Precautionary Principle in Environmental Law

An Ounce of Prevention is Worth A Pound
of Cure
• The precautionary principle originated in Germany were it formed part of its environmental policies
since the mid 1970's. The German equivalent of the precautionary principle, the Vorsorgeprinzip.
• The principle is evolved to provide a legal basis for environmental regulation in the face of scientific
uncertainties.
• The precautionary principle emphasized by the United Nations Conference on Environment and
Development (UNCED), held in Rio de Janerio in the year 1992, signifies a preventive approach:
• “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.” (Rio Declaration
1992, Principle 15).

A stitch in time saves nine
• A stronger definition can be found in an EU communication:
The precautionary principle applies where scientific evidence
is insufficient, inconclusive or uncertain and preliminary
scientific evaluation indicates that there are reasonable
grounds for concern that the potentially dangerous effects on
the environment, human, animal or plant health may be
inconsistent with the high level of protection chosen by the
EU (EU, 2000).

Content of the Precautionary Principle in
International Treaties
• Preamble to the Vienna Convention for the Protection of the Ozone Layer.
• The Montreal Protocol was introduced in 1987 where the signatories agreed to undertake precautionary measures to
control the emission of substances which depleted the ozone layer.
• The need to adopt which were precautionary in nature was also recognized in the Second North Sea Conference
Ministerial Declaration (the London Declaration) in 1987
• At the Third Sea Conference, the parties came to a decision that they would continue applying preventive measures
to prevent damage, even there is no scientific evidence. The precautionary principle was also included in the
Convention on the Protection of the Marine Environment of the North-East Atlantic, which was introduced in the year
1992.
• In the year 1992, the signatories of the Helsinki Convention on the Protection and Use of Transboundary
Watercourses and International Lakes was introduced. The signatories to this Convention decided to be guided by the
Precautionary Principle.-Helsinki Convention on the Protection and Use of Transboundary Watercourses and
International Lakes: Article 2(5) (a).

Prevention Precaution
• Preventive Measures- Premised on risks that were certain to eventuate. It is
based on the concept of certain risk.
• Precautionary Measures- Taken in circumstances where damage has not yet
occurred, and indeed where there is no irrefutable proof that it will occur. It is
premised on a perfect understanding of any given risk, rather it is sufficient that a
risk be suspected, conjectured, or feared. Precaution is triggered by risk potential,
and it often requires a risk analysis.

Prevention Precaution: Paradigm
Shift
• In International Law, precaution and prevention are considered two distinct principles.
• The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS), in its
Advisory Opinion, held that precaution and prevention form part of the obligation of due diligence:
“The due diligence obligation of the sponsoring States requires them to take all appropriate measures to
prevent damage that might result from the activities of contractors that they sponsor. This obligation
applies in situations where scientific evidence concerning the scope and potential negative impact of the
activity in question is insufficient but where there are plausible indications of potential risks.” (Advisory
Opinion, order dated February 1, 2011)
• Precaution, it seems cannot be limited to activities that are recognised as involving a significant risk of
harm. Rather it extends to taking appropriate measures to identify activities that involve

Interpretation
• Weaker Version: Application to instances of “threats of serious or irreversible damage” or
impose duty on states to take “cost effective measures” as per their capabilities.
• Stronger Version: Reversal of Onus of Proof:
• The potentially risky activity is banned until the proponent of the activity demonstrates that it
poses no risk. The burden of proof shifts to the proponent of the activity to demonstrate that the
activity is benign, and a standard of proof – acceptable risk, or no risk is set.
• Unless an activity is proved to be environmentally benign in real and practical terms, it is
presumed to be environmentally harmful.
• Industrialists are required to discharge their burden by showing the absence of a ‘reasonable
ecological or medical concern ‘. ‘If insufficient evidence is presented by them the presumption
should operate in favour of environmental protection.’- (APPCB v. MV Nayudu)

Legal Status
• International legal status of this principle is still in evolution. International courts and
tribunals have remained cautious about declaring that the principle has acquired
customary status, only going so far as to suggest that there is a trend towards making
precaution part of custom.
• In 2011 Advisory Opinion, the Seabed Disputes Chamber of ITLOS noted that ‘the
precautionary approach has been incorporated into a growing number of international
treaties and other instruments, many of which reflect the formulation of Principle 15 of
the Rio Declaration. In the view of this chamber, this has initiated a trend towards
making the approach part of customary international law.

Precautionary Principle as a General Principle
of Law Recognised by Civilised Nations
• General principles of law recognised by civilised nations are a source of international
law as per Article 38(1)(c) of the Statute of the ICJ.
• As the precautionary principle has been formulated and applied in domestic law of
various states, it is worthwhile to explore whether the argument to recognise the
precautionary principle as a norm of international law can be supported.
• The Precautionary Principle has been a part of Germany’s domestic policies since the
1970’s. The UK incorporated precaution in White Papers, dating back to the 1990 and
in its environmental strategy. The United States, too has the principle incorporated in
its National Environmental Policy Act (NEPA), 1969

Precautionary Principle in International
Judicial Decisions
• Judicial decisions are a subsidiary means for the determination of international law as per Article
38(1)(d) of the ICJ statute.
The International Court of Justice
Pulp Mills on the River Uruguay (Argentina v. Uruguay 2010)- the International Court of Justice
noted that, while a precautionary approach may be relevant in the interpretation and application of
the treaty agreed between both states, it does not follow that it operates as a reversal of the
burden of proof.
In a significant section of the judgment, the ICJ noted that the obligation to undertake an
environmental impact assessment where there is a risk that the proposed activity may have a
significant adverse impact in a trans-boundary context, has gained so much acceptance among
States that it may now be considered “a requirement under general international law”.

Judicial Decisions
• Second Nuclear Tests Case, Advisory Opinion, (1996) ICJ Rep 226- The ICJ
came close to giving a decision on the precautionary principle. New Zealand
contended on the basis of the precautionary principle being a norm of
international law and even sought a reversal of burden of proof. The ICJ did not
decide the merits and the case was dismissed on technical grounds. However,
Judge Weeramantary, in his dissenting opinion, concluded that the precautionary
principle is already a norm of international law and a sine qua non for human
survival and held that reversal burden of proof is an essential element of the
principle.

Judicial Decisions
• In GabcÃkovo-Nagymaros case, Hungary v. Slovakia, (1997) ICJ Rep 7:- the ICJ The Court
acknowledged that prevention was fundamental feature of environmental protection, due to the
often-irreversible nature of the possible damage but its view on precautionary principle remained
vague.
• The Law of the Sea Tribunal
• The Southern Bluefin Tuna (SBT) Case, (New Zealand v. Japan; Australia v Japan)- is a
landmark judgment of the tribunal on the application of the precautionary principle. Applying the
principle, the tribunal, Japan was enjoined from further fishing of SBT to ensure effective
preservation of SBT resources, to prevent its permanent depletion . The Tribunal stated that
scientific uncertainty was not a ground for failing to protect the future depletion of the resource.

Judicial Decisions
Cont..
• This is a deviation from the traditional notion embedded in Article 61(2) of the Law of
the Sea Convention where conservation measures should be based on scientific
evidence available.
• This case was a ground breaking because it used the precautionary principle as a
standard, giving it a normative value and implemented the principle as a remedy.
• As the decision was only for provisional measures, the tribunal applied the principle to
play a neutral role by preserving the situation, avoiding deterioration of the resource
while awaiting the final decision on the substantive issues of the case.

Precautionary Principle and its judicial
application in India
•In Vellore Citizen Welfare Forum v Union of India(1996) 5 SCC 647 at 658, the
Supreme Court identified three elements to the precautionary principle:
1. ‘[e]nvironmental measures- by the State government and the statutory authorities -
must anticipate, prevent and attack the causes of environmental degradation; (Principle
of Prevention)
2. ‘[w]here there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures to prevent
environmental degradation; (a step beyond mere prevention)
3.The ‘onus of proof’ is on the actor or developer or industrialist to show the actions are
environmentally benign.(as conceived by the Court, as the strong version.)

