THE INDIAN SUPREME COURT’S INCONSISTENT APPLICATION

OF THE PRECAUTIONARY PRINCIPLE

Introduction
Principle 15 of the Rio Declaration is one of the most quoted sources on the precautionary
principle and 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 Indian Supreme Court (“Court”) adopted the ‘strong’ version of the principle as part of
the ‘law of the land’ in the 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 doing so, I
argue,In this article, the author argues that the Court has merged the concept of ‘precaution’
with ‘prevention’. In other words, I argue that the Court 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 I will delve into in detail in this paper. I further argue 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 Court held that the principle of ‘Sustainable Development’ has been
accepted as customary international law and the precautionary principle was held to be an
essential feature of ‘Sustainable Development’. The Court 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 reversal of the burden of proof doctrine has its rationale in the fact that the
persons who oppose the change (the petitioner) are usually socially and economically
challenged, who do not possess sufficient resources to shoulder the evidentiary burden.

The Court declared the precautionary principle as the ‘law of the land’ under Article 21 of the
Constitution backed by Articles 47, 48A, 51A(g), and India’s wide array of statutory
environmental laws. However, the precise content of the principle and the obligations that are
created when it is triggered remained unanswered in Vellore’s definition. i Nevertheless, the
Court directed the relevant lower judicial authorities, like the National Green Tribunal
(“NGT), to implement the precautionary principle while passing any order, decision, or
award.

Inconsistent Application
In the Vellore Case, the applicant had requested the Court 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 Court referred to the precautionary principle in the
absence of ‘scientific uncertainty’. This has raised the question, particularly among
academicians, as to whether the Court’s reference to the precautionary principle was mere
obiter.ii

A few months after the Vellore case was decided, the Court, in the 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 Court 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. iii
Similar to the Vellore Case, the Court applied the precautionary principle in the absence of
any ‘scientific uncertainty’. Another case inon point is A.P. Pollution Control Board II v.
Prof. M.V. Nayadu and Ors, where the Court dealt with the issue of whether a hazardous
industry should be set up within the vicinity of a reservoir used for drinking water. The Court
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
Court 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 Court 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 Court, in the Narmada
Bachao Andolan Case (“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 Court, 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 Court did not apply the principle because the threat of serious damage to
the river was certain. Rather than applying the precautionary principle, the Court 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. I tend to agree 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 v. Rohit
Prajapati, where the Court held that granting an ex post facto clearance would be contrary to
the precautionary principle. The Court, 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.

In Democratic Youth Federation v. Union of India, the Court invoked the precautionary
principle and banned the use, sale, production, and export of the pesticide endosulfan. The
spraying of endosulfan was done to control tea mosquito bugs in the tea plantations in Kerala,
but it was causing severe health impacts on the public. In the present case, ‘scientific
uncertainty’ was present since fact-finding reports failed to establish a causal link between
the endosulfan and the resulting health impacts. Scientific experts discredited the other
reports that presented a causal link. The inconsistency, in this case, was located when the
Court adopted the ‘strong’ version of the precautionary principle but based its judgment on
the conditions of ‘scientific uncertainty’ regarding the impact of the pesticide on human
health and the environment.iv

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,
the 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.v 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’.vi

In the cases that were decided after the Vellore case, the Courts have used the precautionary
principle even when there were known risks on the impacts of an activity. It has been argued
that the Court was using the principle of prevention in an illustrative fashion, vii which was
evident in the Taj Trapezium Case and A.P. Pollution Control Board Case. In the NBA Case,
the Court provided a narrower interpretation of the precautionary principle, viii 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 Court 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 Court 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. ix 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 courts reverse the ‘burden of proof’ to give relief to the
petitioner and the environment. This approach by the courts 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. x In simpler words, the
courts, while citing the precautionary principle, are “in fact engaging prevention as broadly
conceived rather than narrowly conceived precaution.”xi

Conclusion
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 Courts have 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’. Courts have used the principle of ‘prevention’
disguised in the name of ‘precaution’. Moreover, there exists confusion as to the relationship
between precaution and sustainable development. To conclude, it is important that the courts
use objective standards in their application of the precautionary principle and do not pass
overreaching judgments by expanding their jurisdiction.
i
Lavanya Rajamani, The Precautionary Principle, in INDIAN ENVIRONMENTAL LAW: KEY CONCEPTS AND
PRINCIPLES, 192-230, 205, (Shibani Ghosh ed. 2019).
ii
Ibid, at 206.
iii
Ibid, at 209.
iv
Ibid, at 213.
v
Ibid, at 225.
vi
Ibid, at 206.
vii
Ibid, at 208.
viii
Ibid, at 212.
ix
Ibid, at 223.
x
Ibid, at 228.
xi
Ibid, at 227.