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T-03

3rd INTRA MOOT COURT COMPETITION, 2019

ON SUBMISSION TO THE HON ’ BLE SUPREME COURT OF INDICA UNDER

ARTICLE 32 AND ARTICLE 134 OF THE CONSTITUTION OF INDICA
CONSTITUTION OF

In the Matter of :

Green Warrior ………………………....................................Petitioner

vs.

Union of Indica ………………………………………

Respondent
……

And

Antanio and Ors …………………………………………………………… Petitioner

vs.

Union of Indica……………………..…………………………………..…Respondent

PETITION No 2019

CLUBBED WITH

PETITION No. (

MEMORIAL FOR THE PETITIONER

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TABLE OF CONTENTS

ABBREVIATIONS……………..……………………………………………….…………...3
INDEX OF AUTHORITIES ...............................................................................................4-7
STATEMENT OF JURISDICTION .....................................................................................8
STATEMENT OF FACTS .........................................................................................………9
STATEMENT OF ISSUES ...................................................................................................10
SUMMARY OF ARGUMENTS…………………..……………………………………11-12
ARGUMENTS ADVANCED...........................................................................................13-27
1. THAT THE PUBLIC INTEREST LITIGATIONS FILED
ARE
MAINTAINABLE………………………..................................................…........13-15

[1.1] Violation of fundamental rights is a ground for maintainability……………13-15

[1.1.1] The right to live in an unpolluted environment of resident of Vedder has been
violated by government’s “Style Temperature Friendly Capital” city
project…13-14
[1.1.2] Right to equality, reproductive health, privacy and personal space of citizens
of the Tyler infringed by the government’s “Two Child
Ordinance”…..…….…14-15 [1.2] Alternative remedy does not bar
issue of writ under Article 32……………….…15

2. THAT THE “STYLE TEMPERATURE FRIENDLY CAPITAL” CITY PROJECT

VIOLATES HUMAN RIGHTS OF CITIZENS AND CAUSES ENVIRONMENTAL
DEGRADATION…………………………………………………………………...15-23
[2.1] Right to live in clean environment is Fundamental right as well as an important
human rights under international conventions…………………………………...16-19

[2.1.1] Right to live in a clean environment is sine qua non for dignified
life………………………………………………………………………………….........16-17

[2.1.2] Right to live in clean environment is basic human rights under many
international conventions and is
violated……………………………………………………….17-20

[2.1.2.1] Sustainable Development concept has not been followed………...17-19

[2.1.2.2] Relocation of industries would cause harm in the environment of new
location………………………………………………………………………………………………….19
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[2.2.] It is the state’s failure for non-protection of ecological balance that leads
environmental degradation………………………………………………………………..19-23
[2.2.1] Project affects the biodiversity……………………………………………..20-22

[2.2.1.1] Project affects green cover (flora) of the city……………………….21-

22
[2.2.1.2] project affects the rights of fauna family………………………………22

[2.2.2] vide exploitation of natural resources cause a shift in ecological

balance…………………………………………………………………………………………………23

3. THAT THE “TWO CHILD ORDINANCE IS ULTRA VIRES THE ARTICLE 14,
19
AND 21 OF THE CONSTITUTION OF TYLER…………………………………….23-27
[3.1] The Ordinance violates the fundamental rights of the citizens of Tyler…………...24-
27
[3.1.1] The classification made by the ordinance is not based on intelligible
differentia………………………………………………………………………………………….24-25
[3.1.2] The ordinance affects right to life and liberty of
individuals………………..25-27
[3.2] The Ordinance deprives the access to justice…………………………………………27

PRAYER……………………………………………………………………………………28
A BBREVIATIONS

¶ : Paragraph
AIR : All India Reporter
AP : Andhra Pradesh
Art. : Article
Const. : Constitution
EIA : Environment Impact Assessment
H.P. : Himachal Pradesh
Hon'ble : Honorable
LR : Law Reporter
PIL : Public Interest Litigation
PUCL : People‘s Union for Civil Liberties
SC : Supreme Court
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SCC : Supreme Court Cases

TN : Tamil Nadu
UDHR : Universal Declaration of Human Rights
UK : United Kingdom
UN : United Nation
UOI : Union of India
UP : Uttar Pradesh
US : United State
USD : United States Dollar
W.P. No. : Writ Petition Number

INDEX OF AUTHORITIES

CASES
1. Andhra Industrial Works v. Chief Controller of Imports and Ors AIR 1974 SC 1539…..13
2. Animal and Environment Legal Defence Fund v. Union of India, JT 1997 (3) SC 298…21
3. Anita Kushwaha v. Pushap Sudan, Transfer Petition (C) NO. 1343 OF 2008…………..27
4. Apparel Export Promotion Council v. A.K.Chopra (1999(1)SCC 759)…………………18
5. Bachan Singh v. State Of Punjab, AIR 1982 SC 1336…………………………………..15
6. BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC 333………………13
7. Chairman Railway Board v. Chandrima Das, A.I.R. 2000 S.C. 988…………………….25
8. Charan Lal Sahu v. Union of India AIR 1990 SC 1480…………………………………16
9. Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P.,(1990) 4 SCC449, 452:
AIR1990 SC 2060, 2062…………………………………………………………………14
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10. Coffee Board v. Jt. Commercial Tax Officer, A.I.R. 1971 S.C. 870…………………….15
11. Damodar Rao v. S.D. Municipal Corporation, AIR 1987 S.C. 2486……………………14
12. Delcourt v. Belgium 1970 E.C.H.R. 1…………………………………………………...27
13. D.K Basu v. State of West Bengal, A.I.R. 1997 S.C. 610……………………………….25
14. E. P. Royappa v. State Of Tamil Nadu & Anr, A.I.R 1974 S.C. 555……………………24
15. Erusian Equipment & Chemicals Ltd. v. State of W.B, (1975) 1 SCC 70: AIR 1975 SC
266……………………………………………………………………………………….25
16. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors., A.I.R.
1981 S.C. 746…………………………………………………………………………….25
17. GR Simon v. Union of India AIR1997 Del 301………………………………………….22
18. Guruvayur Devaswom Managing Committee v. CK Rajan and Ors.(2003) 7 SCC 546...13
19. His Holiness Kesavananda Bharti v. State of Kerala (1973) 4 S.C.C. 225………………24
20. Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1: AIR 1975 SC 2299……………..24
21. IT.N. Godavarman Thirumulkpad v. Union of India (1997) 2 SCC 267………………...21
22. Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors.,W.P. (Civil) No.
494 0f 2012………………………………………………………………………………25
23. Kallakkurichi Taluk Retired Officials Assn. v. State of T.N.,(2013)2 SCC 772,794……25
24. Karnataka Industrial Areas Development Board v. C. Kenchappa,(2006) 6 SCC 371…..23
25. Karnataka Industrial Areas Development board v. C Kenchappa, 2006 AIRSCW
2547.....................................................................................................................................2
1
26. Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, A.I.R 1980 S.C.1992……24
27. Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295…………………………………..15
28. Kharak Singh v. State of U.P.,AIR 1963 SC 1306………………………………………26
29. Kharak Singh v. State of U.P A.I.R.1964 (1) SCR 332…………………………………25
30. KK Kochunni v. State of Madras, A.I.R. 1959 S.C.725………………………………....15
31. Madhav Hayawadanrao Hoskot v. State Of Maharashtra (1978) 3 S.C.C. 544………….27
32. Mahesh Chandra v. Regional Manager, U.P. Financial Corporation, A.I.R. 1993 S.C.
935………………………………………………………………………………………..24
33. Minerva Mills Ltd. & Ors v. Union of India &Ors1981 S.C.R. (1) 206.
34. M.C. Mehta v. Union of India AIR 2000 SC 3052……………………………………....19
35. M.C. Mehta v. Union Of India, (2002) 4 SCC 3533……………………………………..18
36. M.C Mehta v. Union of India, (2003) 10 S.C.C. 561…………………………………….25
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37. MC Mehta v. Union of India Air 2004 SC 4033………………………………………....18

38. M.C. Mehta v. Union of India, (2004) 12 SCC 118……………………………………...23
39. M/S Sharma Transport v. Government of Andhra Pradesh, A.I.R. 2002 S.C. 322………24
40. Munn v. Illinois, 24 L Ed 77:94 US 113(1877)………………………………………….25
41. M.Velu v. The State Of Tamil Nadu on 19 March, 2010………………………………..23
42. Naveen Chandra Pant And Another v. State Of Uttarakhand And Others on 28 March,
2017………………………………………………………………………………………23
43. ND Jayal v. UOI, AIR 2004 SC1 (supp) 867…………………………………………….18
44. Olga Tellis v Bomaby Municipal Corporation, A.I.R. 1986 S.C. 180…………………...25
45. People’s Union for Civil Liberties v. UOI,(2005)2 SCC 436, (2005) 1 JT 283…………24
46. Prem Chand Garg v. Excise Commissioner, U.P., A.I.R. 1963 S.C. 996………………..13
47. PUCL v. Union of India, A.I.R. 1997 S.C. 568……………………………………...16, 25
48. Ratlam Municipality v. Vardichand, AIR 1980 SC1622………………………………...20
49. Renu & Ors v. District & Sess.Judge Tishazri, CIVIL APPEAL NO. 979 OF 2014…..15
50. R. Rajgopal v. State of Tamil Nadu, AIR 1995 SC 264 : (1994) 6 SCC 632………..14, 26
51. Rural Litigation and Entitlement Kendra v. State of U.P., 1987 Supp SCC 487: AIR 1987
SC 2426…………………………………………………………………………………..14
52. Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, AIR 1985
SC 652……………………………………………………………………………………16
53. Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109……………………...22
54. Samatha v. State of A.P. AIR 1997 SC 3297…………………………………………….16
55. S.B.Trading Co.Ltd. v. Shyamlal Ramchandra , AIR 1951 Cal 539…………………….25
56. Society for Unaided Private Schools of Rajasthan v. UOI, (2012) 6 SCC 1 (32): AIR 2012
SC 3445…………………………………………………………………………………..24
57. State of Bihar v. Banshi Ram Modi AIR 1985 SC 814…………………………..............21
58. State of Bihar v. Murad Ali Khan AIR 1989 SC 1……………………………………….22
59. State of H.P. v. Ganesh Wood Products, A.I.R. 1996 149, S.C.C.(6) 363……………….21
60. State of H.P. v. Umed Ram, AIR 1986 S.C. 847………………………………………...14
61. State of H.P. v. Umed Ram Sharma,(1986)2 SCC 75……………………………………25
62. State of Madras v. V.G Row, A.I.R. 1952 S.C. 196……………………………………..13
63. State of M.P v. Kedia Leather & Liquor Ltd. & Ors, (2003) 7 SCC 389: AIR 2003 SC
727……………………………………………………………………………………….14
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64. State of Tamil Nadu v. M/s. Hind Stone AIR 1981 SC (1) 711………………………….23
65. State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal, AIR
2010 SC 1476(1490): 2010 AIR SCW 1829: 2010(3) SCC 571: 2010 (2) SCALE
467………………………………………………………………………………………..23
66. Sube Singh v. State of Haryana, (2001) 7 S.C.C. 545……………………………………24
67. Subhash Kuimar v. State of Uttar Pradesh, J.T. 1991 (1) S.C. 538………………………16
68. Suchitra Srivastava v. Chandigarh Administration AIR 2010 SC 235…………………..26
69. T. Damodhar Rao v. Municipal Corporation, Hyderabad, AIR 1987 AP 17…………….14
70. Tamilnad Mercantile Bank Shareholders Welfare Association v. S.C. Sekar and Others
(2009) 2 S.C.C. 784………………………………………………………………………27
71. Tarun Bharat Sangh, Alwar v. Union of India, A.I.R. 1992 S.C. 514; A.I.R. 1993 S.C.
293………………………………………………………………………………………..20
72. Union Carbide Corporation v. Union of India, AIR 1990 273…………………………...20
73. Vellore Citizens Welfare v. Union Of India, (1996) 5 SCC 647………………………...18
74. Vellore citizen‘s welfare forum v. Union of India (1997) 3 SCC 433 at 422……………17
75. Virendra Gaur v. State of Haryana, (1995) 2 S.C.C. 577 (India)………………………...20
76. Vishakha v. State of Rajasthan, A.I.R. 1997 S.C. 3011………………………………….25
77. V.M. Jayashankar v. The Secretary To The Government of Tamil Nadu……………….21
78. Wounded Nature v. Human Future……………………………………………………....21
STATUTE
1. ENVIRONMENT (PROTECTION) ACT, 1986.
2. THE FOREST (COSERVATION) ACT, 1980.
3. AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981.
4. ENVIRONMENT IMPACT ASSESSMENT REGULATIONS.
5. THE WILD LIFE (PROTECTION) ACT, 1972.
6. NATIONAL GREEN TRIBUNAL ACT, 2010.
CONVENTIONS
1. UNITED NATIONS CONFERENCE ON ENVIRONMNET AND DEVELOPMENT.
2. UNITED NATIONS ENVIRONMENTAL PROGRAMME.
3. UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE.
4. WORLD SUBMIT ON SUSTAINABLE DEVELOPMENT.
5. WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT.
6. PARIS AGREEMENT ON CLIMATE CHANGE 2015.
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BOOKS
1. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS, 7TH EDITION.
2. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4TH ED. 1967).
3. V.N. SHUKLA, CONSTITUTION OF INDIA, EASTERN BOOK COMPANY, 13TH
EDITION, REPRINTED 2015.
4. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8TH
ED., 2008).
5. P. M. BAKSHI, THE CONSTITUTION OF INDIA, UNIVERSAL LAW, 14TH EDITION.
6. P. LEELAKRISHNAN, ENVIRONMENTAL LAW IN INDIA, LEXIS NEXIS, 3 RD
EDITION, REPRINT 2012.
7. SHAYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND
POLICY IN INDIA, OXFORD INDIA PAPERBACKS, 2ND EDITION.
8. SAIRAM BHAT, NATURAL RESOURCES CONSERVATION LAW, SAGE LAW,
1ST EDITION.
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STATEMENT OF JURISDICTION

This Court is competent to hear to the petition under Art. 32 and Art.134 of the Constitution
of Indica. As the matter involves safeguarding the fundamental rights enshrined in Part III
of the Constitution of Indica and the appellate jurisdiction of Supreme Court in criminal
matters enshrined in Part V respectively.
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STATEMENT OF FACTS

[¶1] The state of Indica, situated in South Asian region of which Dilica is the capital, called
heart of the country, situated near Arabian Sea. Dilica is the host of various factories and
small- scale industries, construction work goes throughout the year.