Vellore, the Patriarch
• Sustainable development was substantially introduced into Indian environmental jurisprudence
in Vellore Citizens’ Welfare Forum v. Union of India and Others, (1996) 5 SCC 647,
wherein a suit brought against the State of Tamil Nadu in response to reports that tanneries in
the State were discharging effluents into the river Palar, a major source of drinking water. In
response, the Supreme Court used the frame of Sustainable Development to conclude that the
economic benefits of the leather industry notwithstanding economic interests could not be
allowed to, ‘destroy the ecology, degrade the environment and pose as a health hazard’ to the
public at large. – Vellore Para 09
• Vellore endorsed the Brundtland Commission’s definition of sustainable development and
listed some ‘salient principles sustainable development ‘culled out’ from the Brundtland Report,
‘and other international documents. The Court noted that polluter pays principle and the
precautionary principle were ‘essential features’ of sustainable development, and extended
customary –norm status to these principles.

• A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) and others AIR 1999 SC 812
the court in this case had clarified the meaning of the principle for application by
Indian Courts. The Supreme Court has for the first time in this decision referred to
scientific uncertainity as the basis for the precautionary principle. The Court
proceeded with the assumption that precautionary principle is a customary norm of
international law. The Court elaborated the "reverse onus of proof" principle upheld in
the Vellore Case and justified it, though not commenting on the dispute of whether it is
an integral part of the precuationary principle. Therefore, apart from mentioning
scientific uncertainity as the basis for the precautionary principle, this decision has
merely reiterated the Vellore position on the content of the precautionary principle.

• A.P. Pollution Control Board Vs. Professor M.V. Mayadu (1999) 2 SCC 718
submitted that in cases pertaining to environment, the onus of proof is on
the person who wants to change the status quo and, therefore, it is for the
respondents to satisfy the Court that there will be no environmental
degradation.

• MC Mehta versus Union of India and others (1997) 2 SCC 353 (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.

THE TAJ TRAPEZIUM ZONE
• The Supreme Court took cognizance of this matter i n J a n u a ry 19 9 3 a n d adopting the
continuous mandamus procedure, has passed a spate of orders over the years to protect the
monument.
• An area of 10, 400 sq. km. around the monument has been declared as the Taj Trapezium Zone.
DIRECTIONS -
• In 1995- 292 industries were d i r e c t e d t o b e ru n o n natural gas.
• In 1996- Expert Committee constituted to inspect the progress of the green belt around Taj Mahal.
• In 1 9 9 7 – Agra Mission Management Board was constituted.
• In 1998- a number of antipollution measurers were ordered including a complete ban on vehicular
traffic in the immediate vicinity.

TAJ TRAPEZIUM AUTHORITY
• The Taj Trapezium Zone Pollution (Prevention & Control) Authority was set up in 1999.
• The authority has been tasked with monitoring and implementing various s c h e m e s f o r t h e
protection of Taj Mahal.
• It has also been tasked with improving the environment in the area and ensuring that emission
standards are complied with by motor vehicles in the area.
• Directions
• 2000- 4 Ambient Air Quality Monitoring Station were installed in the Agra region to monitor the air
quality. The reports are submitted regularly to the Supreme Court for Monitoring.
• 2010- A major restoration of the Taj Mahal Complex was u n d e r t a k e n o n t h e directions of the
Supreme Court as cracks had started to appear in parts of the tomb and the surrounding minarets
caused by tilting due to a decline in the groundwater level in the Yamuna River basin.

TTZ: Further Directions
• The Uttar Pradesh government has been directed o submit a comprehensive
vision document and to protect and preserve Taj Mahal and its environment.
• A “No-Construction” zone has been declared with a 500 meter radius of the Taj.
• The Central Pollution Control Board has directed the State Government to shut
down or relocate a crematorium which is falling within the TTZ as it is adversely
impacting the environment.

TTZ Case- MONITORING BY THE
SUPREME COURT
The Court has been directly monitoring the following issues relating to the pollution problems of Agra
City:
1. Industries located in Agra including foundry units; 2. Compliance of the directions of the
Supreme Court by the Mission Management Board; 3. Traffic management & encroachments
within the 500 metre zone of the Taj Mahal; 4. Agra Heritage Fund; 5. Opening of Taj Mahal in
the night 6. Unauthorized construction within 100 meters from the southern gate of the Taj
Mahal; 7. Supply of gas to the industries located in Firozabad; 8. Brick Kilns located 20 km
away from Taj Mahal or any other significant monument in the TTZ area, including the
Bharatpur Bird Sanctuary; 9. Promotion of non-Conventional Energy Source;
and 10.Beefing up the security of Taj Mahal.

