Memorial on Behalf of the Respondent, Memorial, Respondent

2nd RBUSL National Moot Court Competition – 2016 TEAM CODE - 14

BEFORE THE HON’BLE SUPREME COURT OF INDIA Original Writ Jurisdiction PUBLIC INTEREST LITIGATION

W.P. (CIVIL) NO. ___ OF 2016 UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA In the matter of Article 19 and Article 21 of Constitution of India

ECO FRIENDS AND WELFARE SOCIETY…….………………………………..PETITIONER v.

UNION OF INDIA AND ANR. ………....…………………………………. RESPONDENTS

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

2ND RBUSL National Moot Court Competition - 2016

TABLE OF CONTENTS Table of Contents ........................................................................................................................

i

List Of Abbreviations .............................................................................................................. iii Index Of Authorities ..................................................................................................................

v

Statement of Jurisdiction............................................................................................................

x

Statement of facts ...................................................................................................................... xi Statement of Issues ................................................................................................................ xiii Summary of Arguments .......................................................................................................... xiv Arguments Advanced................................................................................................................. I.

1

WHETHER THE PUBLIC INTEREST LITIGATION FILED AGAINST UNION OF

INDIA AND GC. MINING CORPORATION INDIA LTD. IS MAINTAINABLE......... 1 II.

WHETHER THERE HAS BEEN VIOLATION OF THE FUNDAMENTAL

RIGHTS OF INDIGENOUS PEOPLE................................................................ 1 II.1.

No special right guaranteed to the tribal people under the Constitution............. 1

II.2.

Right to movement of the People of India b........................................... 2

II.3.

No violation of Article 19 of indigenous people................................................. 2

II.4.

No violation Article 21 of the Constitution......................................................... 3

III.

WHETHER UNION OF INDIA AND GMCL CAN BE MADE LIABLE FOR THE LOSS, IF ANY 6

III.1.

Right to shelter is not violated............................................................. 6

III.1.1.

The mining project does not violate the right to health

III.1.2

Right to livwlihood is not violated................................................... 7

6

III.2.

Right to religion not violated............................................................... 7

III.3.

Union of India not liable to pay compensation…………………………….. i MEMORIAL ON BEHALF OF THE RESPONDENTS

2ND RBUSL National Moot Court Competition - 2016 III.3.1.

Report released by the NGO eco friends not valid...................................... 8

III.3.2.

State’s rights over its mines and minerals is not restricted………….

III.4.1.

Applicability of Doctrine of Public Necessity............................................. 9

Prayer....................................................................................................................................... 11

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2ND RBUSL National Moot Court Competition - 2016

LIST OF ABBREVIATIONS ¶

Para

¶¶

Paras

AIR

All India Reporter

All

Allahabad

Art.

Article

Cal

Calcutta

CITES

Convention Of International Trade In Endangered Species Of Wild Fauna And Flora,1975

CMS

Convention on Migratory Species,1983

Del

Delhi

Ed.

Edition

ICCPR

International Convention on Civil and Political Rights,1966

ICESCR

International Covenant on Economic, Social and Cultural Rights,1966

ILO

International Labour Organisation

IUCN

International Union for Conservation of Nature

Mad

Madras

GCMCL

GC. Mining Corporation Ltd.

Ori

Orissa

p.

Page No.

PAT

Patna

PIL

Public Interest Litigation iii MEMORIAL ON BEHALF OF THE RESPONDENTS

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RBUSL National Moot Court Competition - 2016

Raj

Rajasthan

SC

Supreme Court

SCC

Supreme Court Reports

SCJ

Supreme Court Journal

Sec.

Section

u/a

Under Article

UDHR

United Nations Declaration on human rights.

UNFCCC

United Nations Framework Convention on Climate Change, 1992

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INDEX OF AUTHORITIES STATUTES 1. A.S. Narayana Deeshitalyu v. State of Andhra Pradesh, AIR 1996 SC 1765 ........................6 2. Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj v. State of

Gujarat, AIR 1974 SC 2098.................................................................................................................. ................5

3. Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726………………………………………... 1

4. Amritlal Nathubhai Shah v. Union Government of India, AIR 1976 SC 2591...........................

2

5.BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC 333 .......................

1

6.Bandhua Mukti Morcha v. Union Of India & Others , 1984 SCR (2) 67 .........................

8

7.Banwaslseva Ashram v. State of U.P, AIR 1987 SC 374 .................................................

5

8.Bennett Coleman and Co. and Ors. v. Union of India, (1972) 2 SCC 788 .......................

3

9.BSES Ltd. v. Union of India 2001 (1) Bom CR 394 ......................................................

10

10.Consumer Education And Research Centre And Others v. Union Of India And Others , Air 1995 SC 922 ............................................................................................................

4

11.Court on its own motion v. Union of India, 2012(12) SCALE 307............................

2, 4

12.Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Company Ltd. (1991) 2 SCC 539 ....................................................................

10

13.Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101 ................

3

14.Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872 ......................................

4

15.Forum, Prevention of Envn. & Sound Pollution v Union of India and another, (2005) 8 SCC 796 ......................................................................................................................... 8 16.Francis Coralie v. Union Territory Of Delhi, Air 1994 SC 1844 ................................... 4 17.G. Sundarrajan v Union Of India And Others JT 2013 (7) SC 266 ................................ 8 18.Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ........................................................................................................................................ 1

19.In Re: Airports Authority of India Ltd. , AIR 1999 SC 2367 ......................................... 7 v MEMORIAL ON BEHALF OF THE RESPONDENTS

2ND RBUSL National Moot Court Competition - 2016 20.Kharak Singh v. State of U.P, AIR1963SC1295.............................................................2 21.Kuttisankaran Nair v. Kumaran Nair, AIR 1965 Ker 161...............................................2 22.LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811.........................4 23.M C Mehta v. Kamal Nath, [1997] 1 SCC 388...............................................................4 24.M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160..............................4 25.Mahesh Chandra v. Regional Manager, U.P. Financial Corpn, AIR 1993 SC 935.........3 26.Malverer v. Spinke (1537) Dyer, (Part I), 356..............................................................10 27.Maneka Gandhi v. Union of India.AIR 1978 SC597......................................................3 28.Nand Kishore Gupta and Ors. v.State of Uttar Pradesh and Ors. AIR 2010 SC 3654....8 29.Narmada Bachao Andolan v. Union Of India (2000) 10 SCC 664.............................4, 5 30.Netai Bag v. State of West Bengal, AIR 2000 SC 3313..................................................4 31.Om Kumar v. Union of India, AIR 2000 SC 3689..........................................................4 32.Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest, Vishaka v. State of Rajasthan, (1997) 6 SCC 241...........................................................................2 33.People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473...............2 34.Ramsumaran Prasad v. ShyamKumari ,1922 AIR P.C. 856............................................7 35.Rekharani Maitra & Ors. v. Additional District Magistrate & Ors. C.R. No. 9063 (W) of 1983...........................................................................................................................9 36.Research Foundation For Science Technology And Natural Resource Policy v. Union Of India And Others, AIR 2007 SC (Supp) 852............................................................5 37.Secretary,Govt of india v Alka Subhash Gadia (1990)........................................8 38.S.R Bommai v. Union of India, (1994) 2 SCR 644........................................................3 39.Sachidanand Pandey and Anr.v. State of West Bengal and Ors. (1987) 2 SCC 295.......3 40.Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471........................................3 41.State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil Appeal Nos. 104-105 Of 2001..........................................................1

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2ND RBUSL National Moot Court Competition - 2016 42.Subhash Kumar v. State Of Bihar, AIR 1991 SC 420; M.C.Mehta v. Union Of India, AIR 1988 SC 1037 ......................................................................................................... 4 43.T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 ................................. 2 44.T.N.Godavarmanthirumulkpad v. Union Of India, AIR 1997 SC 1228 ......................... 4 45.The State of Karnataka and Anr. v. Shri Ranganatha Reddy and Anr. AIR 1978 SC 215..................................................................................................................................

8

46.Thirumalpad v. Union of India and Ors. (2002) 10 SCC 606..................................... 4, 5 47.Vellore Citizens' Welfare Forum v. Union Of India, (1996) 5 SCC 647 ...................... 48. Union of India v. Paul Manickam, AIR 2003 SC 4622.........................................................

BOOKS th

1.Banerjee, B.P, Writ Remedies, 4 Edition, 2008, LexisNexis, Buttersworth Wadhwa Publication. 2.Banerjee, Digest of Land Acquisition & Compensation Cases, 2 Ashoka Law House.

nd

Edition 1997,

3.Basu D.D., Constitution of India, 14th Edition 2009, LexisNexis Butterworths Wadhwa Nagpur. 4. Desai. A. Ashok, Environmental Jurisprudence, 2

nd

Edition 2002, Modern Law House. st

5. Doabia T.S, Environmental & Pollution Laws in India, 1 Edition 2005, Wadhwa Nagpur. th

6. Jain M.P, Indian Constitutional Law, 6 Edition 2011, LexisNexis Butterworth Wadhwa Nagpur. 7. Jaswal P.S., Environmental Law, 2

nd

Edition 2006, Allahabad Law Agency. st

8. Karkara G.S., Environmental Law, 1 Edition, 1999, Central Law Publications. 9. Maheshwara N. Swamy , Law relating to Environmental Pollution and Protection, nd

2

Edition 2003, Asia Law House. st

10. Malik Sumeet, Environmental Law, 1 Edition 2008, Eastern Book Company. vii MEMORIAL ON BEHALF OF THE RESPONDENTS

4 2

2ND RBUSL National Moot Court Competition - 2016

11. N.K. Behura & Panigrahi Nilakantha, Tribals and the Indian Constitution, Edition 2006, Rawat Publications. 12. P. Leelakrishnan, Environmental Case Law Book, 2nd Edition 2006, LexisNexis Butterworths. 13. Prasad Rajendra, Law of Social Status, Edition 1998, Hindu Law House. th

14. Dhirajlal &Ratanlal , The Law of Torts, 26 Edition 2012,LexisNexis Butterworths Wadhwa. th

15. Seervai H.M., Constitutional law of India, 4 Edition 2002, Volume 2, Universal Book Traders. th

16. Shukla V.N., Constitution of India, 11 Edition 2008, Eastern Book Company.

LEGAL DATABASES 1. Manupatra 2. SCC Online 3. Westlaw 4. Hein Online

LEXICONS 1. Aiyar P Ramanathan, Law Lexicon, 2005 th

2. Garner Bryana, Black’s Law Dictionary,7 Edition,1999

LEGISLATIONS 1. The Constitution of India, 1950 2. Environment Protection Act, 1986 3. Air (Prevention and Control of Pollution) Act, 1981 viii MEMORIAL ON BEHALF OF THE RESPONDENTS

2ND RBUSL National Moot Court Competition - 2016 4. Forest (Conservation) Act, 1980 5. Indian Forest Act, 1927 6. Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forests Right) Act, 2006. 7. Coastal Regulation Zone Notification, 2011 8. Coastal Regulation Zone Notification, 1991 9. Wildlife Protection Act, 1972 10. Panchayats (Extension to the Scheduled Areas) Act, 1996 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 4. The Indigenous and Tribal Populations Convention, 1957 (ILO Convention 107) 5. The Rio Submit, 1992 6. United Nation Declaration of Human Rights, 1948 7. International Convention on Civil and Political Rights, 1966 8. International Covenant on Economic, Social and Cultural Rights, 1966

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2ND RBUSL National Moot Court Competition - 2016 STATEMENT OF JURISDICTION The Honourable Supreme Court of India has the jurisdiction in this matter under Article 32 of the Constitution of India which reads as follows: “32. 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.”

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2ND RBUSL National Moot Court Competition - 2016 STATEMENT OF FACTS 1. India bears a population of 1.21 billion and among them 10.42 crore population comprises of tribal class as per the Census of India, 2011. In northeastern part of India there exists lot of tension between northeastern states, the Government of India and the tribal community. With a view to develop the economy and to provide for the defence of the country from the Naxalites, the Government of India entered into an Agreement with the GC Mining Corporation India Ltd. in January, 2010. The Company was registered under the provisions of the Companies Act with the Registrar, Meghalaya. Government of India leased out the one hundred fifty hectares of land of the South Garo Hills for the purpose of quarrying the lime stone mines which is considered useful in making defence weapons and in the manufacturing of steel. This large mining project is providing employment opportunities to thousands of people and also helped in development of that area on one hand. 2. The Tribal Welfare Society, ‘Oorjaa’, complaints to the Ministry of Tribal Affairs, India in March, 2012 regarding the mining activities of gasuapara. Eventually environmentalists along with the media showed active interest for protecting the rights of the tribal people. It was then found out that even the tribal people of that region were not in favour of leaving their native land adherent to their ancient animistic religious beliefs and practices. Due to the interest shown by the Welfare Society, environmentalists and the media, the issue of environment imbalances due to mining operations came into limelight in April, 2013. 3. As a result, the Government of India had to appoint a committee for reviewing the conditions prevailing in the Gasuapara area. The Committee submitted its report in the month of January, 2014 and stated that: “There is no doubt that mining operations render devastation to the environment, loss of natural vegetation, displacement of tribal people and endangered their health. However, in the larger interest of the country such as for the defence, for the employment of the people of the adjoining locality and for the development of the economy, such industrial activities need to be encouraged.”

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2ND RBUSL National Moot Court Competition - 2016

4. The Committee also found that before starting of the mining operations, the company complied with the mining regulations and also conducted the Environment Impact Assessment exercise. The Government of India did not give any direction to the Company after considering the report of the committee and mining operations continued. 5. In February, 2015, an NGO named “Eco Friends” became active and carried on few operations with regard to the ongoing mining activities in the area of Gasuapara. This NGO stepped in as a protector to address the interconnected issues of the environment. “Eco Friends” being a NGO is concerned with the issue of environment, protection of natural resources and the environmental rights of the people. After working in the area of Gasuapara for few months, the NGO noticed the ill effects of mining operations on natural environment, the life of tribal population who had to be displaced from that very area and adverse impact on their health due to the environmental imbalance. It was observed by the NGO that along with the depletion of natural vegetation, such condition was badly affecting the health of tribes showing the symptoms of Bronchitis and Asthma. 6. In September, 2015, death of around 15 persons was reported from the Garo tribal community. The NGO ‘Eco Friends’ made arrangements for the medical examination of deceased. In the medical examination, it was revealed that the death had occurred due to lung diseases such as Obstructive Pulmonary disorder, emphysema and other several 7. The NGO ‘Eco Friends’ along with the ‘Welfare Society’ filed the Public Interest Litigation under Article 32 of the Constitution of India before the Hon’ble Supreme Court of India in January, 2016. The Hon’ble Supreme Court had sent notices to the Government of India, Ministry of Tribal Affairs and GC Mining Corporation India Ltd. for showing cause and action taken. The PIL is fixed for hearing in March, 2016.

xii MEMORIAL ON BEHALF OF THE RESPONDENTS

2ND RBUSL National Moot Court Competition - 2016

STATEMENT OF ISSUES ISSUE I: Whether the Public Interest Litigation is Maintainable against Union of India And GC. Mining Corporation Ltd.

ISSUE II: Whether Fundamental Rights of Tribal communities have been violated by the Mining Project.

ISSUE III: Whether Union of India and GC. Mining Corporation Ltd. can be made liable for the loss, if any.

xiii MEMORIAL ON BEHALF OF THE RESPONDENTS

2ND RBUSL National Moot Court Competition - 2016 SUMMARY OF ARGUMENTS

Issue I Whether the Public Interest Litigation filed against Union of India and GC. Mining Corporation Ltd. is maintainable. It is humbly submitted that, since Fundamental Rights of any group of Individuals have not been violated, the petition is not maintainable.

Issue II Whether Fundamental Rights of Tribal communities have been violated by the Mining Project. The Respondents shall conclusively prove that the Mining Project does not violate the right to shelter since the Petitioner has failed to establishe it and rather there is a comprehensive Rehabilitation package in this case. Also it shall be studied that the right to wholesome environment, the right to health or the right to livelihood under Art. 21 were not violated. Further, there is no violation of any religious right also. ISSUE III Whether Union of India and GC. Mining Corporation Ltd. can be made liable for the loss, if any. The Union of India and GC. Mining Corporation Ltd. cannot be made liable for the any loss, since, the whole some aim of the government being a welfare government was development of those areas followed by a careful check on the environment .It shall be evidently proved n the arguments advanced that the government aimed for national development and mining thus provided welfare of the state so mentioned in myriad ways .

xiv MEMORIAL ON BEHALF OF THE RESPONDENTS

2ND RBUSL National Moot Court Competition - 2016 ARGUMENTS ADVANCED I. WHETHER THE PUBLIC INTEREST LITIGATION FILED AGAINST UNION OF INDIA AND GC. MINING CORPORATION LTD. IS MAINTAINABLE.

1

It is understood under Art.21 that it is not an absolute right and is subject to the some restraints evolved by the judiciary. It has been held that since Art. 32 confers “extraordinary” jurisdiction, the same must be used wisely, sparingly and shall be brought

into use under circumstances where there is no alternate efficacious remedy is available. 1 The reason for this is: first, to reduce the increasing pendency of cases2 and second, to inspire faith in the hierarchy of Courts and the institution as a whole. 3 Therefore, the Petitioner is required to approach the High Court or the National Green Tribunal before approaching the Supreme Court. 2

The Petitioner should have approached High Court because power of High Court under Art. 226 is much wider than the powers of the Supreme Court under Art. 32 of the Constitution.4 Further, the reliefs prayed for can be granted by High Court. Indeed, this Court in ICELO held that in cases concerning environment, specifically, the High Courts would be in a better position to ascertain local conditions and facts and therefore, for proper monitoring, they must be preferred.5 Further, in another case concerning the safety of development project,6 this Hon'ble Court transferred the matter to the High Court for more efficiency. Hence the issues covered in the instant case are similar enough and require knowledge and ability to assess local conditions. Therefore, it is widely understood that remedy available under Art. 226 is not just an alternative but also, a preferable remedy.

3. Relying on the facts of the case, its mentioned that ‘operations’ have been conducted to assess environment health by a private organisation .But it lacks scientific data and can be questioned upon its validity as no substantial evidence is provided to support the fact. Therefore, without any substantial evidence, the government cannot be held liable for causing environmental degradation, when measures are being taken to control the same.7 4. Alternatively, the Petitioner could also have approached the National Green Tribunal. It is to be observed that the NGT has been expressly established to deal with questions related to “enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.”8 Therefore, any submission that the NGT cannot enforce rights or protect them adequately is erroneous.

1 Secretary, Govt. of India v. Alka Shubhash Gadia, 1990 SCR, Supl. (3) 583; Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726; Union of India v. Paul Manickam, AIR 2003 SC 4622. 2 PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732. 3 Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159. 4 PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732. 5 Indian Council For Enviro -Legal Action v. Union of India, (1996)5 SCC 261. 6 N .D. Jayal v. Union of India, (2004) 9 SCC 362. 7 Amritlal Nathubhai Shah v. Union Government of India, AIR 1976 SC 2591.

8 National Green Tribunal Act Preamble (2010).

5. Also under NGT it is required to make endeavour to dispose of the application or the appeal finally within six months from the date of filling such an appeal or application .Also before giving final judgment, it is required to give an opportunity to the parties concerned.9 In such a case it would have been much more convenient for the aggrieved people raise their voice against the mining activities in case they suffered any loss ,rather than waiting for years to access the damage if caused to then and appeal in SC. 6. The Respondent is of the view that NGT was the right authorities that the people should have approached instead of SC because NGT is specially equipped to evaluate scientific claims apart from regular civil claims. Henceforth it is submitted that the NGT has a better hand than the SC to evaluate issues relating to health and environmental consequences of the Mining Project.10 In fact, the Supreme Court under similar circumstances, in the past, sowed the concern over the lack of separate, multi-faceted environmental courts equipped with both judicial and scientific inputs.11 Thus, the Supreme Court itself has recognised the value of the NGT to deal with such cases.

II.NO VIOLATIONOF FUNDAMENTAL RIGHT

Under article 32, it has been held that if a right, other than a fundamental right is claimed to be violated then such questions can be addressed only in the appropriate proceedings and not on an application under Art. 32.12 In this case, it is observed that no fundamental rights of the Petitioner or the Tribal Communities have been violated,13 therefore, this petition must fail.

A. Right to Shelter is not violated 7.The Government for the purpose of mining required only 150 hectares of land out of 1,80,000 hectares of land of Gasuapara ,so it was just little space that it required for purpose of national interest and the people living there had an option of enjoying the other part of the land . Article 19(1) (e) provides the right to reside and settle in any part of the territory of Rambo, however, reasonable restriction can be put on the same under Article 19(5) if it is in the public interest.14Therefore, the rights of the indigenous people to reside and settle in the forest area is not an absolute right and can be restricted under Article 19(5) if it is in the 9 Sec.18(3) of the National Green Tribunal Act Preamble (2010) 10 SAIRAM BHAT, NATURAL RESOURCES CONSERVATION LAW 63 (2010). 11 M.C. Mehta v. Union of India 1986 (2) SCC 176; Indian Council for Environmental -Legal Action v. Union of India, 1996 (3) SCC 212; A.P. Pollution Control Board v. M.V. Nayudu 1999 (2) SCC 718 12 Ramjilal v. Income Tax Officer, AIR 1951 SC 97. 13 II, Pleadings, Written Submissions for the Respondent. 14 State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil Appeal Nos. 104-105 Of 2001.

public interest.15 8. “Public interest” 16means a subject matter in which the rights of the public or a section of the public is interested or the means of concern which is advantageous to people as a whole.17 'Interest of general public' is a comprehensive expression intended to achieve the socioeconomic justice for people by the State.18 9.Mere displacement of the people from Gasupara to Bhagmara region which is 46km away from their actual habitats ,won’t let in violation of righto shelter because the government didn’t not evict them or coerced them out of their houses .But rather provide them with the rehabilitation . It has been held that that the displacement of tribes does not per se result in the violation of their fundamental rights.19 Indeed, the Courts have drawn a distinction between forced eviction/land-acquisition and lack of rehabilitation.20 The Tribal Communities may be displaced for the Mining Project; however, this alone is not sufficient to establish violation of Art. 21. 10. Even ILO Convention No. 169 allows for involuntary displacement “In the interest of national economic development”. 21 In fact, it is submitted that there is a possibility for the Tribal Communities to lead a better life with more amenities at the sites of rehabilitation.22

B. The Mining Project does not violate the right to health 11. Following the facts of the case ,if EIA is conducted ,then it is assured that it is being constantly under the surveillances of the authorities that take environment is not being polluted in a way that endangers someone ;s life . 12. Also when the mining was about to begin then it was ensured that rehabilitation shall be provided .But as the facts says that people were not willing to go This establishes that despite being aware about the effects of mining and subsequently been suffering them, they denied the rehabilitating that was offered to them .Hence thy shall be themselves responsible for the loss of health if any. 13. From the facts it cannot be conclusively proved that the death of those 15 people were result of the health hazards. It is still a possibility .Thus on a mere possibility of the fact in 15 Court on its own motion v. Union of India, 2012 (12) SCALE 307; Kharak Singh v. State of U.P, AIR 1963 SC 1295, Waman Rao v. Union of India, (1981) 2 SCC 362; Bachan Singh v. State of Punjab, AIR1980 SC 898. 16 Kuttisankaran Nair v. Kumaran Nair, AIR 1965 Ker 161 17T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481. 18 Court on its own motion v. Union of India, 2012 (12) SCALE307.

absence of scientific evidence to support cannot be a cause of violation of right to health. The Petitioner claims the death of the people were from air pollution 14. From the viewing the cause of the obstructive pulmonary disorder, it is evident that it is caused because of extensive smoking 23as the primary reason followed by air pollution. 15. Out of 1 crore people only 15 suffered such a disease that esulted n their death .That leaves a scope to ponder that they could have been extra sensitive .as their no evidence in the medical resperts about their age or or previous medical history . C. Right to livelihood was not violated 16. The Tribal Communities engage in activities such as gathering fruits and flowers, apiculture etc. for their livelihood .In the case, the Tribal Communities still have access to these lands and forests for their livelihood and this is unconnected with their displacement. Indeed, in Chameli24, this Court held that a land acquisition for a public purpose does not violate the right to livelihood. Thus, it is submitted that the Petitioner may not argue that the mere displacement from their traditional lands is sufficient to establish deprivation of livelihood. On the contrary, the opportunities for livelihood for the Tribal Communities are enhanced since the NRRP, 2007 and the EC give preference for employment in the project to those who are affected. Further, the NRRP, 2007 also provides for their vocational training which increases their overall employability. 17. It is submitted that the right to livelihood is not absolute and is sometimes has to yield to compelling public interest.25 In the this case, the Mining Project was undertaken to utilise natural resources that shall hep in the production of vaious other things that shall serve for national interst., in Banwasi Sewa Ashram26, this Court on similar facts agreed with the executive's decision to prioritise the industrial growth of the country and demand for energy over the right of adivasis to collect forest produce. Further, that effect of closure of the Mining Project on livelihood of those who work therein is also a relevant factor to be considered.27 D.Right to Religion not violated 19 Narmada Bachao Andolan v. Union Of India, (2000) 10 SCC 664. 20 State of Kerala v. Peoples Union for Civil Liberties, (2009) 8 SCC 46. 21 ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169). 22 Narmada Bachao Andolan v. State Of M.P., Civil Appeal No. 2082 of 2011

23 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3775194/ para 3 24 Constitution of India Art. 19(6) (1950); Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051. 25 Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051; Banwasi Sewa Ashram v. State of Uttar Pradesh, AIR 1987 SC 374. 26 Banwasi Sewa Ashram v. State of Uttar Pradesh, AIR 1987 SC 374. 27 Goa Foundation v. Union of India, (2014) 6 SCC 590.

18. It is submitted that the Petitioner has not established the exact manner by which the Mining Project allegedly violates their freedom of religion. Cases which have required the Court to interfere on ground on violation of Art. 25 by developmental projects have stated the specific religious practice, such as worship of a particular deity28 or conduct of a ceremony that is infringed. Furthermore, the freedom of religion is not absolute 29 and extends to only those religious practices that are essential or integral30. In this case, the Petitioners have only made vague assertions that the land and rocks are considered sacred have failed to show any actual invasion into their beliefs or essential practices by the Mining Project. Therefore, it is submitted that no religious rights have been violated. 19. The right guaranteed under Art. 25 is not absolute 31 and can be restricted on, inter alia, other provisions in Part III of the Constitution. The right to development has been read into Article 21. Moreover, even in cases of encroachment of religious rights, it is legitimate for the State to step in to balance competing interests taking into account the Directive Principles and social welfare as a whole32. In this case, the Mining Project was undertaken to utilise the resources of its country and to meet its requirements. It was most feasible method to resolve the acute power crisis in the country. Therefore, it must be interpreted to be in pursuance of the right to development, exercise of eminent domain and in any case, an instance of the State balancing competing interests. Hence, it is submitted that any restriction of the right to religion is justified. III. WHETHER GOVERNMENT AND COMPANY BE MADE LIABLE 20. Relying on the facts of the case ,it is evidently present that mining activity was done for the purpose of development and national interest From development of the place ,it can be understood that for mining activity to be conducted on such a large scale requires proper constructing of the roads ,water supply and electricity generation for the people employed .So such developments were not only restricted to the employees but also were for the development of the area through the interest of the employees. In a case concerning the need for generation of electricity over the rights of the people .it was this Hon’ble Court

28 Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476. 69Chewang Pintso Bhutia v. State of Sikkim, W.P.(C) No. 22/2012. 29 Commissioner H.R.E v. L.T. Swamiar, AIR 1954 SC 282; Sardar Syedna Taher Saifuddin v. State Of Bombay, AIR 1962 SC 853; Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj and Others v. State of Gujarat & Others, AIR 1974 SC 2098; Church Of God (Full Gospel) v. K.K.R. Majestic Colony Welfare, AIR 2000 SC 2773. 30 Commissioner Of Police v. Acharya J. Avadhuta and Anr., AIR 2004 SC 2984; Church Of God (Full Gospel) v. K.K.R. Majestic Colony Welfare, AIR 2000 SC 2773; Mohammed Fasi v. Superintendent Of Police, (1985) ILLJ 463 Ker.; Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255. 31 A.S. Narayana Deeshitalyu v. State of Andhra Pradesh, AIR 1996 SC 1765. 32 Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj v. State of Gujarat, AIR 1974 SC 2098.

had directed the Union Government in All India Labour Forum v Union of India 33 that gave directions for exploring alternative energy sources to resolve the power crisis. On previous occasions too, this Court has recognised the critical role of energy for economic growth and development.34 Therefore, it is submitted that Mining Project which aims to generate energy is in the interest of development. 21. Further, it has been accepted that no development is possible without some adverse effect on the ecology and environment.35 A proper balance must be struck between the protection of environment and the development process.36 Therefore, even if the Mining Project has the potential to cause harm, “the larger public interest of the community should give way” 37 This approach was taken in Narmada Bachao Andolan38 and Sundarrajan39 and it is submitted that such an approach must be adopted herein also. It has been held that sometimes the ill-effects of technology have to be tolerated as the cost of their advantages.40

The State’s rights over its mines and minerals is not restricted 22. It is submitted that the FRA do not interfere with the right of the State to mine. In fact, the SC has affirmed that the Forest Rights Act has not “interfered with the right of the State over mines or minerals lying underneath the forest land, which stand vested in the State.” 41 Thus, the right of the State to mine remains undisturbed. 23. The State with the natural resources within the territory of India and confers the Central Government with eminent domain powers for its mining and extraction.82 This view has been reiterated by the Supreme Court in Amritlal Nathubhai Shah v. Union Government of India42 where it held that the State is “the owner of minerals within its territory, and the minerals vest in it.” 24. Under Prohibition of Mining Operation in Ecologically Fragile Areas, it has been stated that for conducting mining activity it has been made mandatory to get EIA details of the area and the proposed process or operation duly supported by an EIA and such other 33 Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, AIR 2007 Ker 33. 34 G. Sundarrajan vs. Union of India, (2013) 6 SCC 620; Banwasi Sewa Ashram v. State of Uttar Pradesh, AIR 1987 SC 374. 35 T.N. Godavarman Thirumalpad (through K.M. Chinnappa) v. Union of India, 2002 (10) SCC 606. 36 Indian Council for Enviro - Legal Action vs. Union of India and Ors. (1995) 6 SCC 281; Rambhau Patil v. Maharashtra State Road Development Corporation 2002(1) Bom CR 76; People United for better Living in Calcutta v. State of West Bengal, AIR 1993 Cal. 215; SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL 37 G. Sundarrajan vs. Union of India, (2013) 6 SCC 620 38Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751. 39 G. Sundarrajan vs. Union of India, (2013) 6 SCC 620 40 Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, AIR 2007 Ker 33. 41 Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476. 86Panchayats (Extension to Scheduled Areas) Act § 4(k) & 4(l) (1996). 42 Amritlal Nathubhai Shah v. Union Government of India, AIR 1976 SC 2591.

information as may be required by the Central Government. 43 Thus it establishes that the government authorities followed all the necessary provisions or stint up mining in the aforesaid area 25. Also After the EIA report is ready, the investor approaches the concerned State Pollution Control Board (SPCB) and the State Forest Department (if the location involves use of forestland). The SPCB evaluates and assesses the quantity and quality of effluents likely to be generated by the proposed unit as well as the efficacy of the control measures proposed by the investor to meet the prescribed standards.

The public hearing is a

mandatory step in the process of environmental clearance for certain developmental projects. This provides a legal space for people of an area to come face-to-face with the project proponent and the government and express their concerns.

The documents

submitted by an investor are first scrutinised by a multi-disciplinary staff functioning in the Ministry of Environment and Forests who may also undertake site-visits wherever required, interact with the investors and hold consultations with experts on specific issues as and when necessary. After this preliminary scrutiny, the proposals placed before specially constituted committees of experts whose composition is specified in the EIA .

2ND RBUSL National Moot Court Competition - 2016 PRAYER In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble Court be pleased to:

1. Dismiss the writ petition. 2. In the alternative declare and adjudge: a. That the Respondents have not violated the fundamental rights of the indigenous people. b. That the Respondents are not liable for loss, if any. 43 http://ifcext.ifc.org/ifcext/spiwebsite1.nsf/0/003b9a36d39f00d8852576ba000e2479/$FILE /EIA%20Report%20(final)%20for%20limestone%20quarry%20India.pdf PAGE 13

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And for this, the Respondents as in duty bound, shall humbly pray.

COUNSELS FOR THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS