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NHRC-NUSRL NATIONAL MOOT COURT

COMPETITION 2023

Before
THE HON’BLE SUPREME COURT OF INDIA

FILED UNDER ARTICLE 32 OF

THE CONSTITUTION OF INDIA

IN THE MATTER BETWEEN:

THE PETITIONER ELIS ANTI-RADIATION ORGANISATION

VERSUS

THE RESPONDENT UNION OF INDIA AND OTHERS

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TABLE OF CONTENTS

Cover Page.................................................................................................................................

TABLE OF CONTENTS.......................................................................................................I

INDEX OF AUTHORITIES...............................................................................................III

INDEX OF ABBREVIATIONS.........................................................................................IV

STATEMENT OF JURISDICTION.................................................................................VI

STATEMENT OF FACTS................................................................................................VII

ISSUES RAISED.................................................................................................................IX

SUMMARY OF ARGUMENTS..........................................................................................X

ARGUMENTS ADVANCED...............................................................................................1

1 THE PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA...................................................................................1

1.1 THE PETITIONER HAS LOCUS STANDI AND SUFFICIENT INTEREST

..........................................................................................................................13

1.2 NO ALTERNATE AND EFFICACIOUS REMEDY IS AVAILABLE TO

THE PETITIONER..........................................................................................13

1.3 “THE HON'BLE COURT IS A “SENTINEL ON THE QUI VIVE”..............14

2 THE DIRECTION OF THE GOVERNMENT OF INDIA IS IN VIOLATION OF

ARTICLE 19(6) OF THE CONSTITUTION OF INDIA.......................................16
, that a mere threat to infringement of fundamental rights is enough to justify the
issue of the writ petition. Elis Anti-Radiation Organisation has the requisite locus
[Plaintiff/ Appellant/ Applicant] v. [Defendant/ Respondent], [Citation].

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standi to approach this court in the present matter. Locus Standi means the right
to bring an action, be heard in court, or address the court on a matter before it. In
other words, the term “locus standi” can be understood as a legal capacity to
challenge legislation, an order or a decision. Under Art. 32, this Hon’ble Court
has power to grant remedial relief which includes the power to grant
compensation in appropriate cases where the fundamental rights of the poor are
violated.

1.1 NO ALTERNATE AND EFFICACIOUS REMEDY IS AVAILABLE TO THE

PETITIONER

It is humbly submitted before this Hon’ble Court that approaching the SC under
Art. 32 for the protection of fundamental rights is itself a fundamental right.
Since the matter was related to healthy life and living with dignity, the petitioners
are having the right to seek remedyPAGE
in the| 1Apex Court under Art. 32 hence, it was
held before this Hon'ble Court that the mere existence of an adequate alternative
legal remedy could not be per se be a suitable and sufficient ground for
dismissing a petition under Art. 32 of India's Constitution.

Mandamus is not refused on the ground that there is an adequate alternative

remedy where the Petitioner complains that his fundamental right is infringed.
The courts are duty-bound to protect the fundamental rights, and therefore,
mandamus is issued. It is only when mandamus is issued "for any other purpose"
that the existence of an alternate remedy bars its issuance. In Rashid Ahmad v.
Municipal Board, it was held that in relation to the Fundamental Rights, the
availability of alternative remedy could not be an absolute bar for the issue of
writ however, the facts can be taken into consideration. By reason of the above
holdings, the present petition stands maintainable in the absence of an alternate
and efficacious remedy.

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1.2 “THE HON'BLE COURT IS A “SENTINEL ON THE QUI VIVE”

This Hon'ble Court has repeatedly assumed the role of the “sentinel on the qui
vive” to enforce the fundamental rights of the people. It is the watchful Guardian
of our rights. It is humbly submitted that in light of the prevailing circumstances
in India, the Court has the constitutional duty and obligation to entertain this
petition. It is the duty of the Courts to examine the merits of each case with
respect to the prevailing situation, looking at the violations of the fundamental
rights alleged, and decide in view of the changing notions of life and personal
liberty of humans.

Therefore, we request the Hon’ble SC to hold the petition as maintainable under

Art. 32 of the Constitution of India. 1

1
[Plaintiff/ Appellant/ Applicant] v. [Defendant/ Respondent], [Citation].

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2 THE DIRECTION OF THE GOVERNMENT OF INDIA IS IN VIOLATION OF

ARTICLE 19(6) OF THE CONSTITUTION OF INDIA.

