[Commentary] Precautionary Principle and its tryst with the Indian judiciary

Widely contested in international environmental jurisprudence, the precautionary principle has two versions. The ‘weak’ version prescribes undertaking “cost-effective measures” to prevent environmental degradation when there is threat of “serious and irreversible damage” to the environment. Lack of full scientific certainty shall not postpone these measures. The ‘strong’ version prescribes undertaking “precautionary measures”, when an activity “raises threats of harm to human health or the environment, even if some cause and effect relationships are not established scientifically”; the burden of proof to prove that the activity is environmentally benign is on the proponent of the activity. While evident differences exist with regards to threshold of harm, cost-effectiveness of measures, and burden of proof, “regulating (situations of) scientific uncertainty” to preclude damage to environment and human health, is pivotal to both renditions of the principle.

India’s textual adoption of the principle echoes this quintessential understanding; however, its interpretation and application, suggest otherwise. Sporadically, the Court has applied the principle to achieve environmentally favourable outcomes, regardless of whether there is scientific uncertainty about the impacts of the activity in question.

This article analyses various judicial decisions to argue that India’s interpretation and application of the principle has been inconsistent and ambiguous. Using the political economy approach it explores how has this ambiguity played out in different cases and determined the outcome of environmental litigations.

Inconsistent application of the precautionary principle

In Vellore Citizens Welfare Forum v Union of India (Vellore case), the Supreme Court mentioned the precautionary principle for the very first time. Importing the ‘weak’ version, the Court held that the principle is a part of the “law of the land” and shall be applied in circumstances where there are threats of “serious and irreversible damage” to the environment. In such circumstances, “lack of scientific certainty will not be used as a reason for postponing measures to prevent environmental degradation.” Partly borrowing from the ‘strong’ version, the Court added that the burden of proof to prove that the project is environmentally benign is on the proponent of the activity. Oddly, the Court applied the principle in the instant case to direct the closure of tanneries, even though there was no scientific uncertainty as to their adverse impacts on the surrounding environment.

In similar vein, in M.C. Mehta v Union of India & Ors. (Taj Trapezium case), the Court precluded industries located in the proximity of Taj Mahal from burning coal for their operations, by applying the precautionary principle. Once again, it acknowledged that the adverse impacts of coal burning on Taj were “established beyond doubt”, i.e., there was no evident scientific uncertainty in that regard. Regardless, the Court relied on the precautionary principle to support its decision.

Contrastingly, in Democratic Youth Federation v Union of India, the Court applied the principle in its true spirit. It prohibited the use of pesticide Endosulfan, taking cognizance of the prevailing scientific uncertainty with regards to its impacts on human health and environment. However, inconsistency found its way into the decision when the Court adopted the ‘strong’ version of the principle instead of the domestically used ‘weak’ version.

The Court’s decision in Narmada Bachao Andolan v Union of India (NBA case), presents the most bizarre and problematic (in) application of the principle. In the majority judgement, the Court negated its application on the assertion that, environmental impacts of dams were neither uncertain, nor catastrophic for the environment. The Court omitted to consider two pivotal facts highlighted in Justice Barucha’s dissenting opinion. First, at the time of issuing the environmental clearance in 1986, contemporaneous Notes prepared by the two Union Ministries explicitly admitted that the impacts of the Sardar Sarovar dam on the surrounding region were unclear. Second, even after the environmental clearance was issued, no environmental impact assessment was carried out to ascertain such impacts. In 1993, an independent review committee, the Morse Commission indicated that the project posed a threat to environment and human health. However, its findings were contested.

 

Cumulatively, these facts establish one actuality beyond doubt, i.e., there existed a state of scientific uncertainty about the environmental impacts of the dam, even at the time the judgement was being pronounced. Therefore, contrary to the Court’s assertion, the precautionary principle could have been applied in this case and the Court could have suspended the project, pending a comprehensive environmental impact assessment. Had it done so, it may have prevented the subsequent rampant environmental degradation and human rights violations caused by the project.

In April 2020, in Alembic Pharmaceuticals v Rohit Prajapati & Ors., the Court held that the precautionary principle precludes granting ex-post facto environmental clearances. Effectively, it disallowed the operation of certain activities, pending a comprehensive environmental impact assessment to ascertain their impacts on environment and human health. Albeit the principle was applied appropriately, the Court only mentioned the principle en passant, without actively engaging with it or clarifying the parameters for its application.  Consequently, the ambiguity persists.

Political economy of the environmental disputes  

The foregoing analysis reveals that due to its ambiguity, the precautionary principle has played out differently in different environmental litigations, significantly impacting their outcome. The absence of explicit parameters to guide the application of the principle, has allowed the unique political economy of different environmental disputes to (mis)guide it. To understand this, let us compare the political economic context of the disputes in two contrasting judicial decisions, i.e., the NBA case and the Vellore case.

In the NBA case, the Court refused to entertain all pleas of the petitioner associated with stalling the project, given that the dam had already attracted a large sum of money. This concern was echoed by State’s representatives too. Moreover, it has been suggested that the primary beneficiaries of the dam were actually Gujarat’s industries, as opposed to the declared beneficiaries, i.e., the population residing in the drought prone region of the state. This explains why the benefits of the dam had been overestimated and overstated. Ultimately, it was this very estimation that had factored into the Court’s decision.

The identity of the victims is also pivotal to understanding the political economic context of the dispute. The victims were an indigenous population of the region and had resided there for twelve generations. It would not be unreasonable to assume that their adverse socio-economic conditions and limited political agency may have had some bearing on the dispute since the very beginning. Apart from this, constructing large dams was perceived as a yardstick of national greatness. Sardar Sarovar had been envisioned as an engineering marvel, and was set to become the world’s second largest dam.

Contrastingly, in Vellore, while the tanneries polluting River Palar were major foreign exchange earners, the state government had itself issued several warnings to them. Notably, there was neither a substantial financial investment by the State in the tanneries, nor was a sentiment of national and international pride attached to them.

Therefore, while the vagueness of the principle could benefit the victims and, facilitate protection of the environment, the NBA judgement, and the consequences that ensued, unveil an alternate, appalling scenario. Developing a more nuanced understanding of the principle, and laying down explicit, objective parameters for its application, could preclude such misadventures and bring consistency across judicial decisions.

The author is an Assistant Lecturer at Jindal Global Law School (JGLS), India. Her research interests include environmental law, climate change law & traditional water systems. 

Banner image:  In a 1996 case, the Court precluded industries located in the proximity of Taj Mahal from burning coal for their operations, by applying the precautionary principle. Photo by Jakub Halun/Wikimedia Commons.