Precautionary Principle position in India
In Narmada Bachao Andalon v Union of India (2000) 10 SCC 664,
"In the present case what is being established is a large dam the dam is neither a nuclear establishment
nor a polluting industry....“ The judgment presents the most bizarre and problematic 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.

development-led displacement
• The Narmada Bachao Andolan (NBA) is a social movement in India that opposes
displacement due to dam projects on the Narmada River.
• The movement has successfully combined environmental networks and
agricultural identities in its struggle. It has also influenced human rights discourse
at the international level and created a forum for those affected by development-
led displacement.
• The NBA has utilized both litigation and non-litigation strategies to halt
construction of the dams and ensure appropriate resettlement and rehabilitation of
the displaced . The movement's resistance led to the World Bank withdrawing
funding for the Sardar Sarovar dam in 1993.

• However, the government has maintained that large dams are
essential for achieving the common good. The Supreme Court of
India gave permission for the continued construction of the Sardar
Sarovar dam in 2000 . The NBA's struggle operates at multiple
scales, including the national level, and addresses class divisions
within its membership .

• In this case, it is noticed that from the catena of decisions coming in
from the Supreme Court, that this is one of the few cases that the
Supreme Court has not followed the usual path, the general trend of
the Supreme Court to very actively stand up for the disadvantaged’s
cause (even overlooking some procedural lapses they might have
made), the Supreme Court’s advocacy of the precautionary
principle among others were not followed.

• An overwhelming adherence to, national interest, and that the dam’s
construction resulting in displacement of thousands of people must
be allowed for the greater common good.
• It is not very often that the Supreme Court has taken a rather
utilitarian view of an environmental PIL

Judgement
• The judgment, ruled by a majority of 2:1, Kirpal, J., speaking for Anand, C.J.,
and himself, and Bharucha, J. dissenting, came on 18th October 2000.
• It starts off with talking about the history of the dam’s construction, right
from the inception of the idea of damming the Narmada, to the starting of
construction. It outlines the technical details about the dam and also
discusses the allotment of water to the states.

• The contentions of the Petitioners are discussed, which have been framed
in four main headings:
• 1. General issues
• 2. Issues regarding environment
• 3. Issues regarding relief and rehabilitation (of tribals)
• 4. Issues regarding review of Tribunals Award

• The Petitioners also sought an independent judicial study to be done to analyze
the best estimates for the costs and benefits of the entire project. The State of
Madhya Pradesh joined the Petitioners inasmuch as it has also pleaded for
reduction in the height of the dam so as to reduce the extent of submergence and
the consequent displacement.

• The Supreme Court, while addressing each contention, observed that the
Petitioners had been guilty of latches (to which Bharucha, J. disagreed ). The
majority reasoning went thus:
• When such projects are undertaken and hundreds of crores of public
money is spent, individual or organisations in the garb of PIL cannot be
permitted to challenge the policy decision taken after a lapse of time. It is
against the national interest and contrary to the established principles of
law that decisions to undertake developmental projects are permitted to be
challenged after a number of years during which period public money has
been spent in the execution of the project

• And in this way, went on to admit only one of the contentions viz. the
issue of resettlement and rehabilitation measures for tribals under
the ambit of Article 21 of the Constitution of India. In his dissent,
Bharucha, J. said that “it would be against public interest to decline
relief only on the ground that the Court was approached belatedly.

• The issue of rehabilitation of the project-affected population came
up for discussion next, and counsel for Petitioners Shanti Bhushan
argued that the submergence of the villages for the reservoir would
displace thousands of tribals who have lived in the area for
generations. The rebuttal from the Respondents was that the tribals
would be given proper rehabilitation packages and compensation.
The other technical grounds with regards to height and water
capacity of the dam and reservoir were appropriately rebutted, these
are technical grounds and out of the scope of our discussion.

• The Court refused to discuss the Tribunal’s (NWDT) award as they
were reluctant to allow the Petitioners to challenge the correctness
thereof. The Tribunal had already awarded the State of Gujarat the
right to build the dam to a height of 455 feet, and appropriate relief
and rehabilitation measures, thereby striking off the fourth
contention

• The Court did note that there would be violations of Article 21 of the Constitution
of India and Convention 107 of the ILO on forcible or wrongful displacement of the
PAPs (Project affected population). It takes an extended view of Article 21 of the
Constitution of India and recognizes and includes the right to rehabilitation in a
just and equitable manner. This has been one of the highlights of the case, that
Article 21 has been recognized and held supreme in an instance where the
disadvantaged were in dire need of proper resettlement measures.

• On the Environmental issues, the Court took a paternalistic view and said that
dams play a vital role in providing irrigation for food security, domestic and
industrial water supply, hydroelectric power and keeping flood waters back . It also
asserts that the displacement of persons need not per se result in the violation of
their fundamental or other rights.

• In the majority judgment, the application of the principle of precautionary principle
was rejected in this case.
• They went on to say:
• In the present case we are not concerned with the polluting industry which is being
established. What is being constructed is a large dam. The dam is neither a nuclear
establishment nor a polluting industry. The construction of a dam undoubtedly
would result in the change of environment but it will not be correct to presume that
the construction of a large dam like the Sardar Sarovar will result in ecological
disaster. India has an experience of over 40 years in the construction of dams. The
experience does not show that construction of a large dam is not cost effective or
leads to ecological or environmental degradation. On the contrary there has been
ecological up gradation with the construction of large dams. What is the impact on
environment with the construction of a dam is well-known in India

• (Note- Research shows that dams impede transport of sediment to the oceans,
which worsens coastal erosion. They also release methane, a potent greenhouse
gas, as drowned vegetation beneath dam reservoirs decomposes).

Conclusion
• The Supreme Court's view on the Narmada Bachao Andolan (NBA) case was
unusual compared to past environmental cases.
• NBA, led by Medha Patkar, opposes the Narmada dam, citing more harm than
benefits.
• Article 21's "procedure established by law" is linked to environmental protection in
this context.
• The State, not private parties, was seen as harming the environment in this case.
• The dam's benefits were acknowledged, but the Supreme Court overlooked the
displacement of people.

• Critics said the Court ignored the reality of delayed and inadequate
compensation for those displaced.
• The Court's judgment was influential internationally on river projects and
dams.
• The Narmada Water Dispute Tribunal (NWDT) Award's rehabilitation
guidelines were not followed.
• The Court's judgment suggested earlier intervention by petitioners could
have led to a better outcome.
• The Court dismissed the precautionary principle, claiming dams don't
necessarily lead to ecological disaster.

• The judgment is criticized for downplaying the environmental
impact of large dams.
• The World Commission on Dams reported large dams have significant, long-term
environmental effects.
• The Court could have enforced better relief and rehabilitation instead of just accepting
the project.
• Justice Bharucha's dissent acknowledged the need for broader criteria to assess
projects, including potential negative impacts.
• The dissent noted the difficulty of halting the project late in its development but
suggests more discussion is needed.

Lafarge Umiam Mining Private Limited v. Union of India, (2011) 7 SCC 338- The case concerns with limestone
mining in Meghalaya by Lafarge. The limestone has to be transported by a conveyor belt to the cement plant in
Bangladesh. The state government under a misconception that the mine was not situated in a forest land, and
therefore Lafarge did not seek the permission of the central government. However later when it was realised
that the land was situated in forest area, permission was granted with retrospective effect. The retrospective
grant of permission was challenged before the Supreme Court. The petitioner alleged that Lafarge deliberately
hid the facts that the mine was in forest land. As the mining had already begun in the mine because of
misrepresentation, clearance had to be given. The allegation was that Lafarge was taking advantage of its own
wrong. The court addressed the problem on a different note. The Court began with the relativity of the concept
of sustainable development. The Court observed that environmental conflicts are eradicable and environmental
protection is always a matter of degree, inescapably requiring choices as to appropriate level of environmental
protection and the risks which are to be regulated. In effect the court meant the concept of sustainable
development is flexible and the court would prefer to go with the governmental retrospective approval.