It is most humbly submitted before this Hon'ble Court that the direction given by the
Government of India is in violation of Art. 19(6) of the Constitution of India. Article
19(1)(g) says to practice any profession, or carry on any occupation, trade or business
but is subject to restrictions imposed in the interest of the general public under Art.
19(6). In Burrabazar Fire Works Dealers Association and Others v. Commissioner of
Police, Calcutta AIR 1998 Cal. 121 ,15 it was held that the Art. 19 (1)(g) does not
guarantee any freedom which is at the cost of the community’s safety, health and
peace. Right to Health is a part and parcel of Right to Life and therefore right to
health is a fundamental right guaranteed to every citizen of India. We owe the
recognition of this right to the fact that the Supreme Court of India, through a series
of judicial precedents, logically extended its interpretation of the right to life to
include right to health.

2.1 THE DIRECTIONS OF THE GOVERNMENT ARE NOT REASONABLE

The Supreme Court has held that in examining the reasonableness of a statutory
provision, whether it violated the fundamental right guaranteed under Art. 19,
one has to keep in mind that the directions must not be arbitrary or of an
excessive nature, going beyond the requirement of the general public's interest.
No abstract or general pattern or a mixed principle can be laid down so as to
be of universal application. A just balance has to be struck between the directions
mandate and social welfare envisaged by Art. 19. We need to think about the
prevailing social welfare , which are to be satisfied with the appropriate
directions .There must be a direct and proximate nexus or a reasonable
connection between the legal directions and the object sought to be achieved by
the Act, that being so a strong presumption in favour of the constitutionality of
the Act will naturally arise.16 Now, in the present case.234
2
[Plaintiff/ Appellant/ Applicant] v. [Defendant/ Respondent], [Citation].

3
[Plaintiff/ Appellant/ Applicant] v. [Defendant/ Respondent], [Citation].
4
[Plaintiff/ Appellant/ Applicant] v. [Defendant/ Respondent], [Citation].

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2.2 THE DIRECTIONS BY THE GOVERNMENT SEEMS ARBITRARY AND

UNJUSTIFIED

There are numerous decisions, both from India and foreign countries which
mandate that “obscenity” should be gauged with respect to contemporary
community standards that reflect the sensibilities as well as the tolerance levels
of an average reasonable person.17

‘Apollo National News’ dated 18th July 2012 relates to the devastating effect of
radiation emanating from the mining of uranium on environment and the people
living in the vicinity. As related to the Indian Council for Enviro-Legal Action v.
Union of India & Ors., which too implies the plight of people living in a
torturous environment and further requesting for the remedial measures.

These facts simply indicates that the government is too careless to examine the
harmful devastating effects of something which is done in favour of so-called
nation growth in name of life threats of innocent people. It is worthy to note the
fact that if the action is done by a PSU assigned by the Department of Atomic
Energy, Government Of India is violating a person’s fundamental right , the
court should not accept the mere excuse that it is not ‘State’ within the meaning
of Article 12, and therefore it is pleaded that the appropriate action should be
taken against it .
2.3 THE DIRECTIONS CANNOT JUSTIFY THE CONSTITUTION

It is most humbly submitted to the Hon’ble Court that the basic relevant
provisions of the Constitution are violated by the ‘State’ which further includes
the right to healthy life of an individual.

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2.3.1 The Principles of substantial and grave injustice were propounded in M.C. Mehta v.
State of Tamil Nadu which directly connects with the hazardous employment of the
people living thereby and thus considered a true meaning of infringement of
fundamental rights.567

2.3.2 In Shriram Food and Fertiliser Case, well known as M.C. Mehta v. Union Of India,
1987 which allows the PIL to humbly submit the negligence of management in
maintenance which is hereby proven with the facts of the case which comes under the
absolute liability of the respondent.

2.3.3 Section 41-C of Factories Act 1948 impugned provisions for the specific
responsibility in relation to hazardous process to which the petitioner humbly submits
its negligence.

2.3.4 Art. 21 of the Indian Constitution guarantees the right to life and personal liberty
which includes the right to healthy environment free from pollution through which the
petitioner humbly submits the meaning of communal harmony under the light of
Ramesh v. Union of India.
5
[Plaintiff/ Appellant/ Applicant] v. [Defendant/ Respondent], [Citation].

