AMITY LAW
SCHOOL
NOIDA
ASTHA SHARMA
A3211116309
B.A,L.L.B
SECTION B
Acknowledgement
I would like to express my special thanks of gratitude to my
teacher MS VARUNI
as well as our principal who gave me the golden opportunity to
do this wonderful project on the topic PRECAUTIONARY
PRINCIPLE, which also helped me in doing a lot of Research
and i came to know about so many new things I am really
thankful to them. Secondly i would also like to thank my parents
and friends who helped me a lot in finishing this project within
the limited time. I am making this project not only for marks but
to also increase my knowledge.
THANKS AGAIN TO ALL
INTRODUCTION
Environmental law regularly operates in areas complicated by high levels of scientific
uncertainty. In the case of many activities that entail some change to the environment, it is
impossible to determine precisely what effects the activity will have on the quality of the
environment or on human health. Often available scientific evidence provides us cause for
concern but does not give conclusive information. In such scenarios risk assessment compels us
to strike a balance between the need to protect health and environment on one hand, and the
foregone advantages of strict restrictions that may turn out to be unwarranted. It is in this context
the role for Precautionary Principle emerges. While deciding the need and timing of the
application of the Precautionary Principle, it is important to clearly understand the principle and
its consequences.
The Precautionary Principle is one of the most contentious principles in contemporary
International legal developments. The very fact that is, a principle of international environmental
law has been questioned by many legal scholars. However, this does not take away the fact that
the Precautionary Principle continues to be applied widely across sectors both internationally and
nationally. The nature and scope of its application has varied widely according to the context and
sector within which it has been applied.
Precautionary Principle plays a significant role in determining whether developmental process
is sustainable or not. Precautionary Principle underlies sustainable development which requires
that the developmental activity must be stopped and prevented if it causes serious and
irreversible environmental damage. The emergence of Precautionary Principle marks a shift in
the international environmental jurisprudence- a shift from assimilative capacity principle to
Precautionary Principle.
MEANING AND CONCEPT OF PRECAUTIONARY PRINCIPLE:
The Precautionary Principle is a tool for making better health and environmental decisions. It
aims to prevent harm from the outset rather than manage it after the fact. In common language,
this means better safe than sorry. The Precautionary Principle denotes a duty to prevent harm,
when it is within our power to do so, In short, the precautionary principle is a notion which
supports taking protective action before there is complete scientific proof of a risk; that is, action
should not be delayed simply because full scientific information is lacking.
In simple terms, the Precautionary Principle conveys the common-sense based advice to err
on the side of caution. The principle intends to prevent harm to humans, environment, and
eco-system at large. Before looking at some of the widely used definitions of the
Precautionary Principle, it would be helpful to understand the context and rationale. When the
impacts of a particular activity such as emission of hazardous substances are not completely
clear, the general presumption is to let the activities go ahead until the uncertainty is resolved
completely. The Precautionary Principle counters such general presumptions. When there is
uncertainty regarding the impacts of an activity, the Precautionary Principle advocates action to
anticipate and avert environmental harm. Thus, the Precautionary Principle favors monitoring,
preventing and/or mitigating uncertain potential threats.
There are two widely referred definitions of the Precautionary Principle. One of the most
important expressions of the Precautionary Principle internationally is in the Rio Declaration
from the 1992 United Nations Conference on Environment and Development, also known as
Agenda 21. The declaration stated: 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.
The second definition is based on 1998 Wingspread Statement on the Precautionary Principle
and it states: ...When an activity raises threats of harm to human health or the environment,
precautionary measures should be taken even if some cause and effect relationships are not fully
established scientifically. The process of applying the precautionary principle must be open,
informed and democratic and must include potentially affected parties. It must also involve an
examination of the full range of alternatives, including no action. In this context the proponent of
an activity, rather than the public, should bear the burden of proof.
Precautionary Principle plays a significant role in determining whether developmental process
is sustainable or not. Precautionary principle underlies sustainable development which requires
that the developmental activity must be stopped and prevented if it causes serious and
irreversible environmental damage. The emergence of Precautionary Principle marks a shift in
the international environmental jurisprudence- a shift from assimilative capacity principle to
Precautionary Principle.
Assimilative Capacity Principle: Assimilative capacity principle underlies earlier legal
measures to protect the environment. Before the Stockholm Conference 1972, the concept of
Assimilative Capacity was recognized at the international level. As per this concept the natural
environment has the capacity to absorb the ill-effects of the pollution but beyond a certain limit
the pollution may cause damage to the environment requiring efforts to repair it. Principles 6 of
the Stockholm Declaration contains assimilative capacity principle which assumes that science
could provide the policy makers with the necessary information and means to avoid encroaching
upon the capacity of the environment to assimilate impacts and it presumes that relevant
technical expertise would be available when environmental harm is predicted and there would be
sufficient time to act in order to avoid such harm.
