10th Pro Bono Enviro Moot Respondent

TEAM CODE PB01R

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 RESPONDENTS

COUNSELS APPEARING ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 TABLE OF CONTENTS INDEX OF AUTHORITIES ......................................................................................................... III STATEMENT OF JURISDICTION ............................................................................................... VI STATEMENT OF FACTS .......................................................................................................... VII STATEMENT OF ISSUES .......................................................................................................... VII SUMMARY OF ARGUMENTS .................................................................................................... IX ARGUMENTS ADVANCED ........................................................................................................... 1 1.

THE APPLICATIONS FILED BEFORE THIS HON’BLE TRIBUNAL ARE NOT MAINTAINABLE.... 1

1.1

The Applicants do not have the locus standi to file an application in this

Hon’ble Tribunal ............................................................................................................. 1 1.2

The Application is barred by the limitation stipulated under NGT Act, 2010 2

1.3

This Hon’ble Tribunal lacks the subject-matter jurisdiction over the present

matter ................................................................................................................................ 3 2. THE

GRASSLAND

GIL’EAD

CANNOT BE TERMED AS A

‘FOREST’

UNDER

FOREST

CONSERVATION ACT, 1980 ..................................................................................................... 4 3. THE GOVERNMENT

OF

REPUBLIC

OF

DORADO

HAS

NOT

VIOLATED

TRIBAL

COMMUNITY’S RIGHTS ............................................................................................................ 5 3.1

No violation of the Scheduled Tribes and Other Traditional Forest Dwellers

(Recognition of Forest Rights) Act, 2006 ....................................................................... 5 3.2

No violation of Right to residence and movement Article 19 of the

Constitution ...................................................................................................................... 5 3.3

No violation of Right to life under Article 21 of the Constitution ..................... 6

3.4

No violation under Article 25 and Article 26 of the Constitution ..................... 8

4. THE GOVERNMENT HAS NOT CONTRAVENED ANY ENVIRONMENT LEGISLATIONS .......... 10 4.1

The Government’s facilities have been established in adherence with the

Environment Impact Assessment Notification 2006 ................................................... 10 4.2

The Government of Republic of Dorado is exempted from publishing the

Environmental clearance under Right to Information Act, 2005 I MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 5. THE

GOVERNMENT OF

REPUBLIC

OF

DORADO

HAS TAKEN THE PRINCIPLE OF

SUSTAINABLE DEVELOPMENT INTO CONSIDERATION WHILE CONSTRUCTION OF FACILITIES . 13 PRAYER ................................................................................................................................... XI

II MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016

INDEX OF AUTHORITIES TABLE OF CASES Amit Maru v. Ministry of Environment and Forests, 2013 SCC Online 6972 .......................... 2 Aradhana Bhargav and Anr. v. MoEF and Ors., 2013 SCC Online NGT 84 ............................ 2 B.D. Sharma v. Union of India, 1992 Supp (3) SCC 93 ............................................................ 7 Bank of India and Ors. v. Jayantilal N. Mistry and Ors., AIR 2016 SC 1 ............................... 10 Bharti Airtel Ltd. v. Union of India, (2015) 12 SCC 1 .............................................................. 7 Buttu Prasad Kumbhar v. Steel Authority of India Ltd., 1995 Supp (2) SCC 225 .................... 6 Chameli Singh v. State of Uttar Pradesh, (1992) 2 SCC 549 .................................................. 12 Citizen’s Welfare Forum v. Union of India, AIR 1996 SC 2715 ............................................ 12 Commissioner of Police and Ors. v. Acharya Jagdishwarananda Avadhuta and Anr., (2004) 12 SCC 770 ............................................................................................................................ 8 Dr. M. Ismail Faruqui v. Union of India, AIR 1995 SC 605 ..................................................... 8 for Environmental Protection Amravati v. Union of India, Application No. 153(THC)/2013 .. 9 G. Sundarrajan v. Union of India, (2013) 6 SCC 620................................................................ 7 Gram Sabha of village Battis Shirala v. Union of India, 2014 SCC Online Bom 1395 ............ 8 Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay, AIR 1956 SC 559 ............ 6 Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281 ...................... 12 Jan Chetna v MoEF, SCC Online NGT 81 ................................................................................ 9 K. Guruprasad Rao v. State of Karnataka, (2013) 8 SCC 418................................................... 7 Kalpavriksh and Ors. v. Union of India, Application no. 116 (THC) of 2013 ............................ 3 Kehar Singh v. State of Haryana, 2013 SCC Online NGT 52 ................................................... 2 Kishore Deepak Kodwani v. The Chief Secretary, Government of Madhya Pradesh 2014 SCC Online 6702 ............................................................................................................................ 2 Leo F. Saldhana v. Union of India, 2014 ALL (I) NGT Reporter (3) (SZ) ............................... 2 M.P. Patil v. Union of India, Appeal no.12/2012 .................................................................... 11 Maneka Gandhi v. Union of India, AIR 1978 SC 597............................................................... 6 Municipal Corporation. v. Jan Mohammad Usmanbhai and Anr., AIR 1986 SC 1205 ............ 6 N.D. Jayal & Anr v. Union of India & Ors., AIR 2004 SC 867 .............................................. 12 Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751 ...................................... 6, 12 Nekumar K. Porwal v. Mohanlal Harigovindas, AIR 1963 Bom 246 ....................................... 2 III MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 New Reviera Coop. Housing Society v. Special Land Acquisition Officer, (1996) 1 SCC 731 ................................................................................................................................................ 6 Noida Memorial Complex near Okhla Bird Sanctuary, In re, (2011) 1 SCC 744 ..................... 9 Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest and Ors., (2013) 6 SCC 476 ................................................................................................................................. 8 Pandurang Sitaram and Ors. v. State of Madhya Pradesh, 2014 SCC Online NGT 1177 ......... 3 People’s Union of Civil Liberties & Anr v. Union of India & Ors., (2004) 2 SCC 476 ......... 11 Ramsharan Autyanuprasi v. Union of India, AIR 1989 SC 549 ................................................ 6 Rana Sen Gupta v. Union of India, 2013 SCC Online NGT 31 ................................................ 2 Ritusree Samanta v State of West Bengal, 2013 SCC Online Cal 12117 ............................... 11 Samta and Anr. v. Union of India, 2013 SCC Online NGT 101 ............................................... 1 Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630....................................... 7 Smt. Mithlesh Bhai Patel v. State of Madhya Pradesh, 2014 (4) FLT 347 ............................... 5 Society for Environmental Protection Amravati v Union of India, Application No. 153 (THC)/2013.............................................................................................................................. 9 Sri Ram Saha v. State of West Bengal, AIR 2004 SC 5080 ...................................................... 4 State of Kerala v. Peoples Union for Civil Liberties, AIR (2009) 8 SCC 46 ............................ 7 State of Maharashtra v. Chandrabhan, AIR 1983 SC 803 ....................................................... 12 State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 ......................................................... 10 T.N. Godavarman Thirumalkpad v. Union of India, AIR 1997 SC 1228.................................. 4 Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996 SC 2715 ............................... 12 Vimal Bhai v. Ministry of Environment and Forest, 2011 SCC Online NGT 16...................... 1 BOOKS/COMMENTARIES Cited 1. Dr. Durga Das Basu, Shorter Constitution of India (13th ed. 2006) .............................. 7 2. Dr. J.N. Barowalia, Commentary on Right to Information Act, (1st ed. 2006)............ 10 Referred 1. Armin Rosencranz, Environmental Law and Policy in India: Cases, Materials and Statutes (1st ed. 1992) 2. H.M. Seervai, Constitutional Law of India, (4th ed., 1991; Reprint 2015) 3. Justice G.P. Singh, Principles of Statutory Interpretation (13th ed. 2012) IV MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 4. Justice T.S. Doabia, Environmental & Pollution Laws in India (1st ed. 2005) 5. Kailash Thakur, Environmental Protection Law and Policy in India (1st ed. 1997; Reprint 2007) 6. M.P. Jain, Indian Constitutional Law, (7th ed., 2014) 7. P. Leelakrishnan, Environmental Law Case Book (2nd ed., 2006) 8. The Oxford Handbook of Indian Constitution (Sujit Choudhary et al ed., 2016) LEGISLATIONS/NOTIFICATIONS/REPORTS Legislations 1. Forest Conservation Act, 1980 2. Indian Forest Act, 1927 3. National Green Tribunal Act, 2010 4. Right To Information Act, 2005 5. The Air (Prevention and Control of Pollution) Act, 1981 6. The Environment (Protection) Act, 1986 7. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 8. The Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006 9. The Water (Prevention and Control of Pollution) Act, 1974 Notifications 1. Environment Impact Assessment Notification, 2006 OTHER AUTHORITIES 1. Black’s Law Dictionary (5th ed., 1979) 2. James A. Lee, Economic Development and the Environment, in Ecology and less developed nations (1971) 3. The Constitution of India

V MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF JURISDICTION The applicants have approached this Hon’ble Tribunal under section 14 of the National Green Tribunal Act, 2010. However, the Respondents challenge the jurisdiction of this tribunal as well as maintainability of the applications filed.

VI MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF FACTS 1. The Republic of Dorado is the ninth largest economy in the world with a population of 1.2 billion. Dorado had 15,00,000 hectares of semi-arid grasslands, named Gil’ead, which was inhabited by the Tribal community called Tarda. However, due to anthropogenic pressure, the grasslands were converted into townships and industrial areas leaving 1,50,000 hectares of grasslands intact. 2. The Government announced to establish a Uranium Enrichment facility and Defence related research institute to develop indigenous aircrafts and missiles in the District of Khyber in 2013. 12 villages of District of Khyber formed an action council Radava Mehel to raise a voice against the government for establishing such facilities. The government did not divulge the information regarding the projects as it was protected under Right to Information Act, 2005 for the construction of several secret projects in that area. The government further proposed to divert the river through the grasslands along with the plantation of 3,00,000 trees. The government further proposed to provide employment to every person in the region as per his/her qualifications. 3. An NGO Environmental Action Network, inter alia, based in various countries and of them being Isqandar, started working with Radava Mehel and alleged that no public consultation and hearing was conducted prior to construction of such projects. Furthermore, there was a rumour in February 2015 that 15 Blackbucks and 1 Great Bustard had died due to the bomb testing carried out by the government. 4. A newspaper in May 2015 published that the government purportedly did not obtain necessary environmental clearance for the construction of such projects. The Government stated in response that necessary clearance was obtained back in January 2015 from State Environment Impact Assessment Authority (SEIAA) for Uranium Enrichment facility and spent fuel storage facility and the same cannot be published as it involved concerns of national security. 5. Mr. Tharik Ghulam, a resident of Khyber and Environmental Action Network alleged to be aggrieved by the ongoing construction in the District of Khyber and claimed it to be in violation of various environmental legislations of the nation. Hence, the present application. VII MEMORANDUM ON BEHALF OF THE RESPONDENTS

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?

VIII MEMORANDUM ON BEHALF OF THE RESPONDENTS

SUSTAINABLE

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016

SUMMARY OF ARGUMENTS 1. That the applications are not maintainable before this Hon’ble Tribunal. a. The Environmental Action Network does not have locus standi to file an application. b. The applications filed by Mr. Tharik Ghulam as well as the Environmental Action Network are barred by limitation. c. That this Hon’ble tribunal does not have jurisdiction to entertain the application filed by Mr. Tharik Ghulam as it deals with an enactment not stipulated under Schedule I of the National Green Tribunal Act, 2010. 2. That the Gil’ead cannot be termed as a ‘forest’ for the purpose of protection under Forest Conservation Act, 1980. a. The Land must be notified, deemed or declared as a forest by the Ministry of Environment and Forests. b. The land must have trees which the Gil’ead did not have. 3. That the rights of Tardas have not been violated a. This Hon’ble Tribunal does not have jurisdiction to deal with the matters pertaining to the Scheduled Tribe and Other Forest Dwellers (Recognition of Forest Rights) Act, 2010. The Government is entitled to acquire the land of forest dwellers under the Land Acquisition Act, 2013. b. The Government has not violated Article 19 of the Constitution as it is in the interests of general public. c. The Government has not violated Article 21 of the Constitution as the procedure followed by the Government has been just, fair and reasonable. 4. That the government obtained the environment clearance and did not violate the Environment Protection Act, 1986 a. The government is exempted from conducting public consultation and hearing. b. The EIA study need not be done for the exempted projects. c. The government is not bound to disclose any information related to the projects as the facilities are concerns of national security. IX MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 5. That the Government has adhered to the principle of Sustainable development. a. A balance should be maintained between the development and environment protection where both of them are in conflict. b. The one which promotes larger public interest should be given impetus over the other.

X MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016

ARGUMENTS ADVANCED 1.

THE APPLICATIONS FILED BEFORE THIS HON’BLE TRIBUNAL ARE NOT MAINTAINABLE

1. It is humbly submitted that the applications filed by the applicants are not maintainable before this Hon’ble tribunal because [1.1] the applicants do not have the locus standi to file an application in this Hon’ble Tribunal [1.2] the applications are barred by the limitation [1.3] this tribunal lacks the subject matter jurisdiction over the present matter. 1.1 The Applicants do not have the locus standi to file an application in this Hon’ble Tribunal 2. It is humbly submitted that the Environmental Action Network does not have locus standi to file the application. This Hon’ble tribunal is empowered to entertain applications only which pertain to a substantial question relating to the environment.1 National Green Tribunal Act, 2010 [mentioned as “NGT Act” hereinafter] stipulates various instances where the Hon’ble Tribunal can entertain an application.2 3. This Tribunal has given the interpretation of ‘person aggrieved’ mentioned in section 18 of the Act as one who must have a legal grievance in a way that one should have been deprived of something wrongfully either directly or indirectly. 3 The application must not be filed with a mala-fide intention or to pursue vexatious litigation in this tribunal.4 The Tribunal has also held that ‘person aggrieved’ must be considered at par with ‘every citizen’ under Article 48-A Constitution.5 4. In the instant matter, the Environmental Action Network does not have the locus standi to file an application under section 14 of the NGT act because first, the applicant is neither directly nor indirectly affected by the establishment of Uranium Enrichment Facility and Defence Related Research Institute by the government; second, the application was filed with mala fide intention and was vexatious as the

1

National Green Tribunal Act, 2010, § 14 National Green Tribunal Act, 2010, § 18. 3 Samta and Anr. v. Union of India, 2013 SCC Online NGT 101. 4 Vimal Bhai v. Ministry of Environment and Forest, 2011 SCC Online NGT 16. 5 Ibid. 2

1 MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 Environmental Action Network is based in Isqandar which at that point of time shared strained relationship with the Republic of Dorado. 5. In arguendo, the application filed is not vexatious and mala-fide, the grievance needs to be substantial and cannot be fanciful and mere sentimental grievance does not make a person, aggrieved.6 The claim of the applicant vaguely stating as ‘public spirited’ and engaged in the welfare of the people was held to be devoid of locus standi by this Tribunal.7 Hence, it is humbly submitted that since the Environmental Action Network has not been directly or indirectly affected, it does not have locus standi to file an application under section 14 of the National green Tribunal Act. 1.2 The Application is barred by the limitation stipulated under NGT Act, 2010 6. It is humbly submitted that the application by both the applicants are barred as per the NGT Act, 2010. This Tribunal has the jurisdiction to entertain applications which are filed within a period of six months from the date on which cause of action first arose. 8 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 implementation of any of the enactments mentioned in Schedule I of the Act.9 7. A person is supposed to be vigilant and conscious of his rights while approaching the tribunal and should not overlook the time.10 Therefore, the limitation period begins once the cause of action arises and shall be strictly construed by the tribunal to be in the four corners of the Act itself.11 Therefore, the language of the provision of the NGT Act has been held to be preemptory since the Act prescribes for the limitation period itself and no further extension can be granted beyond the condonation of sixty days.12 8. In the instant matter, the Government authorities began the construction in May 2014, when the Tardas were claiming it to be in violation of their rights. This was the date

6

Nekumar K. Porwal v. Mohanlal Harigovindas, AIR 1963 Bom 246. Rana Sen Gupta v. Union of India, 2013 SCC Online NGT 31. 8 National Green Tribunal Act, 2010, § 14(3). 9 Kehar Singh v. State of Haryana, 2013 SCC Online NGT 52. 10 Amit Maru v. Ministry of Environment and Forests, 2013 SCC Online 6972. 11 Aradhana Bhargav and Anr. v. MoEF and Ors., 2013 SCC Online NGT 84. 12 Leo F. Saldhana v. Union of India, 2014 ALL (I) NGT Reporter (3) (SZ); Kishore Deepak Kodwani v. The Chief Secretary, Government of Madhya Pradesh 2014 SCC Online 6702. 7

2 MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 when the purported cause of action first arose.13 The applications are barred by limitation as they were filed in September 2015 and October 2015. 9. In arguendo, the month of December, 2014 was the last date which could be claimed as the date when the cause of action first arose because the Government issued a statement, making public all the projects being carried out and the development to be done in the area as it involved a substantial question relating to the environment.14 Hence, the applications are barred by limitation since they have been filed after the period of six months was over from the date when the cause of action arose. 1.3 This Hon’ble Tribunal lacks the subject-matter jurisdiction over the present matter 10. The NGT Act categorically provides for the situation when the cause of action arises. It has to satisfy three ingredients. First, the matter should be civil in nature; second, it must involve a substantial question related to environment or enforcement of legal right pertaining to the environment; lastly, such question must be regarding the implementation of at least one of the acts mentioned in Schedule 1 of the NGT Act.15 11. This Hon’ble Tribunal in Pandurang Sitaram and Ors. v. State of Madhya Pradesh,16 stated that this Tribunal cannot deal with the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights Act), 2006 [mentioned as “FR Act” hereinafter] since it has not been mentioned in the Schedule 1 of the NGT Act, 2010.17 12. It is humbly submitted that even if the first two criteria are fulfilled, this Hon’ble Tribunal lacks the jurisdiction over the matter since Mr. Tharik Ghulam has claimed protection under FR Act in his application and the same does not come under the jurisdiction of this tribunal as it is not mentioned in schedule 1 of the NGT Act.

13

¶ 6, Moot Proposition. ¶ 7, Moot Proposition. 15 National Green Tribunal Act, 2010; Kalpavriksh and Ors. v. Union of India, Application no. 116 (T HC) of 2013. 16 2014 SCC Online NGT 1177. 17 Ibid. 14

3 MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 2. THE GRASSLAND GIL’EAD CANNOT BE TERMED AS A ‘FOREST’ UNDER FOREST CONSERVATION ACT, 1980 13. The Supreme Court in T.N. Godavarman Thirumalkpad v. Union of India,18 dealt with the term ‘Forest’ under Forest Conservation Act, 1980 [mentioned as “FC Act” hereinafter]. It was held to be understood in the sense of dictionary meaning in addition to the other statutorily recognised forests and otherwise.19 The Hon’ble Supreme Court construed protection of forest only to the extent of the felling of trees as per the FC Act.20 The Forest has been defined as “A tract of land covered with trees and one usually of considerable extent”.21 14. Furthermore, a land to be considered as ‘Forest land’, it needs to be deemed, declared or notified as per the Government records otherwise it cannot be called as forest land.22 The tribunal has held grasslands not to be forest under Forest Conservation Act, 1980.23 15. Therefore, it is submitted that the extension of the meaning of ‘forest’ pertained only to the lands having trees whereas, in the instant matter, the Gil’ead constituted grasslands which did not have any planted trees to be felled by the Government.

18

T.N. Godavarman Thirumalkpad v. Union of India, AIR 1997 SC 1228. Ibid. 20 Sri Ram Saha v. State of West Bengal, AIR 2004 SC 5080. 21 Black’s Law Dictionary (5th ed., 1979). 22 Supra note 12. 23 Supra note 12. 19

4 MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 3. THE GOVERNMENT OF REPUBLIC OF DORADO HAS NOT VIOLATED TRIBAL COMMUNITY’S RIGHTS

3.1 No violation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 16. The FR Act, 2006 was not held to be applicable by this Hon’ble tribunal as the land in that matter was neither a scheduled area nor qualified to be notified or declared or deemed as ‘forest’, even when it had trees planted on the land, because of the fact that it did not fulfil the criteria laid down by T.N. Godavarman which requires a forest to be at least notified or deemed as a ‘forest’ under government records.24 17. Thus, since the grasslands Gil’ead are not notified, deemed or declared by the Ministry of Environment and Forest [mentioned as “MoEF” hereinafter] as forest, they are not statutorily recognised forest unlike 1,100 hectares of grasslands in District of Hutin which was explicitly notified.25 Furthermore, there was no planted tree on Gil’ead which is a fundamental requirement to call the land as forest. Hence, it is humbly submitted that the claim of Mr. Tharik Ghulam cannot be sustained under Forest Rights Act, 2006. 18. In arguendo, the government is not prohibited from acquiring lands of scheduled tribes or other tribal forest dwellers for the public purpose such as military, defence, national security etc. and said acquisition would remain valid under the Right to Fair Compensation

and

Transparency in

Land

Acquisition,

Rehabilitation

and

Resettlement Act, 2013 [mentioned as “LA Act” hereinafter].26 Therefore, the government’s establishment of facilities cannot be said to be in violation of FR Act, 2006. 3.2 No violation of Right to residence and movement under Article 19 of the Constitution

24

Smt. Mithlesh Bhai Patel v. State of Madhya Pradesh, 2014 (4) FLT 347. ¶ 4, Moot Proposition. 26 The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 25

5 MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 19. Every citizen of India is entitled to move freely in the Indian Territory and reside and settle in any part of the country.27 However, these rights are not absolute and come with reasonable restrictions.28 20. The State is entitled to impose any reasonable restriction by the way of legislation insofar as that restriction is in the interests of general public or in the interests of scheduled tribe.29 For the restrictions to be in the interests of general public, they must entail public order, safety and economic welfare of the society. 30 Restricting the interests of fewer members of the society has been held to be reasonable when it was done for the majority of the community to live in peace and work without any threat under Article 19(5) of the Constitution.31 21. Therefore, under the LA Act, the Government is entitled to acquire any land for the public purposes and defence related matters and thus impose reasonable restrictions on Tardas’ right of free movement and residence. Further, development of facilities stands to be in the larger interests of general public as required by article 19(5) of the Constitution. Hence, it is submitted that the Government of Republic of Dorado has not violated Article 19 of the Constitution. 3.3 No violation of Right to life under Article 21 of the Constitution 22. Right to Life and personal liberty of a person under the Constitution can be taken away by the Government by the procedure established by law.32 The procedure established by law had been read to be just, fair and reasonable by the Supreme Court.33 Mere vague and remote acts of threatening the quality of life of people at large cannot be held to be violative of article 21 but only those acts are barred which violate the right to life in a direct and overt manner.34 Acquisition of land by the Government for a public purpose and public interest does not violate Article 21 as it has been held to in accordance with the procedure established by law.35

27

INDIA CONST. art.19(1)(d) & (e). INDIA CONST. art.19(5). 29 Ibid. 30 Municipal Corporation. v. Jan Mohammad Usmanbhai and Anr., AIR 1986 SC 1205. 31 Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay, AIR 1956 SC 559. 32 INDIA CONST. art 21. 33 Maneka Gandhi v. Union of India, AIR 1978 SC 597. 34 Ramsharan Autyanuprasi v. Union of India, AIR 1989 SC 549. 35 New Reviera Coop. Housing Society v. Special Land Acquisition Officer, (1996) 1 SCC 731; Buttu Prasad Kumbhar v. Steel Authority of India Ltd., 1995 Supp (2) SCC 225. 28

6 MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 23. In Narmada Bachao Andolan v. Union of India,36 the Hon’ble Supreme Court held that displacement of tribal people for the developmental projects cannot be held as per se violation of fundamental rights or any other rights unless rehabilitation is provided for.37 It was further held that by considering the eviction of tribal people from their land as violative of Article 21, no land can ever be acquired by the state even by the reasonable procedure established by law.38 There is a distinction between the right to rehabilitation and prohibiting the state from taking away the land at all and the state cannot be refused to acquire a land under article 21 of the Constitution39 because the state is the legal owner of the natural resources as a trustee of the people and it is empowered to distribute the same in the interests of the larger public.40 24. The right to rehabilitation has been included in the ambit of right to life under Article 2141, however, the right to development has also been included under the same head.42 The Supreme Court in G. Sundarrajan v. Union of India,43 held nuclear energy to be necessary for economic benefit as it increases the economic growth, alleviates poverty and helps generate employment and hence, to be in the larger public interest.44 The Court further held larger public interest to be greater than protection under Article 21 and nuclear plant advances the purpose of Article 21.45 25. Furthermore, in cases of conflict between two fundamental rights, one which advances the public interest would be protected and would be rendered enforceable.46 Therefore, the establishment of Uranium Enrichment Facility and Defence Related Research Institute in the instant matter is not in violation of Article 21 rather advances its purpose since the Republic of Dorado is a developing economy and this establishment would lead to the generation of revenue and great employment opportunities which are again facets of Article 21.

36

AIR 2000 SC 3751. Ibid. 38 State of Kerala v. Peoples Union for Civil Liberties, AIR (2009) 8 SCC 46. 39 Ibid. 40 Bharti Airtel Ltd. v. Union of India, (2015) 12 SCC 1. 41 B.D. Sharma v. Union of India, 1992 Supp (3) SCC 93. 42 Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630; K. Guruprasad Rao v. State of Karnataka, (2013) 8 SCC 418. 43 (2013) 6 SCC 620. 44 Ibid. 45 Ibid. 46 DR. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 277 (13th ed. 2006). 37

7 MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 26. Hence, it is humbly submitted that the government of Republic of Dorado has not violated Article 21 of the Constitution. 3.4 No violation under Article 25 and Article 26 of the Constitution 3.4.1

Worshipping of Gil’ead is not an essential practice

27. The Hon’ble Supreme Court has dealt with Articles 25 and 26 and laid down ‘Essential practices test’ protecting the rituals, observances and ceremonies as an essential part of the Religion.47 The essential practice has to be ascertained by the doctrines, practices and historical beliefs of the Religion.48 There has to be some evidence, text or historic practice which proves that the practice is so essential that taking away of that part will result in a fundamental change of the Religion.49 28. Worshipping or praying constitutes an essential practice but the location of offering such prayers cannot be considered as essential to the religion. 50 In the instant matter, although worshipping nature and grasslands can be considered as an essential practice but grasslands per se cannot be integral to the religion of Tardas as that particular location was not significant to their religious belief. 29. Therefore, it is submitted that taking away of those lands for the purpose of establishment of facilities would not lead to fundamental alteration in their religious practice since there remains a vast area of grassland even after establishing facilities in Varkia. 3.4.2

Restrictions on Right to practice and profess any religion

30. In arguendo, worshipping grasslands is to be considered as an essential practice of the Tardas’ religious belief, the right under Article 25 is subject to other provisions of part III of the Constitution.51 Right to Development is considered to be an important facet of Right to life under Article 21 of the Constitution.52 In the situation of conflict between two fundamental rights of persons, the one which promotes public interest needs to be protected.53 47

Commissioner of Police and Ors.v. Acharya Jagdishwarananda Avadhuta and Anr., (2004) 12 SCC 770. Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest and Ors., (2013) 6 SCC 476. 49 Gram Sabha of village Battis Shirala v. Union of India, 2014 SCC Online Bom 1395. 50 Dr. M. Ismail Faruqui v. Union of India, AIR 1995 SC 605. 51 INDIA CONST. art.25. 52 Supra note 42. 53 Supra note 46. 48

8 MEMORANDUM ON BEHALF OF THE RESPONDENTS

10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 31. In the instant matter, the Tardas’ lands have been acquired for the developmental projects such as Uranium enrichment facility, spent fuel storage facility which will lead to augmentation in revenue and employment and promoting the right to development. Therefore, it is humbly submitted that the act of the government to establish aforementioned facilities also comes under restrictions of the article 25 of the Constitution.

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 4. THE GOVERNMENT HAS NOT CONTRAVENED ANY ENVIRONMENT LEGISLATIONS 32. It is humbly submitted that the Government of Republic of Dorado’s establishment is not illegal because [4.1] the clearance for the establishment has been procured as per Environment Impact Assessment Notification, 2006 [mentioned as “EIA notification” hereinafter] and thus in accordance with Environment Protection Act, 1986 [mentioned as "EP Act” hereinafter], [4.2] the government is exempted to publish Environmental clearance under the Right to Information Act, 2005. 4.1 The Government’s facilities have been established in adherence with the Environment Impact Assessment Notification, 2006 33. One of the procedures mandated by the EIA Notification, 2006 is public consultation which is based on the Environmental Impact Assessment report prepared by the project proponent as per the EIA Notification and the terms of Reference communicated by the Expert Appraisal Committee.54 However, certain kinds of projects are exempted from following all the stages under the Notification.55 Clause 7(i)(3) categorically mentions the projects for which Public Consultation need not be done.56 Furthermore, there is no need to conduct a formal Environment Impact Assessment study for such projects which are exempted from conducting Public Consultation.57 34. The Hon’ble Supreme Court has stated that the projects, which have been specifically exempted from preparing an Environment Impact Assessment report, need not make such report.58 This tribunal has held that an activity which has been specifically exempted under the EIA Notification from conducting Public Consultation is not required to undergo the same.59 35. The current activity that is being undertaken by the Central Government in the District of Khyber is related to the Defence of the country and is of huge strategic importance for the defence sector of the country. It directly falls under one of the exemption categories provided in the EIA notification, namely category (f) i.e. 54

Environment Impact Assessment Notification, 2006. Environment Impact Assessment Notification, 2006, Cl. 7(III)(i). 56 Ibid. 57 Environment Impact Assessment Notification, 2006. Appendix 5(3). 58 Noida Memorial Complex near Okhla Bird Sanctuary, In re, (2011) 1 SCC 744. 59 Society for Environmental Protection Amravati v. Union of India, Application No. 153(THC)/2013; Jan Chetna v. MoEF, SCC Online NGT 81. 55

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 “projects or activities concerning national defence and security or involving other strategic considerations as determined by the Central Government”.60 As this project falls under one of the exempted categories, therefore the government does not need to prepare an Environmental Impact Assessment Report for the same.61 Further, the government is exempted from conducting Public Consultation (including Public Hearing and taking Written Responses).62 36. Hence, it is humbly submitted that the Government of Republic of Dorado has adhered to the procedure laid down by EIA Notification, 2006 and not conducting public hearing does not constitute any violation. 37. In arguendo, a developmental project having a plethora of public funds cannot be discarded merely on the basis of some procedural lapses.63 Hence, it is submitted that the government’s establishment of facilities should not be discarded on the basis of having certain procedural lapses. 4.2 The Government of Republic of Dorado is exempted from publishing the Environmental clearance under Right to Information Act, 2005 38. Right to know has been held to be one of the facets of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.64 But these rights are not absolute and cannot be exercised beyond certain restrictions.65 Similarly, Right to Information Act, 2005 [mentioned as “RTI Act” hereinafter] provides certain exemptions where the public authorities are not bound to disclose the information sought by any person.66 These exemptions pertaining to national security and sovereignty, strategic, scientific or economic interest of state etc. are required to be in consonance with the Article 19(2) of the Constitution.67 39. The RTI Act provides an exemption to the public authorities from disclosure of information in the situations where national security is at stake. 68 The Hon’ble Supreme Court held that not all information is bound to be provided to the public, as 60

Environment Impact Assessment Notification, 2006, Cl. 7. Environment Impact Assessment Notification, 2006, Appendix 5(3). 62 Environment Impact Assessment Notification, 2006, Cl. 7(III)(i) 63 M.P. Patil v. Union of India, Appeal no.12/2012. 64 State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865. 65 Ibid. 66 The Right to Information Act, 2005, § 8(1). 67 DR. J.N. BAROWALIA, COMMENTARY ON RIGHT TO INFORMATION ACT, 223-224 (2006). 68 The Right to Information Act, 2005, § 8(1)(a). 61

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 publishing such information might cause harm to the national interest rather than strengthening democracy as it can become vulnerable at the international level. 69 Furthermore, economic interests were not held to be any different from national security.70 40. The Supreme Court held that the right to information is subject to exceptions. One of the exceptions is National Security and Public Safety, under which the government can withhold the information of any such activity carried out by the public authorities.71 Information pertaining to the operation of nuclear plants was held to be sensitive and considered to be vulnerable as it can be misused as it may enable the International enemies to intervene in the strategic matters of the nation.72 41. In the instant matter, the Government of the Republic of Dorado did not violate RTI Act as it is exempted from disclosing information pertaining to national Security and owing to the sensitivity and secrecy of the establishments.73 Therefore, the nondisclosure is in consonance with Article 19(2) as well as the exemptions provided under section 8(1)(a) of the RTI Act. Thus, it is submitted that the Government is not bound to disclose Environmental clearance and any project report of the facilities being established. 42. In arguendo, the grievance for non-disclosure of the information by the public authority can only be redressed by the Central Information Commission or the State Information Commission.74 Hence, this Hon’ble Tribunal cannot entertain the applications or appeals pertaining to the RTI Act.

69

Reserve Bank of India and Ors. v. Jayantilal N. Mistry and Ors., AIR 2016 SC 1. Ibid. 71 People’s Union of Civil Liberties & Anr v. Union of India & Ors., (2004) 2 SCC 476. 72 Ibid. 73 ¶ 6, Moot Proposition. 74 Ritusree Samanta v. State of West Bengal, 2013 SCC Online Cal 12117. 70

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 5. THE GOVERNMENT OF REPUBLIC OF DORADO HAS TAKEN THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT INTO CONSIDERATION WHILE ESTABLISHING THE FACILITIES

43. Development has been read to include civil, cultural, political and social aspects in addition to economic development and has been considered to be a fundamental right under the Constitution.75 The Hon’ble Supreme Court has read Right to life under Article 21 as “something more than mere animal existence” and to provide at least basic amenities such as shelter, decent environment and employment to the people to live with human dignity.76 44. The Concept of Sustainable Development not only requires that interests of future generation must not be compromised for needs of present generation but also strikes a balance between environmental protection and development.77 The Supreme Court has held that larger interests of the society must prevail if they are in conflict with the interests of fewer people.78 45. The priority for the developing nations is to carry out development, unlike developed nations.79 Although development may result in disturbance to ecology but that cannot be the sole reason to set aside the development as a whole.80 The Hon’ble Supreme Court has reiterated this view and held that nuclear plants and production of energy are prominent for a nation to compete with the developed nations.81 There has to be a balance between the environment protection and development,82 however, in cases of conflict the one which promotes larger public interest should be held enforceable.83 46. In the instant matter, the Government of the Republic of Dorado has been constructing Uranium Enrichment facility and defence related research institute which will, in effect, generate revenue and employment. The government had also

75

N.D. Jayal & Anr. v. Union of India & Ors., AIR 2004 SC 867. Chameli Singh v. State of Uttar Pradesh, (1992) 2 SCC 549; State of Maharashtra v. Chandrabhan, AIR 1983 SC 803. 77 Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996 SC 2715. 78 Supra note 36. 79 James A. Lee, Economic Development and the Environment, in ECOLOGY AND LESS DEVELOPED NATIONS 90102 (1971). 80 Ibid. 81 Supra note 43. 82 Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281. 83 Supra note 46. 76

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10TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2016 proposed to provide employment to all the tribal people residing in the District of Khyber.84 Therefore, it is humbly submitted that the Government has adhered to the principle of Sustainable Development.

84

¶ 7, 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 not maintainable. 2. That the Gil’ead cannot be deemed to be a ‘forest’ for the purpose of Forest Conservation Act, 1980. 3. That the government has not violated the rights of Tardas by establishing the facilities in the District of Khyber. 4. That the government has obtained the required environmental clearance prior to the establishment of the facilities. 5. That the Government has 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 Respondents shall forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED COUNSEL FOR THE RESPONDENTS

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