Environment Law - Precautionary 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 (Principle 6 of Stockholm Declaration, 1972),
which assumed that science could provide policy makers with the information and
means necessary to avoid encroaching upon the capacity of the environmental 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 in order to avoid such harm.
Later, the emphasis shifted to the “Precautionary
Principle” (11th Principle of UN Resolution on World Charter
for Nature, 1982), and this was reiterated in the Rio Conference
of 1992 in its Principle 15.
The incorporation of precautionary principle is found in various
international legal instruments.
- The Nineth
Preambular Paragraph of the Convention on Biological Diversity, 1992 “lack
of scientific certainty should not be used as a reason to post pose
measures to avoid or minimize a threat.
- Article 3.3 of the
Convention on Climate Change, 1992, “The parties should take precautionary
measures to anticipate, prevent or minimize the causes of climate change and
mitigate its adverse effects.”
- In 2000, the European
Commission dealt with the various aspects of implementing the
precautionary principle and stated that it would be applicable where
preliminary objective scientific evaluation indicates that there are reasonable
grounds to believe that the potentially dangerous effects on the environment
and human. etc., may be inconsistent with the high level of protection chosen
for the community.
In India, there are lots of environmental regulations
that aim at cleaning up pollution and controlling the amount released in the
environment. These laws are based on the assumption that humans and ecosystems
can absorb a certain amount of contamination without being harmed. But a past
experience shows it is very difficult to know what levels of contamination are
safe.
The principle of precaution involves involves the anticipation of
environmental harm and taking measures to avoid it or to choose the least
environmentally harmful activity. Environmental protection should not only aim
at protecting health, property and economic interest but also protect the
environment for its own sake.
In A.P. Pollution
Control Board v. Prof. M.V. Nayudu
(1992) 2 SCC 718, the inadequacy of science is the real basis that has
led to the precautionary principle. 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 indeed become irreversible.
The Indian Supreme Court has accepted in Vellore Citizens Welfare Forum v. Union of India [AIR 1996 SC
2715] case that precautionary principle is a part of environmental law
of the Country. The essential ingredients of the precautionary
principle are:-
(i)
Environmental measures- by the State Government and the statutory
authorities-must anticipate, prevent and attack the causes of environmental
degradation.
(ii)
When there are threats of serious and irreversible damages, lack
of scientific certainty should not be used as a reason for postponing measures
to prevent environmental degradation.
(iii)
The “onus of proof” is on the actor or the
developer/industrialist to show that his action is environmentally benign.
In M.C.Mehta v. Union of India AIR 1997 SC 734,
the Supreme Court dealt with the problem of protecting the Taj Mahal from
pollution of nearby industries. The Court held that “environmental measures
must anticipate, prevent and attack the causes of environmental degradation.
The onus of proof is on the industries to show that its operation with the aid
of coal is environmental benin.” It was rather, proved beyond doubt that
emissions by industries in TTZ was main polluters of ambient air.
In Badkhal & Surajkund Lakes Case (1997) 3 SCC 715,
the SC held that the precautionary principle made it mandatory for the State
Govt. to anticipate, prevent and attack the causes of environment degradation.
In order to protect the lakes, it was necessary to limit the construction
activity in the close vicinity of the lakes.
Though precautionary principle has emerged as a basic guideline
for the exercise of government discretion, the problem is that there is not
much consensus on the exact scope of the principle. Every activity is fraught
with certain risks and there can never be full scientific certainty. Taken
literally, the principle would be: “Don’t do anything”.
Precautionary Principle supplements the Polluter Pays Principle.
