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I Team Code: 4 BEFORE THE HONOURABLE SUPREME COURT OF ARESSIA AHALI CITY IN THE MATTER OF TWO ARESSIAN STATES & OTHERS ….PETITIONER Vs. THE UNION OF ARESSIA ….RESPONDENT FOR THE KIND ATTENTION OF THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME COURT
II TABLE OF CONTENTS INDEX OF AUTHORITIES………………………………………………... TABLE OF ABRIVATIONS…………………………………………… CASE LAWS……………………………………………………………... BOOKS ………………………………………………………………….. ARTICLES……………………………………………………………… STATEMENT OF JURISDICTION……………………………………….. STATEMENT OF FACTS………………………………………………….. STATEMENT OF ISSUES……………………………………………….. SUMMARY OF ARGUMENTS……………………………………………. ARGUMENTS ADVANCED……………………………………………….. PRAYER OF RELIFE…….........………………................................................
IV
- PARAS DIWAN, ADMINISTRATIVE LAW, ALLAHABAD LAW AGENCY, INDIA, 2004, 3RD EDITION
- S.P. SATHE, ADMINISTRATIVE LAW, LEXIS NEXIS, INDIA, 2009, 7TH EDITION
- I.P. MOSSAY, ADMINISTRATIVE LAW, EASTERN BOOK COMPANY, INDIA, 2008, 7TH EDITION CONSTITUTION:
- D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, WADHWA, INDIA, 2007, 8TH EDITION, VOLUME I AND II
- D.D. BASU, CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 8TH EDITION
- D.D. BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 14TH EDITION
- D.D. BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2008, 3RD EDITION
- DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, WADHWA, INDIA, 2007, 2ND EDITION, VOLUME I AND II
- H.M. SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL PUBLICATIONS, INDIA, 2004, 4TH EDITION, VOLUME I,II AND III
- V.N. SHUKLA, CONSTITUTION LAW OF INDIA, EASTERN BOOK COMPANY, INDIA, 2008, 11TH EDITION
- D.J. DE, CONSTITUTION OF INDIA, ASIA LAW HOUSE,INDIA, 2008, 3RD EDITION
- M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2010, 6TH EDITION LAW LEXICONS:
- GARNER, BLACK’S LAW DICTIONARY, THOMAS & WEST, U.S.A, 1990, 9TH EDITION B. WEBSITES REFERRED
- www.lexisnexisacademic.com
- www.vakilno1.com
- www.indiakanoon.org
V
- www.manupatra.com
- www.ncaer.org
- www.wikipedia.org
- www.oecd.org
- www.undp.org.in
- www.uncsd2012.org
- www.environmental-mainstreaming.org
- www.britannica.com
- www.internationalrivers.org
- www.riverlinks.org
- www.en.wikisource.org
- www.thesouthasian.org
- www.nrlp.iwmi.org
- www.legalserviceindia.com
- www.thehindu.com
- www.catawbariverkeeper.org
- www.worldwaterweek.org
- www.law.cornell.edu
- www.thebluebook.com
- www.journals.cambridge.org
- www.geology.geoscienceworld.org
- www.worldbank.org
- www.indiantribalheritage.org
- www.legalsutra.org
- www.nwda.gov.in C. CASE LAWS CITED:
- State of Orissa v. Madan Gopal Rungta, (1952) SCR 28
- Reid v. Covert, 354 U.S. 1 (1957)
- Durga Das Basu, Shorter Constitution of India, Vol 1, pg 792.
- Vishwanathan, R. v. Abdul Wajid, S, AIR 1960 MYS 261.
- O. Konavalov v. Commander, Coast Guard Region, 2006 (4) SCC 620, 643.
- Sarbananda Sanowoal v. Union of India, 2005 (5) SCC 665, 723
VII STATEMENT OF JURISDICTION
- The respondent submits to the jurisdiction of this Hon’ble Court under Art 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 Art 131 of the Aressian Constituion 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 Art 32 for the violation of fundamental rights. The Respondent maintains that there was no violation of fundamental rights and therefore the jurisdiction under Art 32 does not apply.
- The Petitioner submits to the jurisdiction of this Hon’ble Court under the National Green Tribunal Act, 2010 which allows for appeals to be preferred to the Hon’ble Supreme Court within 90 days of commencement of award.
