Go to Contents page

Part II

five

The Precautionary Principle

Lavanya Rajamani

India has a wide array of environmental laws,1 an extensive network of environmental governance institutions,2 a vibrant and demanding civil society, and one of the most environmentally sensitive judiciaries in the world. India has a dedicated National Green Tribunal (NGT),3 in operation since 2010. And, India was one of the first jurisdictions to embrace an environmental right.4 It is widely believed to have, more than any other jurisdiction, ‘fostered an extensive and innovative jurisprudence on environmental rights’.5 Indian courts have held the principles of precaution, polluter pays and intergenerational equity as well as the public trust doctrine as integral to the corpus of Indian law.6 This seemingly progressive stance on environmental protection, for which India is often feted internationally, however, hides many flaws in judicial approach and reasoning, which in turn has resulted in the faltering development of environmental jurisprudence, imprecise rights, poorly articulated principles, and the idiosyncratic application of both rights and principles.7 The adoption of the precautionary principle into Indian law, and its subsequent development and application by the Indian courts over the years, presents a revealing case study of this phenomenon.

This chapter will begin by exploring the conceptual underpinnings of the precautionary principle as laid out in international legal instruments, both soft and hard law, as well as statements of international dispute settlement bodies. In particular, this chapter will consider the multiple definitions and legal status of this principle. This backdrop will enable a better appreciation of the Indian cases, several of which gloss over the many definitional and interpretational contestations at the heart of this principle, and attribute a level of normative status and gravitas to it that international courts and tribunals have been reluctant to attribute. The Indian courts have, however, developed an indigenous jurisprudence and understanding of the precautionary principle in the past two decades that is of considerable salience, and merits an analysis on its terms. This chapter will seek to engage in such an analysis.

In order to engage in an analysis of the precautionary principle as it has developed indigenously, this chapter will survey key cases in the Indian judiciary (Supreme Court, High Courts and the NGT) that were either decided on the basis of, or that referred to the precautionary principle, with a view to distilling the key elements of this principle in its application in Indian courts, and to consider the extent to which the case law expands our understanding of the precautionary principle. In this context, the chapter will address the following key questions: Does case law define and circumscribe the precautionary principle, and provide it with greater specificity and concreteness? Does case law reflect a guarded use of this principle in distinctive situations of potential serious/irreversible damage and scientific uncertainty, or does case law fold the precautionary principle into the notion of prevention? More broadly, does case law develop a consistent line of jurisprudence on this principle?

This chapter will proceed to consider if an indigenous version of the precautionary principle can be said to exist, and if yes, what it is and what accounts for it. And, finally, this chapter will consider the consequences that attach to such a method of developing environmental jurisprudence in India, including, albeit briefly, the influence that such jurisprudence on the precautionary principle has on the development of the principle/norm of precaution in international law.

It is worth recording a few caveats at the outset. This chapter does not judge or ascribe value to case law based on the outcomes reached in particular cases. Rather, it seeks to examine the rigour, quality and consistency of the judicial reasoning that accompanied the invocation and application of the precautionary principle in particular cases. This approach may seem counter-intuitive, but is taken for three reasons. First, judging outcomes is a subjective and value-laden exercise. Reasonable judges, lawyers, and litigants will often disagree over the outcome of a case. Second, there is tremendous inherent value in the consistent and coherent development and application of principles. Ronald Dworkin has argued persuasively that judicial decisions, as political decisions, attract the doctrine of political responsibility—judges must only make such decisions as they can justify within a political theory that also justifies the other decisions they propose to make or have made.8 This doctrine condemns ‘intuitionistic’9 decision-making and demands articulate consistency.10 Judges have a responsibility, thus, to reach consistent and defensible decisions. And, it is worth exploring whether judges have demonstrated such responsibility in relation to their use of the precautionary principle. Third and finally, this approach is desirable even from the narrow instrumental perspective of filling a gap in the literature. The (limited) literature that exists on Indian environmental principles focusses on outcomes, and the use of particular principles, to enable and justify seemingly desirable outcomes, rather than the means or method of reaching outcomes.

The Precautionary Principle in International Law

Definition

Although there are many definitions of precaution, and versions of the precautionary principle,11 the most cited and least controversial is the definition in the Rio Declaration. Indeed the Indian Supreme Court drew on elements of the Rio definition of ‘precaution’ while adopting it into domestic law.12 The Rio Declaration provides:

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.13

The precautionary principle changes the role, as David Freestone observes, of scientific data in environmental cases.14 Once a threat to the environment has been identified, action should be taken to abate environmental interference, even though there may be scientific uncertainty as to the effects of the activities.15 Science is still relevant and influential in the identification of the risk, in that there must be scientific basis for predicting environmental damage. However, science, in particular the lack of certainty in relation to it, should not be determinative in responding to that risk.