Assimilative Capacity to Precautionary Principle A Shift: The uncertainty of scientific
proof and its changing frontiers from time to time have led to great changes in the environmental
concepts during the period between the Stockholm Conference of 1972 and the Rio Conference
of 1992. A basic shift to 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. So, Precautionary Principle is a principle which
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. The words substance and activity imply
substance or activity introduced as a result of human intervention.
ORIGIN AND HISTORY OF THE PRECAUTIONARY PRINCIPLE:
The Precautionary Principle is a narrower concept than merely looking for safety. Precautionary
thinking has a much longer history. The Late Lessons from Early Warnings report (2001)
mentions the example of Dr. John Snow who in 1854 recommended removing the handle of a
London water pump in order to stop a cholera epidemic. The evidence for the causal link
between the spread of cholera and contact with the water pump was weak and not a proof beyond
reasonable doubt. The report then mentions a series of other examples, such as asbestos, where a
precautionary approach could have saved many lives if early warnings of potential at the time
unproven but still reducible harm had been taken more seriously.
The Precautionary Principle, however, dates from the 1970s. Some scholars mention a Swedish
and some a German origin of the Precautionary Principle. The term Precautionary Principle had
its origin in the. In Germany the Precautionary Principle may be traced back to the first draft of
a bill (1970) aimed at securing clean air. The law was passed in 1974 and covered all potential
sources of air pollution, noise, vibrations and similar processes. The most unambiguous
elaboration of the Precautionary Principle in German environmental policy is from a later date
and reads: Responsibility towards future generations commands that the natural foundations of
life are preserved and that irreversible types of damage, such as the decline of forests, must be
avoided. Thus the principle of precaution commands that the damages done to the natural world
(which surrounds us all) should be avoided in advance and in accordance with opportunity and
possibility.
BASIC FEATURES OF PRECAUTIONARY PRINCIPLE:
Five Key Elements of the 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
1. Anticipatory Action: There is a duty to take anticipatory action to prevent harm.
Government, business, and community groups, as well as the general public, share this
responsibility.
2. 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.
3. 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.
4. Full Cost Accounting: When evaluating potential alternatives, there is a duty to consider
all the reasonably foreseeable costs, including raw materials, manufacturing,
transportation, use, cleanup, 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.
5. Participatory Decision Process: Decisions applying the Precautionary Principle must be
transparent, participatory, and informed by the best available science and other relevant
information.
WHY DO WE NEED PRECAUTIONARY PRINCIPLE:
The effects of careless and harmful activities have accumulated over the years. Humans and the
rest of the natural world have a limited capacity to absorb and overcome this harm. There are
plenty of warning signs:
Chronic diseases and conditions affect more than 100 million men, women, and children in the
Worldmore than a third of the population. Cancer, asthma, Alzheimer's disease, autism, birth
defects, developmental disabilities, diabetes, endometriosis, infertility, multiple sclerosis, and
Parkinson's disease are becoming increasingly common.
In laboratory animals, wildlife, and humans, considerable evidence documents a link between
levels of environmental contamination and malignancies, birth defects, reproductive problems,
impaired behavior, and impaired immune system function. Scientists' growing understanding of
how biological systems develop and function leads to similar conclusions.
Other warning signs are the dying off of plant and animal species, the destruction of ecosystems,
the depletion of stratospheric ozone, and the likelihood of global warming.
Serious, evident effects such as endocrine disruption, climate change, cancer, and the
disappearance of species can seldom be linked decisively to a single cause. Scientific standards
of certainty may be impossible to attain when causes and outcomes are multiple; latent periods
are long; timing of exposure is crucial; unexposed, control populations do not exist; or
confounding factors are unidentified.
PRECAUTIONARY PRINCIPLE 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, a brief overview of some such initiatives is
provided.
MULTILATERAL ENVIRONMENTAL AGREEMENTS[6]:
a) Montreal Protocol on Substances that Deplete the Ozone Layer, 1987 Parties to this
Protocol, determined to protect the ozone layer by taking precautionary measures to control
equitably total global emissions of substances that deplete it..
b) The Rio Declaration on Environment and Development, 1992 In order to protect the
environment the precautionary approach shall be widely applied by states according to their
capabilities.
c) UN Framework Convention on Climate Change, 1992 Article 3.3 says, The Parties should
take precautionary measures to anticipate, prevent or minimize the causes of climate change and
mitigate its adverse effects.
d) Convention on Biological Diversity, 1992 This Convention does not directly use the term
precaution but interprets the serious and irreversible harm referred in the Rio Declaration in
the context of biodiversity.
