2nd RBUSL National Moot Court Competition – 2016

TEAM CODE - 14

BEFORE THE HON’BLE

SUPREME COURT OF INDIA

Original Writ Jurisdiction

PUBLIC INTEREST LITIGATION

W.P. (CIVIL) NO. ___ OF 2016

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

In the matter of Article 19 and Article 21

of Constitution of India

ECO FRIENDS AND WELFARE SOCIETY…….………………………………..PETITIONER

v.
UNION OF INDIA AND ANR. ………....…………………………………. RESPONDENTS

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

2ND RBUSL National Moot Court Competition - 2016
 TABLE OF CONTENTS

Table of Contents ........................................................................................................................ i

List Of Abbreviations .............................................................................................................. iii

Index Of Authorities .................................................................................................................. v

Statement of Jurisdiction............................................................................................................ x

Statement of facts ...................................................................................................................... xi

Statement of Issues ................................................................................................................ xiii

Summary of Arguments .......................................................................................................... xiv

Arguments Advanced................................................................................................................. 1

I. WHETHER THE PUBLIC INTEREST LITIGATION FILED AGAINST UNION OF

INDIA AND GC. MINING CORPORATION INDIA LTD. IS MAINTAINABLE......... 1

II. WHETHER THERE HAS BEEN VIOLATION OF THE FUNDAMENTAL

RIGHTS OF INDIGENOUS PEOPLE................................................................ 1

II.1. No special right guaranteed to the tribal people under the Constitution............. 1

II.2. Right to movement of the People of India b........................................... 2

II.3. No violation of Article 19 of indigenous people................................................. 2

II.4. No violation Article 21 of the Constitution......................................................... 3

III. WHETHER UNION OF INDIA AND GMCL CAN BE MADE LIABLE FOR
THE LOSS, IF ANY 6

III.1. Right to shelter is not violated............................................................. 6

III.1.1. The mining project does not violate the right to health 6

III.1.2 Right to livwlihood is not violated................................................... 7

III.2. Right to religion not violated............................................................... 7

III.3. Union of India not liable to pay compensation……………………………..

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III.3.1. Report released by the NGO eco friends not valid...................................... 8

III.3.2. State’s rights over its mines and minerals is not restricted………….

III.4.1. Applicability of Doctrine of Public Necessity............................................. 9

Prayer....................................................................................................................................... 11

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 LIST OF ABBREVIATIONS

¶ Para

¶¶ Paras

AIR All India Reporter

All Allahabad

Art. Article

Cal Calcutta

Convention Of International Trade In Endangered Species

CITES
Of Wild Fauna And Flora,1975

CMS Convention on Migratory Species,1983

Del Delhi

Ed. Edition

ICCPR International Convention on Civil and Political Rights,1966

International Covenant on Economic, Social and Cultural

ICESCR
Rights,1966

ILO International Labour Organisation

IUCN International Union for Conservation of Nature

Mad Madras

GCMCL GC. Mining Corporation Ltd.

Ori Orissa

p. Page No.

PAT Patna

PIL Public Interest Litigation

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 Raj Rajasthan

SC Supreme Court

SCC Supreme Court Reports

SCJ Supreme Court Journal

Sec. Section

u/a Under Article

UDHR United Nations Declaration on human rights.

United Nations Framework Convention on Climate Change,

UNFCCC
1992

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INDEX OF AUTHORITIES

STATUTES

1. A.S. Narayana Deeshitalyu v. State of Andhra Pradesh, AIR 1996 SC

1765 ........................6

2. Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj v. State of

Gujarat, AIR 1974 SC
2098..................................................................................................................
................5

3. Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC

726………………………………………... 1

4. Amritlal Nathubhai Shah v. Union Government of India, AIR 1976 SC

2591........................... 2

5.BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC 333 ....................... 1

6.Bandhua Mukti Morcha v. Union Of India & Others , 1984 SCR (2) 67 ......................... 8

7.Banwaslseva Ashram v. State of U.P, AIR 1987 SC 374 ................................................. 5

8.Bennett Coleman and Co. and Ors. v. Union of India, (1972) 2 SCC 788 ....................... 3

