Sample Memorial 02 Respondents

R
TEAM CODE: R/A-06
RGNLU, PATIALA: 1st NATIONAL ANIMAL MOOT COURT

COMPETITION, 2016
Before
THE HONOURABLE SUPREME COURT OF SWATANTRA
Writ Petition
U/A 32
OF
THE CONSTITUTION OF SWATANTRA
HUMANE SOCIETY INTERNATIONAL

(PETITIONER)
V.
UNION OF SWATANTRA & ANOTHER.

(RESPONDENT)
UPON SUBMISSION TO THE HON’BLE CONSTITUTION BENCH OF THE SUPREME

COURT
RGNLU, Patiala: 1st National Animal Moot Court Competition, 2016
CONTENTS
Page No.
LIST OF ABBREVIATIONS........................................................................................... 4
INDEX OF AUTHORITIES ...........................................................................................5-7
 Cases Cited: .........................................................................................................5-6

 Books referred: ....................................................................................................6-7
 Statutes: .................................................................................................................7
 Research Articles………………………………………………………………….7
STATEMENT OF JURISDICTION..................................................................................8
STATEMENTS OF FACTS.............................................................................................9-14
STATEMENT OF ISSUES...............................................................................................15
SUMMARY OF ARGUMENTS.................................................................................... 16-17
ARGUMENTSADVANCED..........................................................................................18-42
1. Whether or not, the present petition initiated in the Supreme Court of Swatantra is
maintainable?...............................................................................................18-24
1.1 That the present writ petition is not maintainable as the respondents do not come
under the purview of Article 12 of the Constitution of Swatantra against the
respondent company……….....................................................................18-20
1.2 That Govt. of Swatantra and the respondent have entered into a private contract
and the petition against the Respondent Company is not maintainable…...20-21
1.3 That the present petition is not maintainable as the respondent company has not
infringed any Fundamental Rights of the people of Swatantra………………21-22
1.4 That the present petition is not maintainable as alternative remedies have not been
exhausted………………………………………………………………………..22
1.5 That the present petition against the respondents is not maintainable as the Court
does not have the jurisdiction to foray into matters which are exclusively
designated to the Legislature of Swatantra…………………………………...23-24
2
2. Whether or not, the veil of corporate personality can be lifted in the present matter and is
extraneous application of Swatantra Law permissible?....................................................25-33
2.1 That Lifting the Garb of Corporate Personality is beyond the bounds of
permissibility……………………………………………………………………...25-30
2.2 That extraterritorial application of Swatantra Law is an unconceivable
proposition………………………………………………………………………..31-33
3. Whether the need for sustainable development should injuct the Union to further its
developmental interests?....................................................................................................34-36
3.1 That oil and natural gas is essential for economic progress and development…..34-35
3.2 That no cost benefit analysis report has been submitted by the petitioner in the
present matter…………………………………………………………………………35-37
4. Whether or not, adventurism by Union of Swatantra for achieving permanent solution to
the Daiji Method would lead to strained relations with Union of Paratantra?..................38-42
PRAYER.......................................................................................................................43
3
LIST OF ABBREVIATIONS
ABBREVIATION ACTUAL TERM
& And
A.P. Andhra Pradesh
CBD Convention on Biodiversity
Comm. Commissioner
Corpn. Corporation
CRZ Coastal Regulation Zone
Hon’ble Honourable
HPGL HydroCarbon Petroleum Gas Limited
HSI Humane Society International
I.C.J International Court of Justice
IWC International Whaling Commission
U.P Uttar Pradesh
v. Versus
W.B West Bengal
WOS Wholly Owned Subsidiaries
4
INDEX OF AUTHORITIES
I. List of Judicial Precedents
A.P. Pollution Control Board v. Prof.M.V.Nayadu and Ors 1999 1 SCR 235……………36
Adams v. Cape Industries Plc 2 W.L.R. 786, HL…………………………………………..31
Ajay Hasia v. Khalid Mujib Sehravardi 1981 SCC (1) 722………………………………...19
Alembic Glass Industries Ltd. v. CCE 2002 (9) SCC 463………………………………….30
Bacha F. Guzdar v. CIT 1955 SCR (1) 876 ………………………………………………...26
Barcelona Traction, Light & Power Company (Belg. v. Spain) (1970) I.CJ. 3, 34-35…….33
Binny Ltd. & Anr. v. Sadasivan & Ors (2005) 6 SCC 657…………………………………20
Case Concerning Military and Paramilitary Activities In And Against Nicaragua
Corfu Channel Case I.C.J. Reports 1949, p. 244……………………………………………40
Directorate Of Film Festivals & Ors v. Gaurav Ashwin Jain & Ors 1990 (3) SCC 223…..23
Gramophone and Typewriter Ltd. v. Stanley L.R. (1906), 2 K.B. 856……………………..27
GVK Industries Ltd. & Anr. v. The Income Tax Officer & Anr. (2011) 4 SCC 36………..32
Industrial Development Corporation Orissa Ltd v. Regal PF Comm. 112 Comp Cas 527 (Ori)
(2002)………………………………………………………………………………………...29
Kiobel v. Royal Dutch Petroleum Company (2013)133 S.Ct. 1659 ………………………..31
Lange v. Burke 69 Ark. 85…………………………………………………………………...28
Lowendahl v. Baltimore & ORR 247 AD 144, 157, 287 NY 62, 76 (1st Dep.)…………….27
LIC v. Escorts Ltd (1986) 1 SCC 264……………………………………………………….29
Lonrho Ltd. v. Shell Petroleum Co Ltd. 1980 QB 358.....................................................31
Nain Sukh Das & Anr. v. State Of U.P & Ors. 1953 AIR SC 384………………………….21
North Sea Continental Shelf Cases) 1969 I.C.J. p.3………………………………………..39
People United for Better Living in Calcutta Public v. State of W. B AIR 1993 Cal
215……………………………………………………………………………………………35
5
Pradeep Kumar Biswas & Ors. v. Indian Institute of Chemical Biology & Ors.; (2002) 5 SCC
111……………………………………………………………………………………………19
Punjab National Bank v. Bareja Knipping Fasteners Ltd 103 Comp Cas 958(P&H) (2001).29
R. v. Canadian Pacific Railway Co (2007) File No. 65796-1………………………………..28
S.C. Sharma v. Union Of India, (2007) 99 DRJ 664...……………………………………….19
Sachidanand Pandey v. State of W.B. (1987) 2 SSC 295…………………………………....36
Societe Fruehauf v. Massardy (1968) D.S Jur. 147…………………………………………31
Sterling Computers Ltd. Etc v. M & N Publications Ltd. & Ors [1993 (1) SCC 445]……..23
Stone & Knight Ltd v. Birmingham Corpn (1939) 4 All ER 116 KB……………………26-27
Sukhdev Singh & Ors v. Bagatram Sardar Singh Raghuvanshi & Anr (1975) 1 SCC 421.18
Tata Cellular v. Union of India 1994 6 SCC 651……………………………………………23
The United Kingdom v. Norway 1951 I.C.J 3 ………………………………………………38
Vodafone International Holdings BV v. Union of India (2012) 6 SCC 613………………..26
Walnut Packaging Pvt. Ltd. v. The Sirpur Mills Ltd. & Anr (2008) 144 Comp 454 (AP)…30
II. List of Books Referred
1) Company Law- Sixteenth Edition by Avatar Singh
2) Disregard of the Corporate Fiction and Allied Corporation Problems- By Maurice
Wormer
3) Ratanlal & Dhirajlal- The Law of Torts- 26th Edition- Justice GP Singh
4) Multinational Enterprises And Tort Liabilities- An Interdisciplinary and Comparative
Examination- By Muzaffer Eroglu
5) Human Rights and Corporate Wrongs- Closing the Governance Gap- By Simon
Baughen
6) Public International Law- V.K Ahuja
7) Legal Control of Multinational Enterprises- Cynthia Day Wallace
6
8) The Constitution of India 13th Edition- PM Bakshi
9) Indian Constitution Law 7th Edition- MP Jain
III. List of Statutes
1) The Constitution of India, 1950
2) The Environment Protection Act, 1986
3) Companies Act, 2013
4) The Prevention of Cruelty to Animals Act, 1960
5) The Indian Maritime Zones Act, 1976.
IV. List of Articles Referred
1) Parent Company Accountability- “Ensuring Justice for Human Rights Violations”
2) International Corporate Accountability Roundtable(ICAR)- Gwynne Skinner Associate
Professor of Law, Willamette University College of Law
3) David C. Bayne, S.J., The Deep Rock Doctrine Reconsidered, II, 19 Fordham L. Rev. 152
(1950).
4) A Veterinary and Behavioural Analysis of Dolphin Killing Methods Currently Used in the
“Drive Hunt” in Taiji, Japan, Journal of Applied Animal Welfare Science, 16:2, 184-204,
DOI: 10.1080/10888705.2013.768925
5) Disregarding the Corporate Entity, 2 St. Louis L. Rev. 108 (1917).
6) Robert B. Thompson, Piercing the Corporate Veil: An Empirical Study, 76 Cornell L. Rev.
1036 (1991)
7) Parent Corporation Liability For Foreign Subsidiaries- By Waldemar Braul and Paul Wilson
8) Parent Company Liability for Environmental Disaster Caused by Subsidiary Company
Evelina Singh Lecturer, University of Guyana
7
STATEMENT OF JURISDICTION
The present writ petition is being filed by the petitioner under the provisions that corresponds
to Article 32 of the Constitution of India. The respondents respectfully submit to the
jurisdiction of this Hon’ble Court.
The Article invoked is reproduced hereunder:-
Article 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.
8
Statement of Facts
1. History of Swatantra & Paratantra: When Monarch Suu Lock of The Kingdom of
Great Barrier took over the throne, she strived to establish a humane order by giving
independence to all colonized territories one by one. The Kingdom signed almost all
such international treaties and conventions which were recognized as customary
international law. To carry out the orders of their Monarch, the government of the
Kingdom of Great Barrier sought to identify territories on the basis of a common
connection, be it language, culture, religion or belief-system, and accordingly marked
territories as a nation and granted them independence by legislative enactment of the
Parliament of the Kingdom.
