Environmental Judicial Review in India: Locus Standi and Public Interest Litigation, Cheat Sheet of Law

Download Environmental Judicial Review in India: Locus Standi and Public Interest Litigation and more Cheat Sheet Law in PDF only on Docsity! 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 TEAM CODE: 38 BEFORE THE HON’BLE SUPREME COURT OF ARESSIA, AT AHALI CITY IN THE MATTERS OF: TWO ARESSIAN STATES & OTHERS ... APPELLANT V. THE UNION OF ARESSIA ... RESPONDENT APPEAL NOS. ___/2014, ___/2014, CLUBBED WITH WRIT PETITION NOS. ___/2010, ___/2012 ON SUBMISSION TO THE HON’BLE SUPREME COURT OF ARESSIA UNDER ARTICLE 32 OF THE CONSTITUTION OF ARESSIA WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS COUNSEL APPEARING ON BEHALF OF THE APPELLANTS 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 TABLE OF CONTENTS INDEX OF AUTHORITIES……………………………………………………………….....V TABLE OF CONTENTS............................................................................................................I INDEX OF AUTHORITIES.............................................................................................................IV STATEMENT OF JURISDICTION.........................................................................................IX STATEMENT OF FACTS........................................................................................................X STATEMENT OF ISSUES.....................................................................................................XII SUMMARY OF ARGUMENTS............................................................................................XIII ARGUMENTS ADVANCED....................................................................................................1 1. THAT THE WRIT PETITION FILED WITH THE HIGH COURT OF NERUDA IS MAINTAINABLE.................................................................................................................1 1.1. That the Forum for Environmental Right has locus standi to file the present petition ............................................................................................................................................1 1.2. That the right to a healthy environment and livelihood under Article 21 may stand violated...............................................................................................................................2 1.2.1 That the ambit of A. 21 is not limited to citizens of Aressia.................................3 1.2.2 That Article 21 extends beyond the territorial limit of Aressia.............................3 1.2.3 That the right to a healthy environment and livelihood are present within the auspices of Article 21.....................................................................................................4 1.3. That including the river ‘Bhargavi’ in the Linking of Rivers Project may violate Customary International Law.............................................................................................5 2. THAT § 3 OF THE LINKING OF RIVERS ACT 2010 IS ULTRA VIRES THE CONSTITUTION OF ARESSIA...........................................................................................6 2.1 That § 3 of the linking of rivers act in ‘pith and substance’ falls within the exclusive legislative competence of the states...................................................................................6 2.1.1. The object and purpose of the impugned section relates to subjects exclusively enumerated in List II of the Seventh Schedule...............................................................7 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 4.4.1. That the doctrines of Precautionary Principle and Sustainable Development govern environmental rights.........................................................................................21 4.4.2. That the doctrines have not been adhered to......................................................22 4.5. That The Doctrine Of Public Trust Is To Be Exercised By The Government And The Non- Exercising Of The Same Has Violated Environmental Rights Of The Citizens Of Aressia.........................................................................................................................22 4.5.1. That the Doctrine of Public Trust is to be exercised by the Government of India. ......................................................................................................................................22 4.5.2.That the Doctrine has not been followed.............................................................23 4.6. That the forest (conservation) act’s object is to prevent deforestation and the same has not been adhered to....................................................................................................23 4.6.1.That the objective of the Forest (Conservation) Act 1980 is to Prevent Deforestation................................................................................................................23 4.6.2. The Objective of the FC Act has not been adhered to........................................24 PRAYER..................................................................................................................................25 Index of Authorities STATUTES City of San Franciso, Precautionary Principle Ordinance.......................................................29 Constitution of India.........................................................................................................passim BOOKS, ARTICLES & TREATISES A. ROSENCRANZ& S. RUSTOMJEE, CITIZENS’ RIGHT TO A HEALTHY ENVIRONMENT, 1995, 25 Envir. Pol. & Law...........................................................................................................28 ARVIND P. DATAR, DATAR ON CONSTITUTION OF INDIA, Wadhwa & Company, ed.2001. . .25 C. RAMACHANDRAIAH, DRINKING WATER AS A FUNDAMENTAL RIGHT, Economic and Political Weekly, Vol. 36, No. 8 (Feb. 24 - Mar. 2, 2001).................................................23 CAMERON, J., & ABOUCHAR, THE PRECAUTIONARY PRINCIPLE: A FUNDAMENTAL PRINCIPLE OF LAW AND POLICY FOR THE PROTECTION OF THE GLOBAL ENVIRONMENT, Boston College International And Comparative Law Review, 2001.............................................................30 CHARMIAN BARTON, PRECAUTIONARY PRINCIPLE IN AUSTRALIA, Vol. 22, 1988, Harv. Env. L. Rev...................................................................................................................................28 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 CHRISTOPHER S. FORD, RIGHTS AND REMEDIES UNDER THE CONSTITUTION: EXTRATERRITORIAL APPLICATION OF THE WRIT OF HABEAS CORPUS, Duke Journal Of Constitutional Law & Public Policy Special Issue, Vol. 7 No. 2 2012................................13 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia & B. P. Banerjee eds., Vol. 6, 8th ed. 2012..............................11 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani& T. S. Doabia & B. P. Banerjee eds., Vol. 8, 8th ed. 2012...............................15 DURGA DAS BASU, COMMENTARY ON CONSTITUTION OF INDIA, Vol. 2, 2007......................21 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. 