in India came about after the decision of the
Supreme Court in the M.C Mehta v. Kamal Nath case.

1) M.C Mehta v. Kamal Nath13

Justice Kuldip Singh while delivering the judgment relied extensively on the doctrine of
public trust. The case dealt with certain forest land which was given on lease to the Motel
by the state government situated at the bank of River Beas. The area which was
ecologically fragile and full of scenic beauty should not have been permitted to be
converted into private ownership and for commercial gains.

The Judge touched up the history of the doctrine of public trust. He pointed out that the
this ancient Roman Empire legal theory came about on the idea that certain common
properties such as rivers, seashore, forests and air were held by the government in
trusteeship for the free and unimpeded use of the general public. The contemporary
concern about the environment bears a very close conceptual relationship to this legal
doctrine. Under the Roman law these resources were either owned by no one (Res
Nullius) or by everyone in common. Under the English law however the sovereign could
own these resources but the ownership was limited in nature and the crown could not
grant these properties to private owners if the effect was to interfere with the public
interest in navigation or fishing.

The Supreme Court pointed out that our legal system is based on the English common
law which in turn includes the doctrine of public trust intrinsic to its jurisprudence. The
State is the trustee of all natural resources which are by nature meant for the use and
enjoyment of the general public. Public at large is the beneficiary of the seashore, running
waters, airs forests and ecologically fragile lands they have the right to access and
enjoyment of such resources. The state is the trustee to such public resources and
consequently it is under a legal duty to protect the natural resources. These resources
meant for public use cannot be converted into private ownership.

The court also pointed out that if there is a law made by the Parliament or the State
legislature the courts can serve as an instrument of determining the legislative intent in
the exercise of its powers of judicial review under the Constitution.

The court directed and ordered that the public trust doctrine is a part of the law of the
land and that the prior approval granted to the government to lease the forest land for the
creation of the motel is quashed and that the government of Himachal Pradesh shall take
over the areas and restore it to its original natural conditions.

13
(1997)1 SCC 388

7|Page
 Significantly the court also ordered that the motel shall pay compensation by way of cost
for the restitution of the environment and ecology of the area. The court also asked the
motel to show cause as to why pollution fine in addition be not imposed on the motel.

2) M.I Builders v. Radhey Shyam Sahu14

The third case and perhaps one of the decisive case to deal with in this regard is,M.I.
Builders v Radhey Shyam Sahu, where the Supreme Court has applied the public trust
doctrine.

The appeal was directed against the judgment of a Division Bench of the High Court of
Judicature at Allahabad. By a common judgment in three writ petitions, High Court
speaking through Shobha Dixit, J. held that the decision of the Lucknow Nagar
Mahapalika (‘Mahapalika’ for short), also now called Nagar Nigam or Corporation,
permitting M.I. Builders Pvt. Ltd. (the appellant herein) to construct underground
shopping complex in the Jhandewala Park situated, Lucknow, was illegal, arbitrary and
unconstitutional. Writ of mandamus was issued to the Mahapalika to restore back the
park in its original position within a period of three months from the date of the judgment
and till that was done, to take adequate safety measures and to provide necessary
safeguard and protection to the public, users of the park. High Court had noticed that the
fact that the park was of historical importance was not denied by the Mahapalika and also
the fact that perseverance or maintenance of the park was necessary from the
environmental angle and that the only reason advanced by the Mahapalika for
construction of the underground commercial complex was to ease the congestion in area.
On taking notice of the ground situations the court said that the public purpose, which is
alleged to be served by construction of the underground commercial complex, seemed
totally illusory.

On Appeal the court held that the facts and circumstances when examined point to only one
conclusion that the purpose of constructing the underground shopping complex was a mere
pretext and the dominant purpose was to favor the M.I. Builders to earn huge profits. In
depriving the citizens of Lucknow of their amenity of an old historical park in the congested area
on the spacious plea of decongesting the area Mahapalika and its officers forgot their duty
towards the citizens and acted in a most brazen manner. By allowing the construction
Mahapalika had deprived its residents as also others of the quality of life to which they were
entitled to under the Constitution and the Act. The agreement smacks of arbitrariness, unfairness
and favoritism. The agreement was opposed to public policy. It was not in public interest. Whole
process of law was subverted to benefit the builder.

14
AIR 1999 SC 2468

8|Page
 BIBLIOGRAPHY
1) https://www.lawteacher.net/free-law-essays/public-law/doctrine-of-public-trust.php

2) https://www.mondaq.com/india/Environment/645232/Polluter-Pays-Principle

3) https://www.lawctopus.com/academike/precautionary-principle/

9|Page