2. Mechanism of Independence of Swatantra & Paratantra: These legislations also
contained a three year supervision period by the Kingdom during which period the
new nations were run jointly by the Kingdom and elected governments of the new
territories, after which complete independence was granted to the new nations. Most
of these new nations adopted the welfare democracy model with an elected head of
the State. The State of Paratantra got independence on the 14th of August 2007, just a
day before their neighbour Swatantra. Both developing States enacted written
constitutions and in Art. 3 of the Constitution, both states made a solemn acceptance
of all the international treaties and conventions which the Kingdom of the Great
Barrier had ratified, mutatis-mutandis. Both nations received full independence by
August 2010 and remain low on the human development index.
3. Religious Rituals: The people of Swatantra believed in polytheism, the people of
Paratantra believed in monotheism. Their belief systems and religions were centred on
animal worship, and while Swatantra citizens worshipped all animals- each for a
special quality, the citizens of Paratantra worshipped only the Whale-God, a half
9
whale-half human form of a deity which is supposed to have protected the people
from the perils of the ocean and which was supposed to be the real ruler of the people.
The Whale God was also one of the most important deities in Swatantra. Both nations
continued their long tradition of not killing animals for meat, but to consume meat of
animals which die on their own or are not killed for the reason of consumption.
4. Geography of Swatantra & Paratantra: The beaches of Padmaprastha ran across
the territory of both land masses, and due to the high tourist activity, they were a rich
source of revenue. People from the power corridors and celebrities could be seen
spending their time on these beaches, which thus also became liaison joints for those
who had any concern with the rich and the powerful. One of the big disputes during
the transitional period after independence was regarding the beaches of Padmaprastha.
When no mutual settlement was forthcoming between Swatantra and Paratantra
regarding the division of beaches. The beaches were measured from east to west, and
were divided by a north-south fence which was erected at what was decided by the
Kingdom of Great Barrier as the boundary.
The best sightings happened at a spot called Paliata and both nations had lobbied for
getting this spot in their territory at the time of independence. However, the Kingdom
of Great Barrier decided that the Paliata spot will go to Swatantra, while three other
important spots will go to Paratantra. This not only led to the border becoming zig-
zag, but also led to an attempt to forcibly capture the Paliata spot by Paratantra. The
attempt was massively retaliated by Swatantra and there was a heavy loss of life and
property. This lead to heavy military presence and establishment of a fortified military
outpost by both the nations in the area on both sides of the boundary and the area of
joint control.
10
5. The Daiji Worship Method: About three hundred years ago, on the eve of the
Palikattu, some Paratantra sighted a lone whale calf dying near certain dolphins. Daiji
from a southern town called Sapan was the Supreme religious leader of the Paratantra,
and he issued a fatweh to all Paratantra to kill dolphins on the Palikattu and invite the
Whale-God in water which is red from the Dolphin blood as a fitting revenge against
the enemy and the evil.
Every year, a group of expert fishermen were selected by the Religious leader, who
carried out the fatweh and used the traditional steel pipe-mallet method. They would
spot a pod of dolphins, lower a steel pipe and strike the pipe with mallets at strategic
points around the pod to herd them towards land. It disrupted the natural sonar of
dolphins, and their sense of navigation. Once herded, the area is closed with fishing
nets and the agitated dolphins are allowed to calm down. Then, the dolphins are
caught one at a time and killed by cutting the dolphin's throat, severing blood vessels,
and causing death due to exsanguinations. These steel pipes and mallets are
manufactured as per conventional techniques as was directed by the Daiji of Sapan.
The contract for the manufacturing has remained for decades with Metal Carbon
Technologies Pvt. Ltd. a fully owned, fully funded subsidiary of HPGL incorporated
in Paratantra.
6. Hydrocarbon Petroleum Group Ltd.: The Hydrocarbon Petroleum Group Ltd.
[HPGL], a company which has existed for over hundred years, is one of the biggest
corporates existing in the area, with multinational businesses and having its offices in
almost all important capitals of the world. Its promoters include both Swatantra and
Paratantra, with majority ownership concentrated with Swatantra. Due to this reason,
at the time of independence, the Hydrocarbon Petroleum Group Ltd. chose to
11
recognize its main registered office in Swatantra and accepted the Swatantra
jurisdiction.
7. Aftermath of Daiji Worship Method: The HPGL, a company which has existed for
over hundred years, is one of the biggest corporates existing in the area, with
multinational businesses and having its offices in almost all important capitals of the
world. Its promoters include both Swatantra and Paratantra, with majority ownership
concentrated with Swatantra. Due to this reason, at the time of independence, the
Hydrocarbon Petroleum Group Ltd. chose to recognize its main registered office in
Swatantra and accepted the Swatantra jurisdiction. Given the high profit and easy
availability of raw material, Bio Carbon Pvt Ltd, also a fully owned, fully funded
subsidiary of HPGL incorporated in Paratantra and in the business of meat processing
for years, also established a unit in the area.
8. Oil and Gas: During early explorations on the Swatantra side, deep sea Oil and Gas
deposits were found, but it required heavy investment to study the continental shelf
and related data before wells could be dug and hydrocarbon could be taken out.
Permissions were given to several companies for exploration in 2011, and due to its
close connections with the ruling powers, the Hydro Carbon Petroleum Group Ltd.
got the highest number of contracts. In early 2012, HPGL sought permission to
establish a seismic gun manufacturing unit close to the Padmaprastha beaches on the
Swatantra Side.
9. HSI had filed a petition in 2012 before the Supreme Court of Swatantra praying for
mandamus against State to proscribe establishment of any seismic gun manufacturing
unit in Swatantra. Recognizing that seismic guns can cause a lot of problems for
marine animals, the Supreme Court accepted the prayers and granted the mandamus.
This did not deter HPGL, which started importing the equipment used for
12
hydrocarbon exploration. The Court was again petitioned, but the Government cited
economic interest and the Court directed the Government to ensure that the activity is
not beyond “bare minimum” and also directed for suitable alternatives to be explored.
10. Humane Society International: The Humane Society International is one of the only
international animal protection organizations in the world working to protect all
animals—including animals in laboratories, farm animals, companion animals, and
wildlife. Due to its multi-jurisdiction work, it incorporates itself in a legally
recognised entity in each jurisdiction. In the Union of Swatantra, HSI works as a
registered society. HSI made thorough investigation into the higher sightings and
found out that to appease people, the President of Swatantra had directed its armed
forces to herd marine mammals especially whales and dolphins to the Swatantra side.
For this purpose, special Seismic Guns, Side-scan Sonars, Deep-tow Sonars supplied
by HPGL were employed by the Swatantra Navy. However, during the final stages of
the process of herding from deep sea towards land, it was realized that the equipment
went out of control, and instead of Swatantra side, a higher number of mammals
concentrated on the Paratantra side. There were news reports that this failure of
equipment was deliberate and controlled by highly sophisticated satellite guided
technology.
11. Palikattu of 2014: During the Palikattu of 2014, there were an unnaturally high
number of marine mammals sightings, and both whales and dolphins were sighted in
very high numbers. This led to a belief of great happiness amongst the people, who
thought that the high number is directly correlated to the blessings of their deities. It
also resulted in a higher than usual kill of the Dolphins and the meat processing
industry was the happiest amongst all.
13
12. Palikattu of 2015: During the Palikattu of 2015, no whale sightings happened, which
caused a great agony to the people; it also resulted in a catastrophe on the tourism
industry and caused a cascading domino effect on the economy. The President of
Paratantra directed their forces to find whales at any cost and bring them to the
sighting spots in Paratantra to appease the populace in a nation which was going to
elections in the coming year. However, no whales could be found in deep sea.
Environmentalists world over blamed this on “the callous and highly culpable
approach adopted by both Swatantra and Paratantra, their state agencies and their
greedy corporates”.
13. Petition in Supreme Court of Paratantra : Petition was preferred against the
subsidiaries of HPGL and other companies doing similar work; as well as the Union
of Paratantra by some activists before the Supreme Court of Paratantra. In the motion-
hearing, the Court found a prima-facie case of illegality, but the counsels for the
companies persuaded the Court to await the outcome of the proceedings before the
Swatantra Supreme Court.
14
Statement of Issues
1. Whether or not, the present petition initiated in the Supreme Court of Swatantra is
maintainable?
2. Whether or not, the veil of corporate personality can be lifted in the present matter