3, 8th ed., 2008. . .24 G.P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION, 13th ed. 2012.............................27 H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4th ed., vol. 2, 2007..................................11 IND. CONST...............................................................................................................................14 JONATHAN NASH, STANDING AND THE PRECAUTIONARY PRINCIPLE, Columbia Law Review, Vol. 108, 2008......................................................................................................................30 JOSEPH LAX, PUBLIC TRUST DOCTRINE IN NATURAL RESOURCE LAW: EFFECTIVE JUDICIAL INTERVENTION, Michigan Law Review, Vol. 68, Part I......................................................31 JUSTICE FAZIL KARIM, JUDICIAL REVIEW OF PUBLIC ACTION, Vol.1....................................24 JUSTICE T. S. DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA, Wadhwa Nagpur, Volume 1, 1st ed. 2005..........................................................................................................14 JUSTICE TS DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA, Wadhwa Nagpur, Vol.1, 1sted., 2005................................................................................................................31 K. JANAKIKUTTYAMMA, FUNDAMENTAL RIGHTS IN RELATION TO THE INDIAN CONSTITUTION, The Indian Journal of Political Science, Vol. 9, No. 2/3 (April— September, 1948).................................................................................................................19 M.P. JAIN INDIAN CONSTITUTIONAL LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010......................................................................................................................................17 M.P. JAIN, INDIAN CONSTITUTIONAL LAW, Vol. 1, 5th ed., 2003............................................24 MITTAL, RIGHT TO EQUALITY AND THE INDIAN SUPREME COURT, The American Journal of Comparative Law, Vol. 14, 1965.........................................................................................21 N. JAYAPALAN, INDIAN SOCIETY AND SOCIAL INSTITUTIONS, Atlantic Publishers & Distributors, 2001.................................................................................................................20 NARAIN, VRINDA, WATER AS A FUNADAMENTAL RIGHT: PERSPECTIVE FROM INDIA, 2009, Vermont Law Review..........................................................................................................23 O. McIntyre, & T Mosedale,.THE PRECAUTIONARY PRINCIPLE AS A NORM OF CUSTOMARY INTERNATIONAL LAW, Journal of Environmental Law, 9(2) (1997)...................................30 R. STECH,A CARROT AND STICK APPROACH? AN ANALYSIS OF THE UK GOVERNMENT'S PROPOSALS ON ENVIRONMENTAL JUDICIAL REVIEW, Journal of Environmental Review, Vol. 15 (2), 2013..................................................................................................................11 ROSE MARY, RIGHT TO WATER: THEORETICAL CONCERNS AND PRACTICAL ISSUES, The Indian Journal of Political Science, Vol. 67, No. 4 (OCT. - DEC., 2006)...........................24 SHAMNAD BASHEER & PRASHANT REDDY, “DUCKING” TRIPS IN INDIA: A SAGA INVOLVING NOVARTIS AND THE LEGALITY OF SECTION 3(D), 20 National Law School of India Review 131, 142 (2008.....................................................................................................................15 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA, 2nd ed., Oxford India Paperback.................................................................................................27 CASES A. S. Krishna v. State of Madras, AIR 1957 SC 297...............................................................20 A.P. Pollution Control Board II v Prof.M.V. Naidu and Others (Civil Appeal Nos. 368-373 of 1999)....................................................................................................................................27 A.P. Pollution Control Board v. Prof.M.V. Nayadu (Retd.) & Others, AIR 1999 SC 812.....32 A.P. Pollution Control Board v. Prof.M.V. Nayadu (Retd.) &Ors., AIR1999SC812.............19 Akhil Bhartiya Soshit Karamchari Sangh (Rly.) v. Union of India, AIR 1981 SC 298..........15 ALAN GEWIRTH, ARE ALL RIGHTS POSITIVE?, Philosophy & Public Affairs, Vol. 30, No. 3, 2001......................................................................................................................................26 Ambika Quarry Works v. State of Gujarat and Ors AIR 1987 SC 1073.................................36 Associated Provincial Picture v. Wednesbury Corpn., (1948) 1 KB 223................................25 Atma Linga Reddy and Ors.v. Union of India (UOI) and Ors, AIR 2009 SC 436..................27 Banwasi Seva Ashram v. State of U.P., AIR 1987 SC 374.....................................................15 BashesharNath v.The Commissioner of Income Tax, Delhi & Rajasthan, AIR 1959 SC 14923 Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661.....................................................16 Byrraju Ramalinga Raju v. The State CBI,Criminal Petition No. 5454 of 2009.....................28 Centre for Public Interest Litigation and Ors. v. Union of India (UOI) and Ors.,AIR 2013 SC 3725......................................................................................................................................33 Chaiman, Railway Board v. Chandrima Das, AIR 2000 SC 998............................................17 Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051.................................................28 Clark v. Allaman, 71 Kan. 206 : 70 LRA 971.........................................................................27 D. K. Basu v. State of West Bengal, AIR 1997 SC 610..........................................................16 D. K. Yadav v. J. M. A. Industries, AIR 1986 SC 180............................................................18 Dalmatia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104..................................25 Delhi Development Horticulture Employee’s Union v. Delhi Administration, AIR 1992 SC 789........................................................................................................................................29 Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101.......31 Dr. Radhakrishna Co-operative Housing Society Limited, Hosur, Hubli and Ors. v. Government of Karnataka, Housing and Urban Development Department, Bangalore and Ors., 1999(2)KarLJ637........................................................................................................21 Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746........................................................................................................................................28 Goa Foundation and Peaceful Society v. Union of India and Ors, 2014 (4) EFLT 60............31 Gramophone Company of India v. BirendraBahadur Pandey, AIR 1984 SC 667...................19 Gupta Enterprises v. Delhi Pollution Control Committee and Anr., (2008) ILR 1Delhi940. .24 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461...18 In Re: Cauvery Water Disputes Tribunal, AIR 1992 SC 552..................................................22 Indra Sawhney v. Union of India, AIR 1993 SC 477..............................................................23 Indu Bhushan Bose v. Rama Sundari Debi, AIR 1970 SC 228...............................................22 Jamshed N. Guzdar v. State of Maharashtra and Ors., AIR 2005 SC 862...............................20 KasturiLal Lakshmi Reddy . State of J &K, AIR 1980 SC 1992.............................................25 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 STATEMENT OF JURISDICTION I. The Appellant No. 1 has approached this Hon’ble Court under Article 132 of the Constitution. Leave has been accordingly granted. II. The Appellant No. 2 has approached this Hon’ble Court under Article 32 of the Constitution. Leave has been accordingly granted. III. The Appellant No. 3 has approached this Hon’ble Court under Article 32 of the Constitution. Leave has been accordingly granted. IV. The Appellant No. 4 has approached this Hon’ble Court under Article 136 of the Constitution. Leave has been accordingly granted. ix 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 STATEMENT OF FACTS 1. The material case arises out of four separate claims: first, a claim by the Forum for Environmental Right (hereinafter, “FER”) before the High Court of Neruda against the Government of Aressia; second, a joint claim made by the State of Adhali and the State of Parmala challenging the constitutional validity of the Linking of Rivers Act, 2010; third, a claim by the ‘Save the Farmer’s Forum’ that the fundamental rights of the people of the State of Normanda and the State of Vindhya have been violated; fourth, a claim by the Centre for Environmental Rights and Advocacy (Hereinafter, “CERA”) that the Linking of Rivers project violates the environmental rights of the citizens of Aressia. I. BACKGROUND 2. Aressia is a South Asian country with a written Constitution and a federal form of Government. The laws of Aressia are in pari material to the laws of India. A number of rivers flow through the land of Aressia which are essential to the economy which primarily based on agriculture and fishing. In the last two decades, failure of agricultural crops has become a major problem due to shortage of water. This has caused many farmers to be rendered bankrupt and many have committed suicide. In light of this, in 2009 the Aressian Civil Liberties Union (ACLU), a non-governmental organisation, filed a writ petition before the Supreme Court of Aressia stressing on the predicament of the people of Aressia due to scarcity of water. The Supreme Court directed the Government of Aressia to constitute a ‘High Level Expert Committee’ to consider the viability of Linking of Rivers across Aressia as well as the formation of an Environmental Impact Assessment body to study the potential environmental affect. II. THE LINKING OF RIVERS ACT, 2010 3. In December 2009, the two committees were appointed. One committee was constituted for studying the practical exigencies of linking rivers and; the other committee to assess the potential environmental impact of such a project. The latter committee consisted of individuals from various interest groups such as the Central Government, State Government, Environmentalists, etc. Pursuant to a favourable report from the two Committees, the Linking of Rivers Act, 2010 was enacted by the Central Government. The Act provides for the x 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 formation of the ‘Authority for Linking of Rivers’ (ALR) which shall be vested with such powers as necessary to implement the linking of rivers in Aressia. III. THE CRITICISM 4. The State Governments and various NGOs criticised the linking of rivers project on the grounds that it would adversely affect the environment, change climatic conditions and that the entire project was politically motivated and would involve corruption. However, the Government decided to go ahead with the project despite the criticism keeping the prospective benefits in mind. Subsequently, in telecasted interview, some members of the aforementioned EIA divulged that there was political pressure on them to give a favourable report to the linking of rivers project. This sparked extensive protests against the implementation of the project. IV. THE FIRST PHASE 5. The first phase of the project involved eight intra-state rivers which were to be networked and made inter-state. Among them was the river ‘Bhargavi’ which was a trans- boundary river shared with neighbouring country Boressia. Moreover, the State of Vindhya has the largest wetlands in Aressia and it was feared that the project would irreparably damage the same. In light of this, the Government decided to exclude Vindhya from the project which meant that the people of Vindhya and Normanda would still face water scarcity. V. THE RESULTANT LITIGATION 6. Pursuant to the aforementioned factual matrix, two Aressian States moved the Supreme Court claiming that the Linking of Rivers Act, 2010 was an unconstitutional encroachment on the power of the States. Due to the non-inclusion of the State of Vindhya in the project, ‘Save the Farmers Forum’ moved the Supreme Court on the grounds that this was a violation of their fundamental rights. An international NGO petitioned the High Court of Neruda contending that the inclusion of ‘Bhargavi’ would violate the fundamental rights of the people of Boressia, due to subsequent dismissal of the petition they are in appeal before the Supreme Court . xi 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 others. Arbitrariness is antithetical to the process of equality; and 3.2] right to life and liberty has been violated due to a violation in the rights that have been