What is Impact Assessment?

Impact assessments are carried out to assess the consequences of individual projects
-- Environmental Impact Assessment -- or of policies and programmes -- Strategic
Environmental Assessment.
Environmental Impact Assessment

Environmental Impact Assessment (EIA) is a process of evaluating the likely environmental

impacts of a proposed project or development, taking into account inter-related socio-
economic, cultural and human-health impacts, both beneficial and adverse.
UNEP defines Environmental Impact Assessment (EIA) as a tool used to identify the
environmental, social and economic impacts of a project prior to decision-making. It aims to
predict environmental impacts at an early stage in project planning and design, find ways and
means to reduce adverse impacts, shape projects to suit the local environment and present the
predictions and options to decision-makers. By using EIA both environmental and economic
benefits can be achieved, such as reduced cost and time of project implementation and
design, avoided treatment/clean-up costs and impacts of laws and regulations.
Although legislation and practice vary around the world, the fundamental components of an
EIA would necessarily involve the following stages:

a. Screening to determine which projects or developments require a full or partial

impact assessment study;
b. Scoping to identify which potential impacts are relevant to assess (based on
legislative requirements, international conventions, expert knowledge and public
involvement), to identify alternative solutions that avoid, mitigate or compensate
adverse impacts on biodiversity (including the option of not proceeding with the
development, finding alternative designs or sites which avoid the impacts,
incorporating safeguards in the design of the project, or providing compensation
for adverse impacts), and finally to derive terms of reference for the impact
assessment;
c. Assessment and evaluation of impacts and development of alternatives , to
predict and identify the likely environmental impacts of a proposed project or
development, including the detailed elaboration of alternatives;
d. Reporting the Environmental Impact Statement (EIS) or EIA report ,
including an environmental management plan (EMP), and a non-technical
summary for the general audience.
e. Review of the Environmental Impact Statement (EIS), based on the terms of
reference (scoping) and public (including authority) participation.
f. Decision-making on whether to approve the project or not, and under what
conditions; and
g. Monitoring, compliance, enforcement and environmental auditing. Monitor
whether the predicted impacts and proposed mitigation measures occur as
defined in the EMP. Verify the compliance of proponent with the EMP, to ensure
 that unpredicted impacts or failed mitigation measures are identified and
addressed in a timely fashion.

Strategic Environmental Assessment

Sadler and Verheem (1996) define Strategic Environmental Assessment (SEA) as the
formalized, systematic and comprehensive process of identifying and evaluating the
environmental consequences of proposed policies, plans or programmes to ensure that they
are fully included and appropriately addressed at the earliest possible stage of decision-
making on a par with economic and social considerations.

Since this early definition the field of SEA has rapidly developed and expanded, and the
number of definitions of SEA has multiplied accordingly. SEA, by its nature, covers a wider
range of activities or a wider area and often over a longer time span than the environmental
impact assessment of projects.

SEA might be applied to an entire sector (such as a national policy on energy for example) or
to a geographical area (for example, in the context of a regional development scheme). SEA
does not replace or reduce the need for project-level EIA (although in some cases it can), but
it can help to streamline and focus the incorporation of environmental concerns (including
biodiversity) into the decision-making process, often making project-level EIA a more
effective process.

SEA is commonly described as being proactive and ‘sustainability driven’, whilst EIA is
often described as being largely reactive.
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[i].
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[ii].
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!”[iii] 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’.
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 unravelled 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 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[iv].
It has been suggested that the earliest formulation of the precautionary principle in
contemporary public policy can be traced in the early 1950s under the guise of what was then
called “safe minimum standard of conservation.” Major environmental issues of the 1960s–
the case of DDT (dichloro diphenyl trichloroethane) — led environmentalists and policy
makers to rethink their approach to specifically address uncertainties. This paved the way in
the 1970s for the establishment of the precautionary principle as a reaction to “the limitations
of public policies based on a notion of ‘assimilative capacity,’ i.e. that humans and the
environment can tolerate a certain amount of contamination or disturbance, and that this
amount can be calculated and controlled”.
In the mid-1970s, West Germany’s legislature enacted a national environmental policy which
provided for precautionary approach to environmental protection[v]. Termed
as Vorsorgeprinzip, the precautionary principle is considered to be the most important
principle of German environmental policy[vi].
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.
When the impacts of a particular activity – such as emission of hazardous substances – are
not completely clear, the general presumption is to let the activities go ahead until the
uncertainty is resolved completely. The PP counters such general presumptions. When there
is uncertainty regarding the impacts of an activity, the PP advocates action to anticipate and
avert environmental harm. Thus, the PP favours monitoring, preventing and/or mitigating
uncertain potential threats.

There two widely referred definitions of the PP – the first one, The Rio Declaration (or
Agenda 21) of 1992, 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[vii].”
This definition given primarily with environmental issues in focus is also extended to cover
health issues. The second definition is based on 1998 Wingspread Statement on the
Precautionary Principle and it states:

“…When an activity raises threats of harm to human health or the environment,

precautionary measures should be taken even if some cause and effect relationships are not
fully established scientifically. The process of applying the precautionary principle must be
open, informed and democratic and must include potentially affected parties. It must also
involve an examination of the full range of alternatives, including no action. In this context
the proponent of an activity, rather than the public, should bear the burden of proof.”

It is interesting to note the differences between the two definitions. The first one stresses on
‘serious or irreversible damage’, whereas the second one states that precaution is relevant to
‘harm’ in general. Thus the second definition is typical of the way in which the precautionary
principle is used by environmental advocacy groups. Some of the other key features of the
definition worth noting include[viii]:
 Lack of full scientific certainty shall not be used as a reason for postponing:
Though scientific uncertainty may not be used for any delay in action, this
 leaves scope for citing reasons such as poverty reduction priorities for
postponing the actions.
 Cost effective measures: Though scientific uncertainty about the likely
impacts prevails, stress on cost-effectiveness compels assessment (however
accurate they may be) of costs of proposed actions and compare it with
possible alternatives.
 Applied by states according to their capabilities: The capabilities of states,
including economic and technical capabilities, could guide the final adoption
of the precautionary principle.
It is worth noting the way the burden of proof is treated in these definitions. When an activity
is likely to cause harm to the environment and/or humans, the conventional practice is that
the opponents of the activity have to provide the proof of the harmful effects caused by the
activity. The precautionary principle, on the other hand, shifts the burden of proof to the
proponents of the activity – i.e., the proponents have to establish that the proposed activity
will not cause any harm to the environment and/or human-beings. Further, it is also argued
that since scientific uncertainty is inherent in the environmental problems for which the PP is
typically applied, the decision making process based on the PP may become more inclusive,
participatory and democratic[ix].
Precautionary Principle vs. Precautionary Approach

