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THE 3
RD
NATIONAL MOOT COURT COMPETITION 2020
BEFORE
THE HONORABLE SUPREME COURT OF INDIANA
IN THE MATTER OF
WRIT PETITION NO. ____/ OF 2019
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA)
SLYTHERIN……………….……………………………………….…...PETITIONER
V.
DUCKBURG & CO.…………………………......
……………………...RESPONDENT
PUBLIC INTEREST LITIGATION NO. ___OF 2019
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA)
MR.POTTER…………………….…….………………..………………PETITIONER
V.
ABC CORP &
ANR………………………………………………......RESPONDENTS
MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE JUDGES OF THE
SUPREME COURT OF INDIANA
MEMORANDUM ON BEHALF OF THE RESPONDENT
LIST OF ABBREVIATIONS
&……………………………………………………………………………………………And AIR………………………………………………………………………..…All India Reporter Anr………………………………………………………………………………………Another Art……………………………………………………………………………..………….Article CPCB…………………………………………………….……Central Pollution Control Board Ed…………………………………………………………………………….…………..Edition Hon’ble……………………………………………………………………………....Honourable Ibid………………………………………………………………………..………………Ibidem LJ…………………………………………………………………….……………...Law Journal PIL…………………………………………………………….….……Public Interest Litigation SPCB……………………………………………………….……..State Pollution Control Board Ors…………………………………………………………………...…………………….Others Sec.…………………………………………………………………..……………………Section SC……………………………………………….………………….…………….Supreme Court SCC………………………………………………….….…………….……Supreme Court Cases UOI……………………………………………………….……….….…………...Union of India W.P…………………………………………………………………………………Writ Petition
INDEX OF AUTHORITIES
CONSTITUTION
- The Constitution of India
STATUTES
- The Environment (Protection) Act, 1986
- The National Green Tribunal Act, 2010
3. Air (Prevention & Control of Pollution) Act, 1981
4. Water(Prevention & Control of Pollution) Act 1974
5. The Public Liability Insurance Act, 1991
6. The Kerala Ground Water(Control & Regulation) Act, 2002
CASES
- Janata Dal v. H.S. Chowdhary, AIR 1993 SC 892
- State of H.P v. Student’s parent, Medical College, Shimla, AIR 1985 SC 910
- Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664
- Kapan v. Jagmohan AIR 1981, SC 126, 25..
- Chanan Singh v. Registrar. Co-op Societies, AIR 1976 SC 1821, 6-7.
- Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
- BALCO Employees’ Union (Resd.) v. Union of India AIR 2009 SC 350.
- Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726.
- PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732.
- Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
- Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
- Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457.
- PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732.
- Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434.
- Mrs.Susetha v. State of Tamil Nadu (AIR 2006 SC 2893)
- P.R Subhas Chandran v. Government of A.P. (2001) (5) ALD 771 (DB)
BOOKS
1. M.P.JAIN, INDIAN CONSTITUTIONAL LAW, (6TH ED, LEXISNEXIS BUTTERWORTH WADHWA,
2. P.RAMANATHA AIYAR, ADVANCED LAW LEXICON, (YV CHANDRACHUD, 3 RD ED,
LEXISNEXIS BUTTERWORTH WADHWA, 2009)
3. P. LEELA KRISHNAN, ENVIRONMENTAL LAW, LEXIS NEXIS, INDIA, 2008, 3RD EDITION
4. DIVAN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA, OXFORD, 2010, 11TH
EDITION
5. JUSTICE T.S. DAOBIA, ENVIRONMENTAL AND PROTECTION LAWS IN INDIA, WADHWA,
INDIA, 2005 EDITON, VOLUME I AND II
6. ROBERT AND TOFFLAN WEISZ, CHRONICLES FROM THE ENVIRONMENTAL JUSTICE
FRONTLINE, CAMBRIDGE, ENGLAND, 2011, 1ST EDITION
7. S.C. SHASTRI, ENVIRONMENTAL LAW, EASTERN BOOK COMPANY, INDIA, 2008, 3RD EDITION
8. BILL MCGILLIVARY, ENVIRONMENTAL LAW, OXFORD, USA, 2008, 7TH EDITION
9. SHANTI KUMAR, INTRODUCTION TO ENVIRONMENTAL LAW, WADHWA, INDIA, 2008, 2ND
EDITION
10. SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY, (2ND ED,
OXFORD UNIVERSITY PRESS, 2012)
11. DR. H.N. TIWARI, ENVIRONMENTAL LAW, (3RD ED, ALLAHABAD LAW AGENCY, 2010)
12. DR. S.C. TRIPATHI & MRS. VIBHA ARORA, ENVIRONMENTAL LAW, (5TH ED, CENTRAL LAW
PUBLICATIONS, 2013)
WEBSITES REFERED
- www.manupatrafast.com
- www.scconline.com
- www.casemine.com
4. www.indiankanoon.org
STATEMENT OF JURISDICTION
It is most humbly submitted that the Respondents are appearing before this Hon’ble Supreme Court in all the matters the petitioners have invoked and linked by this Court under Article 32^1 of the Constitution of Indiana. The respondents most humbly and respectfully submit before the jurisdiction of the present court and accept that it has the power and authority to preside over the present case. (^1) Article 32 in The Constitution of Indiana, 1950 - 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.
level in the city has decreased to a considerable level. The city has not felt this crisis as it had another source of water. However, due to the contaminated water of Riverdale, it became unsuitable for drinking. Following this water crisis, ABC Corp. has stopped manufacturing soft drinks and is only selling packaged drinking water across the city of Metropolis. Slytherin is a pan Indiana NGO which advocates and fights for the guarantee of fundamental rights to every citizen. Following the contamination of water in the upper course of Riverdale, Slytherin has filed a Writ Petition No. 19 of 2019 before the Supreme Court of Indiana in January, 2019 against the Duckburg & Co. In the petition Duckburg & Co. contended that the company was conscious enough about the harmful effluents of the industry. Therefore, it had constructed treatment plant which was subsequently damaged due to flood. While Slytherin contended that the company should have taken steps to repair the damaged plant immediately after the flood keeping in mind the hazardous substances being discharged from its company. Following the water crisis in the city of Metropolis Mr.Potter has filed a PIL i.e., W.P. No 239 of 2019 against ABC Corp and the Government of Indiana in July, 2019 before the Supreme Court of Indiana. Mr.Potter has contended that excessive groundwater extraction by the ABC Corp for business purposes amounted to violation of fundamental rights. Thus, the company has not abided by business ethics by affecting the lives of the people. He also contended that, Government is also liable for ABC Corp for the excessive use of such natural resources without considering the future needs. However, ABC Corp has contended that it has never, at any point of time, been deviated from business ethics as during water crisis the company stopped manufacturing soft drinks and started selling drinking water. Slytherin NGO after knowing about the petition filed by Mr.Potter has requested the Supreme Court to club WP No. 19/2019 and W.P. No. 239/2019 since the matters of these two petitions are related to water crisis, the Supreme Court of Indiana has clubbed both the petition and decided to hear the same on 23rd^ February, 2020.
STATEMENT OF ISSUES
ISSUE 1: THIS WRIT PETITION IS NOT MAINTAINABLE BEFORE THIS HON’BLE
COURT?
ISSUE 2: WHETHER THE DUCKBURG & CO HAS ABSOLUTE LIABILITY IN THIS
CASE?
ISSUE 3 : WHETHER EXCESSIVE EXTRACTION OF GROUND WATER
AMOUNTED TO VIOLATION OF FUNDAMENTAL RIGHTS?
ISSUE 4 : WHETHER THE GOVERNMENT OF INDIANA CAN BE MADE LIABLE
UNDER THE PUBLIC TRUST DOCTRINE FOR EXCESSIVE GROUNDWATER
EXTRACTION BY ABC CORP?
ISSUE 5 : WHETHER THE EXISTING LEGAL FRAMEWORK GOVERNING
GROUNDWATER CONTAMINATION AND EXCESSIVE GROUNDWATER
EXTRACTION IS ADEQUATE OR NOT?
ISSUE 3 : WHETHER EXCESSIVE EXTRACTION OF GROUND WATER
AMOUNTED TO VIOLATION OF FUNDAMENTAL RIGHTS?
The preamble of the Environment Protection Act, 1986^2 clearly indicates that Parliament took an affirmative action in protection and improvement of Environment.^3 The object of this Environment (Protection) Act, 1986 corresponds to Principles laid down in Stockholm Declaration. It is humbly submitted that there has been no violation of Fundamental rights of the people of the City of Metropolis. The ABC Corp. & The Government of Indiana are fulfilling their obligations by protecting an imperative component of the ecosystem in the manner desired by, The Water (Prevention & Control of Pollution) Act, 1974 and The Ground Water (Control & Regulation) Act, 2002. In doing so the government is striving to uphold the right to environment of the people of Indiana which is concomitant to right to life under Article 21. The fundamental rights of the indigenous people have not been violated by the order of the government since; No special right is guaranteed to them under the Constitution; Article 21 of the Constitution of India and; No violation of fundamental rights because of forced assimilation. ISSUE 4 : WHETHER THE GOVERNMENT OF INDIANA CAN BE MADE LIABLE UNDER THE PUBLIC TRUST DOCTRINE FOR EXCESSIVE GROUNDWATER EXTRACTION BY ABC CORP? Public Trust Doctrine has developed in India through several landmark cases in the Supreme Court. The Supreme Court has deduced this doctrine from various sources such as the Common Law and Article 21 of the Constitution, which guarantees the fundamental right to life, and Article 39 in Part IV of the Constitution which provides for equitable distribution of material resources. The Hon’ble Court cannot be make Government of Indiana liable under the Public Trust Doctrine for the extraction by ABC Corp as it was not based on the scientific observations or violation of the act instead it was just an allegation. Also the ABC Corp. stopped manufacturing soft drinks and started selling drinking water to serve the people during the water crisis in the city of Metropolis. The Ground water authority did not find any violation of the provisions of the act regarding the PTD for which the Government of Indiana did not interfere into the issue of groundwater extraction by the ABC Corp. So, Government of Indiana cannot be made liable under the Public Trust Doctrine. (^2) Id. (^3) Section 2(a) of Environment (Protection) Act, 1986
ARGUMENTS ADVANCED
ISSUE 1 : THIS WRIT PETITION IS NOT MAINTAINABLE BEFORE THIS HON’BLE
COURT OF INDIANA.
