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BEFORE THE HON’BLE SUPREME COURT OF ARESSIA, AT AHALI CITY
IN THE MATTERS OF:
TWO ARESSIAN STATES & OTHERS ...
APPELLANT
V.
THE UNION OF ARESSIA ...
RESPONDENT
APPEAL NOS. ___/2014, ___/2014,
CLUBBED WITH
WRIT PETITION NOS. ___/2010, ___/
ON SUBMISSION TO THE HON’BLE SUPREME COURT OF ARESSIA
UNDER ARTICLE 32 OF THE CONSTITUTION OF ARESSIA
WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS
COUNSEL APPEARING ON BEHALF OF THE APPELLANTS
TABLE OF CONTENTS
INDEX OF AUTHORITIES……………………………………………………………….....V
STATEMENT OF JURISDICTION........................................................................................XI
STATEMENT OF FACTS......................................................................................................XII
STATEMENT OF ISSUES....................................................................................................XIV
SUMMARY OF ARGUMENTS............................................................................................XV
ARGUMENTS ADVANCED................................................................................................... 1
1. THAT THE WRIT PETITION FILED WITH THE HIGH COURT OF NERUDA IS
MAINTAINABLE................................................................................................................. 1
1.1. That the Forum for Environmental Right has locus standi to file the present petition ............................................................................................................................................ 1 1.2. That the right to a healthy environment and livelihood under Article 21 may stand violated............................................................................................................................... 2 1.2.1 That the ambit of A. 21 is not limited to citizens of Aressia................................ 2 1.2.2 That Article 21 extends beyond the territorial limit of Aressia............................ 3 1.2.3 That the right to a healthy environment and livelihood are present within the auspices of Article 21..................................................................................................... 4 1.3. That including the river ‘Bhargavi’ in the Linking of Rivers Project may violate Customary International Law............................................................................................. 4
- THAT § 3 OF THE LINKING OF RIVERS ACT 2010 IS ULTRA VIRES THE CONSTITUTION OF ARESSIA........................................................................................... 5 2.1 That § 3 of the linking of rivers act in ‘pith and substance’ falls within the exclusive legislative competence of the states................................................................................... 6 2.1.1. The object and purpose of the impugned section relates to subjects exclusively enumerated in List II of the Seventh Schedule.............................................................. 6 2.1.2. The scope of the impugned section relates to subjects exclusively enumerated in List II of the Seventh Schedule...................................................................................... 7 2.1.3. The Effect of the impugned section relates to subjects exclusively enumerated in List II of the Seventh Schedule.................................................................................. 8 2.2. That no resolutions under Article 252 were passed by the State Legislatures as constitutionally mandated.................................................................................................. 8
- THAT THE EXCLUSION AND NON- IMPLEMENTATION OF LINKING OF RIVER PROJECT FOR THE STATE OF VINDHIYA IS VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF CITIZENS OF VINDHIYA AND NORMANDA............ 9
4.1. That Purposive Interpretation Of An Act Can Be Done By Looking At Its Preamble And The Same Helps Ascertain Environmental Rights................................................... 16 4.1.1 That purposive interpretation of an act can be done by looking at its Preamble: ...................................................................................................................................... 16 4.2. That The Environmental Rights Of The Citizens Of Aressia Have Been Violated Under The Environment Protection Act 1986 (EPA)...................................................... 17 4.3. That ‘Reasonable Person’s Test Determines Which Right Is Given Precedence And The Environmental Rights Take Precedence In The Present Case.................................. 18 4.3.1. That the Reasonable Person’s Test is used to determine the right be given precedence.................................................................................................................... 18 4.3.2. That Environmental rights are to be given precedence...................................... 18 4.4. That Environmental Rights Are Governed By The Doctrines Of Precautionary Principle And Sustainable Development And The Same Have Been Breached.............. 19 4.4.1. That the doctrines of Precautionary Principle and Sustainable Development govern environmental rights........................................................................................ 19 4.4.2. That the doctrines have not been adhered to...................................................... 20 4.5. That The Doctrine Of Public Trust Is To Be Exercised By The Government And The Non- Exercising Of The Same Has Violated Environmental Rights Of The Citizens Of Aressia......................................................................................................................... 20 4.5.1. That the Doctrine of Public Trust is to be exercised by the Government of India. ...................................................................................................................................... 20 4.5.2.That the Doctrine has not been followed............................................................ 21 4.6. That the forest (conservation) act’s object is to prevent deforestation and the same has not been adhered to.................................................................................................... 21 4.6.1.That the objective of the Forest (Conservation) Act 1980 is to Prevent Deforestation................................................................................................................ 21 4.6.2. The Objective of the FC Act has not been adhered to....................................... 22
