FYLLB B109

Submitted to
Priya J Shah
 ACKNOWLEDGEMENT

While I prepared this project, it is the result of many people's efforts. To begin, I'd like to express my
gratitude to our Professor MINAL SHARMA for her assistance in developing the project on
Precautionary Principle

and for her insightful suggestions.

I pay my deep sense of gratitude to other teaching and non-teaching staff that encouraged
me to the highest peak and to provide an opportunity to prepare the project. I am
immensely obliged to my friends for their elevating inspiration, encouraging guidance and
kind supervision in the completion of my project.

Last but not least, my parents are an also important inspiration for me. So with
due regards I express my gratitude to them.

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 TABLE OF CONTENT

Sr. no. Particulars Page no.

1. Introduction 4

2. Meaning And Objective Of Precautionary Principle 5

3. Precautionary Principle: The Need

8

4. Precautionary Principle: Basic Features

10

5 Precautionary Principle In Indian Context

11

6 Precautionary Principle in Practice

13

7 Table Of Cases
15

8
Conclusion 16

9
Bibliography 17

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 INTRODUCTION

Environmental issues rarely stop at national borders, as pollution caused in one area
frequently causes difficulties in other countries. Pollution of the oceans is an excellent
example; pollutants poured into the water in Sweden or Germany can have a significant
impact on the condition of the waterways surrounding the Netherlands.

One of the reasons why solving environmental problems is so difficult is because of the
spatial dimension. Other aspects will be discussed in section 2 as well as some general
remarks on environmental policy. After that, the legal aspect of the situation will be
addressed.

Evidence-based policy and decision-making based on scientific information, as well as

environmental governance and the rule of law, underpin the achievement of sustainable
development goals. Nonetheless, according to the 2019 UN Environmental Rule of Law: First
Global Report, environmental issues might paradoxically produce more questions than
answers due to limitations in present scientific knowledge and understanding. The
precautionary principle is the preferred environmental approach in some jurisdictions because
it allows decision-makers to act quickly and evaluate if sufficient cost-effective measures
have been put in place to prevent environmental degradation and harm to human health1.

The precautionary principle is widely recognised as a vital strategy for promoting sustainable
development at both the international and national levels. It allows for action to be taken in
the absence of scientific certainty about the risks of serious or permanent harm to the
environment or human health, as well as the ‘authority to make public policy decisions
concerning environmental protection in the face of ambiguity.' There is no reason for using
the precautionary principle for calculating risks when there is no ambiguity. As a result, the
precautionary principle is based on scientific uncertainty.2

1
Understanding the Precautionary Principle and Its Threat to Human Welfare, H.S. Burnett (2009) Social
Philosophy and Policy, Vol. 26(2) 378–410; K. Steele, ‘The Precautionary Principle: A New Approach to Public
Decision-Making?', (2006) 5 Law, Probability and Risk 19–31; J. Cameron and J. Abouchar, ‘The Precautionary
Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment,' (1991)
14(1) Boston College International Comparative Law Review 1–27; K. Steele, ‘The Precautionary Principle: A
New Approach to Public Decision-
2
R. von Schomberg, ‘The Precautionary Principle: Its Use Within Hard and Soft Law’ (2012) 3(2) European
Journal of Risk
Regulation 147–156.

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 MEANING AND OBJECTIVE OF PRECAUTIONARY PRINCIPLE

The Precautionary Principle is a decision-making technique for bettering one's health and the
environment. It seeks to prevent harm from occurring in the first place rather than dealing
with it after the fact. In layman's terms, this says "it's better to be safe than sorry." When it is
within our power to do so, even if all the evidence isn't in, the Precautionary Principle
suggests a duty to prevent harm.3 In a nutshell, the "precautionary principle" advocates
implementing protective measures before comprehensive scientific verification of a risk; in
other words, action should not be postponed solely because complete scientific information is
absent.4

The Precautionary Principle has two commonly accepted definitions. The Rio Declaration
from the 1992 United Nations Conference on Environment and Development, widely known
as Agenda 21, is one of the most important international manifestations of the Precautionary
Principle. ‘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 the Wingspread Statement of Precautionary Principle of

1998 and 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.”

Therefore, the principle provides a basic policy foundation for anticipating, preventing and
mitigating environmental threats.

The nature of the idea of precaution was discussed extensively, in particular whether this
should not just be a good policy approach, but should also be recognised as a legal norm.

3
See also http://www.cela.ca/collections/pollution/precautionary-principle
4
See also http://www.wto.org/english/tratop_e/sps_e/sps_agreement_cbt_e/c8s2p1_e.htm

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Some have argued against identification of precaution as a "concept" of environmental
legislation that implies a comprehensive need to use precaution while taking decisions, in
favour of seeing precaution as a specific policy/management strategy to tackling uncertain
dangers. While it is unquestionable that precise legal requirements for precaution are being
applied in an expanding number of specific settings, there is continuous discussion of
whether precaution is now part of the international customary law. This distinction has not
affected the formulation of these standards. In these rules, the term 'Precautionary Principle'
was utilised for uniformity.

The precautionary principle plays an important part in deciding whether or not the process of
development is sustainable. Sustainable development is a 'precautionary principle' which
necessitates stopping and preventing developments when they cause substantial and
irreparable damage to the environment. The introduction of the precautionary principle
represents a transition from the principle of assimilation to the precautionary principle in
international environmental jurisprudence.

Assimilative Capacity Principle:

Earlier legal action to safeguard the environment is based on the idea of assimilative
capability. The 'Assimilative Capacity' notion had been recognised internationally prior to the
Stockholm Conference in 1972.5 According to this concept, the ecosystem can absorb the
adverse effects of pollution, but pollution can create environmental harm beyond a certain
level, which requires measures to fix it. The assimilative capacity principle is found in
Principle 6 of the Stockholm Declaration, and it assumes that science can provide
policymakers with the necessary information and means to avoid encroaching on the
environment's capacity to assimilate impacts, as well as that relevant technical expertise will
be available when environmental harm is predicted and that there will be sufficient resources.

5
https://events.development.asia/system/files/materials/2016/12/201612-environmental-law-principles-
precautionary-principle.

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The Precautionary Principle is more specific than simply seeking safety. Precautionary
'thinking' has a long and illustrious history. Dr. John Snow advised removing the handle of a
London water pump to halt a cholera epidemic in 1854, according to the Late Lessons from
Early Warnings study (2001). The evidence for a causal link between the spread of cholera
and contact with a water pump was flimsy and far from conclusive. The paper then goes on to
give a number of other examples, such as asbestos, where a cautious approach could have
saved many lives if early warnings of potential but yet reducible danger had been taken more
seriously at the time.6

The precautionary principle has its beginnings in Germany, where it has been one of the
fundamental concepts of environmental policy since the mid-1970s, alongside the
collaboration principle and the polluter pays principle. It is important to note that the
Vorsorgeprinzip, the German version of the precautionary principle, is utilised in a specific
context, where a distinction is established between human behaviour that produces dangers
on the one hand and risks on the other. When threats are there, the government must do
everything possible to avoid them (Gefahrenvorsorge). If there is simply a chance that
consequences will occur, risk prevention options must be explored, and if the risk is
significant enough, preventive steps can be ordered (Risikovorsorge).

6
See also http://unesdoc.unesco.org/images/0013/001395/139578e.pdf

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 PRECAUTIONARY PRINCIPLE: THE NEED

Over time, the consequences of irresponsible and dangerous behaviour have piled. The
capacity of humans and the rest of the natural world to absorb and overcome this harm is
limited. There are numerous red flags:

 Significant evidence shows a link between levels of environmental contamination and

cancers, birth deformities, reproductive issues, reduced behaviour, and poor immune
system function in experimental animals, wildlife, and people. Similar conclusions are
drawn as scientists get a better grasp of how biological systems originate and
function.

 More than 100 million men, women, and children in the world—more than a third of
the population—are affected by chronic diseases and ailments. Cancer, asthma,
Alzheimer's, autism, birth defects, developmental impairments, diabetes,
endometriosis, infertility, multiple sclerosis7, and Parkinson's disease are all on the
rise.

 Other warning indicators include the extinction of plant and animal species,
ecological devastation, stratospheric ozone depletion8, and the risk of global warming.
Endocrine disruption, climate change, cancer, and the extinction of species are all
serious, visible effects that are rarely definitively tied to a single cause. When there
are several causes and consequences, latent periods are long, timing of exposure is
critical, unexposed, "control" populations do not exist, or confounding factors are
unknown, scientific standards of confidence may be impossible to achieve.

7
it is an autoimmune disorder that affects the central nervous system (CNS). 
8
The stratosphere's ozone layer absorbs a portion of the sun's radiation, preventing it from reaching the planet's
surface. Most notably, it absorbs the UVB portion of the spectrum

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‘Responsibility towards future generations dictates that the natural foundations of life are
safeguarded and that irreversible sorts of damage, such as forest loss, must be avoided,'
according to a later formulation of the Precautionary Principle in German environmental
policy. As a result, the precautionary principle dictates that harm to the natural environment
(which surrounds us all) be averted ahead of time and in line with opportunity and possibility.