9.BSES Ltd. v. Union of India 2001 (1) Bom CR 394 ...................................................... 10

10.Consumer Education And Research Centre And Others v. Union Of India And Others ,
Air 1995 SC 922 ............................................................................................................ 4

11.Court on its own motion v. Union of India, 2012(12) SCALE 307............................ 2, 4

12.Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity

Supply Company Ltd. (1991) 2 SCC 539 .................................................................... 10

13.Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101 ................ 3

14.Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872 ...................................... 4

15.Forum, Prevention of Envn. & Sound Pollution v Union of India and another, (2005) 8
SCC 796 ......................................................................................................................... 8

16.Francis Coralie v. Union Territory Of Delhi, Air 1994 SC 1844 ................................... 4

17.G. Sundarrajan v Union Of India And Others JT 2013 (7) SC 266 ................................ 8

18.Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546
........................................................................................................................................ 1
19.In Re: Airports Authority of India Ltd. , AIR 1999 SC 2367 ......................................... 7

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20.Kharak Singh v. State of U.P, AIR1963SC1295.............................................................2

21.Kuttisankaran Nair v. Kumaran Nair, AIR 1965 Ker 161...............................................2

22.LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811.........................4

23.M C Mehta v. Kamal Nath, [1997] 1 SCC 388...............................................................4

24.M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160..............................4

25.Mahesh Chandra v. Regional Manager, U.P. Financial Corpn, AIR 1993 SC 935.........3

26.Malverer v. Spinke (1537) Dyer, (Part I), 356..............................................................10

27.Maneka Gandhi v. Union of India.AIR 1978 SC597......................................................3

28.Nand Kishore Gupta and Ors. v.State of Uttar Pradesh and Ors. AIR 2010 SC 3654....8

29.Narmada Bachao Andolan v. Union Of India (2000) 10 SCC 664.............................4, 5

30.Netai Bag v. State of West Bengal, AIR 2000 SC 3313..................................................4

31.Om Kumar v. Union of India, AIR 2000 SC 3689..........................................................4

32.Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest, Vishaka v.

State of Rajasthan, (1997) 6 SCC 241...........................................................................2

33.People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473...............2

34.Ramsumaran Prasad v. ShyamKumari ,1922 AIR P.C. 856............................................7

35.Rekharani Maitra & Ors. v. Additional District Magistrate & Ors. C.R. No. 9063 (W)
of 1983...........................................................................................................................9

36.Research Foundation For Science Technology And Natural Resource Policy v. Union
Of India And Others, AIR 2007 SC (Supp) 852............................................................5

37.Secretary,Govt of india v Alka Subhash Gadia (1990)........................................8

38.S.R Bommai v. Union of India, (1994) 2 SCR 644........................................................3

39.Sachidanand Pandey and Anr.v. State of West Bengal and Ors. (1987) 2 SCC 295.......3

40.Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471........................................3

41.State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit
And Others, Civil Appeal Nos. 104-105 Of 2001..........................................................1

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42.Subhash Kumar v. State Of Bihar, AIR 1991 SC 420; M.C.Mehta v. Union Of India,
AIR 1988 SC 1037 ......................................................................................................... 4

43.T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 ................................. 2

44.T.N.Godavarmanthirumulkpad v. Union Of India, AIR 1997 SC 1228 ......................... 4

45.The State of Karnataka and Anr. v. Shri Ranganatha Reddy and Anr. AIR 1978 SC
215.................................................................................................................................. 8

46.Thirumalpad v. Union of India and Ors. (2002) 10 SCC 606..................................... 4, 5

47.Vellore Citizens' Welfare Forum v. Union Of India, (1996) 5 SCC 647 ...................... 4
48. Union of India v. Paul Manickam, AIR 2003 SC
4622......................................................... 2

BOOKS

th
1.Banerjee, B.P, Writ Remedies, 4 Edition, 2008, LexisNexis, Buttersworth Wadhwa
Publication.

nd
2.Banerjee, Digest of Land Acquisition & Compensation Cases, 2 Edition 1997,
Ashoka Law House.