The precautionary principle has received widespread recognition in international environmental law since it first found expression in the 1982 World Charter for Nature. It finds reflection, inter alia, in the 1992 Framework Convention on Climate Change,16 1992 Convention on Biological Diversity,17 1995 Fish Stocks Agreement,18 2000 Biosafety Protocol,19 and 2001 Persistent Organic Pollutants Convention.20 The precautionary principle is frequently invoked in cases before international courts and tribunals.21 It has also been incorporated into numerous national and regional legislations,22 and invoked in countless domestic courts.

Prevention and Precaution

This steady rise of the precautionary principle is a characteristic feature of the latest phase in the global evolution of approaches designed to counteract ecological damage. Early phases were characterised by ad hoc reactive responses to readily apparent and indeed overwhelming environmental and public-health hazards.23 In the next phase, regulators took on board ‘preventive measures’ premised on risks that were certain to eventuate. And, the latest phase is characterised by ‘precautionary measures’ taken in circumstances where damage has not yet occurred, and indeed where there is no irrefutable proof that it will occur.24 Some scholars see this progression as evidence of a genuine paradigm shift.25 Prevention is based on the concept of certain risk. Precaution is not premised on a perfect understanding of any given risk, rather it is sufficient that a risk be suspected, conjectured, or feared.26 Precaution is triggered by risk potential, and it often requires a risk analysis.27 Since precaution leaves behind the realm of rational certainty, precaution necessarily gives rise to controversy and its application to conflict.28

In international law, precaution and prevention are considered two distinct principles29 (unlike in EU law where they operate along a continuum30). These two notions are, however, closely related. The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS), in its Advisory Opinion, held that precaution and prevention form part of the obligation of due diligence:

The due diligence obligation of the sponsoring States requires them to take all appropriate measures to prevent damage that might result from the activities of contractors that they sponsor. This obligation applies in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks.31

Precaution, it seems, cannot be limited to activities that are recognised as involving a significant risk of harm. Rather it extends to taking appropriate measures to identify activities that involve a significant risk of harm,32 even if there is lack of full scientific certainty.

Interpretation

There are several open questions in relation to the interpretation, effect, and legal status of precaution. In relation to the interpretation of this principle, it is unclear what degree of risk triggers application of this principle, what specific action should be taken when the application of this principle is triggered, and the extent to which cost plays a role in the choice of measures to be taken in response to the risk.33 The imprecision along all these axes can lead to uncertainty in outcomes.

It is also unclear what consequences the application of this principle has for the burden of proof in discrete cases. In stronger versions of this principle, the potentially risky activity is banned until the proponent of the activity demonstrates that it poses no (or acceptable) risk.34 In these versions, the burden of proof shifts to the proponent of the activity to demonstrate that the activity is benign, and a standard of proof—acceptable risk, no risk, etc.—is set.35 This is the most controversial version of the precautionary principle. Cass Sunstein, the most vocal of the principle’s sceptics, argues that the strong version which shifts the burden of proof to those who create potential risks—innovators, entrepreneurs, developers and such like—to establish that a particular activity is risk-free before it is allowed to proceed, is deeply problematic.36 Such an interpretation and application, he argues, could stifle innovation and creativity, hamper scientific and technological advancements and arguably result in regulatory paralysis.37 The strong version of the precautionary principle does not find wide support in international law.38 In the final judgment of the Pulp Mills case, the International Court of Justice (ICJ) noted, ‘while a precautionary approach may be relevant in the interpretation and application of the treaty agreed between both states, it does not follow that it operates as a reversal of the burden of proof’.39 The Indian courts, as we shall see, citing international law, have adopted the strong version of the precautionary principle.

Where the precautionary principle has been legislated into international, national or regional instruments, the instruments in question offer greater precision in relation to the degree of risk that triggers application of the principle, specific action to be taken in response, the role that cost plays, and the burden of proof.40 This is not the case, however, under Indian law, since the only legislative occurrence of the precautionary principle merely exhorts the NGT to take precaution into account in passing orders,41 leaving its interpretation and application to the judiciary.

Legal Status

International legal status of this principle is still in evolution. International courts and tribunals have remained cautious about declaring that the principle has acquired customary status,42 only going so far as to suggest that there is a trend towards making precaution part of custom. In the 2011 Advisory Opinion, the Seabed Disputes Chamber of ITLOS noted that ‘the precautionary approach has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio Declaration. In the view of the Chamber, this has initiated a trend towards making this approach part of customary international law.’43

The Precautionary Principle in Indian Law

Context

Turning to Indian law, it is worth noting first that the Supreme Court extended the fundamental right to life and liberty under Article 21, to cover a ‘right of enjoyment of pollution-free water and air’,44 over two decades ago. And that a vast, if not robust, jurisprudence exists today on the environmental right in India.45 Second, the precautionary principle forms part of a set of principles that the Indian courts weave together to operationalise the environmental right and reach decisions in environmental cases. Indian courts have embraced certain principles of international and foreign environmental law—some established and others nascent—to be ‘essential features of sustainable development’,46 ‘imperative for preserving ecology’,47 and ‘part of the environmental law of India’.48 These principles include the precautionary principle,49 polluter pays principle,50 public trust doctrine,51 principle of intergenerational equity,52 and principle of sustainable development.53 The Court requires these principles to be ‘applied in full force for protecting the natural resources of this country’.54 Together these principles, considered ‘inseparable ingredients of our environmental jurisprudence’,55 are intended to breathe life into the environmental right in India. A subset of these principles—the principles of sustainable development, precaution, and polluter pays—are required statutorily to be taken into account by the NGT in passing any order, decision, or award.56

An analysis of any of these principles, as other chapters of this volume demonstrate, reveal inconsistencies in judicial reasoning, but the precautionary principle, perhaps more than others, presents an interesting case study. First, few courts, except for the Indian, have directly applied the precautionary principle as a rule of international law in domestic litigation.57 Second, the precautionary principle, for all its imprecision, has acquired particular, albeit contested, meaning in international law, and it arguably lends itself more readily to an assessment of whether it has been properly (or not) applied in domestic litigation. Third, the Supreme Court in the Vellore case58 adopted the controversial strong version of the precautionary principle into Indian law. This case is oft cited in the academic literature and is universally admired as a landmark judgment illustrative of the creativity, intellectual openness, and mettle of Indian Courts. Fourth, in nearly two decades, the Indian courts have, arguably, developed their own distinct version of this principle, and thus the Vellore case, as well as the case law it has spawned, merits careful scrutiny.

Definition

In Vellore, the Supreme Court identified three elements to the precautionary principle. The first is that ‘[e]nvironmental measures—by the State Government and the statutory authorities—must anticipate, prevent and attack the causes of environmental degradation’.59 The second, borrowing from the Rio principle60 formulation, is that ‘[w]here 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’.61 The third element shifts the burden of proof to the developer/industrialist.62 The first element, by itself, reflects the principle of prevention. The second captures the essence of the precautionary principle—a step beyond mere prevention.63 And, the third element flags the precautionary principle, as conceived of by the Court, as the strong version. Although inspired in part by the Rio principle, these elements are now part of domestic law, and derive their force and influence from domestic law.

The Vellore case is telegraphic in its treatment of the precautionary principle. It does not raise or address any of the interpretational questions that plague the precautionary principle. It does not clarify what degree of risk triggers application of this principle, what specific action should be taken when the application of this principle is triggered, and the extent to which cost plays a role in the choice of measures to be taken in response to the risk.

Precaution or Prevention: The Role
of Science, Risk and Uncertainty

The Vellore case did not lend itself on the facts to an application of the precautionary principle as defined by the Court. Although there is no consensus definition of the precautionary principle in the literature, at the core of this principle is the notion, as we have seen earlier, that ‘decision makers should act in advance of scientific certainty to protect the environment’.64 The case was brought before the Court by a citizens’ group to compel governmental agencies to exercise their statutory powers and take action against 900 odd tanneries that were discharging untreated effluent, contrary to existing environmental laws.65 On the facts there was no ‘threat’ of damage, there was serious and in some cases irreversible damage. There is neither ‘scientific uncertainty’ at play, nor any question of postponing measures to prevent environmental degradation. The existing laws prohibited such discharge, and the regulatory authorities had attempted over the previous 10-year period, to persuade the tanners to construct effluent treatment plants and control their pollution. The facts that led to the Vellore case are an instance of inadequate governmental action in the face of serious pollution and obvious damage. Since the Court merely recited the chosen elements of the precautionary principle before declaring it to be part of both domestic environmental law and arguably of custom, it is unclear how the Court perceived the engagement of the precautionary principle on the facts. It could, of course, be argued that the Court’s reference to the precautionary principle is mere obiter. If not for the fact, that the Court, inter alia, directed the relevant authority ‘to implement the “precautionary principle” and the “polluter pays” principle’.66

In subsequent judgments, the Court, while reciting the principle approvingly, uses it to emphasise the need for scientific inputs before adjudicating complicated issues of pollution to environment,67 or to advocate general ‘precautionary measures’.68 It has also, in several cases, highlighted the first element of the Court’s definition, namely ‘[e]nvironmental measures must anticipate, prevent, and attack the causes of environmental degradation’.69

Few of the Indian cases deal with suspected risks.70 Most of the cases that cite the precautionary principle, use it to support a position that reflects the intuitive good sense that it is better to be safe than sorry.71 Those cases that use the precautionary principle to suggest more are, in reality, engaging the principle of prevention. For instance, in A. P. Pollution Control Board II v. Prof. M. V. Nayudu and Ors, the Supreme Court considered whether a hazardous industry should be permitted to establish itself within 10 km of reservoirs used for drinking water. The Court noted that ‘[t]his 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 ...’.72 While the Court did seek to establish the level of acceptable societal risk to be taken in the context of drinking water, this is not a case involving ‘scientific uncertainty’. There is an element of uncertainty or chance here—the accident may or may not happen—but there is no scientific uncertainty as to the consequences, should the accident occur. This is, in essence, an illustrative use of the principle of prevention, not precaution.

