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CHENNAI DR. AMBEDKAR GOVERNMENT LAW COLLEGE, PUDUPAKKAM
CLINICAL COURSE IV – MOOT COURT EXERCISE & INTERNSHIP (FAXD)
IN THE HON’BLE SUPREME COURT OF ARESSIA
BETWEEN THE MATTER OF
TWO ARESSIAN STATES PETITIONERS / APPELLANTS
V/S
UNION OF ARESSIA RESPONDENT
517A0184 – ‘V’ YEAR ‘B’ SECTION
MEMORANDUM ON BEHALF OF THE RESPONDANT
COUNSEL FOR THE PETIONER
INDEX
LIST OF ABBREVIATIONS…………………………………………………
INDEX OF AUTHORITIES………………………………………………….
I. CASE LAWS…………………………………………………
II. JOURNALS………………………………………………….
III. STATUTES…………………………………………………..
IV. LEXICONS…………………………………………………..
V. WEBSITES…………………………………………………..
STATEMENT OF JURISDICTION…………………………………………
STATEMENT OF FACTS…………………………………………………...
STATEMENT OF ISSUES…………………………………………………..
SUMMARY OF PLEADINGS………………………………………………
ARGUMENTS ADVANCED……………………………………………….
I. ISSUE ONE…………………………………………………
II. ISSUE TWO………………………………………………...
III. ISSUE THREE………………………………………………
IV. ISSUE FOUR………………………………………………..
PRAYER…………………………………………………………………….
Mad LJ Madras Law journal SCJ Supreme Court Justice Corpn. Corporation U.S. United States F.C.R. Federal Court Records S.C.R Supreme Court Report Ltd. Limited
INDEX OF AUTHORITIES
I. CASE LAWS:
- St. Of Orissa v. Madan Gopal Rungta (1952) SCR 28
- Reid v. Covert 354, U.S. 1 (1957)
- Durga das Basu Shorter Constitution. Vol.1 792 page
- Vishwanathan R. V. Abdul wajid AIR 1960 MYS 261
- Konavalaov v. Commander CoastGuard Region
2006 (4) SVV 620, 643
- Sarbananda sanawol v. Union of India 2005 (5) SCC 665, 723
- St. of Bihar v. Chaurusila dasi AIR 1959 SC 1002
- Municipal Committee Pattiala v. Model Town Residency
AIR 2017 SC 2844
- Kuldip nayar v. Union of India (2006) 7 SCC 1, 159 (para 463)
- Sudhir v. W.T.O. AIR 1969 SC 59
- Asst. Commiccioner Urban Tax madras v. Buckingham and Camatic Co Ltd.
AIR 1970 SC 169
- State Of Bombay v. F.M Balsra AIR1951 SC 318
- Bharat Hydro Power Corpn. Ltd. V. State of Assam
AIR 2004 SC 3173
- Sita ram sharma v. St. of Rajastan AIR 1974 SC 1373
- Kishori v. The king 1950 FCR 650
- Vellore citizens welfare forum v. Union of india
(1996) 5 SCC 647
- Madhurai Coats Pvt. Ltd. V. Appellate authority WP No. 33882 of 2007
- T.Dhamadhor Rao v. S.O. Municipal Corporation Hyderabad AIR 1987 AP 171 Indian Council for Enviro Legal Action
- Intellectuals Forum Tirupathi v. State of A.P. AIR 2006 SC 1350
- Karnataka v. Appa Bulangale AIR 1993 SC 1126
- F.K. Hussain v. Union of india AIR 1990
- Kishan Pattanayak V. St of Orissa 1989 (1) SCJ 340
- Raj Krishna Bose v. Binod Kanungo AIR 1954 SC 202
STATEMENT OF JURISDICTION
- The respondent submits to the jurisdiction of this Hon’ble Court under Article 133 of the Aressian Constitution which allows for the Supreme Court to pass a remand order on the High Courts.
- The respondent submits to the jurisdiction of this Hon’ble Court under Article 131 of the Aressian Constitution which gives the Supreme Court original Jurisdiction over disputes between the Central Government and one or more states.
- The Petitioner has approached this Hon’ble court under Article 32 for the violation of fundamental rights. The Respondent maintains that there was no violation of fundamental rights and therefore the jurisdiction under Article 32 does not apply.
