CLASS MOOT 2020

BEFORE THE HON’BLE SUPREME COURT OF LA LA LAND

IN THE MATTER OF

“STATE OFARGO”
VERSUS

“UNION OF LA LA LAND”

APPEAL NO. 67 /2020

(UNDER ARTICLE 136 OF THE CONSTITUTION OF LA LA LAND)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF THE SUPREME COURT

AND HIS COMPANIONS

COUNSELS FOR THE PETITION-

1.
2.
3.

MEMORIAL ON THE BEHALF OF THE PETITIONERS

1
 TABLE OF CONTENTS

S.No CONTENTS PAGE NUMBER

1. List of Abbreviations 3

2. Index of Authorities 4-6

3. Statement of Jurisdiction 7

4. Statement of facts 8-10

5. Issues raised 11

6. Summary of pleadings 12-13

7. Written Pleadings 14-23

8. Prayer 24

2
 LIST OF ABBREVIATIONS

AIR All India Reporter

Anr Another

Ch Chapter

Corpn. Corporation

CTC Current Tamil Nadu Cases

Del Delhi

DLT Delhi Law Tribunal

IPAB Intellectual Property Appellate Board

JIPR Journal of Intellectual Property Rights

Ltd Limited

Mad. Madras

Nag Nagpur

OA Original Application

Ors Others

OS Original suit

PTC Patent & Trade Marks Cases

RPS Reports of Patent, Design and Trade Mark

Cases
SC Supreme Court

SCC Supreme Court Cases

v. Versus

3
 INDEX OF AUTHORITIES

STATUTES

 THE CONSTITUTION OF INDIA

 THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLER
ACT, 2006

CASES

1. Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359.
2. Pawan Kumar v. State of Haryana, (2003)11 SCC 241.
3. C.C.E v Standard Motor Products, (1989) AIR 1298.
4. Janshed Hormusji Wadia v Board of Trustees, Port of Mumbai (2004)3 SCC 214.
5. Balakrishna v. Rmaswami, (1965) AIR 195
6. Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC 212.
7. Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd.
(1962) AIR 1314
8. Kathi Raning Rawat v. The State of Saurashtra (1952) AIR 991.
9. Pritam Singh v. The State, (1950) AIR 169.
10. Sripur Paper Mills v. Commissioner of Wealth Tax (1970) AIR1520.
11. M.C. Mehta v. Union of India and Ors. AIR 2004 SC 4016,
12. Alaknanda Hydro Power Company Ltd. v. Anuj Joshi and Ors.2013 (10) SCALE 261
13. Subhash Kumar v. State of Bihar , AIR 1991 SC 420
14. Fertilizer Corporation Kamgar Union v. Union of India, (1981) ILLJ 193 SC;
15. R.K. Garg v. Union of India, AIR 1981 SC 2138;
16. G.B. Mahajan v. Jalgaon Municipal Council, AIR 1991 SC 1153.
17. Association of Drugs and Pharmaceuticals, Manufacturers, A.P. v.A.P. Health, Medical,
Housing and
18. Infrastructure Development Corporation, Hyd. and Anr., 2002 (2) ALD 609
19. BALCO Employees Union (Regd.) v. Union of India, 2001 AIR SCW 5135
20. SC. Cooper v. Union of India, [1970] 3 SCR 530

4
21. Sushila Devi v. Ramnandan Prasad, AIR 1976 SC 177
22. Satyadhyan Ghosal v. Sm. Deorajin, AIR 1960 SC 941;
23. Daryao v. State of U.P, AIR 1961 SC 1457;
24. Deena Dayal v. Union of India, AIR 1983 SC 1155;
25. Yaro Khan v. Union of India, WP(C) 2599 of 2007
26. Orissa Mining Corporation Ltd. v. Ministry of Environment & Forest & Others, Writ
Petition No. 180 of 2011
27. Kailas v. State of Maharashtra, Criminal Appeal No. 11 of 2011, arising out of Special
Leave Petition No. 10367 of 2010
28. State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And
Others (Civil Appeal Nos. 104-105 Of 2001).
29. Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297,
30. State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And
Others (Civil Appeal Nos. 104-105 Of 2001)
31. K. Guruprasad Rao v. State of Karnataka and others, 2013 Indlaw SC 628.
32. Samatha v. State of Andhra Pradesh & Ors., AIR 1997 SC 3297
33. Ashok Kumar Tripathi v. Union of India and others, W.P. No. 2262/99
34. Rural Litigation and Entitlement Kendra v. State of U.P, 1989 Supp (1) SCC 504
35. A.P. State Fishermen Development and Welfare Association v. District Collector and
Ors, 2010 (2) ALD 300
36. Subhash Kumar v. State of Bihar,(1991) 1 SCC 598
37. State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And
Others, Civil Appeal Nos. 104-105 Of 2001.
38. Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest Writ Petition
(Civil) No. 180 OF 2011
39. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 at 249
40. People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 at p 1487.
41. State Trading Corporation ofIndia v. C.T.O., AIR 1963 SC 1811; (1963) 3 SCR 792
42. Krishangarh Mills.v. State of Rajasthan, AIR 1963 Raj. 363
43. T.D. Mumar & Bros. v. Iron & Steel Controller, AIR 1961 Cal. 258
44. State of Karnataka v. Hansa Corporation. AIR 1981 SC 463

5
 45. Kandola Rao v. A.P.S.R.T.C., AIR 1961 SC 82.
46. Cooverjee v. Excise Commr. Ajmer, AIR 1954 SC 220; (1954) SCJ 246
47. Bharat Sevashram Sangh v. State ofGujarat, (1986) 4 SCC 51
48. Chintaman Rao v. State ofM.P. (1950) SCR 759
49. Union ofIndia v. Bhanmal, (1960)2 SCR 627
50. Narendra Kumar v. Union ofIndia (1960) 2 SCR 375
51. Krishna Kumar v. J & K, AIR 1967 SC 1386.
52. Goodwill Paint and Chemical Industries v. Union of India, 1992 Supp. (1) SCC 16, 21
53. Southern Pharmaceuticals and Chemicals v. Kerala, AIR 1981 SC 1862
54. State of M.P. v. Nand Lai Jaiswal, (1986) 4 SCC, 566,604.
55. Viklad Coal Merchant v. Union ofIndia (1984) SCC 619, 641,642; AIR 1984 95;
56. Indian Express Newspaper v. Union ofIndia (1985) 1 SCC 641 : 1985 SCC (Tax) 121 :
1985 Tax L.R. 2451;
57. Olga Tellis v. Bombay Municipal Corpn. (1985) 3 SCC 545, 579;
58. Sodan Singh v. New Delhi Municipal Committee (1989) 4 SCC 155; AIR 1989 SC 1988.

LEGAL DATABASE
 Manupatra
 SCC Online
 Indian Kanoon

BOOKS AND ARTICLES

 Basu D.D., Constitution of India, 14th Edition 2009, LexisNexis Butterworths Wadhwa
Nagpur.
 Desai. A. Ashok, Environmental Jurisprudence, 2nd Edition 2002, Modern Law House.
 Doabia T.S, Environmental & Pollution Laws in India, 1st Edition 2005, Wadhwa
Nagpur.
 Jain M.P, Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth Wadhwa
Nagpur.
 Jaswal P.S., Environmental Law, 2nd Edition 2006, Allahabad Law Agency.

6
 STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble SC of La La Land under Article 136 of the
Constitution.
“Article 136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

7
 STATEMENT OF FACTS

The Democratic Republic of “La La Land”, commonly referred as L3, is the third largest
consumer of energy in the world with an 8% of global energy consumption share.

Being a developing country, L3 advocated that only industrialised countries should give
commitment under Paris Agreement, United Nations Frame Convention on Climate Change
(UNFCCC). Presently, L3’s energy policy aims to reduce its dependency on fossil fuels, increase
in-house gas production, and empower vulnerable communities through sustainable localised
energy projects.

During the 2017 financial year, L3 spent 130 billion dollars on annual Oil and Gas imports
leading to a significant cut in its various poverty alleviation programs. In May 2010 the
Directorate General of Hydrocarbon (DGH) operating under L3’s Ministry of Petroleum and
Natural Gas expressed its interest to explore unconventional gas through hydraulic fracturing
process and finalised 44 contract areas including 28 on-land fields and 16 offshores.

In May 2011, the DGH opened competitive bidding for getting ‘exploration and production’
licenses for these contract areas. The bidding process was then finalised in February 2012 under
its Hydrocarbon Exploration Licensing Policy (HELP), that replaced L3’s previously existing
New Exploration Licensing Policy (NELP). Among the 28 on-land fields, 2 contract areas were
located in the “Moonlight” district of State of “Argo”- one explore unconventional gas through
hydraulic fracturing process and finalised 44 contract areas including 28 on-land fields and 16
off-shores of the eastern states of the union of “La La Land.” The site of Moonlight project was
10 square kilometer and have a potential to produce 20,000 barrels of oil per day generating
worth one-million USD per day.

On May 8, 2012, Government of L3 officially awarded the Moonlight project to an Argo based
company “Stranger Things Private Limited” and then signed a contract for the Discovered Small
Fields (DSF) Bid 2012 for extracting hydrocarbons at Moonlight site.

After getting various clearances, including environment clearance, the Stranger Things Private
Limited (project proponent) began finalising its production phase operations and decided to
commercially produce “Shale Gas” through a traditional fracking process in the region. The

8
company decided to begin multi-well pad drilling in the area that required 7 million gallons of
water per well. Considering the potential impact of the proposed fracking process, a state level
Non-Governmental Organisation “Black Mirror” began campaigning against the proposed
fracking process.

On November 18, 2015 the Black Mirror organised a massive protest releasing its official protest
document. The protest was widely attended by the local farmers. The protest document stated
“The proposed shale gas project will not only drench the ground-water from the land of farmers
but will also result in various seismic activities in the region leading to a lot of crisis.

Further, the infrastructural and intellectual capacity of the union government is not up to the
standard as required to implement a fracking process. This project will poison the land and the
central government will make us all a stooge of ‘Stranger Things.’” On February 8, 2016, the
Chief Minister of Argo had a meeting with the Black Mirror’s President. Convinced with the
concerns of the NGO and considering the widespread protest, the state government asked the
NGO to formulate a draft bill to regulate shale gas fracking in the region.

On May 8, 2016, Black Mirror submitted a draft bill and related comments to the Chief
Minister’s office. The draft bill was titled as ‘Argo Regulation and Development of
PreProduction phase of Fracking process, 2016’ and primarily proposed to legislate as following
- Establishing a state-level water committee, Defining ‘Aquifers,’Centre-State Relationship
Clarification, Special Status of Argo under 371 A of L3’s Constitution: The draft bill further
clarifies that going forward; it will regulate the bidding process of such hydrocarbon processes as
the state has a special status under ‘La La Land’s Constitution.’ Such power will only be used to
protect the local communities’ interest.

The bill was then introduced in the state legislature and was passed, subsequently was
effectuated on March 8, 2017. The Act was titled as ‘‘The Argo (Regulation and Development of
Pre-Production phase of Shale Gas) Fracking Act, 2017’.

Sensing the complexity of the matter, the ‘Stranger Things Private Limited’ and the ‘Union of La
La Land’ both filed separate cases in the High Court of Argo against the State of Argo stating
that the ‘The Argo Fracking Act, 2017’ is unconstitutional. The High Court of Argo combined
both the case into a single matter and commenced the hearing. The ‘Stranger Things’ argued that

9
the Environmental Impact Assessment sector specific manual sufficiently and comprehensively
deals with all the issues addressed in the ‘The Argo Fracking Act, 2017.’ Further, the Stranger
Things stated that the 2017 Act not only threaten the quasifederal structure of the nation but also
breaches the company’s fundamental rights. On November 17, 2017. The High Court of Argo,
by a ratio of 3:2, gave the decision in favor of Stranger Things Private Limited on November 17,
2017. The State of Argo appealed against the decision of the High Court in the Supreme Court of
La La Land.

10
 ISSUES RAISED

ISSUE I

WHETHER THE SLP IS MAINTAINABLE?

ISSUE II

WHETHER THE DECISION OF HIGH COURT WAS ERRONEOUS?

ISSUE III

WHETHER THE ARGO FRACKING ACT 2017 IS ARBITRARY?

11
 SUMMARY OF PLEADINGS

ISSUE I WHETHER THE SLP IS MAINTAINABLE?

It is humbly submitted before this Hon’ble Court that the Special Leave Petition against the
judgment of the Hon’ble High Court (hereinafter as HC) is maintainable under Article 136 of the
Constitution of India. It is contended that the jurisdiction of Supreme Court (hereinafter as SC)
under Article 136 can always be invoked when a question of law of general public importance
arises and even question of fact can also be a subject matter of judicial review under Art.136.

ISSUE II WHETHER THE DECISION OF HIGH COURT WAS ERRONEOUS?

It is humbly submitted before the Hon’ble Supreme Court that the High Court’s decision was
erroneous. The hon’ble High Court allowed the “Stranger Things’ Private Limited” to carry on
with the further operations but this would bring gross injustice to the people of Argo. An
Environment Impact Assessment (hereinafter referred to as EIA) is conducted in order to
anticipate the likely consequences of the project.1 In this case there has been no reference to the
same.

ISSUE III WHETHER THE ARGO FRACKING ACT 2017 IS ARBITRARY?