Another case in point is M. C. Mehta v. Union of India and Ors (Taj Trapezium case),73 where the Supreme Court ordered 292 industries in the vicinity of the Taj Mahal to change their fuel use from coke/coal to natural gas, so as to protect the Taj. The Court raised several important issues but did not address them. First, the Court noted that ‘atmospheric pollution in TTZ [Taj Trapezium] has to be eliminated at any cost’,74 signalling that cost-effectiveness is not an issue when where the interest sought to be protected is sufficiently important. In its words, ‘[n]ot even one per cent chance can be taken when—human life apart—the preservation of a prestigious monument like the Taj is involved’.75 The Court did not elaborate on the question of costs, in particular on the nature of the harm that would justify an ‘at any cost’ response, and whether its assessment would be different if the costs were borne by the State or by private parties. The Court also held that the ‘onus of proof is on industry to show that its operation with the aid of coke/coal is environmentally benign’.76 This, like in other cases, is a high standard of proof, and will be discussed later. The Court added, however, that ‘[i]t is, rather, proved beyond doubt that the emissions generated by the use of coke/coal by the industries in TTZ are the main polluters of the ambient air’.77 The Court asserts rather than argues the engagement of the precautionary principle and, therefore, brings it to bear in this case which does not rest on scientific data. Next, although the onus of proof is shifted to the industry, the Court cursorily makes a finding that it had been proven beyond doubt that the industries were the main polluters.78 Yet, if the impacts are proven beyond doubt, the engagement of the precautionary principle itself is questionable.

In a similar vein, most High Court cases that refer to the precautionary principle do so to support the use of precautionary measures in the face of certain (not uncertain) environmental harm. In very few cases is ‘scientific uncertainty’, in relation to the impacts, at issue. To take a representative sample, in Ramgopal Estates v. State of Tamil Nadu,79 the Madras High Court applied the precautionary principle to require a proposed petrochemical park to conform to certain conditions laid down by the Government and National Environmental Engineering Research Institute (NEERI), so as to mitigate environmental impacts. The Kerala High Court in Soman v. Geologist80 held that mining companies are obliged on the basis of the precautionary principle and polluter pays principle to fill mining pits once mining reaches groundwater level. In Smoke Affected Resident’s Forum v. MCGM,81 the Bombay High Court applied the precautionary principle to require a particular model of taxis to convert to compressed natural gas (CNG)/liquefied petroleum gas (LPG) or be phased out, as this is necessary to protect the health of Mumbai citizens. The certainty of impacts was not in question in any of these cases; rather these cases considered possible responses to predictable, proven and certain harms.

The cases before the NGT follow this trend. For instance, in Jeet Singh Kanwar v. MoEF and Ors,82 NGT quashed an environmental clearance for a coal-based thermal power plant on the grounds, inter alia, that the MoEF had not properly considered the precautionary principle. In NGT’s view, had the MoEF done so, it would not have granted a clearance due to the excessive pollution caused in the nearby areas by the use of coal as a fuel.83 In this case, as in other Supreme Court and High Court cases, the NGT is not dealing with uncertain impacts—pollution caused by coal is well documented—but rather with possible responses to proven harms. In reality, this too is an exercise of the preventive principle. Indeed, in Sarang Yadwadkar and Ors v. The Commissioner, Pune Municipal Corporation and Ors,84 the NGT defines the precautionary principle as the principle of prevention. The NGT notes that ‘the principle of precaution involves anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity’.85 Similarly in S. P. Muthuraman and Ors v. Union of India, NGT notes that the ‘precautionary principle is a proactive method of dealing with the likely environmental damage’, and that ‘the purpose should be to avert major environmental problem before the most serious consequences and side effects would become obvious’.86 In other words, ‘the precautionary principle is a tool for making better health and environmental decisions’ as ‘it aims to prevent at the outset rather than manage after the fact’.87

In M/s Sterlite Industries (India) Ltd Thoothukudi v. The Chairman Tamil Nadu Pollution Control Board, Chennai,88 the NGT identified the essentials for the invocation of the precautionary principle as: ‘(a) [t]here should be an imminent environmental or ecological threat in regard to carrying out of an activity or development; (b) [s]uch a threat should be supported by reasonable scientific data; and (c) [t]aking precautionary, preventive or prohibitory steps would serve the larger public and environmental interest’.89 Although precaution here too is conflated with prevention—with no explicit requirement for scientific uncertainty as to the harm or serious/irreversible damage in this list of essentials—the invocation of the precautionary principle is gradually being interpreted to require a robust base of evidence on which environmental decision-making can be built. In the case of Shoba Phadanvis v. State of Maharashtra, in the context of protecting forest cover by prohibiting and preventing illegal cutting and smuggling of seasonal wood, the Tribunal asked the state government to present necessary data, reports, and action plan based on the ‘precautionary principle’.90 In Samta and Anr v. MoEF and Ors,91 NGT interpreted the precautionary principle as requiring a proper prior assessment of environmental impacts, before grant of an environmental clearance. It is evident thus that NGT is beginning to interpret the principle so as to require a robust evidence base for appropriate decisions to prevent environmental harm.

