PRECAUTIONARY PRINCIPLE

The precautionary principle is one of the most contentious principles in contemporary

international legal developments. It 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 precautionary principle states that if there is risk of severe damage to humans and/or the
environment, absence of incontrovertible, conclusive, or definite scientific proof is not a
reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional
reactive wait-and-see approach to environmental protection. In simple words, precautionary
principle is a notion which supports taking protective action before there is complete
scientific proof of a risk, i.e action shouldnt be delayed simply because full scientific
information is lacking.

There are two widely referred definitions of Precautionary Principle The first one, The Rio
Declaration {principle 15} (or Agenda 21) of 1992, states that 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.

It is interesting to note the differences between the two definitions. The first one stresses on
serious or irreversible damage, whereas the second one states that precaution is relevant to
harm in general. Thus the second definition is typical of the way in which the precautionary
principle is used by environmental advocacy groups.

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

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) Framework Convention on Climate Change, 1992 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 does not directly use the term precaution but
interprets the serious and irreversible harm referred in the Rio declaration in the context of
biodiversity. It states, where there is a threat of significant reduction or loss of biological
diversity, lack of full scientific certainty should not be used as a reason for postponing
measures to avoid or minimize such a threat.

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.

The Precautionary Principle has not been explicitly mentioned in any environmental laws in
India. However, the Supreme Court of India has invoked the principle while passing various
judgements.

The Supreme Court of India in Vellore Citizens Welfare Forum vs Union of India has
declared that the precautionary principle is an essential feature of sustainable development.
The Supreme Court of India first invoked the precautionary principle in this case. Drawing
support from various Articles of the Constitution of India and arguing that the precautionary
is part of customary international laws (and hence part of domestic laws), the Court strongly
supported the application of precautionary principle. In fact, the Court also applied the
reversal of burden of proof and demanded that the proponents of the activity must
demonstrate that the activity is environmentally benign.

The precautionary principle was directly applied by the Supreme Court in MC Mehta vs UOI
for protecting the Taj Mahal from air pollution. The court observed that the atmospheric
pollution in Taj Trapezium Zone (TTZ) has to be eliminated. The court held that the
industries, identified by the Pollution Control Board as potential polluters, had to change over
to natural gas as an industrial fuel and those who were not in a position to obtain gas
connections should stop functioning in TTZ.

In AP Pollution Control Board vs Prof. M.V. Naidu, 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.

The Supreme Court in Badkhal and Surajkund Lakes Case held that Precautionary Principle
made it mandatory for the State Govt to anticipate, prevent and attack the causes of
environmental degradation.
In Narmada bachao Andolan vs UOI, 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 TN Godavarman vs UOI, the court recognised the importance of Indias treaty obligations,
placing the precautionary principle in the context of CBD. In this case, mining in the
Kudermukh National Park was deemed to be inconsistent with the precautionary nature of
Indias treary requirements. The Govt was held responsible for adhering to its treaty
responsibilities that did not conflict with domestic status.

The precautionary principle has been viewed as an important elemental policy since the Rio
Declaration of 1992 and is widely believed to be favourable to the conservation of existing
natural environments and the current stock of biodiversity. Earlier, Precautionary Principle
was only used on the matter of environmental pollution but today this is being used to deal
with the wild life protection, biodiversity conservation, protection of shrimps, matters related
to climate change etc.