BEFORE THE HON’BLE SUPREME COURT OF INDIA

Original Writ Jurisdiction

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IN THE MATTER BETWEEN

ECO FRIENDS AND WELFARE SOCIETY ……….. PETITIONERS

V.

UNION OF INDIA ……......RESPONDENTS

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT

SCHOOL OF LAW,

RAFFLES UNIVERSITY

[THIS MEMORANDUM HAS BEEN PREPARED ON BEHALF OF RESPONDENT]

 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, ‘Odisha’, 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.”
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.
 ARGUMENTS

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 cases 2 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. 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. Further, in another case concerning the safety of
development project, 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.4

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
Amritlal Nathubhai Shah v. Union Government of India, AIR 1976 SC 2591.
 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.” Therefore, any submission that the NGT cannot enforce rights or
protect them adequately is erroneous.
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. 5 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. 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. 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

5
Sec.18(3) of the National Green Tribunal Act Preamble (2010)
 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.6 Therefore, 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 public interest.7
8. “Public interest”8 means 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.
'Interest of general public' is a comprehensive expression intended to achieve the
socioeconomic justice for people by the State.
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.9 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”. 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.
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

6
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil Appeal Nos.
104-105 Of 2001.
7
Court on its own motion v. Union of India, 2012 (12) SCALE 307; Kharak Singh v. State of U.P, AIR 1963
8
Kuttisankaran Nair v. Kumaran Nair, AIR 1965 Ker 161
9
Court on its own motion v. Union of India, 2012 (12) SCALE307.
 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.
12. 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
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
13. From the viewing the cause of the obstructive pulmonary disorder, it is evident that it is
caused because of extensive smoking as the primary reason followed by air pollution.
14. 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 experts about their age or previous medical history .
C. Right to livelihood was not violated
15. 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 Chameli,10 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.
16. It is submitted that the right to livelihood is not absolute and is sometimes has to yield to
compelling public interest. In the this case, the Mining Project was undertaken to utilise
natural resources that shall hep in the production of various other things that shall serve for
national interest., in Banwasi Sewa Ashram,11 this Court on similar facts agreed with the
executive's decision to priorities the industrial growth of the country and demand for energy
over the right of advisees to collect forest produce. Further, that effect of closure of the

10
Constitution of India Art. 19(6) (1950); Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051
11
Banwasi Sewa Ashram v. State of Uttar Pradesh, AIR 1987 SC 374.
 Mining Project on livelihood of those who work therein is also a relevant factor to be
considered.
D. Right to Religion not violated
17. 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 deity12 or conduct of a ceremony
that is infringed. Furthermore, the freedom of religion is not absolute 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.
18. The right guaranteed under Art. 25 is not absolute13 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 whole. In this case, the Mining Project was undertaken
to utilize 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
19. 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

12
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.
13
A.S. Narayana Deeshitalyu v. State of Andhra Pradesh, AIR 1996 SC 1765.
 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
had directed the Union Government in All India Labour Forum v Union of India14 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.15 Therefore, it is submitted that Mining Project which aims to generate
energy is in the interest of development.
20. Further, it has been accepted that no development is possible without some adverse effect
on the ecology and environment.16 A proper balance must be struck between the protection
of environment and the development process.17 Therefore, even if the Mining Project has
the potential to cause harm, “the larger public interest of the community should give way”18
This approach was taken in Narmada Bachao Andolan19 and Sundarrajan20 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.21

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

21. 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.”
Thus, the right of the State to mine remains undisturbed.
22. 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

14
Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, AIR 2007 Ker 33.
15
G. Sundarrajan vs. Union of India, (2013) 6 SCC 620; Banwasi Sewa Ashram v. State of Uttar Pradesh, AIR 1987
SC 374.
16
T.N. Godavarman Thirumalpad (through K.M. Chinnappa) v. Union of India, 2002 (10) SCC 606.
17
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.
18
G. Sundarrajan vs. Union of India, (2013) 6 SCC 620
19
Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.
20
G. Sundarrajan vs. Union of India, (2013) 6 SCC 620
21
Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, AIR 2007 Ker 33
 India22 where it held that the State is “the owner of minerals within its territory, and the
minerals vest in it.”
23. 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
information as may be required by the Central Government. Thus it establishes that the
government authorities followed all the necessary provisions or stint up mining in the
aforesaid area
24. 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.

22
Amritlal Nathubhai Shah v. Union Government of India, AIR 1976 SC 2591.
 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.

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