Although the vast majority of the case law interprets precaution in a broad fashion, blending precaution and prevention, and diluting the requirement for either potential irreversible damage and/or scientific uncertainty, a narrower interpretation of the precautionary principle is evident in some cases after Vellore, notably in Narmada Bachao Andalon.92 The Supreme Court noted that the principle is not engaged ‘where the effect on ecology or environment of setting up of an industry is known’.93 Instead ‘what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to off set the same’.94 In other words, where the effects of a project are known, it is not precaution but the principle of sustainable development that comes into play.95 This presumably then engages a balancing exercise between the environmental and social costs of the activity and development imperatives. Needless to say, there are multiple risks associated with large dam projects, but the Court here, interpreting precaution narrowly, asks in not so many words if the extent of damage likely to be inflicted is unknown or known. If it is known, then other principles such as sustainable development should play a role in the decision-making.

In Democratic Youth Federation of India v. Union of India,96 the Supreme Court created a committee to consider the harmful impacts of the pesticide endosulfan (a risk assessment, as it were) and in the meantime, in light of the precautionary principle, the Court banned its use. This judgment adopts a strong version of the principle, but in launching a risk assessment, and banning the use of endosulfan in the interim, it engages the precautionary principle under conditions of scientific uncertainty in relation to impacts.

In Bhanwar Singh v. Union of India,97 the Rajasthan High Court sought to protect the Chittorgarh Fort, by halting all blasting and mining activities within a 10-km radius of the Fort. Notwithstanding conflicting expert reports, the Court invoked the precautionary principle and argued, inter alia, that there is ‘cogent material available on record’ that shows that blasting and mining operations have caused damage to the fort structures, and that in the case of such monuments of national importance, ‘no chance even one per cent can be taken’.98 Although the Court did not explicitly address the issue of ‘scientific uncertainty’ as an element of the precautionary principle, in the face of conflicting scientific evidence, it applied the principle to decide in favour of protecting the environment and architectural heritage.

In Bombay Environmental Action Group v. State of Maharashtra,99 the Bombay High Court held that in relation to the construction of a flyover, the precautionary principle has no applicability. The Court came to this conclusion, first, because there is no scientific uncertainty regarding the environmental impact of building the flyover, and second, because a flyover is not itself a polluting industry and thus if it results in increased vehicular traffic and more air pollution, it cannot be attributed to the flyover. Such cases, however, which consider if scientific uncertainty exists before engaging the precautionary principle, are few and far between.

Precaution, Sustainable Development
and Polluter Pays

In the Vellore case, the Supreme Court held that the precautionary principle and polluter pays principle are ‘essential features of sustainable development’.100 In the subsequent case of Research Foundation for Science Technology and Natural Resource Policy v. Union of India,101 the Court, while considering application of the precautionary principle to the enterprise of ship breaking at Alang in Gujarat, cited T. N. Godavarman Thirumalpad v. Union of India and Ors102 approvingly. The Court noted that ‘while applying the concept of “sustainable development” one has to keep in mind the “principle of proportionality” based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand’.103 The notion of proportionality, albeit a different understanding of it, finds resonance in the expression of the precautionary principle in EU law. In EU law, the notion of proportionality is engaged in relation to the response measures that need to be taken to address the identified risk potential—the more serious and likely the risks, the greater the need for measures to be taken.104 This is not the context in which the Godavarman Court raises or the Research Foundation Court cites the proportionality principle.105 In introducing the environment–development balance into the application of the precautionary principle, the Court drained the precautionary principle of particular meaning, and made these discrete (albeit related) notions fungible. This is evident not just in the application of the precautionary principle in the Vellore case but also in case law to follow. Most of the case law treats these principles, among others, as interchangeable and fungible, pulling precaution out of the mix only to justify preventive action.

NGT, for instance, frequently invokes and conflates precaution with the polluter pays principle.106 In Rayons Enlighting Humanity and Anr v. Ministry of Environment and Forests and Ors, NGT, referring to the precautionary principle, fined a polluting plant and directed the ‘taking [of] all measure which are necessary for the purpose of restoration of environment and the precautions which would help in preventing further degradation of environment and damage to public health’.107 The invocation of the precautionary principle in relation to ‘restoration’ is revealing, as the precautionary principle arguably applies where there are threats of serious or ‘irreversible’ damage. The ‘threats’ in this case have come to pass, and the damage has been done but is presumably not ‘irreversible’, hence the possibility of restoration. The NGT has also used these two principles—precaution and polluter pays—to justify bank guarantees in the context of environmental compliance.108

The NGT also frequently melds the principles of precaution and sustainable development.109 For instance, in S. P. Muthuraman and Ors, NGT noted that ‘the principle of sustainable development by necessary implication requires due compliance to the doctrine of balancing and precautionary principle’.110 In this case, the precautionary principle was cited as part of the rationale for striking down MoEF office memoranda that allowed the grant of environmental clearances in cases where construction activity had commenced without obtaining the requisite clearances before hand. The NGT noted that the ‘precautionary principle may lose its material relevancy where the projects have been completed and even irreversible damage to the environment and ecology has been caused’.111 In Gurpreet Singh Bagga v. Ministry of Environment, the NGT opined that one of the fundamental bases of the precautionary principle is that ‘all steps should be taken to protect the environment while permitting sustainable development’.112 Such melding of the principles of sustainable development and precaution, as discussed earlier, imports into the application of the precautionary principle a ‘balancing’ exercise—a balancing between development, ecological, and social imperatives. The role that the various elements of precaution occasionally asserted by the courts—scientific uncertainty, irreversible damage, burden of proof—play in this balancing exercise, remains unclear.

