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CNLU General Intra Moot Court Competition -2020 P25

BEFORE THE HON’BLE SUPREME COURT OF SINDIA

UNDER ARTICLE 32 OF THE CONSTITUTION OF SINDIA

In the matter of Article 19 and 21 of

Constitution of Sindia
IN THE MATTERS OF:
SAVE BLUE ..............................................................PETITIONER

UNION OF SINDIA ...............................................RESPONDENTS

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE SUPREME COURT OF SINDIA

MEMORANDUM ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

Table of Contents

TABLE OF CONTENTS......................................................................................................................2
LIST OF ABBREVIATIONS................................................................................................................4
INDEX OF AUTHORITIES.................................................................................................................5
STATEMENT OF JURISDICTION......................................................................................................7
STATEMENT OF FACTS....................................................................................................................8
SUMMARY OF ISSUES....................................................................................................................10
SUMMARY OF ARGUMENTS.........................................................................................................11
ISSUE I...........................................................................................................................................11
Whether the PIL filed by “Save Blue” seeking interference of Supreme Court is maintainable.....11
ISSUE II..........................................................................................................................................12
Whether the environment endangering ecosystem is affected by the project of CRZ.....................12
ISSUE III.........................................................................................................................................12
Whether the CRZ is contrary to the native tribal people’s right to livelihood.................................12
ISSUE IV.........................................................................................................................................12
Whether the CRZ giving excessive discretion to the Union of Sindia is ultravires of the parent law
and the Constitution.........................................................................................................................12
ARGUMENTS ADVANCED.............................................................................................................13
I. WHETHER THE PUBLIC INTEREST LITIGATION FILED AGAINST UNION OF SINDIA
MAINTAINABLE..........................................................................................................................13
I.1. Public Interest Litigation can be filed against the Union.........................................................14
I.2. FUNDAMENTAL RIGHTS HAVE BEEN VIOLATED........................................................14
I.2.1. Violations of the Rights of Indigenous People...................................................................14
I.2.2. Violation of the Rights of people of Sabath Island............................................................15
II. WHETHER THE PROJECT UNDER CRZ AFFECTS THE ENVIRONMENT ENDANGERING
ECOSYSTEM.....................................................................................................................................15
II.1. Location of Construction Unit at an improper place....................................................................15
II.1.1. Violation of Coastal Regulation Zone Notification, 2011....................................................15
II. 2. Pollution Caused By EIP Violated Fundamental Rights of People.........................................16
II.2.1. Air Pollution Caused By EIP.............................................................................................16
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II.2.2. Noise Pollution Caused By EIP.........................................................................................16

II.3. Liability of the state for climate change in the Sabath Island..................................................17
II.3.1. Air pollution by Union of Sindia.......................................................................................17
II.3.2. Water pollution by Union of Sindia...................................................................................17
II.4. Damages to be awarded...........................................................................................................17
II.4.1. Non-Compliance of Precautionary Principle:....................................................................17
III. WHETHER THE CRZ IS CONTRARY TO THE NATIVE TRIBAL PEOPLE’S RIGHT TO
LIVELIHOOD.....................................................................................................................................18
III.1. Violation of Article 21............................................................................................................18
III.1.1. They are indigenous people.................................................................................................18
III.2. Violation Of Article 19...........................................................................................................19
IV. WHETHER THE CRZ GIVING EXCESSIVE DISCRETION TO THE UNION OF SINDIA IS
ULTRAVIRES OF THE PARENT LAW AND THE CONSTITUTION...........................................20
I.3. Violation of Fundamental rights................................................................................................22
I.3.1 Violation of Article 21.............................................................................................................22
I.3.2 Violation of Article 19.............................................................................................................23
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LIST OF ABBREVIATIONS

No. NUMBER

UOS UNION OF SINDIA

EIP EMERALD ISLAND PROJECT

SDG SUSTAINABLE DEVELOPMENT GOALS

UNDP UNITED NATION DEVELOPMENT PROJECT

Hon’ble HONOURABLE

I.E. THAT IS

SC SUPREME COURT
VS. VERSUS

ORS OTHERS

UNSC UNITED NATION SECURITY COUNCIL

UT UNION TERRITORY

IRENA INTERNATIONAL RENEWABLE ENERGY AGENCY

CRZ COASTAL REGULATION ZONE

PIL PUBLIC INTEREST REGULATION
UNEP UNITED NATION ENVIROMENT PROGRAM
UDHR UNITED NATIONS DECLARATION ON HUMAN
RIGHT
ICCPR INTERNATIONAL CONVENTION ON CIVIL AND
POLITICAL RIGHTS,1966
ICESCR INTERNATIONAL COVENANT ON ECONOMIC,
SOCIAL AND CULTURAL RIGHTS,1966
ILO INTERNATIONAL LABOUR ORGANISATION

