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Precautionary Principle in the Context of Indian and International Environmental Laws


Introduction

Environmental law is the collective term encompassing all the aspects of laws relating to the protection of the environment. Environmental laws can be defined as a network of regulations and customary laws that address the effects of human activity on the environment and provide many solutions to it. These laws are centered on the idea of environmental pollution with the sole aim to protect and conserve the ecosystem and biodiversity. The key areas where the environmental law works are Air quality, waste management, water quality, resource sustainability, etc.


Environmental law is necessary to combat issues related to the environment and the conservation of natural resources. These laws ensure that no individual, government or multinational corporate do not cause any harm to the environment or its ecosystem. Non-compliance with these laws results in various punishments like imposition of fines, community service and in some exceptional cases even imprisonment. Thus looking at the rate of exploitation and the depletion of the environment these environmental laws are the need of the hour in any country.


Precautionary Principle


Introduction:

The uncertainty surrounding the potential threat to the environment has time and again been used as a defense to avoid taking action to the environment. It is not always possible to have clear evidence or foreseeability of the threat to the environment before the damage occurs. The precautionary principle or precautionary approach is the response to this sort of uncertainty in connection to the environment.


As it's already known that environmental law works in areas complicated by high levels of scientific uncertainty these precautionary principles play a very important role in protecting the environment against any potential harm. It is impossible to determine precisely what effect human activity can have on the environment. For example, we cannot determine whether the certain rate of soil pollution will lead to an increase in mortality rate due to the depletion of the health of people, whether a certain level of water pollution will reduce the marine life, whether a certain level of increase in air pollution will increase the patients of respiratory diseases, etc.


Here the precautionary principle comes into the picture. The precautionary principle requires that, if there is a strong suspicion that a certain human activity will lead to the depletion of the environment and will have harmful consequences it is better to control that activity now than to wait for the incontrovertible scientific shreds of evidence and the future consequences.


This principle is expressed in the Rio Declaration which stipulates that 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.”

In short, the principle states that if there is a risk of severe damage to humans and the environment, the absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. This principle shifts the burden of proof on the person who asserts that the activity would not be harmful to the environment or human existence.


History

The principle as it stands today has its root in the 1960s when the adverse effect of the pesticide DDT was noticed. It was further strengthened when Germany adopted it in its environmental law. However, it was internationally acknowledged in the early 1980s, when environmental degradation became a matter of concern for the international community. Since then it has been a part of instruments and documents like the Rio Declaration, Vienna Convention on Ozone Layer, Agenda 21, Framework Convention on Climate Change and many international laws among others. It has become an integral part of Indian environmental jurisprudence. It has been reiterated in numerous landmark judgments. The precautionary principle has become an intrinsic part of public international law.


Precautionary Principle and Indian Environmental Laws

The Indian courts have expressly embraced the precautionary principle. This principle was reiterated in many landmark judgments. In the landmark judgment of Vellore Citizens Welfare Forum v. Union of India, the petitioners filed a petition in the public interest under Article 32 of the Constitution of India, directed against the pollution caused by an enormous discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. The court held that:


“Though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues it has no right to destroy the ecology, degrade the environment and pose as a health hazard”. The Court recognized that a balance must be struck between the economy and the environment:


“The traditional concept that development and ecology are opposed to each other is no longer acceptable; ‘Sustainable Development’ is the answer.”

The Supreme Court held that “the precautionary principle and the polluter pays principle are part of the environmental law of the country.”


In M.C Mehta v. Kamal Nath, the Supreme Court of India affirmed the decision in Vellore Citizens’ Welfare Forum v Union on India, upholding the precautionary principle as part of the environmental law of India.


In Narmada Bachao Andolan v. Union of India, the Court was called upon to decide various legal questions arising from the Sardar Sarovar Project involving the construction of a dam on the Narmada River. An environmental clearance had been given for the project. At the time it was granted there was no obligation to obtain any statutory clearance and hence the environmental clearance granted was essentially administrative in character. The environmental clearance was challenged on the grounds that the necessary particulars in regard to the environmental impact of the Project were not available when the environmental clearance was given and it, therefore, could not have been given. It was further alleged that the execution of the project, having a diverse and far-reaching environmental impact, without proper study and understanding of the environmental impacts and without proper planning of mitigative measures, was a violation of fundamental rights of life of the affected people guaranteed under Article 21 of the Constitution of India. In the process of construction of the dam 245 villages from the States of Madhya Pradesh, Gujarat and Maharashtra were expected to get submerged. It required the relocation of around two and a half lakh people from these villages. Issues of relocation and proper rehabilitation of the project-affected people were raised by many local activist groups.

In the course of the judgment, the majority noted the submission of the petitioners that “in cases pertaining to the environment, the onus of the burden of proof is on the person who wants to change the status quo and, therefore, it is for the respondents to satisfy the Court that there will be no environmental degradation.”


The Oleum Gas Leak Case (M. C. Mehta v. Union of India, Writ Petition (Civil) 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 and International Environmental Laws.

  • There are several countries that have adopted well-drafted environmental and biodiversity laws, but a direct reference to the ‘precautionary principle’ is missing. These countries include Malaysia, Vietnam, Indonesia and Lao PDR.

  • Pakistan and India give great importance to it. In the way that their highest judicial authority has cited ‘precautionary principle’ in its judgments.

  • The precautionary principle originated in Sweden, as Beyerlin and Marauhn (2011) explain, where a domestic statute (the Environmental Protection Act of 1969) introduced the concept of environmentally hazardous activities for which the burden of proof was reversed. It became a core principle in Europe, and today it is part of European Union law, as established in the Maastricht Treaty.

  • Several countries have made explicit reference to the ‘precautionary principle in their laws. For Example - the 1997 Mozambique Environment Legislation, the 1996 General Environmental Law of Cameroon, and South Africa’s National Environmental Management Act.

  • – Many countries in the Latin American region have incorporated precaution as a guiding principle in their national environmental laws. These include general and biodiversity-related environmental laws in Argentina, Peru, Costa Rica and Ecuador.

  • The Precautionary Principle is deeply rooted in Australia's environmental policy, as reflected in the Inter-Governmental Agreement on Environment of 1992, and the Common wealth Environment Protection and Biodiversity Conservation Act of 1999.

  • 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 principles are well entrenched in several protection acts such as the Endangered Species Act of 1973, and the Wild Bird Conservation Act of 1992.

  • Countries like Australia, New Zealand and France have very stringent laws on precautionary Principles.

  • There are many international statutes and agreements which talks about precautionary principles. These include Montreal Protocol on Substances that Deplete the Ozone Layer, 1987; The Rio Declaration on Environment and Development, 1992; UN Framework Convention on Climate Change, 1992; Convention on Biological Diversity, 1992; The Maastricht Treaty of European Union, 1992; Cartagena Protocol on Bio-safety, 2000; Stockholm Convention on Persistent Organic Pollutants (POPs), 2001.


Conclusion

The law on sustainable development and environmental conversation is gaining momentum at local, national, regional, and international levels. The precautionary principle regarded as one of the most important principles is gaining widespread importance at the international level, with many countries realizing a need to make stringent laws to protect the environment. The fight is still not over, it's just the beginning there is still a lot that needs to be done. It is important for all the countries to come together so that we can preserve the environment by taking appropriate precautions and putting stringent laws in place.


-Nikhil Saurabh


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