At the insistence of the US, the formulation provided under the Rio Declaration favours the
term ‘precautionary approach’ rather than ‘precautionary principle’. During negotiation under
of the 1995 Convention on Straddling and Highly Migratory Fish Stocks the term
precautionary approach was again preferred in the belief that the ‘approach’ offers greater
flexibility and will be less potentially restrictive than the ‘principle’. Few commentators
regard the difference in terminology as significant, although one view is that the
precautionary principle applies in situations of high uncertainty with a risk of irreversible
harm entailing high costs, whereas the precautionary approach is more appropriate, it is
argued, where the level of certainty and potential costs are merely significant and the harm is
less likely to be irreversible[x]. However, the actual use of the terms in the treaties
contradicts and EC law generally refers to the precautionary principle, whereas global
agreements more often refer to the precautionary approach or precautionary measures.
Nevertheless, the attempt to distinguish the ‘approach’ from the ‘principle’ points to the
reality that the concept of precaution appears to mean different things in different contexts.
Much of the confusion surrounding it stems from a failure to distinguish the identification of
risk from the entirely separate question of how to respond to that risk. Thus, to suggest that
states shall ‘apply a precautionary approach (or principle)’ may mean that when faced with
uncertainty, they must be more cautious in identifying risks, or it may mean that they must be
cautious in taking those measures dealing with the risks[xi]. Used in the former sense, the
precautionary principle is an important development in international environmental law. Used
in the latter sense, however, it is not clear whether references to taking precautionary action
or precautionary measures differ more than rhetorically from the customary obligation to
prevent harm in Principle 2 of the Rio Declaration.
A basic shift in the approach to environmental protection occurred initially between 1972 and
1982[xii]. Earlier, the concept was based on the “assimilative capacity” rule as revealed from
the Principle 6 of the Stockholm Declaration of UN Conference of Human Environment,
1972. The said principle assumed that science could provide policy makers with the
information and means necessary to avoid encroaching upon the capacity of the environment
to assimilate impacts and it also presumed that relevant technical expertise would be
available when environmental harm was predicted and there would be sufficient time to act in
order to avoid such harm. But in the 11th Principle of the UN General Assembly Resolution in
World Charter for Nature, 1982, the emphasis shifted to the ‘precautionary principle’ and this
was reiterated in the Rio Conference in 1992 in the principle 15. The inadequacies of the
science has led to the precautionary principle of 1982[xiii].

Precautionary Principle in International Instruments

The precautionary principle appeared at the international level in the mid 1980s. The
principle was first formally acknowledged internationally in the Preamble to the 1985 Vienna
Convention for the Protection of the Ozone Layer, in which the Parties acknowledged the
‘precautionary measures’ which had already been undertaken at both the national and
international levels in relation to the protection of the ozone layer[xiv]. Building on this
recognition, in 1987, the Parties to the Montreal Protocol on Substances that Deplete the
Ozone Layer agreed to take ‘precautionary measures’ to control global emissions of ozone
depleting substances and noted the ‘precautionary measures’ already undertaken at national
and regional levels in relation to the emission of chlorofluorocarbons[xv]. The need for a
‘precautionary approach’ was also recognised in the sequence of conferences on the North
Sea. In the Second North Sea Conference Ministerial Declaration (the London Declaration) in
1987, the principle was referred to three times:
“[I]n in order to protect the North Sea from possibly damaging effects of the most dangerous
substances, a precautionary approach is necessary which may require action to control inputs
of such substances even before a causal link has been established by absolutely clear
scientific evidence;
…[B]y combining…approaches based on emission standards and environmental quality
objectives, a more precautionary approach to dangerous substances will be established; [The
parties] [t]herefore agree to…accept the principle of safeguarding the marine ecosystem of
the North Sea by reduction polluting emissions of substances that are persistent, toxic and
liable to bio accumulate at source by the use of the best available technology and other
appropriate measures. This applies especially when there is reason to assume that certain
damage or harmful effects on the living resources of the sea are likely to be caused by such
substances, even where there is no scientific evidence to prove a causal link between
emissions and effects (‘the principle of precautionary action’)”[xvi].
At the Third North Sea Conference in 1990, the participants agreed to: “continue to apply the
Precautionary Principle, that is to take action to avoid potentially damaging impacts of
substances that are persistent, toxic and liable to bio accumulate even where there is no
scientific evidence to prove a causal link between emission and effects”[xvii]. This process
led to the inclusion of the precautionary principle in the Convention on the Protection of the
Marine Environment of the North–East Atlantic (the OPSAR Convention) of 1992[xviii].
In 1990, the Bergen Ministerial Declaration on Sustainable Development in the Economic
Commission for Europe Region was the first international instrument to treat the principle as
one of general application and linked to sustainable development. The Declaration states:

“In order to achieve sustainable development, policies must be based on the precautionary
principle. Environmental measures must anticipate, prevent, and attack the causes of
environmental degradation. Where there are threats of serious or irreversible damage, lack of
full scientific certainty should not be used as a reason for postponing measures to prevent
environmental degradation”[xix].
In 1991, the Convention on the Ban of Import into Africa and the Control of Transboundary
Movement and Management of Hazardous Wastes within Africa (the Bamako
Convention), signed in Bamako on 29 January 1991[xx], required parties to strive to adopt
and implement:
“the preventative, precautionary approach to pollution problems which entails, inter
alia, preventing the release into the environment of substances which may cause harm to
humans or the environment without waiting for scientific proof regarding such harm. The
parties shall co-operate with each other in taking the appropriate measures to implement the
precautionary principle to pollution prevention through the application of clean production
methods”[xxi]. In 1991, the United Nations Economic and Social Commission for Asia and
the Pacific (ESCAP) resolved that “in order to achieve sustainable development, policies
must be based on the precautionary principle”[xxii].
In 1992, the Parties to the Helsinki Convention on the Protection and Use of Transboundary
Watercourses and International Lakes, agreed to be guided by:

“The precautionary principle, by virtue of which action to avoid the potential transboundary
impact of the release of hazardous substances shall not be postponed on the ground that
scientific research has not fully proved a causal link between those substances, on the one
hand, and the potential transboundary impact on the other hand”[xxiii].

The four instruments signed at the UNCED (the Earth Summit) in Rio de Janeiro also refer to
the precautionary principle[xxiv]. The Rio Declaration states in Principle 15:
“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 a reason for postponing cost-
effective measures to prevent environmental degradation”.