3.Basu D.D., Constitution of India, 14th Edition 2009, LexisNexis Butterworths Wadhwa
Nagpur.

nd
4. Desai. A. Ashok, Environmental Jurisprudence, 2 Edition 2002, Modern Law House.

st
5. Doabia T.S, Environmental & Pollution Laws in India, 1 Edition 2005, Wadhwa
Nagpur.

th
6. Jain M.P, Indian Constitutional Law, 6 Edition 2011, LexisNexis Butterworth
Wadhwa Nagpur.

nd
7. Jaswal P.S., Environmental Law, 2 Edition 2006, Allahabad Law Agency.

st
8. Karkara G.S., Environmental Law, 1 Edition, 1999, Central Law Publications.

9. Maheshwara N. Swamy , Law relating to Environmental Pollution and Protection,

nd
2 Edition 2003, Asia Law House.

st
10. Malik Sumeet, Environmental Law, 1 Edition 2008, Eastern Book Company.

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11. N.K. Behura & Panigrahi Nilakantha, Tribals and the Indian Constitution, Edition
2006, Rawat Publications.

12. P. Leelakrishnan, Environmental Case Law Book, 2nd Edition 2006, LexisNexis
Butterworths.

13. Prasad Rajendra, Law of Social Status, Edition 1998, Hindu Law House.

th
14. Dhirajlal &Ratanlal , The Law of Torts, 26 Edition 2012,LexisNexis Butterworths
Wadhwa.

th
15. Seervai H.M., Constitutional law of India, 4 Edition 2002, Volume 2, Universal
Book Traders.

th
16. Shukla V.N., Constitution of India, 11 Edition 2008, Eastern Book Company.

LEGAL DATABASES

1. Manupatra
2. SCC Online
3. Westlaw
4. Hein Online

LEXICONS

1. Aiyar P Ramanathan, Law Lexicon, 2005

th
2. Garner Bryana, Black’s Law Dictionary,7 Edition,1999

LEGISLATIONS

1. The Constitution of India, 1950

2. Environment Protection Act, 1986

3. Air (Prevention and Control of Pollution) Act, 1981

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4. Forest (Conservation) Act, 1980

5. Indian Forest Act, 1927

6. Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forests Right)
Act, 2006.

7. Coastal Regulation Zone Notification, 2011

8. Coastal Regulation Zone Notification, 1991

9. Wildlife Protection Act, 1972

10. Panchayats (Extension to the Scheduled Areas) Act, 1996

CONVENTIONS

1. United Nations Framework Convention on Climate Change, 1992

2. Convention Of International Trade In Endangered Species Of Wild Fauna And Flora

1975

3. Convention on Migratory Species, 1983

4. The Indigenous and Tribal Populations Convention, 1957 (ILO Convention 107)

5. The Rio Submit, 1992

6. United Nation Declaration of Human Rights, 1948

7. International Convention on Civil and Political Rights, 1966

8. International Covenant on Economic, Social and Cultural Rights, 1966

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STATEMENT OF JURISDICTION

The Honourable Supreme Court of India has the jurisdiction in this matter under

Article 32 of the Constitution of India which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part

(1)The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed

(2)The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.”

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STATEMENT OF FACTS

1. India bears a population of 1.21 billion and among them 10.42 crore population
comprises of tribal class as per the Census of India, 2011. In northeastern part of India
there exists lot of tension between northeastern states, the Government of India and
the tribal community. With a view to develop the economy and to provide for the
defence of the country from the Naxalites, the Government of India entered into an
Agreement with the GC Mining Corporation India Ltd. in January, 2010. The
Company was registered under the provisions of the Companies Act with the
Registrar, Meghalaya. Government of India leased out the one hundred fifty hectares
of land of the South Garo Hills for the purpose of quarrying the lime stone mines
which is considered useful in making defence weapons and in the manufacturing of
steel. This large mining project is providing employment opportunities to thousands of
people and also helped in development of that area on one hand.

2. The Tribal Welfare Society, ‘Oorjaa’, complaints to the Ministry of Tribal Affairs,
India in March, 2012 regarding the mining activities of gasuapara. Eventually
environmentalists along with the media showed active interest for protecting the rights
of the tribal people. It was then found out that even the tribal people of that region
were not in favour of leaving their native land adherent to their ancient animistic
religious beliefs and practices. Due to the interest shown by the Welfare Society,
environmentalists and the media, the issue of environment imbalances due to mining
operations came into limelight in April, 2013.