[¶2] Arabian Sea is a very busy sea route used for carrying of goods. Dilica situated at its
shores have many fishermen and their families’ dependent on the earnings from the sea. A
ship registered under the country USB; named Laviathan passes through Arabian Sea nearby
Dilica carrying oil and gas tankers. The ship entered the Territorial waters of Indica out of
ignorance and deviation, where fishermen use to carry out their day to day activities. Out of
confusion the crewmembers shot fishermen thinking them to be pirates which injured two
fishermen. During this process few containers of oil and gases falls into the water leading
to spill of oil into water and leakage of gas into atmosphere affecting the atmosphere of
shores of Dilica which further led to the death of many aquatic animals and illness of many
people due to air pollution.

[¶3] The Indican authorities seized the ship and arrested Antanio, Andreas and Jack out of
10 crew members the rest 7 somehow managed to flee back to USB; the crewmember
shooting also fled. In Dilica the drinking water is contaminated and air quality has dropped
to toxic level. Ms. Maya, the director of Green Warriors which is a NGO dedicated towards
environmental protection, after this incident in Dilica sends a report on pollution to Govt.
of Indica for taking strong action against all the crew members.
[¶4] USB and Indica are friendly countries and both are dedicated towards the fight against
the pollution. The relations have turned tensed as USB is demanding the release of its
citizens and Indica, and Indica, the fled crewmembers. Due to delay in action for safety of
people of Dilica by the Govt. of Indica, a huge protest procession has been launched by Ms.
Maya. There is a huge pressure on the Govt. of Indica to bring back the fled crewmembers
for the compliance of criminal liability and accountability and Constitutional liability at the
same time they have to maintain relations with USB as it is a big investor in Indica.

[¶5] USB to protect the interest of its citizens in Indica hires a lawyer John Wick from Indica
and filed a petition in HC of Dilica. A suit was also filed by Green Warriors in the SC of
Indica against the Govt. of Indica. The Hon’ble HC convicted the three arrested crew
members, aggrieved by the decision John Wick moved to SC of Indica. The Hon’ble SC
clubbed the cases and matter is pending for hearing.
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S TATEMENT OF ISSUES

1. THAT THE SUITS FILED BY THE PETITIONERS ARE

MAINTAINABLE.
2. THAT THE POLLUTION OF WATER AND AIR LEADS TO GROSS
VIOLATION OF BASIC RIGHT OF HEALTHY ENVIRONMENT AND
NEEDS IMMEDIATE ACTION.
3. THAT THE ACTION OF CREWMEMBERS WAS NOT INTENTIONAL
RATHER IT WAS ALL OUT OF MISTAKE OF FACT.
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It is humbly submitted by the counsels before the Hon’ble Supreme Court that the
petitions filed are maintainable as there is violation of fundamental rights enshrined
under Part III of the Const. of Indica. It is further submitted that in the instant case there
is a violation of human rights and right to clean and healthy environment of the citizens
due to government’s
Further due to government’s “Two Child Ordinance” right to privacy, reproductive
health and personal space of the citizens are violated which are some of the ingredients
of Art.21.

[1] THAT THE “STYLE TEMPERATURE FRIENDLY CAPITAL” CITY

PROJECT VIOLATES HUMAN RIGHTS OF CITIZENS AND CAUSES
ENVIRONMENTAL DEGRADATION.

It is humbly submitted by the counsels before the Hon’ble Supreme Court that clean and
healthy environment is one of the most basic human rights and State is under obligation to
protect such rights. The “Style Temperature Friendly Capital” city project to be implemented
in Vedder seems an unplanned project which is not at all nature friendly and causes a severe
environmental degradation. The project focuses on the development of the elite and urban
rich alone, to make their lives comfortable but ignores large masses, as a whole it has a
hazardous affect on the ecological balance which is contrary to the concept of sustainable
growth. The project in question neither drives economic growth nor it improves the quality
of life of people rather it causes a paradigm shift in ecological set-up.

[2] THAT THE “TWO CHILD ORDINANCE” IS ULTRA VIRES THE ARTICLE
14, 19 AND 21 OF THE CONSTITUTION OF TYLER.

It is humbly submitted by the counsels before the Hon’ble Supreme Court that “TWO CHILD
ORDINANCE” stands in direct conflict with Art.14, 19 & 21 of the Const. of Tyler. It
abrogates citizen’s right to reproductive health, privacy and personal space by the way of its
arbitrary action. The bodies against which such rights are supposed to be enforced are prima
facie discriminating among two groups of people and takes away the rights having sacrosanct
character, directly infringing life, liberty and dignity of individuals. Thus the ordinance acts
to the prejudice of a person and defies the very idea of welfare and justice.
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ARGUMENTS ADVANCED

MOST HUMBLY SUBMITTED THAT:-

1. THAT THE SUITS FILED BY THE PETITIONERS ARE

MAINTAINABLE.
[¶1] It is humbly submitted that maintainability of a petition for enforcement of fundamental
rights can be questioned only on the ground of laches, where disputed questions of facts are
involved. None of the exceptions mentioned above exists in the present case. The petitions have
been filed in time, questions of facts are not involved and fundamental rights are sought to be
enforced. In this regard it is humbly submitted that the violation of the fundamental rights is a
ground for maintainability [1.1] and secondly alternative remedy does not bar the issuance of
petition under Article 32 and Article 134 [1.2]

[1.1] Violation of fundamental rights is a ground for maintainability

[¶2] A petition can be filed under Article 32 of the Const. for enforcement of Fundamental
Rights1, as guaranteed by Part III of the Const.2. There is a right to move the SC, by appropriate
proceedings, for the enforcement of the Fundamental Rights enumerated in the Const.3. Right
to access to the SC is a fundamental right.4 The SC of Indica is the protector and guarantor of
the Fundamental Rights and play the role of a ‘sentinel on the qui vive’ and they must always
regard it as their solemn duty to protect the said Fundamental Rights ‘zealously and vigilantly’.5
In this regard, it is further submitted that the right to live in an unpolluted environment of
resident of Dilica has been violated by the Government’s delayed action [1.1.1] and right to
life and personal liberty of Antonio, Andreas and Jack has been violated by Hon’ble High
Court’s decision [1.1.2].
[1.1.1] Right to live in an unpolluted environment been violated by Government’s delayed
action.

1
M.P. JAIN, INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS, 7 TH EDITION, PAGE. NO.-1370
2
Andhra Industrial Works v. Chief Controller of Imports and Ors A.I.R 1974 SC 1539 ¶ 10; Guruvayur
Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ¶ 50; BALCO Employees Union
(Regd.) v. Union of India (2002) 2 SCC 333.
3
INDIAN CONSTITUTION Art. 32(1); see also, M.P. JAIN, INDIAN CONSTITUTIONAL LAW, LEXIS
NEXIS, 7TH EDITION, PAGE. NO.-1353.
4
State of Madras v. V.G Row, A.I.R. 1952 S.C. 196.
5
Prem Chand Garg v. Excise Commissioner, U.P., A.I.R. 1963 S.C. 996.
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[¶3] It is humbly submitted that the Right to life in Art. 21 “embraces not only physical
existence of life but also the quality of life”.6 Right to unpolluted environment and preservation
and protection of nature’s gifts has also been conceded under Art 21. 7 This right encompasses
wide variety of many other rights such as protection of flora and fauna, unpolluted air, water
8
pollution, maintenance of ecological balance and sustainable development. Hygienic
environment is an integral facet of healthy life. Any disturbance of the basic environment
element, namely, air, water and soil, which are necessary for ‘life’ would be hazardous to ‘life’
within the meaning of Art. 21 of the Const. Right to live with a human dignity becomes illusory
in the absence of humane and healthy environment.9
[¶4] In the instant case, the government is not taking an immediate action for the safety of
people of Dilica from polluted water and air which leads to the death of many aquatic animals
and illness of many people in Dilica. This also leads to violation of human rights and rights of
aquatic life.