In addition to the polluter pays and sustainable development principles, NGT also melds the precautionary principle with the principle of intergenerational equity. It has argued, for instance, that ‘it is better to take precaution today than suffer the consequences tomorrow’ and that ‘public health and the future of the coming generations’ required the activity in question to be moved from the sensitive site.113 Indeed, the NGT has noted the need to analyse all these principles in an ‘esemplastic’ fashion (that is, pulling together diverse elements into a unified whole).114

Finally, it is also worth noting that NGT, like the Supreme Court and High Courts, interprets the precautionary principle as expanding its jurisdiction. For instance, in the Goa Foundation and Anr v. Union of India and Ors, the NGT noted that ‘an anticipated or likely injury to environment can be a sufficient cause of action, partially or wholly, for invoking the jurisdiction of the Tribunal’.115 And ‘inaction in the facts and circumstances of a given case could itself be a violation of the precautionary principle, and therefore bring it within the ambit of jurisdiction of the Tribunal, as defined under the NGT Act’.116 The jurisdiction of the NGT extends to civil cases where a substantial question relating to the environment is involved, arising out of the implementation of the listed environmental statutes,117 as well as cases challenging certain regulatory approvals.118 Although the NGT is required to apply the precautionary principle in reaching decisions,119 this principle is neither relevant nor necessary in the context of its exercise of jurisdiction, which in any case is extensive.

Burden and Standard of Proof

A final element of the precautionary principle, as defined by the Supreme Court in the Vellore case, is that it shifts the burden of proof to the industrialist to demonstrate that the proposed activity is ‘environmentally benign’.120 It does so without a discussion of the possible adverse consequences of such a reversal of the burden of proof, namely that it could potentially lead to a chilling effect on technological innovation and industrial activity. Interestingly, later Supreme Court and High Court cases assert that ‘unless an activity is proved to be environmentally benign in real and practical terms, it is to be presumed to be environmentally harmful’.121 Industrialists are required to discharge their burden by showing the absence of a ‘reasonable ecological or medical concern’.122 If ‘insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection’.123 The NGT has also similarly interpreted the precautionary principle as requiring the project proponent to prove that the project will not cause ‘any injurious effects’ on the environment. It rationalises this reversal of the burden of proof on grounds of fairness, in that in its absence, the ‘common citizen’ would be required to provide scientific and technological data in order to preserve status quo and protect the environment.124 Some High Court cases add a further element to the standard of proof. The Kerala High Court in Sujatha v. Prema125 identified the standard of proof as the ‘risk of harm to the environment or to human health that has to be decided in public interest and according to a reasonable person’s test’.

The task of proving an activity environmentally benign, whether on a reasonable person’s test or purely on scientific data, is problematic, in part because the issue is misconceived. The real question is not whether the activity is benign—few are—but whether the activity has any redeeming social benefit, and if yes, how it might be balanced with the risks it entails, and what steps may be taken to limit its environmental impact. Intriguingly, the Vellore Court, after engaging the precautionary principle and shifting the burden of proof to the industrialist to demonstrate that the activity is benign, proceeds to engage in a delicate balancing exercise between competing interests. In subsequent cases too, the courts engage in such a balancing exercise in their application of the precautionary principle. As for instance, in the M. C. Mehta (Delhi Vehicular Pollution) case, the Supreme Court noted the need to balance the needs of transport with the needs of the public.126 Similarly, in Radheshyam and Ors v. State of Chhattisgarh and Ors,127 the Chhattisgarh High Court found that even where a public purpose existed, as for instance, in the establishment of thermal power plants, the precautionary principle had to be enforced, thus underscoring the need to balance competing interests with the words: ‘while considering the existence of public purpose the issues of environmental degradation and damage to ecosystem have to be kept in mind’.128 It appears then that although on paper an application of the precautionary principle requires the polluter to discharge his or her burden of proof that the activity they are engaged in is ‘benign’, in actual fact the courts rely on a pragmatic balancing exercise, to which the polluter is expected to weigh in. This dichotomy between text and practice is intriguing and merits further examination, albeit not in this chapter.