3. As a result, the Government of India had to appoint a committee for reviewing the
conditions prevailing in the Gasuapara area. The Committee submitted its report in the
month of January, 2014 and stated that:
“There is no doubt that mining operations render devastation to the environment, loss of
natural vegetation, displacement of tribal people and endangered their health. However, in the
larger interest of the country such as for the defence, for the employment of the people of the
adjoining locality and for the development of the economy, such industrial activities need to
be encouraged.”

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4. The Committee also found that before starting of the mining operations, the company
complied with the mining regulations and also conducted the Environment Impact
Assessment exercise. The Government of India did not give any direction to the
Company after considering the report of the committee and mining operations
continued.

5. In February, 2015, an NGO named “Eco Friends” became active and carried on few
operations with regard to the ongoing mining activities in the area of Gasuapara. This
NGO stepped in as a protector to address the interconnected issues of the
environment. “Eco Friends” being a NGO is concerned with the issue of environment,
protection of natural resources and the environmental rights of the people. After
working in the area of Gasuapara for few months, the NGO noticed the ill effects of
mining operations on natural environment, the life of tribal population who had to be
displaced from that very area and adverse impact on their health due to the
environmental imbalance. It was observed by the NGO that along with the depletion
of natural vegetation, such condition was badly affecting the health of tribes showing
the symptoms of Bronchitis and Asthma.

6. In September, 2015, death of around 15 persons was reported from the Garo tribal
community. The NGO ‘Eco Friends’ made arrangements for the medical examination
of deceased. In the medical examination, it was revealed that the death had occurred
due to lung diseases such as Obstructive Pulmonary disorder, emphysema and other
several

7. The NGO ‘Eco Friends’ along with the ‘Welfare Society’ filed the Public Interest
Litigation under Article 32 of the Constitution of India before the Hon’ble Supreme
Court of India in January, 2016. The Hon’ble Supreme Court had sent notices to the
Government of India, Ministry of Tribal Affairs and GC Mining Corporation India
Ltd. for showing cause and action taken. The PIL is fixed for hearing in March, 2016.

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STATEMENT OF ISSUES

ISSUE I:
Whether the Public Interest Litigation is Maintainable against Union of India
And GC. Mining Corporation Ltd.

ISSUE II:
Whether Fundamental Rights of Tribal communities have been violated by the
Mining Project.

ISSUE III:

Whether Union of India and GC. Mining Corporation Ltd. can be made liable
for the loss, if any.

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SUMMARY OF ARGUMENTS

Issue I

Whether the Public Interest Litigation filed against Union of India and GC. Mining
Corporation Ltd. is maintainable.

It is humbly submitted that, since Fundamental Rights of any group of Individuals have not
been violated, the petition is not maintainable.

Issue II

Whether Fundamental Rights of Tribal communities have been violated by the Mining
Project.
The Respondents shall conclusively prove that the Mining Project does not violate the right to
shelter since the Petitioner has failed to establishe it and rather there is a comprehensive
Rehabilitation package in this case. Also it shall be studied that the right to wholesome
environment, the right to health or the right to livelihood under Art. 21 were not violated.
Further, there is no violation of any religious right also.

ISSUE III

Whether Union of India and GC. Mining Corporation Ltd. can be made liable for the
loss, if any.

The Union of India and GC. Mining Corporation Ltd. cannot be made liable for the any loss,
since, the whole some aim of the government being a welfare government was development
of those areas followed by a careful check on the environment .It shall be evidently proved n
the arguments advanced that the government aimed for national development and mining thus
provided welfare of the state so mentioned in myriad ways .

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ARGUMENTS ADVANCED

I. WHETHER THE PUBLIC INTEREST LITIGATION FILED AGAINST

UNION OF INDIA AND GC. MINING CORPORATION LTD. IS
MAINTAINABLE.