VIII STATEMENT OF FACTS Aressia, is a South Asian country with a written constitution and a strong centralising tendency. Aressia is a land of many rivers which include trans-boundary Rivers. Its economy was mainly based agriculture and fishing. But in the past few decades there has been shortage of water, which lead to the failure of agriculture and commission of suicides by many farmers. In the year 2009, an Ngo named ACLU filed a writ petition in Hon’ble SC of Aressia citing the plight of the farmers, women folk and acute water shortages in the area. It pointed out many reasons for the shortage of water including industrial activity, agriculture an urban development. A study report was submitted showing the decline in the number of rivers in Aressia from the 1960’s to the 1980’s and then to 2000, from 782 to 324 out of which 50% of the latter were highly polluted. To address this issue, the ACLU suggested the linking of rivers across the country which the SC of Aressia considered and then directed the Central Government to constitute a high level expert committee to conduct a study on the project’s viability. It also directed the Centre to constitute a committed to conduct Environment Impact Assessment and thus disposed the writ petition. In December 2009, the Centre appointed both the committees. The EIA committee comprised of representatives from various sections including environmental experts, concerned parties and both state and central government representatives. In May 2010. The High Level Expert Committee submitted a detailed report suggesting the linking of certain rivers to mitigate the water shortage problem. The EIA committee identified various social and environmental harms that could be caused by the project and suggested certain precautionary measures. The Linking of Rivers Act, 2010 was enacted in August 2010 under which, S.3 of the Act gave the Central Government the power to any measures deemed necessary for ensuring accessibility of water and linking of rivers all over the country. Further S.3 (3) of the Act provided for the constitution of an Authority for the exercise of such powers and performance
X The Forum for Environmental Right (FER), an international NGO with its head office in Boressia and a branch office in Boranda, the capital of Neruda approached the Hon’ble HC of Neruda challenging the inclusion of Bhargavi as being violative of the fundamental rights of the people of Boressia and destruction of the environment there. The writ petition was dismissed by the HC of Neruda on the acceptance of a preliminary objection raised by the respondents. An appeal has been preferred to the Hon’ble SC of Aressia. In March 2014, a news channel telecast an interview where some members of the EIA committee appointed by the Central Government disclosed that certain states could face various environmental disasters as a consequence of the ILR project. Four members, two representing NGOs and two representing the Central Government confessed to political pressure for a favourable EIA report. This heavily publicised news caused wide spread protests against the ILR project. The Centre for Environmental Rights and Advocacy (CERA), an NGO approached the National Green Tribunal of Aressia, challenging the legality of the Linking of Rivers Act, 2010 on that grounds that it violated the environmental rights of the citizens of Aressia and also the provisions of the Forest (Conservation) Act, 1980. It was dismissed and an appeal was preferred to the Hon’ble Supreme Court of Aressia
XI STATEMENT OF ISSUES
- Whether the petition filed by the FER is maintainable in the High Court of Neruda?
- Whether S.3 of the Linking of Rivers Act, 2010 is Ultra Vires to the Constitution of Aressia?
- Whether, the exclusion of and non-implementation of Linking of Rivers Project for the State of Vindhya is violative of fundamental rights of people of the States of Vindhya and Normanda?
- Whether the Linking of Rivers Act, 2010 violates the environmental rights of the people of Aressia and the provisions of the Forest (Conservation) Act, 1980?
XIII ARGUMENTS ADVANCED I. Whether the petition filed by FER is maintainable in High Court of Neruda? Art 226 of the Aressian Constitution allows for the enforcement of any of the rights conferred by Part III and for any other purpose. The latter means that a legal right has to be present and that such right must have been infringed. 1 It is submitted that the Constitution is considered to be supreme over any signed international treaty.^2 The people of Boressia get their legal rights from the international conventions. It is submitted that for those international conventions to have effect, there must be no local law contrary to the convention. It is submitted that the aim of the project is to make water accessible throughout the country due to the nationwide water shortage. This will promote the right to life, water, equality and freedom of trade throughout the country. Removal of the Bhargavi River from the project will result in the loss of these rights for the people who will benefit from the river’s relation to the project. A proceeding under Art 226 has been held to constitute an independent civil proceeding where it affects civil rights within the purview of Art 133. For an appeal to be made under Art 133, it must be a final order under Art 226. 3 An order dismissing an application ‘ in limine’ , eg that it is not maintainable, is not construed as final orders since they do not determine the rights of the parties.^4 Fundamental Rights of a foreigner are confined to Art 21 and do not enjoy all privileges that are guaranteed to the Citizens. The principles enshrined in Art 21 of the constitution are equally applicable to foreigners as they are deemed to be a citizen.^5 These rights are enjoyed by them only if they are lawfully admitted to the territory so that they have all the rights to lead an ordinary private life.^6 The citizens of Boressia do not reside in the territory of Aressia and cannot enjoy these rights. (^1) St of Orissa v. Madan Gopal Rungta, (1952) SCR 28 (^2) Reid v. Covert, 354 U.S. 1 (1957) (^3) Durga Das Basu, Shorter Constitution of India, Vol 1, pg 792. (^4) Vishwanathan, R. v. Abdul Wajid, S, AIR 1960 MYS 261. (^5) O. Konavalov v. Commander, Coast Guard Region, 2006 (4) SCC 620, 643. (^6) Sarbananda Sanowoal v. Union of India, 2005 (5) SCC 665, 723.
XIV II. Whether Section 3 of the Linking of Rivers Act, 2010 is ultra vires to the Constitution of Aressia? The respondent submits 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.^7 The enactment must receive such interpretation as will make it operative and not inoperative.^8 In order to sustain the presumption of constitutionality, the court and 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.^9 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 Ultra Vires.^10 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.^11 Entry 56 of List I allows 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.^12 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 out; showing infringement of list II. The Parliament has the power to legislate over interstate (^7) State of Bihar v. Charusila Dasi, AIR 1959 SC 1002 (^8) Ibid (^9) Municipal Committee Patiala v. Model Town Residency Association, AIR 2007 SC 2844 (^10) R.M.D.C v. Union of India, AIR 1957 SC 628 (^11) Kuldip Nayar v. Union of India, (2006) 7 SCC 1, 159 (para 463) (^12) Sudhir v. W.T.O, AIR 1969 SC 59
XVI the environment and human health, is based around taking precautions, even if there is no clear evidence of harm, or risk of harm, from an activity or substance.^19 The Precautionary Principle has been firmly embedded into contemporary Indian Law through decisions where it has been held that it is part of Environmental Law of the Country and several international conventions.^20 In A.P. Pollution Control Board (II) v. Prof M.V. Nayudu^21 , the Supreme Court had remarked on the importance of the Precautionary Principle, which remarked that even minor chances for mishap which will result in adverse outcomes for lakhs of people. Wetlands play an important role in the ecosystem, preventing floods and increasing Oxygen flow into the atmosphere. The ILR project could severely impact them which harms a larger section of the population. It is not understood how the farmers of Vindhya are being affected as it is clear that Vindhya is a water rich state, and there is no violation of their fundamental rights. Protection of the Wetlands is for the greater good of the population. Aressia being a signatory to the Ramsar Convention, has a duty to the protection of its wetlands, the largest of which is in Vindhya.
2. Whether there is violation of Fundamental Rights of the people of Normanda? The respondent submits that where there is a reasonable apprehension of damage to the environment, the Supreme Court may interfere directly.^22 It is further submitted that the action of the Government is not arbitrary. There is proper rationale for the decision in that there could be large scale violation the right to environment through the destruction of the wetlands. The procedure followed was also fair and the decision was taken only after the 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.^23 (^19) STUART BELL & DONALD MCGILLIVRAY, ENVIRONMENTAL LAW, OXFORD PUBLICATIONS (7TH EDITION) pp 63 - 64 (^20) Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647 (^21) (2001) 2 SCC 62 (^22) Madurai Coats Private Ltd v. The Appellate Authority, W.P No. 33882 of 2007 (^23) T. Damodhar 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.
XVII 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.^24 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.^25 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 and the provisions of the Forest (Conservation) Act, 1980?
1. Whether there is violation of environmental rights of the people of Aressia? It is now an accepted fact of law that environmental rights have been granted to the people under Art 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.^26 The Courts have also observed that the traditional concepts of development and ecology are opposed to each other and that is no longer acceptable.^27 Sustainable development as a balancing act between ecology and development has been accepted as a part of the Customary International Law.^28 (^24) Intellectuals Forum, Tirupathi v. State of A.P,AIR 2006 SC 1350 (^25) AIR 1993 CAL 215 (^26) M.C.Mehta (Taj Trapezium Matter) (^27) Vellore Citizen Welfare Forum v. Union of India (^28) Ibid
XIX is further submitted that the Linking of Rivers Act, 2010 is a general act with respect to the Forest Conservation Act, 1980; given its wide reach. The phrase ‘notwithstanding anything in’ is in contradistinction to the phrase ‘subject to’.^35 The provisions of S.3 are subject only to the other provisions of the Act which should be given priority as it was enacted later and the inference must be that the Legislature intended to give the subsequent act priority. When two acts with non obstantate clauses clash, the latter act is given priority.^36 The rule that general provisions will not abrogate special provisions cannot be pressed too far. A general statute may repeal a particular statute, and there is no rule of law which prevents this. If the provisions of the special Act are wholly repugnant to the general statute, it would be possible to infer that the former Act was repealed by the general statute.^37 It is further submitted that special law may only repeal general law if they both deal with the same subject matter.^38 S.3 of the Linking of Rivers Act, 2010 has much larger scope than the 1980 Act and primarily deals with Rivers. PRAYER: In light of the legal precedents and principles cited; and in light of the provisions of the Constitution applied and arguments advanced; and in light of the studies relating to the issue referred to, the Respondent most humbly prays that the Supreme Court: (^35) Punjab Sikh Regular Motor Service, Moudhapara, Raipur v. Regional Transport Authority, Raipur, AIR 1966 SC
(^36) KSL and Industries Ltd v. Arihant Threads Ltd, (2008) 9 SCC 763 (^37) Municipal Council v. TJ Joseph, AIR 1963 SC 1561. (^38) Authorised Officer v. M Ramaswamy Gounder (1983) Mad LJ 269.
XX
- Hold that the petition filed by the FER is not maintainable in the High Court of Neruda.
- Declare that S.3 of the Linking of Rivers Act is not Ultra Vires to the Constitution of India.
- Hold that there is no violation of fundamental rights of the people of the states of Vindhya and Normanda by the Respondent.
- Find that there is no violation of environmental rights and also no violation of provisions of the Forest (Conservation) Act 1980 by the Linking of Rivers Act, 2010.