and is extraneous application of Swatantra Law permissible?
3. Whether the need for sustainable development should injuct the Union of Swatantra to
further its developmental interests?
4. Whether adventurism by Union of Swatantra for achieving permanent solution to the
Daiji Method would lead to strained relations with Union of Paratantra?
15
SUMMARY OF ARGUMENTS
I. Whether or not, the present petition initiated in the Supreme Court of Swatantra
is maintainable?
That it is submitted to this Hon’ble Court that the present petition is not maintainable
and that it should be dismissed. It is brought to the attention of this Court that a writ
petition only lies against the state or an authority under the state. It is pertinent to add
here that the respondent company is not an authority under the state. Furthermore, it is
submitted that no fundamental rights have been infringed, and thus no writ petition
can lie against the respondents. It is put forth that the allegations levelled by the
petitioners are of a civil nature and must be settled between the respondents. It is a
further put forth that the allegations made by petitioner are baseless and there exist
alternative remedies which should be exhausted before moving to this Court.
II. Whether or not, the veil of corporate personality can be lifted in the present
matter and is extraneous application of Swatantra law permissible?
That the respondent company cannot be held liable directly or vicariously for acts of
its subsidiaries in any manner whatsoever even though the subsidiaries are wholly
owned by it and nor can the veil of corporate personality be lifted. This is because the
subsidiaries have been existing and carrying out their operations in the host country
i.e. Paratantra for a number of years and any surmise or conjecture as to their
formation for carrying out a fraud or a sham can be ruled out from the very outset.
Any punitive action sought to be taken against the subsidiaries for environmental
violations would not be under the ambit of the jurisdiction of this Court, would be
contrary to the spirit of the Constitution and international law and would amount to an
invasion into territorial integrity and disrespect for the sovereignty of the Paratantra.
16
III. Whether the need for sustainable development should injunct the Union of
Swatantra to further its developmental interests?
It is humbly submitted to this Hon`ble court that to weigh the socials benefits and
monetary profits from a technology used, a cost benefit analysis report needs to be
submitted by the petitioners to substantiate the allegations levelled against the
respondents. Oil & Natural gas are an indispensable part of a growing economy. With
only less than a decade of their independence, the extraction of petroleum and gas
thus becomes an indispensable function to fuel the economy which is nascent stage of
the development process. Hence, respondent company cannot be made liable for any
ecological imbalance.
IV. Whether or not, adventurism by Union of Swatantra for achieving permanent
solution to the Daiji Method would lead to strained relations with Union of
Paratantra?
That it is humbly submitted to this Hon’ble Court that the Daiji method of worship
has been consistently practiced for over three centuries and has the general consent of
the people of Paratantra. Furthermore, it is stated that the custom has continued
despite the genesis of the constitution of Paratantra in 2007. Consequently, it is a local
customs which has attained the force of law in Paratantra. It is brought to the attention
of this Hon’ble Court that the principle of sovereignty is a part of international
customary law. It is further submitted that the Courts of Swatantra have no
jurisdiction over the present matter and that any adventurism will violate the
sovereignty of the Union of Paratantra.
17
ARGUMENTS ADVANCED
Issue 1: Whether or not, the present petition initiated in the Supreme Court of
Swatantra is maintainable against the respondent company.
1.1 That the present writ petition is not maintainable as the Respondents do not come
under the purview of Article 12 of the Constitution of Swatantra.
1.1.1 That it is humbly submitted to this Hon’ble Court, the Petitioners have moved directly
to the Supreme Court of Swatantra by invoking Article 32 of the Constitution of
Swatantra which must be read with Article 12 of the Constitution of Swatantra.
1.1.2 Read together, these articles establish the meaning of the “State” which includes
“Government and Parliament of India” and the “Government and the Legislature of
each of the States” and “all local or other authorities within the territory of India” or
“under the control of the Government of India” against which writ petitions shall lie.
1.1.3 Thus, it is an established principle that this is a public law remedy, only available
against an “instrumentality or agency” of the State. It is pertinent to add here that “the
significance of Article 12 lies in the fact that it occurs in Part III of the Constitution
which deals with fundamental rights.”1
1.1.4 It is established that “a public authority is a body which has public or statutory duties
to perform and which performs those duties and carries out its transactions for the
benefit of the public and not for private profit. Such an authority is not precluded from
making a profit for the public benefit.”2
1.1.5 That it is humbly submitted to this Hon’ble Court, the current writ petition is not
maintainable as the respondent Company is a private body incorporated under the
1
Pradeep Kumar Biswas and Ors. v. Indian Institute of Chemical Biology and Ors, (2002) 5 SCC 111
2
Sukhdev Singh & Ors. v. Bagatram Sardar Singh Raghuvanshi & Anr (5), (1975) 1 SCC 421
18
Companies Act, 2013. Its primary aim is to increase profits for its shareholder and
does not meet the test as prescribed in the case of Ajay Hasia v. Khalid Mujib
Sehravardi3 to bring it within the purview of Article 12 of the Constitution of
India. Furthermore, it is submitted that “the scope of Article 12 should not be
stretched so far as to bring in every autonomous body which has some nexus with
the Government with the sweep of the expression”4
1.1.6 It is pertinent to mention here that the entire share capital of the respondents is held by
private entities and the Government of Swatantra provides no financial aid to the
respondents. Furthermore, the government of Swatantra does not exhibit deep or
pervasive control over its finances or decision making. Therefore, the respondent is a
distinct personality and legal identity because “if a body is not an agency of the
Government, it is not an 'Authority' within the meaning of Article 12 of the
Constitution of India.” 5
1.1.7 It is submitted to this Hon’ble Court that in Pradeep Kumar Biswas & Ors. Vs. Indian
Institute of Chemical Biology & Ors., the Supreme Court of India further propounded
that “the picture that ultimately emerges is that the tests formulated in Ajay Hasia are
not a rigid set of principles so that even if a body falls within any one of them, it does
not directly follow that said body is a 'State' within the meaning of Article 12 and that the
cumulative effect of the facts have to be examined so as to find out whether the said body is
financially, functionally and administratively dominated by or under the control of the
Government.”6
1.1.8 That it is humbly submitted to this Hon’ble Court, the actions of the Government of
Swatantra in 2014 have created no liability against the respondents who have merely
3
(1981) 1 SCC 722
4
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) SCC 1 722
5
S.C. Sharma v. Union Of India, (2007) 99 DRJ 664
6
(2002) 5 SCC 111
19
provided equipment to the government of Swatantra. Furthermore, the allegations that
the Respondents have provided faulty equipment with a malafide intention is baseless,
malicious and without any evidentiary backing. It is pertinent to mention that the
Government of Swatantra had full access to the equipment in question and that even if
they acted negligently, this cannot be imputed to the respondent Company.
1.2 That the Government of Swatantra and the respondent company have entered into a
private contract and the petition against the respondent company is not
maintainable.
1.2.1 That it is humbly submitted to this Hon’ble Court, a distinction needs to be made
between “public duties” and duties arising merely from a contract. A breach of
contractual duties can only be remedied through ordinary contractual remedies and
cannot be remedied through public law remedies. A writ can be issued against a
private company only under the circumstance that such company was discharging a
public function and that the decision sought to be corrected or enforced must be in
discharge of a public function7 and cannot be exercised to enforce purely private
contracts entered into between the parties.
1.2.2 That it is humbly submitted to this Hon’ble Court, “a body is performing a "public
function" when it seeks to achieve some collective benefit for the public or a section of
the public and is accepted by the public or that section of the public as having
authority to do so8.” The company being a non-statutory body and one incorporated
under the Companies Act, entered into a private contract with the Government of
Swatantra, wherein the respondent Company provided High-Tech Sonar Equipment -
for profit. This was a purely commercial business transaction between a buyer and
seller.
7
Binny Ltd. & Anr. v. Sadasivan & Ors, (2005) 6 SCC 657
8
DE SMITH, WOOLF & JOWELL JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, Chapter 3 para
0.24 (5th ed. 1999)
20
1.2.3 It is established that the remedy for any alleged breach of contact falls under the
jurisdiction of ordinary civil law, and cannot be remedied through public law.
Furthermore, the petitioners are not privy to the contract between the Government of
Swatantra and the respondent company and therefore have no locus standi to initiate
any proceedings against the respondent company for the alleged breach of contract.
1.3 That the present petition is not maintainable as the respondent company has not
infringed any Fundamental Rights of the people of Swatantra.
1.3.1 That it is humbly submitted to this court Article 32 can only be invoked for
enforcement of Fundamental Rights as guaranteed by Part III of the Constitution of
India and, for issuing writs to enforce these Fundamental Rights as guaranteed under
Part III.
1.3.2 That it is humbly submitted to this Hon’ble Court, in the case of Nain Sukh Das &
Anr. v. The State of U.P & Ors.9, the Supreme Court of India held that “Article
32 provides, in some respects, for a more effective remedy through this court
than Article 226 does through the High Courts. But the scope of the remedy is clearly
narrower in that it is restricted solely to enforcement of fundamental rights conferred
by Part III of the Constitution.”
1.3.3 It is pertinent to stress here that the present petition will only be maintainable against
the respondent company on the grounds that their actions have infringed the
Fundamental Rights of the people of Swatantra. It is established that the actions of the
respondent company was merely to provide equipment to the Government of
Swatantra and thus a writ petition is not maintainable against the respondent
company.
9 AIR (1953) SC 384
21
1.3.4 That it is humbly submitted to this Hon’ble Court, the Government of Swatantra acted
in a bona fide manner to protect the wildlife of Swatantra. It is pertinent to add that
due to unforeseeable and unfortunate circumstances, the dolphin and whale
populations were pushed to the Paratantra side where they were massacred. Therefore,
the liability of the massacre lies with the Government of Paratantra and the
Government of Swatantra has not infringed the fundamental rights of the people of
Swatantra. In addition, the Court should direct the Government of Swatantra to take
up the matter in the International Court of Justice, to remedy the violation of
numerous international treaties committed by the Government of Paratantra.
1.3.5 Therefore, it is humbly submitted to this Hon’ble court that the actions of the
Government of Swatantra was the welfare of the people of Swatantra. Furthermore,
the actions of the respondent state were in furtherance of the principles of economic
and social justice and thus cannot be termed as arbitrary or as one which was without
the application of the mind.
1.4 That the present petition is not maintainable as alternative remedies have not been
exhausted.
1.4.1 That it is humbly submitted to this Hon’ble Court, The National Green Tribunal
Act, 2010 has been enacted to set up the National Green Tribunal for “the effective
and expedious disposal of cases relating to environmental protection and
conservation of forests and other natural resources including enforcement of any
legal right relating to environment and giving relief and compensation for damages to
persons and property and for matters connected therewith or incidental thereto.”
1.4.2 It is pertinent to mention here that this body has specially been set up to hear petitions
such as the current one. It is established that when there are alternative remedies
available, the petitioner should exhaust them before moving to the Supreme Court.
22
1.5 That the present petition against the respondents is not maintainable as the Court
does not have the jurisdiction to foray into matters which are exclusively designated
to the Legislature of Swatantra.
1.5.1 That it is humbly submitted to this Hon’ble Court, it is not for the court to determine
whether a particular policy or particular decision taken in the fulfilment of that policy
is fair.10 Further, the scope of judicial review when examining a policy of the
government is to check whether it violates the fundamental rights of the citizens or is
opposed to the provisions of the Constitution, or opposed to any statutory provision or
manifestly arbitrary. 11
1.5.2 Furthermore, in the English case Lord Scarman in Nottinghamshire County Council v.
Secretary of State the Court held that 'Judicial review' is a great weapon in the hands of the
judges; but the judges must observe the constitutional limits set by our parliamentary system
upon the exercise of this beneficial power.
1.5.3 It is further submitted that by way of judicial review the court cannot examine the
details of the terms of the contract which have been entered into by the state. Courts
have inherent limitations on the scope of any such enquiry. 12
1.5.4 It is imperative to bring to the notice of this Hon’ble Court under Schedule 7, List I,
Entry 53, “the regulation and development of oilfields and mineral oil resources;
petroleum and petroleum products; and other liquids and substances declared by
Parliament by law to be dangerously inflammable” lies exclusively with the Central
Government of Swatantra.
1.5.5 Furthermore, the respondent Company was granted a license for oil exploration and
mining, which is mandatory to obtain in order to undertake such activity, under
10
Tata Cellular v. Union of India, (1994) 6 SCC 651
11
Directorate Of Film Festivals & Ors v. Gaurav Ashwin Jain & Ors., (1990) 3 SCC 223
12
Sterling Computers Limited Etc v. M & N Publications Limited And Ors., (1993) 1 SCC 445
23
Article 4 of the Petroleum and Natural Gas Rules, 1959, subject to the rules and
guidelines set by the Central Government of Swatantra.
1.5.6 It is pertinent to add that the respondent company performed its operations in
accordance with the environmental law regime of the country by adopting modern
oilfield and petroleum industry practices and standards. Furthermore, it is the
exclusive function of the Legislature of Swatantra to set norms applicable to such
undertakings, and having set those norms and granting license to the respondent
company in a fair and reasoned manner, the petitioners cannot appeal this
administrative decision in the Courts of Swatantra.
1.5.7 It must be brought to the attention of this Hon’ble court that the petitioner has not
challenged the constitutionality of the regulations enacted by the Legislature of
Swatantra, and is merely attempting to indirectly appeal the energy policy decisions
of the Government of Swatantra which erodes the doctrine of separation of powers
embodied in the constitution.
24
Issue 2: Whether or not, the veil of corporate personality can be lifted in the present
matter and is extraneous application of Swatantra Law permissible?
1. It is most humbly submitted before this Hon’ble Court that all businesses take substantial
financial, regulatory and reputational risks in good faith. Business plans do not cluster around
self-enrichment at the cost of others; their basic aim is to earn risk-weighted returns on
invested capital. In the present case, the respondent company is a reputed multinational
involved in oil and gas exploration, having its presence and investments in almost all
countries of the world including the neighbouring Paratantra where it wholly owns two
subsidiaries- namely Metal Carbon Technologies Pvt. Ltd (engaged in manufacture of steel
pipes and mallets) and Bio Carbon Pvt. Ltd (engaged in dolphin meat processing).
2.1 That Lifting the Garb of Corporate Personality is beyond the bounds of possibility
2.1.1 It is most humbly submitted before this Hon’ble Bench that corporate structures exist
for genuine purposes, and the time tested principles of limited liability cannot be
contravened without proper cause. “A corporation is by nature, an artificial person
created or authorized by legal statute for some specific purpose 13”. This creature of
statute i.e. the company possesses “an entity distinct from person owning its stock or
other securities14”.
2.1.2 When a business gets big enough, it reconfigures itself into multitude of commonly
owned subsidiaries. A typical large business corporation consists of sub-incorporates.
Such division is legal. It is recognized by company law, law of taxation, takeover
codes etc. On top is a parent or a holding company. The parent is a public face of
business. Subsidiaries are often created for tax or regulatory reasons; they at times
13
HENRY CAMPBELL BLACK, A LAW DICTIONARY CONTAINING DEFINITIONS OF THE TERMS
AND PHRASES OF AMERICAN AND ENGLISH JURISPRUDENCE, ANCIENT AND MODERN, pp. 32
(2nd ed. 1995)
25
come into existence by mergers and acquisitions 15, as in the present case. Sections
2(46) and 2(87) of the Companies Act, 2013 clearly define Holding and Subsidiary
Companies.
2.1.3 The subsidiary companies are the integral part of corporate structure. Activities of the
companies over the years have grown enormously of its incorporation and outside and
their structures have become more complex. Multi-National Companies having large
volume of business nationally or internationally will have to depend upon their
subsidiary companies in the national and international level for better returns for the
investors and for the growth of the company as in the present case.
2.1.4 When a holding company owns all of the voting stock of another company, the
company is said to be a WOS of the parent company. The legal relationship between a
holding company and WOS is that they are two distinct legal persons and the holding
company does not own the assets of the subsidiary and, in law, the management of the
business of the subsidiary also vests in its Board of Directors. In Bacha F. Guzdar v.
CIT16, it was held that shareholders’ only rights is to get dividend if and when the
company declares it, to participate in the liquidation proceeds and to vote at the
shareholders’ meeting.
2.1.5 The phrase "piercing the corporate veil" is described as, "the Court's unwillingness to
permit corporate presence and action to divert judicial course of applying law to
ascertain facts.17" When this principle is invoked, it is permissible to show that the
individual hiding behind the corporation is liable to discharge the obligations ignoring
the concept of corporation as a separate entity.