1 It is understood under Art.21 that it is not an absolute right and is subject to the some
restraints evolved by the judiciary. It has been held that since Art. 32 confers
“extraordinary” jurisdiction, the same must be used wisely, sparingly and shall be brought
 into use under circumstances where there is no alternate efficacious remedy is available. 1
The reason for this is: first, to reduce the increasing pendency of cases2 and second, to
inspire faith in the hierarchy of Courts and the institution as a whole. 3 Therefore, the
Petitioner is required to approach the High Court or the National Green Tribunal
before approaching the Supreme Court.

2 The Petitioner should have approached High Court because power of High Court under
Art. 226 is much wider than the powers of the Supreme Court under Art. 32 of the
Constitution.4 Further, the reliefs prayed for can be granted by High Court. Indeed, this
Court in ICELO held that in cases concerning environment, specifically, the High Courts
would be in a better position to ascertain local conditions and facts and therefore, for
proper monitoring, they must be preferred.5 Further, in another case concerning the safety
of development project,6 this Hon'ble Court transferred the matter to the High Court for
more efficiency. Hence the issues covered in the instant case are similar enough and
require knowledge and ability to assess local conditions. Therefore, it is widely
understood that remedy available under Art. 226 is not just an alternative but also, a
preferable remedy.

3. Relying on the facts of the case, its mentioned that ‘operations’ have been conducted to
assess environment health by a private organisation .But it lacks scientific data and can be
questioned upon its validity as no substantial evidence is provided to support the fact.
Therefore, without any substantial evidence, the government cannot be held liable for causing
environmental degradation, when measures are being taken to control the same.7

4. Alternatively, the Petitioner could also have approached the National Green Tribunal. It is
to be observed that the NGT has been expressly established to deal with questions related to
“enforcement of any legal right relating to environment and giving relief and compensation
for damages to persons and property and for matters connected therewith or incidental
thereto.”8 Therefore, any submission that the NGT cannot enforce rights or protect them
adequately is erroneous.

1 Secretary, Govt. of India v. Alka Shubhash Gadia, 1990 SCR, Supl. (3) 583; Avinash Chand Gupta v. State of
Uttar Pradesh, (2004) 2 SCC 726; Union of India v. Paul Manickam, AIR 2003 SC 4622.
2 PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732.
3 Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
4 PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732.
5 Indian Council For Enviro -Legal Action v. Union of India, (1996)5 SCC 261.
6 N .D. Jayal v. Union of India, (2004) 9 SCC 362.

7 Amritlal Nathubhai Shah v. Union Government of India, AIR 1976 SC 2591.

8 National Green Tribunal Act Preamble (2010).

5. Also under NGT it is required to make endeavour to dispose of the application or the
appeal finally within six months from the date of filling such an appeal or application .Also
before giving final judgment, it is required to give an opportunity to the parties concerned.9 In
such a case it would have been much more convenient for the aggrieved people raise their
voice against the mining activities in case they suffered any loss ,rather than waiting for years
to access the damage if caused to then and appeal in SC.

6. The Respondent is of the view that NGT was the right authorities that the people should
have approached instead of SC because NGT is specially equipped to evaluate scientific
claims apart from regular civil claims. Henceforth it is submitted that the NGT has a better
hand than the SC to evaluate issues relating to health and environmental consequences of the
Mining Project.10 In fact, the Supreme Court under similar circumstances, in the past, sowed
the concern over the lack of separate, multi-faceted environmental courts equipped with both
judicial and scientific inputs.11 Thus, the Supreme Court itself has recognised the value of the
NGT to deal with such cases.

II.NO VIOLATIONOF FUNDAMENTAL RIGHT

Under article 32, it has been held that if a right, other than a fundamental right is claimed to
be violated then such questions can be addressed only in the appropriate proceedings and not
on an application under Art. 32.12 In this case, it is observed that no fundamental rights of the
Petitioner or the Tribal Communities have been violated,13 therefore, this petition must fail.