• Beautification even at the cost of environment is considered necessary for the
development of industrial society and efficient capitalism.
• In Okhla Bird Sanctury v. Anand Arya, (2011) 7 SCC 74: For the construction of
Park at NOIDA, the Supreme Court approved the construction of a Park, which
required the axing of 6186 live trees, subject to the supervision of an expert body,
on the technical grounds that according to the revenue records of 1952, the land
over which the forest was developed was uncultivable, though it was alleged that
the Park would adversely affect the nearby Bird Sanctuary.

• Research Foundation for Science (18) v Union of India (2005) 13 SCC 186,(Ship breaking industry at
Alang) Court observed that ‘order to achieve sustainable development environmental protection shall
constitute an integral part of the development process and cannot be considered in isolation from
it,…the ship breaking operation cannot be permitted to be continued without strictly adhering to all
precautionary principles’. the Court ordered that ‘before a ship arrives at port, it should have proper
consent from the concerned authority or the State Maritime Board, stating that it does not contain any
hazardous waste or radioactive substances onboard’. The Court obliged that all ships ‘should be
properly decontaminated by the ship owner prior to the breaking’
• Research Foundation for Science Technology and Natural Resources Policy v Union of India (2007)
15 SCC 193 (Blue Lady Case)- The court noted that ‘while applying the concept of “sustainable
development” one has to keep in mind the “principle of proportionality” based on the concept of
balance.

• Section 20 of the National Green Tribunal Act, 2010 declared the precautionary
principle to be an integral part of national environmental law:
“Section 20. Tribunal to apply certain principles.—The Tribunal shall, while
passing any order or decision or award, apply the principles of sustainable
development, the precautionary principle and the polluter pays principle.”

NGT Decisions
• In Jeet Singh Kanwar v. MoEF and Others, Appeal No. 10/2011 judgment dated 16
April 2013- NGT (Principal Bench) quashed an environmental clearance for a coal-
based thermal power plant on the grounds that MoEF had not properly considered the
precautionary principle.
• In Sarang Yadwadkar and Ors v. The Commissioner, Pune Municipal Corporation and
Ors, Application No. 2/2013 judgment dated 11 July 2013 NGT (Principal Bench)- the
NGT defines the precautionary principle as the principle of prevention. The NGT notes
that the principle of precaution involves anticipation of environmental harm and taking
measures to avoid it or to choose the least environmentally harmful activity.

NGT Decisions
• In S.P. Muthuraman and Ors v. Union of India, OA No. 37/2015, judgment dated 7 July 2015,
NGT (Principal Bench), para 158, NGT notes that the ‘precautionary principle is proactive
method of dealing with the likely environmental damage. And the purpose should be to avert
major environmental problem before the most serious consequences and side effects would
become obvious.
• In M/s Sterlite Industries (India) Ltd. Thoothukudi v. The Chairman, Tamil Nadu Pollution Control
Board, Chennai, Appeal No. 22/2013, judgment dated 8 August 2013, NGT (Principal Bench),
the NGT identified the essentials for the invocation of the precautionary principle as, (a) there
should be an imminent environmental or ecological threat in regard to carrying out of an activity
or development; (b) such a threat should be supported by reasonable scientific data; and c)
taking precautionary, preventive or prohibitory steps would serve the larger public and
environmental interest.

NGT Decisions
• In Goa Foundation and Anr v. Union of India and Others, judgement dated
February 6, 2013, the NGT noted that ‘an anticipated or likely injury to
environment can be sufficient cause of action partially or wholly for invoking the
jurisdiction of the Tribunal. And ‘inaction in the facts and circumstances of a given
case could itself be a violation of the precautionary principle therefore bring it
within the ambit of jurisdiction of the Tribunal as defined under the NGT Act.”

• Hospitality Association of Mudumali v. In defence of Environment and animals and others ,
(2020) 10 SCC 589
• It was held that State Government is empowered to take measures to protect forests and
wildlife falling within its territory in light of entries 17-A "forest" and 17-B "Protection of wild
animals and birds" in the concurrent list of the Constitution and the power of the State
Government under the Wildlife (Protection) Act, 1972 to notify sanctuaries and other
protected areas in regard to private forest land, the State Government is empowered to
protect the habitats situated on the land in dispute by notifying an elephant corridor
thereupon. Article 21, 47, 48-A and 51-A(g) give a clear mandate to the State to protect and
improve the environment and to safeguard the forests and wildlife of the country.

