In this blogpost, Pramit Bhattacharya, Damodaram Sanjivayya National Law University, writes about the doctrine of Precautionary Principle. The post highlights the global acceptance of the doctrine as a global instrument. The post also looks into the status of the doctrine in India.

The Precautionary Principle has been adopted in many environmental instruments all over the world. The principle states that if there is a risk of severe damage to the environment absence of any scientific or conclusive proof is not to be given as a reason for the inaction. The Precautionary Principle shifts the burden of proof on the shoulders of the person who is arguing that the activity he is carrying out is not harmful. The principle follows the approach of being safe than being sorry. This principle is in contrast to the wait-and-watch approach which is generally followed in environmental issues. The Precautionary Principle encourages “action taking” to antedate and prevent damage to the environment.  The Precautionary Principle is one of the most popular legal approaches in the field of environmental law today. Whereas traditional approaches are reactive, this approach encourages “action taking” to antedate and prevent damage to the environment.[1]

Many times the scientific evidence do not give any conclusive information. In such a case risk assessment should be done and a balance should be maintained between protection of the environment and unnecessary and extensive restrictions. In such a scenario, Precautionary Principle is used. While applying the principle, it is very crucial to understand the consequences of applying it.[2]

Origin of Precautionary Principle

To understand the concept of Precautionary Principle, it is very important that we should go through a brief history of how the Precautionary Principle originated. In one of the Parliamentary Earth Summit of UN Conference on Environment and Development, Dalai Lama stated that Tibet may be the first country in which the principle originated because from the seventeenth century itself Tibet started to take proactive measures so save the environment.[3] For them, the struggle between protection of environment and safeguard of human health gave rise to the concept.

Under the contemporary public policy, this principle can be traced back to the 1950s under the name of “safe minimum standards of conservation.” Some major environmental issues in the 1960s, for instance, the DDT (dichloro diphenyl trichloroethane) case paved the way for the principle based on the idea of assimilative capacity. This idea stated that environment and humans can tolerate disturbances only to a certain extent, and this amount can be calculated and governed. Then in the 1970s, the Germans probably became the first country to provide for a precautionary approach in its legislations and policies towards the protection and the conservation of the environment.[4]

Definition of Precautionary Principle

There are two definitions of Precautionary Principle which are widely accepted-

1. The first definition is given in the Rio Declaration of 1992. It states that in order to protect the environment every state should apply the principle to the best of their abilities. When there are chances of irreversible and serious damage, lack of full scientific should not be the reason for the postponement of preventive measure.[5]
2. The second definition is based on the Wingspread Statement on Precautionary Principle, which was given 1998. This definition states that when there is a threat to the environment and human health, precautionary measures should be taken even when full scientific data is not available. The principle should examine the alternative options available (even the option of taking no action).

There is a significant difference between the two definitions. The first definition talks about “irreversible and serious damage, but the second definition talks about “harm” to the environment and human health in general. Thus, the scope of the second definition is wider.

Precautionary Principle-International Instruments

The Precautionary Principle appeared on the global stage in the 1980s. It was first acknowledged formally in the Preamble to the Vienna Convention for the Protection of the Ozone Layer. The parties who were signatory to the Convention acknowledged the precautionary measures which have already been taken at the international and the national levels to protect the ozone layer.[6] Banking on this recognition, the Montreal Protocol was introduced in 1987 where the signatories agreed to undertake precautionary measures to control the emission of substances which depleted the ozone layer. In this Protocol also, measures taken earlier to reduce the emission of chlorofluorocarbons were recognized.[7] The need to adopt which were precautionary in nature was also recognized in the Second North Sea Conference Ministerial Declaration (the London Declaration) in 1987.[8] At the Third Sea Conference, the parties came to a decision that they would continue applying preventive measures to prevent damage, even there is no scientific evidence. The precautionary principle was also included in the Convention on the Protection of the Marine Environment of the North-East Atlantic, which was introduced in the year 1992.[9]

The Bergen Ministerial Declaration on Sustainable Development in the Economic Commission for Europe Region, 1990 stated that the precautionary principle has a very crucial link with the concept of sustainable development.[10] The Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 1991 (Bamako Convention) stated that the signatories should adopt and implement precautionary and preventive measures to prevent the release of such substances in the environment which harms the environment, even when there is scientific proof available that such substances are causing the harm.[11]

In the year 1992, the signatories of the Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes was introduced. The signatories to this Convention decided to be guided by the Precautionary Principle.[12]

The year of 1992 was very important in this regard. There was a convergence of the precautionary principle and the climate change issue in International Law. The Precautionary Principle was acknowledged on an international level when the UN Framework Convention on Climate Change was adopted.

Precautionary Principle and Indian Law

The Indian Judiciary actively supports the Precautionary Principle. In the judicial pronouncement of Vellore Citizens Welfare Forum v UOI,[13] the Court opined that sustainable development t is the need of the hour. The court emphasized on the fact that there should be a balance between economic growth and protection of the environment. The Court rejected the traditional concept that ecology and development are opposed to each other. The Court also reviewed the development of the concept of sustainable development in the international sphere. The Court referred to the Stockholm Declaration of 1972, Caring for Earth, 1991, the Earth Summit, and the Rio Declaration of 1992 and opined that the Precautionary Principle and the Polluter Pays Principle are indispensable features of Sustainable Development. In the case of M C Mehta v Kamal Nath, the Supreme Court reiterated the decision given in Vellore Citizens Welfare Forum case stating that the Precautionary Principle is a part of the environment law in India.[14]

The Precautionary Principle was very comprehensively reviewed by the Apex Court in the case of AP Control Pollution Board vs. Prof M V Nayadu.[15] The Court stated that it is better to go wrong in taking caution and prevent environmental harm rather than waiting for the issue to materialize into an irreversible problem. The Court opined that the Precautionary Principle was evolved because of lack of scientific certainty only, and the principle involves anticipating the harm the environment may suffer and act on the basis of that. In the case of Narmada Bachao Andolan v UOI,[16] the Apex Court very clearly laid down the proposition of law, and specifically of Precautionary Principle. The Court stated that when an issue pertains to environmental damage, the onus of proof is on the person who is contending that the activities carried on by him are not harmful to the environment. The party who is giving such contention also has to satisfy the Court of the same, that there will be no environmental degradation due to his activities.

Concluding Remarks

Apart from being a part of the environmental protection instruments, Precautionary Principle has also become a crucial part of the Public International Law. With the law gaining significant momentum in the sphere of sustainable development, it is only inevitable that concept such as these is accepted by all the nations. Precautionary Principle, a fundamental element of sustainable development has been discussed much in the legal context, but improvements are still needed in implementation. Many countries still do not follow such principles because they believe that it’ll add to unnecessary expenditures and cost, to react proactively, without any concrete data. They believe in relying upon conclusive data to formulate plans and policies. This is done with the view that when plans and policies are made on the basis of conclusive data, they are at their optimal level.

Judiciary plays an immense role in linking the law with the concept of sustainable development. So, it is vital that the judiciary also supports this kind of approaches. The support of the judiciary is required so that protection of environment gets a legal sanctity. As an offshoot of legal recognition, the Precautionary Principle was also adopted by the National Environmental Policy as a guiding principle. However, there is still a long way to go for the Precautionary Principle to gain its rightful place in the field of environmental law. And till it does not get its rightful place, it will be very difficult to implement it.

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

[2] http://coe.mse.ac.in/dp/Precaution-Kavi.pdf

[3] Address of His Holiness the XIV Dalai Lama on 7 June 1992 to the Parliamentary Earth Summit (Global Forum) of the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil (Environment and Development Desk, 2004: 26).

[4] http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_10jan06_preston.pdf

[5] Principle 15 of Rio Declaration.

[6] Vienna Convention for the Protection of the Ozone Layer: Preamble.

[7] Montreal Protocol on Substances that Deplete the Ozone Layer: Paras 6 and 8.

[8] Second North Sea Conference Ministerial Declaration, 1987: Articles VII, XV(i) and XVI, http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_10jan06_preston.pdf

[9] Convention on the Protection of the Marine Environment of the North–East Atlantic: Article 2(2) (a). This Convention is not yet in force.

[10] Bergen Ministerial Declaration on Sustainable Development in the Economic Commission for Europe Region: para 7.

[11] Bamako Convention: Article 4(3) (f).

[12] Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes: Article 2(5) (a).

[13] AIR 1996 SC 2715.

[14] (1997) 1 SCC 388.

[15] AIR 1999 SC 812.

[16] AIR 2000 SC 3751.