2.1.6 The attention of this Hon’ble Bench is drawn towards the six important tests that were
prescribed by Atkinson J in the landmark case of Smiths, Stone & Knight Ltd v
15
Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613
16
(1955) SCR 876
17
WEST PUBLISHING COMPANY, WORDS AND PHRASES 84 vol.32A (3d ed.1989)
26
Birmingham Corpn18 namely: 1) Whether profits of the subsidiary treated as profits
of the parent company? 2) Are the persons conducting the business of the subsidiary
appointed by the parent company? 3) Was the parent company brain and head of the
subsidiary? 4) Did the parent company govern the adventure; decide what should be
done and what capital should be embarked on the venture? 5) Did the subsidiary
companies make profit by the parent’s skill and direction? 6) Was the parent company
in constant and effectual control of the subsidiary company? In the present case, the
subsidiaries in question are carrying on a completely different business from that of
the respondent company and the answer to the above questions would be negative.
2.1.7 In the landmark case of Lowendahl v. Baltimore & ORR 19 a New York court
described the required level of control in the following words: “Control, not merely
majority or complete stock control, but complete domination, not only of finances, but
of policy and business practices in respect to the transactions attacked so that the
corporate entity had at the time no separate mind, will or existence of its own. Such
control was never exercised or sought to be exercised by the respondent company.
2.1.8 The scope of completely disregarding the separate and distinct corporate entity is
limited and has to be exercised with utmost caution to unearth a fraud, in the interests
of revenue or for the larger public interest. This principle was well enunciated in the
well-known English case of Gramophone and Typewriter Ltd., v. Stanley20,
wherein an English corporation owned all the stock of a German company, it was
contended that by the reason of this fact the business of the German company was the
business of the English company, and that therefore the profits of the German
company were profits really earned by the English company and could be taxed to the
18
(1939) 4 All ER 116 KB
19
247 AD 144, 157, 287 NY 62, 76 (1st Dep.)
20
L.R. (1906), 2 K.B. 856
27
English company. Both the lower court and the Court of Appeals held that this could
not be done and the corporations must be regarded as distinct and separate.
2.1.9 In the leading Canadian case of R. v. Canadian Pacific Railway Co 21, the Court
rejected the prosecution’s argument that the parent company owned and operated the
subsidiary’s railway and thus was responsible for the environmental violations. The
subsidiary owned the railway assets and operated the railway. The parent merely
owned the subsidiary. Apart from the common ownership and overlapping members
of Board of Directors, there was no evidence on which the court could conclude that
the parent company was legally responsible for the operation of a railway that its
subsidiary operated. The Court was satisfied that the parent company hadn’t assumed
responsibility for the subsidiary’s environmental violations.
2.1.10 It is humbly submitted before the Hon’ble Court that the mere fact that the
stockholders of one corporation are stockholders of another, and that the two
corporations have mutual dealings will not itself justify a disregard of the separate
corporate entity of the 2 companies. In the well-known case of Lange v. Burke22 it
was opined by the court- “ The dealings of a corporation with another corporation,
although it may be composed in part of persons who own the majority stock in each
company, and may be managed by the same officers, if they be in good faith and free
from fraud, stand upon the same basis and affect it and the other corporations in the
same manner and to the same extent, that they would if each had been composed of
different stockholders and controlled by different officers.”
2.1.11 It is most respectfully submitted before this Hon’ble Bench that taking into account
the above judicial precedents from different countries, it is abundantly clear that the
respondent company cannot be held liable directly or vicariously for acts of its
21
(2007) File No. 65796-1
22
69 Ark. 85
28
subsidiaries in any manner whatsoever even though the subsidiaries are wholly owned
by it and nor can the veil of corporate personality be lifted. This is because the
subsidiaries have been carrying out their operations in the host country i.e. Paratantra
for a number of years and any surmise or conjecture as to their formation for carrying
out a fraud or a sham can be ruled out from the very outset.
2.1.12 The esteemed attention of the Hon’ble Bench is drawn towards the judicial
pronouncements in Union of India which would further elucidate the above
contention. It was opined in a well-known case of LIC v. Escorts Ltd 23. “A parent
and a subsidiary company (even a 100 percent subsidiary company) are distinct legal
entities, and in the absence of an agency contract between two companies one cannot
be said to be an agent of the other. If one company is to be fixed with liability as a
principle for the acts of another company, the relationship of agency should be
substantively established. In the present case no such agency exists as the respondent
company and the subsidiaries are carrying out absolutely different businesses and the
subsidiaries in no way have been furthering the business interests of the parent
company.
2.1.13 In a leading case of Punjab National Bank v Bareja Knipping Fasteners Ltd 24 it
was clearly elucidated that companies in a group are nevertheless distinct juristic
personalities with different set out shareholders. A decree against one company
cannot be executed against another company even if they are managed by the same set
of persons. Also, a holding company cannot be made liable for the dues of its
subsidiaries. In Industrial Development Corporation Orissa Ltd v. Regal PF
Commr25, it was opined that the holding company could not be made liable for
23
(1986) 1 SCC 264
24
(2001) 103 Comp Cas 958(P&H)
25
(2002) 112 Comp Cas 527 (Ori)
29
certain sums owed by the subsidiary to the Employee Provident Fund because it could
not be supposed to be the employer of workers of its subsidiaries and the subsidiary
was not a branch of the holding company. Similar view was reiterated in a leading
case of Walnut Packaging Pvt. Ltd. v. The Sirpur Mills Ltd. And Anr26.
2.1.14 In Alembic Glass Industries Ltd. V CCE 27, two public ltd. companies holding
shares in each other were not allowed by the Hon’ble Apex Court of Swatantra to be
regarded as related persons. The Court said that a shareholder does not have interest
in the business of the Company. Similarly in the present case the respondent company
is a shareholder in the subsidiaries which have been acquired as investment vehicles
and has no involvement or role in business of the subsidiaries.
2.1.15 It is most humble submitted before the Hon’ble Bench that enterprises get blurred
signals via increased regulatory (sometimes judicial) overreach and confusion. Such
events have been mostly addressed by post-injury repair, but spheres under influence
are expanding rapidly and unpredictably. No business can afford to undertake risks
over such wide ranging regulatory or judicial actions. Activism has also made fears
omnipresent. One cannot find comprehensive solutions for such anxieties other than
to ask for clear rules that have been properly thought through, and swifter judicial
disposal wherever needed 28. Thus in the present case, it is imperative in the interests
of justice to treat the subsidiaries and the respondent company as separate juristic
entities and any violation of the subsidiaries not be attributed to the parent company.
26
(2008) 144CompCas 454 (AP)
27
(2002) 9 SCC 463
28
SIDDHARTH BIRLA, WHAT YOU SEE IS FAR FROM WHAT YOU GET, PAGE 8, BUSINESS LINE,
JUNE 15TH 2016
30
2.2 That extraterritorial application of Swatantra Law is an unconceivable proposition
2.2.1 It is most respectfully brought to the attention of the Hon’ble Court that the
subsidiaries in question are principally established in the Union of Paratantra, subject
to jurisdiction of the Paratantra Government and would be governed by laws
applicable therein. Any attempt to apply the laws applicable in Union of Swatantra in
respect of environmental violations would be interfering with the territorial integrity
and sovereignty of the Union of Paratantra and no action can lie against the
subsidiaries.
2.2.2 It was iterated in an authoritative ruling by English Court in Lonrho Ltd. v Shell
Petroleum Co Ltd29. If a multinational finds itself in a conflict between the interests
of the home and the host country, the interests of the host country will prevail. Similar
view was taken in France in Fruehauf30 case and should be regarded as an established
principle of international law 31.
2.2.3 In Adams v. Cape Industries Plc 32. The authorities expressed that in the absence of
submission to foreign jurisdiction on the part of Cape, an English registered company,
judgements obtained in the United States against it, could not be recognized and
enforced by English Courts and it could not be said to have been present in the United
States through its subsidiaries or through a company CPC with which it had close
business links. The English courts rejected all arguments which made the company
liable.
2.2.4 In a leading decision of U.S Supreme Court of Kiobel v. Royal Dutch Petroleum
Co33 it was held that the presumption against extraterritoriality applies to claims under
29
(1980) 2 WLR 367 (CA)
30
Societe Fruehauf v. Massardy, [1968] D.S Jur. 147
31
CLIVE. M. SCHMITTHOFF, MULTINATIONALS IN COURT, J.B.L 158 (1972), CLIVE. M.
SCHMITTHOFF, LIFTING THE CORPORATE VEIL J.B.L 103,106 (1980)
32
(1990) Ch.433, Scott J. and CA(pet. Dis. [1990] 2 W.L.R. 786, HL).
33
(2013)133 S.Ct. 1659
31
the ATS, and nothing in the statute rebuts that presumption. The presumption against
extra-territoriality is a canon of statutory interpretation that provides that when a
statute gives no clear indication of an extraterritorial application, it has none. Writing
for the Court, Chief Justice Roberts observed that while the presumption applies to
merits questions, and that the ATS is strictly jurisdictional, the canon should
nevertheless apply to the ATS because of the danger of judicial interference in foreign
policy.
2.2.5 It is brought to the attention of the Hon’ble Bench that though Article 245 of the
Swatantra Constitution permits Swatantra Legislature to frame laws in respect of
extra-territorial causes or aspects that have nexus with India and affect the public
interest of Indian citizens34. Article 260 puts a bar on the extra-territorial legislative,
executive or judicial functions that can be undertaken by the Union of Swatantra as
these functions have to be subject to the agreement with the government of the
country where these functions are sought to be exercised in the present case- Union of
Paratantra.
2.2.6 It is pertinent to note here that corresponding to Section 379 of Companies Act 2013
of Union of Swatantra extends the scope of the Act by making its application
permissible on foreign companies, where not less than 50 percent of the paid up
capital of such foreign company is held by a company incorporated in India. However
such extra-territorial application is legitimate with regard to the business carried out
by the foreign company in Swatantra. In the present case the business is carried out by
the subsidiaries in Paratantra which is in no manner whatsoever connected with
Swatantra.
34
GVK Industries Ltd. and Anr. v. The Income Tax Officer & Anr., (2011) 4 SCC 36
32
2.2.7 The International Court of Justice (ICJ) has accepted the separate legal entity
principle of corporate law. In Barcelona Traction, Light & Power Company35,
(Belg. v. Spain), the ICJ stated: International law has had to recognize the corporate
entity as an institution created by States in a domain essentially within their domestic
jurisdiction. Separated from the company by numerous barriers, the shareholder
cannot be identified with it. The concept and structure of the company are founded on
and determined by a firm distinction between the separate entity of the company and
that of the shareholders, each with a distinct set of rights.
2.2.8 It is most respectfully submitted to the Hon’ble Court, that considering the above facts
any punitive action sought to be taken against the subsidiaries for environmental
violations would not be under the ambit of the jurisdiction of this Court, would be
contrary to the spirit of the Constitution and international law and would amount to an
invasion into territorial integrity and disrespect for the sovereignty of the Paratantra.
35
Case Involving Belgium's Standing To Grant Diplomatic Protection To A Canadian Corporation On The
Ground That The Shareholders Were Belgian Nationals, Barcelona Traction Case (1970) I.CJ. 3, 34-35
33
Issue 3: Whether or not, the need for sustainable development should injunct the Union
of Swatantra to further its developmental interests?
3 It is hereby humbly submitted to this Hon`ble court that Oil & Natural gas are an
indispensable part of a growing economy. The world economy has been developing with
oil as its lifeblood for over a hundred years. Besides being an important energy source,
petroleum products serve as feedstock for several consumer goods, thus playing a
growing and a relevant role in people`s lives. The production, distribution, refining, and
retailing of petroleum taken as a whole represents the world's largest industry in terms of
dollar value.
3.1 The developed nations owe a great deal of their fast-paced economic growth and
development to the oil and gas industry and the developing nations such as ours have to
follow suit. The extraction of petroleum and gas thus becomes an indispensable function
to fuel the economy which is nascent stage of the development process. Even countries
which have successfully traversed the path of growth and development such as United
States provide a heavy public subsidy to petroleum companies, with major tax breaks at
virtually every stage of oil exploration and extraction, including the costs of oil field
leases and drilling equipment.
3.2 The roll-out of Government contracts by Union of Swatantra to the respondent company
for extraction of oil and gas is part of a similar initiative and must not be construed as an
illegitimate nexus for ulterior motives. Such a surmise would certainly amount to grave
injustice and be a deterrent for future developmental activities. The morale of this sector
at such a crucial stage needs a major boost and the acceptance of writ of the present
nature would serve the contrary purpose.
34
3.3 It is humbly submitted to this Hon`ble court that in the case of People United for Better
Living in Calcutta Public v. State of West Bengal 36 that that there should be a proper
balance between the protection of environment and the development process: The society
shall have to prosper, but not at the cost of the environment and in the similar vein, the
environment shall have to be protected but not at the cost of the development of the
society - there shall have to be both development and proper environment and as such, a
balance has to be found out and administrative actions ought to proceed in accordance
therewith and not dehors the same.
3.4 In the instant case, the exploration of oil & gas was a matter of urgent necessity and
national interest, so as to safeguard the economic interest of growing economy.
Therefore, by acts of HPGL &its subsidiaries were performing its duty to safeguard the
wellbeing of the people, keeping in mind that the needs of environment need to be
balanced with the needs of community at large in a developing country and hence there is
no liability for any wrong committed by the Union of Swatantra. Also, since the liability
of polluting the environment cannot be imputed to the company or the government, they
are not liable to pay damages.
3.1 That no cost benefit analysis report has been submitted by the petitioner in the
present matter
3.1.1 It is hereby humbly submitted to this Hon`ble court that cost benefit analysis is
a useful tool to predict the damage caused by the technology in question in
terms of its act which can help management to take precautionary measures or
switch to other alternatives to minimize the cost and reduce the cost. It is
widely used in many technological fields. In order to reach a conclusion as to
36
AIR 1993 Cal 215
35
the desirability of a project all aspects of the project, positive and negative,
must be expressed in terms of a common unit.
3.1.2 It is based on the welfare, economics, and seeks to include all the relevant cost
and benefits to evaluate the net social benefits of a project. In proposal for
ecological imbalance, it is essential that ecological and environmental losses
and sufferance cause to the people, who are displaced, are weighted against
the economic and social gain. It contains simply the work necessary to present
a decision taken with information, which require in order to make a decision. 37
3.1.3 It is hereby humbly submitted to this Hon`ble court that in the case
Sachidanand Pandey vs. State of W.B.38opined that Once the state
government has taken all precautions to ensure that the impact on the
environment is transient and minimal, a court will not substitute its own
assessment in place of the opinion of persons who are specialists and who may
have decided the question with objectivity and ability. Courts cannot be asked
to assess the environmental impact of the pipelines on the wild life but can at
least oversee that those with established credentials and who have the requisite
expertise have been consulted and that their recommendations have been
abided by, by the State Government.
3.1.4 It is hereby humbly submitted to this Hon`ble court that In scientific matters of
complex nature, reference has to be made to a specialized expert body to
examine the matter if all relevant considerations have been taken note of. 39The
entire claim of HSI is based on the mere allegations and concocted stories, not
supported by any substantial scientific data, to impute its validity. Therefore,
37
RAJEST RAI & T.N SINGH, COST BENEFIT ANALYSIS AND ITS ENVIRONMENTS IMPACT IN
MINING, 1 JR. OF INDUSTRIAL POLLUTION CONTROL 20 pp. 17-24 (2004)
38
Sachidanand Pandey v. State of W.B. (1987) 2 SSC 295
39
A.P. Pollution Control Board v. Prof.M.V..Nayadu and Ors. (1999) 2 SCC 718
36
without any substantial evidence, the government of Swatantra and HPGL
cannot be held liable for causing ecological imbalance and animal cruelty.
3.1.5 Arguendo, if it needs to be established that HSI & its subsidiaries violated the
fundamental rights of people of the nation, then HSI has to submit a cost
benefit analysis report, for gathering facts and data in regard to breach of
fundamental right, to look into the veracity of the report released by the as
there have been no precedents where liability is caste upon State merely on
basis of the NGO report without any further inquiry.
3.1.6 The Union of Swatantra cannot be made liable for no whale sighting in 2015
by the use of seismic guns and other techniques used for exploration of oil &
gas. Firstly, since there is no sufficient scientific data or material facts to
support the same, secondly, the use of seismic guns is the only feasible
method by which the exploration of Oil & gas can take place, thirdly, the
exact harm that is caused to environment is not determined. Hence it is
unreasonable to assume that the no whale sighting in 2015 was through the
actions of HGPL & its subsidiaries. The report of the NGO is a mere
conjecture in this regard and an expert committee should be appointed for
looking into the validity of the entire report.
37
Issue 4: Whether or not, adventurism by Union of Swatantra for achieving permanent

solution to the Daiji Method would lead to strained relations with Union of Paratantra?
4.1 It is humbly submitted to this Hon’ble Court that animal sacrifice is a common
religious custom practiced since time immemorial by different societies. It is brought
to the attention of this Court that in Taiji, Japan 40, a similar custom is practiced.
Furthermore, despite international opposition to this method, it has got the force of
law and has continued uninterrupted. It is established that no foreign courts have
jurisdiction to adjudicate on any local custom which has been sanctioned by a
domestic government.
4.2 It is humbly submitted to this Hon’ble Court that the Daiji method of worship has
been practiced by the people of Paratantra for over three centuries. It is pertinent to
add that the practice has uniformly enjoyed the general consent of the people and is
practiced uniformly and consistently. Furthermore, it has been practiced without
interruption, despite the genesis of the Constitution of Paratantra in 2007. It is
established that the Daiji method of whale worship has attained the force of law in
Paratantra.
4.3 It is pertinent to add here that with facts that historically date back to a period when,
and relate to a region in which, the relations between neighbouring States were not
regulated by precisely formulated rules but were governed largely by practice, if a
custom has been established, decisive effects must be attributed to that practice. 41
4.4 It is stated that there exists of a local custom between the Union of Swatantra and the
Union of Paratantra in regards to non-interference in marine migration. Furthermore,
40
Law Concerning the Protection and Control of Animals 105 (1973) Article II: people must not only refrain
from killing, injuring, and inflicting cruelty upon animals, but they must also treat animals properly taking their
natural habits into account; It is to be noted that despite anti-cruelty laws such as the above, the practice having
become a local custom being practiced for long duration consistently, has the sanction and force of law.
41
Case concerning Right of Passage over Indian (Portugal v. India) I.C.J. Reports 1960, p. 6.
38
the Union of Swatantra has raised no objections against it 42 and has refrained from
any interference in the Daiji method of worship. It is clear that the Union of
Swatantra, under the belief of legal obligation has continued to respect the religious
rights of the people of Paratantra and that any interference by the Supreme Court of
Swatantra will be ultra vires and a breach of an international obligation towards the
Union of Paratantra, which will attract international responsibility.
4.5 It is humbly submitted to this Hon’ble Court that General customary international law
contains rules, norms, and principles that are applicable to every State. Article 38 of
the statute of the International Court of Justice gives it jurisdiction to decide cases
based on “international custom as evidence of a general practice accepted as law”
Therefore, States are bound by international customary law of which opinio juris sive
necessitates forms an important essential.
4.6 It has been established that to prove the existence of opinio juris sive necessitates, it
must be shown that the States while acting feel that they are conforming to what
amounts to a legal obligation. There is a need for the existence of a subjective
element, which is implicit in the very notion of the opinio juris necessitatis.43
4.7 It is humbly submitted to this Hon’ble Court that “Sovereignty denotes the basic
international legal status of a state that is not subject, within its territorial jurisdiction,
to the governmental, executive, legislative, or judicial jurisdiction of a foreign state or
to foreign law other than public international law” 44
42
The United Kingdom v Norway (1951) ICJ 3; The court held that the lack of any objection by the government
of Britain refrained from formulating reservations against the local custom of Norway despite having an interest
in the matter amounted to acceptance which strengthened with time.
43
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany
v. Netherlands) I.C.J. Reports 1969, p.3
44
H Steinberger, ‘Sovereignty’, in Max Planck Institute for Comparative Public Law and International Law,
Encyclopedia for Public International Law, vol 10 (North Holland, 1987) 414.
39
4.8 It is humbly submitted to this Hon’ble Court that principle of the sovereign equality is
a part of international customary law and that “between independent States, respect
for territorial sovereignty is an essential foundation of international relations” 45.
4.9 It is further submitted to this Hon’ble Court that both Union of Swatantra and the
Union of Paratantra are signatories to the UN Charter which is founded on the
principle of the sovereign equality of all its Members. 46
4.10 It is humbly submitted to this Hon’ble Court that opinio juris may, though
with all due caution, be deduced from, inter alia, the attitude of the Parties and the
attitude of States towards certain General Assembly resolutions. 47 Furthermore, the
Government of Swatantra is a signatory to General Assembly Resolution 2131
(XX)48, which clearly reflects its commitment to the principles of sovereignty.
4.11 That the Union of Swatantra voted in favour of the General Assembly
Resolution 2625 (XXV). Declaration on Principles of International Law 49, which
reiterates the long standing commitment of the Union of Swatantra towards the
principles of International Comity and Sovereign Equality Amongst States. Therefore,
it is duty of every State and the Union of Swatantra in particular to respect the
territorial sovereignty of others.
4.12 It is also pertinent to bring to the attention of this Hon’ble Court that the
Union of Swatantra is voted in favour of General Assembly resolution 1803 (XVII):
45
Corfu Channel Case (United Kingdom v. Albania), I.C.J. Reports 1949, p. 244, General List No. 1
46
Purposes and Principles, Chapter I , Article 2, Paragraph 1; The Organization is based on the principle of the
sovereign equality of all its Members.
47
Case Concerning Military And Paramilitary Activities In And Against Nicaragua, I.C.J. Reports 1986, p. 14;
General List No. 70
48
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of
Their Independence and Sovereignty, General Assembly Resolution 2131 (XX) states inter alia that “every
State has an inalienable right to choose its political, economic, social and cultural systems, without interference
in any form by another State”
49
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations, General Assembly Resolution 2625 (XXV), declares inter
alia that it is “Reaffirming, in accordance with the Charter, the basic importance of sovereign equality and
stressing that the purposes of the United Nations can be implemented only if States enjoy sovereign equality and
comply fully with the requirements of this principle in their international relations”
40
50
Permanent Sovereignty Over Natural Resources which grants permanent
sovereignty to States over their natural resources and recognizes the inalienable right
of all States freely to dispose of their natural wealth and resources in accordance with
their national interest.
4.13 That it is humbly submitted to this Hon’ble Court under international
customary law, Union of Paratantra is a sovereign entity and has exclusive rights to
legislate and decide its social and economic policy, including the policy adopted with
regards to its territorial waters51, contiguous zone52, exclusive economic zone and its
continental shelf.
4.14 It is also pertinent to add here that the Union of Paratantra has passed The
Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other
Maritime Zones Act which claims exclusive rights over its territorial waters53,
contiguous zone, exclusive economic zone and its continental shelf.
4.15 It is humbly submitted to this Hon’ble Court that the hunting and culling of
dolphins occurs within the limits of the territorial waters and contiguous zone of the
Union of Paratantra, where they enjoy exclusive sovereign rights, and therefore any
interference in the matter will be a violation of the sovereignty of the Union of
Paratantra.
50
Permanent sovereignty over natural resources, General Assembly resolution 1803 (XVII), Declaration 7:
Violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary
to the spirit and principles of the Charter of the United Nations and hinders the development of international co-
operation and the maintenance of peace.
51
The United Nations Convention on the law of the seas, 1982; Article 3; Every State has the right to establish
the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines
determined in accordance with this Convention
52
The United Nations Convention on the law of the seas, 1982; Article 33; The contiguous zone may not extend
beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.
53
The Territorial Waters, Continental Shelf, Exclusive Economic Zone And Other Maritime Zones Act, 1976;
See Article 3; The sovereignty of India extends and has always extended to the territorial waters of India
(hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the air space over,
such waters.
41
4.16 Furthermore, it is stated that the Union of Paratantra is a signatory to the
Convention for the Regulation of Whaling (ICRW), the international regime
governing the killing of cetaceans. It is added that the International Whaling
Commission is the appropriate forum to raise contentions against Parantantra’s policy
towards dolphins.
4.17 It is submitted to this Hon’ble Court that on the basis of the above arguments,
the Supreme Court of the Union of Swatantra has no jurisdiction over matters which
fall under the exclusive sovereignty of the Union of Paratantra and any adventurism
into the Daiji method of worship will infringe international customary law and comity
of nations.
42
PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before this Hon’ble Court that it may be pleased to
direct:-
I. That the sanctity of separate corporate personality be respected and
respondent company and its directors be exculpated of any liability- direct or
vicarious.
II. That any ban sought to be imposed on the activities essential for economic
growth and development of the nation be declared unsustainable.
AND
Pass any other order that it may deem fit in the interest of Justice, Equity and Good
Conscience.
And for this, the respondent as in duty bound shall humbly pray.
SD/-
(Counsel for the Respondents)
43