e) The Maastricht Treaty of European Union, 1992 Community policy on the environment
must aim at a high level of protection and be based on the precautionary principle, as well as on
the principle that preventive action should be taken, that environmental damage should be
rectified at source and that the polluter should pay.
f) Cartagena Protocol on Bio-safety, 2000 In accordance with the precautionary approach the
objective of this Protocol is to contribute to ensuring an adequate level of protection in the field
of the safe transfer, handling and use of living modified organisms resulting from modern
biotechnology that may have adverse effects on the conservation and sustainable use of
biological diversity, taking into account risks to human health, and specifically focusing on trans-
boundary movements.
g) Stockholm Convention on Persistent Organic Pollutants (POPs), 2001 The objective states,
Mindful of the precautionary approach as set forth in Principle 15 of the Rio Declaration on
Environment and Development, the objective of this Convention is to protect human health and
environment from persistent organic pollutants. This treaty operationalizes precaution with
explicit reference to it in the preamble, provisions for adding POPs, and determination of best
available technologies.
NATIONAL EXPERIENCES:
a) Asia Even though several countries have adopted well drafted environmental and biodiversity
laws, reference to precautionary principle is missing. For instance, Malaysias National
Biodiversity Policy makes explicit reference to the Convention on Biological Diversity (1992)
but refrains from using the term precautionary principle. Similarly other countries in the region,
Vietnam, Indonesia and Lao PDR also do not directly invoke precautionary principle in their
laws. On the other hand, in several countries (e.g., India and Pakistan) the highest judicial
authority has cited precautionary principle in its judgments.
b) Africa Several countries have made explicit reference to precautionary principle in their laws.
c) Latin America Many countries in this region have incorporated precaution as guiding principle
in their national environmental laws. Examples include general and biodiversity related
environmental laws in Argentina, Peru, Costa Rica and Ecuador.
d) Australia The precautionary principle is deeply rooted in Australias environmental policy, as
reflected in the Inter-Governmental Agreement on Environment of 1992, and the Commonwealth
Environment Protection and Biodiversity Conservation Act of 1999.
As mentioned above, precaution is deeply entrenched in the environmental legislations of several
European countries. On the other hand, in the United States of America precaution is rarely
stated explicitly in any of its laws. However, the precautionary the principles are well entrenched
in several protection acts such as Endangered Species Act of 1973, and the Wild Bird
Conservation Act of 1992.
PRECAUTIONARY PRINCIPLE IN INDIAN CONTEXT:
In India, there are lots of environmental regulations but environmental regulations as Water
(Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution)
Act, 1981, and the Environment (Protection) Act, 1986 are aimed at cleaning up pollution and
controlling the amount of it released into the environment. They regulate the harmful substances
as they are emitted rather than limiting their use or production in the first place. These laws are
based on the assumption that humans and ecosystem can absorb a certain amount of
contamination without being harmed. But the past experience shows that it is very difficult to
know what levels of contamination, if any, are safe and therefore, it is better to err on the side of
caution while dealing with the environment
The Precautionary Principle has not been explicitly mentioned in any environmental laws in
India. However, the Supreme Court of India has invoked this principle while passing judgments.
Building on some of the near-precautionary approaches we saw in Indian legislation, in Punjab
v. Modern Cultivators, Ladwaand Rajkot Municipal Corporation v. Manjulben Jayantilal
Nakum expectations for precaution are used as measures of tort liability. The Oleum Gas Leak
Case extends the principle of strict and absolute liability for those engaged in hazardous
activities, thus providing the necessary impetus for precautionary action when dealing with toxic
materials and allowing punishment for a failure to err on the side of caution.
Precautionary Principle does not find any place in judicial decisions in India before Vellore
Citizens Welfare Forum v. Union of India where Supreme Court referred the Brundtland Report
and other international documents in addition to Articles 21, 48A and 51A(g) of the Constitution
of India. And also taken into account the legislative mandate to protect and improve the
environment as found in enactments like the Water (Prevention and Control of Pollution) Act,
1974, the Air (Prevention and Control of Pollution) Act, 1981, and the Environment (Protection)
Act, 1986.
Drawing support from various Articles of the Constitution of India and arguing that the
Precautionary Principle is part of customary international laws (and hence part of domestic
laws), the Court has strongly supported the application of precautionary principle. In fact, the
Court has also applied the reversal of burden of proof and demanded that the proponents of the
activity must demonstrate that the activity is environmentally benign. In this case the Court
explained the meaning of Precautionary Principle in the context of municipal law as under
i. Environmental measures by the State Government and the Statutory Authorities must
anticipate, prevent and attack the causes of environmental degradation.
ii. 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.
iii. The onus of proof is on the actor or the developer/industrialist to show that his action is
environmentally benign.