The Convention on Biological Diversity recites in the Preamble:

“Noting also that where there is a threat of significant reduction or loss of biological
diversity, lack of full scientific certainty should not be used as a reason for postponing
measures to avoid or minimise such a threat”[xxv].
Article 3(3) of the Framework Convention on Climate Change provides that:

“The Parties should take precautionary measures to anticipate, prevent or minimize the
causes of climate change and mitigate its adverse effects. Where there are threats of serious
or irreversible damage, lack of full scientific certainty should not be used as a reason for
postponing such measures, taking into account that policies and measures to deal with climate
change should be cost-effective so as to ensure global benefits at the lowest possible cost. To
achieve this, such policies and measures should take into account different socio- economic
contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse
gases and adaptation, and comprise all economic sectors. Efforts to address climate change
may be carried out cooperatively by interested Parties”[xxvi].
Agenda 21 refers to the precautionary principle in a number of contexts. For example, in
relation to marine environmental protection, Chapter 17 calls for:

“A precautionary and anticipatory rather than a reactive approach is necessary to prevent the
degradation of the marine environment. This requires, inter alia, the adoption of
precautionary measures, environmental impact assessments, clean production techniques,
recycling, waste audits and minimization, construction and/or improvement of sewage
treatment facilities, quality management criteria for the proper handling of hazardous
substances, and a comprehensive approach to damaging impacts from air, land and
water”[xxvii].
In dealing with the protection of the quality and supply of freshwater resources, Chapter 18 of
Agenda 21 requires Parties to implement various activities including:

“Introduction of the precautionary approach in water-quality management, where appropriate,

with a focus on pollution minimization and prevention through use of new technologies,
product and process change, pollution reduction at source and effluent reuse, recycling and
recovery, treatment and environmentally safe disposal”[xxviii].

In the context of science and sustainable development, Chapter 35 of Agenda 21 states:

“In the face of threats of irreversible environmental damage, lack of full scientific
understanding should not be an excuse for postponing actions which are justified in their own
right. The precautionary approach could provide a basis for policies relating to complex
systems that are not yet fully understood and whose consequences of disturbances cannot yet
be predicted”[xxix].
Many other conventions have subsequently committed their Parties to apply the
precautionary principle[xxx].
Most importantly, 1992 paved the way for the convergence of the precautionary principle and
the climate change issue in international law. At Rio de Janeiro, the world acknowledged the
precautionary principle at the level of international law when it adopted the United Nations
Framework Convention on Climate Change. Article 3 of the Climate Change Convention
partly provides that:

“The parties should take precautionary measures to anticipate, prevent or minimize the causes
of climate change and mitigate its adverse effects. Where there are threats of serious or
irreversi.ble damage, lack of full scientific research should not be used as a reason for
postponing such measures, taking into account the policies and measures to deal with climate
change should be cost-effective so as to ensure global benefits at the lowest possible cost.”

A reference to the afore quoted article was provided in the Preamble of the 1997 Kyoto
Protocol and worded as follows, “Being guided by Article 3 of the Convention”. The
precautionary principle is thus a norm that parties to the UNFCCC have endorsed. Contested
by some environmentalist and political analysts for being a weak precautionary formulation,
legal positivists argue that law is law and its merits has to be interpreted without going
beyond the wordings of the pertinent international agreement[xxxi].
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”[xxxii]. The Nicaragua case[xxxiii] and the North Sea Continental
Shelf case[xxxiv] complement this article of the 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). Consequently, the opposition of some states does not
interfere with the development of a customary rule[xxxv].
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[xxxvi]. 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[xxxvii]. 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)[xxxviii].
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[xxxix]. In 1996, the precautionary principle was defined in the
Oceans Act of Canada[xl]. Even US law makes some indirect allusions to the precautionary
principle (as measures) when dealing with questions of food safety[xli] and air pollution[xlii].
Furthermore, as a part of environmental impact assessment, the precautionary principle may
be found in the local laws of about fifty countries[xliii]. These examples illustrate the wide
implementation of the procedural aspect of the precautionary principle.
Precautionary Principle in Indian Law

The Indian courts have particularly embraced the precautionary principle.

In Vellore Citizens Welfare Forum v. Union of India[xliv], 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”[xlv]. The Court recognised that a balance must
be struck between the economy and the environment:
“The traditional concept that development and ecology are opposed to each other, is no
longer acceptable; ‘Sustainable Development’ is the answer”[xlvi].
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.[xlvii] It went on
to state:
“Some of the salient principles of ‘Sustainable Development’ as culled out from the
Brundtland Report and other international documents are Intergenerational Equity, Use and
Conservation of Natural Resources, Environmental Protection, the Precautionary Principle,
Polluter Pays, principle, Obligation to assist and co-operate, Eradication of Poverty and
Financial Assistance to the developing countries. We are, however, of the view that ‘The
Precautionary Principle’ and ‘The Polluter Pays’ principle are essential features of
‘Sustainable Development’. The ‘Precautionary Principle’ in the context of the municipal law
means:

 Environmental measures – by the State Government and the statutory

authorities – must anticipate, prevent and attack the causes of environmental
degradation.
 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 ‘Onus of proof’ is on the actor or the developer/industrialist to show that
his action is environmentally benign”.
The Supreme Court held that “the precautionary principle and the polluter pays principle are
part of the environmental law of the country”[xlviii].
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[li].
In 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 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[liii].
The Supreme Court discussed the earlier decision in Vellore Citizens Welfare Forum v Union
of India[liv] where it was held that the precautionary principle, and the shifting of the burden
of proof onto the developer or industrialist who is proposing to alter the status quo, are part of
the environmental law of the country. They found it “necessary to explain the meaning of the
principles in more detail, so that courts and tribunals or environmental authorities can
properly apply the said principles in the matters which come before them”[lv].
The Court reviewed the development of the precautionary principle at international level,
including reference to Principle 15 of the Rio Declaration. The Court identified inadequacies
of science as the real basis that has led to the precautionary principle[lvi]. The precautionary
principle is “based on the theory that it is better to err on the side of caution and prevent
environmental harm which may become irreversible”.[lvii] It was observed:
“The principle of precaution involves the anticipation of environmental harm and taking
measures to avoid it, or to choose the least environmentally harmful activity. It is based on
scientific uncertainty. Environmental protection should not only aim at protecting health,
prosperity and economic interest, but also protect the environment for its own sake.
Precautionary duties must not only be triggered by the suspicion of concrete danger, but also
by (justified) concern or risk potential”[lviii].
The Court next elaborated on the burden of proof referred to in the Vellore case and stated:
“It is to be noticed that while the inadequacies of science have led to the ‘precautionary
principle’, the said ‘precautionary principle’ in its turn, has led to the special principle of
burden of proof in environmental cases where burden as to the absence of injurious effect of
the actions proposed, is placed on those who want to change the status quo reversal of the
burden of proof, because otherwise in environmental cases, those opposing the change would
be compelled to preserve the status quo. This is often termed as a reversal of the burden of
proof, because otherwise in environmental cases, those opposing the change would be
compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is
necessary 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.
The Precautionary Principle suggests that where there is an identifiable risk of serious or
irreversible harm, including, for example, extinction of species, widespread toxic pollution in
major threats to essential ecological processes, it may be appropriate to place the burden of
proof on the person or entity proposing the activity that is potentially harmful to the
environment.”[lix].
In Narmada Bachao Andolan v. Union of India[lx], 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[lxi]. 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 mitigative measures, was a violation of fundamental rights of
life of the affected people guaranteed under Article 21 of the Constitution of India[lxii]. 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”[lxiii]. The majority dealt with this argument of shifting of the
burden of proof and the precautionary principle stating:
“It appears to us that the ‘precautionary principle’ and the corresponding burden of proof on
the person who wants to change the status quo will ordinarily apply in a case of polluting or
other project or industry where the extent of damage likely to be inflicted is not known.
When there is a state of uncertainty due to lack of data or material about the extent of damage
or pollution likely to be caused then, in order to maintain the ecology balance, the burden of
proof that the said balance will be maintained must necessarily be on the industry or the unit
which is likely to cause pollution. On the other hand where the effect on ecology of
environment of setting up of an industry is known, what has to be seen is that if the
environment is likely to suffer, then what mitigative steps can be taken to off set the same.
Merely because there will be a change is no reason to presume that there will be ecological
disaster. It is when the effect of the project is known then the principle of sustainable
development would come into play which will ensure that mitigative steps are and can be
taken to preserve the ecological balance. Sustainable development means what type or extent
of development can takeplace which can be sustained by nature/ecology with or without
mitigation”[lxiv].
Precautionary Principle in American Law

The United States has not adopted precaution as an explicit basis for environmental policy,
even though it has ratified the Rio Declaration on Environment and Development, which
obliges nations to exercise the precautionary principle. Nonetheless, precaution has been
articulated in some US environmental law and early court interpretations[lxv].
Although the United States had not expressly cited the precautionary principle in federal laws
or policies, its presence is evident in several federal environmental statutes:[lxvi]
 Under the U.S. Toxic Substances Control Act, the Environmental Protection
Agency (EPA) may halt the marketing of a new substance and requires safety
testing or other measures if the agency determines that the substance may
present an unreasonable risk or if exposures are predicted to be significant.
 As a precautionary measure, the Food and Drug Administration requires all
new drugs to be tested before they are put on the market.
 National Environmental Policy Act is precautionary in two ways: 1) It
emphasizes foresight and attention to consequences by requiring an
environmental impact assessment for any federally funded project, and 2) it
mandates consideration of alternatives including a “no-action” alternative.
NEPA is one of the best national examples of precautionary action. The
National Environmental Policy Act requires that any project receiving federal
funding and which may pose serious harm to the environment undergo an
environmental impact study, demonstrating that there are no safer alternatives.
 The Clean Water Act established strict goals in order to restore and maintain
the chemical, physical, and biological integrity of the Nation’s waters.
 The Occupational Safety and Health Act (OSHA) was designed to “assure so
far as possible every working man and woman in the Nation safe and healthful
working conditions.
Moreover, in 2003, San Francisco became the first local government in the US to adopt an
ordinance outlining the precautionary principle.[lxvii] The San Francisco ordinance requires
officers, boards, commissions and departments to implement the precautionary principle,
which has five elements: anticipatory action, right to know, alternative assessment, full cost
accounting and participatory decision process.
Unaddressed Issues

Despite widespread endorsement of precaution as a strategy in many (but not all) cases, there
is no single agreed statement or understanding of PP as a Principle. Nor is it clear whether the
PP is meant to be an aspirational principle or a binding rule. If it is an aspirational principle,
then it can more easily be vague and ambiguous but will be of little help in making difficulty
choices. If it is binding regulatory rule, then it must be more concrete but will be more
arbitrary. It is neither well defined nor a stable concept. Rather, it has become the repository
for a jumble of adventurous beliefs that challenge the status quo of political power, ideology
and environmental rights[lxviii] .
Versions of PP diverge on several key issues:
 Is the PP part of mainstream process of risk assessment and risk management
or is it an alternative? The view that PP is inconsistent with and an alternative
to, the traditional risk assessment/risk management framework is held by both
advocate (who dislike the risk-based approach and see PP as a desirable
alternative) and critics (who favour the risk-based approach and see PP as
undesirable). In contrast, the European Commission takes the view PP is a part
of risk management. Similarly, the San Francisco version of PP calls for an
analysis of alternatives and their consequences. And many see the PP already
at work in traditional risk assessment through the adoption of conservative
default assumptions and methods for calculating risks.
 Does the PP apply only to the environment or more broadly to all health and
environmental risks? The Rio Declaration (paragraph 15) addresses only
environment. But the European Commission, the Court of Justice of European
Commonwealth, the WTO, and other bodies have considered the PP to be
equally relevant to health, food and consumer safety risks[lxix].
 What degree of risks triggers the PP? Some versions refer to uncertain, serious
or irreversible risks (for example, the Rio Declaration) but some versions omit
these trigger criteria.
 What action should be taken under the PP? Most versions give no real
guidance, simply stating what that action should be. Other versions call for a
ban on the proposed product or activity until certainty is reduced to some
degree, usually by shifting the burden of proof unto the proponent of the
product or activity. Some versions call for adoption of best available control
technology, but others do not.
 May costs be considered? Some versions exclude cost and many analyst pose
the PP in opposition to cost0benefit analysis. But the Rio Declaration
(principle 15) refers to ‘cost-effective’ measures and the European
Commission maintains that precautionary regulation must be based on an
analysis of costs and benefits.
 Does PP require zero risk? Most versions do not and the European
Commission explicitly states that the PP ‘must not aim at zero risk’, but some
versions lean toward banning activities posing any uncertain risk. For
example, ‘where potential adverse effects are not fully understood, the
activities should not proceed’[lxx]. Risks are never fully understood, so this
version would amount to a ban.
 Is there a difference between ‘precaution’ and ‘prevention’? Early version
used the terms interchangeably. For example, the Bergen Declaration (1990,
Paragraph 7) provided that the PP requires states to ‘anticipate, prevent and
attack’ risks. By contrast European Environment Agency has argued that
precaution applies to the ‘uncertain’ risks whereas prevention applies to
‘known’ risks. It is not clear, however, what is meant by ‘known’ risk. Either
there is no such thing (because all risks are uncertain), in case prevention is an
empty set and the PP applies to all risks, or there are many ‘known’ risks (in
the sense of well-understood cause and effect relationships) in which case the
PP is only about risks for which there fundamental uncertainty about the
cause-and-effect or hazard-and-harm relationship and the PP applies only to
those few rare and temporary cases of utter misery that later become
understood as scientific advances[lxxi].
Conclusion

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.

