10th Pro Bono Enviro Moot Petitioner

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 TEAM CODE PB01P 10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016

BEFORE THE HON’BLE NATIONAL GREEN TRIBUNAL OF REPUBLIC OF DORADO

IN THE MATTER OF: 1. MR. THARIK GHULAM …APPLICANTS

2. ENVIRONMENTAL ACTION NETWORK

V.

1. THE REPUBLIC OF DORADO 2. MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE 3. STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY

….RESPONDENTS

APPLICATION NO.___/2016

WRITTEN SUBMISSION ON BEHALF OF THE APPLICANTS

COUNSELS APPEARING ON BEHALF OF THE APPLICANTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 TABLE OF CONTENTS INDEX OF AUTHORITIES............................................................................................................III STATEMENT OF JURISDICTION................................................................................................ VII STATEMENT OF FACTS...........................................................................................................VIII STATEMENT OF ISSUES..............................................................................................................IX SUMMARY OF ARGUMENTS.........................................................................................................X ARGUMENTS ADVANCED............................................................................................................. 1 1. THE APPLICATIONS FILED BEFORE THIS HON’BLE TRIBUNAL ARE MAINTAINABLE..................1 1.1 The Applicants have the locus standi to file the instant application............................ 1 1.2 The Applications filed are not barred by limitation..................................................... 1 2. THE GIL’EAD

IS A ‘FOREST’ UNDER THE

FOREST CONSERVATION ACT

AND THE SAME HAS

BEEN DIVERTED FOR NON-FOREST PURPOSE.............................................................................3

2.1 Extension of definition of forest by the Supreme Court..................................... ..........3 2.2 Purpose of extension of the definition was to protect the ecology and life..................3 3. THE TARDAS’ RIGHTS HAVE BEEN VIOLATED BY THE GOVERNMENT OF DORADO............. .......5 3.1 The violation of the Forest Rights conferred upon the Tardas by the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006.................................................................................................................................... 5 3.2 The Violation of fundamental rights under Article 19 of the Constitution of India................................................................................................................................... 6 3.3 Violation of Right to Life under Article 21 of the Constitution......................... ..........7 3.4 The violation of Right to practice any religion under Article 25 and 26 of the Constitution.......................................................................................................................9 4. THE GOVERNMENT

DID NOT OBTAIN THE REQUIRED

ENVIRONMENTAL CLEARANCE

UNDER

THE ENVIRONMENT PROTECTION ACT, 1986............................................................. ............11

4.1 Violation of the Environment Impact Assessment Notification, 2006 as clearance had not been obtained................................................................................... .................11 4.2 The purportedly obtained clearance by the government is void................................13 I MEMORANDUM ON BEHALF OF THE APPLICANTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 4.3 The Government is bound to disclose Environment Impact Assessment report and Environmental clearance under RTI Act, 2005...........................................................15 5. THE GOVERNMENT

HAS VIOLATED THE PRINCIPLE OF

WAKE OF CONSTRUCTING

SUSTAINABLE DEVELOPMENT

URANIUM ENRICHMENT FACILITY

AND

IN THE

DEFENCE-RELATED

RESEARCH INSTITUTE............................................................................................................17 5.1 Violation of Sustainable Development vis-à-vis Environment Protection Act, 1986..................................................................................................................................17 5.2 Disturbance of Biodiversity by non-adherence to Sustainable development............18 PRAYER............................................................................................................................... ..XXII

II MEMORANDUM ON BEHALF OF THE APPLICANTS

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INDEX OF AUTHORITIES TABLE OF CASES Adivasi Majdoor Kisan Ekta Sangathan v MoEF 2012 SCC Online NGT 51 ........................ 12 Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and Others, AIR 1997 SC 152.......................................................................................................................................... 9 Andhra Pradesh Pollution Control Board v. MV Nayudu, AIR 1999 SC 812 .......................... 8 Association of Environment Protection v State of Kerala, (2013) 7 SCC 266 ........................ 14 B.D. Sharma v. Union of India, 1992 Supp (3) SCC 93 ............................................................ 8 Chameli Singh and Ors. v. State of Uttar Pradesh, AIR 1996 SC 1051 .................................... 9 Commissioner of Police and Ors. v. Acharya Jagdishwarananda Avadhuta and Anr., (2004) 12 SCC 770 .......................................................................................................................... 10 Court on its own motion v. Union of India & Ors., 2014 SCC Online Jhar 392 ..................... 19 Court on its own motion v. Union of India, (2013) 3 SCC 247............................................... 10 Dalmia Cement Bharat Ltd. v. Union of India, (1996) 10 SCC 104 ......................................... 8 Davis George Thomas vs Ministry of Environment & Forest, Climate Change, 2015 SCC Online CIC 12990 ................................................................................................................ 17 Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 SCC (L&S) 1213 ............... 7 Dr. N.B. Khare v. State of Delhi, AIR 1950 SC 211 ................................................................. 6 Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 SC .................................... 7 Francis Coralie Mullin v. Union territory of Delhi, AIR 1981 SC 746 ..................................... 8 G Sundarrajan v Union of India, (2013) 6 SCC 620.......................................................... 14, 18 Indian Council for Enviro Legal Action v. Union of India, (1996) 5 SCC 281 ................ 14, 16 K.K. Royson v. Union of India, 2014 SCC Online NGT 61 ..................................................... 1 Kalpavriksh Vagholkar v. Union of India, (2014) ALL (I) NGT Reporter (2) (Delhi) 282 ...... 1 Kehar Singh v. State of Haryana, 2013 SCC Online NGT 52 ................................................... 2 Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 .................................................... 6 Krishi Vigyan Arogya Sansthan v MoEF, 2011 SCC Online NGT 18 ................................... 13 M.C. Mehta v, Union of India, 2002 (4) SCC 353 .................................................................. 18 M.C. Mehta v. Union of India, AIR 1988 SC 1115 ................................................................... 9 M.R.F. Ltd. v. Inspector Kerala Government and Ors., (1998) 8 SCC 227 .............................. 7 M.S. Thannkappan v Union of India, 2014 SCC Online NGT 1723 ....................................... 14 III MEMORANDUM ON BEHALF OF THE APPLICANTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 M/s. Shantistar Builders v. Narayan Khimlal Totame, AIR 1990 SC 630 ................................ 9 Mayur Karsabhai Parmar v. Union of India, 2012 SCC Online NGT 48 ................................ 12 N.D. Jayal v. Union of India, (2004) 9 SCC 362 ..................................................................... 18 Narmada Bachao Andolan v. State of Madhya Pradesh, (2011) 12 SCC 33 ............................. 9 Nishakar Khatua v. State of Orissa, 2012 (1) ILR-CUT 19....................................................... 8 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180........................................... 8 P. Rami Reddy v. State of Andhra Pradesh, AIR 1988 SC 1626 .............................................. 7 PC Prasad v Govt. of NCT of Delhi, 2013 SCC Online NGT 642 .......................................... 11 Residents of Sanjay Nagar v. State of Rajasthan, AIR 2004 Raj 116 ....................................... 8 Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1985 SC 652............ 7 Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297 ............................................... 3, 8, 15 Sarang Yadwadkar and Ors. v. The Commissioner, Pune Municipal Corporation and Anr., 2013 SCC Online NGT 4485 ............................................................................................... 19 Sardar Syadna Taker Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853 ............... 10 Shibani Ghosh v MoEF, [2012] CIC 1063 .............................................................................. 12 South Asia Industries Private Ltd v Sarup Singh, AIR 1966 SC 346 ...................................... 15 State of Himachal Pradesh v. Ganesh Wood Product, AIR 1996 SC 149 ............................... 11 State of Himachal Pradesh v. Umed Ram Sharma, AIR 1986 SC 847 ...................................... 8 State of Karnataka v. Narasimhamurthy, AIR 1996 SC 90 ....................................................... 9 State of Maharashtra v. Chandrabhan, AIR 1983 SC 803 ......................................................... 8 State of West Bengal v. Sujit Kumar Rana, AIR 2004 SC 1851 ............................................... 3 Subhash Kumar v. State of Bihar, AIR 1991 SC 420 ................................................................ 7 Sudiep Shrivastava v. State of Chattisgarh. 2013 SCC Online NGT 2283 ............................. 19 T.N. Godavarman Thirumulkpad v. Union of India, AIR 1997 SC 1228 ................................. 3 U.P. Avas Evam Vikas Parishad vs. Friends Coop. Housing Society Ltd., AIR 1996 SC 114 . 9 Union of India v. G Krishnan, 2012 SCC Online Del 2869 .................................................... 16 Utkarsh Mandal v. Union of India, 2009 SCC Online Del 3836 ............................................. 12 V. Srinivasan v Union of India, 2012 SCC Online NGT 22 ................................................... 13 Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 ................................ 18 Vijay Singh Punia v. State of Rajasthan, AIR 2004 Raj 1 ......................................................... 8 Vimal Bhai and Ors. v. Ministry of Environment and Forests and Anr., 2011 SCC Online NGT 16 .................................................................................................................................. 1 Virender Gaur v. State of Haryana, (1995) 2 SCC 577 ............................................................. 7 IV MEMORANDUM ON BEHALF OF THE APPLICANTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 BOOKS/COMMENTARIES Cited 1. Dr. J.N. Barowalia, Commentary onThe Right To Information Act (1st ed. 2006) ..... 16 2. Justice T.S. Doabia, Environmental & Pollution Laws in India (1st ed. 2005) ............ 19 3. Kailash Thakur, Environmental Protection Law and Policy in India (1st ed. 1997; Reprint 2007) ................................................................................................................. 9 4. M.P. Jain, Indian Constitutional Law, (7th ed., 2014)....................................................6 5. The Oxford Handbook of Indian Constitution (Sujit Choudhary et al ed., 2016) ......... 6 Referred 1. 1 R.S. Bedi & A.S. Bedi, Encyclopaedia of Environment and Pollution Laws (2nd ed. 2006). 2. Armin Rosencranz, Environmental Law and Policy in India: Cases, Materials and Statutes (1st ed. 1992) 3. Dr. Durga Das Basu, Shorter Constitution of India (13th ed. 2006). 4. H.M. Seervai, Constitutional Law of India, (4th ed., 1991; Reprint 2015) 5. Justice G.P. Singh, Principles of Statutory Interpretation (13th ed. 2012). 6. P.Leelakrishnan, Environmental Law Case Book (2nd ed. 2006). LEGISLATIONS/NOTIFICATIONS/REPORTS Legislations 1. Biological Diversity Act, 2002 2. Forest Conservation Act, 1980 3. Indian Forest Act, 1927 4. National Green Tribunal Act, 2010 5. Right To Information Act, 2005 6. The Air (Prevention and Control of Pollution) Act, 1981 7. The Environment (Protection) Act, 1986 8. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

V MEMORANDUM ON BEHALF OF THE APPLICANTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 9. The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006 10. The Water (Prevention and Control of Pollution) Act, 1974 Notifications 1. Environment Impact Assessment Notification, 2006 2. Gazette of India, Extraordinary, Part-II, Ministry of Environment and Forests, 2006 3. Handbook of Forest (Conservation) Act, 1980 4. MoEF, Order No. J-11013/19/2012-IA.II(I) (2012) Reports 1. National Forest Policy, 1988 2. Task Report on Grasslands and Deserts. 2006 3. Manthan: Report on Forest Rights Act, A Joint Committee of Ministry of Environment and Forests and Ministry of Tribal Affairs, 2010 OTHER AUTHORITIES 1. Adrian Levy, Experts worry that India is creating new fuel for an arsenal of HBombs, THE CENTRE FOR PUBLIC INTEGRITY 2. E. Somanathan, Biodiversity in India, INDIAN STATISTICAL UNIT 3. The Constitution of India

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STATEMENT OF JURISDICTION The Applicants have approached this Hon’ble Tribunal under section 14 of the National Green Tribunal Act, 2010.

VII MEMORANDUM ON BEHALF OF THE APPLICANTS

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STATEMENT OF FACTS 1. The Republic of Dorado is a developing nation with 15,00,000 hectares of semi-arid grasslands named Gil’ead. The native Tribes Tarda used to inhabit and depended on these lands for sustenance as well as worshipped them as their God. The grasslands were converted to Industrial areas and townships and the area of such grasslands came down to merely 1,50,000 hectares out of which the grassland in District of Khyber named Varkia constituted 35,000 hectares. 2. The Government of Dorado announced to set up a Uranium enrichment facility and Defence-related research institute for development of aircrafts and missiles in 2013. The Government began to construct the same in May 2014 and built huge walls enclosing Varkia which resulted in hindrance in the movement of animals as well as natives. 3. An action council Radava Mehel protested continuously and the government stated that projects such as Uranium enrichment and spent fuel storage facility, missile research, development and testing range were to be built up in that area. However, no information regarding construction was divulged. 4. An NGO, Environmental Action Network, joined the Radava Mehel because neither consultation nor public hearing took place before the inception of Government’s project. 15 Blackbucks and 1 Great Bustard were found dead in February 2015. Pursuant to this, the village panchayats of 12 villages passed a resolution against conversion of grasslands. 5. In May 2015, a newspaper report stated that the environmental clearance was not obtained by the Government for the aforesaid projects. In response, the Government claimed that necessary clearance had been obtained under Environment Impact Notification, 2006 from the State Environmental Impact Assessment Authority (SEIAA) in January, 2015. 6. Aggrieved by the establishment of such facilities by the Government, Mr. Tharik Ghulam and Environmental Action Network filed applications in the National Green Tribunal. Hence, the present applications.

VIII MEMORANDUM ON BEHALF OF THE APPLICANTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF ISSUES 1. WHETHER THE APPLICATIONS FILED BEFORE THIS TRIBUNAL ARE MAINTAINABLE? 2. WHETHER

THE GRASSLANDS

GIL’EAD

IS DEEMED TO BE

‘FOREST’

UNDER

FOREST

CONSERVATION ACT, 1980? 3. WHETHER THE RIGHTS OF TARDAS HAVE BEEN VIOLATED BY THE GOVERNMENT OF THE REPUBLIC OF DORADO? 4. WHETHER THE GOVERNMENT OBTAINED NECESSARY CLEARANCE UNDER ENVIRONMENT IMPACT ASSESSMENT NOTIFICATION, 2006? 5. WHETHER

THE GOVERNMENT HAS ADHERED TO THE PRINCIPLE OF

DEVELOPMENT WHILE CARRYING OUT DEVELOPMENTAL PROJECTS?

IX MEMORANDUM ON BEHALF OF THE APPLICANTS

SUSTAINABLE

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016

SUMMARY OF ARGUMENTS 1. That the Applications filed before this Hon’ble Tribunal are maintainable. a. The principle of locus standi has been relaxed by the tribunal to include every person directly or indirectly affected. b. Not only person actually aggrieved but any person can raise a concern pertaining to environment insofar as the environment is at stake. c. Limitation period begins when the cause of action first arises. d. The cause of action pertains to an environmental dispute arising out of a substantial question of environment. 2. That the grasslands Gil’ead are deemed to be forest under Forest Conservation Act, 1980. a. The definition of Forest has been extended by the Hon’ble Supreme Court to preserve ecology and protect the lives of people residing in there. b. Grasslands’ natural vegetative growth includes Gil’ead in definition of ‘Forest’ as per the dictionary meaning. 3. That the Tardas’ rights have been violated by the Government of the Republic of Dorado. a. Construction carried out by the Government of the Republic of Dorado stands in violation of the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006. b. Construction undertaken by the Government violates Article 19 of the Constitution. c. Construction undertaken by the Government violates Article 21 of the Constitution. d. Construction undertaken by the Government violates Article 25 and 26 of the Constitution. 4. That the government did not obtain the required Environment clearance under Environment Protection Act, 1986. X MEMORANDUM ON BEHALF OF THE APPLICANTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 a. The stages laid down by the Environment Impact Assessment notification, 2006 have not been complied with. b. The Environmental clearance had not been published on the website as mandated by the notification. c. The alleged Environmental Impact clearance obtained by the State Environment Impact Assessment Authority is void since no permission was obtained from the Ministry of Environment, Forest and Climate Change. d. The Government is bound to disclose information pertaining to Environmental clearance and Assessment report under Right to Information Act, 2005. 5. That the Government of the Republic of Dorado has not adhered to the principle of Sustainable Development. a. The balance between the developmental activity and the Environment has not been struck while carrying out the construction. b. The Tardas’ rights have not been taken into consideration while carrying out such construction. c. The Ecology and biodiversity have been disturbed by such construction.

XI MEMORANDUM ON BEHALF OF THE APPLICANTS

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ARGUMENTS ADVANCED 1. THE APPLICATIONS FILED BEFORE THIS HON’BLE TRIBUNAL ARE MAINTAINABLE 1. The Applications filed before this Tribunal are maintainable because [1.1] the applicants have locus standi to file the application and [1.2] the applications are not barred by the limitation. 1.1 The Applicants have locus standi to file the instant application 2. The applicants, in the instant matter, do have the locus standi to file this applications because jurisdiction of this tribunal extends to (a) all the civil matters, (b) which pertain not only to a substantial question of environment or enforcement of any legal right pertaining to environment (c) but also which arise from implementation of the acts mentioned in the Schedule I of the Act.1 The fact that the National Green Tribunal Act empowers only the “persons aggrieved” to file an application2 does not bar the applicant from filing the application since this Hon’ble Tribunal had itself widened the concept of locus standi in the environment matters.3 3. The Constitution of India confers a fundamental duty upon every citizen of India for protection and improvement of environment4 and thus ‘person aggrieved’ under the National Green Tribunal Act, 2010 was held to be at par with ‘every citizen’ under the Constitution.5 This Tribunal, therefore, has stated that matters which pertain to ecology and environment affect every person either directly or indirectly and therefore, the right to file an application cannot be limited to the individual who is actually aggrieved.6 Since, Mr. Tharik Ghulam is a resident of District of Khyber, he is directly affected and therefore, squarely falls within the ‘persons aggrieved’ under section 18. Therefore, as per this Tribunal’s directions, the NGO Environmental Action Network does have the locus standi to file the instant application. 1.2 The Applications filed are not barred by limitation

1

Kalpavriksh Vagholkar v. Union of India, (2014) ALL (I) NGT Reporter (2) (Delhi) 282. National Green Tribunal Act, 2010 § 14. 3 Samata and Ors. v. Union of India, 2013 SCC Online NGT 101; Goa Foundation v. Union of India, 2013 All India (NGT) Reporter (New Delhi) 234. 4 INDIA CONST. art. 51A(g). 5 Vimal Bhai and Ors. v. Ministry of Environment and Forests and Anr., 2011 SCC Online NGT 16. 6 K.K. Royson v. Union of India, 2014 SCC Online NGT 61. 2

1 MEMORANDUM ON BEHALF OF THE APPLICANTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 4. The National Green Tribunal Act, 2010 provides for a period of six months to file an application from the date when the cause of action arose.7 The cause of action has to be read with the ‘dispute’ stipulated under section 14 of the Act and such dispute has to be directly related to a substantial question related to the environment under any of the acts mentioned in Schedule I of the Act.8 The period of limitation begins from the date of occurrence of that very dispute.9 Therefore, the cause of action arises when there is an environmental dispute, a right to claim such dispute, and jurisdiction of this Tribunal.10 5. The mere announcement of establishment of the Uranium Enrichment Facility and the Defence related research institute [mentioned as ‘Facilities’ hereinafter] does not constitute a substantial question related to environment, therefore, it is submitted that the cause of action arose on the date when the news regarding non-procurement of Environment clearance was published in May, 2015 as it was a violation of Environment Protection Act, 1986.11 Hence, it is submitted that the applicants are not barred by limitation since the application was filed in September 2015 and October 2015 which is within six months from the date the cause of action first arose on.

7

National Green Tribunal Act, 2010, § 14(3). Kehar Singh v. State of Haryana, 2013 SCC Online NGT 52. 9 Ibid. 10 Ibid. 11 ¶ 11, Moot Proposition. 8

2 MEMORANDUM ON BEHALF OF THE APPLICANTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 2. THE GIL’EAD IS A FOREST UNDER THE FOREST CONSERVATION ACT AND THE SAME HAS BEEN DIVERTED FOR NON-FOREST PURPOSE

6. It is humbly submitted that the Gile’ad grasslands must be deemed to be ‘forest’ under Forest Conservation Act, 1980 [mentioned as “FC Act” hereinafter] because [2.1] the ‘definition’ of forest has been extended by the Hon’ble Supreme Court, and [2.2] it was extended to preserve the ecology and to protect the adverse impact on human lives. 2.1 Extension of definition of forest by the Supreme Court 7. The Forests are considered to be National wealth and the State is obliged to preserve the forests under Article 48-A of the Constitution so that ecology can be balanced.12 The FC Act, 1980 stipulates that every authority is bound to take prior approval of the Central Government to make an order which diverts the forest land for non-forest purposes.13 8. The Hon’ble Supreme Court held that real intent behind the enactment of FC Act was to reduce deforestation and to improve ecological balance.14 The ‘Forest’ was held to be understood as per its dictionary meaning apart from statutorily recognised forests or otherwise.15 The meaning of a ‘forest’ was extended for the purpose of preserving all the forest lands from deforestation and balancing of ecology by preventing environmental degradation and minimising adverse impact on the right to life of public.16 Furthermore, forest preservation and protection was held to be intrinsically connected with the lives of tribal people.17 2.2 Purpose of extension of the definition was to protect the ecology and life 9. The Task Force on Grasslands and Deserts constituted by the Planning Commission stated that not considering grasslands as ‘forest’ under the FC Act would be in contravention of the order of 12.12.1996 passed by T.N. Godavarman.18 It was further stated that grasslands having natural vegetative growth should also be considered as a 12

State of West Bengal v. Sujit Kumar Rana, AIR 2004 SC 1851. Forest Conservation Act, 1980, § 2. 14 T.N. Godavarman Thirumulpad v. Union of India, AIR 1997 SC 1228. 15 Ibid. 16 Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297. 17 Ibid. 18 TASK REPORT ON GRASSLANDS AND DESERTS, Letter no. M-13033/1/2006 E&F, Planning Commission 16. 13

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 ‘forest land’ under the Act and restricting diversion of forest lands for non-forest lands must be applicable to these lands as well considering the fact that these are a part of the critical ecosystem.19 10. Hence, the diversion of Gil’ead for non-forest purpose would lead to degradation of environment and adversely impact the human life, protection of which was the main intention behind the extension of the meaning of ‘Forest’. Therefore, it is humbly submitted that the Gile’ad shall be included in the definition of ‘Forest’ given by T.N. Godavarman. It is humbly submitted that the establishment of facilities constitutes non-forest use of forest land as the aforementioned activities are not exempted under section 2 of the FC Act as these activities are not for the purpose of re-afforestation and are further not included in the saving clause.20 Hence, the said construction was not made with the prior approval of the Central Government and the acts of Respondents stand in sheer violation of section 2 of the FC Act and they should be held liable for the same.

19 20

Ibid. Forest Conservation Act, 1980, § 2, Explanation (b).

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 3. THE TARDAS’ RIGHTS HAVE BEEN VIOLATED BY THE GOVERNMENT OF DORADO 11. It is humbly submitted that the establishment of facilities by the Government of the Republic of Dorado have led to [3.1] the violation of the rights conferred upon the Tardas by the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006, [3.2] the violation of Right to freedom under Article 19 of the Constitution, [3.3] the violation of Right to life under Article 21 of the Constitution and [3.4] the violation of Right to practice and profess religion under Article 25 and 26 of the Constitution. 3.1 The violation of the Forest Rights conferred upon the Tardas by the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006 12. The enactment of The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006 (mentioned as “FR Act, 2006” hereinafter) has been to protect the symbiotic relationship between the tribal communities and the forests of India.21 It has been recognised by the Government that development of tribal people is an integral part for conservation of forest and development in tribal areas shall be done in consonance with the Forest Conservation Act, 1980.22 13. The intent of the legislators behind the FR Act, 2006 was to protect the forest dwellers, their customs, right to graze their cattle, ceremonies etc. which includes usage of forest lands as a community forest resource.23 Furthermore, the rituals practised by the tribes are integral to their religious beliefs and constitute a major component of the tribes’ traditional practices.24 The Supreme Court upheld the local community rights and ordered the Gram Sabha to preserve the religious beliefs of the community thereby affected.25 The tribal communities are entitled to hold the forest land and continue to gain their livelihood from the same by way of grazing and rearing of their cattle.26 Moreover, the diversion of the forest land is permitted only to the extent of one hectare

21

NATIONAL FOREST POLICY, 1988, No. 3A/86-FP, Ministry of Environment and Forests. MINISTRY OF ENVIRONMENT AND FOREST, HANDBOOK OF FOREST (CONSERVATION) ACT, 1980 (2004). 23 Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests, (2013) 6 SCC 476. 24 The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006, § 3(1)(l). 25 Supra note 23. 26 The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006, § 3(1)(a). 22

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 and the clearance for the developmental projects can only be provided on the recommendation of the Gram Sabha.27 14. It is humbly submitted that the Respondents, by acquiring 35,000 hectares of grasslands Varkia and depriving the Tardas of their traditional practices by depriving them of their God in the form of grasslands, without getting the prior approval, have blatantly violated the provisions of the FR Act, 2006. 3.2 The Violation of fundamental rights under Article 19 of the Constitution of India 3.2.1

Eviction of Tardas in contravention of Right to movement and residence

15. Right of free movement and Right of residence are protected under the Constitution.28 These rights have been read together both of these rights get affected when a citizen is evicted.29 Although these rights are not absolute and come with certain reasonable restrictions, the scope of the right of movement is much wider as the word ‘freely’ has been used, which makes it almost absolute.30 In the instances of land acquisition, the Courts have recognised the interference of state action in right to residence of citizens and obliged the state to take further compensatory action failure of which would result in violation of fundamental right.31 16. The restriction to be imposed on a citizen’s right to move freely or of residence needs to be backed by law under Article 19(5) of the Constitution and the circumstances or manner in which restrictions are put also constitute an important component of reasonableness.32 17. In the instant matter, government of the Republic of Dorado interfered with the rights of tribal people by hindering their movement into their native lands and this action was not backed by any law since the Tardas were unofficially informed to evict the place.33 It is humbly submitted that the government of Republic of Dorado has violated Article 19(1)(d) and 19(1)(e) of the Constitution.

27

The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006, § 3(2). INDIA CONST. art. 19(1)(d) & (e). 29 M.P. JAIN, CONSTITUTIONAL LAW OF INDIA 1471 (7th ed. 2014). 30 Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295. 31 Anirudh Barman, Movement and Residence, in THE OXFORD HANDBOOK OF INDIAN CONSTITUTION 819 (Sujit Choudhary et al ed., 2016); Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751. 32 Dr. N.B. Khare v. State of Delhi, AIR 1950 SC 211. 33 ¶ 6, Moot Proposition. 28

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 3.2.2 Unreasonably restricting the right of Tardas to carry out any occupation 18. A citizen is entitled to carry out any trade, occupation or profession under the Constitution of India.34 The right to work has also been held as an important fundamental right as income has been held to be an important component to enjoy other fundamental rights.35 The Hon’ble Supreme Court has recognised that not only mere access to land but actual availability and possession of land is essential for sustenance of tribal communities.36 19. Furthermore, the restriction imposed by the state cannot be said to be in the interests of general public as provided by Article 19(6) of the Constitution unless the action of the government is backed by legislation37 and promotes Directive principles of state policy.38 20. Therefore, Government of the Republic of Dorado established facilities on Tardas’ land which was their only source of sustenance without promoting any directive principle and informed them to leave their lands only unofficially without having any backing of legislation. Therefore, it is submitted that the government has violated Tardas’ right to practice any occupation or trade under Article 19(1)(g). 3.3 Violation of Right to Life under Article 21 of the Constitution 3.3.1 Violation of the Right of Tardas to a healthy Environment 21. Right to live in healthy environment with minimal adverse impact on ecology, people and their property have been read into the right to life under Article 21 of the Constitution.39 The Hon’ble Supreme Court has entitled every citizen to approach the Court of law if the quality of life is destroyed in derogation of laws.40 22. The Supreme Court has held human rights and environmental protection to be on the same pedestal as environmental aspects pertain to ‘life’ and human rights come under

34

INDIA CONST. art. 19(1)(g). Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 SCC (L&S) 1213. 36 P. Rami Reddy v. State of Andhra Pradesh, AIR 1988 SC 1626. 37 Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 SC 224. 38 M.R.F. Ltd. v. Inspector Kerala Government and Ors., (1998) 8 SCC 227. 39 Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1985 SC 652. 40 Subhash Kumar v. State of Bihar, AIR 1991 SC 420; Virender Gaur v. State of Haryana, (1995) 2 SCC 577. 35

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 ‘liberty’ under Article 21 of the Constitution.41 Article 48A and 51A are held to be in consonance of the right to a healthy environment under Article 21 of the Constitution as the state and every citizen is obliged to protect and preserve the environment.42 23. The Government of Dorado has violated Tardas’ right to live in a healthy environment by disturbing the equilibrium in the ecosystem of Gil’ead and making it difficult to access their native lands. Hence, it is submitted that the Government of Republic of Dorado has violated the right to healthy environment under Article 21 of the Constitution. 3.3.2 Deprivation of livelihood of Tardas by the establishment 24. The Supreme Court has expanded the scope of the right to life to include right to livelihood in it43 as ‘life’ under article 21 is meant to be “something more than mere animal existence” and to live with human dignity.44 The Court has also held that depriving person of his land which is his sole basis of income would be violative of right to livelihood under Article 21.45 Furthermore, it has been held that the lands in the tribal areas are preserved for the social and economic empowerment of the tribal people46 which is a fundamental right of a person under Article 21.47 25. Therefore, such acquisition of land from Tardas by the Government of Republic of Dorado, which was their only source of livelihood, constitutes a violation of the Right to livelihood under Article 21 of the Constitution. 3.3.3 No rehabilitation and resettlement programme constitutes a violation of Article 21 26. Right to Rehabilitation has also become a component of the right to life under Article 21 of the Constitution.48 The Supreme Court has held that the tribal community is a vulnerable section of the society and the state is not permitted to displace them without

41

Andhra Pradesh Pollution Control Board v. MV Nayudu, AIR 1999 SC 812. Vijay Singh Punia v. State of Rajasthan, AIR 2004 Raj 1; Residents of Sanjay Nagar v. State of Rajasthan, AIR 2004 Raj 116. 43 Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; State of Himachal Pradesh v. Umed Ram Sharma, AIR 1986 SC 847. 44 Francis Coralie Mullin v. Union territory of Delhi, AIR 1981 SC 746; State of Maharashtra v. Chandrabhan, AIR 1983 SC 803. 45 Nishakar Khatua v. State of Orissa, 2012 (1) ILR-CUT 19. 46 Supra note 16. 47 Dalmia Cement Bharat Ltd. v. Union of India, (1996) 10 SCC 104. 48 B.D. Sharma v. Union of India, 1992 Supp (3) SCC 93. 42

8 MEMORANDUM ON BEHALF OF THE APPLICANTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 providing appropriate rehabilitation remedy.49 Thus, the establishment of a developmental project should lay out a proper rehabilitation programme for the displaced tribal people.50 Developmental Projects are necessary to bring employment and generate revenue but life, health and ecology are considered to be of greater importance than unemployment and loss of revenue.51 27. Therefore, in the instant matter neither the impact on the Tardas’ life has been taken into account nor any rehabilitation for displaced tribal people has been provided for. Thus, Tardas are deprived of their right to rehabilitation under Article 21 of the Constitution. 3.3.4

Eviction of Tardas in contravention of Right to shelter

28. Right to Shelter has been read as a concomitant to the right to life under article 2152 and it meant to include adequate space and decent surroundings rather than merely a roof over one’s head.53 The Constitution imposes a positive obligation on the state to provide shelter to make the right to life of an individual meaningful.54 29. In the instant matter, the government informed the Tribal Communities to leave the grasslands and evicted them from their habitat rather than providing for an adequate place to settle.55 Therefore, it is submitted that there has been a violation of the right to shelter of Tardas under the Constitution. 3.4 The violation of Right to practice and profess religion under Article 25 and 26 of the Constitution 30. The traditional rights and practices of the tribal communities are protected under the Constitution.56 The Supreme Court has recognised right to worship a community’s deity as protected under Article 25 and 26 of the Constitution because not only faith

49

Narmada Bachao Andolan v. State of Madhya Pradesh, (2011) 12 SCC 33. KAILASH THAKUR, ENVIRONMENTAL PROTECTION LAW AND POLICY IN INDIA, 206 (1997). 51 M.C. Mehta v. Union of India, AIR 1988 SC 1115. 52 U.P. Avas Evam Vikas Parishad vs. Friends Coop. Housing Society Ltd., AIR 1996 SC 114; M/s. Shantistar Builders v. Narayan Khimlal Totame, AIR 1990 SC 630. 53 Chameli Singh and Ors. v. State of Uttar Pradesh, AIR 1996 SC 1051; State of Karnataka v. Narasimhamurthy, AIR 1996 SC 90. 54 Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and Others, AIR 1997 SC 152. 55 ¶ 6, Moot Proposition. 56 INDIA CONST. art. 25. 50

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 and beliefs are protected but also rituals, observations and practices are to be considered an integral part of the community’s religious beliefs.57 31. The practices which are regarded essential by the community are protected under Article 26(b) of the Constitution.58 The practice needs to be integral, that by taking away such practice, the fundamental character of the religion would get altered.59 Further, the Court has also held that traditional and cultural heritage of a person is also included in the expanded ambit of Right to life under Article 21.60 32. Therefore, the government of the Republic of Dorado has violated the right to worship nature and grasslands of Tardas by acquiring the grasslands which were considered to be God by the tribal people.61 This practice is so peculiar and essential that acquisition of the grasslands by the Government, for the purpose of establishment of facilities, will change Tardas’ religion fundamentally. Therefore, it is submitted that the government of Republic of Dorado has violated Article 25 and 26 of the Constitution.

57

Supra note 23. Sardar Syadna Taker Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853. 59 Commissioner of Police and Ors. v. Acharya Jagdishwarananda Avadhuta and Anr., (2004) 12 SCC 770. 60 Court on its own motion v. Union of India, (2013) 3 SCC 247. 61 ¶ 3, Moot Proposition. 58

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 4. THE GOVERNMENT DID NOT OBTAIN THE REQUIRED ENVIRONMENTAL CLEARANCE UNDER THE ENVIRONMENT PROTECTION ACT, 1986

33. It is humbly submitted that the government of Republic of Dorado have violated Environment Protection Act, 1986 [mentioned as “EP Act” hereinafter] as [4.1] the required environment clearance was not obtained for establishing the Uranium Enrichment and Spent Fuel Storage Facility, [4.2] the purportedly obtained clearance the government is void and [4.3] the government has violated the Right to Information Act 2005 by not disclosing the purportedly obtained clearance or any other documents relating to the Environment Impact Assessment of the project. 4.1 Violation of the Environment Impact Assessment Notification, 2006 as clearance had not been obtained 34. Environment Impact Assessment has to be followed to ensure that the probable effects of a developmental activity on the environment are taken into consideration and accordingly measures are taken to minimise the harm before such activity is authorised to be undertaken.62 This regulatory mechanism is based on the Precautionary Principle and Sustainable Development, which have been envisaged by the National Green Tribunal Act 2010.63 The Hon’ble Supreme Court has held that a developmental activity involving a serious and irreversible harm to the environment cannot be permitted and the clearance was subsequently rejected.64 35. The Development projects are to be undertaken as per the procedure laid down in the Environment Impact Assessment Notification, 2006.65 The Notification mentions such activities that pose a great threat to the environment and the procedure that has to be followed to obtain an Environment Clearance for these activities,66 which has to be given after the appraisal of the Environment Impact Assessment Report by the concerned authority.67 4.1.1

Compliance of Environment Impact Assessment procedure

62

PC Prasad v. Govt. of NCT of Delhi, 2013 SCC Online NGT 642. National Green Tribunal Act, 2010, § 20. 64 State of Himachal Pradesh v. Ganesh Wood Product, AIR 1996 SC 149. 65 GAZETTE OF INDIA, EXTRAORDINARY, PART-II, Ministry of Environment and Forests, 2006. 66 Environment Impact Assessment Notification, 2006, Cl. 2. 67 Adivasi Majdoor Kisan Ekta Sangathan v. MoEF 2012 SCC Online NGT 51. 63

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 36. This tribunal has held that the procedure to conduct Environment Impact Assessment needs to be complied with at every stage by the project proponent and the authority granting clearance.68 The project proponent has to prepare an Environment Impact Assessment Report as per the regulation and the authority may grant the clearance after the perusal of such Environment Impact Assessment report.69 Non-adherence to any of the stage of procedure namely, screening, scoping, preparation of Environment Impact Assessment report, public consultation may result in the rejection of the application for clearance and in case such clearance is granted, it is void.70 The Environment Impact Assessment report submitted by the proponent, the reports by the Expert Appraisal Committee and MoEF has to be made public by uploading the same on the website, as per the MoEF order.71 Such public disclosure of the reports is necessary to ensure transparency in the decisions of the authorities while granting clearances.72 The documents showing the grant of the Environment Clearance has to be disclosed to make sure that there is no irrationality, illegality or procedural impropriety. 73 37. In the instant matter, the Government of the Republic of Dorado has not published the Environment Impact Assessment Report and did not obtain the required environmental clearance as mandated under the Environment Impact Assessment Notification 2006.74 It has just claimed that it had received clearance from the State Environment Impact Assessment Authority for the “uranium enrichment and spent fuel storage project” and has further denied production of clearance or the Environment Impact Assessment report even on RTI applications.75 The government by arbitrarily denying the production of any of the documents has violated the order of the MoEF 76 and has subsequently defeated the purpose of the notification and the Environment (Protection) Act i.e. to ensure that the Environment is not let to be exploited without any checks. 38. It is humbly submitted that the government has not adhered to the procedure as laid down in the notification flowing from the Environment (Protection) Act 198677 by not 68

Mayur Karsabhai Parmar v. Union of India, 2012 SCC Online NGT 48. Environment Impact Assessment Notification, 2006, Cl. 7(II). 70 Mayur Karsabhai Parmar v. Union of India, 2012 SCC Online NGT 48. 71 Ministry of Environment and Forests, Order No. J-11013/19/2012-IA.II(I) (2012), March 20, 2012. 72 Shibani Ghosh v. Ministry of Environment and Forests, [2012] CIC 1063. 73 Utkarsh Mandal v. Union of India, 2009 SCC Online Del 3836. 74 ¶ 7, Moot Proposition; ¶ 11, Moot Proposition. 75 ¶ 6, Moot Proposition. 76 Ministry of Environment and Forests, Order No. J-11013/19/2012-IA.II(I) (2012), March 20, 2012. 77 The Environment (Protection) Act, 1986, § 3. 69

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 disclosing the Environment Impact Assessment and other reports. Therefore, this Hon’ble Tribunal should put an immediate ban on the project that is being undertaken by the Central Government in the grasslands of Khyber. 4.2 The purportedly obtained clearance by the government is void 39. The Environment Impact Assessment Notification, 2006 makes a distinction between the activities on the basis of the potential impacts on human health, natural and manmade resources and the spatial extent of potential impacts.78 This tribunal has held that this distinction must be respected and the procedure therein must be followed accordingly.79 The notification mandates that the environmental clearance for projects mentioned under Category ‘A’ and ‘B’ in the Schedule of the notification, has to be taken from Ministry of Environment and Forests and the State Environment Impact Assessment Authority respectively.80 40. This tribunal in V. Srinivasan v Union of India81 held the Environmental Clearance issued by Tamil Nadu State Environment Impact Assessment Authority to be void because the State authority lacked jurisdiction to issue Environmental Clearance and the activity fell within the jurisdiction of the Ministry of Forests and Environment. 41. The Category ‘A’ of the schedule in the notification mentions those activities for which clearance needs to be obtained from Ministry of Environment and Forests.82 The idea behind such procedure is to make sure that no such harm is caused to the environment for the sake of ‘development’ which cannot be repaired or reversed and therefore these procedures must be strictly adhered to. 83 This Hon’ble Tribunal has reiterated this by putting an immediate ban on the projects carried out without proper clearances.84 42. Uranium Enrichment and Spent Fuel Storage Project” squarely falls in the “Nuclear Fuel Processing” category, as Uranium is a nuclear fuel, 85 and “Nuclear Fuel

78

Environment Impact Assessment Notification, 2006, Cl. 4. Krishi Vigyan Arogya Sansthan v. MoEF, 2011 SCC Online NGT 18. 80 Environment Impact Assessment Notification, 2006, Cl. 2. 81 2012 SCC Online NGT 22. 82 Environment Impact Assessment Notification, 2006, Cl. 7(II). 83 Indian Council for Enviro Legal Action v. Union of India, (1996) 5 SCC 281. 84 Association of Environment Protection v. State of Kerala, (2013) 7 SCC 266; M.S. Thannkappan v. Union of India, 2014 SCC Online NGT 1723. 85 G. Sundarrajan v Union of India, (2013) 6 SCC 620. 79

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 Processing” is mentioned under Category ‘A’ of the Schedule 86 of the Environment Impact Assessment Notification 2006. The government has claimed that they have obtained the Environment Clearance for the “Uranium Enrichment and Spent Fuel Storage Project” from the SEIAA in January 2015.87 43. Therefore, it is humbly submitted that the clearance purportedly obtained by the Central Government from the State Environment Impact Assessment Authority in the present matter, is void as the state authority lacked the jurisdiction/competency to issue the environment clearance in this matter. 44. In arguendo, the government has violated the Environment Protection Act by starting the project before getting the clearance. The Government had begun the project in the grasslands of Khyber in May 2014 by constructing walls, but it allegedly obtained the clearance in January 2015.88 As per the Environment Impact Assessment Notification 2006, there is a need to have a prior license before starting a project. 89 Therefore, it is humbly submitted that the government is in contravention of the Environment Impact Assessment Notification, 2006 as it started the project in May 2014 i.e. around eight months before it purportedly received the necessary clearance.90 4.2.1

The Government had not received clearances under the Pollution legislations

45. The Water (Prevention and Control of Pollution) Act, 1974 (mentioned as “Water Act” hereinafter) lays down that any person who establishes any industry or operation or process which is likely to discharge sewage or trade effluent into any water source, must get a prior permission from the State Pollution Control Board.91 Similarly, the Air (Prevention and Control of Pollution) Act, 1981 (mentioned as “Air Act" hereinafter) necessitates every person to get permission from the State Pollution Control Board before establishing or operating any industry in an Air Pollution Control area.92 46. These provisions apply not only to the individuals who establish an industry but also to the government, as the term ‘person’ has been held to include the ‘government’, as such interpretation makes sure that there is a check on the industries polluting the 86

Environment Impact Assessment Notification, 2006, Schedule, Entry 1(e). ¶ 11, Moot Proposition. 88 ¶ 11, Moot Proposition. 89 Environment Impact Assessment Notification, 2006, Cl. 2. 90 Environment Impact Assessment Notification, 2006, Cl. 1. 91 The Water (Prevention and Control of Pollution) Act, 1974, § 25. 92 The Air (Prevention and Control of Pollution) Act, 1981, § 21. 87

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 environment.93 An interpretation of the term ‘person’ as not including ‘government’ would be in a way defeating the object of the Act and such interpretation must be avoided.94 In a similar matter, the Supreme Court held that in a case where the nuclear plant is being established, getting permissions under the Water Act and Air Act is much more crucial as the waste from these plants can be dangerous to human life and must be kept in check.95 Violation of Anti-Pollution legislations not only adversely affects the existing quality of life, but such violation also leads to ecological imbalance.96 47. It is humbly submitted that the government did not obtain any permission from the Pollution Control Board of the state, for establishing the current project as the project and facility established by the Government of Dorado are likely to pollute the environment through its radioactive waste and this is in clear violation of Section 25 of the Water Act and Section 21 of the Air Act. 4.3 The Government is bound to disclose Environment Impact Assessment report and Environmental clearance under RTI Act, 2005 48. The disbursement of information is to tackle the oppression faced by the general public at the hands of the Government officials.97 The Right to Information Act, 2005 (mentioned as “RTI Act” hereinafter) empowers every citizen to have access to the public information.98 The public authorities are bound to publish all the policies and decisions which have an impact on the general public.99 49. Although public authority is exempted under section 8(1)(a) of the RTI Act, 2005, but such exemption can only be exercised by showing the merit of non-disclosure of such information.100 The policy must be framed taking into account all the relevant laws and statutory obligations otherwise, the balance between such laws or policies and the

93

Supra note 16. South Asia Industries Private Ltd v. Sarup Singh, AIR 1966 SC 346. 95 Supra note 86. 96 Supra note 83. 97 Supra note 16. 98 The Right to Information Act, 2005, Preamble. 99 The Right to Information Act, 2005, § 4(1)(c). 100 Union of India v. G Krishnan, 2012 SCC Online Del 2869; DR. J.N. BAROWALIA, COMMENTARY ON THE RIGHT TO INFORMATION ACT, 220 (1st ed., 2006). 94

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 requirements of section 8(1)(a) is not met which is a requisite of the Right to Information Act, 2005.101 50. The Hon’ble High Court of Delhi held that the purpose of EP Act is “to protect the larger interests of the public and promotion of the public good.”102 Therefore, it was held that such purpose cannot be in contravention of scientific, strategic and economic interest of the society.103 In Davis George Thomas v. Ministry of Environment & Forest, Climate Change,104 the exemption under section 8(1)(a) was held to be nonapplicable because of the fact that disclosure of the information with respect to Environment protection was not considered to be of any impact on the security of the nation.105 Therefore, it is humbly submitted that Government of the Republic of Dorado is bound to disclose Environmental Clearance and Environmental Impact Assessment to under the RTI Act.

101

Ibid. Ibid. 103 Ibid. 104 2015 SCC Online CIC 12990. 105 Ibid. 102

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 5. THE GOVERNMENT HAS VIOLATED THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT IN THE WAKE OF CONSTRUCTING URANIUM ENRICHMENT FACILITY AND DEFENCE-RELATED

RESEARCH INSTITUTE. 51. It is humbly submitted that the Government of Republic of Dorado has not taken into consideration the principle of Sustainable Development while constructing facilities because [5.1] there has been a violation of the principle of sustainable development and [5.2] Biodiversity of the Gil’ead has been disturbed by the establishment of the Government. 5.1 Violation of Sustainable Development vis-à-vis Environment Protection Act, 1986 52. The principle of Sustainable Development had been considered as an integral part of the ‘life’ as envisaged by the Article 21 of the Constitution.106 The Hon’ble Supreme Court has recognised this principle and stated that Sustainable Development strikes a balance between environmental protection and development activities under the EP Act.107 All the developmental activities should be carried out while maintaining a balance between environment and developmental activities which can only be attained by sustainable development.108 53. The Hon’ble Supreme Court in G. Sundarrajan v. Union of India,109 held safety to be paramount in the matters where nuclear plants are being established as the impact of such establishments will be adverse on the present as well as future generations.110 Therefore, it was held that preserving environment in the present would be protecting future generation’s interests as well.111 The Court further held that safety is encapsulated under Right to life under Article 21 and thus needs to be protected even if nuclear plants are to be considered in the larger interest of public.112 54. The process of Uranium enrichment results into the generation of radioactive waste and its resulting harmful effects on the environment and people’s life had led the

106

N.D. Jayal v. Union of India, (2004) 9 SCC 362. Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715; M.C. Mehta v, Union of India, 2002 (4) SCC 353. 108 Supra note 11. 109 Supra note 86. 110 Supra note 86. 111 Supra note 86. 112 Supra note 86. 107

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 Supreme Court to take suo motu cognizance of a matter.113 Therefore, the principle of sustainable development gets defeated when the generation of radioactive waste in the form of chemicals and radiations makes it difficult for the present generations as well as future generations to survive in the particular area as such harm is irreparable and irreversible.114 55. In the instant matter, the government of the Republic of Dorado planned to set up Uranium Enrichment Facility and Defence Related institute to build indigenous aircrafts and missiles.115 It is humbly submitted that the enriched Uranium is required to build Nuclear weapons and Hydrogen bombs,116 which was the primary purpose of setting up of such facilities in the present matter as there were instances of Bomb testing in the area.117 56. Therefore, the Government stands in sheer violation of Environment Protection Act, 1986 due to non-adherence to the principle of sustainable development and, in effect, defeating the protection of the right to Life under Article 21 of the Constitution. 5.2 Disturbance of Biodiversity by non-adherence to Sustainable development 57. Flora and fauna with air, water and land are held to be the integral component of the ecosystem and must be protected for the present as well as future generations.118 Hence, biodiversity constitutes an important aspect of environment and loss of the same may lead to an irreversible impact on the ecosystem and human health.119 Invasion of the lands inhabited by flora and fauna not only affects pollution but also have an adverse environmental impact on the ecosystem which has attained equilibrium and biodiversity.120 It has been held that protection of the environment

113

Court on its own motion v. Union of India & Ors., 2014 SCC Online Jhar 392. 1 JUSTICE T.S. DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA 488 (1st ed. 2005). 115 ¶ 5, Moot Proposition. 116 Adrian Levy, Experts worry that India is creating new fuel for an arsenal of H-Bombs, THE CENTRE FOR PUBLIC INTEGRITY (December 16, 2015), https://www.publicintegrity.org/2015/12/16/18874/experts-worryindia-creating-new-fuel-arsenal-h-bombs. 117 ¶ 10, Moot Proposition. 118 A.P. Pollution Control Board v. Prof. M.V. Nayudu and Ors., (1999) 1 SCR 235. 119 E. Somanathan, Biodiversity in India, INDIAN STATISTICAL UNIT , http://www.isid.ac.in/~som/papers/BiodiversityinIndia_rev.pdf 120 2013 SCC Online NGT 2283. 114

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 must be given the priority over developmental and economic benefit in case of a dubious conflict arising between them.121 58. Therefore, in the instant matter, the Gil’ead stood to be an ecosystem which had attained equilibrium and was a home to different species of flora and fauna.122 The establishment of the facilities by the Government of Republic of Dorado is a threat to the endangered animals and ecosystem as 15 Blackbucks and 1 Great Bustard were found dead due to bomb testing in the region.123 Hence, Government’s establishment of facilities violates the principle of Sustainable development by disturbing the biodiversity of the ecosystem.

121

2 JUSTICE T.S. DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA 1076 (2005); Sarang Yadwadkar and Ors. v. The Commissioner, Pune Municipal Corporation and Anr., 2013 SCC Online NGT 4485. 122 ¶ 3, Moot Proposition. 123 ¶ 10, Moot Proposition.

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly requested that this Hon’ble Tribunal may be pleased to adjudge and declare: 1. That the applications filed before the Hon’ble National Green Tribunal are maintainable. 2. That the Gil’ead is deemed to be a ‘forest’ for the purpose of Forest Conservation Act, 1980. 3. That the government has violated the rights of Tardas by establishing the facilities in the District of Khyber. 4. That the government had not obtained the required environmental clearance prior to such establishment. 5. That the Government has not adhered to the principle of Sustainable development while carrying out such developmental activity. And pass any other relief, that this Hon’ble tribunal may deem fit and proper in the interest of justice, equity and good conscience.

And for this the Applicants shall forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED COUNSEL FOR THE APPLICANTS

XXII MEMORANDUM ON BEHALF OF THE APPLICANTS