PRECAUTIONARY PRINCIPLE
The precau precautio tionar nary y princi principle ple is one of the most most conten contentio tious us princi principles ples in contem contempor porary ary inter interna natio tiona nall legal legal deve develo lopm pmen ents. ts. It play playss a signi signific fican antt role role in dete determi rmini ning ng whet whethe her r developmental process is sustainable or not. Precautionary Principle underlies sustainable development which requires that the developmental activity must be stopped and prevented if it causes serious and irreversible environmental damage. The precautionary principle states that if there is risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection. In simple words, precautionary principle is a notion which supports taking protective action before there is complete scienti scientific fic proof proof of a risk, risk, i.e action action should shouldn ntt be delaye delayed d simply simply because because full full scienti scientific fic information is lacking. There are two widely referred definitions of Precautionary Principle The first one, The !io "eclaration #principle $%& 'or (genda )$* of $++), states that In In order to protect the environment, the precautionary 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. degradation . The second definition definition is based on $++ ingsp ingspread read 0tatement on the Precautionary Principle and it 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 preca precautio utionar naryy princi principle ple must must be open, open, inform informed ed and democra democratic tic and must must include 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 burden of proof. proof. It is interesting interesting to note the differences differences between between the two definitions. definitions. The first one stresses on 1serious or irreversible damage, whereas the second one states that precaution is relevant to 1harm in general. Thus the second definition is typical of the way in which the precautionary principle is used by environmental advocacy groups. groups.
Precautionary Principle in Practice
0everal multilateral environmental agreements refer to precautionary principle in some form, but rarely provide elaboration into specific guidance. 0imilarly, several national level environmental initiatives invoke the precautionary principle. 2ere, a brief overview of some such initiatives is provided. 3ultilateral 4nvironmental (greements a* 3ontreal Protocol on 0ubstances that "eplete the 56one 7ayer, $+8 9 1Parties to this Protocol determined to protect the o6one layer by taking precautionary measures to control equitably total global emissions of substances that deplete it.. b* The !io "eclaration on 4nvironment and "evelopment, $++) 9 1in order to protect the environment the precautionary approach shall be widely applied by states according to their capabilities. c* :ramework ;onvention on ;limate ;hange, $++) 9 1The Parties should take precautionary measures to anticipate, prevent or minimi6e the causes of climate change and mitigate its adverse effects. d* ;onvention on
nion, $++) 9 1;ommunity policy on the environment must aim at a high level of protection and be based on the precautionary principle, as well as on the principle that preventive action should be taken, that environmental damage should be rectified at source and that the polluter should pay. f* ;artagena Protocol on
g* 0tockholm ;onvention on Persistent 5rganic Pollutants 'P5Ps*, )??$ 9 The ob@ective states, 13indful of the precautionary approach as set forth in Principle $% of the !io "eclaration on 4nvironment and "evelopment, the ob@ective of this ;onvention is to protect human health and environment from persistent organic pollutants. This treaty operationali6es precaution with e=plicit reference to it in the preamble, provisions for adding P5Ps, and determination of best available technologies. The Precautionary Principle has not been e=plicitly mentioned in any environmental laws in India. 2owever, the 0upreme ;ourt of India has invoked the principle while passing various @udgements. The 0upreme ;ourt of India in Aellore ;iti6ens elfare :orum vs >nion of India has declared that the precautionary principle is an essential feature of sustainable development. The 0upreme ;ourt of India first invoked the precautionary principle in this case. "rawing support from various (rticles of the ;onstitution of India and arguing that the precautionary is part of customary international laws 'and hence part of domestic laws*, the ;ourt strongly supported the application of precautionary principle. In fact, the ;ourt also applied the reversal of burden of proof and demanded that the proponents of the activity must demonstrate that the activity is environmentally benign. The precautionary principle was directly applied by the 0upreme ;ourt in 3; 3ehta vs >5I for protecting the Ta@ 3ahal from air pollution. The court observed that the atmospheric pollution in Ta@ Trape6ium Bone 'TTB* has to be eliminated. The court held that the industries, identified by the Pollution ;ontrol
In Carmada bachao (ndolan vs >5I, precautionary principle came to be considered by the ma@ority of @udges. The ;ourt also took the view that the doctrine is to be employed only in cases of pollution when its impact is uncertain and non-negligible. In TC Dodavarman vs >5I, the court recognised the importance of Indias treaty obligations, placing the precautionary principle in the conte=t of ;<". In this case, mining in the Eudermukh Cational Park was deemed to be inconsistent with the precautionary nature of Indias treary requirements. The Dovt was held responsible for adhering to its treaty responsibilities that did not conflict with domestic status. The precautionary principle has been viewed as an important elemental policy since the !io "eclaration of $++) and is widely believed to be favourable to the conservation of e=isting natural environments and the current stock of biodiversity. 4arlier, Precautionary Principle was only used on the matter of environmental pollution but today this is being used to deal with the wild life protection, biodiversity conservation, protection of shrimps, matters related to climate change etc.