Hospitality Association of Mudumali v. In
defence of Environment and animals and
others , (2020) 10 SCC 589
• The "precautionary principle" which is a part of the law of the land makes it
mandatory for the State Government to anticipate, prevent and attack the causes
of environmental degradation. In view of this matter it was held that in order to
protect the elephant population in region in dispute it was necessary and
appropriate for the State Government to limit commercial activity in the areas
falling within the elephant corridor.

• Amarnath Shrine. In Re v Union of India, (2013) 3 SCC 247
• Dealing with religious tourism and the impact on environment. It was observed by the
court that inter-generational equity is treated to be an integral part of Article 21 of the
Constitution. The Courts have applied this doctrine of Sustainable Development and
Precautionary Principle to the cases where development is necessary, but certainly not
at the cost of environment. The Courts are expected to drive balance between the two.
In other words, the onerous duty lies upon the State to ensure protection of environment
and forests on the one hand as well as to undertake necessary development with due
regard to the fundamental rights and values. Thus, appropriate balance between
different activities of the State is the very foundation of the socio-economic security and
proper enjoyment of the right to life.

• In Hanuman LaxmanAroskar v. Union of India (2019) 15 SCC 401 the Supreme
Court had imposed an embargo on Environmental Clearance for the development
of International Airport at Mopa, Goa.
• In a case challenging the grant of an Environmental Clearance (EC) for the
development of a greenfield international airport at Mopa in Goa, the Division
Bench of the Apex Court directed Expert Appraisal Committee (EAC) to revisit the
conditions subject to which it granted its EC within a month.

Hanuman Laxman Aroskar v. Union of
India (2019) 15 SCC 401
• Court observed “There can be ‘no gambles with the environment: a ‘heads I win,
tails you lose’ approach is simply unacceptable if we are to preserve
environmental governance under the rule of law.”
• Health of Environment is the key to preserve the right to life under Article 21.
• We cannot gloss over the patent and abject failure of the State of Goa as the
project proponent in failing to disclose wet lands, water sources, water bodies,
biosphere, mountains and forests within an aerial distance of 15 kms as requird
by Form 1. The disclosure in Form 1 constitutes the very foundation of the.

India (2019) 15 SCC 401
• …. There is considerable implementation gap between the requirements of
environmental laws and their implementation and enforcement- both in developed
and developing countries alike. The environmental rule of law seeks to address
this gap. The environmental rule of law provides an essential platform
underpinning the four pillars of sustainable development- economic, social,
environmental, and peace. It imbues environmental objectives with the essentials
of rule of law and underpins the reform of environmental law and governance. The
environmental rule of law becomes a priority particularly when we acknowledge
that the benefits of environmental rule of law extend far beyond the environmental
sector.

India (2019) 15 SCC 401
• While the most direct effects are on protection of the environment, it also strengthens rule of law
more broadly, supports sustainable economic and social development, protects public health,
contributes to peace and security by avoiding and defusing conflict, and protects human and
constitutional rights.
• Amartya Sen argued for a broadening of the notion of sustainable development which is the
most dominant theme of environmental literature, from a need-based standard to a standard
based on freedoms. Thus recharacterized, it encompasses the preservation, and when possible
even the expansion of the substantive freedoms and capabilities of people today without
compromising the capability of future generations to have similar or more freedoms. The
intertwined concepts of environmental rule of law thus further intragenerational as well as
intergenerational equity.

References
• Supreme Court Cases. (2017, February 26). Supreme Court Cases.
• O'Riordan, T., & Cameron, J.. (2013). Interpreting the precautionary principle.
Routledge. https://doi.org/10.4324/9781315070490
• Liu, X.. (2023). Precautionary principle. Edward Elgar Publishing eBooks.
https://doi.org/10.4337/9781788974912.p.57
• Mann, H.. (1992). The Rio Declaration. 86.
https://doi.org/10.1017/S0272503700095367

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