In Taj Trapezium Case the Supreme Court was dealing with the problem of protecting the Taj
Mahal from the pollution of nearby industries. The Court applied the Precautionary Principle
as explained by it in Vellore case and observed The environmental measures must anticipate,
prevent and attack the causes of environmental degradation. The onus of proof is on an industry
to show that its operation with the aid of coke/coal is environmentally benign. It is rather, proved
beyond doubt that the emissions generated by the use of coke/coal by the industries in Taj
Trapezium are the main polluters of the ambient air.
The court ordered the industries to change over to the natural gas as an industrial-fuel or stop
functioning with the aid of coke/coal in the Taj trapezium and relocate themselves as per the
directions of the Court.
In Calcutta Tanneries Case applying the Precautionary Principle Court ordered the polluting
tanneries operating in the city of Calcutta (about 550 in numbers) to relocate themselves from
their present location and shift to the new leather complex set-up by the West Bengal
Government.
In Badkhal & Surajkund Lakes Case the Supreme Court held that the Precautionary Principle
made it mandatory for the State Government to anticipate, prevent and attack the causes of
environmental degradation. The Court has no hesitation in holding that in order to protect the
two lakes from environmental degradation it was necessary to limit the construction activity in
the close vicinity of the lakes.
Even though the Vellore judgment was followed in the subsequent decisions of the Supreme
Court, the Court felt the need to explain the meaning of the Precautionary Principle in more
detail and lucid manner so that Courts & Tribunals or Environmental Authorities can properly
apply the said principle in the matters which might come before them. In A P Pollution Control
Board v. Prof. M. V. Nayudu the Supreme Court has reiterated its earlier stand on the
precautionary principle and demanded that the burden of proof should rest with the person/entity
proposing the activities (which may have harmful effects on the environment and/or human
beings).
In Narmada Bachao Andolan v. Union of India, precautionary principle came to be considered
by the majority of judges. The Court also took the view that the doctrine is to be employed only
in cases of pollution when its impact is uncertain and non-negligible.
In S. Jagannath v. Union of India, the Supreme Court held that sea beaches and sea coasts are
gifts of nature and any activity polluting the same cannot be permitted. The intensified shrimp
(prawn) farming culture industry by modern method in coastal areas was causing degradation of
mangrove ecosystem, depletion of plantation discharge of highly polluting effluents and
pollution of potable as well as ground water.
In KM Chinnappa, TN Godavarman Thirumalpad v. Union of India, the Court recognized the
importance of Indias treaty obligations, placing the precautionary principle in this case in the
context of the Convention on Biological Diversity. Despite Indias dualist legal tendencies and a
lack of implementing legislation at the time, the government was held responsible for adhering to
its treaty responsibilities that did not conflict with domestic statutes. In this case, mining in the
Kudremukh National Park was deemed to be inconsistent with the precautionary nature of
Indias treaty requirements.
Despite these newly strengthened precautionary statements, the principle has not achieved
complete success in the Indian legal system. In particular, precaution has been waived in cases of
dam building proposals. In 1992, the Tehri dam case suggested that a standard of quite safe
was sufficient despite the tremendous potential damage likely if the dam broke. The Court seems
to have moved on very little since then, declining to apply precaution because the case is not
about a polluting industry. The Court suggests that the precautionary principle is only
applicable where the science is uncertain and damages cannot be calculated. Somehow, it
determines that the future impacts of dam construction on the Narmada River are clear, requiring
mitigation to balance the harm rather than advance precaution. In addition to these judicial
limitations on the precautionary principle, some commentators suggest that the courts
environmentalism is somewhat irrelevant in light of enforcement difficulties.
CONCLUSION
The Precautionary Principle is relatable to risk assessment and environmental impact assessment.
Broadly, it postulates that decisions that may have an impact on the environment need to allow
for and recognize conditions of uncertainty, particularly with respect to the possible
environmental consequences of those decisions. Under the circumstances, it is essential to take
preventive action or avoid effects, which may be damaging even if this cannot be proven. In
short, the Precautionary Principle is a notion which supports taking protective action before
there is complete scientific proof of a risk; that is, action should not be delayed simply because
full scientific information is lacking.
The precautionary principle has been viewed as an important element of environmental policy
since the Rio Declaration of 1992 and is widely believed to be favorable to the conservation of
existing natural environments and the current stock of biodiversity including measures to avoid
deterioration in these. Previously Precautionary Principle is being used only on the matter of the
Environmental pollution but today this is being used to deal with the wild life protection,
Biodiversity Conservation, matters related to climate change, protection of shrimps etc.
BIBLIOGRAPHY
1 google scholar
2 wikipedia