A. Right to Shelter is not violated

7.The Government for the purpose of mining required only 150 hectares of land out of
1,80,000 hectares of land of Gasuapara ,so it was just little space that it required for purpose
of national interest and the people living there had an option of enjoying the other part of the
land . Article 19(1) (e) provides the right to reside and settle in any part of the territory of
Rambo, however, reasonable restriction can be put on the same under Article 19(5) if it is in
the public interest.14Therefore, the rights of the indigenous people to reside and settle in the
forest area is not an absolute right and can be restricted under Article 19(5) if it is in the

9 Sec.18(3) of the National Green Tribunal Act Preamble (2010)

10 SAIRAM BHAT, NATURAL RESOURCES CONSERVATION LAW 63 (2010).
11 M.C. Mehta v. Union of India 1986 (2) SCC 176; Indian Council for Environmental -Legal Action v. Union
of India, 1996 (3) SCC 212; A.P. Pollution Control Board v. M.V. Nayudu 1999 (2) SCC 718
12 Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
13 II, Pleadings, Written Submissions for the Respondent.
14 State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And
Others, Civil Appeal Nos. 104-105 Of 2001.
public interest.15
8. “Public interest” 16means a subject matter in which the rights of the public or a section of
the public is interested or the means of concern which is advantageous to people as a whole.17
'Interest of general public' is a comprehensive expression intended to achieve the socio-
economic justice for people by the State.18
9.Mere displacement of the people from Gasupara to Bhagmara region which is 46km away
from their actual habitats ,won’t let in violation of righto shelter because the government
didn’t not evict them or coerced them out of their houses .But rather provide them with the
rehabilitation .
It has been held that that the displacement of tribes does not per se result in the violation of
their fundamental rights.19 Indeed, the Courts have drawn a distinction between forced
eviction/land-acquisition and lack of rehabilitation.20 The Tribal Communities may be
displaced for the Mining Project; however, this alone is not sufficient to establish violation of
Art. 21.

10. Even ILO Convention No. 169 allows for involuntary displacement
“In the interest of national economic development”. 21 In fact, it is submitted that there is a
possibility for the Tribal Communities to lead a better life with more amenities at the sites
of rehabilitation.22

B. The Mining Project does not violate the right to health

11. Following the facts of the case ,if EIA is conducted ,then it is assured that it is being
constantly under the surveillances of the authorities that take environment is not being
polluted in a way that endangers someone ;s life .

12. Also when the mining was about to begin then it was ensured that rehabilitation shall be
provided .But as the facts says that people were not willing to go This establishes that despite
being aware about the effects of mining and subsequently been suffering them, they denied
the rehabilitating that was offered to them .Hence thy shall be themselves responsible for the
loss of health if any.

13. From the facts it cannot be conclusively proved that the death of those 15 people were
result of the health hazards. It is still a possibility .Thus on a mere possibility of the fact in

15 Court on its own motion v. Union of India, 2012 (12) SCALE 307; Kharak Singh v. State of U.P,
AIR 1963
SC 1295, Waman Rao v. Union of India, (1981) 2 SCC 362; Bachan Singh v. State of
Punjab, AIR1980 SC 898.
16 Kuttisankaran Nair v. Kumaran Nair, AIR 1965 Ker 161
17T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
18 Court on its own motion v. Union of India, 2012 (12) SCALE307.
absence of scientific evidence to support cannot be a cause of violation of right to health. The
Petitioner claims the death of the people were from air pollution

14. From the viewing the cause of the obstructive pulmonary disorder, it is evident that it is
caused because of extensive smoking 23as the primary reason followed by air pollution.

15. Out of 1 crore people only 15 suffered such a disease that esulted n their death .That
leaves a scope to ponder that they could have been extra sensitive .as their no evidence in the
medical resperts about their age or or previous medical history .

C. Right to livelihood was not violated

16. The Tribal Communities engage in activities such as gathering fruits and flowers,
apiculture etc. for their livelihood .In the case, the Tribal Communities still have access to
these lands and forests for their livelihood and this is unconnected with their displacement.
Indeed, in Chameli24, this Court held that a land acquisition for a public purpose does not
violate the right to livelihood. Thus, it is submitted that the Petitioner may not argue that the
mere displacement from their traditional lands is sufficient to establish deprivation of
livelihood. On the contrary, the opportunities for livelihood for the Tribal Communities are
enhanced since the NRRP, 2007 and the EC give preference for employment in the project to
those who are affected. Further, the NRRP, 2007 also provides for their vocational training
which increases their overall employability.

