The Legal Perspective of the “Precautionary Principle” in INDIA – by Mayank Vats 1

In terms of where the precautionary principle comes from, only few of us are able to answer that question. The precautionary principle stems from the perception that peace efforts to combat problems such as climate change, ecosystem degradation and resource depletion are slowing down and that environmental and health problems continue to grow faster than society’s ability and correct them2. This means that the speed at which we develop environmental and health problems is far more than the speed of environmental well-being. It is with this approach that the precautionary principle has been taken into account.

The precautionary principle is a call for caution to decision makers who must make decisions about products or activities that could be seriously detrimental to public health and the environment 3. When we consider an international standard that helps to prove that it is more relevant in India, in accordance with Article 38 of the Statute of the International Court of Justice, general principles of law are also sources of international law.

The principles should be considered as one of several standards, which means that these principles are not directly applicable but conform to the standards of applicability, which means through this, there will be evaluation of the validity of the law. In addition, principles can help interpret other rules. Therefore, the principles have the capacity to fill the gaps. It is essentially a guiding principle that provides useful criteria for determining the most reasonable course of action in relation to potential risk situations.

It is a completely open and flexible principle that creates the opportunity and incentive for social learning. The principle states that proof of harm, rather than definitive proof of injury, should incite political action and advocate the meaning that is called common sense, but is not so common nowadays. The principle makes it clear that scientific and technological decisions and developments are primarily based on values and, to a lesser extent, scientific facts and developments. Therefore, the precautionary principle states that people must act in anticipation of environmental damage to ensure that damage does not occur.

The precautionary principle can only be invoked with the most complete scientific evaluation possible, as far as possible, the determination of the degree of scientific uncertainty. In addition, it should be integrated with a risk assessment and an assessment of the potential consequences of inaction, as well as the participation of all interested parties in the study of precautionary measures, once the results of the assessment have been completed. Scientific assessment and/or risk assessment available.

The main objective of the precautionary principle is to ensure that if a substance poses a great threat to the environment, it will be prevented from harming the environment, even if there is no conclusive evidence that a particular substance affects the environment. . The words “substance” and “activity” imply substances and activities introduced as a result of human intervention. In the context of municipal law, the “precautionary principle” means:

1. Environmental measures taken by the state government and local authorities must anticipate, prevent and attack the causes of environmental degradation.

2. Where threats of serious and irreversible damage exist, lack of scientific certainty should not be invoked to delay measures to prevent environmental degradation.

3. The “burden of proof” rests on the actor or developer / industrialist to show that his actions are environmentally friendly4.

In V. Union of India de Vellore5 , the Court expressed the view that the precautionary principle and the polluter pays principle are essential features of sustainable development and that they have been accepted in the context of land law. In the same case, the court also observed that the new concept of “burden of proof” in environmental matters. The learned Judges have also observed that the new concept, which places the burden of proof on the proponent or industrialist and proposes to modify the status quo, has also become part of our environmental law.
The activity that continues and is allowed to continue, even after knowing that the environment is in danger, the environment may be irreparably injured and so possibly the concept of precautionary principle becomes a failure. The principle does not work when the concept does not help sustainable development.

The special burden of proof in environmental cases – It should be noted that while the inadequacies of science have led to the “precautionary principle”, this principle has led to the burden of special evidence in environmental cases where the burden of to the absence of detrimental effects of the proposed actions, is placed on those who want to change the status quo. This is often referred to as a reversal of the burden of proof, because otherwise, in environmental cases, those who oppose the change would be forced to bear the burden of proof, a procedure that is not fair. Therefore, it is necessary that the party trying to preserve the status quo while maintaining a less polluted state should not bear the burden of proof and the party who wants to change it must bear the burden6.

In Research Foundation for Science Vs Union of India4 , the Supreme Court explained that the “precautionary principle” generally describes an approach to environmental protection or precautionary human absence of evidence or risk of harm to an activity or substance. It’s part of the principle of sustainable development. It allows taking protective measures against specific environmental risks by avoiding or reducing environmental risks before specific damage occurs.

When the precautionary principle comes into play, it contributes to behaviour change, personally and collectively. It reminds us of good and evil each time we move towards evil. It also removes barriers to this kind of precautionary measures 8.

References

1. III year, BA., LLB., Symbiosis International University.

2. Kriebel, David, Tickner, Joel, Epstein, Paul, Lemons, John, Levins, Richard, Loechler, Edward, Guinn, Margaret, Rudel, Ruthann, Schettler, Ted, Stoto, Michael, the Precautionary Principle in Environmental Science; Environmental Health Perspectives, Volume 109, Number 9, September 2001, pp. 871-876.

3. Gardnier, Stephem M., A Core of Precautionary Principle, The Journal of Political Philosophy, Volume 14, Number 1, 2006, pp. 33-60.

4. See Vellore Citizen’s Welfare Forum v. Union of India, (1995) 5 SCC 647, p.658

5. Ibid.

6. See, James M. Olson, “Shifting the burden of proof”, 20 Environmental Law, 1990, p.898.

7. (2005) 13 SCC.

8. Myers, Nancy, The Precautionary Principle Puts Values First, Bulletin of Science, technology and Society, Vol.22, No.3, June 2002, pp. 210-219.