It is submitted before the Hon’ble Supreme Court that the Agro Fracking Act is not
unconstitutional or arbitrary. Argo Regulation and Development of Pre Production phase of
Fracking process, 2016’ primarily proposes the following-Establishing a state-level water
committee: Every project related to shale gas fracking or any hydraulic fracturing must take
consent from the committee established under this Act. The consent will be additional to any
such consent/clearance required under any central legislation, Defining ‘Aquifers’: There shall
be a difference of 600 meters between the drinking water sources/ aquifers and shale gas wells in
order to preserve natural resources from contamination. Further, since aquifers were not defined
under any of the central legislation, the bill defined it as “a porous deposit of rock, such as a
1
M.C. Mehta v. Union of India and Ors. AIR 2004 SC 4016, Alaknanda Hydro Power Company Ltd. v. Anuj Joshi
and Ors.2013 (10) SCALE 261

12
sandstone, containing water that can be used to supply wells.”Centre-State Relationship
Clarification: Since Shale Gas, before production is just a “rock” it is well within the domain of
state and accordingly the state can regulate these rocks. It is only after the hydraulic fracture the
water meets the rock tapping the gas. Therefore, this bill does not regulate the ‘hydrocarbon’
sector. It only attempts to preserve land and water. All these rules have been drafted keeping in
view the right of citizens residing near the area because- The indigenous people are considered
on same pedestal as Scheduled Tribes2 or Scheduled Caste in India3 because of their
backwardness4, dependence on basic natural resources5 for life and livelihood and lack of
exposure to civilization6. Thus, their rights have also been construed to be safeguarded under
Article 244(1) and the provisions of the Fifth Schedule of the Constitution. Therefore, in the
present case, the indigenous people of Argo can be considered to be on the same footing as
Scheduled Tribes.

2
Section 342 lays down the procedure for scheduling and de-scheduling of tribe
3
Orissa Mining Corporation Ltd. v. Ministry of Environment & Forest & Others, Writ Petition No. 180 of 2011;
Kailas v. State of Maharashtra, Criminal Appeal No. 11 of 2011, arising out of Special Leave Petition No. 10367 of
2010; ILO Convention on Indigenous People, Available at http://www.ilo.org/wcmsp5/groups/public/---ed_norm/
normes/documents/publication/wcms_106474.pdf, Last Accessed on 18th October, 2013.
4
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others (Civil Appeal
Nos. 104-105 Of 2001).
5
Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297
6
Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297, State Of Kerala And Another v. Peoples Union For
Civil Liberties, Kerala State Unit And Others (Civil Appeal Nos. 104-105 Of 2001)

13
 WRITTEN PLEADINGS

ISSUE I WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?

It is humbly submitted before this Hon’ble Court that the Special Leave Petition against the
judgment of the Hon’ble High Court (hereinafter as HC) is maintainable under Article 136 of the
Constitution of India. It is contended that the jurisdiction of Supreme Court (hereinafter as SC)
under Article 136 can always be invoked when a question of law of general public importance
arises and even question of fact can also be a subject matter of judicial review under Art.136.

JURISDICTION OF SC UNDER ARTICLE 136 CAN ALWAYS BE INVOKED WHEN A

QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE ARISES.

The jurisdiction conferred under Art. 136 on the SC are corrective one and not a restrictive one7.
A duty is enjoined upon the SC to exercise its power by setting right the illegality in the
judgments is well-settled that illegality must not be allowed to be perpetrated and failure by the
SC to interfere with the same would amount to allowing the illegality to be perpetuated.8 It has
been held in plethora of cases that when the question of law of general public importance arises,
the jurisdiction of SC can be invoked by filing special leave petition. In the present case, the
issue involves matter of General Public Importance and hence, entitled to be maintainable.

THE MATTER INVOLVES QUESTION OF LAW OF GENERAL PUBLIC

IMPORTANCE AND HENCE, ENTITLED TO BE MAINTAINABLE.

It has been held by this Hon’ble Court that when a question of law of general public importance
arises, or a decision shocks the conscience of the court, its jurisdiction can always be invoked.
Article 136 is the residuary power of SC to do justice where the court is satisfied that there is
injustice.9 The principle is that this court would never do injustice nor allow injustice being
perpetrated for the sake of upholding technicalities.10 In any case, special leave would be granted

7
Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359.
8
Pawan Kumar v. State of Haryana, (2003)11 SCC 241.
9
C.C.E v Standard Motor Products, (1989) AIR 1298.
10
Janshed Hormusji Wadia v Board of Trustees, Port of Mumbai (2004)3 SCC 214.