violation of human rights and a paradigm shift in the ecological balance leading towards
environment degradation. Further due to principle of butterfly effect and as per the report10 the
project will decrease the green cover of the city by 25% and vide the exploitation of natural
resources, which is a sheer violation of fundamental right to live in unpolluted environment,
right to preservation and protection of nature’s gift under Art. 21 of the Const. of Tyler.
Therefore the present PIL is maintainable under Art. 32 of the Constitution of Tyler.
[1.1.2] Right to equality, reproductive health, privacy and personal space of citizens of the
Tyler infringed by the government’s “Two Child Ordinance”.
[¶5] It is humbly submitted that the right to privacy is implicit in the right to life and liberty
guaranteed under Art. 21 of the const. of the Tyler.11 A citizen has a right to safeguard the
privacy of his family, marriage, procreation, child bearing and education among other matters.12
It is further submitted that right to equality is enshrined under Art. 14 of the Const. of Tyler

6
State of Himachal Pradesh v. Umed Ram, A.I.R 1986 S.C. 847.
7
Damodar Rao v. S.D. Municipal Corporation, A.I.R 1987 S.C. 2486.
8
T. Damodhar Rao v. Municipal Corporation, Hyderabad, A.I.R 1987 AP 171; Rural Litigation and Entitlement
Kendra v. State of U.P., 1987 Supp SCC 487: AIR 1987 SC 2426; Chhetriya Pardushan Mukti Sangharsh Samiti
v. State of U.P.,(1990) 4 SCC449, 452: AIR1990 SC 2060, 2062; PROF. V.N. SHUKLA, CONSTITUTION OF
INDIA, EASTERN BOOK COMPANY, 13TH EDITION, REPRINTED 2015, PAGE 21
9
State Of M.P vs Kedia Leather & Liquor Ltd. & Ors, (2003) 7 SCC 389: AIR 2003 SC 727.
10
Tylerian Environmental Society
11
R. Rajgopal v. State of Tamil Nadu, A.I.R 1995 SC 264: (1994) 6 SCC 632.
12
M.P. JAIN, INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS, 7 TH EDITION, PAGE. NO.- 1169
 P a g e | 14

which bars discrimination and prohibits discriminatory laws 13 . Art. 14 enacts primarily a
guarantee against arbitrariness and inhibits state action, whether legislative or executive14.
Every state action must be non-arbitrary and reasonable and hence the government’s “Two
Child Ordinance”, which is not in compliance with fundamental rights is unconstitutional.
[¶6] In the instant case, it is pertinent to note that Tyler government’s “Two Child Ordinance”
restricts couples in the country to procreate a maximum of two children and if any person
infringes the said direction of law, he/she shall not be entitled to any benefit under any existent
welfare scheme of the government, which violates Art. 21 as it infringes the right to
reproductive health, privacy and personal space of its citizens and is violation of Art. 14 as it
is discriminatory to those parents who will have more than two children. Therefore it is humbly
submitted that the “Two Child Ordinance” violates the fundamental rights of citizens of Tyler
and hence the present PIL is maintainable under Art. 32 of the Const. of Tyler.

[1.2] Alternative remedy does not bar issue of writ under Article 32.
[¶7] When a breach of fundamental right is made in the petition, the provisions of other
remedies do not stand in the way of exercising power under Art. 3215 of the Const. of Tyler. It
is wholly erroneous to assume that before the jurisdiction of the SC could be invoked, the
applicant must either establish that he has no other remedy adequate or otherwise or that he has
exhausted such remedies as the law affords and has yet not obtained proper redress, for when
once it is proved to the satisfaction of the SC that by state action the fundamental right of a
petitioner under Art.32 has been infringed, it is not only the right but also the duty of the SC to
afford him, by passing appropriate order in that behalf.16 The mere existence of an adequate
alternative legal remedy cannot per se be a good and sufficient ground for throwing out a
petition under Art.32 if the existence of a fundamental right and breach, actual or threatened,
of such right is alleged and prima facie established on the petition.17

[2] THAT THE “STYLE TEMPERATURE FRIENDLY CAPITAL” CITY

PROJECT VIOLATES HUMAN RIGHTS OF CITIZENS AND CAUSES
ENVIRONMENTAL DEGRADATION.

13
Renu & Ors vs District & Sess.Judge Tishazri, CIVIL APPEAL NO. 979 OF 2014 (Arising out of SLP (C)
No. 26090 of 2011).
14
Bachan Singh vs State Of Punjab, A.I.R 1982 SC 1336.
15
Coffee Board v. Jt. Commercial Tax Officer, A.I.R. 1971 S.C. 870.
16
KharakSingh v. State of U.P., A.I.R. 1963 S.C. 1295.
17
KK Kochunni v. State of Madras, A.I.R. 1959 S.C.725.
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[¶8] The State of Tyler being a democratic, secular and socialist country, clearly enshrined in
its preamble, guarantees certain fundamental rights to its individual18 and Art. 13(1) and (2)
defines that law inconsistent or contrary to the fundamental right pro tanto void would not, by
itself, prevents “the state” from violating fundamental rights.19 Here in the instant petition it is
humbly submitted that right to live in clean environment is Fundamental right under Art 21 of
the constitution of Tyler as well as an important human rights under international conventions
[2.1] and it is the state’s failure for non-protection of ecological balance that leads
environmental degradation [2.2].

[2.1] Right to live in clean environment is Fundamental right as well as an important

human rights under international conventions.

[¶9] As State of Tyler is a democratic country20, fundamental rights are sine qua non for every
citizens. The counsel humbly submits that in the case of Samatha v. State of A.P.21 the Court
held that the right to health, education, pollution-free atmosphere22, potable water, etc. were,
along with all the basic human rights declared under the UDHR and thus are an integral part of
right to life under Article 21 and other fundamental rights provided in Part III of the
Constitution. In this regard it is humbly submitted that right to live in a clean environment is
sine qua non for secured and healthy life [2.1.1] and right to live in clean environment is a basic
human rights under many international conventions and is violated [2.1.2].

[2.1.1] Right to live in a clean environment is sine qua non for dignified life.
[¶10] It is humbly submitted that the hon’ble Supreme Court in Rural Litigation and
Entitlement Kendra, Dehradun vs. State of UP23, held that right to wholesome environment is
a part of Art. 21 of the Const., which enshrines right to life and liberty to the individual to live
in a healthy environment. Further in Subhash Kuimar v. State of UP, the Court reasoned that
life in its proper dimension could not be enjoyed unless the ecological balance and the purity
of air and water were preserved24 and Court expressly stated that any action that would cause
environmental, ecological, air, water pollution, etc., should be regarded as amounting to a

18
INDIA CONST. part 3.
19
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 350 (4th ed. 1967).
20
Since Para matria with the Indian constitution
21
A.I.R 1997 SC 3297
22
Charan Lal Sahu v. Union of India A.I.R 1990 SC 1480, p. 717.
23
A.I.R 1985 SC 652
24
J.T. 1991 (1) S.C. 538
 P a g e | 16

violation of Art 21. The State have to protect and preserve the ecology25, environmental and
safeguarding of wildlife 26 and utilities, serving public interest and human safety should be
balanced.27 Hence right to live in a clean environment is sine qua non for dignified life.

