Incorporation of Precautionary Principle in Environmental Legislation
The precautionary principle means that, if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to control that activity now rather than to wait for incontrovertible scientific evidence. In the Environmental Legislation Precautionary Principle is a principle that ensures that a substance or activity posing a threat to the environment is prevented from adversely affecting it, even if there is no conclusive scientific proof lining that particular substance or activity to the environmental damage.
In the case of Vellore Citizens’ Welfare Forum vs. Union of India and Others The Precautionary Principle and the new Burden of Proof, The `uncertainty’ of scientific proof and its changing frontiers from time to time has led to great changes in environmental concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992., a three-Judge Bench of this Court referred to these changes, to the `precautionary principle’ and the new concept of `burden of proof’ in environmental matters. Kuldip Singh, J. after referring to the principles evolved in various international Conferences and to the concept of `Sustainable Development’, stated that the Precautionary Principle, the Polluter-Pays Principle and the special concept of Onus of Proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law. The relevant observations in the Vellore Case in this behalf read as follows: The Precautionary Principle replaces the Assimilative Capacity Principle: A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier the concept was based on the `assimilative capacity’ rule as revealed from Principle 6 of the Stockholm Declaration of the U.N.Conference on 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 presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act to avoid such harm. But in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the `Precautionary Principle’, and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows: “The `onus of proof’ is on the actor or the developer/industrialist to show that his action is environmentally benign. “Because of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country.”
In the case of Arjun Gopal vs Union Of India, The aforesaid findings are sufficient to negate the arguments of the opposite side that scientific study is absent about the adverse effect of firecrackers during Diwali. In environmental law, the ‘precautionary principle’ is one of the well-recognized principles which is followed to save the environment. It is rightly argued by the petitioners that this principle does not need exact studies/material. The very word ‘precautionary’ indicates that such a measure is taken by way of precaution which can be resorted to even in the absence of definite studies. In Vellore Citizens’ Welfare Forum, this Court explained the principle in the following manner: Some of the salient principles of “Sustainable Development”, as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, 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: The constitutional and statutory provisions protect a person’s right to fresh air, clean water, and pollution-free environment, but the source of the right is the inalienable common law right of a clean environment.”
In the case of Thilakan vs Circle Inspector Of Police, Some of the salient principles of ‘Sustainable Development’ as culled out from Brundtland Report and other international documents, are Inter-Generational 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: Because of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Court of Law. Because of the above and other judgments, the principle of sustainable development and the doctrines of ‘polluter pays’ and ‘precautionary principle’ is part of our environmental law, which is built around Article 21 of the Constitution of India. The conditions impugned in this Writ Petition are necessary to protect the environment. If every landowner, driven by the profit motive, is to dig his land to win sand, no land except pits will be left for the future generations. So, the petitioners should stop mining, when it reaches the groundwater level and immediately all the pits should be filled up.
In conclusion, The precautionary principle recommends preventing possible harm to human health and the environment. It has gained support in the international community as a higher-order legal principle that should guide public policy and the formulation of specific laws. Also, the incorporation of it has helped to develop environmental legislation we can see that through the case laws given above.
 1996 (5) SCC 647
 AIR 2008 Ker 48, 2007 (3) KLJ 509
Author Details: Priyanka Mane
The views of the author are personal only. (if any)