Principle 15 of the Rio Declaration is one of the most quoted sources on the precautionary principle. It states, “where there are threats of serious or irreversible damage, a lack of scientific uncertainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” This definition represents a ‘weak’ version of the precautionary principle. The element of ‘uncertainty’ is central to the precautionary principle since it allows preventive measures to be taken once a threat of severe or irreversible harm to the environment has been identified. If the damage is restorable, i.e., not irreversible, then the principle does not apply. Further, a lack of scientific certainty regarding the effects of an activity does not justify inaction. However, while applying the ‘weak’ version, the magnitude of risk that is required for the principle to apply (or trigger) remains an open question. In that regard, the ‘strong’ version of the precautionary principle comes into play, which shifts the ‘burden of proof’ on the proponent of the activity to show that his activity does not pose a threat of severe harm to the environment. Cass Sunstein has criticized the ‘strong’ version, which reverses the burden of proof from the petitioner to the industrialist. He regards it as deeply problematic since it can hamper innovation, creativity, and technological advancement. Accordingly, he argues that the ‘strong’ version of the principle should be rejected.
The Supreme Court of India (“SC”) adopted the ‘strong’ version of the principle as part of the ‘law of the land’ in the Vellore Citizens Welfare Forum v. Union of India and Ors. (“Vellore Case”). However, the application of the precautionary principle in subsequent cases reflects a much broader version, where the courts have emphasized the need for scientific inputs before implementing the principle. In this blog, the author argues that the SC has merged the concept of ‘precaution’ with ‘prevention’. In other words, the author argues that the SC is applying the principle of ‘prevention’ disguised in the name of ‘precaution’. This is problematic, as there exists a thin line between both concepts, which the author will delve into in detail in this blog. It is further argued that this inconsistency has broadened the scope of the precautionary principle than what was initially adopted from the Rio Declaration, thereby leading to ambiguity in the principle’s application.
The Vellore Case and Precautionary Principle
In the Vellore Case, the SC declared the ‘precautionary principle’ as the ‘law of the land’ under Article 21 of the Constitution of India backed by Articles 47, 48A, 51A(g), and India’s wide array of statutory environmental laws. The SC articulated three elements of the ‘precautionary principle’ while referring to the Brundtland Report, the Rio Declaration, and Agenda 21. First, the State Government and the statutory authorities must “anticipate, prevent, and attack” the causes of environmental degradation. The first element is a classic representation of the principle of prevention. Second, “where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as the reason for postponing measures to prevent environmental depredation.” This has been borrowed from the definition given in the Rio Declaration. However, the second element omits the word ‘cost-effective’, which is otherwise present in Principle 15, mainly because the ‘strong’ version does not consider costs in preventive action. Third, the onus of proof is on the actor or the industries to show that their act is environmentally benign. The third element truly reflects the ‘strong’ version of the precautionary principle, as it reverses the burden of proof. In other words, environmental harm is presumed unless the same is established to the contrary. The precise content of the precautionary principle and the obligations that are created when it is triggered remained unanswered in Vellore’s definition. Nevertheless, the SC directed the relevant lower judicial authorities, such as the National Green Tribunal (“NGT”), to implement the precautionary principle while passing any order, decision, or award.
In the Vellore Case, the applicant had requested the SC to order the government to take action against 900 old tanneries that were discharging untreated effluents and causing large-scale pollution of River Palar. Here, the threat of serious damage was apparent. There was no ‘scientific uncertainty’ as to the effects that the tanneries were causing to the environment. The existing laws prohibited such discharge and the damage, on the face of it, was obvious. Further, the regulatory authorities had already directed the tanneries to build treatment plants and control their pollution. Regardless, the SC referred to the precautionary principle in the absence of ‘scientific uncertainty’. This raised the question, particularly among academicians, as to whether the SC’s reference to the precautionary principle was mere obiter.
A few months after the Vellore Case was decided, the SC, in M.C. Mehta v. Union of India (“Taj Trapezium Case”), ordered 292 industries in the proximity of the Taj Mahal to enforce natural gas or other alternative fuels in place of coke/coal as an industrial fuel. The SC acknowledged that the use of coke/coal by the industries was the main contributor to ambient pollution. It stated, “It is rather proved beyond doubt that the emissions generated by the use of coke/coal by the industries in the TTZ are the main polluters of the ambient air.” Regardless, it still shifted the burden of proof on the industries to show that their activities were environmentally benign. Similar to the Vellore Case the SC applied the precautionary principle in the absence of any ‘scientific uncertainty’. Another case in point is A.P. Pollution Control Board II v. Prof. M.V. Nayadu and Ors (“A.P. Pollution Control Board Case”) where the SC dealt with the issue of whether a hazardous industry should be set up within the vicinity of a reservoir used for drinking water. The SC observed, “this is exactly where the precautionary principle comes into play. The chance of an accident within such close proximity of the reservoirs cannot be ruled out.” Here also, the SC applied the principle even when there was no ‘scientific uncertainty’ on the impact that an accident might cause to the environment and human health. The SC upheld the ‘reversal of the burden of proof’ doctrine, as discussed in the Vellore Case, and stated, “The burden as to the absence of the injurious effect of the action proposed is placed on those who want to change the status quo.”
