Saving the environment: Examining and countering criticisms to the Precautionary Principle

Introduction:

The origin and evolution of environmental law in India can largely be attributed to the rise in global concern regarding environmental degradation in the 1970s[1], where India’s participation was noteworthy. This, coupled with the rise of judicial activism of the 1980s, in the post-emergency period in India can be credited as the beginning of environmental law jurisprudence in India. This included the beginning of the era of Public Interest Litigations after the Supreme Court’s landmark judgement in the SP Gupta case[2], opened its doors for the numerous environmental concerns.

Over the years, judicial activism has taken creative approaches and enlarged the scope of the fundamental right to life under art. 21 of the Constitution to recognize right to clean and wholesome environment[3] in absence of an express provision in the constitution. They have also highlighted other constitutional provisions which enumerates the states’ duty to protect the environment under art. 48A of the Directive Principles of State Policy and duty of the citizens to do the same under art. 51 A (g).

International environmental law concept of sustainable development which includes precautionary principle, polluter pays principle and public trust doctrine etc. has now been applied and subsumed within Indian environmental jurisprudence by the courts. Precautionary principle is a tool to stop environmentally damaging activities before it can cause any serious harm. This gives leeway to petitioners to ask the court to direct closure or halt of such industrial activities even without solid scientific proof of the type and extent of damage it is likely to cause. Criticisms for the precautionary principle in India as laid down in the famous Vellore case[4], are largely three folds-

  1. Objection to the core concept of the principle itself and how it has been spelled out in Indian jurisprudence,
  2. Shifting of burden of proof to the person dealing with unfriendly environmental activities rather than the person claiming environmental degradation.
  3. Arbitrary application
  1. Criticism of the principle itself
  2. De-incentivizing development and what is meant by sustainable development

The concept of precaution is often seen with negative connotations claiming that this harms developmental activities, does not incentivize scientific and other developmental goals and overall stalls the overall development of the nation and its people. Such sentiments are not unique to India. But the added weight of India being labelled as a developing nation, with the task of someday reaching the status of a developed nation, this view has significant support. Adding to this, another criticism against the concept of precautionary principle in India is the ‘under defined’ use of the term sustainable development. In simple terms, sustainable development refers to the balancing act between development and thriving of environment. Relying on the international environmental conventions, sustainable development has been adequately clarified in the Vellore case to include the following: 1. Inter-Generational Equity 2. Use and Conservation of Nature Resources 3. Environmental Protection 4. Precautionary Principle 5. Polluter Pays principle, 6. Obligation to assist and cooperate 7. Eradication of Poverty and Financial Assistance to the developing countries

  • Criticism of lack of scientific certainty being excused

The main aim of Precautionary principle in India is that where threats of serious environmental damage exists, absence of scientific certainty should not prevent state authorities from taking action The absence of scientific certainty to bring a case against and halt environment sabotaging activities, being excused under the precautionary principle is another point of criticism that many put forward. However, I assert that firstly, it is highly improbable that anybody would take the time and use unnecessary resources to drag polluters to court without substantive evidence. Secondly, if lack of scientific certainty is seen as unfair to the factory owners and proponents of other such potentially environment damaging activities, then it is also unfair to take a back seat and not take any action even when there is a suspicion of the actual consequence of them. In the interest of cost effectiveness surely, taking precaution and ending it or putting a ban or halt in activities is easier than paying heft sums of compensation and loss of livelihoods when things go bad beyond control . Losses are thereby also decreased on both sides.

  1. Criticism of the reversal of the burden of proof

Another one of the main objections to the use of precautionary principle is that how it has been formulated in India with regards to the reversal of burden of proof to the person/people who are responsible for the use of harmful activities in regards to the environment instead of the person making such claims of environment degradation. Objections are based on the above mentioned anxieties about halting developmental activities, de-incentivizing setting up of factories/industries and largely based on the understanding that it is the usually the person who brings a claim to court is the one who has the responsibility of proving their claim. I assert that such reversal of burden of proof is justifiable in case of environmental degradation.

Firstly, severe or permanent environmental damage is and should be considered to be a worse off outcome, as compared to a foregone business opportunity. Secondly, the factory or business owners etc., are often in a better position in terms of the resources available to them to defend their position than the complainants in most of the environment law litigations.

  1. Criticism of arbitrary application

Probably the strongest criticism of the precautionary principle is the instances of its arbitrary application. I agree with the position that the precedents in this regard have shown inconsistent application by the Indian judiciary. For instance, its application in the Vellore case discussed above and the Narmada Bachao Andolan case[5] differs widely and where there was a blatant refusal by the court to apply the principle where it should have been rightfully applied. Reports available to the court in in fact concluded that the environmental impact of the dam on Narmada River is inconclusive, befitting of application of the precautionary principle in the absence of scientific evidence. However, the court refused to do that and instead chose to focus on the economic aspects of the project. Many have criticized the application of the principle when conclusive scientific evidence is actually available to show environmental degradation. The distinction between precaution and prevention then becomes blurry.

Conclusion

Judgments are not just application of the law, logic and resonating. More often than not, they motivated by other external socio-economic factors. Moreover, the motivation behind the establishment of a specialized tribunal to deal with cases of environmental concern highlights the realization that people with specific qualifications are required for effective adjudication on environmental matters. The National Green tribunal has the resources to make its own environmental assessment reports and therefore, in general has been successful in curbing environment damaging activities to a large extent. Therefore there should not be a full rejection of the principle because armful environmental activities often leaves irreparable implications from which it is very difficult to return.  


[1] Stockholm declaration of 1972, Burntland report of 1987 and Rio declaration of 1992 etc.

[2] SP Gupta v. president of India and Ors. AIR 1982 SC 149

[3] Subhas Kumar v. State of Bihar 1991 AIR 420

[4] Vellore Citizens’ Welfare Forum v. Union of India and others [(1996) 5 SCC 647

[5] Narmada Bachao Andolan v. Union of India 10 SCC 664

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