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TEAM CODE: 38
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
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES……………………………………………………………….....V
STATEMENT OF JURISDICTION ...................................................................................... VIII
STATEMENT OF FACTS....................................................................................................... IX
STATEMENT OF ISSUES ...................................................................................................... XI
SUMMARY OF ARGUMENTS ............................................................................................ XII
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..................................................................................................... 3 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 ................................................................................... 5 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. .......... 8 3.1. That Article 14 Has Been Violated. ............................................................................ 9
iii
4.1. That Purposive Interpretation Of An Act Can Be Done By Looking At Its Preamble And The Same Helps Ascertain Environmental Rights. .................................................. 15 4.1.1 That purposive interpretation of an act can be done by looking at its Preamble: ...................................................................................................................................... 15 4.2. That The Environmental Rights Of The Citizens Of Aressia Have Been Violated Under The Environment Protection Act 1986 (EPA). ..................................................... 16 4.3. That „Reasonable Person‟s Test Determines Which Right Is Given Precedence And The Environmental Rights Take Precedence In The Present Case. ................................. 17 4.3.1. That the Reasonable Person‟s Test is used to determine the right be given precedence.................................................................................................................... 17 4.3.2. That Environmental rights are to be given precedence. ..................................... 17 4.4. That Environmental Rights Are Governed By The Doctrines Of Precautionary Principle And Sustainable Development And The Same Have Been Breached. ............ 17 4.4.1. That the doctrines of Precautionary Principle and Sustainable Development govern environmental rights. ....................................................................................... 18 4.4.2. That the doctrines have not been adhered to. ..................................................... 18 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. ....................................................................................................................... 19 4.5.1. That the Doctrine of Public Trust is to be exercised by the Government of India. ...................................................................................................................................... 19 4.5.2.That the Doctrine has not been followed. ........................................................... 19 4.6. That the forest (conservation) act‟s object is to prevent deforestation and the same has not been adhered to. ................................................................................................... 20 4.6.1.That the objective of the Forest (Conservation) Act 1980 is to Prevent Deforestation. ............................................................................................................... 20 4.6.2. The Objective of the FC Act has not been adhered to. ...................................... 20
PRAYER .................................................................................................................................. 20
iv
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, 1 sted., 2005 ........................................................................................................................... 31 K. JANAKIKUTTYAMMA, FUNDAMENTAL RIGHTS IN RELATION TO THE INDIAN CONSTITUTION, The Indian Journal of Political Science , Vol. 9, No. 2/3 (April—September, 1948) ......... 19 M.P. JAIN INDIAN CONSTITUTIONAL LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010...................................................................................................................................... 17
vi
Dr. Radhakrishna Co-operative Housing Society Limited, Hosur, Hubli and Ors. v.
M/s Sterlite Industries Ltd. v. Tamil Nadu Pollution Control Board, Appeal Nos. 57 and 58 of
- 789........................................................................................................................................ Delhi Development Horticulture Employee‟s Union v. Delhi Administration , AIR 1992 SC
- Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC
- Ors., 1999(2)KarLJ637 Government of Karnataka, Housing and Urban Development Department, Bangalore and
- 746........................................................................................................................................ Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC
- Goa Foundation and Peaceful Society v. Union of India and Ors, 2014 (4) EFLT
- Gramophone Company of India v. BirendraBahadur Pandey, AIR 1984 SC
- Gupta Enterprises v. Delhi Pollution Control Committee and Anr., (2008) ILR 1Delhi940
- His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC
- In Re: Cauvery Water Disputes Tribunal, AIR 1992 SC
- Indra Sawhney v. Union of India, AIR 1993 SC
- Indu Bhushan Bose v. Rama Sundari Debi, AIR 1970 SC
- Jamshed N. Guzdar v. State of Maharashtra and Ors., AIR 2005 SC
- KasturiLal Lakshmi Reddy State of J &K, AIR 1980 SC
- Association and Ors., (1994)5SCC28 Kerala Swathanthra Malaya Thozhilali Federation and Ors.v. Kerala Trawlnet Boat Operators
- Kharak Singh v. State of Uttar Pradesh, (1994) 3 SCC
- KR Shenoy v. Chief Officers, Town Municipal Council, AIR 174 SC
- LakhdarBoumedieneet et al.v.George W. Bush et al.,128 S. Ct. 2229 (2008)
- Louis De Raedt and Ors.v. Union of India & Ors, AIR 1991 SC
- Lt. Col. Sawai Bhawani Singh and Ors v. State of Rajasthan and Ors., (1996) 3 SCC
- M/s Sterlite Industries Ltd. v. Union of India &Ors., (2013) 4 SCC
- Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC
- 234........................................................................................................................................ Maharao Sahib Shri Bhim Singhji & Ors. v. Union of India (UOI) and Ors., AIR 1984 SC
- Maneka Gandhi v. Union of India&Anr., AIR 1978 SC
- Maneka v. Union of India, AIR 1978 SC
- Maruti Shripati Dubal v. State of Maharashtra, 1987 (1) Bom CR
- MC Mehta v. Kamal Nath & Ors v. Kamal Nath & Ors., (1999) 4 CompLJ 44 (SC)
- MC Mehta v. Union of India, (1997)3SCC715
- MC Mehta v. Union of India, Writ petition (civil) no. 13381 of
- Minerva Mills Ltd. and Ors.v. Union of India (UOI) and Ors., AIR 1980 SC 1789 29,
- Naga People‟s Movement of Human Rights v. Union of India, AIR 1998 SC
- Nandini Sundar and Ors. v. State of Chattisgarh, AIR 2011 SC
- Narmada Bachao Andolan v. Union of India and Others , AIR 2000 SC
- National Human Rights Commission v. State of Arunachal Pradesh 16,
- National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC
- Nature Lovers Movement v. State of Kerala and others, AIR 2003 Ker
- Offshore Holdings Pvt. Ltd.v. Bangalore Development Authority and Ors., (2011) 3 SCC vii
- Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180................................... 17,
- Om Kumar v. Union of India, AIR AIR 2000 SC
- Orissa Cement Ltd. (M/s) v. State of Orissa, AIR 1991 SC
- Mevabhai, AIR 1996 SC Panchayat Varga Sharmajivi Samudaik Sahakari Khedut Cooperative Society v. Haribhai
- Pathumma and Ors.v. State of Kerala and Ors., AIR 1978 SC 771.........................................
- People‟s Union for Democratic Rights v. Union of India, AIR 1982 SC
- Prafulla Kumar Mukherjee and others v. Bank of Commerce Ltd., Khulna, AIR 1947 PC
- Premium Granites v. State of Tamil Nadu, AIR 1994 SC
- Purtabpur Co. v. Cane Commissoner, AIR 1971 SC
- R. v. Inspector of Pollution exparte Greanpeace Ltd., (1994) All ER
- R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC
- Ramakrishna v. Tendolkar, AIR 1958 SC
- S. P. Gupta v. President of India & Ors., AIR 1982 SC
- Sakhawat Ali v. State of Orissa, AIR 1955 SC 166.................................................................
- 1836...................................................................................................................................... Satwant Singh Sawhneyv. D. Ramarathnam, Assistant Passport Officer&Ors, AIR 1967 SC
- Saujat Ali v. Union of India, AIR 1974 SC
- Shashikant Laxman Kale and Anr. v. Union of India (UOI) and Anr., AIR 1990 SC
- Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors.,AIR2011SC312
- 2002 (4) BomCR Smoke Affected Residents Forum v. Municipal Corporation of Greater Mumbai and Ors,
- State of Karnataka Vs. State of Andhra Pradesh & Ors.,AIR 2001 SC
- State of Kerala and Ors.v. Mar AppraemKuri Company Ltd. and Anr., AIR 2012 SC
- State of Maharashtra v. Bharat Shanti Lal Shah and Ors.,(2008) 13 SCC
- State of Orissa and Ors. v. Mahanadi Coalfields Ltd. and Ors.
- State of Rajasthan v. G.Chawla, AIR 1959 SC 544.................................................................
- Sundararajan v. Union of India & Ors., (2013) 6 SCC
- Sussex Peerage case, Tindal C.J., 11 CI.& F. 85, 110,
- T.N. Godavarman Thirumulkpad v. Union of India and others, AIR 1997 SC
- Tata Iron & Steel Co. Ltd. v. The State of Bihar &ors.,1989(2)PLJR88
- The State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC
- Association and Ors.,AIR 2010 SC 3645, Tirupur Dyeing Factory Owners Association v. Noyyal River Ayacutdars Protection
- Vellore Citizens Welfare Forum v. Union of India and Ors, AIR 1996 SC
- Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC
- Vellore Citizens Welfare Forum v. Union of India, CWPIL No. 15 of
- Vishaka v. State of Rajasthan, AIR 1997 SC 3011..................................................................
- Vishwanath Chaturvedi v. Union of India, (2007) 4 SCC
- Vishwanath Chaturvedi v. Union of India, (2007)4SCC380
- West Bengal v. Union of India, AIR 1963 SC
ix
STATEMENT OF FACTS
1. The material case arises out of four separate claims: first , a claim by the Forum for
Environmental Right (hereinafter, “FER”) before the High Court of Neruda against the
Government of Aressia; second , a joint claim made by the State of Adhali and the State of
Parmala challenging the constitutional validity of the Linking of Rivers Act, 2010; third , a
claim by the „Save the Farmer‟s Forum‟ that the fundamental rights of the people of the State
of Normanda and the State of Vindhya have been violated; fourth , a claim by the Centre for
Environmental Rights and Advocacy (Hereinafter, “CERA”) that the Linking of Rivers
project violates the environmental rights of the citizens of Aressia.
I. BACKGROUND
2. 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 organisation, 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.
II. THE LINKING OF RIVERS ACT, 2010
3. 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 favourable 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.
x
III. THE CRITICISM
4. The State Governments and various NGOs criticised 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 favourable
report to the linking of rivers project. This sparked extensive protests against the
implementation of the project.
IV. THE FIRST PHASE
5. 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 neighbouring 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.
V. THE RESULTANT LITIGATION
6. Pursuant to the aforementioned factual matrix, two Aressian States moved the
Supreme Court claiming that the Linking of Rivers Act, 2010 was an unconstitutional
encroachment on the power of the States. Due to the non-inclusion of the State of Vindhya in
the project, „Save the Farmers Forum‟ moved the Supreme Court on the grounds that this was
a violation of their fundamental rights. An international NGO petitioned the High Court of
Neruda contending that the inclusion of „Bhargavi‟ would violate the fundamental rights of
the people of Boressia, due to subsequent dismissal of the petition they are in appeal before
the Supreme Court
.
xii
SUMMARY OF ARGUMENTS
I. THAT THE WRIT PETITION FILED BEFORE THE HIGH COURT OF NERUDA IS
MAINTAINABLE
The exercise of the writ jurisdiction of the High Courts under Article 226 is largely
discretionary in nature, it is argued that the present petition is maintainable primarily on three
grounds: 1.1] That the „Forum for Environmental Right‟ has locus standi to file the present
petition since they are a special-interest group with a presence in Aressia and the writ petition
comes within the ambit of the doctrine of public interest litigation. 1.2] That the right to a
healthy environment and livelihood under Article 21 may stand violated since the
constitutional guarantee of Article 21 is not territorially limited; and 1.3] That including the
river „Bhargavi‟ in the Linking of Rivers Project may violate Customary International Law
which automatically forms a part of domestic law unless there exists a conflict between the
two.
II. THAT § 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA VIRES THE CONSTITUTION OF
ARESSIA
Under the federal structure of Aressia, the Union and the States are competent to
legislate for different spheres. In order to demonstrate that the Linking of Rivers Act 2010 is
ultra vires the Constitution it must be shown that the State Legislatures reserved the exclusive
competence with regard to the subject-matter of the legislation. To this end, it is argued that
2.1] the „pith and substance‟ of § 3 lies within the bounds of List II of the Seventh Schedule
because the „object‟, „scope‟ and „effect‟ of the Act are within the domain of the State
Legislatures 2.2] that no resolutions under article 252 were passed by the state legislatures as
constitutionally mandated in the event that the Union wants to legislate upon a subject-matter
enumerated in the State List.
III. THAT THE EXCLUSION OF VINDHYA FROM THE LINKING OF RIVERS PROJECT IS
VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF CITIZENS OF VINDHIYA AND NORMANDA.
Implementation of the project in the state of Vindhiya has violated fundamental rights
under Article 14 and Article 21 of the citizens of Vindhiya and Normanda as: 3.1] the right to
equality has been violated due to arbitrary implementation of project in some states and not
others. Arbitrariness is antithetical to the process of equality; and 3.2] right to life and liberty
xiii
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.
3. In the present case, FER is an international NGO which has a presence in Aressia.^10
The claim made by the FER relates to widespread public grievance caused by environmental
harm and loss of livelihood.^11 The prima facie accuracy of the claims may be demonstrated
by other independent facts such as: (i) the Environmental Impact Assessment (hereinafter,
EIA) report has identified various environmental and social harm which may be caused; (ii)
members of the EIA committed have admitted to downplaying the harm which may be
caused in the aforementioned report; (iii) the apprehension that the linking of rivers project
shall cause large-scale harm is shared by other stakeholders within Aressia.^12
4. Furthermore, a writ petition is maintainable even before the violation of a
constitutional or otherwise legal right has been committed.^13 Once a law or order has been
passed which potentially infringes a legal right, a writ petition may be filed.^14 The passing of
the Linking of Rivers Act, the decision to implement the same, and the inclusion of the river
„Bhargavi‟, were events which occurred before the writ petition was filed.^15 It is further
contended that the FER is a special-interest group which is best placed to bring the issue to
the attention of the Court. Hence, it is humbly submitted that the FER has locus standi to file
the writ petition.
1.2. THAT THE RIGHT TO A HEALTHY ENVIRONMENT AND LIVELIHOOD UNDER ARTICLE 21 MAY STAND VIOLATED
5. If the right guaranteed under A. 21 stands to be violated, it is open for the aggrieved
person to seek judicial redress under A. 226.^16 It is herein submitted that the fundamental
right under A. 21 may stand infringed.
1.2.1 That the ambit of A. 21 is not limited to citizens of Aressia.
6. The fundamental right under A. 21 extend to all persons rather than just citizens of the
country.^17 In National Human Rights Commission v. State of Arunachal Pradesh ,^18 it was
observed that it was the constitutional duty of the state to safeguard the life, health and well-
being of a foreign group called Chakmas which had migrated into Arunachal Pradesh.^19 The
(^10) Factsheet, ¶ 14. (^11) Ibid. (^12) Factsheet, ¶¶ 5, 15, 13. (^13) Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661 at ¶ 8. (^14) Purtabpur Co. v. Cane Commissoner, AIR 1971 SC 1896 at ¶ 24. (^15) Factsheet, ¶¶ 6, 8, 9, 14. (^16) D. K. Basu v. State of West Bengal, AIR 1997 SC 610 at ¶¶ 46 - 48. (^17) Chaiman, Railway Board v. Chandrima Das, AIR 2000 SC 998 at ¶ 32; Louis De Raedt and Ors.v. Union of
18 India &^ Ors,^ AIR^1991 SC^1886 at^ ¶^ 13. 19 National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC 1234. National Human Rights Commission v. State of Arunachal Pradesh, AIR1996 SC 1234 at ¶¶ 20-21.
said right being made available to all people regardless of citizenship forms the basis of a
civilized society, and was adopted from the American Constitution.^20 It is worthy of note that
this right may not be deprived but by procedure established by law;^21 and such law may not
be arbitrary, capricious or unreasonable.^22 In the instant case, the rights which have been
purported to be affected are those of the citizens of Boressia.^23 It is humbly submitted that
even though the people of Boressia may not be citizens of Aressia, they are still protected
within the ambit of Article 21 and may question a law depriving them of the same.
1.2.2 That Article 21 extends beyond the territorial limit of Aressia.
7. In Satwant Singh Sawhney ,^24 it has been held that the right to travel abroad is an
integral part of personal right and is exercisable outside the territory of India.^25 The order of
the Passport Officer which refused to issue a passport to the petitioner was struck down as
unconstitutional.^26 The said view has been upheld in Maneka Gandhi ,^27 which further holds
that the right to freedom of speech and expression is also exercisable outside India.^28 It was
observed that the inability to take state action outside territorial limits and that there is no
underlying principle in the Constitution which limits the operation of Part III to the territory
of India.^29 This position of law is analogous to that of America wherein there are no inherent
geographical limitations to the Bill of Rights.^30 Thus, despite the fact that the people of
Boressia reside outside the territorial limits of Aressia,^31 the State of Aressia may not infringe
upon their right to life but by procedure established by law.
1.2.3 That the right to a healthy environment and livelihood are present within the auspices of Article 21.
8. The Supreme Court, in a number of instances, has recognised the right to a healthy
environment as part of the right articulated under Article 21.^32 In Sterlite Industries v. UOI ,^33
(^20) Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors.,AIR 2011 SC 312 at ¶ 60. (^21) Kharak Singh v. State of Uttar Pradesh, (1994) 3 SCC 569, ¶ 5. (^22) Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 at ¶ 39. (^23) Factsheet at ¶ 14. (^24) Satwant Singh Sawhneyv. D. Ramarathnam, Assistant Passport Officer & Ors, AIR 1967 SC 1836. (^25) Satwant Singh Sawhneyv. D. Ramarathnam, Assistant Passport Officer & Ors, AIR 1967 SC 1836, ¶ 58. (^26) Ibid. (^27) Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597. (^28) Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597 at ¶73-74. (^29) Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597 at ¶ 76. (^30) LakhdarBoumedieneet et al.v.George W. Bush et al.,128 S. Ct. 2229 (2008), ¶¶ 120-124; 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, p.
31 26. 32 Factsheet,^ ¶^ 9. JUSTICE T. S. DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA, Wadhwa Nagpur, Volume 1, 1st^ ed. 2005, p. 6.
Constitutional burden on the State to prevent environmental degradation.^46 In the present
case, the writ petition was filed based on the finding that the decision of the ALR to link the
river „Bhargavi‟ would cause widespread environmental damage.^47 Furthermore, members of
the EIA, which was constituted to investigate the environmental damage caused by the
linking of rivers, have admitted to giving false favourable reports under political pressure.^48 It
is humbly submitted that there is a constitutional obligation on Aressia to protect the
environment from damage and that the extraterritorial nature of the potential damage should
not be a deterrent as degradation of the environment is a global concern and would have
ramifications within Aressia.
2. THAT § 3 OF THE LINKING OF RIVERS ACT 2010 IS ULTRA VIRES THE CONSTITUTION OF ARESSIA 13. As a component of the Federal Structure of the Constitution of Aressia, legislative
powers have been divided between the Parliament and State Legislatures.^49 The competing
legislatures may not infringe upon the each other‟s legislative domain.^50 The constitutional
vires of § 3 of the Linking of Rivers Act (hereinafter, the impugned Act) has been challenged
on the grounds of legislative competence.^51 It is submitted that the said provisions are ultra
vires the Constitution as 2.1] the „pith and substance‟ of § 3 lies within the bounds of List II
of the Seventh Schedule and 2.2] that no resolutions under article 252 were passed by the
state legislatures as constitutionally mandated.
2.1 THAT § 3 OF THE LINKING OF RIVERS ACT IN ‘PITH AND SUBSTANCE’ FALLS WITHIN THE
EXCLUSIVE LEGISLATIVE COMPETENCE OF THE STATES
14. The doctrine of „pith and substance‟ is one of the key principles of interpretation used
to construe entries classified under the three lists of the Seventh Schedule of the
Constitution.^52 In order to determine whether a particular statute comes within the purview of
one legislature or the other, the pith and substance of the enactment is to be looked into.^53 If
the „true nature and character‟ of a legislation falls outside the permissible limits assigned to
(^46) MC Mehta v. Union of India, (1997) 3 SCC 715 at ¶ 9. (^47) Factsheet, ¶ 14. (^48) Factsheet at ¶ 15. (^49) D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani& T. S. Doabia
50 & B. P. Banerjee eds., Vol. 8, 8th ed. 2012, p.^8626 51 State of Kerala and Ors.v. Mar AppraemKuri Company Ltd. and Anr., AIR 2012 SC 2375, ¶ 12. 52 Factsheet,^ ¶^ 10. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker& S.S. Subramani& T. S. Doabia&
53 B. P. Banerjee eds., Vol. 10, 8th ed. 2012, p. 11731. Jamshed N. Guzdar v. State of Maharashtra and Ors., AIR 2005 SC 862 at ¶ 88; Prafulla Kumar Mukherjee and others v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60 at ¶¶ 35-38.
the respective legislature then such law is ultra vires the constitution.^54 Only the offending
part of the Act may be declared invalid in case it is sufficiently separable from the rest of the
Act.^55 The relevant factors which must be considered to ascertain the pith and substance of a
statute are: (i) the object and purpose; (ii) the scope and; (iii) the effect of the provisions.^56
2.1.1. The object and purpose of the impugned section relates to subjects exclusively enumerated in List II of the Seventh Schedule
15. In State of Rajasthan v. G. Chawla,^57 giving significant importance to the object of
legislation in determining its pith and substance,^58 it was held that a legislation controlling the
use of amplifiers was public health legislation under List II rather than a broadcasting
legislation under List I.^59 In order to determine the object and purpose of a statute, we may
refer to the circumstances which prevailed at the time and necessitated the passing of the
Act.^60 In State of West Bengal v. Union of India ,^61 the existing dearth of coal in the country
shaped the Court‟s understanding of the object of Coal Bearing Areas (Acquisition and
Development) Act, 1957.^62
16. We must refer to the various legislative fields under the seventh schedule to ascertain
which subject-matters fall under the exclusive competence of the States.^63 Entry 17 of the
State List empowers the State Legislature to enact laws relating to water, its supply,
irrigation, drainage, inter alia.^64
17. Presently, Aressian states are facing dearth of water which has caused unavailability
of drinking water as well as the failure of agricultural crops.^65 The impugned Act was passed
pursuant to a „High Level Expert Committee‟ report which advised that various rivers should
be linked together to mitigate the problem of water scarcity.^66 It was stated by the Prime
Minister in Parliament that the Linking of Rivers Project was to be used to increase
availability of water for drinking and sanitation as well as for agricultural and industrial
(^54) State of Maharashtra v. Bharat Shanti Lal Shah and Ors.,(2008) 13 SCC 5 at ¶ 30. (^55) Lt. Col. Sawai Bhawani Singh and Ors v. State of Rajasthan and Ors., (1996) 3 SCC 105 at ¶ 8., R.M.D.
56 Chamarbaugwalla v. Union of India, AIR 1957 SC 628 at ¶ 5. Offshore Holdings Pvt. Ltd.v. Bangalore Development Authority and Ors., (2011) 3 SCC 139 at ¶ 64; A. S.
57 Krishna v. State of Madras, AIR 1957 SC 297 at ¶16. 58 State^ of^ Rajasthan^ v.^ G.Chawla,^ AIR^1959 SC^544. 59 State^ of^ Rajasthan^ v.^ G.^ Chawla,^ AIR^1959 SC^544 at^ ¶^ 14. 60 State^ of^ Rajasthan^ v.^ G.^ Chawla,^ AIR^1959 SC^544 at^ ¶^ 15. Shashikant Laxman Kale and Anr. v. Union of India (UOI) and Anr., AIR 1990 SC 2114 at ¶ 16, State of
61 Orissa and Ors. v. Mahanadi Coalfields Ltd. and Ors. at ¶¶ 5-7. 62 West Bengal v. Union of India, AIR 1963 SC 1241. 63 West Bengal v. Union of India, AIR 1963 SC 1241 at ¶¶ 7-9. 64 M.P.^ JAIN^ INDIAN^ CONSTITUTIONAL^ LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010, p. 533. 65 Entry 17 List II, Seventh Schedule, Constitution of Aressia. 66 Factsheet,^ ¶¶^1 - 2. Factsheet, ¶¶ 3 - 6.