INDEX OF AUTHORITIES
CASES
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1. Wilfred. J vs Ministry of Environment and Forest and

Others(2.09.2016)NGT.............................................................................
2. S. Jagannath v. Union of India and Others, W.P. (C) No. 561 of 1994.........................
3. Kopico Kerela Resorts Pvt Ltd v State of Kerela and others
4. Union Territory of Lakshadweep and others v Seashell beach resorts and
others(11.05.2012)SC..........................................................
5. Goa Foundation v Goa Coastal Zone Managment
Authority(19.03.2012)BOMHC..............................
6. Olga Tellis v. Bombay Municipal Corp, AIR 1986 SC 180.........................................
7. Narayan Dutt Bhatt v Union of India and
Others(04.07.2018)UCHC...................................................
8. Essar Bulk Terminal Limited and others v State of Gujarat and
others(22.02.2018)SC...................................................
9. Kisan Mehta and Others v State of Maharashtra and
others(02.08.2000)BOMHC............................................
10. M.C.Mehta v Union of India and others(13.01.2020) SC................................................
11. Hanuman Laxman Aroskar and others v Union of India and others(29.03.2019)
SC.....................................................
12. Ahmedabad Municipal Corporation Nawab Khan Gulab Khan and others(11.10.1996)
SC.......................................................
13. Narmada Bachao Andolan v Union of India and others(08.02.2017)
SC.....................................................
14. Orissa Mining Corporation Ltd v Ministry of Environment and
others(18.04.2013)SC...................................................
15. A.P. State Fishermen Development and Welfare Association v. District Collector and
Ors, 2010 (2) ALD 300 .............................................................
16. State of Meghalaya and others v All Dimasa Students Union Dimahasao District
Committee and others(3.07.2019)SC.......................................................
17. Bombay Environmental Action Group and others v the state of Mahar and others
(17.09.2018)..........................................................
18. Common Clause and others v Union of India and others (12.08.2017)
19. Blue Mona Developer Private Limited v Kerela Coastal Zone Management
Authority(30.01.2020)NGT
20. Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297.
21. State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit
And Others, Civil Appeal Nos. 104-105 Of 2001
22. Shantistar Builders v. Narayan Khimala Totame, (1990) 1 SCC 520
23. PG Gupta v. State of Gujarat, (1995) 2 SCC 182
24. Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121
25. Andhra Pradesh Pollution Control Board –II v. Prof. MV Mayudu, (2001) 2 SCC 62.
26. Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.
27. Maneka Gandhi v. Union of India. AIR 1978 SC 597.
28. Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
29. Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
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30. Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630.

31. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
32. Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v.
Chairman Jee, (2005) 9 SCC 779.
33. Om Kumar v. Union of India, AIR 2000 SC 3689.

LEGISLATIONS

1. The Constitution of India, 1950

2. Environment Protection Act, 1986
3. Air (Prevention and Control of Pollution) Act, 1981
4. Forest (Conservation) Act, 1980
5. Indian Forest Act, 1927
6. Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forests
Right) Act, 2006.
7. Coastal Regulation Zone Notification, 2011
8. Coastal Regulation Zone Notification, 2018
9. Wildlife Protection Act, 1972
10. Panchayats (Extension to the Scheduled Areas) Act, 1996

CONVENTIONS

1. United Nations Framework Convention on Climate Change, 1992

2. Convention Of International Trade In Endangered Species Of Wild Fauna And
Flora, 1975
3. Convention on Migratory Species, 1983
4. The Indigenous and Tribal Populations Convention, 1957 (ILO Convention 107)
5. The Rio Submit, 1992
6. United Nation Declaration of Human Rights, 1948
7. International Convention on Civil and Political Rights, 1966
8. International Covenant on Economic, Social and Cultural Rights, 1966
9. United Nation Declaration on Indigenous People, 2007

LEGAL DATABASES
1. Manupatra
2. SCC Online

STATEMENT OF JURISDICTION
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The Hon’ble Supreme Court of Sindia has the jurisdiction in this matter under

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

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

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

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

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2) ,
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this constitution

STATEMENT OF FACTS
ABOUT SINDIA
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1. The Union of Sindia is the second largest populated country in the world.17 SDG
were adopted in 2015 and thereby in collaboration with the UNDP 3 projects were
implemented since 2015.The recent World Sustainable Development Summit was
hosted by Sindia .It is also the most anticipating member of reforms in UNSC. In
April 2018, IRENA held a conference in March 2019 under the UNEP, the conference
passed a resolution wherein the countries agreed to increase renewable source of
energy by 2 percent annually nations total energy source. Sindia had internal
problems of excessive energy shortage especially in states where developments and
investments are more. Energy and balanced development is also a determining factor
in the elections. Sindia’s main coastline consists of 6100 km and island coastline
consists of 1197km.Coastline touches 9 states and 4 UTs. Ocean power project was
launched under SDG in the state of Aram. Fishing is an important occupation of
people who are mostly tribals. The coastal belt comprises of wide range of
ecosystems. The country is a preferred beach tourism destination. Tourism marks 9%
of the GDP. Hamantha, a union territory is a small group of islands in Bay of Engal in
east of Sindia. The island has the largest tourism potential, but its distance from the
nation is the hindrance. Illegal migrants, unstable neighbours and natural hazards are
matter of concerns for the island. The population of island has almost doubled in 11
years with decreasing tribal population. Tourism and Fishing are the main occupations
of the people. Since 2015, island witnessed an increased tourist influx. Connectivity
was enhanced from 4 major cities. In recent times excessive crocodile invasion was
seen in human habitation areas and an American tourist was killed by a crocodile.
Since then, the government restricted the beaches for swimmers and fishing was
restricted for locals. Since 2010, large number of plastic deposit and dead bodies of
aquatic creatures were found in sea shore.
ELECTIONS AND CRZ 2019
2. In 2018, after Parliamentary elections, many developments like Optic Fibre
Connection and enhancements of education and tourism were undertaken.CRZ 2019
with changes duly came into effect in 2019.The central government stated in a press
release that CRZ 2019 aims to conserve and protect the unique environment ,provide
livelihood security to locals and sustainable development based on scientific
principles.
UPCOMING PROJECTS
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3. In October 2019, the government launched a huge ocean project in Sabath Island
wherein 10 coastal regions were given rehabilitation, including two tribes whose main
occupation is fishing. The government of Sindia in November 2019 launched Emerald
island project where in the central government declared islands Gala and Hatten
Islands NO DEVELOPMENT ZONE as 10 m limit from HTL and bidders were
invited to set resort in the islands. The government also sanctioned a huge bridge to
connect Tara island (restricted) with the main island via sea. The powers were
exercised under CRZ provisions pertaining to Hamantha Island.
PROTEST
4. On January 2020 the student association of Hamantha College made a protest. The
agitation lead to violence in the island which is inhabited largely by students and
natives who are mostly to be affected. The agitation stated coastal regulation zone as
“Coastal Curtailment Zone”.
SAVE BLUE
5. SAVE BLUE is an organisation exclusively devoted to research and develop marine
eco system. It opposed CRZ while tourism agency association welcomed it. Uprising
and protest demanded the return of CRZ 1 as the current status is a threat to flora and
fauna and natives were displaced. SAVE BLUE with top native people and former
MP and opposition leader filed a PIL in Supreme court questioning the validity of the
special regulations of CRZ 2019.The case is filed against Union of Sindia alleging the
special provisions as discriminatory and prejudiced to the interest of indigenous
people and environment for the sake of tourism whereas the Ministry of Forest and
Environment has stated in a press release that special provisions of CRZ are for
development and connectivity of the island and are in par with environmental laws.
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SUMMARY OF ISSUES
ISSUE 1:

Whether the PIL filed by “Save Blue” seeking interference of Supreme Court is
maintainable?

ISSUE 2:

Whether the project under CRZ affects the environment endangering ecosystem?

ISSUE 3:

Whether the CRZ is contrary to the native tribal people’s right to livelihood?

ISSUE 4:

Whether the CRZ giving excessive discretion to the Union Of Sindia is ultravires of the
parent law and the Constitution?
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SUMMARY OF ARGUMENTS

ISSUE I

Whether the PIL filed by “Save Blue” seeking interference of Supreme Court is
maintainable.

It is humbly submitted before the Hon’ble court that present PIL is maintainable against
Union Of Sindia, it is a state u/a 12 of the Constitution. It is further submitted that since there
has been gross violation of Article 14, 21, 25 and 29 of the Constitution, the PIL is
maintainable, and on account of the same relief is sought.

ISSUE II

Whether the environment endangering ecosystem is affected by the project of

CRZ.

It is humbly submitted before the Hon’ble Court that, Union of Sindia is liable for degrading
the environment by committing acts such as that of setting up the construction unit in an
improper location, thereby violating the coastal regulation norms and polluting the
environment, which further violated fundamental rights of the people. Union of Sindia is also
responsible for the climate change and therefore, is liable to pay damages.
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ISSUE III

Whether the CRZ is contrary to the native tribal people’s right to livelihood.

It is humbly submitted before the Hon’ble Court that, Article 19 and Article 21 of the
Constitution have been violated on account of arbitrary action of state, thus, resulting in the
violation of Article 14 as well. Right to Reside, Right to Livelihood and Right to Shelter have
been violated on account of construction and Right to Culture has also been violated since,
the Indigenous people were subject to forced assimilation and isolation.

ISSUE IV

Whether the CRZ giving excessive discretion to the Union of Sindia is ultravires
of the parent law and the Constitution.

It is humbly submitted before the Hon‟ble Court that, the regulations in CRZ is not in
accordance with the article 13(2), i.e. the state shall not make any law which takes away or
abridges the rights conferred by part III (i.e. the Fundamental Rights) and any law made in
contravention of this clause shall, to the extent of the contravention, be void. The
fundamental rights such as Right to reside and to practise any profession, Right to reside,
Right to livelihood have been violated because of new regulations under CRZ.
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ARGUMENTS ADVANCED

I. Whether the PIL filed by “Save Blue” seeking interference of Supreme Court
is maintainable.

The present petition is maintainable under Article 32 of the Constitution1, since, the
constructing authority falls within the ambit of “other authorities” as enshrined u/a 12of the
Constitution. There has been violation of Fundamental Rights.

I.1. Public Interest Litigation can be filed against the Union

A PIL can be filed against the State for violation of Fundamental Rights under Article 32 of
the Constitution, therefore, the PIL is maintainable against Union of Sindia.

The functions of the corporation must be of public importance, and closely related to
governmental functions.

Public function is one which “seeks to achieve some collective benefit for the public or a
section of the public”2. Institutions engaged in performing public are, by virtue of the
functions performed, government agencies3. Further under the well – established doctrine of
Parens Patriae, it is the obligation of the state to protect and take into custody the rights and
the privileges of its citizens for discharging its obligations.4

The act of construction of ocean power plant is ideally perpetuated to seek the collective
benefit of the people by protecting the interests and lives of the individuals of the concerned
area where the construction takes place.

Hence, in the present case, the act of UOS engaged in construction of ocean power plant is a
public function as well as a governmental function.

Therefore, it is humbly submitted that, UOS being an instrumentality of the state for the
purpose of construction of ocean power plant falls within the ambit of “Other Authority” as

1
Constitution of Sindia, Pari Materia to Constitution of India
2
Binny Ltd. And Anr. V. Sadasivan and Ors.
3
Sukhdev and Ors v. Bhagatram and Ors
4
Charan Lal Sahu v. Union of India
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enshrined u/a 12 of the Constitution. Therefore, a PIL is maintainable against Union of

Sindia.

I.2. FUNDAMENTAL RIGHTS HAVE BEEN VIOLATED

I.2.1. Violations of the Rights of Indigenous People

The fundamental right to shelter5 and livelihood6 of the Indigenous people have been as
guaranteed under Article 21 of the constitution have been violated on account of the arbitrary
action of the state.

I.2.2. Violation of the Rights of people of Sabath Island

Also, there has been violation of right to Healthy Environment7 as guaranteed under article 21
of the Constitution since the state is responsible for pollution among other things.

Thus, it is humbly submitted that the present PIL is maintainable against Union Of Sindia.

II. WHETHER THE PROJECT UNDER CRZ AFFECTS THE ENVIRONMENT

ENDANGERING ECOSYSTEM

The Union of Sindia has caused environmental degradation by their respective acts, that
being Location of Construction unit at an Improper Place Pollution caused by MIL, violated
fundamental rights Climate changes caused by Union of Rambo and therefore, liable to pay
damages for the violation of fundamental rights.

According to Section 14 (c) of Coastal Guard Act, 1978, its the duty and function of coast
guard to take such measures as are necessary to preserve and protect the maritime
environment and to prevent and control marine pollution.

II.1. Location of Construction Unit at an improper place

5
PG Gupta v. State of Gujarat(1995), Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan
6
Olga Tellis v. Bombay Municipal Corporation
7
Andhra Pradesh Pollution Control Board –II v. Prof. MV Mayudu
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II.1.1. Violation of Coastal Regulation Zone Notification, 2011

The Coastal Regulation Zone Notification 8, 2011 issued under the Environment Protection
Act, 19869 regulates construction and other similar activities on the coast10.An area to be
classified as CRZ-I11 , must have ecologically sensitive areas including mangroves, protected
reserved forest areas and turtle nesting grounds, where no new construction is permitted,
except as provided under the regulation.

In the present case, the area in which the construction is located has exclusive range of flora
and fauna and nesting ground for susceptible ecological features, , therefore, the designated
coastal area for the construction of ocean power plant can be construed to be CRZ I, and
since no ocean power plant construction is permitted in this area, it is clearly violative of the
express regulations laid down in the CRZ Notification.

Also, the ecologically sensitive areas like that of Sabath island are classified as Critical
Vulnerable Coastal Area ( CVCA)12 , and also the construction will leave the coastal areas
with plastics and polluting items which will further pollute the area therefore, the presence of
such a polluting construction site will further add to environmental degradation .

II. 2. Pollution Caused By EIP Violated Fundamental Rights of People

Pollution constitutes wrongful contamination in the environment in such concentrations as

may be or tends to be injurious to human beings or other living creatures or plants or property
or environment13, thereby violating Article 21 of the Constitution.14

II.2.1. Air Pollution Caused By EIP

Article 21 of the Constitution ensures the fundamental right to live decently and to enjoy
clean air.15The setting up of the construction site in the proximity of coastal region without
any appropriate pollution control equipment is indicative of EIP’s disregard for the
precautionary norms to be followed for public safety. Due to this, the inhabitants can suffer
from severe respiratory problems once the construction holds it pace, thus causing air
pollution , and violative of the right to clean air guaranteed under Article 21 of the
Constitution.

8
Hereinafter referred to as CRZ Notification 2011
9
Section 3 (2) (1) (v) Environment Protection Act, 1986
10
Regulation 8 (i) (I) (i) and (ii) CRZ Notification 2011
11
Coastal Zone Regulation Notification, 1991
12
Regulation 8 (iii) (c) (4) CRZ Notification 2011
13
Section 2 (a) The Air (prevention and control of pollution) Act, 1981
14
Free Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. Of NCT of Delhi and Ors.
15
Subhash Kumar V. State of Bihar
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II.2.2. Noise Pollution Caused By EIP

Noise pollution is described as an unwanted sound if it exceeds a reasonable limit and

contaminates the environment16, causes nuisance and affects the health of a person 17, thereby
violative of Article 21 of the Constitution.

In the instant case, construction noise which will be caused by EIP, especially during night
time will become nuisance to the people residing in the vicinity of construction site as it will
result in violation of their right to silence, sleep and rest 18, guaranteed under Article 21 of the
Constitution.

II.3. Liability of the state for climate change in the Sabath Island

“Climate Change” means a change in climate, attributed directly or indirectly to human

activity that alters the composition of the global atmosphere over comparable periods of time.
The Union of Sindia will be liable for the climate change induced due to the activities
orchestrated by the State.

II.3.1. Air pollution by Union of Sindia

The UNFCCC aims for the stabilization of greenhouse gas concentrations in the atmosphere
at a level that would prevent dangerous anthropogenic interference with the climate. Union of
Sindia despite of ratifying it , failed to bring under control the anthropogenic greenhouse
gases and carbon emissions thereby causing pollution19 , haze, sea water intrusion and the
erratic climatic conditions. Further, the Government orchestrated deforestation of the
mangroves and reserved forest areas, thereby causing air pollution.20

II.3.2. Water pollution by Union of Sindia

The sea water in Sabath Island was crystal clear before construction of such ocean power
plants, however, once the construction will start the plantation cover will be reduced which
will further pollute the ocean water as impure materials like silica and alumina will be
disposed in the water body.

16
In Re. Noise Pollution – Prevention of Environment and Sound Pollution v. UOI
17
Free Legal Aid CellShri Sugan Chand Agarwal v. Government of National Territory of Delhi
18
Farhad K Wadia v. UOI and Ors
19
Section 2 (a)The Air Pollution (Prevention) Act 1981.
20
NTPC Ltd. and Anr. v. State of Uttar Pradesh and Ors 2011(11) ADJ 390; T.N. Godavarman Thirumulpad v.
Union of India (UOI) and Ors.
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II.4. Damages to be awarded

II.4.1. Non-Compliance of Precautionary Principle:

The polluter pays principle21 imposes absolute liability for harm caused to the environment,
to compensate the victims of pollution and to pay the cost of restoring the environment. 22 The
burden of maintaining the said balance lies on the unit which has caused the pollution. 23
Therefore, in the instant case, EIP is liable for non-compliance with the aforementioned
principle; since no preventive measures were taken by EIP for curbing the pollution released
from construction unit, and therefore must pay damages for the harm caused to the
environment as well as to people since it is their fundamental right to be compensated. Also,
the Government of Sindia must be directed to take corrective measures in order to restore the

III. WHETHER THE CRZ IS CONTRARY TO THE NATIVE TRIBAL

PEOPLE’S RIGHT TO LIVELIHOOD

The indigenous people were subjected to forced assimilation and isolation and hence, the
fundamental rights as guaranteed under; Article 21 of the Constitution and Article 19 have
been violated; Therefore, they should be rehabilitated and relocated.

III.1. Violation of Article 21

Article 21 of the Constitution envisages a right to life and personal liberty of a person. The
word “Life” under Article 21 means a quality of life, which includes right of food, and
reasonable accommodation to live in24 and the right to a wholesome environment25. Also
ICCPR26, UDHR27 and ICESCR28 recognizes right to life and adequate standard of living.
Further in order to establish violation of Article 21, the act should be subjected to the equality
test of Article 14 and test of reasonableness under Article 1929.Article 14 strikes at
arbitrariness because it negates equality and permeates the entire fabric of Rule of Law.
Therefore, every action of the State must be guided by reason for public good and not by
whim, caprice, and abuse of power. Article 19 provides that a restriction can be characterized

21
Charan Lal Sahu v. Union of India (1990)
22
Indian Council for Enviro Legal Action v. UOI, (1996) 3 SCC 212; M C Mehta v. UOI, (1987)
23
Narmada Bachao Andolan v. Union of India , (2000
24
Shantisar Builders v. Narayanan Khimalal Totamen,
25
Charan Lal Sahu v. Union of India,
26
Article 6, ICCPR.
27
Article 3, UDHR
28
Article 11, ICESCR.
29
Maneka Gandhi v. Union of India. AIR 1978 SC 597.
 P a g e | 18

to be reasonable if it strikes a balance between the fundamental right and restriction imposed
thereon.
In this case, there is violation of Article 21 as they are indigenous people and there is
deforestation of forests arbitrary action of government is violating test of equality and
reasonableness.

III.1.1. They are indigenous people

The indigenous people are considered on same pedestal as Scheduled Tribes or Scheduled
Caste in India because of their backwardness, dependence on basic natural resources for life
and livelihood and lack of exposure to civilization. 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 tribal people can be
considered to be on the same footing as Scheduled Tribes.

The source of livelihood for coastal region dwelling people for generations have been fishing
and so are considered inseparable.30 However, with the advent of civilization they were
exploited by outsiders, thus, there was a necessity to protect the inherent rights of indigenous
people to empower them to utilise and to exercise control over coastal region for sustainable
development. Therefore to protect the coastal regions from such constructions , State is
casted upon a duty to save the region from being exploited, therefore, Articles 48A of the
Constitution to preserve the Forests which are considered to be a national wealth under
Environment Protection Act, 1986.31
The Rio Submit, 1992, The Indigenous and Tribal Populations Convention, 1957 and United
Nation Declaration on Indigenous people also recognize the rights of indigenous people over
the land. The international conventions are considered important to be read with fundamental
rights as they further, enlarge the scope of the same. This depicts the special relationship
between the indigenous people and the coastal region and their sustenance which solely
arises from these forests.

III.1.2. Violation of test of equality and reasonableness

Section 2(ii) (iv) of The FCA, 1980 provides that Central Government can only grants the
permission of construction for the “non-forest purposes” and such clearances are granted if
Central Government considers it reasonable to cut the forest, which is decided on the basis of
the report of the committee. However, in the present case there has been non-application of
mind for granting the approval, since, firstly, resort cannot be constructed by causing
deforestation of Mangrove trees32, secondly, considerable reduction of flora and fauna in the
island of Sabath made it more susceptible to natural disasters. It thus fails to meet the test of
reasonableness under Article 19. Further, the Government of Sindia has acted arbitrarily by
neglecting the rights of tribals and safeguarding the rights of non-tribals, despite the fact that

30
K. Guruprasad Rao v. State of Karnataka and others,
31
Subhash Kumar v. State of Bihar,(1991)
32
Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, [2011] 3
 P a g e | 19

the movement of non tribals is restricted to tribal area, so as to avoid their exploitation 33, and
thus, there has been violation of Article 14, on account of abuse of power and arbitrariness in
the actions of the Government.

III.2. Violation Of Article 19

The right of the indigenous people to settle and reside34 and to own the property anywhere in
the territory of Sindia , especially in the island of Sabath , guaranteed under Article 19(1) (e)
has been violated.
Hence, in the present case the cutting of plantation has violated the rights of indigenous
people to hold and live in the region, right to protect or conserve resource, and the right to
access biodiversity and cultural diversity guaranteed to indigenous people/tribals since their
right to life and livelihood has been violated as envisaged under Article 21.

III.3. Indigenous people should be rehabilitated and relocated

Article 29 of the Constitution and Article 27 of ICCPR states that minority group should not
be denied the right to enjoy their own culture. However, the fact that people of Sindia were
allowed to settle and reside in the coastal area of Sabath , forcibly subjected the indigenous
people to the new culture, making them more prone to exploitation, as they were not prepared
physically, socially and culturally for such an interface.
Therefore, it is humbly submitted that the indigenous people should be rehabilitated pending
their relocation in an environment which is conducive to their right to life with dignity as
ensured u/a 21. Under Article 47, the government is obliged to take steps 'for the
improvement of public health' and the non-availability of financial resources is not an excuse
in this regard.35

IV. WHETHER THE CRZ GIVING EXCESSIVE DISCRETION TO THE

UNION OF SINDIA IS ULTRAVIRES OF THE PARENT LAW AND
THE CONSTITUTION

Whether the new regulations in CRZ is ultra vires of the parent law and the
Constitution.

It is humbly submitted before the Hon‟ble Court that , the regulations in CRZ is not in
accordance with the article 13(2), i.e. the state shall not make any law which takes away or
abridges the rights conferred by part III (i.e. the Fundamental Rights) and any law made in
contravention of this clause shall, to the extent of the contravention, be void. 36 The

33
Samatha v.State of AP & Ors. AIR 1997 SC 3297, T.N Godavarman Thirumulkpad v.UOI, (1997) 2 SCC 267.
34
Article 19, Constitution
35
Dr. B.L. Wadehra v. Union of India and others (1996) 2 SCC 594
36
Article 13, Constitution
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fundamental rights such as Right to reside and to practise any profession, Right to reside,
Right to livelihood have been violated because of new regulations under CRZ.

I.1 Violation of Coastal Regulation Zone Notification, 2018.

With the objective of conservation and protection of the coastal environment, Ministry of
Environment and Forest and Climate Change notified The Coastal Regulation Zone
Notification, 201837 issued under the Environment Protection Act, 1986.38 A No Development
Zone (NDZ) of 20 meters has been stipulated for all Islands in the CRZ notification, 2018
regulates construction and other similar activities on the coasts.39

In the present case, the government of Sindia in November 2019 launched a project on
Emerald island in which the Central Government declared two islands i.e. Gala and Hatten
Island’s No Development as 10 metre limit from High Tide Line (HTL) and bidding were
invited for setting resorts in the islands.40 Thus,it is clearly violative of the express regulations
laid down in the CRZ Notification.

I.2 Violation of Rights of Indigenous people.

The indigenous people are considered on same pedestal as Scheduled Tribes 41 or Scheduled
Caste in India42 because of their backwardness43, dependence on basic natural resources 44 for
life and livelihood and lack of exposure to civilization45. 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 two villages of native tribes which are to
be rehabilitated can be considered to be on the same footing as Scheduled Tribes.

The Rio Submit, 1992, The Indigenous and Tribal Populations Convention, 195746 and United
Nation Declaration on Indigenous people also recognize the rights of indigenous people over
37
Hereinafter referred to as CRZ Notification 2018.
38
Section 3 (2) (1) (v) Environment (Protection) Act, 1986.
39
Coastal Zone Regulation Notification, 2018.
40
¶ 10 of the Moot Proposition.
41
Section 342 lays down the procedure for scheduling and de-scheduling of tribe.
42
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 13 th February, 2020.
43
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others (Civil Appeal
Nos. 104-105 Of 2001).
44
Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297.
45
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).
46
Article 11, ILO Convention, 1957.
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the land47. The international conventions are considered important to be read with
fundamental rights as they further, enlarge the scope of the same 48. This depicts the special
relationship between the indigenous people and the islands and their sustenance which solely
arises from these fishing.

I.3. Violation of Fundamental rights

The fundamental right to shelter49 and livelihood50 of the Indigenous people have been as
guaranteed under u/a 21 of the Constitution been violated on account of the arbitrary action
of the state. Also, there has been violation of right to Healthy Environment 51 as guaranteed
under Article 21 of the Constitution since the state is responsible for pollution among other
things.

I.3.1 Violation of Article 21

Article 21 of the Constitution envisages a right to life and personal liberty of a person. The
word “Life” under Article 21 means a quality of life52, which includes right of food, and
reasonable accommodation to live in53 and the right to a wholesome environment54. Also
ICCPR55, UDHR56 and ICESCR57 recognizes right to life and adequate standard of living.

Further in order to establish violation of Article 21, the act should be subjected to the equality
test of Article 14 and test of reasonableness under Article 1958. Article 14 strikes at
arbitrariness because it negates equality59 and permeates the entire fabric of Rule of Law60.
Therefore, every action of the State must be guided by reason for public good and not by

47
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil
Appeal Nos. 104-105 Of 2001.
48
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.
49
Shantistar Builders v. Narayan Khimala Totame, (1990) 1 SCC 520, PG Gupta v. State of Gujarat, (1995) 2
SCC 182, Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121.
50
Olga Tellis v. Bombay Municipal Corp, AIR 1986 SC 180.
51
Andhra Pradesh Pollution Control Board –II v. Prof. MV Mayudu, (2001) 2 SCC 62.
52
Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.
53
Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630.
54
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
55
Article 6, ICCPR.
56
Article 3, UDHR.
57
Article 11, ICESCR.
58
Maneka Gandhi v. Union of India. AIR 1978 SC 597.
59
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
60
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
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whim, caprice, and abuse of power61. Article 19 provides that a restriction can be
characterized to be reasonable if it strikes a balance between the fundamental right and
restriction imposed thereon.

I.3.2 Violation of Article 19

The right of the indigenous people to settle and reside 62 and to own the property63 anywhere in
the territory of Sindia, especially on the islands of Hamantha, guaranteed under Article 19(1)
(e) has been violated, since; there was a lot of encroachment on the Hamantha Island on
account of huge ocean power project64 and the huge three km bridge between the Tara Island
and the main land which is violating their right to reside under Article 19 of the Constitution.

Hence, in the present case the development projects has violated the rights of indigenous
people to hold and live in their native villages. Thus, right to protect or conserve resource,
and the right to access biodiversity and cultural diversity 65 guaranteed to indigenous
people/tribals since their right to life and livelihood has been violated as envisaged under
Article 21.

61
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2005)
9 SCC 779.
62
Article 19, Constitution.
63
UDHR Articles 17 as well as in Article 6 of the ICESCR.
64
¶ 10 of the Moot Proposition.
65
Section 3, The Scheduled Tribes and other Traditional Forest Dweller Act, 2006.
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