Legal Status

In the Vellore case, the Supreme Court held that the precautionary and polluter pays principles are part of domestic environmental law, as well, arguably, as customary international law.129 In the Court’s reasoning, Articles 21, 47,130 48A131 and 51A(g)132 of the Constitution of India, and India’s network of statutory environmental laws were sufficient to render the precautionary and polluter pays principles part of domestic environmental law.133 It is worth noting that these constitutional provisions contain a mandate ‘to protect and improve’ the environment, and the network of environmental laws seek to further this mandate. At the time, there was no specific reference anywhere to the concept of precaution (as a step ahead of prevention), and the Court did not identify any either. Further, the Court declared that ‘sustainable development as a balancing concept between ecology and development has been accepted as a part of the Customary International Law although its salient features are yet to be finalized by international law jurists’.134 It reached this conclusion by reference to a series of soft law international instruments, including the Rio Declaration, Agenda 21, and the Brundtland Report.135 It listed several principles as ‘salient principles of “Sustainable Development”’136 and identified the precautionary and polluter pays principles as ‘essential features of sustainable development’, and noted that ‘[e]ven otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law’.137 The guarded phrasing of this last statement (‘even otherwise’ and ‘once’) appears to leave the question, of whether precaution and polluter pays are custom, open. However, subsequent judgments have understood this case to suggest that these principles are custom.138 Presumably, although this is left unsaid, on the ground that if sustainable development is custom, then precaution and polluter pays, its essential features, are also custom. Indeed, the Canadian courts have also cited the Indian courts as recognising precaution as custom.139

It is worth noting that both precautionary and polluter pays principles are contested in international law. As we have seen, although there are numerous references to the precautionary principle in international law,140 there are divergent views on whether the precautionary principle is properly so called, how it might best be defined, what its precise content is, what obligations it creates and on whom, and whether, in its strong version, it lends itself to actualisation.141 As such to characterise this principle as custom (if indeed this is what the Vellore Court did), without the benefit either of serious forensic analysis of state practice and opinio juris, or at least of compelling argument, is problematic.

The Precautionary Principle
beyond the Environment

Finally, a word on the use of the precautionary principle by the Indian Courts in non-environmental cases. There are several High Court cases that appear to further muddy the waters of the precautionary principle. In the case of Naya Bans Sarv Vyapar Association v. Union of India,142 the High Court of Delhi was faced with a constitutional challenge to the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act 2003, and the Delhi Prohibition of Smoking and Non-smokers Health Protection Act 1996 (Prohibition Act), to the extent they prohibit wholesale of cigarettes or any other tobacco products within 100 yards of any educational institution. The argument was raised that the failure of the legislation to distinguish between wholesale and retail tobacco sellers was arbitrary, because students would be unaffected by the presence of the wholesale sellers. In rejecting this argument, the Court applied the precautionary principle to ‘err on the side of the society as a whole’. In doing so, the Court extended the precautionary principle beyond the environmental realm, side stepped the need to conduct factual enquiries into the effect of the law in question, and to justify broad categorisations on fuzzy grounds.

An Indigenous Version of
the Precautionary Principle

Although the foregoing survey of Indian case law—Supreme Court, High Courts, and NGT—does not reveal a consistent and linear development of the principle, there are several recurring elements that can be culled from the application of this principle by the Indian courts:

• Precaution is frequently conflated with the commonsensical notion that prevention is better than a cure.
• The threat of serious or irreversible damage—an element of the original definition of precaution adopted by the Vellore Court)—may be at issue, but is not generally considered an essential condition for the engagement of the principle; rather, in most cases, the principle is invoked when serious damage is ongoing.
• Scientific uncertainty—another element of the original definition of precaution adopted by the Vellore Court—may be at issue, but it is not generally considered an essential condition for the engagement of this principle; rather, the invocation of this principle has been interpreted to generate a demand for robust scientific data and environmental clearance processes, to underpin environmental decision-making.
• Precaution is linked inextricably with sustainable development, polluter pays, and intergenerational equity; this then drains precaution of its distinctive characteristics and engages delicate balancing exercises between competing interests, in particular, social and environmental and development imperatives, and introduces factors such as compensation and restoration into the mix.
• Precaution triggers a reversal of the burden of the proof, although in cases where serious damage is overwhelming, ongoing, and obvious, the courts dispense with this requirement.

Together these elements demonstrate a much broader, and thus, less technical conception of the precautionary principle than the Rio principle, which inspired the Vellore Court’s definition of precaution.

There is a context to such a development and use of the precautionary principle. There are systemic problems in environmental governance and administration in India, resulting in serious, poorly checked, and escalating environmental harm.143 This, arguably, creates pressures and compulsions on other actors, including the judiciary, and the enviro-legal fraternity. Lawyers and advocacy groups believe that the ongoing crisis in environmental governance creates a need for strong and malleable weapons that litigators can draw upon from their arsenal to counteract environmental harm, which the State either sanctions or is unable to address.144 The broader notion of precaution that courts have crafted in India is tailored to such a demand.