[¶11] In the instant case the dignity (security and healthy life) of the people have been
compromised as the exploitation of natural resources like water, LPG and green cover etc., for
implementing the project, would cause disturbance to environment. Also according to the
report28 it has been stated that the project poses a serious impediment to the green growth of
the nation with estimated loss of 7.5 billion dollars to the overall economy as a result of
exploitation of natural resources.
[2.1.2] Right to live in clean environment is basic human rights under many
international conventions and is violated.

[¶12] Man has the fundamental right to adequate conditions of life, in an environment of such
a quality that permits a life of dignity and well-being.27 The counsel humbly submits the case
of PUCL Vs. UOI30 in which the hon’ble Supreme Court held that the provision of the
international covenant which elucidate and go to effectuate the fundamental rights guaranteed
by our constitutions, can certainly be relied upon by courts as facets of those fundamental rights
and hence, enforceable as such. The UN charter proclaims that Nature shall be respected and
must maintain the stability and quality of nature.31 In another case Vellore citizen‘s welfare
forum Vs. UOI32, the SC held that it is almost an accepted proposition of law that the rules of
customary international law which are not contrary to the municipal law shall be deemed to
have been incorporated in the domestic law and shall be followed by the courts of law. In this
regard it is submitted that Sustainable Development concept has not been followed [2.1.2.1]
and relocation of industries would cause harm to the environment of new location [2.1.2.2].
[2.1.2.1] Sustainable Development concept has not been followed.

25
Jona Razzaque, 2004, p. 15, Public Interest Environmental Litigation in India, Pakistan and Bangladesh,
Kluwer Law International.
26
Mamta Rao, (2002), p. 177, Public Interest Litigation, Legal Aid and Lok Adalats, Eastern Book Company. 27
S.K. Sarkar, (2005), p. 903, Public Interest Litigations and Public Nuisances, Orient Publishing Company;
Fertilizers and Chemicals Travancore Ltd. Employees Association vs. Law Society of India; A.I.R 2004 SC 2663.
28
Centre for Environment Education along with an independent think-tank named we for Nature “Environment
sustainability and Economic growth”, para 11 moot problem
27
Principle 1 of the Stockholm Declaration established a foundation for linking human rights, health, and
environmental protection and declares 30 A.I.R. 1997 S.C. 568. 31The U.N General Assembly on October 1982
“World Charter for Nature”. 32 (1997) 3 S.C.C 433 at 422.
 P a g e | 17

[¶13] It is humbly submitted that the sustainable development being a fundamental right 28,
means development that meets the need of the present without compromising the ability of
future generation.29 The Integrated structure of sustainable development is such that it requires
support of each pillars i.e. international environmental law, international human rights law and
international economic law. But its central pillar is international environmental law that is a
reflection of sustainable development. 30 Human beings are at the center of concern for
sustainable development and that they are entitled to a healthy and productive life in harmony
with nature31. In order to achieve Sustainable Development, environmental protection shall
constitute an integral part of the development process and cannot be considered in isolation
from it32 and the principle of intergenerational equity suggests to “protect the climate system
for the benefit of present and future generations of humankind, on the basis of equity and in
accordance with their common but differentiated responsibilities and respective capabilities”.33
[¶14] The council hereby further submits that the SC incorporated Sustainable development
and gives due importance to international conventions34 and stated that the balance between
environment protection and development activities could only be maintained by strict
compliance of the principle of Sustainable Development35 and in Vellore Citizens Welfare 36
case restricted the tanneries in TN, despite that they were major source of foreign revenue as
well as providing employment; since tanneries causes much damage and degradation towards
ecology and environment. The SC in MC Mehta vs. Union of India37 clarified that it is not
always necessary that there should be direct evidence of harm to the environment. So to protect
and improve living conditions and quality of life Sustainable development is necessary but not
followed here in the instant case.

28
ND Jayal vs. Union of India, A.I.R 2004 SC1 (supp) 867.
29
The Report of The World Commission On Environment Development (WCED), Our Common Future (The
Brundtland Report, 1987).
30
Dominic Mcgoldrick, Sustainable Development and Human Rights: An Integrated Conception, British Institute
Of International and Comparative Law, Cambridge University Press.
31
Principle 1 Of The UN Conference On Environment And Development's Rio Declaration; See Also The
Stockholm Declaration (1972), Principle.
32
Principle 4 of The Rio Declaration.
33
Understanding Human Rights and Climate Change, Submission of the Office of the High Commissioner for
Human Rights to the 21st Conference of the Parties to the UN Framework Convention on Climate Change.
34
Apparel Export Promotion Council Vs. A.K.Chopra (1999(1)SCC 759)
35
Vellore Citizens Welfare Vs. Union Of India, (1996) 5 S.C.C 647; M.C. Mehta Vs. Union Of India, (2002) 4
S.C.C 3533
36
Ibid. 39
37
A.I.R 2004 SC 4033
 P a g e | 18

[¶15] It is humbly submitted that in the instant case the Project is not based on the concept of
sustainable development. The project estimated loss as per as report38 is of 7.5 billion dollar,
as a result of exploitation of natural resources in which the loss because of relocation of

Business operation39 does not apply. The estimated increase in city’s GDO would be a minimal
of 0.55%40 which is in comparison of loss of 25% green area, is very low. As the Vedder is
economic and industrial hub41, there relocation would produce further loss in economy as a
consequences of unemployment. Whereas the claim of creating 14000 new jobs and the
mitigation of loss of 30 million USD within two years as stated in report of EIA has been rated
as fallacious and undervalued 42 by the environmental experts and hence UN sustainable
development goals cannot be achieved in this way.
[2.1.2.2] Relocation of industries would cause harm in the environment
of new location
[¶16] It is humbly submitted that Development does not mean development of the elite and
urban rich alone, but also of the masses – people living in the villages, mountains hills, forests,
slums, and also in coastal regions.43 Haphazard and unplanned development with scant regard
to the aspirations of people living in these areas is not conductive for a viable economic
growth.44 The counsel further submits that the use of agricultural lands for non-agricultural
purposes is environmentally harmful as the use of forest for non-forest purposes and it also
affects food security.45 The hon’ble Supreme Court in M.C. Mehta vs. UOI46 laid down that no
Brick kiln is normally permitted in agricultural land, if the land is less than one hectare and in
case if it is more than one hectare than only a fraction of land have to be used.
[¶17] In the instant case it is pertinent to note that the project is a city project47 which seems
like an unplanned project from the States directives itself. The issuance of directives to the
industries to relocate to hilly areas 48 would affect the rights of people to live in healthy
environment since the industries are shifting to agricultural lands and even if it is not in use

38
Report Titled, “Environment Sustainability And Economic Growth”; Moot Problem Para 11
39
Relocation From Vedder To Baspa; Moot Problem Para 8
40
The Confederation Of Tyler Industries In Its Report Titled, “Business Outlook Survey”; Moot Problem Para7
41
Moot Problem Para 4
42
Moot problem Para 11
43
P. Leelakrishnan, Environmental Law in India, 3 rd Edition, Reprint 2012, LexisNexis, pg. 115
44
Ibid 47
45
Ibid 47, pg. 126
46
AIR 2000 SC 3052
47
Moot problem, Para 5
48
Ibid 38
 P a g e | 19

what is needed is the implementation of schemes of particular region for improving the quality
of agricultural production49 rather to make them unfertile for forever.
[2.2.] It is the state’s failure for non-protection of ecological balance that leads
environmental degradation.
[¶18] As the state of Tyler is a developing nation which possess a great wealth of natural
resources and cultural diversity and a connection of local masses with nature it is the duty50 of
state to protect and improve the environment and to safeguard the forests and wildlife of the
country. However in the instant case the matter is not to the extent of mere a duty of state rather
there is a compulsion to the state to protect Article 21 as it embraces the protection and
preservation of nature’s gift without which life cannot be enjoyed.51 The State henceforth is in
such a position that it must promote the laws related to the protection of Environmental but the
State in this case itself violating the same.

