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TEAM CODE:
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 RESPONDENTS
COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS
T 38
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES .......................................................................................................... iv STATEMENT OF JURISDICTION.............................................................................................. ix STATEMENT OF FACTS ............................................................................................................. x STATEMENT OF ISSUES .......................................................................................................... xii SUMMARY OF ARGUMENTS ................................................................................................. xiii ARGUMENTS ADVANCED ........................................................................................................ 1
- THAT THE WRIT PETITION FILED WITH THE HIGH COURT OF NERUDA IS NOT MAINTAINABLE ............................................................................................................. 1 1.1 That none of the grounds to challenge the purported move by the ALR as delegated legislation were satisfied ......................................................................................................... 1 1.2 That no prima-facie case for breach of fundamental rights has been established ............ 2 1.3 That domestic law may not be questioned on the grounds of contravening international commitments...................................................................................................... 3 1.4 That the writ petition is based on pure apprehension. ...................................................... 3
- THAT § 3 OF THE LINKING OF RIVERS ACT 2010 IS INTRA VIRES THE CONSTITUTION OF ARESSIA ............................................................................................... 4 2.1 That § 3 of the linking of rivers act in „pith and substance‟ falls outside the legislative competence of the states ........................................................................................ 4 2.1.1 The object and purpose of the impugned section does not relate to subject- matters enumerated in List II of the Seventh Schedule ...................................................... 5 2.1.2 The scope of the impugned section relates to subjects outside the legislative competence of the State Legislatures .................................................................................. 6 2.1.3 The Effect of the impugned section relates to matter outside the legislative competence of the State Legislatures .................................................................................. 7 2.2 That Residuary Powers with respect to legislative competence is vested with the Parliament. .............................................................................................................................. 7
- THAT THE EXCLUSION OF THE STATE OF VINDHIYA FROM THE LINKING OF RIVERS PROJECT IS NOT VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF THE PEOPLE OF STATE OF VINDHIYA AND STATE OF NORMANDA. ........................ 8 3.1 THAT THE WRIT PETITION IS NOT MAINTAINABLE SINCE THERE HAS BEEN NO VIOLATION OF FUNDAMENTAL RIGHTS: .................................................. 8
iii
4.1.2 That the Hon‟ble Supreme Court should rely on the decision of the Environment Impact Assessment Committee. ........................................................................................ 16 4.2 That The Doctrine Of Sustainable Development Is Supplementary To The Doctrine Of Precautionary Principle And Both Have Been Accounted For In This Case. ................. 17 4.2.1 That the doctrine of Precautionary Principle and Sustainable Development, are supplementary. .................................................................................................................. 17 4.2.2 The Central Government has passed the order keeping in view the doctrine of sustainable development. .................................................................................................. 18 4.3 A Non-Obstante Clause Precludes Any Contrary Interpretation And The Same Is Applicable To § 2 Of The Forest (Conservation) Act. ......................................................... 19 4.3.1 A Non-Obstante Clause super precludes any contrary interpretation. ..................... 19 4.3.2 The Forest (Conservation) Act, 1980 supersedes the impugned act. ....................... 19 PRAYER ...................................................................................................................................... xiv
iv
INDEX OF AUTHORITIES
STATUTES
Article 226, Constitution of India. .................................................................................................. 1 Constitution of Aressia .......................................................................................................... passim
BOOKS, ARTICLE & TREATISES
AMARTYA SEN, (1999). DEVELOPMENT AS FREEDOM, (1st ed.). New York: Oxford University Press, 1999 ................................................................................................................................ 19 CHARMIAN BARTON, PRECAUTIONARY PRINCIPLE IN AUSTRALIA, Vol. 22, 1988, Harv. Env. L. Rev ............................................................................................................................................ 11 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 ....................................................... 1 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia & B. P. Banerjee eds., Vol. 10, 8th ed. 2012 ..................................................... 5 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 ................................................... 4, 7 D.D. BASU, SHORTER CONSTITUTION OF INDIA, 13th^ ed., 2001 ....................................................... 8 DR. MAHESHWARA SWAMY, LAW RELATING TO ENVIRONMENTAL POLLUTION AND PROTECTION, Vol. 2, 5th^ ed., Thomson Reuters ........................................................................ 17 DR. SUNIL KUMAR AGARWAL, IMPLEMENTATION OF INTERNATIONAL LAW IN INDIA: ROLE OF JUDICIARY, in Dean Maxwell & Isle Cohen Doctoral Seminar in International Law Hans & Tamar Oppenheimer Chair in Public International Law Faculty of Law, McGill University .. 13 G.P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION, 13th ed. 2012 .................................... 19 GRANVILLE AUSTIN, THE INDIAN CONSTITUTION – CORNERSTONE OF A NATION 195 (2nd ed.
- ........................................................................................................................................... 4 H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4 th^ ed., vol. 2, 2007 .......................................... 1 M. SHAMSUL HAQUE, ENVIRONMENTAL DISCOURSE AND SUSTAINABLE DEVELOPMENT: LINKAGES AND LIMITATIONS, ETHICS AND THE ENVIRONMENT, Vol. 5, No. 1 (2000) .............. 18 M.P. JAIN INDIAN CONSTITUTIONAL LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010............................................................................................................................................. 2 MALCOLM N SHAW, INTERNATIONAL LAW, Cambridge University Press, 6th ed, 2008 ................ 3
vii
- Iran, 1971), 6th ed. Ramsar Convention Secretariat, Gland, Switzerland 12, THE RAMSAR CONVENTION MANUAL: A GUIDE TO THE CONVENTION ON WETLANDS (Ramsar,
- A. S. Krishna v. State of Madras, AIR 1957 SC CASES
- A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) & Others, AIR1999SC812
- AIR 1971 SC
- Avinder Singh v. State of Punjab, AIR 1979 SC
- Ayaaubkhan Noorkhan Pathan v. The State of Maharashtra and Ors, 2012 (11) SCALE
- Bhatnagars & Co. v. Union of India, AIR 1957 SC
- 2006(3) SCC Bombay Dyeing 81 Meg. Co. Ltd. V. Bombay Environmental Action Group And Others,
- 2006 SC 1489............................................................................................................................ Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Ors, AIR
- Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC
- Caleb Nelson, PREEMPTION, Virginia Law Review, Vol. 86, No. 2 (Mar., 2000)
- Chanan Singh v. Registrar. Co-op Societies, AIR 1976 SC
- Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, AIR 1987 SC 117, ¶69
- Coffee Bd. v. Jt. C.T.O, AIR 1971 SC
- Coffee Board Bangalore v. Joint Commercial Tax Officer, AIR 1971 SC
- Court on Its Own Motion v. State Of Hp Ors. , CWPIL No. 15 of
- Dalpat Abasaheb Solunke and Ors. v.:Dr. B.S. Mahajan and Ors., AIR 1990 SC
- Dhirenda v. Legal Remembrancer, AIR 1954SC424
- Diwan Sugar Mills v. Union of India, AIR 1959SC626
- Ors., 1999 (2) KarLJ Government of Karnataka, Housing and Urban Development Department, Bangalore and
- Essar Oil v. Halar Utkarsh Samiti AIR 2004 SC
- Friends Colony Development Committee v. Orissa, (2004) 8 SCC
- G. Sundararajan v. Union of India and Ors., (2013) 6 SCC
- Garg RK v. Union of India, AIR 1981 SC
- Goa Foundation and Peaceful Society v. Union of India and Ors., 2014 (4) EFLT
- Gopal v. State of UP, AIR 1964SC370...........................................................................................
- Gramophone Company of India v. Birendra Bahadur Pandey, AIR 1984 SC
- Hanif v. State of Bihar, AIR 1958 SC vi
- HMT Ltd v. Mudappa, AIR 2007 SC
- In Re: Cauvery Water Disputes Tribunal, AIR 1992 SC 552 6,
- In Vellore Citizens Welfare Forum V. Union Of India Reported, (1996) AIR 1996 SC
- Indian Express Newspapers (Bombay) v. Union of India, AIR 1986 SC 515................................
- Indu Bhushan Bose v. Rama Sundari Debi, AIR 1970 SC
- Intellectuals Forum v. State Of A.P , 2006 (3) Scc 549.................................................................
- Intellectuals Forum, Tirupati v. State Of A.P, AIR 2006 SC
- International Tourist Corpn. v. State of Haryana, AIR 1981 SC
- J. K. Industries v. Union of India, (2007) 13 SCC 391...................................................................
- Jamshed N. Guzdar v. State of Maharashtra and Ors., AIR 2005 SC
- Jia Lal v. Delhi Administration, AIR 1962 SC
- Kapan v. Jagmohan, AIR 1981 SC
- Kasturi Lal Lakshmi Reddy State of J &K, AIR 1980 SC
- Kausha PN v. Union of India, AIR 1978 SC
- Kedar Nath Bajoria v. State of W.B, AIR 1953 SC
- Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC
- Maneka Gandhi v. Union of India & Anr., AIR 1978 SC
- Mayor etc. of Westminister v. London & North Western Ry. Co [1905] A.C.
- MC Mehta v. Union of India , Writ petition (civil) no. 13381 of
- Mittal v. Union of India, AIR 1983 SC
- 1428........................................................................................................................................... Mullaperiyar Environmental Protection Forum v. Union of India (UOI) and Ors AIR 2006 SC
- N.D. Jayal And Another v. Union Of India Others , (2004) 9 SCC
- Naga People‟s Movement of Human Rights v. Union of India, AIR 1998 SC
- Nandini Sundar and Ors. v. State of Chhattisgarh, (2011) 7 SCC
- National Legal Services Authority v. Union of India (UOI) and Ors., AIR 2014 SC
- 139............................................................................................................................................... Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority and Ors., (2011) 3 SCC
- Orissa Cement Ltd. (M/s) v. State of Orissa, AIR 1991 SC
- P. B. Roy v. Union of India, AIR 1972 SC
- Pathumma v. State of Kerala, AIR 1979 SC
- Prafulla Kumar Mukherjee and others v. Bank of Commerce Ltd., Khulna, AIR 1947 PC
- 2004 SC 3502.............................................................................................................................. Pune Municipal Corporation and Anr v Promoters and Builders Association and Anr ., AIR
- Purshottam v. Desai, (1955) 2 SCR 887(902)
- 721……………………………………………………………………………………………. Republic of Italy thr. Ambassador and Ors. v. Union of India (UOI) and Ors., (2013) 4 SCC
- Rural Litigation and Entitlement Kendra and Ors v. State of Uttar Pradesh and Ors.AIR
- SC 359.......................................................................................................................................
- Salomon v. Commissioners of Customs and Excise, (1967) 2 QB
- Second G.T.O. v. Nazareth, AIR 1971 SC
- Shashikant Laxman Kale and Anr. v. Union of India (UOI) and Anr., AIR 1990 SC
- State of Kerala and Ors. v. Mar Appraem Kuri Company Ltd. and Anr., AIR 2012 SC
- State of Madhya Pradesh v. Bhola @ Bhairon Prasad Raghuvanshi, AIR 2003 SC
- State of Maharashtra v. Bharat Shanti Lal Shah and Ors., (2008) 13 SCC
- State of Nagaland v. Ratan Singh, AIR 1967SC212
- State of Orissa and Ors. v. Mahanadi Coalfields Ltd. and Ors.
- State of Punjab v. Ajaib Singh, AIR 1953SC10
- State of Rajasthan v. G. Chawla, AIR 1959 SC 544.......................................................................
- State of Tamil Nadu v. State of Kerala and Anr , AIR 2014 SC
- State of West Bengal v. Kesoram Industries, (2004) 10 SCC
- The Chairman, Railway Board & Ors. v. Mrs. Chandrima Das & Ors., AIR 2000 SC
- The Dominion Of India And Anr. v. Shrinbai A. Irani And Anr, AIR 1954 SC
- Anr ., AIR 1964 SC 207.............................................................................................................. The South India Corporation (P) Ltd. v. The Secretary, Board of Revenue Trivandrum and
- The State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12......................................................
- Association and Ors., AIR 2010 SC Tirupur Dyeing Factory Owners Association v. Noyyal River Ayacutdars Protection
- Treatment of Polish Nationals in Denzig Case , Series A/B, no. 44..............................................
- Union of India & Anr. v. Azadi Bachao Andolan & Anr., (2004) 10 SCC
- Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC
- Vishaka v State of Rajasthan, AIR 1997 SC 3011..........................................................................
- West Bengal v. Union of India, AIR 1963 SC
- Yashpal & Anr. v. State of Chhatisgarh & Ors., AIR 2005 SC
ix
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. The Respondent No. 1 humbly submits to the jurisdiction of this Hon‟ble Court.
II. The Appellant No. 2 has approached this Hon‟ble Court under Article 32 of the Constitution. Leave has been accordingly granted. The Respondent No. 2 humbly submits to the jurisdiction of this Hon‟ble Court.
III. The Appellant No. 3 has approached this Hon‟ble Court under Article 32 of the Constitution. Leave has been accordingly granted. The Respondent No. 3 humbly submits to the jurisdiction of this Hon‟ble Court.
IV. The Appellant No. 4 has approached this Hon‟ble Court under Article 136 of the Constitution. Leave has been accordingly granted. The Respondent No. 4 humbly submits to the jurisdiction of this Hon‟ble Court.
x
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
xii
STATEMENT OF ISSUES
1. Whether the writ petition filed by the FER at the High Court of Neruda is maintainable? 2. Whether § 3 of the Linking of Rivers Act, 2010 is ultra vires the Constitution of Aressia? 3. Whether the exclusion of the State of Vindhya from the Linking of Rivers Project violated the fundamental rights of the people of Vindhya and Normanda? 4. Whether the Linking of Rivers Act, 2010 violates the environmental rights of citizens of Aressia and the provisions of the Forest (Conservation) Act, 1980?
xiii
SUMMARY OF ARGUMENTS
I. THAT THE WRIT PETITION FILED BEFORE THE HIGH COURT OF NERUDA IS NOT
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 since: 1.1] That none of the grounds to challenge the purported move by the ALR were satisfied since the subordinate authority acted within its powers; 1.2] That domestic law may not be questioned on the grounds of contravening international commitments since they do not confer rights on members of the public per se ; 1.3] That the application of fundamental rights is restricted to the territory of Aressia and thereby have not been violated; and 1.4] That the writ petition is based on pure apprehension and no right has been infringed.
II. THAT § 3 OF THE LINKING OF RIVERS ACT, 2010 IS INTRA 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 outside the legislative domain of the State Legislatures since the „object‟, „scope‟ and „effect‟ of the same relate to subject-matters outside the State List and; 2.2] Residuary Powers with respect to legislative competence is vested with the Parliament and any subject-matter falling outside the domain of the State may be legislated upon by Parliament.
III. THAT THE EXCLUSION OF VINDHYA FROM THE LINKING OF RIVERS PROJECT IS NOT VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF CITIZENS OF VINDHIYA AND NORMANDA.
Exclusion of Vindhiya from the list of states where the Linking of Rivers Project is to be implemented, is neither in violation of A.14 since this right allows for reasonable classification as was made in the present situation, nor in violation of A.21 where a „Reasonable Person‟s Test‟ was employed to find out that Right to Wholesome Environment should be given precedence to Right to Livelihood when the two are in conflict. Instead A.
ARGUMENTS ADVANCED
1. THAT THE WRIT PETITION FILED WITH THE HIGH COURT OF NERUDA IS
NOT MAINTAINABLE
1. Writ Jurisdiction of the High Courts‟ flows from Article 226,^1 which confers wide powers enabling the Court to issue writs, directions, orders for the enforcement of fundamental or legal rights.^2 The exercise of writ jurisdiction by the High Court is discretionary in nature.^3 It is submitted that the writ petition is not maintainable on primarily four grounds: 1.1] That none of the grounds to challenge the purported move by the Authority for Linking of Rivers (hereinafter, ALR) as delegated legislation were satisfied; 1.2] That domestic law may not be questioned on the grounds of contravening international commitments; 1.3] That the application of fundamental rights is restricted to the territory of Aressia; and 1.4] That the writ petition is based on pure apprehension.
1.1 THAT NONE OF THE GROUNDS TO CHALLENGE THE PURPORTED MOVE BY THE ALR AS DELEGATED LEGISLATION WERE SATISFIED
2. The legislature can confer power upon a subordinate agency to make rules, in detail, to better carry out the scheme of the legislation,^4 as is the present instance wherein the ALR has been conferred powers under § 3 (3) of the Linking of Rivers Act (hereinafter, the impugned Act).^5 Delegated legislation may not be questioned on grounds of violating principles of natural justice or not taking into consideration certain circumstances.^6 The judicial review of delegated legislation may be made on the following grounds: (i) legislative competence on which the plenary legislation is also subject; (ii) being ultra vires the parent statute; (iii) being in conflict with another statute; (iv) be so arbitrary as to violate Article 14 of the Constitution.^7
(^1) Article 226, Constitution of India. (^2) H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4 th (^) ed., vol. 2, 2007 at p. 1586. (^3) D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia
4 & B. P. Banerjee eds., Vol. 6, 8th ed. 2012,^ p. 6614. J. K. Industries v. Union of India, (2007) 13 SCC 391, ¶ 38; Bhatnagars & Co. v. Union of India, AIR 1957 SC 5 478 , ¶¶ 14-15. 6 Factsheet, ¶ 6. Pune Municipal Corporation and Anr. v. Promoters and Builders Association and Anr ., AIR 2004 SC 3502, ¶ 7 4. Indian Express Newspapers (Bombay) v. Union of India, AIR 1986 SC 515, ¶ 75; State of Madhya Pradesh v. Bhola @ Bhairon Prasad Raghuvanshi, AIR 2003 SC 1191, ¶ 21.
3. In the instant case, the move towards linking the river „Bhargavi‟ comes squarely within the ambit of the powers conferred upon the ALR under §3 (3).^8 Furthermore, the move to link the said river is based on a „High Level Committee Report‟ as well as an „Environment Impact Assessment Report‟ which vitiate the proposition that the said move is patently arbitrary or unreasonable.^9 It is further submitted that the purported move by the ALR is not in conflict with any other statute. Thereby, it is submitted that a challenge to the validity of the delegated legislation would not be maintainable.
1.2 THAT NO PRIMA-FACIE CASE FOR BREACH OF FUNDAMENTAL RIGHTS HAS BEEN ESTABLISHED
4. A writ petition under Article 226 is maintainable for the purposes of enforcing a legal or statutory right or compelling the performance of a statutory duty.^10 The principle fundamental rights which are applicable to non-citizens are under Article 14 and Article 21 of the Constitution.^11 However, Article 14 is expressly limited to the territory of the country.^12 In Maneka Gandhi v. Union of India , it was held that the right to freedom of movement could be located under Article 21 and such right was extra-territorially applicable.^13 In subsequent cases, it has been observed that the right under Article 21 is available to aliens only when sought to be subject to the legal process of India.^14 It is thereby contended that extra- territorial application of fundamental rights is limited to the right to freedom of movement. It is submitted that this right may be distinguished from other rights under Article 21 since the right to freedom of movement by its very nature would imply extra-territoriality. 5. Furthermore, the Constitution imposes a positive obligation on the State to take all necessary steps to realise the bundle of rights read into Article 21.^15 It is submitted that such a positive obligation may not be made extra-territorial since it would infringe upon the sovereignty of other nations.
(^8) Factsheet, ¶ 6. (^9) Factsheet, ¶¶ 4-5. (^10) The State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12, ¶ 7; Ayaaubkhan Noorkhan Pathan v. The
11 State of Maharashtra and Ors, 2012 (11) SCALE 39, ¶¶ 9-11. 12 M.P.^ JAIN^ INDIAN^ CONSTITUTIONAL^ LAW,^ Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010, p. 1130. 13 Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597 at ¶ 168. 14 Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597 at ¶¶ 73-76. Republic of Italy thr. Ambassador and Ors. v. Union of India (UOI) and Ors., (2013) 4 SCC 721, ¶ 122; The 15 Chairman, Railway Board & Ors. v. Mrs. Chandrima Das & Ors., AIR 2000 SC 988, ¶ 35. Nandini Sundar and Ors. v. State of Chhattisgarh, (2011) 7 SCC 547, ¶ 41.
Mudappa ,^26 it was held that a writ petition against a notification for the proposed acquisition of land under the Karnataka Industrial Areas Development Act, 1966 was premature.^27 Similarly, in the present case, the fears expressed by the FER were not realised.^28 The linking of rivers was being done pursuant to an Environmental Impact Assessment report and a High Level Committee Report which had proposed the requisite safeguards for the protection of the environment.^29 Furthermore, the fears that the members of the EIA committee were under political pressure had not materialised as then.^30
10. Thereby, it is humbly submitted that the said writ petition was not maintainable before the High Court of Neruda since no action had been taken to unreasonably detriment the legal rights of the people of Boressia, if any. 2. THAT § 3 OF THE LINKING OF RIVERS ACT 2010 IS INTRA VIRES THE CONSTITUTION OF ARESSIA 11. As a component of the Federal Structure of the Constitution of Aressia, legislative powers have been divided between the Parliament and State Legislatures.^31 The competing legislatures may not infringe upon the each other‟s legislative domain;^32 though Parliament is legislatively supreme to the State Legislatures.^33 The constitutional vires of § 3 of the Linking of Rivers Act (hereinafter, the impugned Act) was challenged on the grounds of legislative competence.^34 It is submitted that the said provisions are not ultra vires the Constitution since: 2.1] the „pith and substance‟ of § 3 lies outside the legislative domain of the State Legislatures and; 2.2] Residuary Powers with respect to legislative competence is vested with the Parliament.
2.1 THAT § 3 OF THE LINKING OF RIVERS ACT IN ‘PITH AND SUBSTANCE’ FALLS OUTSIDE THE LEGISLATIVE COMPETENCE OF THE STATES
12. 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
(^26) HMT Ltd v. Mudappa, AIR 2007 SC 1106. (^27) HMT Ltd v. Mudappa, AIR 2007 SC 1106, ¶¶ 17- 18. (^28) Factsheet, ¶ 14. (^29) Factsheet, ¶¶ 4- 5. (^30) Factsheet, ¶¶ 14- 15. (^31) D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia
32 & B. P. Banerjee eds., Vol. 8, 8th ed. 2012, p. 8626. 33 State of Kerala and Ors. v. Mar Appraem Kuri Company Ltd. and Anr., AIR 2012 SC 2375, ¶12. 34 GRANVILLE^ AUSTIN,^ THE^ INDIAN^ CONSTITUTION^ –^ CORNERSTONE OF A^ NATION,^ 2nd ed. 1999, p. 195. Factsheet, ¶ 10.
Constitution.^35 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.^36 If the „true nature and character‟ of a legislation falls outside the permissible limits assigned to the respective legislature then such law is ultra vires the constitution.^37 The relevant factors which must be considered in order 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.^38
2.1.1 The object and purpose of the impugned section does not relate to subject-matters enumerated in List II of the Seventh Schedule
13. In State of Rajasthan v. G. Chawla,^39 giving significant importance to the object of legislation in determining its pith and substance,^40 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.^41 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.^42 In State of West Bengal v. Union of India ,^43 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.^44 14. We must refer to the various legislative fields under the seventh schedule to ascertain which relevant subject-matters fall under the exclusive competence of the States.^45 Entry 42, Union List of the Seventh Schedule deals with the development and regulation of „inter-state rivers‟.^46 On the other hand, Entry 17 of the State List empowers the State Legislature to enact laws relating to water, its supply, irrigation, drainage, inter alia.^47 In Re: Cauvery
(^35) D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia
36 & 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 37 and others v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60 at ¶¶ 35-38. 38 State of Maharashtra v. Bharat Shanti Lal Shah and Ors., (2008) 13 SCC 5 at ¶ 30. Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority and Ors., (2011) 3 SCC 139 at ¶ 64; A. S. 39 Krishna v. State of Madras, AIR 1957 SC 297 at ¶16. 40 State of Rajasthan v. G. Chawla, AIR 1959 SC 544. 41 State of Rajasthan v. G. Chawla, AIR 1959 SC 544^ at ¶ 14. 42 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 43 Orissa and Ors. v. Mahanadi Coalfields Ltd. and Ors. at ¶¶ 5-7. 44 West Bengal v. Union of India, AIR 1963 SC 1241. 45 West Bengal v. Union of India, AIR 1963 SC 1241 at ¶¶ 7-9. 46 M.P.^ JAIN^ INDIAN^ CONSTITUTIONAL^ LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010, p. 533. 47 Entry 56 List I, Seventh Schedule, Constitution of Aressia; See Also, Supra No. 3 at p. 11887. Entry 17 List II, Seventh Schedule, Constitution of Aressia.