To strengthen their broader notion of precaution, courts also reverse the burden of proof. Public-spirited individuals, bolstered by the expansive public interest jurisdiction courts enjoy in India, bring cases of egregious environmental harm to the courts. These individuals do not usually have the means or access to the data to discharge the burden of proof that is customarily placed on the petitioner. The NGT in Pandurang Sitaram Chalke and Anr v. State of Maharashtra,145 as discussed earlier, explained that in the absence of such a reversal of the burden of proof, the common citizen would be asked to provide the scientific and technological data that they could not have access to every time they sought to raise environmental concerns. The courts, therefore, when faced with serious environmental harm (imminent or ongoing) invoke the precautionary principle, reverse the burden of proof and offer relief to the petitioner and the environment.

While this explains why such a broad version of precaution has evolved in India, it does not justify it. This indigenous version of precaution bears little resemblance to the precautionary principle as defined in the instruments that the Vellore Court first cited to adopt the principle into domestic law. Indeed, many of the early cases explicitly sourced their invocation of the precautionary principle to international law. To source the precautionary principle to international law, replicate the Rio definition in toto in the decision, and then to proceed to ‘apply’ it on a case-by-case basis without reference to that definition, has led to considerable imprecision and subjectivity in the use of this principle. The lack of rigour, precision and nuance in the courts’ engagement with the precautionary principle renders it impotent to assist in the dialectic process of international and domestic norm creation and crystallisation. While many of the cases discussed represent ‘state practice’ and count in quantitative assessments of the use of, or reference to, the precautionary principle, the conceptual vacuity of these judgments in relation to the interpretation and application of the precautionary principle renders them a poor reed to rely on in any qualitative content-based assessments of the evolution of norms in international law. This represents a significant missed opportunity for India in shaping the evolution of the precautionary principle in international law.

More importantly, such imprecision and subjectivity in the development and application of the principle has diluted its potential as a powerful and distinctive norm of domestic law. The case law, as we have seen, does not provide specificity and concreteness to the elements of this principle. It does not clarify what degree of risk triggers application of this principle, what specific action should be taken when the application of this principle is triggered, and the extent to which cost plays a role in the choice of measures to be taken in response to the risk. Rather, the courts appear to tailor the application of the principle to support the desired outcome, in the process further diluting the core elements of this principle, as laid out in the Vellore case. The courts do not typically limit the use of this principle, as the Vellore case had identified (albeit not followed), in distinctive situations of potential serious/irreversible damage and scientific uncertainty. Instead the courts have extended the boundaries of this principle so as to permit its instrumental application in a wide variety of fact situations, many of which are indistinguishable from situations in which the other principles—in particular sustainable development and prevention—apply. The principle of precaution, thus, although liberally used in environmental litigation in India, has not come of age as a distinctive principle of domestic environmental law.146

Conclusion

This analysis of the case law on the precautionary principle reveals the following. First, that the courts often engage the precautionary principle when the background conditions for its engagement, as identified by the Vellore Court, are not met. Second, that the courts are in reality engaging the preventive principle in as far as they are crafting responses to known (not unknown or unknowable) risks. In other words, the courts while they cite the precautionary principle, are in fact engaging prevention as broadly conceived rather than narrowly conceived precaution. Third, they treat the notions of sustainable development and precaution/prevention as a fungible mix of elements, justifying therefore a balancing exercise between development and environmental concerns and priorities. While such a balancing exercise may be essential and inevitable in environmental cases, invoking the precautionary principle permits the courts to shift the burden of proof to the industrialist, and fundamentally change the dynamics of the decision-making process.

The courts have taken, in their wisdom, a principle of international environmental law, necessarily broad and imprecise, given that it is a guiding principle and applied at the international level, further broadened it, and introduced additional layers of imprecision and ambiguity to it. This in turn privileges subjectivity and promotes uncertainty in outcomes. It also renders application (given lack of concrete content) and implementation difficult, and obfuscates hard questions and choices.

Rather than adding concrete content to its definition and discipline to its application—which could have resulted in targeted use of the principle to appropriate ends in hard cases—the Indian courts have used the precautionary principle in a commonsensical fashion to expand their own discretion. Indian courts have created, through the vehicle of the precautionary principle, room for judges and their predilections to play a significant role in the shape litigations take. It allows the courts to convert one strain of opinion into policy while annihilating others. It also allows the courts to develop into a ‘policy evolution fora’, a role it is ill-equipped to play.147

It has long been recognised in India that a judge’s social and value preferences play a role in the decision-making process. Justice Chandrachud in State of Rajasthan v. Union of India noted that ‘it is an accepted fact of constitutional interpretation that the content of justiciability changes according to how the Judge’s value preferences respond to the multi-dimensional problems of the day’.148 The Supreme Court in India is arguably perceived to consist of middle-class arm-chair intellectuals. It is, therefore, perceived to be more receptive to others of their ilk, certain social and value preferences (for instance, the right to a clean environment rather than the right to livelihood), and certain modes of argumentation over others (technical rather than social). While the outcomes in particular cases discussed in this chapter may be generally considered to be favourable, the discretion courts have arrogated to themselves, through the use of expansive definitions of the precautionary principle, is deeply problematic for environmental governance, and for the development of a clear consistent line of environmental jurisprudence that promotes certainty, predictability, and clarity in the outcomes of environmental cases.