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.
The precautionary principle traces its origins to the early 1970s in the German principle ‘Vorsorge’, or foresight, based on the belief that the society should seek to avoid environmental damage by careful forward planning. The ‘Vorsorgeprinzip’ was developed into a fundamental principle of German environmental law and invoked to justify the implementation of robust policies to tackle acid rain, global warming and North Sea pollution. The precautionary principle then flourished in international statements of policy. On a national level, several countries have used the precautionary principle to guide their environmental and public health policy. In the United States e.g., the precautionary principle is not expressly mentioned in laws or policies. However, some laws have a precautionary nature, and the principle underpins much of the early environmental legislation in this country (The National Environmental Policy Act, The Clean Water Act, and The Endangered Species Act).
The precautionary principle is based on the adage that ‘it is better to be safe than sorry’. However, there is no universally accepted definition of the principle. The Rio Declaration states: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 (Rio Declaration 1992, Principle 15).
Basic Features of Precautionary Principle
The precautionary principle represents a paradigm shift in decision – making. it allows for five key elements that can prevent irreversible damage to people and nature.
- Anticipatory Action: There is a duty to take anticipatory action to prevent harm. Government, business, and community groups, as well as general public, share their responsibility.
- Right to know: The community has a right to know complete and accurate information on potential human health and environmental impacts associated with the selection of products, services, operations, or plans. The burden to supply this information lies with the proponent, not with the general public.
- Alternatives Assessment: an obligation exists to examine a full range of alternatives and select the alternative with the least potential impact on human health and the environment, including the alternative of doing nothing.
- Full cost accounting: when evaluating potential alternatives, there is a duty to consider all the reasonably foreseeable costs, including raw materials, manufacturing, transportation, use, clean-up, eventual disposal, and health costs even if such costs are not reflected in the initial price. Short and long-term benefits and time thresholds should be considered when making decisions.
- Participatory Decision Process: Decisions applying the precautionary principle must be transparent, participatory, and informed by the best available science and other relevant information.
Indian Judiciary and Precautionary Principle
Kuldeep Singh J in Vellore Citizens Welfare forum v. Union of India explained the “precautionary principle” as follows:
The ‘precautionary principle’ in the context of municipal law means:
- Environmental measures – by the state government and statutory authorities-must anticipate, prevent and attack the cause 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 also directed the Tamil Nadu High Court to constitute aspecial bench, the “Green Bench” to deal with cases involving environmental matters.
In M.C Mehta v. Union of India, the court clarified: Mining within the principle of sustainable development comes within the concept of ‘balancing’ whereas mining beyond the principle of sustainable development comes within the concept of ‘banning’. It is a matter of degree. Balancing of the mining activity with environment protection and banning such activity are two sides of the same principle of sustainable development. They are parts of precautionary principle.
“The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the constitution of India guarantees protection of life and personal liberty. Article 47, 48A and 51 A (g) of the constitution.
Apart from the constitutional mandate to protect and improve the environment there are plenty of post-independence legislations on the subject but more relevant enactments for our purpose are: The Water (prevention and control of pollution) Act, 1974 (the Water Act), the Air (prevention and control of pollution ) Act, 1981 (the Air Act) and the Environment protection Act, 1986 (the Environment Act). The Water Act provides for the constitution of the central pollution control Board by the Central government and the constitution of the state pollution control boards by various state governments in the country.
The Boards function under the control of the governments concerned. The water act prohibits the use of streams and wells for disposal of polluting matters. also provides for restrictions on outlets and discharges of effluents without obtaining consent from the board. Prosecution and penalties have been provided which include sentence of imprisonment.
The Air Act provides 167 that the Central Pollution Control Board and the State pollution control Boards constituted under the Air Act, is to improve the quality of the air and to prevent, control and abate air pollution in the country. ”
Thus, the precautionary principle has developed by the judiciary in India according to the requirements for the protection of environment.
Precautionary in practice
Several multilateral environmental agreements refer to precautionary principle in some form, but rarely provide elaboration into specific guidance. Similarly, several national level environmental initiatives invoke the precautionary principle. Here, some such initiatives is provided.
- Multilateral environmental agreements
- Montreal Protocol on Substances that Deplete the Ozone Layer, 1987
- The Rio Declaration on Environment and Development, 1992.
- UN Framework Convention on Climate Change, 1992
- Convention on Biological Diversity, 1992
- The Maastricht Treaty of European Union, 1992
- Cartagena Protocol on Bio-safety, 2000
- Stockholm Convention on Persistent Organic Pollutants (POPs), 2001
- National Experiences: Asia, Africa, Latin America, Australia, etc.
Critics of the principle use arguments similar to those against other formulations of technological conservatism. Internal inconsistency: applying strong Precautionary Principle risks causing harm.
Strong formulations of the precautionary principle – without regard to its most basic provisions (i.e., that it is to be applied only where risks are potentially high and not easily calculable) – when applied to the principle itself as a policy decision, may rule out its own use. The reason suggested is that preventing innovation from coming to market means that only current technology may be used, and current technology itself may cause harm or leave needs unmet; there is a risk of causing harm by blocking innovation.
As Michael Crichton wrote in his novel State of Fear: “The ‘precautionary principle’, properly applied, forbids the precautionary principle.”For example, forbidding nuclear power plants based on concerns about risk means continuing to rely on power plants that burn fossil fuels, which continue to release greenhouse gases.
In another example, the Hazardous Air Pollutant provisions in the 1990 amendments to the US Clean Air Act are an example of the Precautionary Principle where the onus is now on showing a listed compound is harmless. Under this rule no distinction is made between those air Pollutants that provide a higher or lower risk, so operators tend to choose less-examined agents that are not on the existing list.
Coronavirus and Precautionary Principle
To stop the spread of the novel coronavirus pandemic, countries around the world have continued to enforce lockdown measures, even as they cause a severely detrimental impact on the global economy. The aggressive methods to halt the virus by suspending mobility are examples of a strategy known as the ‘precautionary principle’.
Thus, it is clear that judiciary in India is playing a very vital role in preservation &protection of environment. Environment is being polluted at huge extent because of development in the fields of science, technology and industry. Now-a day the protection of environment is becoming a big challenge for judiciary as well as to the government of India. Hence it is necessary for the government to give proper effect to the “precautionary principle” through its acts and policies.
Frequently Asked Questions (FAQs)
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