14
from a second appellant decision only where the judgment raises issue of law of general public
importance.11

THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW AND HENCE

ENTITLED TO BE MAINTAINABLE

Where findings are entered without considering relevant materials and without following proper
legal procedure, the interference of the Supreme Court is called for.12 The expression "substantial
question of law" is not defined in any legislation. Nevertheless, it has acquired a definite
connotation through various judicial pronouncements.

A Constitution Bench of the Apex Court, while explaining the import of the said expression,
observed that: “The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or whether it
directly and substantially affects the rights of the parties and if so whether it is either an open
question in the sense that it is not finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for discussion of alternative views.”13

In the present case, the question of law involved in appeal is of recurring nature which has been
raised in plethora of cases. Hence, it is humbly submitted before this Hon’ble Supreme Court of
India that the matter involves substantial question of law and hence entitled to be maintainable.
The Supreme Court is not precluded from going into the question of facts under article 136, if it
considers it necessary to do so.14 The Article 136 uses the wording ‘in any cause or matter’. This
gives widest power to this court to deal with any cause or matter.15 It is, plain that when the
Supreme Court reaches the conclusion that a person has been dealt with arbitrarily or that a court
or tribunal has not given a fair deal to a litigant, then no technical hurdles of any kind like the
finality of finding of facts, or otherwise can stand in the way of the exercise of this power.16 It is
submitted that, the present facts in issue satisfy all of the above mentioned criteria. The case
involves the matter of general public importance and it directly and substantially affects the

11
Balakrishna v. Rmaswami, (1965) AIR 195
12
Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC 212.
13
Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd. (1962) AIR 1314
14
Kathi Raning Rawat v. The State of Saurashtra (1952) AIR 991.
15
Pritam Singh v. The State, (1950) AIR 169.
16
Sripur Paper Mills v. Commissioner of Wealth Tax (1970) AIR1520.

15
rights of the parties as the order is erroneous and prejudicial to the interest of the petitioners.
Also, in the light of the facts that huge amount of cases aroused under same facts and
circumstances, it is submitted that the question is indeed an open question.

Hence, The State of Argo has been given a special status under the La La Land Constitution and
hence have full right to protect the land, water, air, and the living resources of the state.

In this case, the proposed shale gas project will not only drench the ground-water from the land
of farmers but will also result in various seismic activities in the region leading to a lot of crisis.
Further, the infrastructural and intellectual capacity of the union government is not up to the
standard as required to implement a fracking process. This project will poison the land and will
deprive the Argo people of water facilities. The protection of Argo people have been stated in
Article 371-A of the Constitution and likewise, it is the duty of the Supreme Court to preserve
the said land of the Argo people. This issue is of general importance to the nation because:

a) One of the main chemicals released in the fracking process is methane, and it is estimated that
4% of it escapes into the atmosphere during extraction. Because methane is 25 times stronger
than carbon dioxide in terms of trapping heat, the release of this gas is detrimental to the air
quality of surrounding fracking sites. Additionally, the ancillary components of fracking directly
increase air pollution at well sites. These include the pollutants released from new construction
and subsequent operation of fracking locations, the increased emissions from transporting oil and
gas from the site, and emissions from waste disposal and storage. Pollutants increase the
production and long-term lingering of smog, which decreases the availability of clean air for
workers and local residents.

b) Millions of gallons of water are used in the fracking process, which directly reduces the
amount of clean water available to surrounding residents. When water is not available to fracking
sites locally, it may be transported from other regions, ultimately drawing down available water
from lakes and rivers across the country. Water contamination could also reduce the overall
water supply of regional fracking areas, as the chemicals that are used in the process have the
propensity to leak back into local water supplies.

c) In addition to air and water pollution, fracking also increases the potential for oil spills, which
can harm the soil and surrounding vegetation. Fracking may cause earthquakes due to the high

16
pressure used to extract oil and gas from rock and the storage of excess wastewater on site. Thus
in turn infringing the right to health of the citizens.

Thus the present appeal is maintainable.

17
ISSUE II WHETHER THE DECISION OF HIGH COURT WAS ERRONEOUS?

It is humbly submitted before the Hon’ble Supreme Court that the High Court’s decision was
erroneous. The hon’ble High Court allowed the “Stranger Things’ Private Limited” to carry on
with the further operations but this would bring gross injustice to the people of Argo.

Environment Impact Assessment was either not done or was done improperly

An Environment Impact Assessment (hereinafter referred to as EIA) is conducted in order to

anticipate the likely consequences of the project.17 In this case there has been no reference to the
same.

