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Assimilative Capacity to Precautionary Principle

Assimilative Capacity to Precautionary Principle – A Shift – The uncertainty of scientific proof and its changing frontiers from time to time have led to great changes in the environmental concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. A basic shift to the approach to environmental protection occurred initially between 1972 and 1982. Earlier the concept was based on the assimilative capacity rule as revealed from principle 6 of the Stockholm Declaration. The emphasis shifted to ‘precautionary principle’ in the principle 11 of the World Charter for Nature adopted on 28 October 1982 by the UN General Assembly by a majority of 111 votes with 18 abstentions and one negative vote casted by the United States. The developing countries overwhelmingly endorsed the Charter. The former pre-1989 Soviet Block found the Charter, an inexpensive and convenient way to demonstrate the fraternity with the isolation of United States in the Green Assembly. The World Charter for Nature proclaims that activities which are likely to cause irreversible damage to the nature shall be avoided.

So, precautionary principle is a principle which ensures that a substance or activity posing a threat to the environment is prevented from adversely affecting it, even if there is no conclusive scientific proof lining that particular substance or activity to the environmental damage. The words ‘substance’ and ‘activity’ imply substance or activity introduced as a result of human intervention.

In Vellore Citizens Welfare Forum v. Union of India (Tamil Nadu Tanneries Case), about 900 tanneries in five districts of the State of Tamil Nadu were discharging enormous amount of untreated effluent consisting of about 170 different types of chemicals into agricultural fields, roadside, waterways and open land. About 35,000 hectares of land became partially or totally unfit for cultivation. The water in the area became unfit for consumption and irrigation purposes. In his judgment, Justice Kuldip Singh (known to be a Green Judge) observed that, “even otherwise once these principles are accepted as part of the Customary International Law, there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of municipal law, that the rule of customary international law, which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall also be followed by the Courts of laws of the country.” One of the significant directions given by the Supreme Court in this litigation was contained in an order passed in 1995 whereby some of the industries were required to set up effluent treatment plants. In another order passed in 1996, the Supreme Court issued notices to some of the tanneries to show cause why they should not be asked to pay pollution fine. The Supreme Court also recognized the Precautionary Principle, which is one of the principles of sustainable development. It was said that in the context of municipal law, the Precautionary Principle means