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BHU’S 4TH MAHAMANA MALVIYA MOOT COURT COMPETITION 2016

BEFORE THE HON’BLE SUPREME COURT OF REPUBLIC OF RHODO

IN THE MATTER OF: SLP NO. 8015/2015 REPUBLIC OF RHODO...……….…….…………………PETITIONER V.

DASHANAN MOTORS LIMITED………………………DEFENDANT

SLP NO. 031/2016 MAYA MEHTA …………………………………………...PETITIONER V.

STATE OF NORTHERN PROVINCE …………………..DEFENDANT

Memorial for Petitioners

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TABLE OF CONTENTS TABLE OF CONTENTS .............................................................................................................. I LIST OF ABBREVIATIONS .................................................................................................... III INDEX OF AUTHORITIES ....................................................................................................... V STATEMENT OF JURISDICTION ...................................................................................... VIII STATEMENT OF FACTS ......................................................................................................... IX ISSUES RAISED...................................................................................................................... XIII SUMMARY OF ARGUMENTS............................................................................................. XIV ARGUMENTS ADVANCED....................................................................................................... 1 I.

THAT THE SLPS ARE MAINATINABLE .................................................................... 1

II. THAT THE IMPUGNED GOVERNMENT DIRECTIVE SHOULD NOT BE ANULLED ................................................................................................................................. 3 A. THAT THE INTENT OF THE DIRECTIVE IS TO UPHOLD THE RIGHT TO LIFE OF THE CITIZENS OF THE COUNTRY ............................................................................. 3 B. THAT THE DIRECTIVE ISSUED WAS IN CONSONANCE WITH THE DIRECTIVE PRINCIPLES OF STATE POLICY .................................................................. 6 C. THAT THE IMPUGNED DIRECTIVE WAS IN KEEPING WITH THE MUNICIPAL LAWS OF THE COUNTRY ................................................................................................... 8 D. THAT THE IMPUGNED DIRECTIVE WAS IN PURSUANCE OF INTERNATIONAL PRINCIPLES OF ENVIRONMENTAL LAW ..................................... 8 E. THAT THE IMPUGNED DIRECTIVE WAS NOT IN VIOLATION OF ANY FUNDAMENTAL RIGHT.................................................................................................... 11 III.

THAT MORE COMPENSATION SHOULD BE AWARDED FOR THE

POLLUTION CAUSED BY DML......................................................................................... 14

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IV.

THAT A WRIT OF MANDAMUS SHOULD BE ISSUED TO THE STATE

POLLUTION CONTROL BOARD TO CLOSE THE PLANT OF DML ALONG RIVER ASLI............................................................................................................................ 20 A. THAT THE RIGHT TO LIFE OF THE NATIVES HAS BEEN INFRINGED BY THE STATE ................................................................................................................................... 20 B. THAT THE DECISION OF THE HIGH COURT WAS ERRONEOUS ..................... 24 PRAYER ................................................................................................................................... XVI

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LIST OF ABBREVIATIONS ABBREVIATION

EXPANSION

§

Section

§§

Sections

¶

Paragraph

¶¶

Paragraphs

&

And

AIR

All India Reporter

Anr.

Another

Art.

Article

ED.

Edition

EPA

Environment Protection Act

Hon’ble

Honorable

MoEF

Ministry of Environment and Forest

NGT

National Green Tribunal

UDHR

United Declaration of Human Rights

Ors.

Others

IUCN

International Union for Conservation of Nature

WWF

World Wildlife Fund

PCB

Pollution Control Board

SBCB

State Pollution Control Board

MBCF

Mohana Biodiversity Conservation Forum

Rhodo

Republic of Rhodo

DML

Dashanan Motors Limited

HC

High Court of Shivpuri

PIL

Public Interest Litigation

SC

Supreme Court

SCC

SCC Supreme Court Cases III | P a g e [Memorial for Petitioner]

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UOI

Union of India

v.

Versus

Vol.

Volume

W.P.

Writ Petition

SLP

Special Leave Petition

DPSP

Directive Principle of State Policy

DPSPs

Directive Principles of State Policy

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INDEX OF AUTHORITIES CASES A.P. Pollution Control Board v. Prof. M.V. Nayudu, AIR 1999 SC 812 ................................ 17,25 B.L. Waddehra(Dr.) v. Union of India, AIR 1996 SC 2969. .......................................................... 4 Balram Kumawat v. Union of India, AIR 2003 SC 3268 ............................................................... 7 Basheshar Nath v. I.T. Commisioner AIR 1959 SC 149 (158). ................................................... 23 Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781 ........................................................... 15 Chandra Bhawan Boarding and Lodging v. State of Mysore, AIR 1970 SC 2042 ........................ 6 Donoghue v. Stevenson (1932), AC 562, 618-19 ......................................................................... 15 Francis Coralite Mullin v. Union Territory of Delhi, Administrator, AIR 1981 SC 746 ............. 13 Intellectuals Forum, Tirupathi v. State of A.P., AIR 2006 SC 1350 .................................. 7, 10, 24 J.C. Galstaun v. Dunia Lal, (1905) 9 CWN 617 ........................................................................... 17 Jacob Mathew v. State of Punjab, AIR 2005 SC 3180 ................................................................. 15 K.M. Chinnappa v. Union of India, AIR 2003 SC 724 ................................................................ 10 Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461 ........................................................ 6 KR Shenoy v. Chief Officers, Town Municipal Council, AIR 174 SC 2177 ............................... 10 Krishnan Kakkanth v. Govt. of Kerala, AIR 1997 SC 128........................................................... 12 Laxmi Khandsari v. State of U.P., AIR 1980 SC 873 .............................................................. 7, 12 M.C. Mehta v. Kamal Nath (1997) 1 SCC 388. ................................... 1, 4, 5, 9, 10, 13, 18, 19, 20 M.I. Builders(P) Ltd. V. Radhe Shyam Sahu, (1999) 6 SCC 532 ................................................ 10 Mehta M.C. v. Union of India, AIR 1987 SC 1086 ...................................................................... 23 N.D. Jayal v. Union of India, AIR 2004 SC 867 ...................................................................... 5, 20 Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 .............................................. 11 Pathumma v. State of Kerala, AIR 1978 SC 771 .......................................................................... 12 V|P a ge [Memorial for Petitioner]

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Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111 .................................................................. 15 Ramana Dayaram Shetty v. I.A.A.I., AIR 1979 SC 1628 ............................................................ 23 Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652. .............................. 5 Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630............................................ 5 Sivarajan P.V. v. Union of India, AIR 1959 SC 556 .................................................................... 12 Sonia Bhatia v. State of U.P., AIR 1981 SC 1274 .......................................................................... 7 State of Kerala v. Thomas, N.M., AIR 1976 SC 490. .................................................................... 6 State of M.P. v. Pramod Bhartiya, AIR 1991 SC 286 .................................................................... 6 State of Maharashtra v. Rao Himmatbhai Narbheram, AIR 1970 SC 1157 ................................. 12 State of Orissa v. Radhey Shyam Meher, AIR 1995 SC 855 ....................................................... 12 State of Punjab v. Raja Ram, AIR 1981 SC 1694 ........................................................................ 23 Subhash Kumar v. State of Bihar, AIR 1991 SC 420 ..................................................... 4, 7, 23, 24 T.N. Godavarman Thirumalpad v. Union Of India & Ors., AIR 2003 SC 724 .................. 5, 11, 26 Tarun Bharat Sangh Alwar v. Union of India, AIR 1992 SC 514. .............................................. 25 Union Carbide Corporation v. Union of India, AIR 1990 SC 273. .............................................. 17 Unni Krishnan J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178. ............................................ 5 Vincent Panikurlangara v. Union of India, AIR 1987 SC 990 ................................................. 5, 23 Zee Telefilms Ltd. V. Union of India, AIR 2005 SC 2677 .......................................................... 23 BOOKS 

A. DESAI, ENVIRONMENTAL JURISPRUDENCE (2ND ED. 2002).



DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8TH ED. 2009).



DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, (14TH ED. 2009).



M.P. JAIN, INDIAN CONSTITUTIONAL LAW (6TH ED. 2010).



P. LEELAKRISHNAN., ENVIRONMENTAL CASE LAW BOOK (2ND ED. 2006).



P. S. JASWAL, ENVIRONMENTAL LAW (2ND ED. 2006). VI | P a g e [Memorial for Petitioner]

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

S. K. SARKAR, PUBLIC INTEREST LITIGATION (2ND ED.2006).



S. SHANTHAKUMAR, INTRODUCTION TO ENVIRONMENTAL LAW (2ND ED. 2008).



SHANTHAKUMAR, S., INTRODUCTION TO ENVIRONMENTAL LAW (2ND ED. 2008).



SUMEET MALIK, ENVIRONMENTAL LAW (2ND ED. 2012).



V. N.SHUKLA , CONSTITUTION OF INDIA (11TH ED. 2008). STATUTES AND ACTS



THE CONSTITUTION OF INDIA, 1950.



WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 LEXICONS



BRIAM A. GARNER,BLACK’S LAW DICTIONARY (10TH ED. 2014).



P RAMANATHAAIYAR, THE MAJOR LAW LEXICON 3531 (4THED 2010).



SALLY WEHMEIER, OXFORD ADVANCED LEARNER’S DICTIONARY (7TH ED. 2005).

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STATEMENT OF JURISDICTION The Petitioners humbly approach the Hon’ble Supreme Court under Article 136 of the Constitution of Republic of Rhodo.

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STATEMENT OF FACTS -THE BACKGROUNDDashanan Motors Limited (hereinafter referred as DML) was initially established as a public sector enterprise after the independence of Republic of Rhodo (hereinafter referred to as Rhodo) in the mid-twentieth century. Its flagship product was Pushpak, and buses named Garuda which became the preferred means of mass transit. The sole and principal manufacturing unit of DML is situated in the suburbs of the capital city of Northern Province, Shivpuri on the banks of the River Asli and it remained profitably operational for the first few decades of its existence. In the meantime, there was a growing concern in the international community regarding the degradation of environment, which led to various international treaties and conferences on environmental safety norms in which Rhodo was an active participant. In 1991, Rhodo, faced with an impending foreign exchange and balances of payment crisis, relaxed its import regime, which resulted in the entry of foreign automobile companies into Rhodo and people started opting for their products over DML’s products. Thus, sales dipped for DML and the government intervened by setting up ancillary units (tyre, lube & lubricant, paint & coolant) to manufacture the spare parts onsite, and injected funds to create updated and efficient components for the automobiles. The condition of DML, however, did not improve and its disinvestment process started in 2005, at the end of which DKS Enterprises held 30%, VS Motors held 21% and 49% was held by the government. After the private acquisition of DML, there has been a consistent rise in the value of the stock on the National Stock Exchange. -THE CONTROVERSIESA. The factory of DML, ever since its inception, discharged all its trade effluents in the river Asli. Fifty miles down the river from where the factory is situated, the river Asli created a delta the Mohana which is an internationally recognised important biosphere reserve. In 2015, certain drastic changes were observed in the flora and fauna, and the health of the natives of this region – IX | P a g e [Memorial for Petitioner]

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i. The over-ground breathing roots of the deltaic mangroves were found plugged with sludge resulting in withering and death of vast patches of mangrove forests. ii.

Bloated bodies of dead riverine dolphins unique to the Mohana delta, which were

a special and endangered variety, floated up on the shores. iii.

The natives started complaining of having developed black sores on various parts

of the body and shortness of breath. The Mohana Biodiversity Conservation Forum (MBCF) conducted an exhaustive research to elicit the reason for these detrimental changes, which revealed that the water of the river contained various hazardous chemicals, some of the major pollutants being sulphur and heavy metals which could have been the cause of death of the dolphins and the black-sore disease. It averred that the major reason for presence of the hazardous chemicals beyond the tolerable limits in the river was due to the emission of effluents by DML and opined that it was responsible for such environmental deterioration. Their findings were independently confirmed by ecological studies conducted by researchers of international eminence. Maya Mehta, a prominent green crusader, took up the cause of the MBCF and demanded a thorough inspection of the trade effluents and plant facilities of the DML or a complete closure of the plant until such findings came out, but no action was taken. B. The government of Republic of Rhodo had switched to the Euro IV norms in 2010, and had declared to opt for Euro V norms by 2015 and Euro VI norms by 2020. At the end of 2014, the government decided to skip directly to Euro VI norms by 2020. By mid-2015, the air pollution levels in the country had risen dauntingly and the government, after proper consideration and deliberation, and under the influence of various environmental conservation pressure groups, opted to switch from Euro IV to Euro VI norms from 1 January 2016. It issued a directive to that effect in October 2015 strictly ordering all automobile manufacturing companies to desist manufacture and sale of all vehicles which do not comply with the new norms. The DML manufactured only three vehicles namely Pushpak Hatchback and Pushpak Sedan among cars and Garuda Premium bus which were non-compliant. The Board of Directors of X|P a ge [Memorial for Petitioner]

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DML held a meeting on 1 November 2015 at which it was found that necessary modifications of the products would require at least eight months, and till then, they would have to lay off workers and forced to stop both manufacturing and sale of their products, incurring huge losses. -THE LEGAL PROCEEDINGSA. Ms. Mehta filed a Public Interest Litigation (PIL) in the HC on 16 November 2015. She cited expert analyses on the effluent and emission figures and photographic and documentary evidence of the morphological and physiological changes in the deltaic ecosystem. She alleged the reason for the drastic shift in the ecological balance of the deltaic region to be the discharge of noxious effluents by the DML plant. She sought to recover damages from the DML to the natives suffering from black sores and a writ of mandamus to be issued to the State Pollution Control Board (SPCB) to close the DML plant. The HC directed the SPCB to conduct an examination of the trade effluents discharged by the plant and report the same to the court within 3 weeks. The HC, in its final judgment dated 21 December 2015, held that the report of the PCB revealed that effluents discharged by the plant contained many chemicals beyond the prescribed limits. After this examination, the Court ordered the company to pay damages worth Rs.10 crores to the aggrieved natives. It also opined that if the plant was closed, it would render about 45000 employees unemployed, and that it would leave around 2 lac family members of these employees in misery, hunger and squalor. Hence, it did not issue a directive to shut the plant. Ms. Mehta and the aggrieved natives were dissatisfied with the damages awarded and in the subsequent week, she filed a SLP before the SC seeking enhancement of the awarded damages and closure of the plant, which was admitted under SLP 031/2016. B. The directors of DML considered the government directive to be violative of their fundamental rights and moved the High Court of Shivpuri (hereinafter referred to as HC) on 1 December 2015 seeking the issuance of writ of mandamus to get the impugned directive annulled. The writ petition was admitted as WP(C) 9813R2015. The petitioner alleged that the directive was unconstitutional as it violated their freedom to trade and profession and the right to livelihood of their employees and the HC ruled in their favour. XI | P a g e [Memorial for Petitioner]

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The aggrieved Central Government filed an SLP the Supreme Court of Rhodo (hereinafter referred to as SC) on 22 December 2015 which was admitted as SLP 8015/2015. C. After a couple of hearings, SC decided to club SLP 031/2016 and SLP 8015/2015 as they had the same subject matter and the same parent company, and because Ms. Mehta was the council for the central government in the latter. The SC has set both of these cases to be decided before a division bench on 1st April 2016 for final hearing.