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R

TEAM CODE: R/A-06

RGNLU, PATIALA: 1st NATIONAL ANIMAL MOOT COURT

THE HONOURABLE SUPREME COURT OF SWATANTRA

THE CONSTITUTION OF SWATANTRA

HUMANE SOCIETY INTERNATIONAL

UNION OF SWATANTRA & ANOTHER.

UPON SUBMISSION TO THE HON’BLE CONSTITUTION BENCH OF THE SUPREME

INDEX OF AUTHORITIES ...........................................................................................5-7

 Cases Cited: .........................................................................................................5-6

SUMMARY OF ARGUMENTS.................................................................................... 16-17

under the purview of Article 12 of the Constitution of Swatantra against the

and the petition against the Respondent Company is not maintainable…...20-21

infringed any Fundamental Rights of the people of Swatantra………………21-22

designated to the Legislature of Swatantra…………………………………...23-24

2.2 That extraterritorial application of Swatantra Law is an unconceivable

4. Whether or not, adventurism by Union of Swatantra for achieving permanent solution to

ABBREVIATION ACTUAL TERM

A.P. Andhra Pradesh

CBD Convention on Biodiversity

CRZ Coastal Regulation Zone

HPGL HydroCarbon Petroleum Gas Limited

HSI Humane Society International

I.C.J International Court of Justice

IWC International Whaling Commission

U.P Uttar Pradesh

W.B West Bengal

WOS Wholly Owned Subsidiaries

I. List of Judicial Precedents

Adams v. Cape Industries Plc 2 W.L.R. 786, HL…………………………………………..31

Ajay Hasia v. Khalid Mujib Sehravardi 1981 SCC (1) 722………………………………...19

Alembic Glass Industries Ltd. v. CCE 2002 (9) SCC 463………………………………….30

Bacha F. Guzdar v. CIT 1955 SCR (1) 876 ………………………………………………...26

Case Concerning Military and Paramilitary Activities In And Against Nicaragua

Corfu Channel Case I.C.J. Reports 1949, p. 244……………………………………………40

Gramophone and Typewriter Ltd. v. Stanley L.R. (1906), 2 K.B. 856……………………..27

Kiobel v. Royal Dutch Petroleum Company (2013)133 S.Ct. 1659 ………………………..31

Lange v. Burke 69 Ark. 85…………………………………………………………………...28

LIC v. Escorts Ltd (1986) 1 SCC 264……………………………………………………….29

Lonrho Ltd. v. Shell Petroleum Co Ltd. 1980 QB 358.....................................................31

North Sea Continental Shelf Cases) 1969 I.C.J. p.3………………………………………..39

R. v. Canadian Pacific Railway Co (2007) File No. 65796-1………………………………..28

S.C. Sharma v. Union Of India, (2007) 99 DRJ 664...……………………………………….19

Sachidanand Pandey v. State of W.B. (1987) 2 SSC 295…………………………………....36

Societe Fruehauf v. Massardy (1968) D.S Jur. 147…………………………………………31

Tata Cellular v. Union of India 1994 6 SCC 651……………………………………………23

The United Kingdom v. Norway 1951 I.C.J 3 ………………………………………………38

Vodafone International Holdings BV v. Union of India (2012) 6 SCC 613………………..26

II. List of Books Referred

1) Company Law- Sixteenth Edition by Avatar Singh

2) Disregard of the Corporate Fiction and Allied Corporation Problems- By Maurice

4) Multinational Enterprises And Tort Liabilities- An Interdisciplinary and Comparative

Examination- By Muzaffer Eroglu

6) Public International Law- V.K Ahuja

7) Legal Control of Multinational Enterprises- Cynthia Day Wallace

8) The Constitution of India 13th Edition- PM Bakshi

9) Indian Constitution Law 7th Edition- MP Jain

III. List of Statutes

1) The Constitution of India, 1950

2) The Environment Protection Act, 1986

3) Companies Act, 2013

4) The Prevention of Cruelty to Animals Act, 1960

5) The Indian Maritime Zones Act, 1976.

IV. List of Articles Referred