[¶19] The counsel humbly submits the Sariska Bioreserve case, the SC expressed its anguish
against damage done to the environment, ecology and wildlife by mining activities in the
protected forest areas 52 and hence Court prohibited all mining activities within the Sariska
National Park. In an effort to further define what constitutes an environmental case, in Virendra
Gaur v. State of Haryana, the SC observed that the word 'environment' is of broad spectrum
which brings within its ambit, 'hygienic atmosphere and ecological balance.' Environmental
protection, therefore, has now become a matter of grave concern for human existence.
Promoting environmental protection implies maintenance of the environment as a whole
comprising the man-made and the natural environment."53

[¶20] Environmental damage is a continuous process which is shown in case of the horrific
tragedy of the Bhopal Gas Leakage54, the adverse effects of asbestosis, radiation exposure,
climate change, desertification, loss of biodiversity, etc., could take more and more years to
manifest itself. The new law needs to take cognizance of this issue of public health and safety
of the citizens, and the long term environment damage.55 In this regard it is submitted that

49
Ibid 34 pg. 119
50
Article 48-A, Constitution of India
51
Ratlam Municipality vs. Vardichand, A.I.R 1980 SC1622
52
Tarun Bharat Sangh, Alwar v. Union of India, A.I.R. 1992 S.C. 514; A.I.R. 1993 S.C. 293 (the main two
orders passed in this case).
53
Virendra Gaur v. State of Haryana, (1995) 2 S.C.C. 577 (India).
54
Union Carbide Corporation vs. Union of India, A.I.R 1990 273
55
Bharat H. Desai and Balraf Sidhu, On The Quest For Green Courts In India; HeinOnline
 P a g e | 20

Project affects the biodiversity [2.2.1] and vide exploitation of natural resources cause a shift
in ecological balance [2.2.2]
[2.2.1] Project affects the biodiversity

[¶21] It is humbly submitted that the linkage between conservation of biodiversity (wildlife,
forests and other creatures) and ecological stability is the future direction in which
environmental law have to proceed.56 The right to safeguard forests and wildlife57 has received
constitutional sanction and, in order to maintain ecological stability and it could not be afford
to allow any further shrinkage in the national forest cover and also the present generation has
no right to deplete all the existing forests and leave nothing for the next generation.63 The
massive development projects leading to socio-economic transformation result in depletion of
vast resources i.e. flora and fauna.58 In this regard it is submitted that Project affects the green
cover of the city [2.2.1.1] and project affects the rights of fauna family [2.2.1.2]
[2.2.1.1] Project affects green cover (flora) of the city.

[¶22] It is humbly submitted that a forests are 'lungs' or oxygen factories which sustain life59
and it means a large area where trees grow close together60 or a large area of land that is thickly
covered with trees 61 according to the its dictionary meaning. The hon’ble Supreme Court
observed that the word Forest must be understood according to the dictionary meaning62 and it
must be applied to all forests whether designated as reserved, protected or otherwise for the
purpose of Section 2 (1) of the Forest Conservation Act. 63 It is further submitted that the
acquisition of land for development must take place only if it will not gravely impair ecology
and environment.64 The use of forest land for non-forest purpose was clearly denied by the
court in the case of State of Bihar v. Banshi Ram Modi71 as it have crucial role in climate change
adaptation efforts by absorbing CO2 which is essential for mitigating the climate change.65

56
G.S. Tiwari, Conservation Of Biodiversity And Techniques of People's Activism, Journal of the Indian Law
Institute, Vol. 43, No. 2 (April-June 2001), pp. 191-220
57
Animal and Environment Legal Defence Fund vs. Union of India, JT 1997 (3) SC 298. 63
State of Himachal Pradesh v. Ganesh Wood Products, A.I.R. 1996 149, S.C.C.(6) 363.
58
Ibid 53
59
Wounded Nature vs. Human Future; V.R. Krishna lyer, Pg. 236
60
Collins English Dictionary
61
Oxford English Dictionary
62
IT.N. Godavarman Thirumulkpad vs. Union of India (1997) 2 SCC 267
63
V.M. Jayashankar vs. The Secretary To The Government of Tamil Nadu 1 August, 2014
64
Karnataka Industrial Areas Development board vs. C Kenchappa, 2006 AIRSCW 2547 71
A.I.R 1985 SC 814
65
http://www.iucn.org/resources/issues-briefs/deforestation-and-forest-degradation 73
Moot problem Para 5
 P a g e | 21

[¶23] In the instant case it is pertinent to note that the green cover or the forest area is being
decreased by 25% (7000 trees approximately) which is a large harm to the ecology in itself and
it would be larger and larger as a consequences of butterfly effect with it. Such loss of green
result in less oxygen and more carbon dioxide in atmosphere which will again increase the
temperature of Vedder as a result of its nature of absorbing sunlight and will impair the ecology.
The global and national commitment to tackle rise in global temperature73 cannot be possible
to achieve through deforestation66 since the two effect neutralize each other and Vedder is a
fastest growing city with 18% of population of Tyler67 so, the serve impact of it would be on
large number and as it is for non-forest purpose so it would cause soil erosion and less rainfall
harmful68 and therefore project is violating the Right of citizens to live in decent environment.

[2.2.1.2] project affects the rights of fauna family.

[¶24] It is humbly submitted that Wildlife means wild animals collectively 69 or literally
animals, birds, insects, etc. that are wild and live in a natural environment. 70 In GR Simon vs.
UOI79 the court observed that wildlife forms part of cultural heritage in the same manner as
other archaeological monument, paintings, literature etc. Each and every animals plays a role
in maintaining the ecological balance and, it is to be recognized that wildlife is an asset and
heritage to be preserved for future generation. In State of Bihar v. Murad Ali Khan71 the court
observed, that the state to which the ecological imbalance and consequent environmental
damage have reached, is so alarming that unless immediate, determined and effective steps
were taken, the damage might become irreversible. In a very famous Sachidanand Pandey
case72 Supreme Court said ". . . we are part of the earth and it is part of us. The perfumed
flowers are our sisters; the horse, the great eagle, these are our brothers. The rocky crusts, the
juices in the meadows, the body heat of the pony, and man all belong to the same family."