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ISSUES INVOLVED I.

II.

WHETHER THE SLPS ARE MAINTAINABLE?

WHETHER THE IMPUGNED GOVERNMENT DIRECTIVE SHOULD BE ANULLED?

III.

WHETHER MORE COMPENSATION SHOULD BE AWARDED FOR THE POLLUTION CAUSED BY DML?

IV.

WHETHER A WRIT OF MANDAMUS SHOULD BE ISSUED TO THE STATE POLLUTION CONTROL BOARD TO CLOSE THE PLANT OF DML ALONG RIVER ASLI?

XIII | P a g e [Memorial for Petitioner]

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SUMMARY OF ARGUMENTS I.

THAT THE SLPS ARE MAINTAINABLE

It is humbly submitted the SLPs filed by the Government and Ms. Maya Mehta are maintainable in the interests of the general public.

II.

THAT THE IMPUGNED GOVERNMENT DIRECTIVE SHOULD NOT BE ANNULLED

Firstly, the intent of the impugned Government directive was to uphold the right to life of the citizens of the country. Secondly, the impugned directive had been issued in reference with various international environmental protocols. Thirdly, the impugned directive is in consonance of the Directive Principles of State Policy (DPSPs). It is, therefore, humbly submitted that the impugned directive cannot be held to be arbitrary and should not be annulled.

III.

THAT MORE COMPENSATION SHOULD BE AWARDED FOR THE

DELETERIOUS EFFECTS RESULTING DUE TO THE POLLUTION CAUSED BY THE DML PLANT It is humbly submitted that compensation awarded by the Hon’ble High Court for the deleterious effects resulting due to the pollution caused by the DML plant is inadequate and the amount of compensation awarded should be increased.

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IV.

THAT A WRIT OF MANDAMUS SHOULD BE ISSUED TO THE STATE POLLUTION CONTROL BOARD TO CLOSE THE PLANT OF DML ALONG RIVER ASLI

Firstly, the right to life of the natives of the Mohana region and the citizens of the country at large is being infringed due to the violation of their right to a clean environment caused by the failure of the SPCB to exercise its statutory functions and powers. Secondly, the the decision of the Hon’ble High Court should be reversed as it has erred in its judgement.

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ARGUMENTS ADVANCED I.

THAT THE SLPS ARE MAINATINABLE

1. It is humbly submitted before the Hon’ble Supreme Court that the Special Leave Petition no. SLP 8015/2015 is being filed by the Government of Republic of Rhodo as per the provisions of Article 136 of the Constitution. It is respectfully submitted that the Special Leave to appeal is sought against the judgement of the High Court in the writ petition no. WP(C) 98133/2015, wherein the High Court has erred on substantial questions of law. It is also submitted that in absence of any interference of this Hon’ble Court, substantial and grave injustice will result and the case has features of sufficient gravity to warrant a review of the decision of the Hon’ble High Court. Moreover, the exercise of Article 136 cannot be limited merely because there is an alternative remedy available to the aggrieved party. 2. The Hon’ble High Court annulled the Government directive, seeking to necessitate compliance with regard to the switch to Euro VI norms. The directive of the government was aimed at reducing pollution by issuing stricter emission norms. The rise in the pollution levels to daunting extent necessitated this directive. Article 48A of the Constitution has conferred, on the Government, the DPSP (DPSP) to protect and improve the environment. The directive was also in consonance with the major environmental conventions and treaties, of which Rhodo is an active participant and signatory. 3. The annulment of the directive, by the Hon’ble High Court, was in utter disregard to the environment and the laws. It was passed without taking into account the deteriorating environmental conditions in the country. Under Article 136 of the Constitution, the Supreme Court has the power to interfere in cases of serious miscarriage of justice. This is an extraordinary circumstance in as much as the annulment of the Government directive can have far-reaching and irreversible impact on the environment. 4. It is, moreover, humbly submitted that in the PIL filed by Ms. Maya Mehta, although the Hon’ble High Court held that DML was involved in polluting the river Asli, it refused to close down the factory. It is submitted that the factory cannot be allowed to continue merely on the grounds that it would lead to loss of employment of the employees1 and therefore, the SLP 031/2016 has been filed by Ms. Mehta. DML has been involved in discharging trade 1

M.C. Mehta v. Union of India, AIR 1988 SC 1037. 1|Page [Memorial for Petitioner]

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effluents in the river beyond permissible limits, since its inception, in an utter disregard for law and the natives of the region. The pollution has led to many deleterious changes in the health of the natives. 5. It is respectfully submitted that in order to further the ends of justice, the damages that have been awarded to the aggrieved natives by the Hon’ble High Court need to be increased not merely to compensate them for the medical treatment but also to act as a deterrent for DML from further discharging trade effluents beyond permissible limits. 6. Humbly contending the aforementioned arguments before the Hon’ble Supreme Court in the following contentions, it is submitted that both the SLPs filed before the Hon’ble Court are maintainable in the interests of the general public.

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II.

THAT THE IMPUGNED GOVERNMENT DIRECTIVE SHOULD NOT BE ANULLED

7.

It is respectfully submitted before the Hon’ble Supreme Court that the impugned directive issued by the government should not be annulled. To contend this, a two-pronged argument is humbly presented to the Hon’ble Court as follows. A. THAT THE INTENT OF THE DIRECTIVE IS TO UPHOLD THE RIGHT TO LIFE OF THE CITIZENS OF THE COUNTRY

8. It is humbly submitted to the Hon’ble Supreme Court that the intent of the directive issued by the government should be primarily taken into consideration in the present case, which becomes clear from the facts stated as follows – i. The government had switched to the Euro IV norms in 2010 and declared that they would switch to the Euro V norms by 2015 and to the Euro VI norms by 2020. ii. The government decided in 2014 that they would skip the Euro V norms and switch to the Euro VI norms in 2020. iii. There was a daunting rise in the air pollution levels of the country by mid 2015 and the concerned government, after “proper consideration and deliberation”, and also influenced by the various pressure groups working for environmental conservation, declared that they would switch to the Euro VI norms by 1 January 2016. iv. The government issued a directive to this effect in October 2015 and strictly ordered all automobile companies to desist the manufacture and sale of those vehicles which were non-compliant with the new norms. 9. It is contended on behalf of the government that the action of the government was imperative in the circumstances that had arisen. The condition of air pollution in the country was so grave that some of the country’s leading urban centres had found a place in the list of the most polluted cities on earth by emission and particulate matter count. In such an emergent situation, it is impossible for either the government or the various pressure groups working for environmental conservation to not be concerned about the environmental health of the nation and the quality of life of its citizens.

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10. It is, therefore, submitted that this directive was issued to preserve the essence of the right to life under2 of the Constitution of India, which states – 11. Article 21 talks about the right to life and personal liberty which cannot be restricted except reasonably by procedure established by law. Here, the definition of life has been extended to something more than the survival or animal existence and now includes all those aspects of a man’s life which make it worth living. The Hon’ble Supreme Court in the case of Maneka Gandhi v Union of India3, had expanded the scope of Article 21 on the same lines. It would include all those aspects of life which go to make a man’s life meaningful complete and worth living. 12. As a result of the liberal interpretation of the words “life” and “liberty” in the context of this Article, the scope of Article 21 has been extended so much so that it has almost become a residuary right. 13. The most remarkable feature of the expansion of Article 21 is that many of the nonjusticiable Directive Principles embodied in Part IV of the Constitution have now been resurrected as enforceable fundamental rights through judicial activism. For instance, the right to pollution-free water and air is now considered a fundamental right of the citizens of the country. This was judged by the court in the case of Subhash Kumar v. State of Bihar,4 “Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.” 14. Moreover, it has also been held in the judgement of B.L. Waddehra (Dr.) v Union of India,5that the residents have the constitutional as well as statutory right to live in a clean city. The government, in this case, has issued the directive to ensure this fundamental right of the citizens, because there was already a daunting rise in the levels of air pollution, thereby reducing the quality of life of the people. 15. A corollary of this development is that while the negative language of the Article and word “deprived” was supposed to impose upon the State the negative duty not to interfere with the 2

Article 21, Constitution of India, 1950. Maneka Gandhi v. Union of India, AIR 1978 SC 597. 4 Subhash Kumar v. State of Bihar, AIR 1991 SC 420. 5 B.L. Waddehra(Dr.) v. Union of India, AIR 1996 SC 2969. 3

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life or liberty of an individual without the sanction of law, activist judges have now imposed a positive obligation6 upon the State to take steps for ensuring to the individual a better enjoyment of his life and dignity through steps like the maintenance and improvement of public health7 and the elimination of water and air pollution8. Here, the government directive aims at improving the present deteriorating state of the environment, thereby fulfilling a stated fundamental obligation of a state. 16. In the case of Shantistar Builders, it was held that right to life includes the right to decent environment.9 Thus, the right to clean environment is now a fundamental right which was futher asserted in the case of N.D. Jayal v. Union of India,10 “In a catena of cases we have reiterated that right to clean environment is a guaranteed fundamental right.” 17. The right to have a living atmosphere congenial to human existence is a right to life. Thus, the State is under a fundamental obligation to protect and improve the environment11, especially the most vital necessities like the air, water and soil, which cannot be allowed to be misused and polluted so as to reduce the quality of life enjoyed by others. It is the risk of harm to the environment that the government had taken into consideration when it issued the directive to prevent air pollution through more stringent rules. 18. The risk of harm to the environment or to human health is to be decided in public interest, according to the “reasonable person’s” test. Life, public health and ecology have priority over unemployment and loss of revenue, but a balance has to be struck between development and environmental protection12. In the present case, this balance has in no way been disturbed by the government directive. In the directive, the government does not ask for the closure of all the automobile companies manufacturing vehicles non-compliant with the new norms, but for the prohibition of sale of such vehicles for the improvement of the environment. Thus, the government has tried to balance the need for development along with its fundamental obligation to provide a clean environment for the citizens, but has prioritised the environment

6

Vincent Panikurlangara v. Union of India, AIR 1987 SC 990. Unni Krishnan J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178. 8 Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652. 9 Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630. 10 N.D. Jayal v. Union of India, AIR 2004 SC 867. 11 T.N. Godavarman Thirumalpad v. Union Of India & Ors., AIR 2003 SC 724. 12 M.C. Mehta v. Union of India, AIR 2004 SC 4016. 7

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preservation over the loss of employment and revenue, which are indirect results of the implementation of the directive. 19. Hence, it is submitted that the government directive cannot be considered arbitrary as the sudden action that is taken is due to a emergent circumstances and it was the duty of the government to place the rights of its citizens above anything else. B. THAT THE DIRECTIVE ISSUED WAS IN CONSONANCE WITH THE DIRECTIVE PRINCIPLES OF STATE POLICY 20. It is humbly submitted that the directive issued by the government is in consonance with the DPSPs. It is further submitted that the government has issued this directive in compliance with the Constitution13, which states that – 21. Article 48A therefore, mandates that it is the duty of the State to apply these principles in making laws and in understanding the scope and purport of the fundamental rights guaranteed by the Constitution, especially under the Articles 14 and 21, as well as the laws enacted by the Parliament and the State Legislatures. 22. It is to be noted that there is no disharmony between the DPSPs and the Fundamental Rights, because they supplement each other in aiming at the same goal of the establishment of a welfare state, which is envisaged in the Preamble14. The Court in the judgement of Chandra Bhawan Boarding and Lodging v. State of Mysore15 held that“The provisions of the Constitution are not erected as barriers' to progress. It is a fallacy to think that in our Constitution there are only rights and no duties There is no conflict between Part III and Part IV of

the Constitution which are

complementary and supplemental to each other.” 23. Thus, they are not exclusionary but complementary to each other16. It is submitted that the government directive issued also follows this principle because a DPSP was being used to further the interests of the general public in accordance with a Fundamental Right, the Right to Life. 13

Article 48A, Constitution of India, 1950. Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461. 15 Chandra Bhawan Boarding and Lodging v. State of Mysore, AIR 1970 SC 2042; State of Kerala v. Thomas, N.M., AIR 1976 SC 490. 16 State of M.P. v. Pramod Bhartiya, AIR 1991 SC 286. 14

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24. It is submitted that whenever an action of the State is in consonance with the provisions laid down in the DPSPs, the same is considered to be reasonable action, and also that even though the implementation of a Directive Principle may cause hardship to a few individuals, it should be upheld in the larger interests of the community17 “The Act seems to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. If in this process a few individuals suffer severe hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr.” 25. In the present case, the government has similarly issued the directive in the larger interests of its citizens which gained priority over the rights of the employees of DML. 26. It is submitted that the provisions of Article 48A have to be construed as a part of the principle of Article 21 of the Constitution18. Article 48A is to be read with Aritcle 51A and these are fundamental in understanding the scope of Article 21. 27. DPSPs are generally not legally enforceable as is enumerated in Article 37 of the Constitution19, which states – “The provisions contained in this Part [Part IV] shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” 28. Thus, reading Article 48A with the Article 2120, the Hon’ble Supreme Court had concluded that although the Article is not judicially enforceable by itself, it becomes enforceable through the expansion of the interpretation of Article 21, which now guarantees right to clean environment under the ambit of right to life.

17

Sonia Bhatia v. State of U.P., AIR 1981 SC 1274; Laxmi Khandsari v. State of U.P., AIR 1980 SC 873. Intellectuals Forum, Tirupathi v. State of A.P., AIR 2006 SC 1350. 19 Id. 20 Subhash Kumar v. State of Bihar, AIR 1991 SC 420; Balram Kumawat v. Union of India, AIR 2003 SC 3268 18

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29. Hence, it is submitted that the directive issued by the government was in consonance with Article 48A of the Constitution, which enumerates the Directive Principles for State Policy and that inherently renders it to be a reasonable action on the part of the government. C. THAT THE IMPUGNED DIRECTIVE WAS IN KEEPING WITH THE MUNICIPAL LAWS OF THE COUNTRY 30. It is humbly submitted before the Hon’ble Supreme Court that the impugned directive is in keeping with the municipal laws of the country, namely, the Environmental Protection Act, 1986. 31. The Section 3 of the Environmental Protection Act, 1986 enumerates the power of the Central Government to take measures to protect and improve the environment as follows – (1) Subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. (2) In particular, and without prejudice to the generality of the provisions of subsection (1), such measures may include measures with respect to all or any of the following matters, namely – (iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever: 32. This Section explicitly states that the Government can undertake any measure to protect and improve the environment, including measures like laying down standards for emission, as has been done in the impugned directive. It is thus submitted that this directive was issued under the ambit of this Act. D. THAT THE IMPUGNED DIRECTIVE WAS IN PURSUANCE OF INTERNATIONAL PRINCIPLES OF ENVIRONMENTAL LAW 33. It is respectfully submitted before the Hon’ble Supreme Court that the directive that was issued by the government was in pursuance with the internationally established principles of

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environmental law, and should, therefore, be held to be in the best interests of the citizens as well as the environment of the nation. 34. As has already been mentioned in the facts, Rhodo was an “active participant”21 in various significant treaties, conferences and conventions such as Stockholm Conference, 1972, Kyoto Protocol, 1992, Rio Summit, 1992, etc. but had subsequently passed various legislations to that effect including an amendment to its Constitution. 35. It is thus contended that the government of Rhodo has always been active in pursuing international principles for environmental law, and the impugned government directive was also issued in pursuance of these principles. i.

Adherence To The Precautionary Principle

36. It is submitted that the impugned directive was issued keeping the this principle in mind. The Precautionary Principle was stated in Article 7 of the Bergen Ministerial Declaration on Sustainable Development in the ECE Region, May 199022. It reads as followsEnvironmental measures must anticipate, prevent and stack the causes of environment degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as reason for postponing measures to prevent environmental degradation. 37. The Precautionary Principle requires that, if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to control that activity now rather than to wait for incontrovertible scientific evidence. This principle is expressed in the Rio Declaration, which stipulates that, where there are “threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.” 38. In the landmark case of M.C Mehta v. Kamal Nath23, the Hon’ble Supreme Court held that “The "Precautionary Principle" - in the context of the municipal law - means:

21

Moot Proposition, ¶5. Article 7, Bergen Ministerial Declaration on Sustainable Development in the ECE Region, May 1990. 23 M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388. 22

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(i) Environment measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) The "Onus of proof" is on the actor or the developer/industrialist to snow that this action is environmentally benign.” 39. Thus, the directive issued by the government was under the ambit of this principle as there was an emergent threat to public health due to the daunting rise in the levels of air pollution in the country, and a precautionary step was required to prevent the same from continuing. ii.

Adherence To The Doctrine Of Public Trust

40. The Doctrine of Public Trust was first enunciated by the US Courts. The doctrine says that natural resources meant for public use and enjoyment are held by the State as the trustee of the public, and can only be disposed of in a manner that is consistent with the nature of such a trust24. The State, as a trustee, is under a legal duty to protect the natural resources25. This means development and environmental protection should go hand in hand, according to this principle. 41. The doctrine is first mentioned in M.C. Mehta v Kamal Nath26 where the Supreme Court applied it with regards to the protection and preservation of natural resources. In K. M. Chinnappa v. Union of India27, the Supreme Court held that the pristine glory of the natural resources cannot be allowed to be eroded or encroached unless the courts find it necessary in good faith for public good and in the public interest.

24

Intellectuals Forum, Tirupathi v. State of A.P., AIR 2006 SC 1350; M.I. Builders(P) Ltd. V. Radhe Shyam Sahu, (1999) 6 SCC 532; M.C. Mehta v. Kamal Nath (1997) 1 SCC 388. 25 KR Shenoy v. Chief Officers, Town Municipal Council, AIR 174 SC 2177. 26 M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388. 27 K.M. Chinnappa v. Union of India, AIR 2003 SC 724. 10 | P a g e [Memorial for Petitioner]

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iii.

Adherence To The Principle Of Sustainable Development

42. It is submitted that the Principle of Sustainable Development was introduced by the World Commission on Environment and Development in 1987 where it was defined as – Development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs. 43. The Supreme Court of India observed that the principle of sustainable development should be followed and that there is a need to find a balance between the developmental needs and environmental degradation28. 44. It is submitted that the adherence to this principle is now a constitutional requirement and it is the duty of the State under the Constitution to devise and implement a coordinated programme to meet its obligation of sustainable development based on inter-generational equity29. E. THAT THE IMPUGNED DIRECTIVE WAS NOT IN VIOLATION OF ANY FUNDAMENTAL RIGHT 45. It is respectfully submitted before the Hon’ble Supreme Court that the impugned directive was not in violation of any of the Fundamental Rights as mentioned under the Part III of the Constitution of India. It is further submitted that the impugned directive imposes only reasonable restrictions on the Fundamental Rights granted to the citizens of the country. i.

That There Was No Violation Of Right To Trade

46. It is submitted that there was no violation of the Right to Trade guaranteed to the Directors of DML under Article 19(1)(g)30 since the restriction imposed by the directive was reasonable. 47. It is further submitted that the restriction imposed by the impugned directive was that all automobile companies were prohibited from the manufacture and sale of all vehicles which did not comply with the newly introduced Euro VI norms. It is contended that it was imposed in public interest due to the daunting rise in air pollution in 2015.

28

Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664. T.N. Godavarman Thirumulpad v. Union of India, (2008) 2 SCC 222. 30 Constitution of India. 29

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48. It is also submitted that the directive is not in violation of Article 19 because it satisfies the test of reasonableness. To find out if a restriction is reasonable, one has to take into consideration – a. The DPSPs. b. Prevailing social values as well as social needs which are intended to be satisfied by the restrictions. c. Restrictions must not be of an excessive nature so as to go beyond the requirement of the interests of the general public. d. There must be a direct and proximate nexus or reasonable connection between the restrictions imposed and the object sought to be achieved.31 49. It is contended that in the present case, the directive is in consonance with the DPSPs and such a restriction can be considered ‘reasonable’ within the meaning of Clauses (2)-(6) of Article 1932; that it is in keeping with the social need of reducing the quantum of air pollution; that it is not in excess of the public interest since the Government is trying to protect the citizens from the harmful health effects of the rising levels of air pollution by introducing the Euro VI norms and a restriction which is commensurate with the need for protection of the public cannot be said to be unreasonable33, even though it causes hardship in individual cases34. 50. It is further contended that there is a direct and proximate link between the directive issued and its object, that is, to control the rising quantum of air pollution in the country since the implementation of the Euro VI norms will directly attack one of the causes of the rising levels of air pollution and help in restricting the rise in the near future. It is, therefore, submitted that the restriction has a rational connection with the object sought to be achieved by the law. 51. It is also contended that a restriction cannot be regarded as unreasonable merely because the object could have been feasibly achieved by an alternative scheme35 or because, in a given

31

Durga Das Basu, Shorter Constitution of India 1 257 (14th edition, 2015). Pathumma v. State of Kerala, AIR 1978 SC 771. 33 State of Maharashtra v. Rao Himmatbhai Narbheram, AIR 1970 SC 1157. 34 Sivarajan P.V. v. Union of India, AIR 1959 SC 556. 35 Laxmi Khandsari v. State of U.P., AIR 1981 SC 873. 32

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case, it operates harshly on a person or some persons36, and in such a case, a Government policy in public interest would override the business interest of an individual37. 52. It is submitted that in the present case too, the technicalities of the impugned directive or its interference with the business interests of an individual or some individuals will not render it unconstitutional. ii.

That There Is No Violation Of Right To Life

53. It is submitted that there is no violation of the Right to Life of the employees of the DML under Article 21 of the Constitution under the ambit of Right to Livelihood. 54. It is further submitted that Right to Livelihood is now an aspect under the extended interpretation of this Article which defines life as something more than survival or animal existence, thereby including the right to human dignity38. Since, to live with dignity, a person should have a minimum income, hence, the Right to Livelihood is incorporated in the Right to Life. 55. It is now contended that the restriction imposed on DML is not violative of Article 21 since life, public health and ecology have priority over unemployment and loss of revenue as held by the Hon’ble Court in the case M.C. Mehta v. Union of India (Kanpur Tanneries)39 . 56. It is, therefore, submitted that the impugned directive is not in violation of Article 21 because the interest of the public should always be placed above the interests of a few individuals.

36

Krishnan Kakkanth v. Govt. of Kerala, AIR 1997 SC 128. State of Orissa v. Radhey Shyam Meher, AIR 1995 SC 855. 38 Francis Coralite Mullin v. Union Territory of Delhi, Administrator, AIR 1981 SC 746. 39 M.C. Mehta v. Union of India, AIR 1988 SC 1037. 37

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III.

THAT MORE COMPENSATION SHOULD BE AWARDED FOR THE POLLUTION CAUSED BY DML

57. It is humbly submitted before this Hon’ble Court that due to the discharge of effluents by the DML plant in the river Asli, it has led to the degradation of flora and fauna and the health of the natives in the surrounding regions. The enterprise, since its inception, has discharged all its effluents in the river which has led to the changes being observed in the Mohana region. The alteration has been seen in three fieldsi. Firstly, it has affected the flora, causing to the over ground breathing roots of the mangroves to be plugged with sludge. This has led to the withering and death of the mangroves. ii. Secondly, it has affected the fauna of the region. The endangered riverine dolphins which are unique to the Mohana region have been found dead and their bodies have floated up on the shore. iii. Thirdly, deleterious changes have also been observed in the health of the natives. They have started complaining about shortness of breath and have even developed black sore on various parts of the body. 58. Further, it is respectfully submitted before the court that the researches carried on by observing scientists and activists of the MBCF found out the major pollutants of the river to be sulphur and heavy metals and concluded that this was due to the effluent discharge by the DML plant. It has further been concluded that this could have led to the death of the endangered dolphins. The findings of MBCF were even confirmed by independent ecological studies which had been conducted by eminent international researchers. 59. In the light of the above findings, it is further submitted that DML was also negligent in so far as the discharge of trade effluents in the river Asli, beyond the permissible limits, is concerned. 60. Negligence has been defined as the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the

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conduct of human affairs would do, or doing something which a prudent and reasonable man would not do40. 61. This definition of negligence was extended by the Hon’ble Supreme Court in the case of Poonam Verma v. Ashwin Patel41 and has been invariably cited in Indian cases42. In the judgement, the court propounded three constituents of negligence viz., legal duty to take care, breach of the said duty and consequential damages. 62. It is humbly submitted that the respondents, DML, owed a duty of care towards the natives of the Mohana region. DML had set up ancillary units including a tyre, lube and lubricant factory and a paint & coolant manufacturing unit. These units involve the use of toxic materials. 63. In furtherance of the above submission, it is contended that it was reasonably foreseeable by DML that the discharge of toxic effluents in the river Asli can be detrimental to the health of the natives of the region. This principle of foreseeability was laid down by Lord Atkin in the case of Donoghue v. Stevenson43. As Lord Atkin said, “You may take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”44 64. It is humbly submitted that due to the noxious trade effluents discharged by DML, deleterious effects became evident on the health of the natives of the region. The natives developed black sores on various parts of the body and suffered from shortness of breath. These changes were due to the presence of sulphur and other heavy metals which were way beyond the tolerable limits in the river Asli. The findings of MBCF, which had been confirmed by international researchers, have stated that DML was responsible for the presence of sulphur and heavy metals in the water and, thus, for the adverse effects on the natives. It is also submitted that the report of the PCB had also held that DML was responsible for the pollution of the river and the Hon’ble High Court held that that was the cause of the deleterious effects in the Mohana region. From these facts, it is contended that there was a breach of duty on the part of DML as it failed to exercise reasonable degree of care while dealing with toxic waste.

40

Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781. Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111. 42 Jacob Mathew v. State of Punjab, AIR 2005 SC 3180. 43 Donoghue v. Stevenson, 1932 AC 562. 44 Id. 41

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65. It is contended that the breach on DML’s part was the direct cause of the adverse effects on the health of the natives. There is a clear link between the two incidents as has been established by the reports of the PCB, since there was no other incident in that time period which could have contributed to the effects that have been observed in the Mohana region. 66. The failure to exercise reasonable degree of care that DML owed to the natives while dealing with toxic effluents, and the consequential effect establishes a clear case of negligence on the part of DML. 67. As already submitted, the report of the PCB submitted to the Hon’ble High Court revealed that the plant has been discharging effluents into the river that contain various chemicals way beyond the prescribed limits and the Hon’ble Court correctly concluded from the same that it was due to this heavy discharge of pollutants in the river that the flora and fauna of the Mohana region was badly affected and the natives had developed the black sore disease, and held that it was necessary to grant compensation to such natives. Respectfully submitting to the reasoning of the Hon’ble Court, it is contended that the damages awarded by the court were inadequate with reference to the facts of the present case. 68. It is humbly submitted before that court that the compensation granted by the Hon’ble High Court of Judicature of the Northern Province of Shivpuri, that is, Rs. 10 crore is insufficient on the following grounds – a. The compensation awarded by the Hon’be High Court was arbitrary because it did not rely on any assessment of damages by any authoritative body, thereby not appreciating various factors which require immediate attention and require additional funds to be resolved. It is contended that such assessment be done before any award of compensation. b. It is respectfully submitted that the compensation is insufficient since it has been granted to the natives only on the ground of their suffering from the black sore disease and not from the shortness of breath which is also a result of the pollution caused by the DML plant. c. This compensation has only been granted to the aggrieved natives of the region, but no compensation has been granted for the degradation of flora and fauna of the Mohana region. Additional compensation needs to be paid for protection of the 16 | P a g e [Memorial for Petitioner]

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mangroves as well as the endangered species of riverine dolphins present in the area. In the landmark case of Union Carbide Corporation v. Union of India45 the court held that, In some cases the reaction manifested contemporaneously and in others the effect was to manifest itself much later. So, in the present scenario, the Court should grant compensation for any possible reactions of the pollutants on other people who are not yet affected but due to exposure, their health may deteriorate. d. There is a need to prevent similar behaviour in future on the part of defendant. Hence, there is a need to award exemplary damages with an objective of punishing the wrongdoer for his outrageous nature or conduct which is reflected in his persistence recurrence of the wrongful activity46. This is evident from the fact that DML has been discharging its trade effluents in river Asli since its inception, in an utter disregard for law. e. Another basis for demanding additional compensation is that the pollution caused by the company has disturbed the ecological harmony of the region and the original quality of life of the flora and fauna needs to be restored. The restoration process of the habitat will require additional funds, for which the compensation paid by DML should be increased. f. Additional funds are needed to restore the purity of the river Asli, which has been polluted by DML since its inception. So, to refurbish the water back to its original state, the damages being awarded should be increased. This would lead to creation of safe environment for the natives to survive. The most basic element needed for survival is water and in the case of A.P. Pollution Control Board v. Prof. M.V.Nayudu47, the same was held, “Thus, the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens.”

45

Union Carbide Corporation v. Union of India, AIR 1990 SC 273. J.C. Galstaun v. Dunia Lal, (1905) 9 CWN 617. 47 A.P. Pollution Control Board v. Prof. M.V. Nayudu, AIR 1999 SC 812. 46

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69. Further, it can even be said that the financial position of a company should not matter while determining the quantum of compensation. The company responsible for discharging the effluents should not be allowed to take the excuse that due to financial constraints the damages cannot be paid and the exploitation of the environment continues. A similar idea had been stressed in the case of M.C Mehta v. Union of India (Kanpur tanneries)48 where the Apex Court held that – The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. 70. Finally, the aggrieved natives are dissatisfied with the present amount of compensation because they feel that the gravity of the black sore disease is being undermined by the Hon’ble High Court. The black sore disease is a disease of serious gravity and a large amount of funds would be required to treat all the natives affected. The Court should also consider the pain and trauma that the natives have undergone without any mistake or negligence of their own. DML has been allowed to run regardless of the fact that it has been dumping the waste in the river Asli and polluting it since the inception, for the motive of profit. But while achieving its motive for profit it has caused mammoth harm to not only flora and fauna but even human lives. In M.C Mehta v. Union of India49 that is the Oleum Gas Leak Case, a Constitution Bench held that any enterprise which is involved hazardous activity can be allowed to function only on the condition that it indemnifies all those who suffer on account of such hazardous activity. 71. It is, moreover, contended that DML should be held liable under the Polluter Pays Principle, which basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This involves environmental cost as well as direct cost to the people or property. It also covers costs incurred in avoiding pollution and not just the immediately tangible. In the case M.C. Mehta v. Kamal Nath and Ors50., it was stated that – The Court while awarding damages also enforces the "POLLUTER PAYS PRINCIPLE" which is widely accepted as a means of paying for the cost of

48

M.C. Mehta v. Union of India, AIR 1988 SC 1037. M.C. Mehta v. Union of India, AIR 1987 SC 965. 50 M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997. 49

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pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment. 72. It is therefore submitted that since DML has been polluting the river Asli for so many years, it should be held liable under this principle and the Court should levy exemplary damages like it did in the case of M.C. Mehta v Kamal Nath51 by increasing the compensation granted by the Hon’ble High Court so as to deter other such flouting of environmental rules in the future.

51

M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997. 19 | P a g e [Memorial for Petitioner]

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IV.

THAT A WRIT OF MANDAMUS SHOULD BE ISSUED TO THE STATE POLLUTION CONTROL BOARD TO CLOSE THE PLANT OF DML ALONG RIVER ASLI

73. It is humbly submitted to the Hon’ble Supreme Court that a writ in the nature of mandamus issued to the SPCB to order the closure of the plant of the DML situated along the river Asli and discharging effluents in it, thereby causing widespread pollution. This issue shall be contended from three perspectives which are stated as follows – A. THAT THE RIGHT TO LIFE OF THE NATIVES HAS BEEN INFRINGED BY THE STATE 74. It is respectfully submitted before the Hon’ble Supreme Court that the right to life of the natives of the Mohana region under Article 21 of the Constitution has been infringed. Article 21 of the Constitution states that – No person shall be deprived of his life or personal liberty except according to procedure established by law. 75. In Article 21, the definition of life has been extended to something more than the survival or animal existence and now includes all those aspects of a man’s life which make it worth living52. As a result of the liberal interpretation of the words “life” and “liberty” in the context of this Article, the scope of Article 21 has been extended so much so that it has almost become a residuary right. 76. It is contended that this infringement has taken place in the ambit of the right to a clean environment, which has been recognised as an important aspect of the right to life, and as a fundamental right in itself 53. 77. As mentioned in the facts, Ms. Mehta had sent a number of representations to the to the SPCB and the concerned government authorities with detailed evidence of massive air and water pollution caused by the DML plant and its widespread deleterious consequences on both humans and nature, and demanded a thorough inspection of the trade effluents and the plant facilities and a complete closure of the plant until such were published. However, 52 53

Maneka Gandhi v Union of India, AIR 1978 SC 597. N.D. Jayal v. Union of India, AIR 2004 SC 867. 20 | P a g e [Memorial for Petitioner]

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neither was a thorough and substantive inquiry ordered by the PCB nor was an order of closure of the plant issued. 78. It is, therefore, contended that the SPCB did not perform its statutory functions of regularly inspecting trade effluents54 being discharged by industries as imposed by the Section 17(1)(f) of the Water (Prevention and Control of Pollution) Act, 1974. 79. This Section imposes a function on the SPCB to inspect the effluent discharge of the industries in the territory of the State and this function has not been performed by the SPCB in the instant case. 80. It is also submitted that the Section 32 of the Water (Prevention and Control of Pollution) Act, 1974 provides the SPCB with the emergency powers of even completely prohibiting a person from “discharging any poisonous, noxious or polluting matter into the stream or well or on land”55 when it is evident to it that any polluting matter is present in any stream. 81. This Section empowers the SPCB to act in case it feels that there is the presence of any emergency situation with reference to the pollution of any “stream”, which, according to the definition given in the Act, includes rivers56. 82. It is also submitted that the SPCB has been provided with the powers to issue directions to close down an industry, operation or process as per the Section 33A of the Water (Prevention and Control of Pollution) Act, 197457. 83. It is also contended that although the Section 33 of the Water (Prevention and Control of Pollution) Act, 1974 contains the provision that the SPCB, on becoming aware of any pollution taking place, can approach the judiciary for the issuance of an order restraining the same. The Section 33 of the Water (Prevention and Control of Pollution) Act, 1974 reads as – (1) Where it is apprehended by a Board that the water in any stream or well is likely to be polluted by reason of the disposal or likely disposal of any matter in such stream or well or in any sewer or on any land,

54

§17(1)(f), Water (Prevention and Control of Pollution) Act, 1974. §32, Water (Prevention and Control of Pollution) Act, 1974. 56 §2, Water (Prevention and Control of Pollution) Act, 1986. 57 §33A, Water (Prevention and Control of Pollution) Act, 1974. 55

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or otherwise, the Board may make all application to a court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class, for restraining the person who is likely to cause such pollution from so causing. 84. In the present case, although Ms. Mehta had sent proof of the pollution being caused by the DML plant to the SPCB, no action was taken was taken by them under the Sections 32, 33 or 33A. Thus, it is contended that the SPCB had not performed its duty to protect the environment from pollution, and this led to the deprivation of the natives of the Mohana region of a clean environment, thereby infringing their right to life. 85. It is, moreover, submitted that the Article 12 of the Constitution states that – In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. 86. Thus, according to Article 12, a body would answer the definition of State for this Part if it is financially, functionally and administratively dominated by or under all pervasive control of the government. The Article gives us an extended meaning to the words “the State”, which will not only include the Executive and Legislative organs of the Union and the States, but also local bodies as well as “other authorities”58 which include the ‘instrumentalities’ or ‘agencies’ or bodies or institutions which discharge public functions of the governmental character59. 87. It is submitted that it was the intention of the framers of the Constitution to treat such authority which has been created by law and which has certain powers to make laws, to make rules and regulations, to be included in the term “other authorities” as found in this Article60. In the present case, since the PCBs are created under the Environment Protection Act, 1986, the SPCB falls under the ambit of the term “other authorities” in the Article 12. Thus, it can be held in the present case that “the State”, as interpreted from Article 12, is liable for the violation of the right to a clean environment of the natives.

58

Basheshar Nath v. I.T. Commisioner AIR 1959 SC 149 (158). Ramana Dayaram Shetty v. I.A.A.I., AIR 1979 SC 1628; State of Punjab v. Raja Ram, AIR 1981 SC 1694. 60 Zee Telefilms Ltd. V. Union of India, AIR 2005 SC 2677. 59

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88. The expansion of the ambit of Article 21 is has also caused many of the non-justiciable Directive Principles embodied in Part IV of the Constitution to have been resurrected as enforceable fundamental rights through judicial activism. For instance, the right to pollutionfree water and air61 is now considered a fundamental right of the citizens of the country. It is this newly enumerated aspect of right to life that Ms. Mehta is contending to have been violated. 89. A corollary of this development is that a positive obligation62 is now imposed upon the State to take steps for ensuring to the individual a better enjoyment of his life and dignity through steps like the maintenance and improvement of public health63 and the elimination of water and air pollution64. In the SLP 031R2016, it is contended that the State fulfil this obligation through its instrumentality, the State Pollution Control Board which has refused to utilise its powers to protect the natives of the Mohana region from the deleterious effects of the pollution caused by the DML plant although the same has already been brought to their notice by Ms. Mehta. 90. It is submitted that the State owes some fundamental duties to its citizens which are mentioned as the DPSPs under the Part IV of the Constitution of India. Thus, it is the fundamental duty of the State under Article 48A of the Constitution to protect and improve the environment and to safeguard the forests and wildlife of the country65. Article 48A mandates the duty of the State to apply these Principles in making laws and in understanding the scope and purport of the fundamental rights guaranteed by the Constitution, especially under the Articles 14 and 21, as well as the laws enacted by the Parliament and the State Legislatures. 91. Since the SPCB falls under the ambit of “State” according to Article 36 of the Constitution which states – In this Part, unless the context otherwise requires, “the State” has the same meaning as in Part III.

61

Subhash Kumar v. State of Bihar, AIR 1991 SC 420. Vincent Panikurlangara v. Union of India, AIR 1987 SC 990. 63 Id. 64 Mehta M.C. v. Union of India, AIR 1987 SC 1086. 65 Article 48A, Constitution of India. 62

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it is contended that the State has failed in the fulfilment of the duty it owes to the citizens under Article 48A. 92. It is further submitted that the provisions of Article 48A have to be construed as a part of the essence of Article 21 of the Constitution66. DPSPs are generally not legally enforceable as is enumerated in Article 37 of the Constitution, which states – The provisions contained in this Part [Part IV] shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. 93. Reading Article 48A with the Article 2167, however, the Hon’ble Supreme Court had concluded that although the Article is not judicially enforceable by itself, it becomes enforceable through a wider interpretation of Article 21, so that in case of a failure of the foregoing duties, the Supreme Court or a High Court would entertain a petition under Article 32 or 226, as a Public Interest Litigation (PIL) brought by an individual68 or institution in the locality or any social action group69. B. THAT THE DECISION OF THE HIGH COURT WAS ERRONEOUS 94. It is humbly submitted before the Hon’ble Supreme Court that the decision of the Hon’ble High Court should be reversed on the grounds that the Hon’ble High Court has erred on facts and law. 95. As has already been contended, the right to a clean environment, which is now considered to be a fundamental right under Article 21 of the Constitution. of the natives of the Mohana region has been violated by the non-performance of statutory functions of the SPCB. 96. It is submitted that it had been contended before the Hon’ble High Court that a writ in the nature of mandamus be issued to the SPCB to close the DML plant situated along the river Asli, but the Hon’ble had not taken the required action on the grounds that around 45,000

66

Intellectuals Forum, Tirupathi v. State Of A.P., AIR 2006 SC 1350. Subhash Kumar v. State of Bihar, AIR 1991 SC 420. 68 Subhash Kumar v. State of Bihar, AIR 1991 SC 420. 69 Tarun Bharat Sangh Alwar v. Union of India, AIR 1992 SC 514. 67

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employees of the DML would be rendered unemployed and 2 lac more people dependent on these employees would be faced with misery, hunger and squalor70. 97. It is also submitted that in keeping with Article 21, the Hon’ble Supreme Court, while dealing with environmental matters under Articles 32 and 136, and the Hon’ble High Courts, under Article 226, can refer the scientific and technical aspects for investigation and opinion to the statutory expert bodies having a combination of judicial and technical expertise in such matters71. 98. In the present case, the PCB is a statutory body which has expertise in the field of pollution and it is submitted that the Hon’ble High Court has rightly placed complete reliance upon its report in the PIL filed by Ms. Mehta (case law). 99. It is further submitted that although it is acknowledged that the conclusions drawn by the Hon’ble High Court from the report submitted by the PCB are of complete authority, but the petitioners wish to contend that the Hon’ble High Court erred on the law and the facts of the case, due to which it failed to appreciate the grave problems posed by the DML plant to the natural environment and the health of the natives, as well as the citizens at large and failed to take a bold step that would act as a deterrent to any corporation flouting environmental laws in the future. It is thus submitted that the Hon’ble Supreme Court realise the gravity of the situation at hand and order the SPCB to close the DML plant. 100. In this context, it is also contended that the right to have a living atmosphere congenial to human existence is now an aspect of the right to life. Thus, the State is under a fundamental obligation to protect and improve the environment72, especially the most vital necessities like the air, water and soil, which cannot be allowed to be misused and polluted so as to reduce the quality of life enjoyed by others. The risk of harm to the environment or to human health is to be decided in public interest and thus, life, public health and ecology have priority over economic interests like unemployment and loss of revenue. It is, thus, contended that the Hon’ble High Court erred when it placed employment of the employees of the DML over the collective good of the citizens of the country. It is, therefore, respectfully submitted that the Hon’ble Supreme Court, in view of this interpretation of Article 21, prioritise the public

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Moot proposition, ¶22. A.P. Pollution Control Board v. Prof.M.V.Nayudu, AIR 1999 SC 812. 72 T.N. Godavarman Thirumulpad v. Union Of India, AIR 2005 SC 4256. 71

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interest over the interest of a few, that is, the employees of DML and should reverse the erroneous decision of the Hon’ble High Court.

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PRAYER Wherefore, in light of the issues raised, arguments advanced and authorities cited it is most humbly and respectfully requested that this Hon’ble Court to adjudge and declare that: 1. Directive issued by the government should not be annulled. 2. Compensation should be increased. 3. The DML plant should be shut down. In the alternative, pass any other relief which the court may deem fit and proper.

All of which is humbly submitted by Counsels on behalf of the Petitioners

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