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 PRECAUTIONARY PRINCIPLE: BASIC FEATURES

The Precautionary Principle is a decision-making framework that considers how current

actions will impact future generations' environment and health. In long-term environmental
health and ecological policies and programmes, the Principle stresses public participation and
stakeholder partnership. The Precautionary Principle is a decision-making paradigm shift. It
provides for five critical aspects that can help people and nature avoid irrevocable harm.9

1. Anticipatory Action: There is a responsibility to take proactive measures to avoid

injury. This role is shared by the government, business, and community groups, as
well as the general people.

2. Right to Know: The public has a right to have comprehensive and accurate

information about the potential for human health and environmental implications
when products, services, operations, or plans are chosen. The onus of providing this
information falls on the proponent, not the wider public.

3. Alternatives Assessment: There is a legal need to consider all options and choose the
one with the least probable negative impact on human health and the environment,
including doing nothing.

4. Full Cost Accounting: Even if such costs are not included in the initial pricing, it is
necessary to consider all reasonably foreseeable expenses when evaluating
prospective alternatives, including raw materials, manufacture, transportation, use,
cleanup, final disposal, and health expenditures. When making judgments, short and
long-term advantages, as well as time thresholds, should be considered.

5. Participatory Decision Process: The Precautionary Principle requires transparent,

participative decisions based on the best available research and other relevant data.

9
See also http://environmentalcommons.org/precaution.html

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 PRECAUTIONARY PRINCIPLE IN INDIAN CONTEXT

There are numerous environmental regulations in India, but laws such as the Water
(Prevention and Control of Pollution) Act of 1974, the Air (Prevention and Control of
Pollution) Act of 1981, and the Environment (Protection) Act of 1986 are aimed at cleaning
up pollution and limiting the amount released into the environment. Rather than prohibiting
the use or manufacturing of dangerous substances in the first place, they govern them when
they are released. These laws are founded on the notion that humans and the environment can
absorb a certain amount of pollution without harming themselves.10

The Precautionary Principle is not specifically stated in any of India's environmental

regulations. The Supreme Court of India, on the other hand, has used this approach in its
decisions.

Expectations for care are utilised as measures of tort liability in Punjab v. Modern
Cultivators, Ladwa11, and Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum
building on some of the near-precautionary techniques we saw in Indian legislation. The
Oleum Gas Leak Case12 expands the notion of strict and absolute culpability for persons
involved in hazardous operations, providing the required drive for taking precautionary
measures when dealing with poisonous materials and permitting punishment for failing to err
on the side of caution.

10
Tiwari A. K, Environmental Laws in India, 2006, Deep and Deep Publications Pvt. Ltd. New Delhi. p.
216
11
1964 SCR (8) 273
12
M. C. Mehta v. Union of India, Writ Petition (Civil) No.12739 of 1985

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The Court has strongly backed the implementation of the precautionary principle, citing
many Articles of the Indian Constitution and holding that the Precautionary Principle is part
of customary international law (and hence part of domestic law). In reality, the Court
reversed the burden of proof and required the proponents of the activity to demonstrate that
the activity is ecologically friendly. The Court in this instance defined the term
"precautionary principle" in the context of municipal legislation as follows13:

i. Environmental measures taken by the State Government and Statutory Authorities – must
anticipate, prevent, and combat environmental degradation's causes.

ii. Where there is a risk of substantial and irreversible damage, a lack of scientific certainty
should not be used as a justification for delaying environmental protection actions.

iii. The actor or developer/industrialist bears the burden of proof in demonstrating that his
conduct is environmentally friendly.

13
Tiwari A. K, Environmental Laws in India, 2006, Deep and Deep Publications Pvt. Ltd. New Delhi.
p. 217

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 PRECAUTIONARY PRINCIPLE IN PRACTICE

The precautionary concept is included in several multinational environmental agreements, but

it is rarely elaborated into explicit instructions. Similarly, the precautionary principle is used
in a number of national environmental programmes. A brief overview of some of these
activities is shown here.

ENVIRONMENTAL MULTILATERAL AGREEMENTS14

a) Montreal Protocol on Substances that Deplete the Ozone Layer, 1987 - ‘Parties to this
Protocol are committed to safeguarding the ozone layer by implementing precautionary
measures to restrict proportionately total global emissions of substances that deplete it.'

b) The Rio Declaration on Environment and Development, 1992 - ‘The precautionary

approach shall be extensively adopted by governments according to their capabilities in order
to protect the environment.'

c) Article 3.3 of the 1992 United Nations Framework Convention on Climate Change states,
"The Parties should take precautionary measures to anticipate, prevent, or minimise the
causes of climate change and mitigate its detrimental impacts."

d) Convention on Biological Diversity, 1992 - Although this Convention does not use the
term "precaution," it understands the Rio Declaration's reference to "severe and irreversible"
harm in the context of biodiversity. “Where there is a concern of considerable decline or loss
of biological diversity, a lack of full scientific certainty should not be used as a justification
for delaying steps to avert or mitigate such a hazard,” it says.

e) Maastricht Treaty of European Union, 1992 – “Community environmental policy shall

strive for a high level of protection and be founded on the precautionary principle, as well as
the principles of taking preventive action, rectifying environmental damage at source, and
making the polluter 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
14
K. S. Kavi Kumar, Precautionary Principle, Dissemination Paper, Centre of Excellence in
Environmental Economics.