6
[Plaintiff/ Appellant/ Applicant] v. [Defendant/ Respondent], [Citation].

7
Pakkle v. P. Aiyaswami Ganapathi

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2.3.5 Balancing the interest of the petitioners through the merits of the case, hence thereby,
the pleading is constitutional in rule of law.

2.4 DIRECTIONS VIOLATING THE IMPUGNED SECTIONS AS IN LITERAL

MEANING

2.4.1 The Scope of Art. 21 was elaborately considered by the SC in Indian Council for
Enviro-Legal Action v. Union of India depicting the plight of people living in vicinity
of the chemical industry plants in India. Compulsion, in this context, means no other
alternative for the remedial measures with the hope that this Hon’ble Court will
entertain the matter with full legal actions implementing the necessary issues and
orders to perform the various statutory duties as mentioned in various concerning acts
and regulations.
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‘Polluter Pays Principle’ prima facie concerns with the principle on which the
liability of the respondents to defray the costs of remedial measures will be
determined is, “Polluter Pays”. It is thereby humbly submitted before this Hon’ble
Court to issue directions to check the requisite licenses and to inquire about the
installation of any equipment for treatment of highly toxic effluents discharged by
them and thereby in accordance to that it is pleaded to quash the order of
implementation of this company and forbid any further works.

2.4.2 It is humbly submitted by the petitioners that Section 3(d) of Fair Compensation and
Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 has
been violated as the work going on does not define “public purpose” for which land
has been acquired.

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2.4.3 The ‘shady homes’ therefore contents with the fact that the impugned sections in the
questions are not aligned with the provisions of Section 23 of the LARR Act, which
provides for compensation to be paid to the land owners and those whose livelihoods
are affected by the acquisition of aforementioned land. It is felt that the interest of the
local people who are victims of the arbitrary action of the govt. is not protected under
the Sec. 41 of the LARR Act which concerns the facility of providing rehabilitation
and resettlement of those affected by the land acquisition. The Objects and reasons are
not clearly defined by the govt. and thereby it is humbly pleaded before this Hon’ble
Court for the speedy trial to restore the infringed fundamental right as mentioned.

2.4.4 A similarly placed classification in Art. 21 was held to be reasonable in Subhash

Kumar v. State of Bihar. Therefore reading this judgement in the light of the fact of
vulnerability of victims who have the right to enjoy pollution free water and air which
concerns the right to healthy life and hereby this pleading is reasonable.

2.4.5 Reading all the aforementioned judgements, in parallel to the facts of the present case,
it is to be clearly noted that the impugned provisions stand tall on all the tests
pronounced by this Hon’ble Court.8

8
Nilabati Behera v. State of Orissa

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2.5 NUISANCE AND NEGLIGENCE PROVING THE MERITS OF PENALTY:

2.5.1 It is humbly submitted by the petitioner that postulates of absolute liability is in

distinction to prove the merit of the case and to protect the wills of the victims so that,
a welfare state is established. M.C. Mehta v. State of Tamil Nadu concluded that
pollution is a civil wrong by its nature, it is a tort committed against community as a
whole. A person whosoever guilty of the cause, has to pay for the damages and
compensation thereby.

2.5.2 It is thereby pleaded in this Hon’ble Court that the ‘State’ cannot have a just excuse to
defend and can be proved guilty as per the statements which arise during the
proceedings. In Pakkle v. P. Aiyaswami Ganapathi9, the court has observed that the
standard of reasonableness is to be judged accordingly in compliance to the principles
of ‘sovereign immunity’.

2.5.3 The objects and reasons of this petition corelates with the magnitude and gravity of
the harm caused, it is pleaded before the court that an absolute liability must be
obliged with the considerable compensation to disprove the negligence caused so that
it can respectfully be submitted the interpretation of Nilabati Behera v. State of
Orissa10 which laid down the principle for the awarding of compensation by the court
under Art. 32 to the victim of State action.11

2.5.4 Following the line of arguments, the principle of absolute liability presupposes a non-
deligable duty on the part of the industry to prevent environmental pollution and be
prepared to face all the direct, indirect or foreseeable consequences and pay
compensation, if there is environmental pollution due to its activities.