17. It is submitted that the right to livelihood is not absolute and is sometimes has to yield to
compelling public interest.25 In the this case, the Mining Project was undertaken to utilise
natural resources that shall hep in the production of vaious other things that shall serve for
national interst., in Banwasi Sewa Ashram26, this Court on similar facts agreed with the
executive's decision to prioritise the industrial growth of the country and demand for energy
over the right of adivasis to collect forest produce. Further, that effect of closure of the
Mining Project on livelihood of those who work therein is also a relevant factor to be
considered.27

D.Right to Religion not violated

19 Narmada Bachao Andolan v. Union Of India, (2000) 10 SCC 664.

20 State of Kerala v. Peoples Union for Civil Liberties, (2009) 8 SCC 46.
21 ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169).
22 Narmada Bachao Andolan v. State Of M.P., Civil Appeal No. 2082 of 2011

23 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3775194/ para 3
24 Constitution of India Art. 19(6) (1950); Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051.
25 Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051; Banwasi Sewa Ashram v. State of Uttar
Pradesh, AIR 1987 SC 374.
26 Banwasi Sewa Ashram v. State of Uttar Pradesh, AIR 1987 SC 374.
27 Goa Foundation v. Union of India, (2014) 6 SCC 590.
18. It is submitted that the Petitioner has not established the exact manner by which the
Mining Project allegedly violates their freedom of religion. Cases which have required the
Court to interfere on ground on violation of Art. 25 by developmental projects have stated the
specific religious practice, such as worship of a particular deity28 or conduct of a ceremony
that is infringed. Furthermore, the freedom of religion is not absolute 29 and extends to only
those religious practices that are essential or integral30. In this case, the Petitioners have only
made vague assertions that the land and rocks are considered sacred have failed to show any
actual invasion into their beliefs or essential practices by the Mining Project. Therefore, it is
submitted that no religious rights have been violated.

19. The right guaranteed under Art. 25 is not absolute 31 and can be restricted on, inter alia,
other provisions in Part III of the Constitution. The right to development has been read into
Article 21. Moreover, even in cases of encroachment of religious rights, it is legitimate for
the State to step in to balance competing interests taking into account the Directive Principles
and social welfare as a whole32. In this case, the Mining Project was undertaken to utilise the
resources of its country and to meet its requirements. It was most feasible method to resolve
the acute power crisis in the country. Therefore, it must be interpreted to be in pursuance of
the right to development, exercise of eminent domain and in any case, an instance of the State
balancing competing interests. Hence, it is submitted that any restriction of the right to
religion is justified.

III. WHETHER GOVERNMENT AND COMPANY BE MADE LIABLE

20. Relying on the facts of the case ,it is evidently present that mining activity was done for
the purpose of development and national interest From development of the place ,it can be
understood that for mining activity to be conducted on such a large scale requires proper
constructing of the roads ,water supply and electricity generation for the people
employed .So such developments were not only restricted to the employees but also were
for the development of the area through the interest of the employees. In a case concerning
the need for generation of electricity over the rights of the people .it was this Hon’ble Court

28 Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476. 69Chewang Pintso
Bhutia v. State of Sikkim, W.P.(C) No. 22/2012.
29 Commissioner H.R.E v. L.T. Swamiar, AIR 1954 SC 282; Sardar Syedna Taher Saifuddin v. State Of
Bombay,
AIR 1962 SC 853; Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj and Others v. State of
Gujarat & Others, AIR 1974 SC 2098; Church Of God (Full Gospel) v. K.K.R. Majestic Colony Welfare, AIR
2000 SC 2773.
30 Commissioner Of Police v. Acharya J. Avadhuta and Anr., AIR 2004 SC 2984; Church Of God (Full Gospel)
v. K.K.R. Majestic Colony Welfare, AIR 2000 SC 2773; Mohammed Fasi v. Superintendent Of Police, (1985)
ILLJ 463 Ker.; Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.
31 A.S. Narayana Deeshitalyu v. State of Andhra Pradesh, AIR 1996 SC 1765.
32 Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj v. State of Gujarat, AIR 1974 SC 2098.
had directed the Union Government in All India Labour Forum v Union of India 33 that gave
directions for exploring alternative energy sources to resolve the power crisis. On previous
occasions too, this Court has recognised the critical role of energy for economic growth
and development.34 Therefore, it is submitted that Mining Project which aims to generate
energy is in the interest of development.

