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BEFORE THE HON’BLE
SUPREME COURT OF RAMBO
Original Writ Jurisdiction
PUBLIC INTEREST LITIGATION
W.P. (CIVIL) NO. ___ OF 2013
UNDER ARTICLE 32 OF THE CONSTITUTION OF RAMBO
In the matter of Article 19 and Article 21 of Constitution of Rambo
PRO BONO ENVIRO SOCIETY …………….………………………………..PETITIONER
v.
UNION OF RAMBO AND ANR. ………....…………………………………. RESPONDENTS
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION
JUSTICES OF THE SUPREME COURT OF RAMBO
MEMORANDUM ON BEHALF OF THE RESPONDENTS
i
TABLE OF CONTENTS
Table of Contents ........................................................................................................................ i
List Of Abbreviations .............................................................................................................. iii
Index Of Authorities .................................................................................................................. v
Statement of Jurisdiction............................................................................................................ x
Statement of facts ...................................................................................................................... xi
Statement of Issues ................................................................................................................ xiii
Summary of Arguments .......................................................................................................... xiv
Arguments Advanced................................................................................................................. 1
I. WHETHER THE PUBLIC INTEREST LITIGATION FILED AGAINST UNION OF RAMBO AND MARCO INTERNATIONAL LTD. IS MAINTAINABLE. ....................... 1 II. WHETHER THERE HAS BEEN VIOLATION OF THE FUNDAMENTAL RIGHTS OF INDIGENOUS PEOPLE. ................................................................................. 1 II.1. No special right guaranteed to the indigenous people under the Constitution .... 1 II.2. Right to movement of the People of Rambo ........................................................ 2 II.3. No violation of Article 19 of indigenous people ................................................. 2 II.4. No violation Article 21 of the Constitution ......................................................... 3 II.5. No forced assimilation or isolation, so no requirement of rehabilitation ............ 5 III. WHETHER UNION OF RAMBO AND MARCO INTERNATIONAL LTD. CAN BE MADE LIABLE FOR ENVIRONMENTAL DEGRADATION .................................... 6 III.1. Location of Construction Unit at a proper place .................................................. 6 III.1.1. Construction of sea wall permitted under The Coastal Regulation Zone Notification, 2011 .......................................................................................................... 6 III.1.2. Construction Unit in sensitive area ............................................................... 7 III.2. Marco International Ltd. not liable for Pollution ................................................. 7 III.2.1. No liability for Air Pollution ........................................................................ 7 III.2.2. No liability for Noise Pollution .................................................................... 8 III.3. Union of Rambo not liable for climate change in Pongean Sea .......................... 8
iii
LIST OF ABBREVIATIONS
¶ Para ¶¶ Paras
AIR All India Reporter All Allahabad Art. Article Cal Calcutta
CITES
Convention Of International Trade In Endangered Species Of Wild Fauna And Flora, 1975 CMS Convention on Migratory Species, 1983
Del Delhi Ed. Edition ICCPR International Convention on Civil and Political Rights, 1966
ICESCR International Covenant on Economic, Social and Cultural Rights, 1966 ILO International Labour Organisation IUCN International Union for Conservation of Nature Mad Madras
MIL Maraco International Ltd. Ori Orissa p. Page No. PAT Patna PIL Public Interest Litigation
iv
Raj Rajasthan
SC Supreme Court SCC Supreme Court Reports SCJ Supreme Court Journal Sec. Section u/a Under Article
UDHR United Nations Declaration on human rights.
UNFCCC United Nations Framework Convention on Climate Change, 1992
vi
- III.3.1. Report released by the NGO Pro Bono Enviro Society not valid - III.3.2. Not enough scientific data to validate decrease in number of sea turtles - III.3.3. The State is not liable for the haze over the Pongean Sea
- III.4. Union of Rambo and MIL not liable to pay compensation
- III.4.1. Applicability of Doctrine of Public Necessity
- Prayer
- 20.Kharak Singh v. State of U.P, AIR1963SC1295
- 21.Kuttisankaran Nair v. Kumaran Nair, AIR 1965 Ker
- 22.LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811.........................
- 23.M C Mehta v. Kamal Nath, [1997] 1 SCC
- 24.M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj
- 25.Mahesh Chandra v. Regional Manager, U.P. Financial Corpn, AIR 1993 SC
- 26.Malverer v. Spinke (1537) Dyer, (Part I),
- 27.Maneka Gandhi v. Union of India.AIR 1978 SC597......................................................
- 28.Nand Kishore Gupta and Ors. v.State of Uttar Pradesh and Ors. AIR 2010 SC
- 29.Narmada Bachao Andolan v. Union Of India (2000) 10 SCC 664 4,
- 30.Netai Bag v. State of West Bengal, AIR 2000 SC
- 31.Om Kumar v. Union of India, AIR 2000 SC
- State of Rajasthan, (1997) 6 SCC 32.Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest, Vishaka v.
- 33.People's Union for Democratic Rights v. Union of India, AIR 1982 SC
- 34.Ramsumaran Prasad v. ShyamKumari ,1922 AIR P.C.
- of 35.Rekharani Maitra & Ors. v. Additional District Magistrate & Ors. C.R. No. 9063 (W)
- Of India And Others, AIR 2007 SC (Supp) 36.Research Foundation For Science Technology And Natural Resource Policy v. Union
- 37.S. Jagannath v Union of India and Others,W.P.(C) No. 561 of
- 38.S.R Bommai v. Union of India, (1994) 2 SCR
- 39.Sachidanand Pandey and Anr.v. State of West Bengal and Ors. (1987) 2 SCC
- 40.Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC
- And Others, Civil Appeal Nos. 104-105 Of 41.State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit
vii
42.Subhash Kumar v. State Of Bihar, AIR 1991 SC 420; M.C.Mehta v. Union Of India, AIR 1988 SC 1037 ......................................................................................................... 4 43.T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 ................................. 2 44.T.N.Godavarmanthirumulkpad v. Union Of India, AIR 1997 SC 1228 ......................... 4 45.The State of Karnataka and Anr. v. Shri Ranganatha Reddy and Anr. AIR 1978 SC 215.................................................................................................................................. 8 46.Thirumalpad v. Union of India and Ors. (2002) 10 SCC 606..................................... 4, 5 47.Vellore Citizens' Welfare Forum v. Union Of India, (1996) 5 SCC 647 ...................... 4 48.Waman Rao v. Union of India, (1981) 2 SCC 362 ......................................................... 2
BOOKS
- Banerjee, B.P, Writ Remedies, 4th^ Edition, 2008, LexisNexis, Buttersworth Wadhwa Publication.
- Banerjee, Digest of Land Acquisition & Compensation Cases, 2nd^ Edition 1997, Ashoka Law House.
- Basu D.D., Constitution of India, 14th Edition 2009, LexisNexis Butterworths Wadhwa Nagpur.
- Desai. A. Ashok, Environmental Jurisprudence, 2nd^ Edition 2002, Modern Law House.
- Doabia T.S, Environmental & Pollution Laws in India, 1st^ Edition 2005, Wadhwa Nagpur.
- Jain M.P, Indian Constitutional Law, 6th^ Edition 2011, LexisNexis Butterworth Wadhwa Nagpur.
- Jaswal P.S., Environmental Law, 2nd^ Edition 2006, Allahabad Law Agency.
- Karkara G.S., Environmental Law, 1st^ Edition, 1999, Central Law Publications.
- Maheshwara N. Swamy , Law relating to Environmental Pollution and Protection, 2nd Edition 2003, Asia Law House.
- Malik Sumeet, Environmental Law, 1st^ Edition 2008, Eastern Book Company.
ix
- Forest (Conservation) Act, 1980
- Indian Forest Act, 1927
- Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forests Right) Act, 2006.
- Coastal Regulation Zone Notification, 2011
- Coastal Regulation Zone Notification, 1991
- Wildlife Protection Act, 1972
- Panchayats (Extension to the Scheduled Areas) Act, 1996
CONVENTIONS
- United Nations Framework Convention on Climate Change, 1992
- Convention Of International Trade In Endangered Species Of Wild Fauna And Flora 1975
- Convention on Migratory Species, 1983
- The Indigenous and Tribal Populations Convention, 1957 (ILO Convention 107)
- The Rio Submit, 1992
- United Nation Declaration of Human Rights, 1948
- International Convention on Civil and Political Rights, 1966
- International Covenant on Economic, Social and Cultural Rights, 1966
- United Nation Declaration on Indigenous People, 2007
x
STATEMENT OF JURISDICTION
The Honourable Supreme Court of Rambo has the jurisdiction in this matter under
Article 32 of the Constitution of Rambo which reads as follows: “32. Remedies for enforcement of rights conferred by this Part (1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2)The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.”
xii
- With the advent of civilization to Roah, the Indigenous people were either pushed into isolation or exposed to forced assimilation. Moreover, the forests in the region were gradually cut.
- The economy of Rambo suffered a huge setback in December 2010. In March 2012, a powerful cyclone named “Voldemort” ravaged the coastline of Rambo particularly the island of Roah. The island of Roah was affected by severe floods newly constructed Buildings were washed away and people moved into the Nacro forests. The markings of the forests were obliterated by the cyclone.
- A PIL was filed by Ms. Kriantha before the Hon’ble High Court of Roah. The Court held that the authorities have to take steps immediately to strike a balance between providing a place for people to live and protecting the mangrove forests which were of prime importance to the Karyos and to the island of Roah.
- Following the cyclone, the Rambo Coordinated Research Committee (RCRC), a Central Government accredited research institution reported an increase in sea water intrusion and identified Roah as a sinking island giving it a time of only 10 years. They advised the government to relocate the population prevent deforestation. The government decided to build sea walls that could protect the island for at least a decade.
- The government invited tenders to construct sea walls and “Maraco International Ltd.” A company registered in the U.S. was selected; a construction site was set up in Roah at the beach to immediately begin construction activities. Within a month of the site being set up, there were constant complaints of respiratory problems on account of the dust and fumes emitted by the site by the people living in and around residential areas. There were complaints of noise as well especially during night time.
- In August 2012, the “ Pro Bono Enviro Society ” an NGO, published a report in its annual magazine. In January 2013, due to wide protests in Roah, the Central Pollution Control Board (CPCB) directed the closure of the MIL under section 31A of the Air (Prevention and Control of Pollution) Act, 1981. The Court on appeal by MIL struck down the closure order, ordered the company to install necessary pollution control equipment to protect people and the environment from the hazards of air pollution.
- In October 2013, the “Pro Bono Enviro Society” filed a PIL before the Supreme Court of Rambo against the Union of Rambo and MIL with regard to with regard to various issues which have been listed for hearing on 26th^ and 27th^ of October 2013.
xiii
STATEMENT OF ISSUES
ISSUE I:
Whether the Public Interest Litigation is Maintainable against Union of Rambo and Maraco International Ltd.
ISSUE II:
Whether Fundamental Rights of Indigenous People have been violated.
ISSUE III:
Whether Union of Rambo and Maraco International Ltd. can be made liable for environmental degradation
ARGUMENTS ADVANCED
I. WHETHER THE PUBLIC INTEREST LITIGATION FILED AGAINST UNION
OF RAMBO AND MARCO INTERNATIONAL LTD. IS MAINTAINABLE.
A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement of Fundamental Rights^1 , as guaranteed by part III of the Constitution.^2
In the present case, there has been no violation of the fundamental rights since, the action taken by the State was in furtherance of the principle of economic and social justice and thus cannot be termed as arbitrary or as one which was without the application of the mind.
Also, on allegations of Air Pollution, since the High Court has already adjudicated upon a similar dispute the facts being silent as to whether the same was followed or not, no action against MIL lies. Further, no scientific data per se has been provided from the side of the petitioner to substantiate its allegations as regards to either air or water pollution and hence the PIL is not maintainable.
II. WHETHER THERE HAS BEEN VIOLATION OF THE FUNDAMENTAL RIGHTS OF INDIGENOUS PEOPLE.
The fundamental rights of the indigenous people have not been violated since [II.1] No special right is guaranteed to them under the Constitution[II.2] No violation of Article 19; [III.3] and Article 21 of the Constitution^3 ; [II.4] No violation of fundamental rights because of forced assimilation or isolation, therefore, no rehabilitation is required.
II.1. No special right guaranteed to the indigenous people under the Constitution
The term “indigenous people” is not recognized in India^4 and so the indigenous people have not been guaranteed any special status, per se, unless recognized under the Constitution as Scheduled Caste or Scheduled Tribe. Therefore, all the tribals are considered to be indigenous, but all indigenous people are not considered as tribal^5. To be safeguarded under
(^1) Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of rights as guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III. 2 Andhra Industrial Works v.. Chief Controller of Imports and Ors AIR 1974 SC 1539 ¶ 10 , Guruvayur Devaswom Managing Committee v_. CK Rajan and Ors_. (2003) 7 SCC 546 ¶ 50, BALCO Employees Union (Regd.) 3 v_. Union of India_ (2002) 2 SCC 333. 4 Constitution of Rambo is^ Pari Materia^ to Constitution of India [hereinafter referred as Constitution ] Convention on Indigenous People, Available at http://www.ilo.org/wcmsp5/groups/public/---ed_norm/ normes/documents/publication/wcms_106474.pdf, Last Accessed 18 5 th^ October 2013. State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others , Civil Appeal Nos. 104-105 Of 2001.
Article 244(1) of the Constitution as Scheduled Caste and Scheduled Tribe the President has to recognize the indigenous people as Scheduled Tribe and Scheduled Caste or the area as the Scheduled area under Article 341 and 342 of the Constitution.
In the present case, the indigenous population “Karyos” cannot be considered as Scheduled Tribe or Scheduled caste, as the facts are being silent whether they have been declared by President as Scheduled Tribe, one cannot assume that, the same has been done.
II.2. Right to movement of the People of Rambo
The fundamental rights of the citizens, to reside and to settle freely throughout the territory of the Raoh, have been safeguarded under Article 19(1) (e) of the Constitution^6. Also the UDHR^7 and ICCPR^8 , recognize the freedom to movement and residence in the borders of the State. The international conventions are considered important to enlarge the scope of the fundamental rights.^9
Therefore, the citizens of Rambo have a right to reside and settle in Roah as guaranteed under Article 19 (1) (d) and (e) and the Government being the guarantor of the fundamental rights have a duty to protect the rights of all the citizens of Rambo.
II.3. No violation of Article 19 of indigenous people
Article 19(1) (e) provides the right to reside and settle in any part of the territory of Rambo, however, reasonable restriction can be put on the same under Article 19(5) if it is in the public interest.^10 Therefore, the rights of the indigenous people to reside and settle in the forest area is not an absolute right and can be restricted under Article 19(5) if it is in the public interest.^11
“Public interest” means a subject matter in which the rights of the public or a section of the public is interested^12 or the means of concern which is advantageous to people as a whole.^13
(^6) Court on its own motion v. Union of India , 2012(12) SCALE 307 , Kharak Singh v. State of U.P , AIR 1963 SC 12957 , Waman Rao v. Union of India , (1981) 2 SCC 362 , Bachan Singh v. State of Punjab , AIR 1980 SC 898. 8 Article 13, UDHR. 9 Article 12, ICCPR. Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest , Vishaka v. State of Rajasthan , (1997) 6 SCC 241 10 at 249, People's Union for Democratic Rights v. Union of India , AIR 1982 SC 1473 at 1487. 11 Ibid at 5. Court on its own motion v. Union of India , 2012 (12) SCALE 307 ; Kharak Singh v. State of U.P , AIR 1963 SC 12 1295 , Waman Rao v. Union of India , (1981) 2 SCC 362 ; Bachan Singh v. State of Punjab , AIR1980 SC 898. 13 Kuttisankaran Nair^ v.^ Kumaran Nair , AIR 1965 Ker 161. T.M.A. Pai Foundation v. State of Karnataka , (2002) 8 SCC 481.
arbitrariness.^24 It provides that every action of the government must be informed by reasons and guided by public interest.^25 Article 19 provides that a restriction can be characterized to be reasonable if it strikes a balance between the fundamental right and restriction imposed thereon.^26
In the present case, the government of Rambo was continuously facing the problems of overpopulation and the measures taken by the government to control the same were protested^27 , the inevitable consequence was that people had to seek new homes as a result of which people of moved to Roah where there could find the place to live and food to eat.^28
Therefore, it was a duty of the State to provide people who have moved to Roah with accommodation and basic standard of living guaranteed under Article 21 of the Constitution. Since, Article 21 envisages a right to life and personal liberty of a person, which not merely guarantees the right to continuance of a person’s existence but a quality of life^29 , and therefore, State is casted upon a duty to protect the rights of the citizen in discharge of its constitutional obligation in the larger public interest^30 , guaranteed as a fundamental right under Article 21 of the Constitution.^31
The onerous duty lies upon the State under the concept of 'sustainable development'^32 recognized as a fundamental right under Article 21^33 to keep in mind the "principle of proportionality"^34 so as to ensure protection of environment on the one hand^35 and to undertake necessary development measures on the other hand^36 , since, the economic development cannot be allowed to take place at the cost of ecology but the necessity to
(^24) Express Newspaper Ltd. v. Union of India , AIR 1986 SC 872; Netai Bag v. State of West Bengal , AIR 2000 SC 3313. 25 M S Bhut Educational Trust v. State of Gujarat , AIR 2000 Guj 160; LIC v. Consumer Education and Research Centre, 26 AIR 1995 SC 1811. 27 Om Kumar^ v.^ Union of India , AIR 2000 SC 3689. 28 ¶6, Moot Proposition. 29 ¶ 7, Moot Proposition. Francis Coralie v. Union Territory Of Delhi , Air 1994 SC 1844; Vellore Citizens' Welfare Forum v. Union Of India 30 , (1996) 5 SCC 647; Principle 2 of Stockhom Conference,1973 , Principle 1 of Rio Declarartion, 31 Consumer Education And Research Centre And Others^ v.^ Union Of India And Others^ , Air 1995 SC 922. 32 Ibid ¶ 28. Brutland Commission Report, 1983; Principle 2 of Stockhom Conference,1973; Principle 1 of Rio Declarartion,1992. 33 Indian Council for Enviro-Legal Action v. Union of India , (1996) 5 SCC 281; Vellore Citizens' Welfare Forum 34 v. Union of India , (1996) 5 SCC 647. 35 Thirumalpad^ v.^ Union of India and Ors. (2002) 10 SCC 606;^ M C Mehta^ v.^ Kamal Nath , [1997] 1 SCC 388. 36 Court On Its Own Motion^ v.^ Union of India ,^2012 (12)^ Scale^307. Thirumalpad v. Union of India and Ors. (2002) 10 SCC 606; Subhash Kumar v. State Of Bihar , AIR 1991 SC 420; M. C.Mehta v. Union Of India , AIR 1988 SC 1037; Narmada Bachao Andolan v. Union Of India (2000) 10 SCC 664; A.P.Pollution Control Board v. M.V.Nayudu , AIR 1999 SC 812; T.N.Godavarmanthirumulkpad v. Union Of India , AIR 1997 SC 1228.
preserve ecology and environment should not hamper economic and other developments^37 , which includes generation of revenue and public interest.^38
Hence, despite the fact that life of the indigenous people is dependent on the forest, the Government not only has to consider the necessity to preserve the ecology, while allowing deforestation, but also has to consider the importance of public projects for the betterment of the conditions of living of the people and the revenue generated from such projects.
Therefore, the fact that the new buildings were constructed by doing deforestation in some area of reserved forest cannot be considered to be violation of Article 21 as it is protecting the right to shelter of the citizens of Rambo and generates revenue which will further provide aid to the government to save the island from submerging. Also, the fact that the indigenous people^39 were not relocated from the reserved forest considering their importance to environment shows that the Government had indeed taken into account the needs and rights of the indigenous population and thus, it cannot be said that the Government violated the same. Therefore, the government had struck a balance to protect the fundamental right of all the citizens including indigenous population, so it cannot be considered that there has been violation of Article 21 especially the right to life of indigenous people, since; the action of the government is guided by public interest.
II.5. No forced assimilation or isolation, so no requirement of rehabilitation
In the present case, the rights of the indigenous people have not been violated on account forced assimilation or isolation, since; the movement of people to forest was rather an inevitable consequence. Further no law casts a duty upon the government to absolutely protect the indigenous people from assimilation or isolation, as it is considered that the gradual assimilation of the indigenous people in the mainstream of the society will lead to their betterment and progress.^40
Moreover the Government of Rambo has already promised to relocate the people of Roah considering the inhabitable conditions of island of Roah; therefore, the point of rehabilitation does not arise.
(^37) Banwaslseva Ashram v. State of U.P , AIR 1987 SC 374 ; T.N. Godavarmanthirumalpad v. Union Of India And Ors 38 ., (2002) 10 SCC 606. Research Foundation For Science Technology And Natural Resource Policy v. Union Of India And Others, AIR 2007 SC (Supp) 852. 39 40 ¶5,Moot Proposition. Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664.
