Narmada Bachao Andolan, and the Limits of the Precautionary Principle

In one line

The judgment a student must know in order to state the precautionary principle correctly, because it says when the principle does not apply.

In exam wording: in Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 the Supreme Court allowed construction of the Sardar Sarovar Project to proceed subject to clearance of each further raising of the dam height by the Relief and Rehabilitation Sub-group, and distinguished the precautionary principle: where the effect of a project on the environment is not known, and there is uncertainty from lack of data, the burden lies on the industry likely to cause pollution; but where the effect is known, what has to be seen is what mitigative steps can offset it, and merely because there will be a change it cannot be presumed that there will be an ecological disaster; a dam is neither a nuclear establishment nor a polluting industry; and sustainable development means what type or extent of development can be sustained by nature and ecology, with or without mitigation.

The facts

The Sardar Sarovar Project on the Narmada would submerge land in three States and displace a very large number of people, many of them tribal. The petitioners sought to stop construction. Their grounds were that the environmental studies were incomplete, that the precautionary principle applied, and that rehabilitation had failed.

What the Court decided

Construction was allowed to proceed, subject to the clearance of each further raising of the dam height by the Relief and Rehabilitation Sub-group.

That is a conditional permission with a rolling check, not a refusal and not an unconditional approval. It is the same technique the Court used two years later in K.M. Chinnappa v. Union of India, where mining in a National Park was allowed to run to a fixed date on an expert committee's conditions.

The distinction that matters

Where the effect is unknown. There is uncertainty because there is no data. The burden then lies on the industry likely to cause the pollution. That is A.P. Pollution Control Board v. Prof. M.V. Nayudu.

Where the effect is known. What has to be seen is what mitigative steps can offset it. Merely because there will be a change, it cannot be presumed that there will be an ecological disaster.

And the classification of the project. A dam is neither a nuclear establishment nor a polluting industry. The precautionary principle grew up around activities whose harm is unquantifiable in advance. A dam's effects, submergence, siltation, displacement, are calculable.

The definition of sustainable development in this case

What type or extent of development can be sustained by nature and ecology, with or without mitigation.

That formulation is worth learning beside the Brundtland sentence. Brundtland states the goal. This states the question a court actually asks.