Precautionary Principle and its application in India
Water, Air, land and nature – the basic four ‘elements’ of nature that makes our environment as well as the base of all the necessities humanity needs to thrive and develop on. And once humanity caught on how their actions might be harming the environment negatively, they made on some basic laws to protect and, in certain scenarios, compensate it.
And while every man has the right to freedom, equality and adequate conditions of life, none have the right to deteriorate the quality of the environment for their comfort, causing other living beings (humans or not) harm in their living conditions. This basic fact was highlighted in the 1972 Stockholm Declaration, where it was internationally recognised that every man has the fundamental right to live in an uncontaminated environment, but it also means that this right comes in with a man’s duty/obligation to protect the environment for not only the present generation but the future ones as well.
Since the Stockholm Declaration, the concept of ‘Sustainable Development’ was popularised as it presented a balanced scale of development along with preservation of the environment. This concept has been adopted by many nations in their industrial sectors while the judiciary of several nations also attempted to implement the use of this concept through several principles on the environment, like Inter-Generational Equity, Environmental Protection, Eradication of Poverty, Use and Conservation of Natural Resources, Obligation to assist and cooperate, Financial Assistance to the developing countries, Polluter Pays principle and Precautionary principle.
These principles emerged as the salient features of Sustainable development and soon the Judiciary of many countries started to apply these to the environmental laws of their respective nations – including India. The Supreme Court of India especially laid down that the ‘Precautionary principle’ and the ‘Polluter Pays principle’ are essential features of Sustainable development; thus, also becoming an essential part of the Environmental laws of the nation in turn. In this article, we’ll be exploring the concept of the Precautionary principle and its application in India.
This environmental principle establishes the ideology that lack of current information on a subject does not justify the absence of management measures to prevent damages – that is, in simpler terms, just because something never happened or haven’t happened yet does not mean one should not take appropriate precautions for it. In fact, the management measures should be established in such a way that not on any future damages could be prevented, but also resources would be conserved in any case things go south.
This principle solely works on the idea of assumption and methods for the determination of future ‘what if’s in case of any mishap and preparing in accordance with that – however, based on the scientific basis of the management. This is why it is called the ‘precautionary’ principle because it is based on the idea of taking preventive measure before the disaster happens. That is, the management measures should be made in such a way that it is implemented in accordance to the changes or problems that may arise in the future.
Based on this definition, there are four essential ingredients of the precautionary principle that are given as below:
- The government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation from the very root;
- Precautionary duties must be acted upon concern or potential risk of a mishap rather than waiting for the suspicion of concrete danger;
- If there is a threat of any serious or irreversible damage to the environment or a resource, lack of scientific certainty should not be used as an excuse to not act on the threat or postpone action regarding the implementation of measures to prevent any environmental damage;
- The ‘Onus of Proof’ is not on the petitioner, but rather the developer or owner of the industry/plant regarding their actions (individually or through the industry/plant) not causing environmental degradation.
This principle is often used as a base of developing any Act or law with the objective of conservation and protection of the environment, alongside the judicial decisions on the cases related to environmental issues. One such case was the M.C. Mehta v/s Union of India which was more commonly known as the ‘CNG Vehicle case’ or the ‘Vehicular Pollution case.’
In this landmark judgement, the petitioner M.C. Mehta, who is a famous public interest litigator and social worker, filed a writ petition regarding the (then) current measures and laws on transportation and his concern over how these measures did not account for the current needs of the ever-growing population of the Capital State of the nation. In addition to that, due to the rapidly increasing population of Delhi and the resulting increase in the number of vehicles for transportation of this population caused a rapid increase in the pollution of air of the whole Union Territory which was not only harmful; to the environment, but also the people living there.
Thus, in this case, the Court observed that the doctrine of Precautionary principle enshrined in the very concept of sustainable development could be applicable here and based on that, government and its authorities should take appropriate actions to prevent further air pollution and environmental degradation than it already has caused.
Furthermore, the effects of air pollution on human philology, especially the younger people, was reported to be as drastic as the aftermath of the Bhopal Gas Tragedy – causing the people to be agitated as no measure was taken. In such a scenario, the Court stood up to issue some directions to the executive organ of the Government on following anti-pollution measures like usage of CNG instead of petrol and diesel in the vehicles.
The Court also held that CNG should be more prioritised than then other, less eco-friendly outlets like petrol and diesel; and if there is a shortage of the said fuel, then there should be no such reason to not import it to ensure less pollution and, in turn, better health of the public. In addition to that, vehicles with appropriate compatibility with CNG as well as engines and mechanical parts producing fewer air pollutants should be started manufacturing in accordance with the guidelines established by the Pollution Control Board.
- Shyam Diwan & Armin Rosencranz, ‘Environmental Law and Policy in India’, Oxford University Press
- Krishan Keshav, ‘Law and Environment’, Singhal Law Publications
- Gurdip Singh, Environmental Law in India, MacMillan Publisher
 1991 SCR (1) 866, 1991 SCC (2) 353
Author: Debapriya Biswas,
Amity Law School, Noida (2nd year)