read under A.21 such as Right to Water, Right to Basic Necessities, Right to Social Justice and Economic Empowerment, Right to Livelihood and Right to Work. IV. THAT THE LINKING OF RIVERS ACT, 2010 VIOLATES THE ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA AND THE PROVISIONS OF THE AOREST (CONSERVATION) ACT, 1980. The environmental rights of the Aressians have been violated by the Legislature on passing the impugned Act as is evidenced by testing them against the Doctrines of Public Trust and Precautionary Principle. The Preamble of a statue reflects the intention of the legislature and the latter is required to ascertain the object of the act. Following the rule on interpretation, we realised that the provisions of the Linking of Rivers Act are contrary to the object of the Forest (Conservation) Act and the Environment Protection Act, enshrined in their respective preambles, which is one of granting environmental rights to the citizens of Aressia. Not conforming to the objective specified in these environmental statues is an explicit show of how the impugned act defies the environmental rights of the Aressians. xiv 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 ARGUMENTS ADVANCED 1. THAT THE WRIT PETITION FILED WITH THE HIGH COURT OF NERUDA IS MAINTAINABLE 1. Writ Jurisdiction of the High Courts’ flows from Article 226,1 which confers wide powers enabling the Court to issue writs, directions, orders for the enforcement of fundamental or legal rights.2 The exercise of writ jurisdiction by the High Court is discretionary in nature.3 It is submitted that the writ petition is maintainable on primarily three grounds: 1.1. That the ‘Forum for Environmental Right’ has locus standi to file the present petition; 1.2. That the right to a healthy environment and livelihood under Article 21 may stand violated; and 1.3. That including the river ‘Bhargavi’ in the Linking of Rivers Project may violate Customary International Law. 1.1. THAT THE FORUM FOR ENVIRONMENTAL RIGHT HAS LOCUS STANDI TO FILE THE PRESENT PETITION 2. In public law, the rule that only the aggrieved person is entitled to seek judicial redress has been liberalised to include any “public-spirited individual” or “association”.4 In case a class of people have a collective grievance, even an unrecognised association may initiate writ proceedings.5 In England, Greenpeace was granted standing on the basis that they are acting in public interest, rather than for their own members.6 In instances of public wrong or injury, if an act or omission by the State runs contrary to the Constitution then any 1 Article 226, Constitution of India. 2 H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4th ed., vol. 2, 2007 at p. 1586. 3 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia & B. P. Banerjee eds., Vol. 6, 8th ed. 2012, p. 6614. 4 S. P. Gupta v. President of India & Ors., AIR 1982 SC 149 at ¶¶ 14-25 (per P. N. Bhagwati, J.); Banwasi Seva Ashram v. State of U.P., AIR 1987 SC 374. 5 Akhil Bhartiya Soshit Karamchari Sangh (Rly.) v. Union of India, AIR 1981 SC 298 at ¶ 63 (per Krishna Iyer). 6 R. v. Inspector of Pollution exparte Greanpeace Ltd., (1994) All ER 329; R. STECH,A CARROT AND STICK APPROACH? AN ANALYSIS OF THE UK GOVERNMENT'S PROPOSALS ON ENVIRONMENTAL JUDICIAL REVIEW, Journal of Environmental Review, Vol. 15 (2), 2013, pp. 139-140. 1 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 member of the public has locus standi.7 In Vishwanath Chaturvedi v. Union of India,8 it has been observed that in determining the question of locus standi in ‘public interest litigation’ the Court must look into: (i) the credentials of the applicant; (ii) prima facie correctness of information; (iii) information should show failure of public duty (iv) must not go into merits of the case.9 3. In the present case, FER is an international NGO which has a presence in Aressia.10 The claim made by the FER relates to widespread public grievance caused by environmental harm and loss of livelihood.11 The prima facie accuracy of the claims may be demonstrated by other independent facts such as: (i) the Environmental Impact Assessment (hereinafter, EIA) report has identified various environmental and social harm which may be caused; (ii) members of the EIA committed have admitted to downplaying the harm which may be caused in the aforementioned report; (iii) the apprehension that the linking of rivers project shall cause large-scale harm is shared by other stakeholders within Aressia.12 4. Furthermore, a writ petition is maintainable even before the violation of a constitutional or otherwise legal right has been committed.13 Once a law or order has been passed which potentially infringes a legal right, a writ petition may be filed.14 The passing of the Linking of Rivers Act, the decision to implement the same, and the inclusion of the river ‘Bhargavi’, were events which occurred before the writ petition was filed.15 It is further contended that the FER is a special-interest group which is best placed to bring the issue to the attention of the Court. Hence, it is humbly submitted that the FER has locus standi to file the writ petition. 1.2. THAT THE RIGHT TO A HEALTHY ENVIRONMENT AND LIVELIHOOD UNDER ARTICLE 21 MAY STAND VIOLATED 7 People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 2330 at ¶ 10. 8 Vishwanath Chaturvedi v. Union of India, (2007) 4 SCC 380. 9 Vishwanath Chaturvedi v. Union of India, (2007) 4 SCC 380 at ¶¶ 27-30. 10 Factsheet, ¶ 14. 11 Ibid. 12 Factsheet, ¶¶ 5, 15, 13. 13 Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661 at ¶ 8. 14 Purtabpur Co. v. Cane Commissoner, AIR 1971 SC 1896 at ¶ 24. 15 Factsheet, ¶¶ 6, 8, 9, 14. 2 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 without means of livelihood.37 It has been claimed by the FER that the livelihood of thousands of fishermen in Boressia would be affected by the linking of ‘Bhargavi’.38 10. In light of the above, it is humbly submitted that the constitutional guarantee under A. 21 extends to the people of Boressia and a writ petition regarding their plight may not be preliminarily rejected. 1.3. THAT INCLUDING THE RIVER ‘BHARGAVI’ IN THE LINKING OF RIVERS PROJECT MAY VIOLATE CUSTOMARY INTERNATIONAL LAW. 11. The Indian Constitution urges the State to honour its international law and treaty obligations,39 which are understood as creating ‘legitimate expectations’ of their observance.40 The Supreme Court has regularly imported international norms where there is a gap in domestic law.41 The ‘doctrine of incorporation’ has been implemented in the Indian legal system, according to which rules of international law become part of domestic law.42 12. The customary international law doctrines of ‘sustainable development’ and ‘precautionary principle’ have been read into the Constitution of India,43 and thereby Aressia.44 In MC Mehta v. Union of India,45 the Supreme Court placed a positive Constitutional burden on the State to prevent environmental degradation.46 In the present 37 Olga Tellis v. Bombay Municipal Corpn., AIR 1986 SC 180, ¶ 32. 38 Factsheet, ¶ 14. 39 Article 51(c), Constitution of Aressia; His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461 at ¶164. 40 Vishaka v. State of Rajasthan, AIR 1997 SC 3011 at ¶14. 41 SHAMNAD BASHEER & PRASHANT REDDY, “DUCKING” TRIPS IN INDIA: A SAGA INVOLVING NOVARTIS AND THE LEGALITY OF SECTION 3(D), 20 National Law School of India Review 131, 142 (2008). 42 Vishaka v State of Rajasthan, AIR 1997 SC 3011, ¶14; Gramophone Company of India v. Birendra Bahadur Pandey, AIR 1984 SC 667, ¶3-4; Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783, ¶79. 43 Vellore Citizens Welfare Forum v. Union of India and Ors, AIR 1996 SC 2715 at ¶¶ 14- 15; A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) & Ors., AIR 1999 SC 812, ¶ 30. 44 Factsheet, Note 1. 45 MC Mehta v. Union of India, (1997) 3 SCC 715. 46 MC Mehta v. Union of India, (1997) 3 SCC 715 at ¶ 9. 5 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 case, the writ petition was filed based on the finding that the decision of the ALR to link the river ‘Bhargavi’ would cause widespread environmental damage.47 Furthermore, members of the EIA, which was constituted to investigate the environmental damage caused by the linking of rivers, have admitted to giving false favourable reports under political pressure.48 It is humbly submitted that there is a constitutional obligation on Aressia to protect the environment from damage and that the extraterritorial nature of the potential damage should not be a deterrent as degradation of the environment is a global concern and would have ramifications within Aressia. 2. THAT § 3 OF THE LINKING OF RIVERS ACT 2010 IS ULTRA VIRES THE CONSTITUTION OF ARESSIA 13. As a component of the Federal Structure of the Constitution of Aressia, legislative powers have been divided between the Parliament and State Legislatures.49 The competing legislatures may not infringe upon the each other’s legislative domain.50 The constitutional vires of § 3 of the Linking of Rivers Act (hereinafter, the impugned Act) has been challenged on the grounds of legislative competence.51 It is submitted that the said provisions are ultra vires the Constitution as 2.1] the ‘pith and substance’ of § 3 lies within the bounds of List II of the Seventh Schedule and 2.2] that no resolutions under article 252 were passed by the state legislatures as constitutionally mandated. 2.1 THAT § 3 OF THE LINKING OF RIVERS ACT IN ‘PITH AND SUBSTANCE’ FALLS WITHIN THE EXCLUSIVE LEGISLATIVE COMPETENCE OF THE STATES 14. The doctrine of ‘pith and substance’ is one of the key principles of interpretation used to construe entries classified under the three lists of the Seventh Schedule of the Constitution.52 In order to determine whether a particular statute comes within the purview of 47 Factsheet, ¶ 14. 48 Factsheet at ¶ 15. 49 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani& T. S. Doabia & B. P. Banerjee eds., Vol. 8, 8th ed. 2012, p. 8626 50 State of Kerala and Ors.v. Mar AppraemKuri Company Ltd. and Anr., AIR 2012 SC 2375, ¶ 12. 51 Factsheet, ¶ 10. 52 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker& S.S. Subramani& T. S. Doabia& B. P. Banerjee eds., Vol. 10, 8th ed. 2012, p. 11731. 6 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 one legislature or the other, the pith and substance of the enactment is to be looked into.53 If the ‘true nature and character’ of a legislation falls outside the permissible limits assigned to the respective legislature then such law is ultra vires the constitution.54 Only the offending part of the Act may be declared invalid in case it is sufficiently separable from the rest of the Act.55 The relevant factors which must be considered to ascertain the pith and substance of a statute are: (i) the object and purpose; (ii) the scope and; (iii) the effect of the provisions.56 2.1.1. The object and purpose of the impugned section relates to subjects exclusively enumerated in List II of the Seventh Schedule 15. In State of Rajasthan v. G. Chawla,57 giving significant importance to the object of legislation in determining its pith and substance,58 it was held that a legislation controlling the use of amplifiers was public health legislation under List II rather than a broadcasting legislation under List I.59 In order to determine the object and purpose of a statute, we may refer to the circumstances which prevailed at the time and necessitated the passing of the Act.60 In State of West Bengal v. Union of India,61 the existing dearth of coal in the country shaped the Court’s understanding of the object of Coal Bearing Areas (Acquisition and Development) Act, 1957.62 16. We must refer to the various legislative fields under the seventh schedule to ascertain which subject-matters fall under the exclusive competence of the States.63 Entry 17 of the 53 Jamshed N. Guzdar v. State of Maharashtra and Ors., AIR 2005 SC 862 at ¶ 88; Prafulla Kumar Mukherjee and others v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60 at ¶¶ 35-38. 54 State of Maharashtra v. Bharat Shanti Lal Shah and Ors.,(2008) 13 SCC 5 at ¶ 30. 55 Lt. Col. Sawai Bhawani Singh and Ors v. State of Rajasthan and Ors., (1996) 3 SCC 105 at ¶ 8., R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628 at ¶ 5. 56 Offshore Holdings Pvt. Ltd.v. Bangalore Development Authority and Ors., (2011) 3 SCC 139 at ¶ 64; A. S. Krishna v. State of Madras, AIR 1957 SC 297 at ¶16. 57 State of Rajasthan v. G.Chawla, AIR 1959 SC 544. 58 State of Rajasthan v. G. Chawla, AIR 1959 SC 544 at ¶ 14. 59 State of Rajasthan v. G. Chawla, AIR 1959 SC 544 at ¶ 15. 60 Shashikant Laxman Kale and Anr. v. Union of India (UOI) and Anr., AIR 1990 SC 2114 at ¶ 16, State of Orissa and Ors. v. Mahanadi Coalfields Ltd. and Ors. at ¶¶ 5-7. 61 West Bengal v. Union of India, AIR 1963 SC 1241. 62 West Bengal v. Union of India, AIR 1963 SC 1241 at ¶¶ 7-9. 7 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 22. The power to legislate with respect to subject-matters enumerated within the State List may be vested in Parliament if desired by the States through a resolution passed by the State Legislatures.82In Tata Iron & Steel Co. Ltd. v. The State of Bihar & Ors.,83 it was held that Parliament was legislatively competent to enact the Water (Prevention and Control of Pollution) Cess Act, 1977 due to resolutions to that effect being passed by State Legislatures as mandated by Article 252.84 23. In the instant case, the State Governments have not passed the requisite resolutions under A. 252.85 As the authority to legislate with regard to inter alia intra-state rivers has not been vested with Parliament, it is submitted that § 3 of the impugned Act is unconstitutional. 3. THAT THE EXCLUSION AND NON- IMPLEMENTATION OF LINKING OF RIVER PROJECT FOR THE STATE OF VINDHIYA IS VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF CITIZENS OF VINDHIYA AND NORMANDA. 24. It is humbly submitted, that in light of the below mentioned laws, cases, and arguments, the exclusion and non- implementation of Linking of River Project in the State of Vindhiya is violative of A.14 and A.21 of the fundamental rights of the citizens of the States of Vindhiya and Normanda. These rights, embodying the Directive Principles of the government, have been guaranteed by the Constitution of India under A. 13.86 3.1. THAT ARTICLE 14 HAS BEEN VIOLATED. 3.1.1 That Executive Orders are considered Law and a Writ Petition passed against the same is maintainable. 3.1.1.1. That Executive Orders are considered law. 25. In Indra Sawhney v. Union of India,87 the Hon’ble Supreme Court held that, “Executive order is no less a law under Article 13(3).”88 82 Article 252, Constitution of Aressia. Maharao Sahib Shri Bhim Singhji & Ors. v. Union of India (UOI) and Ors., AIR 1984 SC 234 at ¶ 24-25. 83 Tata Iron & Steel Co. Ltd. v. The State of Bihar &ors.,1989 (2) PLJR 88. 84 Tata Iron & Steel Co. Ltd. v. The State of Bihar & ors., 1989 (2) PLJR 88, ¶¶ 8-9. 85 Factsheet. 86 K. JANAKIKUTTYAMMA, FUNDAMENTAL RIGHTS IN RELATION TO THE INDIAN CONSTITUTION, The Indian Journal of Political Science, Vol. 9, No. 2/3 (April—September, 1948), pp. 19-23. 87 Indra Sawhney v. Union of India, AIR 1993 SC 477. 88 Indra Sawhney v. Union of India, AIR 1993 SC 477, ¶527. 10 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 26. Thus, even if the statute which conferred power to the executive is not discriminatory, the executive order which derived its power from the statute can be challenged under A.14 on the grounds of being discriminatory,89 or arbitrary,90 as A.14 does not allow the State to discriminate between persons.91 27. Furthermore, ‘State’ defined under A. 12 includes the Legislature and Executive of both the Centre and the States and other executive authorities within the territories of India. 28. “Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities. It protects us from both legislative and executive tyranny by way of discrimination.”92 29. The trilogy formed by Articles 12, 13 and 14 ensure non- discrimination in State action in the spheres of both legislation and execution in India.93 30. Thus when any executive order violates fundamental rights, it will be quashed by the judiciary as to keep the excesses of the executive at bay.94 The Hon’ble Supreme Court is the repository of fundamental rights of the citizens.95 3.1.1.2. That a writ petition against the executive order passed by Government of Aressia is maintainable 31. In the present case, the Government of Aressia has directed the ALR96 formulated by §3(3) of the Linking of Rivers Act,97 to exclude Vindhiya from the list of States, the rivers of which were to be linked in the Linking of Rivers Project that was going to be implemented in the First Phase of the Project.98 This executive order, as will be proven in the following sections, is unconstitutional, as it violates the fundamental rights of the citizens of Aressia. 89 Ramakrishna v. Tendolkar, AIR 1958 SC 538, ¶550. 90 Premium Granites v. State of Tamil Nadu, AIR 1994 SC 2233. 91 Basheshar Nath v.The Commissioner of Income Tax, Delhi & Rajasthan, AIR 1959 SC 149, ¶25. 92 Ibid. 93 The State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, ¶8. 94 Gupta Enterprises v. Delhi Pollution Control Committee and Anr., (2008) ILR 1 Delhi 940. 95 N. JAYAPALAN, INDIAN SOCIETY AND SOCIAL INSTITUTIONS, Atlantic Publishers & Distributors, 2001, p.531. 96 Factsheet, ¶11. 97 Factsheet, ¶8. 98 Factsheet, ¶9. 11 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 32. As aforementioned, the executive order passed by the Government of Aressia has the same effect as would a statue as specified in A. 13(3)(a) of the Constitution. The Appellant can thus approach the Supreme Court for a remedy for the violation of A.14 as they could have done if a statute had violated their fundamental rights. This writ petition against the Government of Aressia’s executive order is thus maintainable on grounds of violating the fundamental rights of the citizens of Vindhiya and Normanda. 3.1.2. That the executive order of exclusion violates the right to equality as envisaged under Article 14. 3.1.2.1. That A.14 guarantees the citizens of States of Vindhiya and Normanda the right to be treated equally with those farmers in the rest of India. 33. A.14 is read as a positive obligation99 on the state to confer equal measures that benefit all citizens, including the right of all citizens in a political democracy to enjoy social and economic justice.100 After 1974, the Hon’ble Supreme Court held in a number of cases that there was an over- emphasis on the doctrine of classification.101 34. Since Maneka Gandhi’s case,102 the Courts have adopted the Wednesbuy principle103 that if the classification was an arbitrary act of the state under A.12 of the Constitution, A.14 would strike it down.104 The test for arbitrariness is whether the executive acted illegally or omitted reasonable factors or its opinion was one which no reasonable man would have taken.105 Arbitrariness is primarily an action performed by the executive capriciously without adequately determining principle and classifying based on unfounded nature of things.106 3.1.2.2 That the rights of the farmers of the Vindhiya and Normanda are being violated under Article 14 by not including Vindhiya in the Inter-linking of River Project. 99 DURGA DAS BASU, COMMENTARY ON CONSTITUTION OF INDIA, Vol. 2, 2007, p.1388. 100 Dalmatia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104, ¶15. 101 Saujat Ali v. Union of India, AIR 1974 SC 1631, ¶26. 102 Maneka v. Union of India, AIR 1978 SC 597. 103 Associated Provincial Picture v. Wednesbury Corpn., (1948) 1 KB 223. 104 KasturiLal Lakshmi Reddy . State of J &K, AIR 1980 SC 1992 ¶14. 105 Om Kumar v. Union of India, AIR AIR 2000 SC 3689. 106 MITTAL, RIGHT TO EQUALITY AND THE INDIAN SUPREME COURT, The American Journal of Comparative Law, Vol. 14, 1965, p. 426- 428. 12 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 Union of India and Others,120 the Hon’ble Supreme Court upheld the Right to Water as a fundamental right. 3.2.2.1. That the Right to Water has been violated. 46. Inclusion of water into A.21 shows the indispensable importance of water.121 In the given case, all the Aressians have an equal right to water and right to use water as guaranteed by A.21 of the Constitution. Since both these rights are imperative to a dignified life and are so intrinsically related with the survival of the farmers,122 the State has to ensure these rights in their absolute form and implement the Linking of Rivers project inclusively. Since the Vindhiya has a wetland and 12 rivers,123 it has an excess supply of water which can fund the Normanda’s water supply which is in a precarious situation with due to the scarce sources of water in the region.124 Dependent on Vidhiya for water, the farmers of Normanda are entitled to water both for its consumption,125 as well as for its use as an economic lifeline, guaranteed by the fundamental Right to Life and Liberty under A. 21 of the Constitution. 47. In light of the aforementioned law, cases and arguments, the Counsel humbly submits that the Right to Water has been violated and consequently, the Right to Life and Liberty has also been violated as guaranteed by A. 21 of the Constitution. 3.2.3. That A. 21 extends to right to basic necessities and the same has been violated 3.2.3.1. That A. 21 extends to the Right to Basic Necessities 48. The Hon’ble Supreme Court has read Right to Basic Necessities126 into the Right to Life and Liberty under A.21.127 This right inherently ensures a dignified life to citizens of 120 Narmada Bachao Andolan v. Union of India and Others, AIR 2000 SC 3751. 121 C. RAMACHANDRAIAH, DRINKING WATER AS A FUNDAMENTAL RIGHT, Economic and Political Weekly, Vol. 36, No. 8 (Feb. 24 - Mar. 2, 2001), p. 619-621. 122 Factsheet, ¶1. 123 Factsheet, ¶12. 124 Factsheet, ¶12. 125 Factsheet, ¶2. 126 Byrraju Ramalinga Raju v. The State CBI,Criminal Petition No. 5454 of 2009. 127 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. 3, 8th ed., 2008, p. 371. 15 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 India,128 which not only entails an assurance of fulfilling their primary needs,129 but also guarantees all those conditions to the citizens which make life worth living.130 A.21 of the Constitution has been given a qualitative concept to Life,131 and it safeguards the basic human rights required of every civilization.132 3.2.3.2. That a violation of Right to Basic Necessities is a violation of a Right to Life and Liberty under A. 21 of the Constitution. 49. In this case, the executive order has left the citizens of Normanda indirectly out of the Linking of Rivers Project and has in the process deprived them of a minimal standard of living, which water as a basic necessity guarantees. Not only is water an absolute necessity for the purpose of consumption, but it also governs and shapes the life of men.133 It influences the Aressians lives to an extent where its absence is causing farmers to commit suicide.134 50. As aforementioned, the Right to Life and Liberty under A.21 of the Constitution extends to the Right to Basic Necessities. The executive order by depriving them of their latter has in effect deprived them of the former right too. 3.2.4. That A. 21 extends to Right to Livelihood and Right to Work and the same have been violated. 3.2.4.1. That A.21 extends to Right to Livelihood and Right to Work 51. The landmark case Olga Tellis v. Bombay Municipal Corporation,135 established that Right to Livelihood, is a fundamental right under the purview of A.21. “Deprive a person of his right to livelihood and you shall have deprived him of his life.”136 52. In Delhi Development Horticulture Employee’s Union v. Delhi Administration,137 the Supreme Court further expanded this Right to include the Right to Work. 128 Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746. 129 Supra n.44 , p. 1272. 130 M.P. JAIN, INDIAN CONSTITUTIONAL LAW, Vol. 1, 5th ed., 2003, p. 1309. 131 Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051. 132 JUSTICE FAZIL KARIM, JUDICIAL REVIEW OF PUBLIC ACTION, Vol.1 pp.588-589. 133 ROSE MARY, RIGHT TO WATER: THEORETICAL CONCERNS AND PRACTICAL ISSUES, The Indian Journal of Political Science, Vol. 67, No. 4 (OCT. - DEC., 2006), p. 759-766. 134 Factsheet, ¶1. 135 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. 136 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, ¶32. 16 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 A.37 though renders Directive Principles unenforceable; A.39 (a) and A.41have been read harmoniously138 with fundamental rights. The State has an obligation to ensure that Right to livelihood and Right to Work should be read into Right to Life.139 3.2.4.1. That a Violation of Right to Livelihood and Right to Work Violate The Right To Life. 53. The primary occupation of the citizens of Aressia is agriculture,140 an occupation so intrinsically connected with the requirement of water, that its absence is creating such a drastic impact on the livelihood of farmers.141 These farmers have been guaranteed a Right to a Dignified life which guarantees them of their livelihood and Work, under A. 21 which as specified in §2.1., entails a positive obligation on the state to provide them with water, the very means of their livelihood. 54. In light of the aforementioned law, cases and arguments, the Counsel humbly submits that the by being deprived of water, the farmers and the women142 of Normanda are being deprived of their Right to Livelihood and Right to Work under A. 21 of the Constitution. 3.2.5. That Article 21 Extends to Right to Socio- Economic Justice And Economic Empowerment And the same has been violated 3.2.5.1. That A.21 Extends to Right To Socio- Economic Justice And Economic Empowerment 55. By reading social justice143 and economic empowerment of weaker sections,144 as enshrined in the Preamble and the Directive Principles of State Policy, into A.21 of the Constitution,145 the Hon’ble Supreme Court has legally assured all citizens of a life of human dignity.146 137 Delhi Development Horticulture Employee’s Union v. Delhi Administration, AIR 1992 SC 789. 138 Minerva Mills Ltd. and Ors.v. Union of India (UOI) and Ors., AIR 1980 SC 1789. 139 ARVIND P. DATAR, DATAR ON CONSTITUTION OF INDIA, Wadhwa & Company, ed.2001, p. 340. 140 Factsheet, ¶1. 141 Factsheet, ¶2. 142 Ibid. 143 Asok Kumar Gupta v. State of UP (1999) 5 SCC 201 ¶26. 144 Chameli Singh &Ors. v. State of U.P. & Ant, 1996 (1) SCALE 101. 145 Minerva Mills Ltd. and Ors.v. Union of India (UOI) and Ors., AIR 1980 SC 1789, ¶13. 146 Jagdish Swarup, CONSTITUTION OF INDIA, Thomson Reuters, Vol. I, edn.3, p.1114. 