Environmental Moot memorial, Study Guides, Projects, Research of Law

Download Environmental Moot memorial and more Study Guides, Projects, Research Law in PDF only on Docsity! TEAM CODE: TMYY THE 3RD NATIONAL MOOT COURT COMPETITION 2020 BEFORE THE HONORABLE SUPREME COURT OF INDIANA IN THE MATTER OF WRIT PETITION NO. ____/ OF 2019 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA) SLYTHERIN……………….……………………………………….…...PETITIONER V. DUCKBURG & CO.…………………………...... ……………………...RESPONDENT & PUBLIC INTEREST LITIGATION NO. ___OF 2019 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA) MR.POTTER…………………….…….………………..………………PETITIONER V. ABC CORP & ANR………………………………………………......RESPONDENTS MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE JUDGES OF THE SUPREME COURT OF INDIANA MEMORANDUM ON BEHALF OF THE RESPONDENT 1 2 INDEX OF AUTHORITIES  CONSTITUTION 1. The Constitution of India  STATUTES 1. The Environment (Protection) Act, 1986 2. The National Green Tribunal Act, 2010 3. Air (Prevention & Control of Pollution) Act, 1981 4. Water(Prevention & Control of Pollution) Act 1974 5. The Public Liability Insurance Act, 1991 6. The Kerala Ground Water(Control & Regulation) Act, 2002  CASES 1. Janata Dal v. H.S. Chowdhary, AIR 1993 SC 892 2. State of H.P v. Student’s parent, Medical College, Shimla, AIR 1985 SC 910 3. Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 4. Kapan v. Jagmohan AIR 1981, SC 126, 25.. 5. Chanan Singh v. Registrar. Co-op Societies, AIR 1976 SC 1821, 6-7. 6. Ramjilal v. Income Tax Officer, AIR 1951 SC 97. 7. BALCO Employees’ Union (Resd.) v. Union of India AIR 2009 SC 350. 8. Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726. 9. PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732. 10. Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159. 11. Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996. 12. Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457. 13. PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732. 5 14. Indian Council for Enviro-Legal Action v. Union of India, (1996)5 SCC 261. 15. N .D. Jayal v. Union of India, (2004) 9 SCC 362. 16. M.C.Mehta v. Union of India AIR 1987 SCR (1) 819. 17. Union Carbide Company vs. Union of India AIR (1989)(1)SCC 674: AIR 1992 SC 248 18. Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446. 19. M.C. Mehta v. Union of India (Shriram Industries Case) AIR 1987 SC 965. 20. M.C.Mehta v. Union of India, AIR 2004 SCW 4033. 21. Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996 SC 2715. 22. A.P.Pollution Control Board v. M.V.Nayudu, AIR 1999 SC 812 23. Research Foundation for Science & Technology & Natural Resource Policy v. Union of India,(2012) 7 SCC 764 24. Rajkot Municipal Corporation v. Manjulben (1997) 9 SCC 552. 25. Narmada BachaoAndolan v Union of India, AIR 2000 SC 3751 26. Karnataka Industrial Areas Development Board v. C. Kenchappa, (2006) 6 SCC 371: AIR 2006 SC 2038 27. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 28. Keshavananda bharati v State of Kerala, AIR 1973 SC 1461 29. M.R.F. Ltd. v. Inspector Kerala Govt. and Others (1998) 8 SCC 227 30. Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttaranchal and others, (2007) 8 SCC 418 31. Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727 32. Kuldeep Singh v. Govt. of NCT of Delhi, (2006) 5 SCC 702 at 712 33. P.T.R. Exports (Madras) Pvt. Ltd. & Ors. Vs. Union of India & Ors, (1996) 5 SCC 268. 34. Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 147 . 35. Kuldip Nayar v. Union of India, (2006) 7 SCC 1, 159 (para 463). 36. Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647. 37. Madurai Coats Private Ltd v. The Appellate Authority, W.P No. 33882 of 2007. 38. BALCO Employees’ Union (Resd.) v. Union of India AIR 2009 SC 350. 39. T.N. Godavarman Thirumulpad v. Ashok Khot, AIR 2006 SC 2007. 40. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388. 41. Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571. 42. Intellectual Forum, Tirupathi v. State of A.P, (AIR 2006 SC 1350) 6 43. Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434. 44. Mrs.Susetha v. State of Tamil Nadu (AIR 2006 SC 2893) 45. P.R Subhas Chandran v. Government of A.P. (2001) (5) ALD 771 (DB) BOOKS 1. M.P.JAIN, INDIAN CONSTITUTIONAL LAW, (6TH ED, LEXISNEXIS BUTTERWORTH WADHWA, 2010) 2. P.RAMANATHA AIYAR, ADVANCED LAW LEXICON, (YV CHANDRACHUD, 3RD ED, LEXISNEXIS BUTTERWORTH WADHWA, 2009) 3. P. LEELA KRISHNAN, ENVIRONMENTAL LAW, LEXIS NEXIS, INDIA, 2008, 3RD EDITION 4. DIVAN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA, OXFORD, 2010, 11TH EDITION 5. JUSTICE T.S. DAOBIA, ENVIRONMENTAL AND PROTECTION LAWS IN INDIA, WADHWA, INDIA, 2005 EDITON, VOLUME I AND II 6. ROBERT AND TOFFLAN WEISZ, CHRONICLES FROM THE ENVIRONMENTAL JUSTICE FRONTLINE, CAMBRIDGE, ENGLAND, 2011, 1ST EDITION 7. S.C. SHASTRI, ENVIRONMENTAL LAW, EASTERN BOOK COMPANY, INDIA, 2008, 3RD EDITION 8. BILL MCGILLIVARY, ENVIRONMENTAL LAW, OXFORD, USA, 2008, 7TH EDITION 9. SHANTI KUMAR, INTRODUCTION TO ENVIRONMENTAL LAW, WADHWA, INDIA, 2008, 2ND EDITION 10. SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY, (2ND ED, OXFORD UNIVERSITY PRESS, 2012) 11. DR. H.N. TIWARI, ENVIRONMENTAL LAW, (3RD ED, ALLAHABAD LAW AGENCY, 2010) 12. DR. S.C. TRIPATHI & MRS. VIBHA ARORA, ENVIRONMENTAL LAW, (5TH ED, CENTRAL LAW PUBLICATIONS, 2013)  WEBSITES REFERED 1. www.manupatrafast.com 2. www.scconline.com 3. www.casemine.com 4. www.indiankanoon.org 7 level in the city has decreased to a considerable level. The city has not felt this crisis as it had another source of water. However, due to the contaminated water of Riverdale, it became unsuitable for drinking. Following this water crisis, ABC Corp. has stopped manufacturing soft drinks and is only selling packaged drinking water across the city of Metropolis. Slytherin is a pan Indiana NGO which advocates and fights for the guarantee of fundamental rights to every citizen. Following the contamination of water in the upper course of Riverdale, Slytherin has filed a Writ Petition No. 19 of 2019 before the Supreme Court of Indiana in January, 2019 against the Duckburg & Co. In the petition Duckburg & Co. contended that the company was conscious enough about the harmful effluents of the industry. Therefore, it had constructed treatment plant which was subsequently damaged due to flood. While Slytherin contended that the company should have taken steps to repair the damaged plant immediately after the flood keeping in mind the hazardous substances being discharged from its company. Following the water crisis in the city of Metropolis Mr.Potter has filed a PIL i.e., W.P. No 239 of 2019 against ABC Corp and the Government of Indiana in July, 2019 before the Supreme Court of Indiana. Mr.Potter has contended that excessive groundwater extraction by the ABC Corp for business purposes amounted to violation of fundamental rights. Thus, the company has not abided by business ethics by affecting the lives of the people. He also contended that, Government is also liable for ABC Corp for the excessive use of such natural resources without considering the future needs. However, ABC Corp has contended that it has never, at any point of time, been deviated from business ethics as during water crisis the company stopped manufacturing soft drinks and started selling drinking water. Slytherin NGO after knowing about the petition filed by Mr.Potter has requested the Supreme Court to club WP No. 19/2019 and W.P. No. 239/2019 since the matters of these two petitions are related to water crisis, the Supreme Court of Indiana has clubbed both the petition and decided to hear the same on 23rd February, 2020. 10 STATEMENT OF ISSUES ISSUE 1: THIS WRIT PETITION IS NOT MAINTAINABLE BEFORE THIS HON’BLE COURT? ISSUE 2: WHETHER THE DUCKBURG & CO HAS ABSOLUTE LIABILITY IN THIS CASE? ISSUE 3: WHETHER EXCESSIVE EXTRACTION OF GROUND WATER AMOUNTED TO VIOLATION OF FUNDAMENTAL RIGHTS? ISSUE 4: WHETHER THE GOVERNMENT OF INDIANA CAN BE MADE LIABLE UNDER THE PUBLIC TRUST DOCTRINE FOR EXCESSIVE GROUNDWATER EXTRACTION BY ABC CORP? ISSUE 5: WHETHER THE EXISTING LEGAL FRAMEWORK GOVERNING GROUNDWATER CONTAMINATION AND EXCESSIVE GROUNDWATER EXTRACTION IS ADEQUATE OR NOT? 11 SUMMARY OF ARGUMENTS ISSUE 1: THIS WRIT PETITION IS NOT MAINTAINABLE BEFORE THIS HON’BLE COURT OF INDIANA. It is humbly submitted before the Hon’ble court that, the present petition filed by the Slytherin a pan Indiana NGO, Mr.Potter is not maintainable; because the Petitioner should have a locus standi first. This “Legal standing” has a quintessential connotation and it is a condition precedent for the maintainability of a Writ Petition before the Court. Therefore, it becomes imperative to establish that the interest of the People which the petitioner is espousing, have legally enforceable rights, recognized under the Constitution of Indiana. As the Supreme Court of Indiana has observed, “The requirement of locus standi of a party to litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.” Therefore, it becomes imperative to establish that the interest of the People which the Petitioner in the instant case is espousing, have legally enforceable rights, recognized under the Constitution of Indiana. ISSUE 2: WHETHER THE DUCKBURG & CO HAS ABSOLUTE LIABILITY IN THIS CASE? Absolute liability is a standard of both tortious and criminal liability which stipulates that… where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule of Rylands v. Fletcher. The rule laid down by the Supreme Court is much wider with respect to the rule laid down by House of Lords. The company while setting up of the plant has already taken permission from the Central Government and has complied with all the provisions. So, Absolute Liability cannot be applied to the present case as it doesn’t have the essential ingredients of such liability. 12 sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like action popularis of Roman law whereby any citizen could bring such an action in respect of a public delict”5 iii. In the present matter it. is highly suspicious about what appears to be a bona fide act by the petitioners, i.e. filing of the present petition because they are relying heavily on the report prepared by themselves. The defendants can in no case be bound by such reports unless it has either authorized an agency to do the same or the Hon’ble Court has directed any agency to do the same. iv. The Hon’ble Supreme Court has cautioned that public interest litigation is a weapon which has to be used with great care and circumspection and that the judiciary has to be careful to see that under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the constitution to the executive and the legislature.6 It was held that when two or more views are possible and after considering them the Government takes a policy decision, it is then not the function of the court to go into the matter afresh.7 v. A writ petition may be liable to be dismissed if it is premature.8 Ordinarily, a Court confines itself to the facts at hand and does not delve into assumptions.9 vi. In the present matter, the union govt. has given permission to setup Chemical industry by Duckburg & Co. in the Gotham City and to extract ground water at the outskirts of the city of Metropolis by the ABC Corp .The govt. went ahead with decision only after looking in to the reports submitted by the Duckburg & Co and ABC Corp. and after they are complying with the Environmental Impact Assessment and the set parameters are being followed. 1.2 NO PRIMA-FACIE CASE FOR BREACH OF FUNDAMENTAL RIGHTS HAS BEEN ESTABLISHED i. The jurisdiction under Article 32 can be invoked only when Fundamental Rights are violated. It has been held that if a right, other than a fundamental right is claimed to 5 Janata Dal v. H.S. Chowdhary, AIR 1993 SC 892 6 State of Himachal Pradesh v. Student’s parent, Medical College, Shimla, AIR 1985 SC 910 7 Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 8 Kapan v. Jagmohan AIR 1981, SC 126, 25.. 9 Chanan Singh v. Registrar. Co-op Societies, AIR 1976 SC 1821, 6-7. 15 be violated then such questions can be addressed only in the appropriate proceedings and not on an application under Article 32.10 ii. The Hon’ble court has again reminded that the only ground on which a person can maintain a PIL is where there has been an element of violation of Article 21, on the human rights or where the litigation has been initiated for the benefit of the poor and the underprivileged who are unable to come to the court due to some disadvantage.11 As per the facts of the case it is well established that the citizens belong to the Gotham city and city of Metropolis, but it is nowhere mentioned that, they are either poor or underprivileged. iii. The environment issues arise because of the unforeseen contingency or the act of god but they were temporary. The defendant’s company’s policies and business ethics were aimed at a greater objective which ultimately will benefit the citizens; hence there is no violation on Article 21 or any other fundamental right guaranteed by the Constitution of Indiana. iv. In the instant case, it is submitted that no fundamental rights of the Petitioners have been violated; therefore, this petition must fail. 1.3 EXHAUSTION OF ALTERNATIVE REMEDIES i. It is humbly submitted that Article 32 is not an absolute right and are subject to the self-imposed restraints evolved by the judiciary. It has been held that since Article 32 confers “extraordinary” jurisdiction, the same must be used sparingly and in circumstances where no alternate efficacious remedy is available.12 The reason for this is two-fold: first, to reduce the increasing pendency of cases13 and second, to inspire faith in the hierarchy of Courts and the institution as a whole.14 Therefore, the Petitioner is required to approach the High Court under Article 226 or the National Green Tribunal before approaching the Supreme Court. ii. Petitioners may contend that the rule of exhaustion of local remedies is unconstitutional and violative of the guarantee in Art. 32(1). However, it is submitted 10 Ramjilal v. Income Tax Officer, AIR 1951 SC 97. 11 BALCO Employees’ Union (Resd.) v. Union of India AIR 2009 SC 350. 12 Avinash Chand Gupta v. Stateof Uttar Pradesh, (2004) 2 SCC 726. 13 PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732. 14 Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159. 16 that the right under Art. 32(1) is not so absolute that no rules of procedure apply to it. Art. 32(1) confers a right to move the SC by "appropriate proceedings". “Appropriate proceedings” interpreted to mean “procedure relating to form, conditions of lodgment of petitions, and compliance with a reasonable directions”.15 iii. Indeed, procedural factors such as res judicata16, delay in filing the petition and parallel proceedings in another Court are considered before entertaining the appropriateness of a particular proceeding. It is submitted that the rule of exhaustion of local remedies is another such procedural guideline and does not violate the right under Article 32. iv. The power of High Court under Art. 226 is wider than the powers of this Court under Art. 32 of the Constitution.17 This Hon’ble Court 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.18 v. Further, in another case, concerning the safety of development project19, this Hon'ble Court transferred the matter to the State High Court as it was expedient. The issues in the instant case are similar and require knowledge and ability to assess local conditions. Therefore, it is submitted that remedy available under Art. 226 is not just an alternative but also, a preferable remedy. vi. Alternatively, the Petitioner also has the option of approaching the National Green Tribunal. It is submitted 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.”20 vii. Therefore, any submission that the NGT cannot enforce rights or protect them adequately is erroneous. Moreover, the NGT is specially equipped to evaluate scientific claims apart from regular civil claims due to the presence of scientific experts on the bench. In fact, the Supreme Court when faced with similar cases, in the 15 Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996. 16 Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457. 17 PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732. 18 Indian Council For Enviro-Legal Action v. Union of India, (1996)5 SCC 261. 19 N .D. Jayal v. Union of India, (2004) 9 SCC 362. 20 Preamble, National Green Tribunal Act (2010). 17 the reasonable foreseeability of the defendant then defendant won’t be held liable as it is essential ingredient for bringing such liability. 2.1 BALANCING SUSTAINABLE DEVELOPMENT THROUGH DUTY TO TAKE CARE AND APPLYING PRECAUTIONARY PRINCIPLE Blewitt,J. ‘Sustainable development is about protecting and conserving the planet’s natural environment and promoting social equity and a degree of economic equality within and between nations.’ i. In the Bichhri Village Case26, the Supreme Court emphasized the importance of the Doctrine of Sustainable Development in the following words, “While economic development should not be allowed to take place at the cost of ecology or by causing wide spread environmental destruction and violation; at the same time, the necessity to preserve the ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice-versa, but there should be development while taking due care and ensuring the protection of environment.” Also the facts of the Bichhri Village Case where absolute liability principle is applied, are different to that of the present case. ii. Adequate measures taken by the industry with respect to having establishing a good treatment plant to treat hazardous waste before disposing it into water and moreover the chemical industry has permit provisions from the central government. In negligence there is the duty of care imposed upon the defendant is based upon the care that an ordinarily prudent man would have taken to avoid any kind of damage, if any accident happens which is outside the reasonable foreseeability of the defendant then defendant won’t be held liable. The company while setting up of the plant has already taken permission from the Central Government and has complied with all the provisions. So, the company cannot be held negligent as per the provisions. iii. Chief Justice Bhagwati was of the opinion that, we cannot adopt the policy to do away with chemical or hazardous industries as they also help to improve the quality of life, a sin this case this factory, was supplying chlorine to Delhi Water Supply 26 Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446. 20 Undertaking which is used to maintain the wholesomeness of drinking water. Thus industries even if hazardous have to be set up since they are essential for economic development and advancement of wellbeing of the people. iv. Also it is quoted that, "We can only hope to reduce the element of hazard or risk to the community by taking all necessary steps for locating such industries in a matter which would pose least risk of danger to the community and maximizing safety requirements in such industries " Thus the Supreme Court was of the opinion that total ban on the above industry of public utility will impede the developmental activities.27 So, there should be some set of parameters and duty of care that should be taken while establishing such industries. v. The Supreme Court held that the development and the protection of environment are not enemies. If without degrading the environment or minimizing adverse effects thereupon by applying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable development, in that eventuality, the development has to go on because one cannot lose sight of the need for development of industries, projects etc. including the need to improve employment opportunities and the generation of revenue. Thus a balance has to be struck28. To strike such balance, the chemical industry has been set up at a far off place from the town keeping in mind the harmful effluents of the industry. vi. Precautionary principle is a rule of evidence which deals with burden of proof in environmental cases. This principle shifts the burden on the polluter i.e. industry to prove his action as environmentally benign. Courts in India adopted the precautionary principle but in a modified form. The Court, adopting the principle, explained that this principle had led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the status quo. The person who wants to maintain status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it by carrying on some activity must bear this burden.29 27 M.C. Mehta v. Union of India (Shriram Industries Case) AIR 1987 SC 965. 28 M.C.Mehta v. Union of India, AIR 2004 SCW 4033. 29 C.M.Jariwaka, “Complex Enviro-Techno Science Issues: Judicial Direction”, 42 JILI 29 (Jan-Mar 2000). 21 vii. In the Tamil Nadu Tanneries Case, Supreme Court while applying precautionary principle to the facts of the case. The Hon’ble Court has directed the tanneries to setup common effluent treatment plants or other industrial pollution control devices before they tried to obtain consent from state pollution control board. The court also directed to close down only those tanneries to which consent was refused30. Here, the Duckburg & Co. Chemical Industry already has proper mechanism to treat the harmful effluents being discharged from its plant and also has a mechanism to recycle those discharged effluents. viii. The Hon’ble Court held that, precautionary principle involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. The Court also held that State Government could not grant exemption to a specified industry located within or attempting to locate within an area where there was total prohibition against the establishment of industries31. Conformity with the norms of the government establishes that there is no prohibition for establishing the Chemical industry. Also, there is no irreversible harm to the nature, ecology and environment. 2.2 FORSEEABILITY AND REMOTENESS OF THE DAMAGES The liability in tort which arose in Common Law has been evolved by the courts in England but law has not been well developed in our jurisdiction. In Common Law, there existed duty of foreseeability, proximity, just and reasonable cause and policy. Attempts have been made to identify general theory of liability in tort consistent with causation, fairness, reciprocity and justice, balancing conflicting interests as well as economic efficiency. The tortious liability falls into one of the three categories, viz., (a) some intentional wrongdoing, (b) negligence, and (c) strict liability. The principle evolved by the courts in England is that a reasonable foresight of harm to persons whom it is foreseeable or is likely to harm by one's carelessness is essential. The liability in tort may be strict liability, absolute liability or special liability. The degree of liability depends on degree of mental element. 30 Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996 SC 2715. 31 A.P.Pollution Control Board v. M.V.Nayudu, AIR 1999 SC 812 22 Even as per the English law, Absolute liability doesn’t apply as per the grounds of Remoteness of damages, Foreseeability, Act of God and Duty of care being taken by the Respondent. So, Duckburg & Co. cannot be made liable under Absolute Liability. 25 ISSUE 3: WHETHER EXCESSIVE EXTRACTION OF GROUND WATER AMOUNTED TO VIOLATION OF FUNDAMENTAL RIGHTS? The preamble of the Environment Protection Act, 198637 clearly indicates that Parliament took an affirmative action in protection and improvement of Environment.38 The object of this Environment (Protection) Act, 1986 corresponds to Principles laid down in Stockholm Declaration. It is humbly submitted that there has been no violation of Fundamental rights of the people of the City of Metropolis. The ABC Corp. & The Government of Indiana are fulfilling their obligations by protecting an imperative component of the ecosystem in the manner desired by, The Water (Prevention & Control of Pollution) Act, 1974 and The Ground Water (Control & Regulation) Act, 2002. In doing so the government is striving to uphold the right to environment of the people of Indiana which is concomitant to right to life under Article 21. The fundamental rights of the indigenous people have not been violated by the order of the government since; No special right is guaranteed to them under the Constitution; Article 21 of the Constitution of India and; No violation of fundamental rights because of forced assimilation. 3.1 NO SPECIAL RIGHT GUARANTEED TO THEM UNDER THE CONSTITUTION i. Public interest means a subject matter in which the rights of the public or section of public is interested to the means of concern which is advantageous to people as whole39. 'Interest of general public' is a comprehensive expression intended to achieve the socio- economic justice for people by the State. The purpose of introducing the Ground Water (Control and Regulation) Act, 2002, was for the conservation of ground water and for the regulation and control of its extraction and use, if indiscriminate extraction of ground water is continuing. ii. The Hon’ble Supreme Court of India has exposited that the directive principles are to be construed in such a manner so that they help in realization of the basic rights40 and anything done in pursuance of this objective cannot be termed as arbitrary41. The Courts could interfere only if the decision taken by the authority was arbitrary, unreasonable or not taken in public interest42. The Courts must follow an objective method by which the 37 Id. 38 Section 2(a) of Environment (Protection) Act, 1986 39 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 40 Keshavananda bharati v State of Kerala, AIR 1973 SC 1461 41 M.R.F. Ltd. v. Inspector Kerala Govt. and Others (1998) 8 SCC 227 42 Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttaranchal and others, (2007) 8 SCC 418 26 decision-making authority is given the full range of choice which the legislature is presumed to have intended. iii. If the decision is reached fairly and objectively, it cannot be interfered with on the ground of procedural fairness43 and as mentioned the decision was taken in consonance with the wetland (conservation and management) rules. Thus where a change in the policy decision is valid in law, any action taken pursuant thereto or in furtherance thereof, cannot be invalidated44 and no question of legitimate expectation would arise45. iv. Social justice is the recognition of greater good to larger number without deprivation of accrual of legal rights of anybody which are considered to be their fundamental rights, and the government while exercising its power and by subscribing to the concept of social and economic justice as enshrined in the constitution might detract from some technical rule in favour of a party46, in order to do greater good to a large number so as to act in consonance with the principles of equality and public trust. Thus it is humbly submitted by the respondent, that there is no violation of any provision by the Government of Indiana. v. A matter within the legislative competence of the legislature has to be left to the discretion and wisdom of the latter so long as it does not infringe any constitutional provision or violate the fundamental rights.47 Here the State has given permission for ABC Corp. as per the provisions of the relevant acts framed by the Government of Indiana and the City of Metropolis. vi. It is submitted that the Precautionary Principle, which is an approach to the protection of the environment and human health, is based around taking precautions, even if there is no clear evidence of harm, or risk of harm, from an activity or substance.48 The Precautionary Principle has been firmly embedded into contemporary Indian Law through decisions where it has been held that it is part of Environmental Law of the Country and several international conventions.49 43 Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727 44 Kuldeep Singh v. Govt. of NCT of Delhi, (2006) 5 SCC 702 at 712 45 P.T.R. Exports (Madras) Pvt. Ltd. & Ors. Vs. Union of India & Ors, (1996) 5 SCC 268 46 Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471 47 Kuldip Nayar v. Union of India, (2006) 7 SCC 1, 159 (para 463) 48 STUART BELL & DONALD MCGILLIVRAY, ENVIRONMENTAL LAW, OXFORD PUBLICATIONS (7TH EDITION) pp 63 - 64 49 Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647 27 motives, and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.”55 viii. The environment issues arise because of the unforeseen contingency but they were temporary. As the nature through the process of water cycle automatically replenish the groundwater resources. The defendant’s company’s policies and business ethics were aimed at a greater objective which ultimately will benefit the citizens; The Company even stopped making soft drinks when the City of Metropolis is facing water crisis and started making water bottles. Hence there is no violation on Article 21 or any other fundamental right guaranteed by the Constitution of Indiana. It is clear that, the Ground water extraction by the respondent is not in violation of the fundamental rights. 55 T.N. Godavarman Thirumulpad v. Ashok Khot, AIR 2006 SC 2007 30 ISSUE 4: WHETHER THE GOVERNMENT OF INDIANA CAN BE MADE LIABLE UNDER THE PUBLIC TRUST DOCTRINE FOR EXCESSIVE GROUNDWATER EXTRACTION BY ABC CORP? Public Trust Doctrine has developed in India through several landmark cases in the Supreme Court. The Supreme Court has deduced this doctrine from various sources such as the Common Law and Article 21 of the Constitution, which guarantees the fundamental right to life, and Article 39 in Part IV of the Constitution which provides for equitable distribution of material resources. i. The Public Trust doctrine (hereafter PTD) was first invoked in 1995 by the Supreme Court in the famous M.C. Mehta v. Kamal Nath (‘Span Motels case’)56. In this public interest litigation, the court declared that the PTD, being part of the Common Law system, was ‘law of the land’. ii. The ‘Fomento Resorts Case57’ the Supreme Court reiterated that natural resources are common properties held by the state as a trustee on behalf of the people, especially the future generations. Therefore, the state cannot transfer public trust properties to a private party, if such a transfer interferes with the access rights of the public. The public trust doctrine allows the judiciary to protect the rights of public at large to have access to light, air and water and also to protect rivers, seas, tanks, trees, forests and associated natural eco-systems. iii. The Hon’ble Court directed the central government to constitute a committee of experts for the purpose of submitting a report on the questions. The court after perusing the report submitted by the expert committee and submissions of rival counsel opined that the nature of the questions58. So, there is a need to ascertain a committee of experts and to prepare a report regarding the ground water extraction to ascertain whether it violated the provisions of the act. The decision cannot be arbitrary rather it should be subjected to the procedure established by law. iv. The Court while referring the Intellectuals forum, Tirupati case also referred Bombay dyeing case59 stated that whereas need to protect the environment is a priority, it is also 56 M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388. 57 Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571. 58 Intellectual Forum, Tirupathi v. State of A.P, (AIR 2006 SC 1350) 59 Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434. 31 necessary to promote development. Also, brought up the concept of sustainable development60. v. Andhra Pradesh State Government has issued notification prohibiting conversion of agricultural land for another purpose namely for irrigation or for some other purpose whatsoever by the State/Board of Revenue. AP High Court61 has held that, the same cannot be said to be bad in law. Deep underground water belongs to the State in the sense that doctrine of public trust extends thereto. A person who holds land for agricultural purpose may, subject to reasonable restriction that may be made by the State may have the right to use water for irrigational purposes and for the said purpose he may also excavate a tank. But under no circumstances, he can be permitted to restrict the flow of water to the neighboring lands or discharge the effluents in such a manner so as to affect the right of his neighbor to use water for his own purposes. vi. The Hon’ble Court cannot be make Government of Indiana liable under the Public Trust Doctrine for the extraction by ABC Corp as it was not based on the scientific observations or violation of the act instead it was just an allegation. Also the ABC Corp. stopped manufacturing soft drinks and started selling drinking water to serve the people during the water crisis in the city of Metropolis. It is clear that there is no clear evidence from the petitioners regarding the same. The court should not consider the accusations in the nature of allegations. There is a benefit of doubt on the part of Respondent. The Ground water authority did not find any violation of the provisions of the act regarding the PTD for which the Government of Indiana did not interfere into the issue of groundwater extraction by the ABC Corp. So, The Government of Indiana cannot be made liable under the Public Trust Doctrine for the groundwater extraction by the ABC Corp. 60 Mrs.Susetha v. State of Tamil Nadu (AIR 2006 SC 2893) 61 P.R Subhas Chandran v. Government of A.P. (2001) (5) ALD 771 (DB) 32