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It is the above uncertainity of science in the environmental context, that has led International Conferences to formulate new legal theories and rules of evidence. We shall presently refer to them.

The Precautionary Principle and the new Burden of Proof - The Vellore Case:

The `uncertainity' of scientific proof and its changing frontiers from time to time has led to great changes in environmental concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens' Welfare Forum vs. Union of India and Others [1996 (5) SCC 647], a three Judge Bench of this Court referred to these changes, to the `precautionary principle' and the new concept of `burden of proof' in environmental matters. Kuldip Singh, J. after referring to the principles evolved in various international Conferences and to the concept of `Sustainable Development', stated that the Precautionary Principle, the Polluter-Pays Principle and the special concept of Onus of Proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law. The relevant observations in the Vellore Case in this behalf read as follows:

The Precautionary Principle replaces the Assimilative Capacity Principle:

A basic shift in the approach to environmental protection occured initially between 1972 and 1982. Earlier the Concept was based on the `assimilative capacity' rule as revealed from Principle 6 of the Stockholm Declaration of the U.N.Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers- with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the `Precautionary Principle', and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows:

In other words, inadequacies of science is the real basis that has led to the Precautionary Principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on Scientific uncertainity. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still "evolving" for though it is accepted as part of the international customary law, "the consequences of its application in any potential situation will be influenced by the circumstances of each case". (See * First Report of Dr.Sreenivasa Rao Pemmaraju, Special -Rapporteur, International Law Commission dated 3.4.1998 paras 61 to 72). The Special Burden of Proof in Environmental cases: We shall next elaborate the new concept of burden of proof referred to in the Vellore case at p.658 (1996 (5) SCC 647). In that case, Kuldip Singh, J. stated as follows:

"The `onus of proof' is on the actor or the developer/industralist to show that his action is environmentally benign."

--------------------------------------------------- * Joint Secretary and Legal Adviser, Ministry of External Affairs, New Delhi. It is to be noticed that while the inadequacies of science have led to the `precautionary principle', the said `precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, - is placed on those who want to change the status quo (Wynne, Uncertainity and Environmental Learning, 2 Global Envtl. Change 111 (1992) at p.123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less- polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M.Olson, Shifting the Burden of Proof, 20 Envtl. Law p.891 at 898 (1990)). (Quoted in Vol.22 (1998) Harv. Env.Law Review p.509 at 519, 550). The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr.Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3.4.1998, para 61). It is also explained that if the environmental risks being run by regulatory inaction are in some way "uncertain but non- negligible", then regulatory action is justified. This will lead to the question as to what is the `non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showiung the absence of a `reasonable ecological or medical concern'. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainity, then the presumption should operate in favour of environmental protection. Such a presumption has been applied in Ashburton Acclimatisation Society vs. Federated Farmers of New Zealand [1988 (1) NZLR 78]. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a `reasonable persons' test. (See Precautionary Principle in Australia by Charmian Barton) (Vol.22) (1998) Harv. Env. L.Rev. 509 at 549).