The inconsistency of the judicial approach developed when the SC, in Narmada Bachao Andolan v. Union of India and Ors. (“NBA Case”), refused to apply the precautionary principle. The NBA Case was concerning the adverse environmental effects of the construction of dams and other projects on the Narmada River. According to the SC, the precautionary principle does not apply in cases “where the effect on ecology or environment of setting up of an industry is known.” Hence, the SC did not apply the principle because the threat of serious damage to the river was certain. Rather than applying the precautionary principle, the SC applied the principle of sustainable development. It carried out a balancing exercise between the competing interests of social costs and economic development and ultimately, allowed the construction to proceed.
The dissenting opinion of Justice Bharucha is significant to note here. According to him, the construction of the dam should have been stopped, since an Environmental Impact Assessment (“EIA”) was pending. The author agrees with this line of thought. Large dams are usually “ecologically unsound and economically unjustified”, and granting an environmental clearance without considering the consequences of the project on wildlife, forests, agriculture, tourism, etc., is a slippery slope. Recently, in April 2020, Justice Bharucha’s interpretation was reflected in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati and Ors, where the SC held that granting an ex post facto clearance would be contrary to the precautionary principle. The SC, by applying the precautionary principle in its true spirit, stopped industrial activities and held that an Environmental Clearance (“EC”) can be issued only after all the decision making processes of the EIA, i.e., public hearing, screening, scoping, and an appraisal are conducted.
Prevention Disguised in the Name of Precaution
‘Prevention’ and ‘precaution’ are two distinct but closely related concepts in the realm of international law, and both can be traced to the larger concept of ‘due diligence’. However, Indian courts have diluted one or the other of the core elements (irreversible damage and/or scientific uncertainty) of the precautionary principle by broadening its application in different fact scenarios. In doing so, the courts have conflated the concept of ‘prevention’ with ‘precaution’. This is problematic since there exists a thin line between both these concepts. The principle of prevention is implemented to reduce known or certain risks, i.e., where there is a mathematical probability that a hazard will occur. On the other hand, the principle of precaution is applied to anticipate and reduce ‘uncertain’ risks, which has to be backed by a ‘risk assessment’.
In the cases that were decided after the Vellore Case, the SC used the principle of prevention in an illustrative fashion, which was evident in the Taj Trapezium Case and A.P. Pollution Control Board Case. In the NBA Case, the SC provided a narrower interpretation of the precautionary principle, and held that it will be employed only in situations of nuclear establishments and polluting industries where the environmental impact is uncertain and non-negligible. The SC excluded ‘dams’ as neither constituting a nuclear establishment nor a polluting industry and treated it as a different category altogether. It balanced the social costs with economic development without analyzing the extent of damage that was likely to be inflicted and whether it was certain or uncertain. The SC took note of the heavy investments that were already spent on the construction of the dams and held that the economic considerations outweighed the social costs. Contrastingly, this ‘balancing exercise’ was not performed in the Taj Trapezium Case, particularly because the case involved the preservation of the Taj Mahal, a prestigious monument, which had to be preserved at any cost. Interestingly, there were neither any heavy financial investments involved nor “any sentiment of national or international pride” that was attached to the tanneries in the Vellore Case.
The above-mentioned inconsistencies have been analyzed as revealing an indigenous understanding of the precautionary principle. The principle is applied not only in cases where the threat of serious damage to the environment is imminent but also in cases where the damage is ongoing. The principle is often applied in the absence of ‘scientific uncertainty’. Thereafter, the SC reverses the ‘burden of proof’ to give relief to the petitioner and the environment. This approach by the Court has contributed to the evolution of a broad version of the principle in India. The principle has been used liberally and the absence of “specificity and concreteness” in its application is evident. In simpler words, the courts, while citing the precautionary principle, are “in fact engaging prevention as broadly conceived rather than narrowly conceived precaution.”
According to Ronald Dworkin and his reference to the doctrine of political responsibility, judges have to decide cases in line with the other decisions they propose to make or have made. However, as we have seen above, the application of the precautionary principle in India is clearly at odds with this idea. The Vellore Case and the NBA Case are contrasting judgments. The SC has applied the precautionary principle inconsistently, by diluting one or the other of the requirements of the principle. This has blurred the distinction between the concepts of ‘prevention’ and ‘precaution’. Moreover, there exists confusion as to the relationship between precaution and sustainable development. To conclude, it is important that the SC uses objective standards in their application of the precautionary principle.
This article has been authored by Gursehaj Singh, student at Jindal Global Law School, Sonipat.