Air Pollution caused by the company

Article 21 of the Constitution ensures the fundamental right to live decently and to enjoy clean
air.18 The fracking in the proximity of the residential area without any appropriate pollution-
control equipment is indicative of company’s disregard for the precautionary norms to be
followed for public safety. Thus, violating the right to clean air guaranteed under Article 21 of
the Constitution.

The honourable High court would not be justified in interfering with a policy decision

The respondent most humbly submits that the Supreme Court has long held that interference into
policy actions is not within the jurisdiction19 as reiterated in the recent Iodine Salt Case. It has
been held that a writ petition cannot be maintainable if its sole purpose is to question a policy
decision of the Government.20 The position of law on the matter of policy decisions is quite
clear, from decisions such as BALCO Employees Union21, and a host of other cases. The list is
truly extensive22 , as the underlying principle is sound in law. Unless there is prima facie
evidence to prove that exercise of discretion has been arbitrary, unreasonable or mala fide, the

17
M.C. Mehta v. Union of India and Ors. AIR 2004 SC 4016, Alaknanda Hydro Power Company Ltd. v. Anuj Joshi
and Ors.2013 (10) SCALE 261
18
Subhash Kumar v. State of Bihar , AIR 1991 SC 420
19
Fertilizer Corporation Kamgar Union v. Union of India, (1981) ILLJ 193 SC; R.K. Garg v. Union of India, AIR
1981 SC 2138; G.B. Mahajan v. Jalgaon Municipal Council, AIR 1991 SC 1153.
20
Association of Drugs and Pharmaceuticals, Manufacturers, A.P. v.A.P. Health, Medical, Housing and
Infrastructure Development Corporation, Hyd. and Anr., 2002 (2) ALD 609
21
BALCO Employees Union (Regd.) v. Union of India, 2001 AIR SCW 5135
22
SC. Cooper v. Union of India, [1970] 3 SCR 530

18
Court cannot step into the shoes of the Government to decide the validity of a policy. It is a
matter of public policy that the Court not permit litigations on the same issue be raised in
perpetuity,23 as no public undertaking will ever succeed if such a practice is encouraged.

Thus the judgment of High court was erroneous and arbitrary.

23
Sushila Devi v. Ramnandan Prasad, AIR 1976 SC 177; Satyadhyan Ghosal v. Sm. Deorajin, AIR 1960 SC 941;
Daryao v. State of U.P, AIR 1961 SC 1457; Deena Dayal v. Union of India, AIR 1983 SC 1155; Yaro Khan v.
Union of India, WP(C) 2599 of 2007

19
ISSUE III WHETHER THE ARGO FRACKING ACT 2017 IS ARBITRARY?

It is submitted before the Hon’ble Supreme Court that the Agro Fracking Act is not
unconstitutional or arbitrary.
Argo Regulation and Development of Pre Production phase of Fracking process, 2016’ primarily
proposes the following-
1. Establishing a state-level water committee: Every project related to shale gas fracking or any
hydraulic fracturing must take consent from the committee established under this Act. The
consent will be additional to any such consent/clearance required under any central legislation.
2. Defining ‘Aquifers’: There shall be a difference of 600 meters between the drinking water
sources/ aquifers and shale gas wells in order to preserve natural resources from contamination.
Further, since aquifers were not defined under any of the central legislation, the bill defined it as
“a porous deposit of rock, such as a sandstone, containing water that can be used to supply
wells.”
3. Centre-State Relationship Clarification: Since Shale Gas, before production is just a “rock” it
is well within the domain of state and accordingly the state can regulate these rocks. It is only
after the hydraulic fracture the water meets the rock tapping the gas. Therefore, this bill does not
regulate the ‘hydrocarbon’ sector. It only attempts to preserve land and water.
4. Special Status of Argo under 371 A of L3’s Constitution: The draft bill further clarifies that
going forward; it will regulate the bidding process of such hydrocarbon processes as the state has
a special status under ‘La La Land’s Constitution.’ Such power will only be used to protect the
local communities’ interest.
5. Waste Water/ ‘Flow-Back Water’: Since while doing hydraulic fracture, around 2-3% shale
fluid (prepared by mixing a million gallons of water and chemicals) flows back, the state needs
specific laws addressing “flow-back water.” The bill proposed to define flow back water as “any
mixture of water with chemicals used for the purpose of Hydraulic fracturing.” Further, the bill
stated that such shale fluid cannot fit in the definition of ‘waste water’ due to its chemical and
physical property. The draft bill further stated that usually ‘shale gas fluid’ are protected for
commercial confidentiality but the composition and its perspective affects should be made
public.
6. Private Mineral Ownership: Lastly, the draft bill proposes to incorporate the concept of ‘Rule
of Capture’ with respect to mineral rights of the private individuals.
20
All these rules have been drafted keeping in view the right of citizens residing near the area
because- The indigenous people are considered on same pedestal as Scheduled Tribes 24 or
Scheduled Caste in India25 because of their backwardness26, dependence on basic natural
resources27 for life and livelihood and lack of exposure to civilization28. Thus, their rights have
also been construed to be safeguarded under Article 244(1) and the provisions of the Fifth
Schedule of the Constitution. Therefore, in the present case, the indigenous people of Argo can
be considered to be on the same footing as Scheduled Tribes.
The source of livelihood for forest dwelling people29 for generations have been forests and forest
lands30 and so are considered inseparable.31 However, with the advent of civilization they were
exploited by outsiders32, thus, there was a necessity to protect the inherent rights of indigenous
people to empower them to utilise and to exercise control over forest for sustainable
33
development. Therefore, to protect forest land from deforestation and to encourage
forestation,34 State is casted upon a duty to save the fast diminishing forest cover of the country35
under the principle of Public Trust Doctrine36, Panchayats (Extension to the Scheduled Areas)
Act 1996 (PESA)37 and Articles 48A of the Constitution to preserve the Forests which are
considered to be a national wealth under Environment Protection Act, 1986.38 The Rio Submit,
1992, The Indigenous and Tribal Populations Convention, 195739 and United Nation Declaration