The role of the judiciary in relation to the law of sustainable development is thus of the
greatest importance[lxxii]. 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.
Environmental laws

In the Constitution of India it is clearly stated that it is the duty of the state to ‘protect and
improve the environment and to safeguard the forests and wildlife of the country’. It imposes
a duty on every citizen ‘to protect and improve the natural environment including forests,
lakes, rivers, and wildlife’. Reference to the environment has also been made in the Directive
Principles of State Policy as well as the Fundamental Rights. The Department of
Environment was established in India in 1980 to ensure a healthy environment for the
country. This later became the Ministry of Environment and Forests in 1985.

The constitutional provisions are backed by a number of laws – acts, rules, and notifications.
The EPA (Environment Protection Act), 1986 came into force soon after the Bhopal Gas
Tragedy and is considered an umbrella legislation as it fills many gaps in the existing laws.
Thereafter a large number of laws came into existence as the problems began arising, for
example, Handling and Management of Hazardous Waste Rules in 1989.

Following is a list of the environmental legislations that have come into effect:
General
Forest and wildlife
Water
Air

General

1986 - The Environment (Protection) Act authorizes the central government to protect and
improve environmental quality, control and reduce pollution from all sources, and prohibit or
restrict the setting and /or operation of any industrial facility on environmental grounds.

1986 - The Environment (Protection) Rules lay down procedures for setting standards of
emission or discharge of environmental pollutants.

1989 - The objective of Hazardous Waste (Management and Handling) Rules is to

control the generation, collection, treatment, import, storage, and handling of hazardous
waste.

1989 - The Manufacture, Storage, and Import of Hazardous Rules define the terms used
in this context, and sets up an authority to inspect, once a year, the industrial activity
connected with hazardous chemicals and isolated storage facilities.

1989 - The Manufacture, Use, Import, Export, and Storage of hazardous Micro-
organisms/ Genetically Engineered Organisms or Cells Rules were introduced with a
view to protect the environment, nature, and health, in connection with the application of
gene technology and microorganisms.

1991 - The Public Liability Insurance Act and Rules and Amendment, 1992 was drawn
up to provide for public liability insurance for the purpose of providing immediate relief to
the persons affected by accident while handling any hazardous substance.
1995 - The National Environmental Tribunal Act has been created to award compensation
for damages to persons, property, and the environment arising from any activity involving
hazardous substances.

1997 - The National Environment Appellate Authority Act has been created to hear
appeals with respect to restrictions of areas in which classes of industries etc. are carried out
or prescribed subject to certain safeguards under the EPA.

1998 - The Biomedical waste (Management and Handling) Rules is a legal binding on the
health care institutions to streamline the process of proper handling of hospital waste such as
segregation, disposal, collection, and treatment.

1999 - The Environment (Siting for Industrial Projects) Rules, 1999 lay down detailed
provisions relating to areas to be avoided for siting of industries, precautionary measures to
be taken for site selecting as also the aspects of environmental protection which should have
been incorporated during the implementation of the industrial development projects.

2000 - The Municipal Solid Wastes (Management and Handling) Rules, 2000 apply to
every municipal authority responsible for the collection, segregation, storage, transportation,
processing, and disposal of municipal solid wastes.

2000 - The Ozone Depleting Substances (Regulation and Control) Rules have been laid
down for the regulation of production and consumption of ozone depleting substances.

2001 - The Batteries (Management and Handling) Rules, 2001 rules shall apply to every
manufacturer, importer, re-conditioner, assembler, dealer, auctioneer, consumer, and bulk
consumer involved in the manufacture, processing, sale, purchase, and use of batteries or
components so as to regulate and ensure the environmentally safe disposal of used batteries.

2002 - The Noise Pollution (Regulation and Control) (Amendment) Rules lay down
such terms and conditions as are necessary to reduce noise pollution, permit use of loud
speakers or public address systems during night hours (between 10:00 p.m. to 12:00
midnight) on or during any cultural or religious festive occasion

2002 - The Biological Diversity Act is an act to provide for the conservation of biological
diversity, sustainable use of its components, and fair and equitable sharing of the benefits
arising out of the use of biological resources and knowledge associated with it

Forest and wildlife

1927 - The Indian Forest Act and Amendment, 1984, is one of the many surviving colonial
statutes. It was enacted to ‘consolidate the law related to forest, the transit of forest produce,
and the duty leviable on timber and other forest produce’.

1972 - The Wildlife Protection Act, Rules 1973 and Amendment 1991 provides for the
protection of birds and animals and for all matters that are connected to it whether it be their
habitat or the waterhole or the forests that sustain them.
1980 - The Forest (Conservation) Act and Rules, 1981, provides for the protection of and
the conservation of the forests.

Water

1882 - The Easement Act allows private rights to use a resource that is, groundwater, by
viewing it as an attachment to the land. It also states that all surface water belongs to the state
and is a state property.

1897 - The Indian Fisheries Act establishes two sets of penal offences whereby the
government can sue any person who uses dynamite or other explosive substance in any way
(whether coastal or inland) with intent to catch or destroy any fish or poisonous fish in order
to kill.

1956 - The River Boards Act enables the states to enroll the central government in setting
up an Advisory River Board to resolve issues in inter-state cooperation.

1970 - The Merchant Shipping Act aims to deal with waste arising from ships along the
coastal areas within a specified radius.

1974 - The Water (Prevention and Control of Pollution) Act establishes an institutional

structure for preventing and abating water pollution. It establishes standards for water quality
and effluent. Polluting industries must seek permission to discharge waste into effluent
bodies.
The CPCB (Central Pollution Control Board) was constituted under this act.

1977 - The Water (Prevention and Control of Pollution) Cess Act provides for the levy
and collection of cess or fees on water consuming industries and local authorities.

1978 - The Water (Prevention and Control of Pollution) Cess Rules contains the standard
definitions and indicate the kind of and location of meters that every consumer of water is
required to affix.

1991 - The Coastal Regulation Zone Notification puts regulations on various activities,

including construction, are regulated. It gives some protection to the backwaters and
estuaries.

Air

1948 – The Factories Act and Amendment in 1987 was the first to express concern for the
working environment of the workers. The amendment of 1987 has sharpened its
environmental focus and expanded its application to hazardous processes.

1981 - The Air (Prevention and Control of Pollution) Act provides for the control and
abatement of air pollution. It entrusts the power of enforcing this act to the CPCB .

1982 - The Air (Prevention and Control of Pollution) Rules defines the procedures of the
meetings of the Boards and the powers entrusted to them.
1982 - The Atomic Energy Act deals with the radioactive waste.

1987 - The Air (Prevention and Control of Pollution) Amendment Act empowers the
central and state pollution control boards to meet with grave emergencies of air pollution.

1988 - The Motor Vehicles Act states that all hazardous waste is to be properly packaged,
labelled, and transported.
Sustainable Development: Guiding Principles And Values

The well recognized principle of sustainable development for the protection and
improvement of environment has been unanimously accepted by the world countries as a
strategy that caters to the needs of the present without depriving the future generations of
their right to available natural resources. It has been rightly said that sustainable development
is meant to secure a balance between developmental activities for the benefits of the people
and environmental protection and therefore, “it is a guarantee to the present and bequeath to
the future generations.” The principle of sustainable development seeks to harmonise the
conflict between development which may be industrial, economic or social, and right to
healthy environment. In other words, the balance between environmental protection and
developmental activities could only be maintained by strictly adhering to the principle of
sustainable development.

Environmental studies have shown that the environment related problems of developed
countries are mainly due to industrial and technological development whereas undeveloped
countries have environmental problems because of poverty, over-population and illiteracy.
Undoubtedly, encouragement and boost to developmental activities is in the socio-economic
interest of a nation but this should not be at the cost of environmental degradation, because
this will not only affect the present generation but have its adverse impact on the future
generations. Therefore, sustainable development is the need of time so that development and
environmental protection, both proceed maintaining a balance.

‘Development’ has been recognized as a human right under Rio- Declaration of 1992. But all
the nations (parties) participating in this summit unanimously agreed that economic or
industrial development should be carried out in a manner that it does not adversely affect the
environment because environmental pollution is a potential danger to human life and in that
case, what is the use of such development? It is for this reason that the principle of
sustainable development was evolved in this world summit for maintaining a balance
between development and environment, and it was realised that both should go hand in hand.

What is Sustainable Development

The principle of sustainable development has evolved on the basic assumption of co-
existence of two apparently conflicting notions i.e. development and environment. But from
the practical point of view, ecological, economic and social aspects of sustainability are
inseparable. As William Rees has rightly pointed out that maintenance of ecological integrity
has to be accorded primacy over achievement of socio-economic human needs, thus there
should be a convergence between ecological and economic factors in the developmental
process.
The principle of sustainable development emphasises on two basic needs, firstly, need for
socio-economic development and secondly, need of limitation imposed on the environment's
capability to cope with the present and future requirements.

Explaining the inter-dependence of conservation and sustainable development, the

Brundtland Report (1997) said:
“Sustainable development is development that meets the needs of the present without
compromising the ability of future generations to meet their, own needs…. Sustainable
development requires meeting the basic needs of all and extending to all opportunity to
satisfy their aspirations for a better life.”

Basic objectives of Sustainable Development

The principle of sustainable development seeks to achieve the following three basic
objectives:
(1) to maintain production of goods and services for development and efficiency;
(2) conversation and management of neutral resources including preservation of bio-diversity
and maintenance of biological integrity;
(3) maintenance and enhancement of the quality of life adopting the principle of equitable
distribution of wealth and material resources.

These objective may respectively be called as economic, environmental and social objectives
of the principle of sustainable development.
From the environmental point of view, the objective of the principle of sustainable
development centres round three issues, namely, (i) to maintain essential ecological
processes, (ii) to preserve genetic diversity; and (iii) to secure sustainable utilization of
species and ecosystems.

Scope of Extent of Sustainable Development

The concept of sustainable development, as pointed out the chairperson Ms. Brundtland in
her report (popularly called the Brundtland report) is aimed at meeting the needs of the
present without compromising the ability a future generations to meet their own needs.
Commenting on sustainable development, the Former President of the World Bank James D.
Yolkenson observed, “it is for us to think as to what kind of world we want. Do we want to
bequeath a world for our future generation a poorest world wherein innumerable people die
of hunger, climate uncertainty, biodiversity at its lowest ebb and social conditions most
unstable? This observation of Volkenson clearly shows that the central focus of sustainable
development is not confined to the present happiness of the people but it also expends to
safeguarding the interests of the coming generations.
Sustainable development involves a multi-faceted approach i.e. (1) economic, (2) human, (3)
environmental, and (4) technological. It is a process which seeks to bring improvement in the
quality of human life alongwith conservation of the ecological system. Thus, development
and environment, both are inter-dependent and therefore, there cannot be development
without protection of environment, nor can there be conservation of environment without
development.

The former U.N. General-Secretary Kofi-Annan had identified five areas for the applicability
of the principle of sustainable development. They are (1) water, (2) health, (3) power and
energy, (4) Agriculture and (5) Bio-diversity.

Former Prime Minister of India Smt. Indira Gandhi had categorically stated in her address at
the Stockholm Conference, 1972 that water, air, land, soil, plants, trees and living organisms
must be preserved because they are valuable natural resources for the benefit of the future
generations.

Salient Principles of Sustainable Development

The principle of sustainable development which received international recognition as a result
of Brundtland Commission Report (1987) was overwhelmingly supported by all the nations.
Some of the salient principles which underlie the concept of sustainable development were
spelled out in the Rio Declaration, 1992 and Agenda 21. Therefore, these principles have got
to be necessarily followed in order to achieve the objective of sustainable development.
These principles are as follows:
(1) Inter-generational equity;
(2) Use and conservation of natural resources;
(3) Environmental protection;
(4) The precautionary principle;
(5) The ‘Polluter Pays’ principle;
(6) Principle of liability to help and co-operate;
(7) Poverty eradication; and
(8) Principle of ‘public trust’.

(1) Inter-Generational Equity.- The principle of inter-generational equity pre-supposes the

right of each generation of human beings to benefit from cultural and natural resources of the
past generation as well as the ‘obligation’ to preserve such heritage for future generations.
The principle emphasises on conservation of biodiversity resources and of the renewable
sources like forests, water, soil etc.

The principle of inter-generational equity has its genesis in Principles 1 and 2 of the
Stockholm Declaration, 1972 wherein environment has been taken to be resource basis for
the survival of the present generation and right to be beneficially used by the future
generations. Both these principles are reproduced as follows:
Principle 1.- Man has the fundamental right to freedom, equality and adequate conditions of
life, in an environment of quality that permits a life of dignity and well-being, and he bears a
solemn responsibility to protect and improve the environment for the present and future
generations.

Principle 2.- The natural resources of the earth, including the air, water, lands, flora and
fauna, and especially representative samples of natural ecosystems, must be safeguarded for
the benefit of the present and future generations through careful planning and management,
as appropriate.

In A.P. Pollution Control Board v. M.V. Nayudu, the Apex Court observed that where the
State Government makes an attempt to balance the need of the environment and need of the
economic development, it would not be proper to prohibit it from doing so. In such a case, it
would be safer to apply the ‘protective principle’ and the ‘principle of polluter pays’, keeping
in mind the principle of sustainable development and the ‘principle of inter-generational
equity!

2. Use And Conservation of Natural Resources - This principle requires that earth's natural
resources should be carefully used in such a way that they may be conserved and enhanced
for the future generation. It must be borne in mind that natural resources are already depleting
due to poverty, over- population, urbanisation, industrialisation etc. and there is likely to be
acute shortage of these resources in future. Therefore, there is dire need to develop techniques
and technologies which may need minimal utilization of natural resources.

The principle of use and conservation of resources is founded on the theory that the present
generation should be modest in their exploitation of natural resources for the benefit of the
future generations. This will secure the conditions of survival for future generations. This
principle has been accepted by the international community in the form of Principles 8 and 23
of the Rio Earth Summit Declaration, 1992.
Principle 8 provides that in order to achieve sustainable development and a high quality of
life for all people, States should reduce and eliminate unsustainable pattern of production and
consumption. Thus, use and conservation of natural resources should be an essential principle
of sustainable development.
Similarly, Principle 23 of the Rio-Declaration (1992) specifically states that the environment
and natural resources of people under oppression, domination and occupation, shall be
protected by all means.
The Supreme Court applying the principle of careful use and conservation of natural
resources, observed in the case of A. Jagannath v. Union of India, that activities of the
industries violative of this principle and of, environmental legislations must be discouraged.

In Indian Handicrafts Emporium v. Union of India, the indigenous ivory or ivory articles
were prohibited from being exported as it impugned Wild Life (Protection) Act, 1972 and
was also against the moral claims embodied under Article 48-A of the Constitution and
principle of conservation of natural resources.

3. Environmental Protection
Environmental protection is an integral part of sustainable development. Most of the nations
have enacted environmental protection laws to ensure sustainable development within their
territories. In order to reinforce sustainable development, an effective environmental
protection mechanism is needed. It is generally seen that inadequate protection of
environment or its degradation affects the poorest sections of the society most as they draw a
large part of their livelihood from unmarked environmental resources such as forests, water
from hand pumps, air polluted and noisy slum dwellings etc. The problem of environmental
protection generally emanates from water resources, forests, agriculture, industry, energy and
power etc., therefore, policy decisions in these sectors should be environmental oriented and
well planned so as to ensure that there is no degradation in the natural environment.

So far India is concerned, the Environment (Protection) Act, 1986 is the central legislation.
Besides, there are some other pollution control and prevention laws and States have also
framed their own anti-pollution laws according to their local requirements. The ultimate
object is to ensure sustainable development for protection of environment from being
degraded or polluted.

4. Precautionary Principle
The precautionary principle seeks to ensure that a substance or human activity which may
cause a threat to the environment is prevented from causing harm to environment, even if
there is no conclusive scientific proof of linking that particular substance or human activity to
environmental damage. Thus, precautionary principle pre-supposes that onus of proof is on
the industrialist to show that his action is benign, that is not harmful to environment.
The precautionary principle in the context of environmental protection is essentially about the
management of scientific risk. It is a component of the concept of ecologically sustainable
development and has been defined in Principle 15 of the Rio Declaration, 1992.” According
to this principle, “where there is threat of serious or irreversible environmental damage, lack
of full scientific certainty should not be used as a reason for postponing measures to prevent
environmental degradation." In other words, any human activity or behaviour which bears the
harmful effect to the environment, has got to prevented at all costs.

It may be stated that prior to the precautionary principle as incorporated in Principle 15 of the
Rio-Declaration, 1992, Principle 6 of the Stockholm Declaration, 1972 relating to the
Assimilative Capacity Principle was the governing rule which provided as under :-
“The discharge of toxic substances or of substances and the release of heat, in such quantities
or concentrations as to exceed the capacity of the environment to render them harmless, must
be halted in order to ensure that serious irreversible damage is not inflicted upon ecosystem.
The just struggle of the peoples of all countries against pollution should be supported.”

Thus, the assimilative capacity principle assumed that science could provide policy-makers
the information and means necessary to avoid encroaching upon the capacity of the
environment to assimilate impacts and it is presumed that relevant technical expertise would
be available when environmental harm was predicted and there would be sufficient time to
act in order to avoid such harm.
The precautionary principle has received legal recognition in almost all the international
instruments and has now become an integral part of the United Nations Environmental
Programme. The European Community has adopted the principle in the Bergen Declaration
on Sustainable Development, 1990 and reiterated that environment related actions should
predict, prevent and ‘suppress environmentally harmful factors’.

Beginning with Vellore Citizens’ Welfare Forum v. Union of India, the

Supreme Court explicitly recognised the precautionary principle as a principle of Indian

environmental law in a number of subsequent cases. Justice Kuldeep Singh of the Supreme
Court in Vellore Citizens case laid down the following rules with regard to precautionary
principle :-
(1) The State Governments and local authorities are supposed to anticipate and then prevent
the cause of environmental degradation. They are supposed to check the activity which is
damaging for environment;
(2) Merely because there is a lack of scientific knowledge as to whether a particular activity
is causing degradation, it should not stand in the way of the Government;
(3) The onus of proof is on the actor (i.e. person who does the activity) or the
developer/industrialist to show that the action was environmentally friendly.
In order to achieve the above, the following precautions are supposed to be taken:
(i) The decision should be based on best possible scientific information and analysis of risk;
(ii) Where there is uncertainty but potentially serious list exists, even then precautionary
measures are supposed to be taken;
(iii) Ecological impacts should be given paramount consideration, more so when resources
are non-renewable or where the result is irreversible;
(iv) The indication of the cost should be made known directly to the person who if does not
take precaution, can be called upon to meet the expense – a subject which may fall under the
head “polluter pays Ii principle.”

In Narmada Bachao Andolan v. Union of India, the Apex Court explained that “when there is
a state of uncertainty due to lack of data or material about the extent of damage or pollution
likely to be caused, then in order to maintain ecological balance, the burden of proof that the
said balance will be maintained, must necessarily be on the industry or the unit which is
likely to cause pollution.”

5. “Polluter Pays” Principle

All the member countries participating in the Organisation For Economic Co-operation and
Development (O.E.C.D.) agreed to incorporate in their environmental policies the principle
of 'polluter pays' so as to discourage subsidies that could be detrimental for trade. They
deemed this necessary for the protection of environment and save the country from threats
posed by environmental pollution in modernised industrial societies. “Polluter Pays”
principle was considered to be one of the best method for prevention of environmental
pollution. But there were practical difficulties in working out an exact definition of the
principle as there could be dispute as to the limits on payment for damages caused and exact
scope of the applicability of principle.

Despite these difficulties, the European Community in its Action Programme on Environment
had accepted the ‘polluter pays’ principle as a part of its strategy on environmental matters.
The principle Was incorporated in Article 130 R (2) of the action programme which reads as
follows :-
(i) Preventive action is always preferable to remedial action;
(ii) Environmental damage should be rectified at source;
(iii) The polluter should pay the costs of the measures taken to protect and preserve the
environment;
(iv) environmental policies should be a component of the European Community’s other
policies.

Finally, the “polluter pays” principle was recognised as an integral part of the sustainable
development by the international community arid was incorporated as Principle 16 of the Rio
Declaration of Earth Summit, 1992. The principle reads as follows :-
“Principle 16 National authorities should endeavour to promote the internationalisation of
environmental costs and the use of economic instruments taking into account the approach
that the polluter should in principle bear the cost of pollution with due regard to the public
interest and without distorting international trade and investment.”

As a matter of fact, this principle was already accepted and included as Principle 4 of the
Stockholm Declaration in 1972 but it was legally and internationally recognised as a
substantive principle of environmental law under Principle 16 of the Rio Declaration, 1992.

The Supreme Court in M.C. Mehta v, Kamal Nath, observed that ‘polluter pays principle has
been recognised as fundamental objective of Government's environmental policy to prevent
and control pollution. The Court in this case observed that the calculation of environmental
damages should not be on the basis of claim put forward by the party, but it should be on the
basis of examination of the situation by the Court, keeping in view the factors such as
deterrent nature of the award.

In Vellore Citizens’ Welfare Forum v. Union of India, the Supreme Court directed the
Central Government to constitute an authority under Section 3 (3) of the Environment
(Protection) Act, 1986 and confer on this authority all the powers necessary to deal with the
situation created by tanneries and other polluting industries in the State of Tamil Nadu. The
authority so constituted shall implement the ‘precautionary principle’ and the ‘Polluter Pays
Principle.’

6. Principle of Liability to help and Co-operate

This principle has been specifically incorporated in Rio-Declaration (1992) as Principle 9
which provides that the States should co-operate to strengthen indigenous capacity building
for sustainable development by improving scientific understanding through exchanges of
scientific and technological knowledge and by enhancing the development, adaptation,
diffusion and transfer of technologies including new and innovative technologies.

Principle 10 of the Rio-Declaration further provides that environmental issues are best
handled with the participation of all concerned citizens at the relevant level. Emphasising the
need for mutual cooperation in environmental matters, Principle 12 requires the States to
cooperate to promote a supportive and open international economic system that would lead to
economic growth and sustainable development in all countries, in order to address the
problem of environmental degradation in a better way.

Finally, Principle 27 of the Rio Declaration expects people and the States to co-operate in
good faith and in a spirit of partnership in the future development of international law in the
field of sustainable development.

7. Poverty Eradication
Poverty is perhaps the worst contributing factor for polluting the environment and causing its
degradation. Smt. Indira Gandhi, the Late former Prime Minister of India, addressing the
Stockholm Conference on Human Environment in 1972 said, “of all pollutants we face, the
worst is poverty”. The Brundtland Report (1987) also attributed poverty as a potential cause
of environmental degradation as it reduces people’s capacity to use resources in a sustainable
manner, which eventually brings more pressure on environment and results into its
deterioration. Most of the developing countries’ are facing the problem of poverty which is
adversely affecting the environmental quality.

The Earth Summit, 1992 also projected that elimination of poverty was utmost necessary for
achieving the goal of sustainable development, particularly m the developing countries.

India being a developing country, its more than 30 per cent people are living below the
poverty line. The pitiable condition 'of slum-dwellers, scaricity of food, fuel, kerosene oil etc.
are serious threats for environment. Due to lack of residential, houses crores of poor men,
women and children are compelled to live in slums and even on road-side temporary hutment
in most unsanitary conditions without sufficient food and water. Thus, they have to live in
unwholesome environmental conditions. Therefore, India needs cooperation and assistance
from the developed countries to help and support the poverty alleviation programme and
maintenance of wholesome environmental conditions.

Protection of Forests
It must be stated that awareness about the protection of forests is also closely connected with
the principle of public trust applicable for the preservation of natural resources. The State
being a trustee of forest-resource, it is the moral and legal obligation of the Government to
protect forests from being destroyed by indiscriminate felling of trees. If forests are well
preserved, it will reduce soil erosion and increase fertility of land and also cause sufficient
rainfall which is necessary for cultivation and domestic purposes in the form of water. But
despite these benefits from forests, the record shows that almost one-third of the part of the
forest in tropical region had been destroyed due to deforestation until the year 1970.
Unfortunately, destruction of forest still continues and nearly 1,70,000 sq. k.m. forest land
has been converted into plain for construction of industries, complexes and other commercial
purposes. Besides, seven lakh hectare land has turned into desert and gallons of polluted
water is being flowed in rivers, lakes and seas causing irreparable damage to environment
and ecosystem.

In view of this destruction of forests, the Government is failing in its duties as trustee of this
valuable natural resource and causing damage to its beneficiaries i.e., the peop1e could not
exploit it for their own use, what to talk of leaving it for use by future generations'! Even
now, it is not too late and there is need on the part of the State to protect and preserve the
valuable natural resources as a trustee and people to cooperate with the administration to
protect environment from being degraded.

Conclusion
It is true that in order to improve and protect the environment from pollution sustainability
must be there between environment and development. The concept of sustainable
development based on the notion that natural resources should be exploited for the benefit of
both present and future generation. As we know that increased industrial activity worldwide
requires the use of natural resources which are depleting day by day. It is also true that the
need for resource conservation, efficient use of resources and environment friendly corporate
policies and behaviour has now been recognised worldwide. The country needs an
Environmental policy and planning, while being globally sensitive must be based on local
needs. Finally, if sustainable development has to move from mere wishful thinking and
slogan-mongering into a reality, the world (developed and developing) as a whole has to
move towards a new world order in which new economic and technological orders are
dovetailed. Such an order has to be aimed at benefiting the poor because in the chain of
sustainable development, the weakest links are poverty and inequality. Last but not least, if
the principles of sustainable development are followed then definitely with the economic
growth and industrial development of a country environment protection can be maintained.

REFERENCES
1. Agarwal, S: Legal Control of Environmental Pollution
2. Krishna Iyer, V.R. – Environmental Pollution and the Law
3. Paras Diwan – Environmental Administration – Law and Judicial Attitude
4. Srivastva A.B. – Product Global Environment, 1994
5. Jaswal, P.S. & Nishtha – Environmental Law
6. Shanta Kumar S. – Introduction to Environmental Law
7. J.J.R. Upadhaya – Environmental Law
8. V.N. Paranjape – Environmental Law
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# Assistant Professor, Institute of Law, K