21. Further, it has been accepted that no development is possible without some adverse effect
on the ecology and environment.35 A proper balance must be struck between the protection of
environment and the development process.36 Therefore, even if the Mining Project has the
potential to cause harm, “the larger public interest of the community should give way” 37 This
approach was taken in Narmada Bachao Andolan38 and Sundarrajan39 and it is submitted that
such an approach must be adopted herein also. It has been held that sometimes the ill-effects
of technology have to be tolerated as the cost of their advantages.40

The State’s rights over its mines and minerals is not restricted

22. It is submitted that the FRA do not interfere with the right of the State to mine. In fact, the
SC has affirmed that the Forest Rights Act has not “interfered with the right of the State over
mines or minerals lying underneath the forest land, which stand vested in the State.” 41 Thus,
the right of the State to mine remains undisturbed.

23. The State with the natural resources within the territory of India and confers the Central
Government with eminent domain powers for its mining and extraction.82 This view has been
reiterated by the Supreme Court in Amritlal Nathubhai Shah v. Union Government of India42
where it held that the State is “the owner of minerals within its territory, and the minerals
vest in it.”

24. Under Prohibition of Mining Operation in Ecologically Fragile Areas, it has been stated
that for conducting mining activity it has been made mandatory to get EIA details of the
area and the proposed process or operation duly supported by an EIA and such other

33 Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, AIR 2007 Ker 33.
34 G. Sundarrajan vs. Union of India, (2013) 6 SCC 620; Banwasi Sewa Ashram v. State of Uttar Pradesh, AIR
1987 SC 374.
35 T.N. Godavarman Thirumalpad (through K.M. Chinnappa) v. Union of India, 2002 (10) SCC 606.
36 Indian Council for Enviro - Legal Action vs. Union of India and Ors. (1995) 6 SCC 281; Rambhau Patil v.
Maharashtra State Road Development Corporation 2002(1) Bom CR 76; People United for better Living in
Calcutta v. State of West Bengal, AIR 1993 Cal. 215; SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL
37 G. Sundarrajan vs. Union of India, (2013) 6 SCC 620
38Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.
39 G. Sundarrajan vs. Union of India, (2013) 6 SCC 620
40 Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, AIR 2007 Ker 33.
41 Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476. 86Panchayats
(Extension to Scheduled Areas) Act § 4(k) & 4(l) (1996).
42 Amritlal Nathubhai Shah v. Union Government of India, AIR 1976 SC 2591.
information as may be required by the Central Government. 43 Thus it establishes that the
government authorities followed all the necessary provisions or stint up mining in the
aforesaid area

25. Also After the EIA report is ready, the investor approaches the concerned State
Pollution Control Board (SPCB) and the State Forest Department (if the location involves
use of forestland). The SPCB evaluates and assesses the quantity and quality of effluents
likely to be generated by the proposed unit as well as the efficacy of the control measures
proposed by the investor to meet the prescribed standards. The public hearing is a
mandatory step in the process of environmental clearance for certain developmental
projects. This provides a legal space for people of an area to come face-to-face with the
project proponent and the government and express their concerns. The documents
submitted by an investor are first scrutinised by a multi-disciplinary staff functioning in the
Ministry of Environment and Forests who may also undertake site-visits wherever
required, interact with the investors and hold consultations with experts on specific issues
as and when necessary. After this preliminary scrutiny, the proposals placed before
specially constituted committees of experts whose composition is specified in the EIA .

2ND RBUSL National Moot Court Competition - 2016

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

1. Dismiss the writ petition.

2. In the alternative declare and adjudge:

a. That the Respondents have not violated the fundamental rights of the
indigenous people.

b. That the Respondents are not liable for loss, if any.

43
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 AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Respondents as in duty bound, shall humbly pray.

COUNSELS FOR THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS