Memorial on Behalf of Petitioners

1

Team Code 15

IN THE HON’BLE SUPREME COURT OF SOLETI

PUBLIC INTEREST LITIGATION NO:

/2015

[UNDER ART. 32 OF THE CONSTITUTION OF SOLETI]

--IN THE MATTER OF--

ENVIRONMENT CONCERNED AGENCY AND ANR.

……….…………PETITIONERS

VERSUS

UNION OF SOLETI AND NATURAL GAS AND OIL CORP.

....……………RESPONDENTS

NCU LAW SCHOOL MOOT COURT COMPETITION, 2015 III EDITION

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

2

TABLE OF CONTENTS        

TABLE OF CONTENTS………………………………………………………………...…2 TABLE OF ABBREVIATIONS…………………………………………………………….3 INDEX OF AUTHORITIES………………………………………………………………...4 STATEMENT OF JURISDICTION…………………………………………………………10 STATEMENT OF FACTS…………………………………………………………………11 ISSUES OF CONSIDERATION…………………………………………………………...13 SUMMARY OF ARGUMENTS……………………………………………………………14 WRITTEN SUBMISSIONS……………………………………………………………….15

1. Whether the PIL filed by Environment Concerned Agency (ECA) is maintainable or not?...............................................................................................................................15 1.1. . That the petitioners have a locus standi. ………………………………………….15 1.2.

That there was violation of fundamental rights of the Aryans…………………..16

1.3. There is no requirement for the Petitioner to exhaust local remedies …………18 1.4. In any event, the alternative local remedy is not equally efficacious ………….19

2. Whether the Government of Soleti is liable for environment degradation and is obliged to pay compensation to the Aryans?.....................................................20

2.1. That there was violation of fundamental rights of the citizen …………………………………………….……………………………………………...20 2.2. That the environment clearance is invalid …………………….……………..……27 2.3. Pollution caused by respondents violated Fundamental Rights of people…….30 2.4. Damages to be awarded………………………………………………………………33 PRAYER………………………………………………………………………………… 34

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

3 TABLE OF ABBREVIATIONS

¶and ¶¶……………………………………………………………... Paragraph and Paragraphs A.P. ………………………………………………………………... Andhra Pradesh A.C………………………………………………………………… Appellate Cases AIR………………………………………………………………… All India Reporter Co. ………………………………………………………………… Company Hon’ble………………………………………………………………… Honourable MANU……………………………………………………………… Manupatra Ors………………………………………………………………….. Others SC…………………………………………………………………... Supreme Court SCC………………………………………………………………… Supreme Court Cases Sd/- ………………………………………………………………… Signed v. …………………………………………………………………… Versus SCR ………………………………………………………………… Supreme Court Reporter NGT………………………………………………………………….National Green Tribunal ECA…………………………………………………………Environment Concerned Agency NGAO………………………………………………………..Natural Gas and Oil Corporation FCA………………………………………………………….Forest Conservation Act (1980) EC……………………………………………………………Environment Committee EIA…………………………………………………………..Environment Impact Assessment PESA……………………………….............. Panchayats (Extension to Scheduled Areas) Ac

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

4 INDEX OF AUTHORITIES STATUTES REFERRED 1. 2. 3. 4. 5. 6. 7. 8. 9.

CONSTITUTION OF INDIA (1950) ENVIRONMENT IMPACT ASSESSMENT NOTIFICATION (2006) ENVIRONMENT (PROTECTION) ACT (1986) FOREST CONSERVATION ACT (1980) NATIONAL FOREST POLICY (1988) NATIONAL GREEN TRIBUNAL ACT (2010) NATIONAL REHABILITATION AND RESETTLEMENT POLICY (2007) PANCHAYATS (EXTENSION TO SCHEDULED AREAS) (1996) PROTECTION OF HUMAN RIGHTS ACT (1993)

LEXICONS 1. A. G. Bryan, ‘Black’s Law Dictionary’, 9th Ed., 2009, West Group. 2. Daniel Greenberg, ‘Strouds Judicial Dictionary of Words and Phrases’, 7th Ed. Sweet and Maxwell Co. 3. P. Ramanatha., ‘Concise Law Dictionary’, 3rd Ed., Rep. 2006, Wadhwa, Nagpur. ELECTRONIC MEDIUM 1. 2. 3. 4.

www.manupatra.com www.scconline.com www.jstor.com www.westlaw.in

LIST OF BOOKS REFERRED 1. Basu D.D , Constitution of India ,14th edition 2009, LexisNexis, Butterworths Wadhwa Publication Nagpur.

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5 2. Behura N.K. Panigrahi Nilakantha, Tribals and the Indian Constitution, Edition 2006, Rawat Publications. 3. Desai . A. Ashok, Environmental Jurisprudence , 2nd Edition 2002, Modern Law House. 4. Dhirajlal & Ratanlal, The Law of Torts.26th edition 2012, LexisNexis Butterworths Wadhwa. 5. Divan Shyam , Rosencranz Armin ,Environmental Law and policy in India, Second Edition 2004, Oxford India paperbacks. 6. Shyam divan & armin rosencranz, environmental law and policy in india 157-158 (2nd ed. 2002). 7. Sairam bhat, natural resources conservation law 455 (2010). 8. Seervai H.M. , Constitutional law of India, 4th Edition 2002, Volume 2, Universal Book Traders. CONVENTIONS 1. United Nations Framework Convention on Climate Change, 1992 2. Convention Of International Trade In Endangered Species Of Wild Fauna And Flora, 1975 3. Convention on Migratory Species, 1983 3. The Indigenous and Tribal Populations Convention, 1957 (ILO Convention 107) 4. The Rio Submit, 1992 5. United Nation Declaration of Human Rights, 1948 6. International Convention on Civil and Political Rights, 1966 7. International Covenant on Economic, Social and Cultural Rights, 1966 8. United Nation Declaration on Indigenous People, 2007

ARTICLES 1. Justice A.R. Lakshmanan, Thoughts on Environmental Public Hearings 2, Vol. 17 STUDENT BAR REVIEW (2005). RULES

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6 1. Environment Impact Assessment Notification 2006, Notification S.O.1533, Ministry of Environment and Forests, dated September 14, 2006.

CASES REFERRED 1. 2. 3. 4. 5. 6. 7. 8. 9.

Ashok Lanka v. Rishi Dixit,5 SCC 598, (SC 2005). Basheshar Nah v. I.T. Commissioner, AIR 149, (SC 1959) Bayer (India) Limited v. State of Maharashtra, AIR 290, (Bom H.C. 1995). Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722, (SC 1996). Centre for Social Justice v. Union of India, AIR 71, (Guj. HC 2001) CESC Ltd. v. Subash Chandra Bose, AIR 573, (SC 1992). Charan Lal Sahu v. Union of India (1990)1 SCC 613 Chewang Pintso Bhutia v. State of Sikkim, W.P.(C) No. 22/2012. Church of God (Full Gospel) in India v. KKRMC Welfare Association AIR 2000 SC

2773. 10. Indian Council for Enviro Legal Action v. UOI, (1996) 3 SCC 212; M C Mehta v. UOI, (1987) 1 SCC 395. 11. Daryao v. The State of Uttar Pradesh, AIR 1457, (SC 1961) 12. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd,13 SCC 30, (SC 2008) 13. Essar Oil Ltd. v. Halar Utkarsh Samiti, 2 SCC 27 (2003). 14. Farhad K. Wadia v.Union of India and Ors. (2009) 2 SCC 442. 15. Federation of Bar association in Karnataka v UOI, AIR 344, (SC 1981). 16. Free Legal Aid Cell Shri Sugan Chand Agarwal v. Government of National Territory of Delhi, AIR 2001 Del 455. 17. Gaur v. State of Haryana,2 SCC 577, (SC 1995) 18. Goa Foundation v. Diksha Holdings Pvt. Ltd., (1) Bom. C.R 2001, (S.C. 2001) 19. In Re: Noise Pollution- Prevention of Environment and Sound Pollution v. UOI and Anr, AIR 2005 SC 3136 20. Information for Decision Making, Agenda 21 (1992). 21. Kanubhai Brahmbhatt v. State of Gujarat, AIR 1159, ( SC 1987). 22. Kharak Singh v. State of Uttar Pradesh, AIR 129, (SC 1963) 23. Lafarge Umiam Mining (P) Ltd. v. Union of India, (20117 SCC 338 ) 24. Law Society of India v. Fertilizers and Chemicals, AIR 308, (1994 Ker) 25. Lubicon Lake Band v. Canada CCPR/C/38/D/167/1984 26. M. C Mehta v Union of India, 9 SCC 93,(SC (1998). 27. M.C. Mehta v. Kamal Nath, 1 SCC 388 (1997) 28. M.C. Mehta v. Union of India 9 SCC 589, (SC 1998) 29. M.C. Mehta v. Union of India, 9 SCC 589,(SC (1998). 30. M.C. Mehta v. Union of India, AIR 965, (SC 1987)

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7 31. Madhu Kishwar v. State of Bihar AIR 1864, SC 1996) 32. MC Mehta v. Union of India, 8 SCC 132 (2012) 33. MC Mehta v. Union of India, AIR 1086, (SC 1987). 34. Mohammed Ishaq v. S. Kazam Pasha, 1 SCC (Cri.) 721. 35. Nar Singh Pal v. UOI,3 SCC 589,(SC 2000). 36. Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1, (SC 1978). 37. Narmada Bachao Andolan v. Union of India , (2000) 10 SCC 664 38. Narmada Bachao Andolan v. Union of India, AIR 3751, (2000 SC) 39. Nilabati Behera v. State of Orissa, AIR 1960,( SC 1993) 40. NTPC Ltd. and Anr. v. State of Uttar Pradesh and Ors 2011(11) ADJ 390. 41. Olga Tellis v Bombay Municipal Corporaion, AIR 180, (SC 1986) 42. Orissa Mining Corporation v. Ministry of Environment and Forests, 6 SCC 476, ( SC 2013) . 43. P Rami Reddy v. State of Andhra Pradesh, AIR 1626,(SC 1988); 44. P. N. Kumar v. Municipal Corporation of Delhi,4 SCC 609, ( SC 1987). 45. Prem Chand Garg v. Excise Commissioner, AIR 996, (SC 1963). 46. PUDR v. UOI, AIR 1473,( SC 1982 47. P.A. Jacob v. Supt. of Police, Kottayam, AIR 1, (Ker 1993); Murli S Deora v. Union of India, W.P.(C) 316 of 1999. 48. Paramanand Katara v. Union of India, AIR 2039, (SC 1989); State of Punjab v. Ram Lubhaya Bagga, AIR 1703,( SC 1998). 49. R. (Greepeace Ltd) v. Secretary of State for Trade and Industry 50. Research Foundation for Science Technology National Reserve Police v. Union of India, 10 SCC 510. (2005) 51. Romesh Thappar v. The State of Madras, AIR 124, (SC 1950). 52. Romesh Thappar v. The State of Madras, AIR 124, ( SC 1950). 53. Rameshwar Prasad v. Union of India, 3 SCC 1 (1994). 54. Rudresh Naik v. Goa State Coastal Zone Management Authority NGT Appeal No. 20/2013.. 55. Rudul Shah v. State of Bihar AIR 1086, (SC 1950).: (1983) 4 SCC 141, 56. Rural Litigation Entitlement Kendra v. State of Uttar Pradesh, AIR 652,( 1985 SC) . 57. S.P Gupta v. UOI, AIR 149, (SC 1982) 58. Sahibzada Saiyed Muhammed Amirabbas Abbasi v. TheState of Madhya Bharat, AIR 768,( SC 1960) 59. Samatha v. State of Andhra Pradesh, 8 SCC 191, (1997) 60. Secretary, Ministry of Information and Broadcasting v.Cricket Association of Bengal. AIR 1995 SC 1236. 61. Shantistar Builders v. Narayan Khimalal Totame, AIR 180, (SC 1986). 62. State of Punjab v. Mahinder Singh Chawla, S.L.P. (C) Nos. 12945 and 18828 of 1996 63. State of Uttar Pradesh v. Mohammad Nooh, AIR 86, (SC 1958). 64. State of Uttar Pradesh v. Mohammad Nooh, AIR 86, (SC 1958). 65. Sterlite Industries (India) Ltd. v. Union of India, 4 SCC 575 (2013). 66. Subhash Kumar v. State of Bihar , AIR 420, SC 1991. 67. Tilokchand Motichand v. H.B. Munshi, AIR 878,(SC 1970).

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8 68. T. Damodar Rao v. The Special Officer, Municipal Corporation, AIR 171, (1987 AP). 69. T.N. Godavarman Thirumulkpad v. UOI, , 2006 WP(C) No. 202 of 1995. Tata Sons Limited v. Greenpeace International and Anr ,2011 (45) PTC 275 (Del) 70. Union of India v. Association of Democratic Reforms, AIR 2002 SC 2112 71. Union of India v. Paul Manickam, AIR 4622, ( SC 2003) . 72. Utkarsh Mandal v. Union of India, WP No. 9340/2009. 73. Vellore Citizens Welfare Forum v. Union of India, 5 SCC 647, (1996 SC). 74. Virender Gaur v. State of Haryana, 2 SCC 577, (SC 1955).

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

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STATEMENT OF JURISDICTION

It is most humbly submitted that the Petitioner has approached this Hon’ble Supreme Court under Article 321 of the Constitution of Soleti on grounds of violation of fundamental rights by the Government of Soleti. The petitioner most humbly and humbly submits before the jurisdiction of the present court and accepts that it has the power and authority to preside over the present case.

1 Article 32 in The Constitutionitution Of India, 195032. Remedies for enforcement of rights conferred by this Part.- (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitutionitution.

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

10 STATEMENT OF FACTS  FACTUAL BACKDROP I.

In January 2014, one of the mineral ‘Sona’ was found in the soil of the northwestern region of Gaur. Sona is one of the essential raw materials which are used in the manufacturing process of Mineral Oils. Mineral Oil has been part of extensive imports done by Soleti from the west. Considering the grave use of such a product, the economy of Soleti will be highly benefitted if such product would be manufactured in the country itself.

II.

The Government decided to initiate exploration and set up a big manufacturing plant to manufacture mineral oil in state of Gaur. To serve the purpose, Government delegated the task to NGAO (Natural Gas and Oil) Corp, a PSU of Soleti, to set up a manufacturing unit to extract and process Sona.

III.

The commencement of the construction of site began in April 2014. Around the end of 2014 of the site being set up, there were constant complaints by the people living in and around residential areas regarding outbreak of respiratory problems due to the dust and fumes emitting from the site. The high level of noise caused by the construction work was also a nuisance to the neighborhood especially during night times.

IV.

According to the report of ECA (Environment Concerned Agency), an NGO working in Gaur itself in June 2014 highlighted two areas of concern that the site had caused:



The construction resulted in huge deforestation and emissions of carbon gases. It also caused the wildlife to suffer, in a way that migratory birds were found less during the monsoon of 2014, Leopards venturing into residential areas etc. (Refer Annexure B).



The gases released in the area resulted in drastic climatic change (Refer Annexure C & D). Also river Suhu was being contaminated and polluted because of all these actions. This largely affected Aryans Suhu was their prime source of food and water.

V.

In May 2015, after majority of construction was completed with, a flood broke out originating from the Farabian Sea, in the west, majorly affecting the state of Gaur. The flood added more problems to the civilization and wild-life of the state as the

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11 forest cover was considerably reduced. The encroachments in the forest cover increased as people sought shelter, resulting in more deforestation. VI.

Within a month of the disaster, the area became a chaos as the reserved area of the forest depleted and the civilization and wild-life was affected. Further, climatic change and contaminated river Suhu added to the problems.

 PROCEDURAL BACKDROP I.

The Wildlife Advisory Board directed the closure of the manufacturing plant/construction site of NGAO under the ambit of Environment, Wildlife & Air legislations of Soleti by the end of June 2015.

II.

The Court on appeal by NGAO struck down the closure order and ordered NGAO to install necessary pollution control equipment to protect people and the environment from the hazards of air pollution. The court further directed a disaster management committee, having forest officers and experts to evaluate the harm caused to wildlife in Gaur.

III.

However, in October 2015, ECA and other NGO’s along with the leader of Aryans filed a Public Interest Litigation‟ (PIL) before the Supreme Court of Soleti against the Union of Soleti and NGAO. Inter alia, the petitioner also submitted that the widespread deforestation & pollution in Gaur due to the construction of manufacturing unit by NGAO has largely affected the economic, cultural and social life of Aryans. Compensation for the same was also sought.

IV.

The Supreme Court has posted the matter for final hearing on the November 20, 2015.

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

12 ISSUES FOR CONSIDERATION

ISSUE 1: WHETHER THE PIL FILED BY ENVIRONMENT CONCERNED AGENCY (ECA) IS MAINTAINABLE OR NOT?

ISSUE 2: WHETHER THE GOVERNMENT OF SOLETI IS LIABLE FOR ENVIRONMENT DEGRADATION AND IS OBLIGED TO PAY COMPENSATION TO THE ARYANS?

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

13 SUMMARY OF ARGUMENTS I.

Whether the PIL filed by Environment Concerned Agency (ECA) is maintainable or not?

The petitioners humbly submit that the instant PIL is maintainable under Article 32 of the Indian constitution. This argument is fourfold. Firstly the petitioners have a bona fide interest and hence they have a locus standi . Secondly, the fundamental rights of the citizens have been violated. Thirdly, the cases that impose a rule of exhaustion of local remedies are not binding upon this Court. Fourthly, there is a Constitutional obligation on this Court to protect fundamental rights. In any case, the alternative remedies are not equally efficacious. II.

Whether the Government of Soleti is liable for environment degradation and is obliged to pay compensation to the Aryans?

The Project violates several fundamental rights including the right to shelter, livelihood, religion and culture by displacing the Tribal Communities from their homes and lands that are sacred to them. Further, the right to health and right to wholesome environment guaranteed under Art. 21 of the Constitution are also violated because of the polluting nature of extraction process. Additionally, the lack of a proper public hearing violates their right to information. The Environmental Clearance given to NGAO is invalid for three reasons: first, the mandatory public hearing was not conducted; second, the EIA was conducted in violation of PESA,; and third, it suffers from Wednesbury unreasonableness In the instant case, NGAO is liable for non-compliance with the precautionary principle; since no preventive measures were taken by NGAO for curbing the pollution released from construction unit, and therefore must pay damages for the harm caused to the environment as well as to people since it is their fundamental right to be compensated

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

14 WRITTEN SUBMISSIONS I.

Whether the PIL filed by Environment Concerned Agency (ECA) is maintainable or not?

The petitioners humbly submit that the instant PIL is maintainable under Article 32 of the Indian constitution. This argument is fourfold. Firstly the petitioners have a bona fide interest and hence they have a locus standi [1.1]. Secondly, the fundamental rights of the citizens have been violated [1.2]. Thirdly, the alternative remedies available to the Petitioners are not equally efficacious.[1.3]. Lastly, In any event, the alternative local remedy is not equally efficacious[1.4]. 1.1. That the petitioners have a locus standi. “Locus standi” is the right of a party to appear and be heard on the question before any tribunal. 2It means the legal capacity to invoke the jurisdiction of the court. The SC has ruled that to exercise its jurisdiction under art 32, it is not necessary that the affected person should personally approach the court. The court can itself take cognizance of the matter and proceed suo motu or on a petition of any public spirited individual or body3. In landmark cases 4 the SC has evolved a new rule viz., any member of the public, acting bona fide and having sufficient interest can maintain an action for redressal of public wrong or public injury. In S.P Gupta v. UOI5 the court observed that, “any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provisions of the constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision”. 2 Wharton’s Law Lexicon, 15th Edn. 2009, p.1019. 3 Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722, (SC 1996). 4 S.P Gupta v. UOI, AIR 149, (SC 1982); PUDR v. UOI, AIR 1473,( SC 1982); Bandhua Mukti Morcha v. UOI, AIR 802, (SC 1986). 5 AIR 149, (SC 1982).

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However, the member of the public should not be a mere busybody or a meddlesome interloper but one who has sufficient interest in the proceeding. In the instant matter, the petitioners i.e. ECA and other NGO’s along with leader of Aryans have sufficient interest. And are concerned about the environment and the impact it shall create on the public if hampered. Furthermore, even if the petitioner in fact moved to the Court in private interest and for the redressal of his personal grievances, or to seek his personal revenge, Court can proceed to enquire the state of affairs of the subject of the litigation in the interest of justice and in furtherance of justice. Individual conduct of the party would not be of any relevance when the Court entertains PIL and construed not only provisions of any statute but also had taken into consideration the subsequent events. 6If the court finds the question raised to be of substantial public interest, the issue of locus standi of the person placing the relevant facts and materials before the court becomes irrelevant. 7 Therefore, locus standi of the petitioners should not be in question. 1.2 That there was violation of fundamental rights of the Aryans It is humbly submitted that there was violation of fundamental rights of the citizens due to the acts of the government. The fundamental rights are fundamental in the sense that human liberty is predicated on their availability and vice versa, and thus they cannot be waived.8 Article 21 of the Constitution envisages a right to life and personal liberty of a person. The word “Life” under Article 21 means a quality of life9 , which includes right of food, and

6 Ashok Lanka v. Rishi Dixit,5 SCC 598, (SC 2005). 7T.N. Godavarman Thirumulkpad v. UOI, , 2006 WP(C) No. 202 of 1995. 8 Basheshar Nah v. I.T. Commissioner, AIR 149, (SC 1959) ; Olga Tellis v Bombay Municipal Corporaion, AIR 180, (SC 1986) ; Nar Singh Pal v. UOI ,3 SCC 589,(SC 2000). 9 Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

16 reasonable accommodation to live in10 and the right to a wholesome environment.11Also ICCPR12, UDHR13 and ICESCR14 recognizes right to life and adequate standard of living. Further in order to establish violation of Article 21, the act should be subjected to the equality test of Article 14 and test of reasonableness under Article 19.15 Article 14 strikes at arbitrariness because it negates equality16 and permeates the entire fabric of Rule of Law17. Therefore, every action of the State must be guided by reason for public good and not by whim, caprice, and abuse of power.18Article 19 provides that a restriction can be characterized to be reasonable if it strikes a balance between the fundamental right and restriction imposed thereon.19 The fundamental rights are intended not only to protect individual rights but they are based on high public policy. Liberty of the individual and the protection of the fundamental rights are the very essence of the democratic way of life adopted by the constitution, and it is the privilege and the duty of this court to uphold those rights.20 Violation of fundamental rights is sin qua non of the exercise of the right conferred by art.32 .21When once the court is satisfied that the petitioner’s fundamental right has been infringed, it is not only its right but also the duty to afford relief to the petitioner, and he need not establish either that he has no other adequate remedy, or that he has exhausted all 10 Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630. 11 Charan Lal Sahu v. Union of India, AIR 1990 SC 1480. 12 Article 6, ICCPR. 13 Article 3, UDHR. 14 Article 11, ICESCR 15 Maneka Gandhi v. Union of India. AIR 1978 SC 597. 16 Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021. 17 Bachan Singh v. State of Punjab, AIR 1982 SC 1325. 18Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514. 19 Om Kumar v. Union of India, AIR 2000 SC 3689. 20 Daryao v. State of UP, AIR 1457, (SC 1961 21 Federation of Bar association in Karnataka v UOI, AIR 344, (SC 1981).

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

17 remedies provided by law, but has not obtained proper redress. When the petitioner establishes infringement of his FR, the court has no discretion but to issue an appropriate writ in his favor.22 In Bandhua Mukti morcha23 the apex court has clarified that procedurally, under article 32, it is not bound to follow the ordinary adversary procedure and may adopt such procedure as may be effective for the enforcement of the FR.

1.3. There is no requirement for the Petitioner to exhaust local remedies a) The right under Art. 32 is not subject to the exhaustion of local remedies The right to approach this Hon'ble Court in case of violation of fundamental rights is itself a fundamental right enshrined in Art. 32.24 In Prem Chand Garg, it was held that this right is absolute and may not be impaired on any ground.25 Further, unlike in Art. 226, the remedy provided by Art. 32 is a fundamental right and not merely a discretionary power of the Court.26 Moreover, this Hon’ble Court has on multiple occasions expressly rejected an argument that called for exhaustion of local remedies.27 Therefore, it submitted that it is not open to this Court to carve out exceptions when there are none in the text. Furthermore, judicial orders are not amenable to writ jurisdiction under Art. 32.28 Consequently, if a violation of Art. 32 takes place by this Court's rejection of the instant 22 Supra note 7. 23 AIR 814, (SC 1984) 24 India Constitution. Art. 32. 25 Prem Chand Garg v. Excise Commissioner, AIR 996, (SC 1963). 26 Daryao v. The State of Uttar Pradesh, AIR 1457, (SC 1961); Tilokchand Motichand v. H.B. Munshi, AIR 878,(SC 1970). 27 Kharak Singh v. State of Uttar Pradesh, AIR 1295, ( SC 1963); Romesh Thappar v. The State of Madras, AIR 124, (SC 1950). 28 Sahibzada Saiyed Muhammed Amirabbas Abbasi v. The State of Madhya Bharat, AIR 768,( SC 1960); Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1, (SC 1978).

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

18 petition, the petitioners will have absolutely no remedy for such violation of their fundamental right. Hence, the Petitioner submits that a liberal approach should be adopted, erring on the side of caution, in cases where the Court rejects a petition under Art. 32. b) The rule of exhaustion of local remedies is not binding on this Hon'ble Court Admittedly, cases such as Paul Manickam,29Kanubhai,30and PN Kumar31require the exhaustion of local remedies before approaching the Court under Art. 32. However, it is submitted that this Hon'ble court must not be constrained by these decisions for the following reasons: First, this self-imposed restraint is merely a rule of convenience and discretion32 and does not oust the jurisdiction of this Court under Art. 32.33 Secondly, these cases are per incuriam as they were rendered in ignorance of previous decisions by higher benches of this Hon'ble Court that expressly rejected such a rule. Finally, Art. 32(4) specifically provides that this right may not be suspended except by a constitutional provision.34 A rule of self-imposed restraint by the judiciary that requires exhaustion of local remedies constitutes an extraconstitutional partial suspension and is therefore, unconstitutional. c) This Hon'ble Court has a constitutional duty to entertain the instant petition The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has been interpreted broadly35 and as one that exists independent of any other remedy that may be available.36 This is particularly true in cases of grave public importance, such as environmental litigation where relief may not be denied on mere technical grounds. 29 Union of India v. Paul Manickam, AIR 4622, ( SC 2003) . 30Kanubhai Brahmbhatt v. State of Gujarat, AIR 1159, ( SC 1987). 31 P. N. Kumar v. Municipal Corporation of Delhi,4 SCC 609, ( SC 1987). 32 State of Uttar Pradesh v. Mohammad Nooh, AIR 86, (SC 1958). 33 Mohammed Ishaq v. S. Kazam Pasha, 1 SCC (Cri.) 721. 34 India Constitution. Art. XXXII, ¶ 4. 35 MC Mehta v. Union of India, AIR 1086, (SC 1987). 36 Nilabati Behera v. State of Orissa, AIR 1960,( SC 1993); Kharak Singh v. State of Uttar Pradesh, AIR 1295,( SC 1963).

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19 Consequently, it is submitted that a refusal to entertain the instant petition would be inconsistent with the aforesaid obligation.37 1.4. In any event, the alternative local remedy is not equally efficacious The respondents may submit that the NGT is better equipped to hear this case, than this Hon’ble Court since it has expert members who can evaluate scientific claims. However, it is submitted that the issues herein do not just relate to the procedural aspects of granting environmental clearances. While this falls squarely within the jurisdiction of this Court under Art 32, the NGT is not equipped to assess claims of violation of fundamental rights. Its jurisdiction is circumscribed to adjudicating upon harm to the petitioner due to the environmental consequences, damage to the environment and damage to property.38 Therefore, while it may be legal for the NGT to hear this case, it is not expedient or efficacious. Moreover, under the NGT Act only the person aggrieved by an order made under the FCA and/or EPA can seek relief from the Court. 39 This bars any public spirited person or organization, such as the Petitioner, from approaching the NGT due to the rigidity of the locus standi requirement. On the contrary, the relaxation of locus standi rules by this Hon’ble Court ensures that this dispute may be filed as a Public Interest Litigation (PIL). Further, the petitioners submit that the persons whose Fundamental Rights have been affected are Tribal Communities who are unaware of their Fundamental Rights and the legal procedure to seek remedies. It is therefore imperative that the petition be adjudicated upon by the Supreme Court so that concerned environmental groups like the Petitioner may render able assistance to the Court. In any case, the NGT is ill-equipped to deal with the petition in its entirety as its provisions pertain only to the resolution of environmental disputes. While the NGT may have jurisdiction for adjudicating upon orders passed under the FCA and EPA,40 it does not have 37 Kharak Singh v. State of Uttar Pradesh, AIR 129, (SC 1963);. Romesh Thappar v. The State of Madras, AIR 124, ( SC 1950). 38 National Green Tribunal Act § 2(1)(m) (2010). 39 National Green Tribunal Act § 16 (2010). 40 National Green Tribunal Act § 16 (2010).

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20 jurisdiction to decide upon issues arising out of FRA and PESA. It is submitted that these questions are central to the petition as they concern statutory rights granted to the Tribal Communities. This distinguishes the petition from a simple environmental dispute. Moreover, it is illogical to split the petition because the issues of rights are integral and emanate from the orders being challenged. Further, it will cause great inconvenience to the Petitioner to agitate the matters in two different Courts. Thus, it is submitted that only the Supreme Court can render effective justice in the instant case. II.

Whether the Government of Soleti is liable for environment degradation and is obliged to pay compensation to the Aryans? 2.1 That there was violation of fundamental rights of the citizen

It is submitted that implementation of the Project would result in a violation of multiple fundamental and statutory rights that emanate therefrom. These rights include the right to shelter under Art. 21 [A], the right to clean environment under Art. 21 [B], the right to a clean health under Art. 21 [C], the right to livelihood under Art. 21 and Art. 19(1)(g)[D], the cultural rights under Art. 29 [E] and finally, the right to information under Art. 19(1)(a) [F].

A. The lack of an enforceable rehabilitation policy violates the right to shelter. The right to rehabilitation of displaced persons is a part of Art. 21.41In cases of forced displacement, it has been held “rehabilitation of the oustees is a logical corollary of Article 21".42 Further, since there is a void in domestic law, international law instruments become relevant. This is especially true in issues concerning the environment and human rights.43 Therefore, the Guiding Principles on Internal Displacement must be considered. 41 Bal Kishan v. State of Haryana, W.P. No. 596 of 2014; Sudama Singh v. Govt. of Delhi, W.P. (C) No. 8904/2009. 42 State of Bihar v. Prem Kumar Singh, L.P.A/702/2012 IN (CWJC/3114/2012); N .D. Jayal v. Union of India, (2004) 9 SCC 362.

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21 In the present case, there is no plan for rehabilitation or measures for resettlement for any of the displaced tribal communities. Accordingly, non-compliance of the aforesaid condition can at most lead to cancellation of the Environmental Clearance, without providing any remedy to the displaced persons. Finally, and in any event, measures for rehabilitation must be taken prior to the implementation of the Project, which is not true in this case.44

B. The Mining Project violates the right to a wholesome environment It is widely accepted that the right to life under Art. 21 also embraces the right to live in a wholesome, pollution-free environment.45This has to be read in conjunction with Art. 48A and Art. 51A (g) that imposes a duty on the State to preserve and improve the environment.46 Further, this is in line with India's international obligations.47 It is submitted that the extraction operations in the forests of Dhir violate the aforesaid right to wholesome environment in two ways. First, the project violates right to pollution-free environment by exposing the public at large to radiation. The compulsory exposure of unwilling persons to pollution48 has been held to violate Art. 21. Secondly, it is submitted that the Project would result in an ecological imbalance49 and destroy the guarantee of a wholesome environment. This Court has a duty to 43 Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd,13 SCC 30, (SC 2008). 44 Narmada Bachao Andolan v. Union of India, AIR 3751, (2000 SC) 45 Subhash Kumar v. State of Bihar, AIR 420, (1991); M.C. Mehta v. Union of India 9 SCC 589, (SC 1998); Virender Gaur v. State of Haryana, 2 SCC 577, (SC 1955). 46 India Constitution. Art. 48A ; India Constitution. Art. 51 A, cl. (g). ; M.C. Mehta v. Union of India, 9 SCC 589, (SC 1998). 47 Rio Declaration on Environment and Development (1992). 48 P.A. Jacob v. Supt. of Police, Kottayam, AIR 1, (Ker 1993); Murli S Deora v. Union of India, W.P.(C) 316 of 1999. 49 Rural Litigation Entitlement Kendra v. State of Uttar Pradesh, AIR 652,( 1985 SC) .

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22 guard against irreversible ecological damage.50Gaur is more of a tourist destination considering its topography and diverse wildlife. It is submitted that the extraction project would disturb this and irreversibly damage the ecology. Therefore, it violates the guarantee of right to wholesome environment. The Respondent may rely on the lack of scientific consensus on the exact harms caused to the environment by extraction and manufacture of Sona. However, as held in Vellore Citizens Forum,51 the onus of proof is on the Respondents to show that its actions are environmentally benign.52Further, this Court in M C Mehta imposed on the State, a duty to anticipate, prevent and attack the causes of environmental degradation.53Therefore, it is not open to the Respondent to depend on scientific uncertainty to push forth a project that violates the right to life of several people.

C. The Mining Project violates the right to health The right to health has been held to be an integral to the meaningful right to life, and is thus, protected under Art. 21.54Further, it is both a constitutional obligation under Art. 4755 and an international obligation to allow citizens to enjoy the highest standard of health. Indeed, this

50 Goa Foundation v. Diksha Holdings Pvt. Ltd., (1) Bom. C.R 2001, (S.C. 2001); T.N. Godavarman Thirumulpad v. Union of India, 1 SCC 1, (SC (2006). 51 Vellore Citizens Welfare Forum v. Union of India, 5 SCC 647, (1996 SC). 52 M. C Mehta v Union of India, 9 SCC 93,(SC (1998). 53 M.C. Mehta v. Union of India, 9 SCC 589,(SC (1998). 54 State of Punjab v. Mahinder Singh Chawla, S.L.P. (C) Nos. 12945 and 18828 of 1996, Paramanand Katara v. Union of India, AIR 2039, (SC 1989); State of Punjab v. Ram Lubhaya Bagga, AIR 1703,( SC 1998). 55 CESC Ltd. v. Subash Chandra Bose, AIR 573, (SC 1992).

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23 obligation has been interpreted to include the prevention of pollution by extractive industries56 and ensuring a hygienic environment.57 In the instant case, it is submitted that the Sona extraction and manufacture activity in the north-western region of Gaur affects the health of tribal communities living in and around the vicinity of the forest. Moreover, the mere condition of developing an “emergency response procedure” is insufficient as the tribal communities still suffer from “slow poisoning by the polluted atmosphere”58 and are compelled to live under “the dark shadow of a genocide.”59 The Respondent might attempt to justify the Project on the ground of employment and revenue generation. However, this Court in MC Mehta has explicitly laid down that life and public health override considerations such as unemployment and revenue generation. The Respondent may also seek to rely on the scientific uncertainty surrounding the exact consequences on mining on public health. However, it is submitted that the Court must adopt the precautionary principle in matters of public health also. Indeed, there is a global trend towards the same.60 Moreover, the courts in India have recognised that it is impossible to eliminate hazards altogether, even with the most sophisticated safety and alarm systems.61 This is particularly true in a developing country like Soleti.62In light of the foregoing, it is submitted that the right to health is negated by the project under dispute. 56 ICESCR General Comment 12 on Art. 11 (1966). 57 Gaur v. State of Haryana,2 SCC 577, (SC 1995). 58 T. Damodar Rao v. The Special Officer, Municipal Corporation, AIR 171, (1987 AP). 59 Law Society of India v. Fertilizers and Chemicals, AIR 308, (1994 Ker) 60 See THE PRECAUTIONARY PRINCIPLE: PROTECTING PUBLIC HEALTH, THE ENVIRONMENT AND THE FUTURE OF OUR CHILDREN, WHO Europe (2004) available at http://www.euro.who.int/__data/assets/pdf_file/0003/91173/E83079.pdf for the Resolution on the Precautionary Principle, endorsed by Heads of Government at General Affairs Council at Nice (2000); Also see Public Health and Well-being Act, Australia (2006). 61 M.C. Mehta v. Union of India, AIR 965, (SC 1987); Bayer (India) Limited v. State of Maharashtra, AIR 290,(Bom H.C. 1995). 62 Bayer (India) Limited v. State of Maharashtra, AIR 290, (Bom H.C. 1995).

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24

D. The Mining Project violates the right to livelihood The right to livelihood, being an important facet of the right to life is protected under Art. 21.63 With respect to forest dwelling tribal communities, this is also statutorily guaranteed in the FRA.64 In the instant case, the tribal communities' livelihood includes activities such as apiculture, gathering of herbs, fruits and flowers, and collection of gum dust. Therefore, it is submitted that the mining project, by displacing the tribal communities from their land and forest deprives them of their right to livelihood. The right of the indigenous people to settle and reside and to own the property65 anywhere in the territory of Soleti, especially in the Dhir forests guaranteed under Article 19(1) (e) has been violated, since; there was a lot of encroachment in the forest on account of deforestation. Further when the Government instrumentality, due to their negligence there were lot of encroachments in the forest, which violated their right to reside under Article 19 of the Constitution. The Respondent may take up the defence that the tribal communities have been given access to the Forest for their livelihood requirements. However, it is not mere access but actual availability and possession of land that is indispensable to the livelihood and sustenance of tribal communities.66Moreover, the environmental degradation caused by extraction process will inevitably have an adverse effect on livelihoods that are heavily dependent on the forest ecosystem and forest produce.67 In any case, demand for exact evidence to show the loss of livelihood by eviction is 'unrealistic'.68Indeed, the Supreme Court in Olga, advocated for the use of common-sense and not strict proof of nexus between eviction and loss of livelihood. 63 Olga Tellis v. Bombay Municipal Corporation, AIR 180, (SC 1986); Shantistar Builders v. Narayan Khimalal Totame, AIR 180, (SC 1986). 64 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act § 3(1) (2006) 65 UDHR Articles 17 as well as in Article 6 of the ICESCR. 66 P Rami Reddy v. State of Andhra Pradesh, AIR 1626,(SC 1988); Madhu Kishwar v. State of Bihar AIR 1864, SC 1996); Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191. 67 National Forest Policy (1988).

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25 The Respondent may also submit that the Compassionate-Employment safeguard is sufficient to ensure that right to livelihood is not deprived. However, it is submitted that this is inadequate for two reasons. First, the safeguard in the EC is merely a guideline and not a guarantee. Moreover, in the absence of stipulations like provision of vocational training, such a safeguard is meaningless. Indeed, the Planning Commission of India has admitted that there has been a failure to provide "alternative livelihoods to those displaced by developmental projects". Second, even the safeguard is limited to one adult member per family and not to every single person who may lose their livelihood. E. The Mining Project violates the cultural rights a) The Mining Project violates Art. 29 The tribal communities have a fundamental right to conserve their distinct culture.69 Since the ARYANS are indigenous tribal communities living within the vicinity of Dhir forests, they are “forest dwelling Scheduled Tribes”70 for the purposes of the FRA and are entitled to certain statutorily guaranteed cultural rights.71 Moreover, recent precedents such as Orissa Mining72 and Chewang Pintso Bhutia73 have recognized that tribals are entitled to protect their rights under the FRA. Moreover, this Court may liberally adopt principles from International Conventions since it is an issue concerning 'human rights, environment, ecology and other second-generation or 68 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; Shantistar Builders v. Narayan Khimalal Totame, AIR 1986 SC 180. 69 Soleti Constitution. Art. 29, § 1. 70 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act § 2, cl.C. 71 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act §§3(i), 3(k), 5(c) (2006); §4(d), Panchayats (Extension to Scheduled Areas) Act (1996). 72 Orissa Mining Corporation v. Ministry of Environment and Forests, 6 SCC 476, ( SC 2013) . 73 Chewang Pintso Bhutia v. State of Sikkim, W.P.(C) No. 22/2012.

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26 third-generation rights'.74 Thus, international instruments that mandate recognition of customary and cultural rights of indigenous people 75become relevant. In fact, in Lubicon Lake Band, an energy exploration project that threatened “the way of life and culture” of the indigenous community was held to violate the cultural rights guaranteed under the ICCPR. 76 F. The Mining Project violates the right to information The petitioner submits that there exists a right to access environmental information.77 First, this right has been recognized as a corollary to right to clean and hygienic environment under Art 21 of the Indian Constitution.78 Second, the Courts have also recognized ‘right to information’ as an integral part of freedom of expression.79Finally, it is submitted that the public trust doctrine,80 necessitates that the public be informed of any diversion of these natural resources and be made known of its environmental consequences. Moreover, this right is internationally recognized 81in conventions such as the Rio Declaration,82 where the 74 Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd, 13 SCC 30, (SC 2008). 75 ICCPR Art. 25 (1966), International Labour Organization (ILO) Convention on Indigenous and Tribal Populations Convention No. 169 (1957); Convention on Biological Diversity (1992). 76 Lubicon Lake Band v. Canada CCPR/C/38/D/167/1984 77 See SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 157-158 (2nd ed. 2002). 78 “Right to information and community participation for protection of environment and human health flows from Art 21” Research Foundation for Science Technology National Reserve Police v. Union of India, 10 SCC 510. (2005) 79 Union of India v. Association of Democratic Reforms, AIR 2002 SC 2112; Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal. AIR 1995 SC 1236. 80 M.C. Mehta v. Kamal Nath, 1 SCC 388 (1997) 81 R. (Greepeace Ltd) v. Secretary of State for Trade and Industry, (2007) Environmental Law Reports 29. 82 Rio Declaration on Environment and Development (1992).

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27 right of the public to access information about the environment is recognized. This right is imperative at the grass root level to aid environmental decision making,83particularly when a decision may affect health, life or livelihood.84 In light of the foregoing, it is submitted that public hearing under EIA is one of the ways in which the State realizes the citizen’s right to access environmental information. A public hearing informs affected persons of the consequences of a project and elicit objections for the same. Further, the EIA Notification necessitates dissemination of the EIA report85 to locally affected persons so that the participation at public hearings is informed. Therefore, it is submitted that Tribal Communities’ right to access information has been curtailed. 2.2 THE ENVIRONMENTAL CLEARANCE IS INVALID It is submitted that the Environmental Clearance given to NGAO is invalid since first, the mandatory public hearing was not conducted. [A].Second, the EIA was conducted in violation of PESA [B]; lastly, EC is struck by Wednesbury unreasonableness. [C]. Section 2(ii) (iv) of The FCA, 1980 provides that Central Government can only grants the permission of deforestation for the “non-forest purposes”86 and such clearances are granted if Central Government considers it reasonable to cut the forest, which is decided on the basis of the report of the committee. However, in the present case there has been non-application of mind for granting the approval, considerable reduction of forest made it more susceptible to natural disasters. It thus fails to meet the test of reasonableness under Article 19. Further, the Government has acted arbitrarily by neglecting the rights of tribals and safeguarding the rights of non-tribals, and thus, there has been violation of Article 14, on account of abuse of power and arbitrariness in the actions of the Government

83 Information for Decision Making, Agenda 21 (1992). 84 Essar Oil Ltd. v. Halar Utkarsh Samiti, 2 SCC 27 (2003). 85 Centre for Social Justice v. Union of India, AIR 71, (Guj. HC 2001). 86 Section 2, FCA, 1980.

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28 A. The mandatory public hearing was not conducted. It is submitted that the grant of an EC is contingent upon compliance with all the essential pre-requisites under the EIA Notification. Accordingly, a public consultation is required to complete the EIA.87 It is submitted that the language in Section 7 is mandatory in nature and not directory.88Thus, public consultation is an essential and non-derogable component of EIA, the failure of which can render the EC invalid.89 It is submitted that the public consultation process in the instant case was defective since, first, the Tribal Communities had the right to participate in the public hearing regardless of property rights in the land; and secondly, in any case, the tribal communities possess property rights within the Reserve Forest. Therefore, it is submitted that in the absence of an effective public consultation process, the EC granted to NGAO is invalid. a) No public hearing was given to all local affected persons The right to participate in public hearing is not qualified by any property rights. Indeed, the EIA Notification 90 have given a wide interpretation to public hearing to ensure the widest possible participation to all affected people. The purpose of this is to gather all the concerns of all local affected persons.91 In fact, one can be affected by a extraction project without having any property rights. The Supreme Court in Sterlite Industries v. Union of India held that a procedural impropriety can be a ground for quashing an environmental clearance if a 87 Environment Impact Assessment Notification ¶ 7(III) (2006). 88 "shall undertake Public Consultation" Environment Impact Assessment Notification ¶ 7(III) (2006). See SHYAM DIVAN, The Contours of EIA in India, WATER AND THE LAWS IN INDIA 396 (Ramaswamy R. Iyer ed. 2009). 89 MC Mehta v. Union of India, 8 SCC 132 (2012); Utkarsh Mandal v. Union of India, WP No. 9340/2009. 90 “The Public Hearing shall be arranged in a systematic, time bound and transparent manner ensuring widest possible public participation at the project site.” Environment Impact Assessment Notification Appendix IV (2006). 91 Environment Impact Assessment Notification ¶ 7 (2006).

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29 mandatory requirement is violated.92 Thus, petitioner requests the Court to set aside the EC granted to NGAO. Further, the Respondent may suggest that deprivation of the public hearing component alone does not necessarily vitiate the public consultation process as stakeholders still have the option of submitting their concerns in writing. However, such an argument is unsustainable on two grounds. First, public hearing has been interpreted to be mandatory component of EIA process and second, for a public consultation to be meaningful and effective it must ensure the widest participation of locally affected persons.93 Further, it is reasonable to assume that many of the STs and other TFDs are completely unaware of their rights.94 Therefore, the public hearing serves the twin purpose of informing them of the consequences of the proposed project and seeking their objections. In the absence of a public hearing, it is unreasonable to presuppose that the STs and TFDs possess requisite expertise to determine the consequences of the Project and make written objections to it. b) In any event, tribal communities enjoy property rights in the Reserved Forest. Assuming arguendo, property rights are a pre-requisite to take part in a public hearing process, the petitioner submits that the Tribal Communities living in Gaur possess property rights as granted by the Forest Rights Act. Further ILO Convention, which has been ratified by Soleti, confers Tribal Communities with rights of ownership over the lands that they have traditionally occupied.95With regard to the foregoing, the petitioner submits that the denial of public hearing on the ground that the Tribal Communities do not have property rights is erroneous. Therefore, the EC must be set aside.

92 Sterlite Industries (India) Ltd. v. Union of India, 4 SCC 575 (2013). 93 J. A.R. LAKSHMANAN, Thoughts on Environmental Public Hearings 2, Vol 17 STUDENT BAR REVIEW (2005).

94 Orissa Mining Corporation v. Ministry of Environment and Forests, 6 SCC 476 (2013). 95 ILO Convention on the Indigenous and Tribal Populations Convention Art. 11 (1957).

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30 B. The EIA was conducted in violation of PESA The PESA makes the Gram Sabha96 as the focal point of tribal self-governance. 97Section 4(d) of the PESA acknowledges the competence of the Gram Sabha “to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources…” It is submitted this provision is inviolable and reveals that the Gram Sabha is clothed with enormous plenary powers98 to safeguard its traditions and customs. Since the Mining Project infringes on the customs and community resources of the Tribal Communities, the logical corollary of Section 4(d) is that the Gram Sabha must be mandatorily consulted.99 In the present case, there was no consultation with the Gram Sabhas of the affected Tribal Communities. Therefore, Respondent has acted in contravention of the law laid down under PESA.

C. The EC suffers from Wednesbury unreasonableness The Wednesbury principle, as laid down Rameshwar Prasad v. Union of India100 determines an administrative action to be unreasonable if it, inter alia, has “ignored a very relevant material which it should have taken into consideration.” Further, in Lafarge Umiam Mining (P) Ltd. v. Union of India,101 the Supreme Court stated that it will review the decision of the 96 India Constitution. Art. 243(b) (1950) and Panchayats (Extension to Scheduled Areas) Act § 4(c) (1996) define a Gram Sabha as a body consisting of person registered in the electoral rolls for the Panchayat at the village level. 97 SAIRAM BHAT, NATURAL RESOURCES CONSERVATION LAW 455 (2010). 98 India Constitution. Art. 40 (1950): This is in contrast with the Gram Sabhas or Panchayats in general areas who are merely endowed with powers “as may be necessary to enable them to function as institutions of self-government”. 99 AJITHA S. GEORGE, The Paradox of Mining and Development, LEGAL GROUNDS – NATURAL RESOURCES, IDENTITY, AND THE LAW IN JHARKHAND 167 (Nandini Sundar ed., 2009).

100 Rameshwar Prasad v. Union of India, 3 SCC 1 (1994). 101 Lafarge Umiam Mining (P) Ltd. v. Union of India, (20117 SCC 338 )

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31 MoEF to see if all relevant factors and the legislative policy underlying the law have been strictly considered before reaching the decision. It is submitted that the decision to grant the EC without considering the material from public hearing is unreasonable as per the Wednesbury principle. One of the duties of the committee during appraisal is to consider all the objections raised during a public hearing and respond to them.102The failure to consider all objections and give a reasoned order renders the decision of the committee vulnerable to non-application of mind. Therefore, the he appraisal process i.e. the EIA is vitiated by the committee responsible for sanctioning the EC which should be set aside. 2.3 Pollution caused by respondents violated Fundamental Rights of people The Union of Soleti and NGAO has caused environmental degradation by their respective acts causing air, noise and water pollution and are therefore, liable to pay damages for the violation of fundamental rights. “Climate Change” means a change in climate, attributed directly or indirectly to human activity that alters the composition of the global atmosphere over comparable periods of time.103 The Union of Soleti is liable for the climate change induced due to the activities orchestrated by the State. Pollution constitutes wrongful contamination in the environment in such concentrations as may be or tends to be injurious to human beings or other living creatures or plants or property or environment104, thereby violating Article 21 of the Constitution.

102 Samatha v. State of Andhra Pradesh, 8 SCC 191, (1997); Rudresh Naik v. Goa State Coastal Zone Management Authority NGT Appeal No. 20/2013; “detailed scrutiny of the application and other documents like the…outcome of the public consultations including public hearing proceedings” Environment Impact Assessment Notification ¶ 7 (2006). 103 Article 1, United Nations Framework Convention on Climate Change, 1992. 104 Section 2 (a) The Air (Prevention and Control of Pollution) Act 1981.

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32 2.3.1. Air Pollution caused by NGAO Article 21 of the Constitution ensures the fundamental right to live decently and to enjoy clean air.105 The setting-up of the construction site in the proximity of the area without any appropriate pollution-control equipment is indicative of NGAO’s disregard for the precautionary norms to be followed for public safety. Due to this, the inhabitants suffered from severe respiratory problems within few months of the site being set up, thus causing air pollution, and violating the right to clean air guaranteed under Article 21 of the Constitution. The UNFCCC aims for the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate106. Union of Soleti despite of ratifying it , failed to bring under control the anthropogenic greenhouse gases and carbon emissions thereby causing pollution107 , haze, sea water intrusion and the erratic climatic conditions. Further, the Government orchestrated deforestation of the reserved forest areas, thereby causing air pollution.108 2.3.2. Noise Pollution caused by NGAO Noise pollution is described as an unwanted sound if it exceeds a reasonable limit and contaminates the environment109, causes nuisance and affects the health of a person110, thereby violating Article 21 of the Constitution. In the instant case, construction noise caused by NGAO, especially during night time became a nuisance to the people residing in the vicinity

105 Subhash Kumar v. State of Bihar , AIR 420, SC 1991. 106 Article 2, United Nations Framework Convention on Climate Change, 1992. 107 Section 2 (a)The Air Pollution (Prevention) Act 1981. 108 NTPC Ltd. and Anr. v. State of Uttar Pradesh and Ors 2011(11) ADJ 390. 109 In Re: Noise Pollution- Prevention of Environment and Sound Pollution v. UOI and Anr, AIR 2005 SC 3136 110 Free Legal Aid Cell Shri Sugan Chand Agarwal v. Government of National Territory of Delhi, AIR 2001 Del 455.

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33 of construction site as it resulted in violation of their right to silence, sleep, and rest111, guaranteed under Article 21 of the Constitution.112 2.3.3. Water pollution by Union of soleti “Pollution" means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms;113 In the present case, River Suhu was being contaminated and polluted because of the project being undertaken in the reserved are like release of harmful gases and waste material. This largely affected Aryans Suhu was their prime source of food and water thereby, violating their fundamental rights. 2.3.4 Danger to Migratory Birds and Leopards in their natural habitat: The above species being an endangered species have been declared as „Vulnerable‟114. Therefore, their protection is considered to be of absolute115 and paramount importance116 under conventions such as CITES117, CMS118 and the Wildlife Protection Act, 1972.

111 Farhad K. Wadia v.Union of India and Ors. (2009) 2 SCC 442. 112 In Re: Noise Pollution- Prevention of Environment and Sound Pollution v. Union of India and Anr, AIR 2005 SC 3136, p 3141 ,Church of God (Full Gospel) in India v. KKRMC Welfare Association AIR 2000 SC 2773. 113 Section 2 (e) The Water (Prevention and Control of Pollution) Act 1974). 114 International Union for Conservation of Nature Red Data Book at http://www.iucnredlist.org/ 115 Schedule I, Indian Wildlife (Protection) Act, 1972 116 Tata Sons Limited v. Greenpeace International and Anr ,2011 (45) PTC 275 (Del)

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34 In the present case, there has been a substantial risk to the survival and thriving of these endangered species due the close proximity of the construction site to the surrounding nesting and breeding habitats. Further, there was a danger of them being killed as people made encroachments upon their habitat as the forest cover was reduced. Therefore, the Government has failed to perform its duty imposed under Article 48 A and 51A (g) of the Constitution, to safeguard the environment and especially the existence of migratory birds and leopards. 2.4 Damages to be awarded Non-Compliance of Precautionary Principle: The polluter pays principle119 imposes absolute liability for harm caused to the environment, to compensate the victims of pollution and to pay the cost of restoring the environment.120The burden of maintaining the said balance lies on the unit which has caused the pollution121. Therefore, in the instant case, NGAO is liable for non-compliance with the aforementioned principle; since no preventive measures were taken by NGAO for curbing the pollution released from construction unit, and therefore must pay damages for the harm caused to the environment as well as to people since it is their fundamental right to be compensated122. Also, the Government of Soleti must be directed to take corrective measures in order to restore the environment.

117 Article III, Appendix I of The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Schedule I of the Indian Wildlife Protection Act, 1972 118 95Memorandum of Understanding II signed by India under The Convention on Migratory Species(CMS). 119 Charan Lal Sahu v. Union of India (1990)1 SCC 613 120 Indian Council for Enviro Legal Action v. UOI, (1996) 3 SCC 212; M C Mehta v. UOI, (1987) 1 SCC 395. 121 Narmada Bachao Andolan v. Union of India , (2000) 10 SCC 664 122 Rudul Shah v. State of Bihar AIR 1086, (SC 1950).: (1983) 4 SCC 141, CERC v. Union of India AIR 1795, (SC 1995).

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-

35 PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that; 

A writ of mandamus shall be issued to direct the immediate closure of the

 

manufacturing unit. The instant Writ Petition is maintainable; The Extraction Project infringes on several rights of the Tribal Communities including the right to shelter, right to wholesome environment, right to health, right to

 

livelihood, right to information and right to preserve culture; The Environmental Clearance granted to NGAO is invalid; Order and direct the government to take corrective measures to restore the degraded



environment. Award compensatory damages to the victims.

Any other relief which this Hon’ble court may be pleased to grant in the interests of Justice, Equity and Good Conscience. All of which is respectfully submitted. For This Act of Kindness, the Petitioners Shall Be Duty Bound Forever Pray.

All of which is respectfully submitted. S/d__________________ (Counsel for the Petitioners)

MEMORANDUM ON BEHALF OF THE PETITIONERS -DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-