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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) – Stockholm Convention

on Persistent Organic Pollutants (POPs) – Stockholm Convention on Persistent Organic
Pollutants “Keeping in mind the precautionary approach outlined in Principle 15 of the Rio
Declaration on Environment and Development, the goal of this Convention is to protect
human health and the environment against persistent organic pollutants,” according to the
purpose. With an explicit reference to precaution in the preamble, procedures for adding
POPs, and the determination of best available technologies, this treaty puts precaution into
practise.

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 TABLE OF CASES

 The Supreme Court addressed the issue of protecting the Taj Mahal from pollution
from surrounding industry in the Taj Trapezium Case15. The Court used the
‘Precautionary Principle,' which it explained in the Vellore case, and stated that
environmental measures must anticipate, prevent, and fight the causes of
environmental damage. An industry has the ‘onus of proof' to demonstrate that its
operation using coke/coal is environmentally friendly. It has been proven beyond a
shadow of a doubt that the emissions produced by industries in Taj Trapezium using
coke/coal are the primary pollutants of the ambient air.
The court ordered the industries in the Taj trapezium to switch to natural gas as an
industrial fuel or stop operating with coke/coal and relocate according to the court's
instructions.

 The polluting tanneries functioning in the city of Calcutta (about 550 in number) were
ordered to evacuate from their current location and shift to the new leather complex
put up by the West Bengal Government in the Calcutta Tanneries Case16

 The Supreme Court declared in S. Jagannath v. Union of India17 that sea beaches
and sea shores are natural gifts, and that any activity that pollutes them cannot be
permitted. In coastal locations, the modernised shrimp (prawn) farming culture sector
was producing mangrove ecosystem degradation, plantation depletion, emission of
highly polluting effluents, and pollution of potable and ground water.

 The Brundtland Report and other international papers were referred to the Supreme
Court in Vellore Citizens Welfare Forum v. Union of India18, where the Brundtland
Report and other foreign documents were referred in addition to Articles 21, 48A, and
51A(g) of the Indian Constitution. In addition, the Water (Prevention and Control of
Pollution) Act of 1974, the Air (Prevention and Control of Pollution) Act of 1981, and
the Environment (Protection) Act of 1986 all contain statutory mandates to “protect
and improve the environment.”

15
AIR 2002 SC 3696
16
(1997) 2 SCC 411
17
(1997) 2 SCC 87
18
Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715

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 CONCLUSION

The precautionary principle has been used to legally translate the phrase "better safe than
sorry." The idea suggests that governments should not hesitate to take action in response to
potential damages, even if the causal link between human behaviour and those damages is not
entirely evident.

Risk assessment and environmental impact assessment are both related to the Precautionary
Principle. In general, it holds that decisions that may have an environmental impact must
account for and recognise uncertainty, particularly when it comes to the potential
environmental implications of those decisions. In these cases, it is critical to take preventative
measures or avoid potentially harmful impacts, even if this cannot be verified. In a nutshell,
the "Precautionary Principle" is a belief that precautionary action should be taken before
comprehensive scientific proof of a risk exists; that is, action should not be postponed solely
because complete scientific information is lacking.

Since the Rio Declaration of 1992, the precautionary principle has been regarded as an
important element of environmental policy, and it is widely believed to be beneficial to the
conservation of existing natural environments and the current stock of biodiversity, as well as
measures to prevent deterioration. Previously, the precautionary principle was solely applied
to environmental pollution, but it is now being applied to issues such as wild life
preservation, biodiversity conservation, climate change, shrimp protection, and so o

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 BIBLIOGRAPHY

 "Iimplementing the Precautionary Principle”, P. L.. Defur and M. Kaszuba, in Science

Total Environment, April 2002, 288(1-2), pp. 155-165

 "The World summit on Sustainable Development: Environment, Precaution and

Trade”, F. X.Perrez, RECIEL, Volume 12, Issue 1, 2003, pp 12-22

 Review of European Community and International Environmental Law (RECIEL)

 https://www.wto.org/english/tratop_e/sps_e/sps_e.html

 environmentalcommons.org/precaution.html

 https://unesdoc.unesco.org/ark:/48223/pf0000139578

 Tiwari A. K, Environmental Laws in India, 2006, Deep and Deep Publications Pvt.
Ltd. New Delhi. p.216

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