- Under Article 136 of The Constitution of India and also under Section 22 of National Green Tribunal Act, 2010 read with Section 100 of the Code of Civil Procedure, 1908 the Supreme Court is empowered to hear appeal on those cases that are adjudged by the National Green Tribunal.
- Further Rule 5 Order XLVII of the Supreme Court Rules, 1966^1 allows the Supreme Court to hear all the Petitions together. STATEMENT OF FACTS (^1) Rule 5 Order XLVII of the Supreme Court Rules, 1966 reads as: Where there are two or more appeals arising out of the same matter, the Court may at any time either on its own motion or on the application of any party, order that the appeals be consolidated.
Aressia is a South Asian country with a written Constitution and a federal form of Government. The laws of Aressia are in pari material to the laws of India. A number of rivers flow through the land of Aressia which are essential to the economy which primarily based on agriculture and fishing. In the last two decades, failure of agricultural crops has become a major problem due to shortage of water. This has caused many farmers to be rendered bankrupt and many have committed suicide. In light of this, in 2009 the Aressian Civil Liberties Union (ACLU), a non-governmental organization, filed a writ petition before the Supreme Court of Aressia stressing on the predicament of the people of Aressia due to scarcity of water. The Supreme Court directed the Government of Aressia to constitute a ‘High Level Expert Committee’ to consider the viability of Linking of Rivers across Aressia as well as the formation of an Environmental Impact Assessment body to study the potential environmental affect. In December 2009, the two committees were appointed. One committee was constituted for studying the practical exigencies of linking rivers and; the other committee to assess the potential environmental impact of such a project. The latter committee consisted of individuals from various interest groups such as the Central Government, State Government, Environmentalists, etc. Pursuant to a favorable report from the two Committees, the Linking of Rivers Act, 2010 was enacted by the Central Government. The Act provides for the formation of the ‘Authority for Linking of Rivers’ (ALR) which shall be vested with such powers as necessary to implement the linking of rivers in Aressia. The State Governments and various NGOs criticized the linking of rivers project on the grounds that it would adversely affect the environment, change climatic conditions and that the entire project was politically motivated and would involve corruption. However, the Government decided to go ahead with the project despite the criticism keeping the prospective benefits in mind. Subsequently, in telecasted interview, some members of the aforementioned EIA divulged that there was political pressure on them to give a favorable report to the linking of rivers project. This sparked extensive protests against the implementation of the project. The first phase of the project involved eight intra-state rivers which were to be networked and made inter-state. Among them was the river ‘Bhargavi’ which was a trans-boundary river shared with neighboring country Boressia. Moreover, the State of Vindhya has the largest wetlands in Aressia and it was feared that the project would irreparably damage the same. In light of this, the Government decided to exclude Vindhya from the project which meant that the people of Vindhya and Normanda would still face water scarcity. Pursuant to the aforementioned factual matrix, two Aressian States moved the
STATEMENT OF ISSUES
ISSUE 1: Whether the petition filed by Forum for Environmental Right (FER) is maintainable before the High Court of Neruda? ISSUE 2: Whether the Linking of Rivers Act, 2010 is ultra vires to the Constitution of Aressia? ISSUE 3: Whether, the exclusion and non-implementation of Linking of River Project for the State of Vindhya is violative of fundamental rights of people of State of Vindhya and State of Normanda? ISSUE 4: Whether the Linking of Rivers Project violates the environmental rights of citizens of Aressia?
SUMMARY OF ARGUMENTS
I. Whether the petition filed by the FER is maintainable in the High Court of
Neruda? It is humbly submitted by the Respondent that the petition is not maintainable in the High Court of Neruda. Fundamental rights guaranteed to the foreigners by the Aressian Constitution extend to those who are lawfully residing in the territory of Aressia. Here the aggrieved party are the people residing in Boressia. Also, when a petition is dismissed inlimine , the Supreme Court will not remand the case to High Court. II. Whether the Linking of Rivers Act, 2010 is Constitutionally valid? It is humbly submitted by the Respondent that the Linking of Rivers Act, 2010 is Constitutionally valid. There is presumption that the legislature knows its limits and it is legislating only within its jurisdiction. Mere incidental encroachment of one of the Legislature upon the other will not invalidate it. III. Whether, the exclusion and non-implementation of Linking of Rivers Project for the State of Vindhya is violative of fundamental rights of people of State of Vindhya and State of Normanda? It is submitted that there is no violation of Fundamental rights of the people of Vindhya whose state is a water rich one. Further, implementing the project will cause large scale violation of right to environment and water, due to destruction of Wetlands. IV. Whether the Linking of Rivers Act, 2010 violates the environmental rights of citizens of Aressia? The shortage of water in country is depriving a majority of the population of their right to life. The principle of sustainable development must be followed and a balance between development and environment must be created. The project will promote right to water, food and freedom of trade. It is submitted that the principle of harmonious construction must be applied to conflicting laws. It does not violate any person’s environmental rights as it does not affect them in said aspects legitimately.