[¶25] In the instant case it is pertinent to note that due to butterfly effect, the loss of green cover
by 25% further affects the fauna family of the wildlife. Consequently the migratory patterns of

66
Deforestation, which causes 20 per cent of all greenhouse gas emissions, Anup Shah, ―Climate Change and
Global Warming, Global Issues‖, Bali Climate Conference, 1 Jan 2008.
67
Moot Problem Para 4
68
P. Leelakrishnan, Environmental Law in India, 3rd Edition, Reprint 2012, LexisNexis
69
Illustrated Oxford Dictionary, First Indian Edition (2006); Pg. 954
70
Oxford Advanced Learner's Dictionary of Current English, Sixth Edition (2000); Pg. 1481 79
A.I.R1997 Del 301
71
A.I.R 1989 SC 1
72
Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109 82
Moot Problem Para 14
 P a g e | 22

the species of the wildlife and its surroundings area would adversely affect82 and it would
further affect breeding of species and hence threatening of their number or may be extinction.
It would lead to disturbances in the food chain of species and due to lake of sufficient place the
possibility of moving of the species to the city areas would also enhanced and risk on life of
species and humans. The project in this way is not based on public interest or public health
rather making such a situation that the ecological imbalance would be created in the City.
[2.2.2] vide exploitation of natural resources cause a shift in ecological balance.

[¶26] It is humbly submitted that the natural resources present in the nation are actually free
gift 73 of nature to the nation and growth of the nation would be possible only through the
utilization of the resource but should be to such extent that it doesn’t become exploitation. The
air, water and soil cannot be utilized, if the utilization results in irreversible damage to
environment74 and most of resources are limited in nature that takes millions of years in its
formations. It is further submitted that The SC in the case of State of TN v. M/s. Hind Stone75
etc. have held that Rivers, Forests, Minerals and such other resources constitute a nation's
wealth and are permanent assets of mankind and not to be exhausted in one generation for
76
interest of nation. The public trust doctrine enjoins upon the government and its
instrumentalities to protect the resources for the enjoyment of the general public.87
[¶27] In the instant case it is pertinent to note that approximately all the natural resources are
used by the State in a way of exploitation of resources. The Project requires river water, LPG77,
25% green cover followed by disturbances in wildlife, and lots of materials in making of glass
domes89 in the entire city. The solar panels would be require in large number whose operating
life is just 20 to 30 years and contain lead, cadmiums and other toxic chemicals and is difficult
to dispose of after its expiry.78 Limited and non-renewable natural resources, would certainly
cause imbalance hence the Environmental degradation. The government Project in this way is
a failure decision without proper precautions and planning which causes irreversible change as
well and henceforth the State is unable to maintain Public Trust doctrine in this case.

73
M.Velu v. The State Of Tamil Nadu on 19 March, 2010
74
M.C. Mehta Vs. Union of India, (2004) 12 SCC 118
75
A.I.R 1981 SC (1) 711
76
Naveen Chandra Pant And Another vs. State Of Uttarakhand And Others on 28 March, 2017 87
Karnataka Industrial Areas Development Board vs. C. Kenchappa,(2006) 6 SCC 371.
77
Moot Problem Para 10 89
Moot Problem Para 7
78
http://www.instituteforenergyresearch.org/renewable/solar/the-mounting-solar-panel-waste-problem/ ; based
on International renewable energy Agency
 P a g e | 23

3. THAT THE “TWO CHILD ORDINANCE IS ULTRA VIRES THE ARTICLE 14, 19
AND 21 OF THE CONSTITUTION OF TYLER.

[¶28] The rights enshrined in Part III of the Const. of Tyler are equally concerned with human
rights and dignity79. Art. 13 of the Const. of Tyler prohibits the state from making a law which
either takes away totally or abrogates in part a fundamental right80.The SC in Indira Nehru
Gandhi v. Raj Narain8193 also held that any law which is inconsistent with the scheme of the

Constitution is irrational and therefore ‘arbitrary’. The object of the Const. has been to place
citizens at a center stage and make the state accountable82. Here in the instant petition it is
humbly submitted that the Ordinance violates the fundamental rights of the citizens of Tyler
[3.1] and the Ordinance deprives the access to justice [3.2].
[3.1] The Ordinance violates the fundamental rights of the citizens of
Tyler. [¶29] The counsel humbly submits that due to diversity in religion, culture, caste,
language etc. fundamental rights are added into the Const. of Tyler to give its people a
sense of security and confidence, which may be enforced against the government95. This
part provides conditions for fuller development of our people including their individual
dignity83. No law which is unreasonable and arbitrary to this part of the Const. shall be
valid. In the instant case the ordinance is ultra vires the provisions of this part of the
Const. it seems that the executive body prima facie trying to interfere the matters of
utmost importance and that carry a sacrosanct character with them. Further it is
submitted that the classification made by the ordinance is not based on intelligible
differentia [3.1.1] and the ordinance affects right to life and liberty of individuals
[3.1.2].
[3.1.1] The classification made by the ordinance is not based on intelligible
differentia.

79
; V.N.SHUKLA, CONSTITUTION OF INDIA,13TH ED., PG-24
80
State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal, AIR 2010 SC
1476(1490): 2010 A.I.R SCW 1829: 2010(3) S.C.C 571: 2010 (2) SCALE 467.
81
Supp S.C.C 1: A.I.R 1975 SC 2299
82
People’s Union for Civil Liberties v. UOI,(2005)2 SCC 436 2005) 1 JT 283 95
M.P.JAIN, INDIAN CONSTITUTIONAL LAW, EIGHTH ED., PG. 878
83
Society for Unaided Private Schools of Rajasthan v. UOI, (2012) 6 S.C.C 1 (32): A.I.R 2012 SC 3445. 97
His Holiness Kesavananda Bharti v. State of Kerala (1973) 4 S.C.C. 225; Minerva Mills Ltd. &Ors vs Union
of India &Ors1981 S.C.R. (1) 206.
 P a g e | 24

[¶30] The principle of supremacy of law place checks and balances over the government
functions on making and administering law, the principle of equality before the law ensures
that procedure by which laws are administered are just, fair and equitable. Equality is the basic
feature of the Const.97 and the guarantee of “equal protection of laws” requires equal treatment
of persons who are similarly situated, without discrimination inter se. In E. P. Royappa v. State
of TN84 the SC held that arbitrary or unfair actions necessarily run counter to Art.14 and these
actions which are unreasonable 85 . In addition, Art.14 also requires that the state action be
reasonable, fair86 and guided by public interest101. The object of classification cannot be any
object; it must be lawful87, based on intelligible differentia and the differentia must have a
rational relation with the object sought to be achieved88 by the statute in question.
[¶31] It is further submitted that the classification made by the ordinance in question in its Sec8
acts against very basis of fairness, non-arbitrariness and equality. It classifies the people into
two, based on the number of children procreated. One, procreating maximum of two children,
are entitled to avail benefits under government’s welfare schemes while the other procreating
more than two children are debarred from such benefits. There should be no discrimination
between one person & another if as regards the subject-matter of the legislation their position
is the same89. In this regard Ray CJ argues that “the activities of government have a public
element and therefore, fairness and equality must be observed in their exercise. The
government, unlike an ordinary individual, cannot choose to exclude persons by
discrimination”90.Thus the ordinance prima facie acts to the prejudice of a person hence ultra
vires the Art.14.
[3.1.2] The ordinance affects right to life and liberty of individuals.
[¶32] The right to life and liberty embraces not only physical existence but also the quality of
life106 and dignity107 which encompasses wide variety of many other rights. The term ‘liberty’

84
E. P. Royappa v. State Of Tamil Nadu & Anr, A.I.R 1974 S.C. 555.
85
M/S Sharma Transport v. Government of Andhra Pradesh, A.I.R. 2002 S.C. 322; Sube Singh v. State of
Haryana, (2001) 7 S.C.C. 545
86
Mahesh Chandra v. Regional Manager, U.P. Financial Corporation, A.I.R. 1993 S.C. 935. 101
Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, A.I.R 1980 S.C.1992.
87
V.N.SHUKLA, CONSTITUTION OF INDIA; 13TH ED PG. 53
88
Kallakkurichi Taluk Retired Officials Assn. v. State of T.N.,(2013)2 SCC 772,794
89
S.B.Trading Co.Ltd. v.Shyamlal Ramchandra , A.I.R 1951 Cal 539
90
Erusian Equipment & Chemicals Ltd. V. State of W.B, (1975) 1 SCC 70: A.I.R 1975 SC 266
106
State of H.P. v. Umed Ram Sharma,(1986)2 SCC 75 107 Kharak Singh v. State of U.P
A.I.R.1964 (1) SCR 332.
 P a g e | 25

takes in all the freedoms that a human being is expected to have91 which are essential to make
a person's life meaningful and even State can’t violate it 92 . Article 21 imposes positive
obligation upon the State to ensure that individuals have an opportunity for better enjoyment
of their life and dignity939495. The SC has ruled that this right is essential to an orderly pursuit
of happiness by a free man, deprivation of which is only possible through the procedure
established by law. It is inalienable, most important, human, fundamental, transcendental
right111.
[¶33] Liberty has many aspects, one of them is privacy which means right to live alone. Subba
Rao J. held that right to privacy is an essential ingredient of personal liberty and this right of
an individual is to be free from restrictions and encroachments96. It is humbly submitted that
privacy is the constitutional core of human dignity which includes the preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.
In the instant case the government is trying to intervene the private matters by guiding about
when to produce child and when not, which is prima facie infringing the basic human right
deprives the citizens from access to justice. In R.Rajgopal v. State of T. N.97 the SC held that a
citizen has a right to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child bearing and education among other matters. None can publish anything
concerning the above matters without his consent whether truthful or otherwise and whether
laudatory or critical. If he does so, he would be violating the rights of the person concerned and
would be liable in an action for damages.
[¶34] Further the counsel humbly states the case of Suchitra Srivastava v. Chandigarh
Administration98 in which SC has held that personal liberty in Art.21 includes the right to make
reproductive choice (to produce child or not to produce). In view of this women’s right to
privacy, dignity and bodily integrity should be respected. The ordinance in question prima facie
stands contrary to such rights and liberties. Giving people the means to choose the size of the

91
Munn v. Illinois, 24 L Ed 77:94 US 113(1877)
92
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., W.P. (Civil) No. 494 0f 2012.
93
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors., A.I.R. 1981 S.C. 746;
Vishakha v. State of Rajasthan, A.I.R. 1997 S.C. 3011; D.K Basu v. State of West Bengal, A.I.R. 1997 S.C.
94
; Chairman Railway Board v. Chandrima Das, A.I.R. 2000 S.C. 988; Olga Tellis v Bomaby Municipal
Corporation, A.I.R. 1986 S.C. 180; PUCL v Union of India, A.I.R. 1997 S.C. 568; M.C Mehta v. Union of
India, (2003) 10 S.C.C. 561.
95
INDIAN BAR REV., 100 (1992).
96
Kharak Singh v. State of U.P.,A.I.R 1963 SC 1306
97
(1994)6 SCC 632
98
A.I.R 2010 SC 235
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family is not just a method of keeping population in balance with resources; it is a way of
assuring-especially for women-the basic human rights of self-discrimination. The extent to
which facilities for exercising such choices are made available in itself a measure of nation’s
development. In the same way, enhancing human potential not only promotes development but
helps to ensure the right of all to a full and dignified life.
[¶35] It is also submitted that the government may have adopted other ways for controlling the
vice of overpopulation, restricting one’s choice of procreation shows the arbitrary action on
executive body. While passing such an ordinance principle of natural justice is not followed.
The population can also be controlled by educating the marginalized sections of the society and
providing them with more of contraceptives. Therefore it is submitted that the two child norm
is not a solution and should never be considered as a solution, it infringes right to privacy, right
to reproductive health and personal space of the citizens. The counsel also submits that the
ordinance stands in violation of freedom of speech and expression which is the most important
element of a nation accountable to people. Art.19 of the Const. of Tyler contains basic human
rights which has been also recognized as the natural right. The ordinance arbitrarily denies
benefits to the couple procreating three or more children and infringes people’s freedom of
appeal to reason and right to decline to listen.
[3.2] The Ordinance deprives the access to justice.
[¶36] It is humbly submitted that the access to justice is a core objective of the constitution and
more specifically fundamental rights encroachment on which, makes the contentions of Const.
framers mere promise on paper. In a recent case 99 it was held that access to justice is a
fundamental right guaranteed to citizens in Art.14, 19 and 21 of the Const. and it has been also
observed in plethora of cases100. The government’s authority is derived from the const., all laws
passed must be in line with the provisions of Const. otherwise stands unconstitutional. The
counsel humbly submits that in the instant case there has been a sheer violation of the entire
fundamental rights of the constitutional framework of the country. The state clearly denies its
duties and obligations to safeguard the constitutional mandates along with basic human rights
to assure to its citizens a dignified life.

99
Anita Kushwaha v. Pushap Sudan, Transfer Petition (C) NO. 1343 OF 2008.
100
Tamilnad Mercantile Bank Shareholders Welfare Association v. S.C. Sekar and Others (2009) 2 S.C.C. 784 ;
Madhav Hayawadanrao Hoskot v. State Of Maharashtra (1978) 3 S.C.C. 544 ; Delcourt v. Belgium 1970
E.C.H.R. 1.
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[¶37] It is further submitted that the ordinance in question shall never be allowed to prevail in
a welfare state like Tyler because it defies the very idea of concept of justice. It has many
loopholes. Firstly, it lacks the provision of the third child produced in second delivery as in the
case of twins or triplets and attempts to penalize people by denying basic benefits in
government’s scheme which is again contrary to the object of welfare state. Secondly, this sort
of sanction will affect most of all the poorest and marginalized in our society. Population can
also be controlled by educating such sections and providing them with contraceptives. Thirdly,
in many sections of the society still patriarchy prevails due to lack of awareness and education,
in such societies women are forced to produce boy child, for which they have only two chances,
if failed it can lead to female foeticide and abortions which in turn lead female counterparts to
suffer. The counsel finally submits that the “Two Child Ordinance” is ultra vires the Art.14, 19
and 21 and also infringes many other related rights so it must not come in force. If it comes in
force the very objective of government’s arbitrary action will be achieved. The immediate scrap
of this ordinance is both mandatory and beneficial for whole of the citizens of Tyler.

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare:
1. That the Public Interest Litigations are maintainable.
2. That “Style Temperature Friendly Capital” city project is unconstitutional.
3. That there has been violation of human rights.
4. That “Two Child Ordinance” is unconstitutional.
5. That there has been violation of fundamental right to reproductive health, privacy and
personal space.

AND PASS ANY OTHER ORDER OR DIRECTION THAT THIS HON’BLE

COURT MAY DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.

ALL OF WHICH IS HUMBLY PRAYED,

T-03
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COUNSELS FOR THE PETITIONER

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