24
Section 342 lays down the procedure for scheduling and de-scheduling of tribe
25
Orissa Mining Corporation Ltd. v. Ministry of Environment & Forest & Others, Writ Petition No. 180 of 2011;
Kailas v. State of Maharashtra, Criminal Appeal No. 11 of 2011, arising out of Special Leave Petition No. 10367 of
2010; ILO Convention on Indigenous People, Available at http://www.ilo.org/wcmsp5/groups/public/---ed_norm/
normes/documents/publication/wcms_106474.pdf, Last Accessed on 18th October, 2013.
26
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others (Civil Appeal
Nos. 104-105 Of 2001).
27
Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297
28
Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297, State Of Kerala And Another v. Peoples Union
For Civil Liberties, Kerala State Unit And Others (Civil Appeal Nos. 104-105 Of 2001)
29
Section 2 (o), The Scheduled Tribes and other Traditional Forest Dweller Act, 2006
30
Section 2(c), The Scheduled Tribes and other Traditional Forest Dweller Act, 2006
31
K. Guruprasad Rao v. State of Karnataka and others, 2013 Indlaw SC 628.
32
M P Jain, The Constitution of India, First Report of the Commissioner For Scheduled Castes and Scheduled
Tribes, 3, 11(1952); Samatha v. State of Andhra Pradesh & Ors., AIR 1997 SC 3297
33
Ashok Kumar Tripathi v. Union of India and others, W.P. No. 2262/99
34
Rural Litigation and Entitlement Kendra v. State of U.P, 1989 Supp (1) SCC 504
35
A.P. State Fishermen Development and Welfare Association v. District Collector and Ors, 2010 (2) ALD 300
36
Ibid
37
Section 4(d)& (m) of PESA
38
Subhash Kumar v. State of Bihar,(1991) 1 SCC 598
39
Article 11, ILO Convention, 1957.

21
on Indigenous people also recognize the rights of indigenous people over the land. 40 The
international conventions are considered important to be read with fundamental rights as they
further, enlarge the scope of the same.41 This depicts the special relationship between the
indigenous people and the forests and their sustenance which solely arises from these forests.
THE ACT DOES NOT VIOLATES COMPANY’S RIGHT TO TRADE
The fundamental freedom of trade and commerce has been enshrined under Article 19(1) (g) of
the Constitution of India. It guarantees all the citizens the right to freedom of. trade and
commerce. But the guaranteed right is not absolute. The Constitution allows the appropriate
government, to put reasonable restrictions on the exercise ofthis right in the interest ofthe general
public. The Freedom under Article 19(l)(g) is granted only to the citizen of India, and it can not
be claimed by non-citizen. A company registered under Indian Companies Act, 1956 was not a
citizen for purpose of Article 19(l)(g).42 Restriction may be imposed by any of the authorities
who are included in the definition of State in Article 12 and competent to make a law. 43 State
may create a monopoly in its favour. There is no limitation upon this power. 44 Restriction on
trade may amount even to prohibition in certain circumstances. State has the power to prohibit
the trades which are immoral or illegal or injurious to public health and welfare of the public.345
Restrictions to be imposed by State should be reasonable and in the interest of the general public
the constitution of India also makes provisions for social control under Article 19(6). The word
reasonable is elusive and vague and it implies intelligent care and deliberation that is the choice
of course which reason dictates. There cannot be any absolute standard of what constitutes
reasonableness. It may obviously depend upon the nature of the right claimed, the object to be
achieved, the means employed and limitation imposed the standard of reasonableness laid down
in one case may not be applicable in another case with relation to another clause.