rights to lead an ordinary private life^7. The citizens of Boressia do not reside in the territory of Aressia and cannot enjoy these rights. II. Whether the Linking of Rivers Act, 2010 is Constitutionally valid? It is humbly submitted by the respondent that there is a presumption that a legislature is acting within its competence. In construing an enactment of a legislature with limited competence, the Court must presume that the legislature in question knows its limits and that it is only legislating for those who are actually within its jurisdiction^8. The enactment must receive such interpretation as will make it operative and not inoperative^9. In order to sustain the presumption of constitutionality, the court take into consideration matters of common knowledge and at the same time, the court must presume that the legislature understands and correctly appreciates the needs of its peoples^10. The words in the statute must clearly show that the legislature has travelled outside the limitation laid down by the constitution for the Court to deem the statute as being invalid or ultra vires^11. A matter within the legislative competence of the legislature has to be left to the discretion and wisdom of the latter so long as it does not infringe any constitutional provision or violate the fundamental rights^12. Entry 56 of List I allowed the parliament to legislate on interstate rivers and river valleys if it deems it to be of public interest. The words “ notwithstanding anything ” in the beginning of clauses 1 and 2 and the words subject to clause 1 and clause 2 at the beginning of clause 3 of Article 246 of the Aressian institution secured the predominance of supremacy of the union legislature in case of overlapping as between lists I, II and III.^13 The words in the S.3 of the Linking of Rivers Act 2010 give the Central Government power to do whatever is necessary to implement the ILR project. There is nothing that is clearly laid (^7) Sarbananda Sanawol v. Union of India, 2005 (5) SCC 665, 723 (^8) St. Of Bihar v. Charusila Dasi, AIR 1959 SC 1002 (^9) Ibid (^10) Municipal Committee Patiala v. Model Town Residency Associatiion. AIR 2017 SC 2844 (^11) R.M.D.C. v. Union of India, AIR 1957 SC 628 (^12) Kuldip Nayar v. Union of India, (2006) 7 SCC 1, 159 (para 463) (^13) Sudhir v. W.T.O. AIR 1969 SC 59
out; showing infringement of list II. The Parliament has the power to legislate over interstate rivers and the implementation of the project will convert existing state exclusive rivers into interstate rivers. It is submitted that this minor encroachment on list II is necessary for the greater good of the people of Aressia and that the legislation covers; not only exclusive rivers but other items in the lists like forests; which fall under list III potentially making this an incidental encroachment. Jurisdiction assigned to the particular legislature is determined by studying the true nature or pith and substance of the legislation.^14 The doctrine of Pith and Substance is applied to ascertain whether the particular impugned statute substantially encroaches upon the legislative power or is only an incidental encroachment not affecting materially the distribution of legislative powers between the Union and the States^15. The Pith and Substance of the legislation is covered by an entry within the permitted jurisdiction of the legislature and any incidental encroachment in the rival field is to be disregarded^16. If the substance of the enactment falls within the Union List, then the incidental encroachment by the enactment on the state list would not make it invalid^17. Ascertaining Pith and Substance requires considering the purpose of object of the legislation, as distinguished from its effects, such as the economic or other results following from the impugned legislation^18. The object of the legislation means the point of view of the legislator in legislating. The word is used subjectively of the legislator rather than objectively of the matter legislated upon^19. (^14) Asst. Commissioner Urban Tax Madras v. Buckingham and Carnatic Co ltd, Air 1970 SC
(^15) Union of India v. Shah Goverdhan L. Kabra Teachers College, AIR 2002 SC 3675 (^16) St. Of Bombay v. F.M. Balsra, AIR 1951 SC 318 (^17) Bharat Hydro Power Corpn Ltd. V. State of Assam, AIR 2004 SC 3173. (^18) Sita Ram Sharma v. St. of Rajasthan, AIR 1974 SC 1373. (^19) Kishori v. The King, 1950 FCR 650
State of Vindhya submitted an EIA report that detailed the negative effects of the project on the Wetlands. The right to environment has been guaranteed by the courts in numerous cases.^24 The Courts have also stressed on the needs of sustainable development, on meeting the needs of the present without compromising the needs of future generations.^25 Currently there is only section of the population that is suffering, but the destruction of the wetlands will lead to the violation of right to environment of the larger population. The importance of Wetlands was discussed in People United for Better Living in Calcutta v. State of West Bengal^26. It was observed that wetlands are useful for nutrient recovery and cycling, releasing excess nitrogen, inactivation of phosphates, removing toxins, chemicals, heavy metals through absorption by plants and also in treating waste water. They also reduce siltation of rivers, mitigation of floods and can even act as buffers against storms. On a global scale, the wetlands function significantly in maintaining air and water quality including nitrogen, sulphur, and methane and carbon dioxide levels. IV. Whether the Linking of Rivers Act, 2010 violates the environmental rights of citizens of Aressia? It is now an accepted fact of law that environmental rights have been granted to the people under Article 21 of the Aressian Constitution through prior judgments of the Supreme Court of India. Aressia, being a primarily agricultural country; the shortage of water throughout the country is affecting the lives of thousands of farmers who are resorting to suicide. The respondent submits that this Court has repeatedly propounded the principle of sustainable development. The Courts have accepted to provide a balanced view of priorities while deciding environmental matters^27. The Courts have also observed that the traditional concepts of development and ecology are opposed to each other and that is no longer acceptable^28. (^24) T. Dhamodhar Rao v. S.O. Municipal Corpn, Hyderabad, AIR 1987 AP 171, Indian Council for Enviro Legal Action c. Union of India, (1996) 5 SCC 281, Vellore Citizens Welfare Forum’s Case supra. (^25) Intellectuals Forum, Tirupathi v. State of A.P. AIR 2006 SC 1350 (^26) AIR 1993 CAL 215 (^27) M.C.Mehta (Taj Trapezium Matter) (^28) Vellore Citizen welfare Forum v. Union of India
Sustainable development as a balancing act between ecology and development has been accepted as a part of the Customary International Law^29. As Aressia is a developing nation, certain environmental sacrifices are necessary, while keeping in mind the nature of the environment in that area and its impact on the community. The Central Government has followed this Hon’ble Court’s orders in the creation of two committees to sort out the practical and environmental problems related to this issue. The EIA committee has submitted its report with the precautions that are to be taken. It must further be noted that the Central Government excluded the entire State of Vindhya in order to protect its Wetlands, proving its commitment to sustainable development. The ILR project will also promoted some of the basic rights of the people. The courts have recognized the right of access to drinking water^30 and groundwater^31. It is also submitted that the access to water will promote the freedom of trade of the suffering farmers under Art 19 (1)(g) of the Constitution. The project will also allow for the ensuring of the right to food, which the courts have recognized as being an obligation of the state^32. It is submitted that precedents have been encouraging. The Periyar - Vaigai basin transfer has successfully resolved problems resulting from droughts in the southern Indian district of Tamil Nadu, irrigating up to 68,558ha of land^33. Apart from this there are various other projects in Australia, the Americas, Africa and Europe suggesting that interlinking of river basins is viable. Reports from other countries show that ILR has the capability of reducing the effects of floods, droughts and augmenting the income in rural areas in general and in agriculture in particular^34. (^29) Ibid (^30) Karnataka v. Appa Bulangale. AIR 1993 SC 1126 (^31) F.K. Hussain v. Union of India (^32) Kishan Pattanayak v. State of Orissa, 1989 (1) SCJ 340 (^33) Ministry of water Resources Official website as seen on 5th^ April 2012, Mullai Periyar dam. (^34) Economic effect of Inter-linking of Rivers programme, Revised Final Report by NCAER, April 2008 p.3 – The ILR Programme is focus on reducing irrigation uncertainties and mitigating the adverse impact of floods and droughts. Every year, during the south-west monsoon season, while on the one hand certain parts of Assam, Bihar and Orissa get affected by floods, some parts of southern india face accurate shortage of water on other.