17 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 63. The impugned Act is incongruous with the environmental rights of the citizens which have been enshrined in the Preamble of the EPA. Since the Act is violating the environmental rights of the citizens, the Government should be restrained from implementation thereof. 4.3. THAT ‘REASONABLE PERSON’S TEST DETERMINES WHICH RIGHT IS GIVEN PRECEDENCE AND THE ENVIRONMENTAL RIGHTS TAKE PRECEDENCE IN THE PRESENT CASE. 4.3.1. That the Reasonable Person’s Test is used to determine the right be given precedence. 64. Since the ambit of A. 21 is so vast, it encompasses several rights. What happens in the case two out of the several rights encompassed by A. 21 are in conflict? 65. In cases where the opportunity cost of saving the environment is stifling development, the judges have taken into account the interest of the larger group,159by taking the “Reasonable Person’s Test”.160 This was upheld in Sundararajan v. Union of India & Ors.,161 Individual interest or, smaller public interest must yield to larger public interest and inconvenience of some shall be bypassed for larger interest of society. 66. In one the most recent cases of 2014, Court on Its Own Motion v. State Of Himachal Pradesh and Ors.,162 the National Green Tribunal took cognizance of the debilitating condition of the environment in Kullu Manali due to construction of roads. It held that: “The risk of potential harm to the environment resulting from development should be considered by tilting the balance in favour of the environment and in the larger public interest. According to “reasonable person's test”, life and ecology have priority over unemployment and loss of revenue.” 4.3.2. That Environmental rights are to be given precedence. 67. In the present case, though both rights are fundamental to the Aressians, environmental rights are given precedence over economic rights by the judiciary as the comparative interest of the larger group is given primacy over the interest of the smaller group when the interests of the two groups are in conflict. The former group comprises not only the Aressians but the future citizens too, while the latter is a comparatively smaller 159 A.P. Pollution Control Board v. Prof.M.V. Nayadu (Retd.) & Others, AIR 1999 SC 812, ¶38. 160 CHARMIAN BARTON, PRECAUTIONARY PRINCIPLE IN AUSTRALIA, Vol. 22, 1988, Harv. Env. L. Rev. p.509. 161 Sundararajan v. Union of India & Ors., (2013) 6 SCC 620. 162 Vellore Citizens Welfare Forum v. Union of India, CWPIL No. 15 of 2010, ¶11. 20 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 group of farmers who are asking for their economic rights. Also, a reasonable man would have also preferred the former. 68. Instead of looking at what seems like a probable better option, the Legislature of Aressia should have tested the doctrine against the touchstone of ‘Reasonable Person’s Test’ to realise the importance of environmental rights of the citizens. 4.4. THAT ENVIRONMENTAL RIGHTS ARE GOVERNED BY THE DOCTRINES OF PRECAUTIONARY PRINCIPLE AND SUSTAINABLE DEVELOPMENT AND THE SAME HAVE BEEN BREACHED. 4.4.1. That the doctrines of Precautionary Principle and Sustainable Development govern environmental rights. 69. [a] By reading them into A.21 of the Constitution, the doctrines of Precautionary Principle and Sustainable Development163have been read into the environmental law of the land by the Supreme Court in Vellore Citizens Welfare Forum v. Union of India,164 since these principles are accepted as part of customary international law, there should be no difficulties in accepting them as part of our domestic law. The judgment primarily emphasised that not only did the public have a fundamental right to enjoy a wholesome environment under A.21, but the state had a positive duty to ensure that such an environmental right was made available to the citizens.165 This was upheld in several cases.166 70. The Precautionary Principle has been imported from Principle 15 of the Rio Declaration which made the theory of Precautionary Principle sound international law by integrating it with many treaties which India is a signatory to167 and hence Aressia too.168 163 Centre for Public Interest Litigation and Ors. v. Union of India (UOI) and Ors.,AIR 2013 SC 3725. 164 Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715, ¶34. 165 JONATHAN NASH, STANDING AND THE PRECAUTIONARY PRINCIPLE, Columbia Law Review, Vol. 108, 2008, p.494. 166 Smoke Affected Residents Forum v. Municipal Corporation of Greater Mumbai and Ors, 2002 (4) BomCR 479, ¶18. 167 O. MCINTYRE, & T MOSEDALE,.THE PRECAUTIONARY PRINCIPLE AS A NORM OF CUSTOMARY INTERNATIONAL LAW, Journal of Environmental Law, 9(2) (1997), 221-241 168 Factsheet, Note: 1. 21 7TH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION 2014 71. [b] In MC Mehta v. Union of India,169 the Supreme Court explained the scope of the Precautionary Principle and stated that the principle should be read with the principle of sustainable development.170 72. Precautionary principle states that any harm which can be reasonably foreseeable is to be prevented immediately.171 Its elements comprise,172 [a] Anticipatory Action, [b] Conveying the probable environmental impact of the harm to the community [c] Alternate planning [d] Cost-benefit analysis [e] Transparent, participatory, and informed decisions. 4.4.2. That the doctrines have not been adhered to. 73. In this case, the government had reasonably foreseen the harm and in accordance with the doctrine of Precautionary Principle, it should have not implemented the project. The government has also breached Rule [b] by concealing the actual environmental impact of the project from the public,173 by pressurising the Committee members to fabricate the facts to hoodwink the community into support which has subsequently violated the other rules. 74. In accordance with the aforementioned fact, laws and rules, the Counsel humbly submits that by failing to comply with the test of Precautionary Principle, the executive has violated the environmental rights that should have ideally been guaranteed to the citizens. 4.5. THAT THE DOCTRINE OF PUBLIC TRUST IS TO BE EXERCISED BY THE GOVERNMENT AND THE NON- EXERCISING OF THE SAME HAS VIOLATED ENVIRONMENTAL RIGHTS OF THE CITIZENS OF ARESSIA. 4.5.1. That the Doctrine of Public Trust is to be exercised by the Government of India. 169 MC Mehta v. Union of India, Writ petition (civil) no. 13381 of 1984 170 Tirupur Dyeing Factory Owners Association v. Noyyal River Ayacutdars Protection Association and Ors.,AIR 2010 SC 3645. 171 CAMERON, J., & ABOUCHAR, THE PRECAUTIONARY PRINCIPLE: A FUNDAMENTAL PRINCIPLE OF LAW AND POLICY FOR THE PROTECTION OF THE GLOBAL ENVIRONMENT, Boston College International And Comparative Law Review, 2001, p.14. 172 City of San Franciso, Precautionary Principle Ordinanca, §101, August 2003. 173 Factsheet, ¶15. 22