PRAYER.................................................................................................................................. 22
Index of Authorities STATUTES City of San Franciso, Precautionary Principle Ordinance....................................................... 29 Constitution of India.........................................................................................................passim BOOKS, ARTICLES & TREATISES A. ROSENCRANZ& S. RUSTOMJEE, CITIZENS’ RIGHT TO A HEALTHY ENVIRONMENT, 1995, 25 Envir. Pol. & Law........................................................................................................... 28 ARVIND P. DATAR, DATAR ON CONSTITUTION OF INDIA, Wadhwa & Company, ed.2001... 25 C. RAMACHANDRAIAH, DRINKING WATER AS A FUNDAMENTAL RIGHT, Economic and Political Weekly , Vol. 36, No. 8 (Feb. 24 - Mar. 2, 2001)................................................. 23 CAMERON, J., & ABOUCHAR, THE PRECAUTIONARY PRINCIPLE: A FUNDAMENTAL PRINCIPLE OF LAW AND POLICY FOR THE PROTECTION OF THE GLOBAL ENVIRONMENT, Boston College International And Comparative Law Review , 2001............................................................. 30 CHARMIAN BARTON, PRECAUTIONARY PRINCIPLE IN AUSTRALIA, Vol. 22, 1988, Harv. Env. L. Rev................................................................................................................................... 28 CHRISTOPHER S. FORD, RIGHTS AND REMEDIES UNDER THE CONSTITUTION: EXTRATERRITORIAL APPLICATION OF THE WRIT OF HABEAS CORPUS, Duke Journal Of Constitutional Law & Public Policy Special Issue, Vol. 7 No. 2 2012................................ 13 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia & B. P. Banerjee eds., Vol. 6, 8th ed. 2012.............................. 11 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani& T. S. Doabia & B. P. Banerjee eds., Vol. 8, 8th ed. 2012............................... 15 DURGA DAS BASU, COMMENTARY ON CONSTITUTION OF INDIA, Vol. 2, 2007...................... 21 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. 3, 8th^ ed., 2008... 24 G.P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION, 13th ed. 2012............................. 27 H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4 th^ ed., vol. 2, 2007.................................. 11 IND. CONST............................................................................................................................... 14 JONATHAN NASH, STANDING AND THE PRECAUTIONARY PRINCIPLE, Columbia Law Review, Vol. 108, 2008...................................................................................................................... 30 JOSEPH LAX, PUBLIC TRUST DOCTRINE IN NATURAL RESOURCE LAW: EFFECTIVE JUDICIAL INTERVENTION, Michigan Law Review, Vol. 68, Part I...................................................... 31 JUSTICE FAZIL KARIM, JUDICIAL REVIEW OF PUBLIC ACTION, Vol.1.................................... 24 JUSTICE T. S. DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA, Wadhwa Nagpur, Volume 1, 1st^ ed. 2005.......................................................................................................... 14 JUSTICE TS DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA, Wadhwa Nagpur, Vol.1, 1sted., 2005................................................................................................................ 31 iv
Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051................................................. 28 Clark v. Allaman, 71 Kan. 206 : 70 LRA 971......................................................................... 27 D. K. Basu v. State of West Bengal, AIR 1997 SC 610.......................................................... 16 D. K. Yadav v. J. M. A. Industries, AIR 1986 SC 180............................................................ 18 Dalmatia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104.................................. 25 Delhi Development Horticulture Employee’s Union v. Delhi Administration , AIR 1992 SC 789 ........................................................................................................................................ 29 Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101....... 31 Dr. Radhakrishna Co-operative Housing Society Limited, Hosur, Hubli and Ors. v. Government of Karnataka, Housing and Urban Development Department, Bangalore and Ors., 1999(2)KarLJ637........................................................................................................ 21 Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746 ........................................................................................................................................ 28 Goa Foundation and Peaceful Society v. Union of India and Ors, 2014 (4) EFLT 60............ 31 Gramophone Company of India v. BirendraBahadur Pandey, AIR 1984 SC 667................... 19 Gupta Enterprises v. Delhi Pollution Control Committee and Anr., (2008) ILR 1Delhi940.. 24 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461... 18 In Re: Cauvery Water Disputes Tribunal, AIR 1992 SC 552.................................................. 22 Indra Sawhney v. Union of India, AIR 1993 SC 477.............................................................. 23 Indu Bhushan Bose v. Rama Sundari Debi, AIR 1970 SC 228............................................... 22 Jamshed N. Guzdar v. State of Maharashtra and Ors., AIR 2005 SC 862............................... 20 KasturiLal Lakshmi Reddy. State of J &K, AIR 1980 SC 1992............................................. 25 Kerala Swathanthra Malaya Thozhilali Federation and Ors.v. Kerala Trawlnet Boat Operators Association and Ors., (1994)5SCC28.................................................................................. 22 Kharak Singh v. State of Uttar Pradesh, (1994) 3 SCC 569.................................................... 17 KR Shenoy v. Chief Officers, Town Municipal Council, AIR 174 SC 2177.......................... 35 LakhdarBoumedieneet et al.v.George W. Bush et al.,128 S. Ct. 2229 (2008)........................ 17 Louis De Raedt and Ors.v. Union of India & Ors, AIR 1991 SC 1886................................... 17 Lt. Col. Sawai Bhawani Singh and Ors v. State of Rajasthan and Ors., (1996) 3 SCC 105.... 20 M/s Sterlite Industries Ltd. v. Tamil Nadu Pollution Control Board, Appeal Nos. 57 and 58 of 2013 ...................................................................................................................................... 32 M/s Sterlite Industries Ltd. v. Union of India &Ors., (2013) 4 SCC 575................................ 18 Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783......................................... 19 Maharao Sahib Shri Bhim Singhji & Ors. v. Union of India (UOI) and Ors., AIR 1984 SC 234 ........................................................................................................................................ 22 Maneka Gandhi v. Union of India&Anr., AIR 1978 SC 597.................................................. 17 Maneka v. Union of India, AIR 1978 SC 597.......................................................................... 25 Maruti Shripati Dubal v. State of Maharashtra, 1987 (1) Bom CR 499.................................. 26 MC Mehta v. Kamal Nath & Ors v. Kamal Nath & Ors., (1999) 4 CompLJ 44 (SC)............. 35 MC Mehta v. Union of India, (1997)3SCC715........................................................................ 19 MC Mehta v. Union of India, Writ petition (civil) no. 13381 of 1984.................................... 34 Minerva Mills Ltd. and Ors.v. Union of India (UOI) and Ors., AIR 1980 SC 1789.........29, 30 Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431................ 21 Nandini Sundar and Ors. v. State of Chattisgarh, AIR 2011 SC 2839................................... 26 vi
Satwant Singh Sawhneyv. D. Ramarathnam, Assistant Passport Officer&Ors, AIR 1967 SC
STATEMENT OF JURISDICTION
I. The Appellant No. 1 has approached this Hon’ble Court under Article 132 of the Constitution. Leave has been accordingly granted. II. The Appellant No. 2 has approached this Hon’ble Court under Article 32 of the Constitution. Leave has been accordingly granted. III. The Appellant No. 3 has approached this Hon’ble Court under Article 32 of the Constitution. Leave has been accordingly granted. IV. The Appellant No. 4 has approached this Hon’ble Court under Article 136 of the Constitution. Leave has been accordingly granted. ix
STATEMENT OF FACTS
I. BACKGROUND
1. Honeywood is a largest city located in the State of Hindostown in Hindiya. As the capital of Hindiya, it is an important center for the state's governance, administration, education, aerospace, finance, technology, and cultural activities such as music and poetry. With a population of 2.2 million as per the 2011 census, Honeywood is also the second largest urban agglomeration in Hindostown. The city is known for its multicultural environment, serving as a hub for North Hindiyan cultural activities. Overall, Honeywood is a thriving and diverse city that plays a significant role in the State of Hindostown. II. THE RELATIONS 3. Anwar and Kranti are a married Hindu couple who reside in the town of Honeywood, located in the State of Hindostown, Hindiya. They got married in January 2021 in Honeywood under the Hindu Marriage Act, 1955. Following their marriage, they moved to Waghpur, another city in the Hindostown State of Hindiya. Anwar has been working in Waghpur since 2017 and is regarded as a hardworking and honest employee with excellent communication skills. III. THE RENT AGREEMENT 4. Anwar and Kranti decided to rent a new flat in Waghpur, a city in the Hindostown state of Hindiya. Their landlord was Mr. Ravi Shende who lived on the 1st floor of a two- story apartment located in a prime location in Waghpur. He agreed to rent the 2nd floor of the apartment to Anwar and Kranti. Mr. Ravi Shende, the landlord, agrees to rent out the flat to Anwar and Kranti for a period of 11 months, starting from 1st February 2021 and ending on 31st January 2022. As per the agreement, Anwar and Kranti will pay a monthly rent of Rs. 15,000/- for the flat. IV. THE FIRST PHASE x
Kranti confided in her parents about the constant torture she was facing at the hands of her husband Anwar. Despite her initial reluctance to file a case of domestic violence against him, her parents advised her to take legal action. Kranti expressed her desire to file a complaint to her best friend, which Anwar came to know about and began to fear being taken into custody by the police.
10. During Kranti's absence, Mr. Ravi Shende repeatedly requested Anwar to pay the rent, but his requests went unanswered. One day, Mr. Shende discovered certain narcotic substances hidden under Anwar's bed while showing the premises to a prospective tenant. Mr. Shende immediately went to the police station and an FIR was registered under the relevant sections of the NDPS Act against Anwar. Meanwhile, Kranti filed a complaint with the police station near her maternal home, accusing Anwar of physical and mental torture. Fearing arrest under both complaints, Anwar filed an application for ‘Anticipatory bail’ under section 438 of the Code of Criminal Procedure, seeking protection from arrest. xii
STATEMENT OF ISSUES
1. WHETHER THE HONORABLE HIGH COURT OF HINDOSTOWN HAS THE
‘JURISDICTION’ TO ENTERTAIN APPLICATION OF ‘ANTICIPATORY’ BAIL
UNDER NDPS ACT 1985 & SECTION 498A OF IPC, 1860?
2. WHETHER APPLICANT HAS RIGHT TO SEEK ANTICIPATORY BAIL?
3. WHETHER ‘ANTICIPATORY BAIL’ SHALL BE GRANTED IN ALLEGED
OF NARCOTIC SUBSTANCES?
4. WHETHER ‘ANTICIPATORY BAIL’ SHALL BE GRANTED IN ALLEGED
OFFENCE ALLEGED OFFENCE PUNISHABLE UNDER SECTION 498 OF
IPC,1860.?
xiii
others. Arbitrariness is antithetical to the process of equality; and 3.2] right to life and liberty has been violated due to a violation in the rights that have been read under A.21 such as Right to Water, Right to Basic Necessities, Right to Social Justice and Economic Empowerment, Right to Livelihood and Right to Work. IV. THAT THE LINKING OF RIVERS ACT, 2010 VIOLATES THE ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA AND THE PROVISIONS OF THE AOREST (CONSERVATION) ACT, 1980. The environmental rights of the Aressians have been violated by the Legislature on passing the impugned Act as is evidenced by testing them against the Doctrines of Public Trust and Precautionary Principle. The Preamble of a statue reflects the intention of the legislature and the latter is required to ascertain the object of the act. Following the rule on interpretation, we realised that the provisions of the Linking of Rivers Act are contrary to the object of the Forest (Conservation) Act and the Environment Protection Act, enshrined in their respective preambles, which is one of granting environmental rights to the citizens of Aressia. Not conforming to the objective specified in these environmental statues is an explicit show of how the impugned act defies the environmental rights of the Aressians. xv
ARGUMENTS ADVANCED
1. WHETHER THE HONORABLE HIGH COURT OF HINDOSTOWN HAS THE
‘JURISDICTION’ TO ENTERTAIN APPLICATION OF ‘ANTICIPATORY’ BAIL
UNDER NDPS ACT 1985 & SECTION 498A OF IPC, 1860?
1. It is our humble submission before the bench that the hon’ble high court of Hindostown state has the ‘Jurisdiction’ to entertain application of ‘Anticipatory Bail’ under The Narcotic Drugs and Psychotropic Substances Act, 1985 & Section 498A of the Indian Penal Code, 1860. 2. Section 438(1) of The Code of Criminal Procedure, 1973^1 , herein states that If an individual suspects that they might be arrested for a non-bailable offense, they have the option to petition the High Court for a directive as per this clause. The court may grant ‘Anticipatory bail’ to the individual upon their pre- arrest, if deemed fits. 3. Therefore, the Honorable High Court has the power to grant Anticipatory bail to individuals upon their pre-arrest if deemed fit, making it clear that the court has the necessary jurisdiction to entertain anticipatory bail applications. 1.1. WHETHER APPLICANT HAS RIGHT TO SEEK ANTICIPATORY BAIL? 4. It is our humble submission that Applicant has right to seek ‘Anticipatory Bail’. 5. Applicant has the right to seek 'Anticipatory Bail'. This right is protected by Article 21 of The Constitution of India, 1950^2 , which specifically addresses the protection of life and personal liberty. It states that “ no person can be deprived of their life or personal liberty except as per the procedure established by law”. It is pertinent to note that the term 'No person' encompasses any individual, which also includes those who are accused of an offense. 6. According to Section 438(1) of The Code of Criminal Procedure, 1973^3 if any person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, he may seek for ‘Anticipatory Bail’. (^1) The Code of Criminal Procedure, 1973, S.438(1) (^2) J.N. Pandey, The Constitution of India, 1950, ed.15th (^3) The Code of Criminal Procedure, 1973, S.438(1) 16
13. It was observed in the case of State of Punjab v. Raninder Singh & Another^6 by the Hon’ble Supreme Court of India that while granting ‘Anticipatory bail’ the court can, in view of section 438(2)(i) of the Code of Criminal procedure, lay down a condition that the accused shall make himself available for interrogation by a police officer as and when required. Which it considers necessary in the interest of justice while granting ‘Anticipatory bail’. The purpose of this provision is that ‘Anticipatory bail’ cannot be permitted to be abused. 14. Section 37(2) of The Narcotic Drugs and Psychotropic Substances Act, 1985^7 states that there should be an limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. It is submitted that All the limitations and conditions mentioned in Sri G S Ramesh vs State of Karnataka, 2015, or any other conditions deemed fit by the Hon'ble bench, will be complied with by the Applicant. Additionally, the Applicant will cooperate with the police in the investigation process. 3. WEATHER OR NOT, ‘ANTICIPATORY BAIL’ SHALL BE GRANTED IN ALLEGED OFFENCE PUNISHABLE UNDER 498A OF IPC, 1860? 15. It is our humble submission that ‘Anticipatory bail’ can be granted in alleged offence punishable under 498A of Indian Penal Code, 1860. 16. In the case of Shri Gurbaksh Singh Sibbia v. State of Punjab , 1980^8 , It was held by the Honorable Supreme Court of India that an application for "Anticipatory bail" can be filed in cases where only a complaint has been lodged but no F.I.R has been registered. Hence, in this case, the application for "Anticipatory bail" filed by the Applicant is deemed maintainable. 17. It is humbly submitted that, the allegations against the petitioner are all false and those allegations are general and omnibus in nature. The allegations of cruelty against Applicant are not based on any concrete evidence or witness account. They are solely based on the statement made by Anwar to his office friend that Respondent is having an extramarital affair. Moreover, There is no evidence to support this claim, and it is merely an allegation made by Applicant in a fit of anger. Moreover, Kranti had not made any (^6) State of Punjab v. Raninder Singh, (2008) 1 SCC 564 (^7) The Narcotic Drugs and Psychotropic Substances Act, 1985, S.37(2) (^8) Shri Gurbaksh Singh Sibbia v. State of Punjab, 1980 (2) SCC 565 12 18
complaint against Anwar until she left the house on 1st December 2022. It is only after Kranti narrated the happenings of her life to her parents that she decided to file a case of Mental and physical cruelty against Applicant.
18. As in the case of Dr. N.G. Dastane vs Mrs. S. Dastane^9 , The hon’ble court held that ‘Cruelty’ means any wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. But here in this case, There is no willful conduct had conducted by Applicant which might cause danger to the life of Kranti. Thus, the allegations made against Anwar are not substantive, and there is no reason to believe that he poses a threat to Kranti. 19. In the Case of Arnesh kumar v. State of Bihar and others^10 , It was observed by the Hon'ble Supreme Court of India that Section 498A of IPC, 1860 is frequently misused. It was also held that the police should prioritize the investigation into the matter instead of making arrests. Additionally, the courts should take into account the possibility of misuse of Section 498A of Indian Penal Code, 1860 before rejecting an application for 'Anticipatory bail’. 20. It is further submitted that, section 438(2) of Code of Criminal Procedure, 1973^11 , herein referred as, 21. “When the Court makes a direction under Section 438(1), it may include such conditions in such directions in the light of the facts of the particular case”. 22. It is humbly Submitted that Applicant is a hardworking and honest man, and there is no record of him having committed any offense in the past. Moreover, he has not been involved in any criminal activity related to the alleged offense of cruelty. Therefore, there is no reason to believe that Anwar is a threat to the respondent or society, and he is not likely to flee. And also, The court's conditions for the grant of anticipatory bail will be strictly followed by the applicant to prevent any misuse of it. The applicant deserves the privilege of anticipatory bail. (^9) Dr. N.G. Dastane vs Mrs. S. Dastane, (1975) 2 SCC 326 (^10) Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 (^11) The Code of Criminal Procedure, 1973, S.438(2) 19