It is humbly submitted before the Hon’ble court that, the present petition filed by the Slytherin a pan Indiana NGO, Mr.Potter is not maintainable; because the Petitioner should have a locus standi first. This “Legal standing” has a quintessential connotation and it is a condition precedent for the maintainability of a Writ Petition before the Court. Therefore, it becomes imperative to establish that the interest of the People which the petitioner is espousing, have legally enforceable rights, recognized under the Constitution of Indiana. As the Supreme Court of Indiana has observed, “The requirement of locus standi of a party to litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.” Therefore, it becomes imperative to establish that the interest of the People which the Petitioner in the instant case is espousing, have legally enforceable rights, recognized under the Constitution of Indiana. 1.1 THE PETITIONER HAS NO LOCUS STANDI BEFORE THE SUPREME COURT OF INDIANA. i. It is humbly submitted that, the petitioner in the present does not have a locus standi. The principle of equity enunciates that, “A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective.”^4 ii. The Hon’ble Supreme Court observed that “….The strict of rule of locus standi to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instating an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper; since the dominant object of PIL is to ensure observance of the provisions of the constitution or the law which can be best achieved to advance the cause of community or disadvantage groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having (^4) Ramjas Foundation vs. Union of India, AIR 1993 SC 852
be violated then such questions can be addressed only in the appropriate proceedings and not on an application under Article 32.^10 ii. The Hon’ble court has again reminded that the only ground on which a person can maintain a PIL is where there has been an element of violation of Article 21, on the human rights or where the litigation has been initiated for the benefit of the poor and the underprivileged who are unable to come to the court due to some disadvantage.^11 As per the facts of the case it is well established that the citizens belong to the Gotham city and city of Metropolis, but it is nowhere mentioned that, they are either poor or underprivileged. iii. The environment issues arise because of the unforeseen contingency or the act of god but they were temporary. The defendant’s company’s policies and business ethics were aimed at a greater objective which ultimately will benefit the citizens; hence there is no violation on Article 21 or any other fundamental right guaranteed by the Constitution of Indiana. iv. In the instant case, it is submitted that no fundamental rights of the Petitioners have been violated; therefore, this petition must fail. 1.3 EXHAUSTION OF ALTERNATIVE REMEDIES i. It is humbly submitted that Article 32 is not an absolute right and are subject to the self-imposed restraints evolved by the judiciary. It has been held that since Article 32 confers “extraordinary” jurisdiction, the same must be used sparingly and in circumstances where no alternate efficacious remedy is available.^12 The reason for this is two-fold: first , to reduce the increasing pendency of cases^13 and second , to inspire faith in the hierarchy of Courts and the institution as a whole.^14 Therefore, the Petitioner is required to approach the High Court under Article 226 or the National Green Tribunal before approaching the Supreme Court. ii. Petitioners may contend that the rule of exhaustion of local remedies is unconstitutional and violative of the guarantee in Art. 32(1). However, it is submitted (^10) Ramjilal v. Income Tax Officer, AIR 1951 SC 97. (^11) BALCO Employees’ Union (Resd.) v. Union of India AIR 2009 SC 350. (^12) Avinash Chand Gupta v. Stateof Uttar Pradesh, (2004) 2 SCC 726. (^13) PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732. (^14) Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
that the right under Art. 32(1) is not so absolute that no rules of procedure apply to it. Art. 32(1) confers a right to move the SC by "appropriate proceedings". “Appropriate proceedings” interpreted to mean “procedure relating to form, conditions of lodgment of petitions, and compliance with a reasonable directions”.^15 iii. Indeed, procedural factors such as res judicata^16 , delay in filing the petition and parallel proceedings in another Court are considered before entertaining the appropriateness of a particular proceeding. It is submitted that the rule of exhaustion of local remedies is another such procedural guideline and does not violate the right under Article 32. iv. The power of High Court under Art. 226 is wider than the powers of this Court under Art. 32 of the Constitution.^17 This Hon’ble Court held that in cases concerning environment, specifically, the High Courts would be in a better position to ascertain local conditions and facts and therefore, for proper monitoring, they must be preferred.^18 v. Further, in another case, concerning the safety of development project^19 , this Hon'ble Court transferred the matter to the State High Court as it was expedient. The issues in the instant case are similar and require knowledge and ability to assess local conditions. Therefore, it is submitted that remedy available under Art. 226 is not just an alternative but also, a preferable remedy. vi. Alternatively, the Petitioner also has the option of approaching the National Green Tribunal. It is submitted that the NGT has been expressly established to deal with questions related to “enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.”^20 vii. Therefore, any submission that the NGT cannot enforce rights or protect them adequately is erroneous. Moreover, the NGT is specially equipped to evaluate scientific claims apart from regular civil claims due to the presence of scientific experts on the bench. In fact, the Supreme Court when faced with similar cases, in the (^15) Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996. (^16) Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457. (^17) PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732. (^18) Indian Council For Enviro-Legal Action v. Union of India, (1996)5 SCC 261. (^19) N .D. Jayal v. Union of India, (2004) 9 SCC 362. (^20) Preamble, National Green Tribunal Act (2010).
ISSUE 2: WHETHER THE DUCKBURG & CO HAS ABSOLUTE LIABILITY IN THIS
CASE?
The Supreme Court took a bold decision holding that it was not bound to follow the 19th^ century rule of English Law, and it could evolve a rule suitable to the social and economic conditions prevailing in Indiana at the present day. The rule of Absolute liability was laid down by the Hon’ble Supreme Court in the case of Oleum Gas Leak^24 case and Bhopal Gas Leak^25 case. Where the Hon'ble Court has maximized the limit of ‘Rule of Ryland v. Fletcher’. The rule laid down by the SC is much wider with respect to the rule laid down by House of Lords. i. The Indian Judiciary tried to make a strong effort following the Bhopal Gas Tragedy, December, 1984 to enforce greater amount of protection to the Public. The Doctrine of Absolute Liability was therefore evolved in Oleum Gas Leak Case and can be said to be a strong legal tool against rogue corporations that were negligent towards health risks for the public. This legal doctrine was much more powerful than the legal Doctrine of Strict Liability developed in the case of English tort law Rylands v Fletcher. This meant that the defaulter could be held liable for even third party errors when the public was at a realistic risk. This could ensure stricter compliance to standards that were meant to safeguard the public. ii. In Indiana, absolute liability is a standard of both tortious and criminal liability which stipulates that … where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule of Rylands v. Fletcher. iii. However, Absolute Liability cannot be applied to the present case as it doesn’t have the essential ingredients of such liability. In negligence there is the duty of care imposed upon the defendant. It is based upon the care that an ordinarily prudent man would have taken to avoid any kind of damage, if any accident happens which is outside (^24) M.C.Mehta v. Union of India AIR 1987 SCR (1) 819. (^25) Union Carbide Company vs. Union of India AIR (1989)(1)SCC 674: AIR 1992 SC 248
the reasonable foreseeability of the defendant then defendant won’t be held liable as it is essential ingredient for bringing such liability. 2.1 BALANCING SUSTAINABLE DEVELOPMENT THROUGH DUTY TO TAKE CARE AND APPLYING PRECAUTIONARY PRINCIPLE Blewitt,J. ‘Sustainable development is about protecting and conserving the planet’s natural environment and promoting social equity and a degree of economic equality within and between nations.’ i. In the Bichhri Village Case^26 , the Supreme Court emphasized the importance of the Doctrine of Sustainable Development in the following words, “While economic development should not be allowed to take place at the cost of ecology or by causing wide spread environmental destruction and violation; at the same time, the necessity to preserve the ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice-versa, but there should be development while taking due care and ensuring the protection of environment.” Also the facts of the Bichhri Village Case where absolute liability principle is applied, are different to that of the present case. ii. Adequate measures taken by the industry with respect to having establishing a good treatment plant to treat hazardous waste before disposing it into water and moreover the chemical industry has permit provisions from the central government. In negligence there is the duty of care imposed upon the defendant is based upon the care that an ordinarily prudent man would have taken to avoid any kind of damage, if any accident happens which is outside the reasonable foreseeability of the defendant then defendant won’t be held liable. The company while setting up of the plant has already taken permission from the Central Government and has complied with all the provisions. So, the company cannot be held negligent as per the provisions. iii. Chief Justice Bhagwati was of the opinion that, we cannot adopt the policy to do away with chemical or hazardous industries as they also help to improve the quality of life, a sin this case this factory, was supplying chlorine to Delhi Water Supply (^26) Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.
