[Commentary] Resolving the conundrum on the precautionary principle

In May 2022, in the case T.N. Godavarman Thirumulpad versus Union of India, the Supreme Court passed a landmark order, marking a pivotal development in judicial jurisprudence on the precautionary principle – a legal action which is widely contested in international environmental legal system.

In the case, the petitioner challenged the approval granted by the Standing Committee of National Board for Wildlife (NBWL) for doubling the railway line between Castlerock (Karnataka) and Kulem (Goa). The proposed railway line passed through protected forests, non-protected forests and a major tiger corridor.

The precautionary principle in environmental law requires anticipatory action to be taken to prevent harm. This harm can be prevented even on a reasonable suspicion. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity.
Source: T.N. Godavarman Thirumulpad Versus Union of India

The petitioner’s claim was based on the lack of a comprehensive impact assessment by NBWL before granting clearance to the project. They also relied on the Central Empowered Committee’s (CEC) detailed impact study, which underscored the adverse impacts of the project on the surrounding biodiversity. However, Rail Vikas Nigam Limited (RVNL), the project proponent, submitted that the doubling of the railway line will cater to the projected increase in traffic from Karnataka to Goa. It highlighted that a comprehensive biodiversity and environmental assessment of the project had been undertaken by the Indian Institute of Science, Bengaluru. Furthermore, it submitted that state-of-the-art mitigation measures would be undertaken to prevent damage to the environment and that under-bridges and over-bridges would be constructed to ensure safety of animals crossing the railway lines.

In its decision of revoking the impugned clearance, the court laid emphasis on the principle of sustainable development and the precautionary principle.

Developments in the precautionary principle

The court’s interpretation and application of the precautionary principle in this case is noteworthy. It amalgamates the rather spread-out jurisprudence on the principle, reconciles conflicting positions, and streamlines its application. To appreciate this argument, it is crucial to understand the judicial development of the principle thus far.

In 1996, for the Vellore Citizens versus Union of India case (regarding the pollution caused by discharge of untreated effluents in Tamil Nadu), the Supreme Court imported the principle into Indian environmental jurisprudence for the first time. It stated that where there exists a threat of serious or irreversible damage to the environment, lack of scientific evidence shall not preclude regulatory measures to protect environment and human health. Here, the burden of proof to prove that the activity is environmentally benign, lies on the proponent. Thus, as per the Court, the principle is a tool to regulate situations of scientific uncertainty. However, in this case, there was no supervening scientific uncertainty with respect to  the impacts of the impugned project, yet the Court applied the principle.

Following suit, in the A.P. Pollution Control Board versus Prof M.V. Nayudu case (regarding the establishment of an industry), albeit the adverse impacts of the impugned project were certain, the Court applied the precautionary principle to prevent its establishment. In many cases that followed, the principle was applied inconsistently, regardless of the existence of a state of scientific uncertainty. Therefore, the judicial application of the principle over decades has blurred the boundaries between prevention and precaution.

Distinguishing between ‘prevention’ and ‘precaution’

The Godavarman case is a leap forward in streamlining the interpretation and application of the precautionary principle. A primary reason for this is the court’s unequivocal clarification that the principle is “based on scientific uncertainty”. In other words, it comes into operation when there is supervening scientific uncertainty about the impacts of the project on the environment. Theoretically, this interpretation is in line with its previous decisions such as in the case of A.P. Pollution Control Board. There too, the court relaxed the evidentiary standard for proving environmental harm.

Applying this jurisprudence, the Supreme Court launched an enquiry into the impacts of the impugned project and established that there is prevailing scientific uncertainty. In doing so, it emphasised that RVNL’s impact assessment was cursory and incomprehensive. Furthermore, it considered CEC’s report which highlighted that the state-of-the art mitigative measures proposed by RVNL, could not possibly be implemented. The court interpreted this contradiction as per the principle and held that the mitigation measures are “not clear”. Notably, it did not treat CEC’s assessment as absolute, rather only utilised it to problematise RVNL’s assessment, and establish scientific uncertainty.

The court not only dispelled doubts surrounding the interpretation of the principle, but also around its application. Thus, the previous applications of the principle in cases without any scientific uncertainty with respect to impacts of the impugned activity, stands categorically challenged.

Analyses of previous judicial decisions has highlighted that ambiguity allows space for judges’ own predilections to bear on the outcome of a public interest litigation. In this case, the court has successfully dispelled the ambiguity surrounding the principle’s application. Accordingly, such objectivity could potentially preclude the political and economic context of a dispute to affect judicial decision-making. In fact, in this case too, RVNL’s argument that the project had already attracted significant economic investment, did not steer the court’s decision. This is in a stark contrast to the decision in the case of Narmada Bachao Andolan versus Union of India. In this case the inter alia, major economic investment made in the dam, was a factor considered by the court while allowing its expansion, despite the absence of a comprehensive impact assessment.

Assessing the proportionality

Another interesting aspect of this case is the court’s jurisprudence on proportionality. The doctrine of proportionality is implicit in the precautionary principle, and preceding judicial decisions have laid significant reliance on it. It requires any regulatory action to not restrict economic growth more than what is required for protection of the environment. In other words, the regulatory action must not be more drastic than it ought to be to obtain the desired result.

While the court did not explicitly refer to the doctrine, it engaged in a proportionality assessment while revoking the clearance. It juxtaposed the environmental risks posed by the project (although uncertain) against the projected economic growth. In doing so, it expanded the understanding of environmental risks. Employing an eco-centric approach, it said that environmental protection includes protection of the environment for its own sake. In other words, environmental risks include threats to non-human environment- the fact that human environment is unaffected by such threats does not dilute the ‘value’ associated with such risk. Thereafter, considering the contentious nature of the projected growth, the court revoked the clearance until further comprehensive studies were conducted. The court even allowed the project proponent to submit a fresh proposal.

A detailed proportionality assessment of the like, considering every economic and environmental interest, is a unique and notable precedent. Particularly, the court’s clear recognition of the intrinsic value of the non-human environment is a significant step-forward in mainstreaming eco-centrism.

Perhaps the only point of concern is the court’s reiteration that where there is doubt, environmental interests shall take precedence over economic interests. A possible implication of this jurisprudence is that any protectionist measures could be taken regardless of the economic consequences. Arguably, this dilutes the importance of the much-stressed-upon proportionality assessment.

A comprehensive and binding interpretation to guide the application of the principle is only possible through its legislative codification. That being said, the court’s decision in this case, is vital in streamlining judicial jurisprudence on the precautionary principle, which is currently the only normative standard available.

---

Kanika Jamwal is an assistant professor at Jindal Global Law School, O.P. Jindal Global University, Sonipat. Aastha Kapoor is a fourth year law student at Jindal Global Law School, O.P. Jindal Global University, Sonipat.

---

 

Banner image: A train passing through the Western Ghats between Bengaluru and Goa. Photo by Prateek Rungta/ Wikimedia Commons.