40
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil Appeal
Nos. 104-105 Of 2001.
41
Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest Writ Petition (Civil) No. 180 OF 2011,
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 at 249, People's Union for Democratic Rights v. Union of India,
AIR 1982 SC 1473 at p 1487.
42
State Trading Corporation ofIndia v. C.T.O., AIR 1963 SC 1811; (1963) 3 SCR 792; Krishangarh Mills.v. State
ofRajasthan, AIR 1963 Raj. 363; T.D. Mumar & Bros. v. Iron & Steel Controller, AIR 1961 Cal. 258
43
State ofKarnataka v. Hansa Corporation. AIR 1981 SC 463
44
Kandola Rao v. A.P.S.R.T.C., AIR 1961 SC 82.
45
Cooverjee v. Excise Commr. Ajmer, AIR 1954 SC 220; (1954) SCJ 246; Bharat Sevashram Sangh v. State
ofGujarat, (1986) 4 SCC 51

22
Restriction on freedom of trade and commerce may include Prohibition
The restriction on the freedom of trade and commerce may also include total prohibition or ban.
Earlier the cases of Supreme Court were not clear but now it is settled that the restriction may
also mean total prohibition or ban. In the Narendra Kumar’s Case the Supreme Court reviewed
all the earlier cases and held46 that
“There can be no doubt that Constitution Makers intended the word ‘restriction’ to include
‘prohibition’ also. The contention that a law prohibiting the exercise of a fundamental right is in
case saved and cannot therefore be accepted. It is, however, for the Court to decide whether in a
given case, having regard to the nature of the subject matter and the circumstances of the case,
restriction may reasonably include total prohibition or ban”. 47
In certain circumstances restriction on trade may amount even to prohibition. Protection of
Article 19(l)(g) has already been withdrawn from trade in intoxicants. No person has any
fundamental right to carry on trade in any toxious or dangerous goods like intoxicating drugs or
intoxicating liquors.48 The state cannot be compelled to part with its exclusive right or privilege
of manufacturing and selling liquor. But when the state decides to grant such right or privilege to
others the state cannot escape the rigour of Article 14. It cannot act arbitrarily on its sweet will.
Traders in certain commodities (designated as essential commodities) may be more drastically
regulated than trade in other commodities. To assess the reasonableness of a restriction, the
nature of the business and conditions prevailing there in are important factors to be considered.
As these factors differ from trade to trade, no hard and fast rules to concerning all trades can be
laid down. The result of this approach is that courts may hold drastic restrictions on certain
trades in certain circumstances as reasonable.49
Further in this case, if Fracking has been allowed the it would infringe Article 21 of the people
residing in Argo.

46
Chintaman Rao v. State ofM.P. (1950) SCR 759; Union ofIndia v. Bhanmal, (1960)2 SCR 627 Narendra Kumar
v. Union ofIndia (1960) 2 SCR 375
47
Krishna Kumar v. J & K, AIR 1967 SC 1386. See also, Goodwill Paint and Chemical Industries v. Union ofIndia,
1992 Supp. (1) SCC 16, 21
48
Southern Pharmaceuticals and Chemicals v. Kerala, AIR 1981 SC 1862; State ofM.P. v. Nand Lai Jaiswal, (1986)
4 SCC, 566,604.
49
Viklad Coal Merchant v. Union ofIndia (1984) SCC 619, 641,642; AIR 1984 95; Indian Express Newspaper v.
Union ofIndia (1985) 1 SCC 641 : 1985 SCC (Tax) 121 : 1985 Tax L.R. 2451; Olga Tellis v. Bombay Municipal
Corpn. (1985) 3 SCC 545, 579; Sodan Singh v. New Delhi Municipal Committee (1989) 4 SCC 155; AIR 1989 SC
1988.

23
 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon’ble Court may be pleased to adjudge and declare:

1. The present appeal maintainable before the hon’ble Supreme court.

2. The decision of the High Court was erroneous.

3. The Argo Fracking Act 2017 is not arbitrary and is constitutional.

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

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

Sd/-

COUNSEL ON BEHALF OF THE APPELLANTS

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