3 WHETHER THE ACTS OF THE MINING COMPANY (CUCL) ARE HARMING

10
Rural Litigation and Entitlement Kendra & Ors. v. State of Uttar Pradesh (Dehradun Valley Litigation), 1985
11
[Plaintiff/ Appellant/ Applicant] v. [Defendant/ Respondent], [Citation

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THE ENVIRONMENT

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3.1 THE DISTINCTIONS HAS REASONABLE NEXUS TO THE ACT SUPPORTED

3.1.1 It is most humbly submitted in this Hon’ble Court that the actions which have been
done by the CUCL, be it voluntarily or accidentally, harmfully affect the
environment. In Rural Litigation and Entitlement Kendra & Ors. v. State of Uttar
Pradesh12, Justice. P.N. Bhagwati held that issues relating to the environment,
ecological balance and the questions arising for the consideration are of grave
moment and significance not only to the native people but also to the generality of the
people residing in the country and the environment being affected by the mining
activities infringe the right to the enjoyment of pollution free environment of the
general public under Sec.21 of the Indian Constitution.

3.1.2 Further, the harmful effects of radioactive wastes are amplified if the body in-charge
of handling and disposing of the residual wastes is incompetent in disposing off the
wastes properly. This improper discharge of wastes can lead to the effects of
radioactive substances being catalysed by means of waterbodies and air. The Incident
which occurred at Cuckoo Creek was a result of the aforementioned negligence and
careless attitude of the officials. The CUCL also appeared extremely apathetic when
addressing the incident as they termed the incident as a “Small Leak”.

3.1.3 Therefore, it is not vague to express that the CUCL does not impose the proper
enforcement in the restriction of entering the dumping areas and no other measures to
prevent people from being exposed to radioactive wastes have been taken.

3.1.4 It is specifically mentioned in the Section 7 of the Environment (Protection) Act, 1986
that no person carrying any industry shall discharge in excess of standards prescribed
and in this virtue it is made under the act for the public welfare and communal
harmony.

3.1.5 As held in Delhi Jal (Water) Board v. National Campaign for Dignity and Rights of
Sewerage and allied workers & Ors., The Hon’ble Delhi High Court awarded the
compensation relief to defendants to the deceased worker’s family invoking its
inherent power U/s 482 of Cr.P.C. The Court has mandated that there should be
equipped tools and gadgets provided to the workers working in hazardous industries.

12
[Plaintiff/ Appellant/ Applicant] v. [Defendant/ Respondent], [Citation].

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3.1.6 Mention of special provisions were held in Gujarat High Court in Suo Moto v. Vatva
Industries Associates, Ahmedabad that permitted the Pollution Control Board and its
officers that they are free to take actions against any persons, institutions or industries
which violates the provisions of Environmental Law. Infact, such a course of seeking
directions from the court amounts to dereliction of duty but no such action was taken
in the following aforementioned case.

3.1.7 Regarding the correct interpretation of “Polluter Pays Principle” and “Precautionary
Principle”, the court held in Anuj Joshi and another v. Union of India, that the project
company shall have to face the consequences and can be proven guilty when coming
to those principles.

3.1.8 Reading Principle 16 of the Rio Declaration Earth Summit 1992, it is clearly
incorporated that the national authorities should endeavour to promote the
internationalisation of environmental costs and the use of economic instruments but
this subjects to a very concerning issue that this should not be done after infringement
of “Polluter Pays Principle” but this should be in due regard to public interest and
communal harmony.

3.1.9 As held in the California Court, in the historic Mono Lake Case titled as National
Audobon Society v. Superior Court of Alpine County, the learned judge pointed out
that a natural resource like a river is not owned by the state but is only a trustee of it,
but the beneficiaries are the people who use the river water. Holding the respondent
liable for breach of public trust, the court issued strict directions. Thus this procedure
is rational and determines the principle to be followed and specific relief as prayed to
be announced.

3.1.10 As held in T.N. Godavarman Thirumulpad v. Union of India, the SC observed that,
“natural resources are no the ownership of any one state or individual, public at large
is its beneficiary” therefore the state has the real responsibility to protect and conserve
as being the trustee for the same.

3.1.11 Subsequently, in Consumer Education and Research Center v. Union of India, the
court pointed out that the Right to Life under Article 21 of the Constitution includes
Right to live in hygienic conditions & leisure and the Right to Health.

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3.2 PROCEDURAL LAW DICTATING THE MERITS OF PENALTY

3.2.1 It is pertinent to mention here that criminal law proceedings can also be initiated
against the polluter of the environment for the offense of public nuisance under
Section 268 of the Indian Penal Code XIV of the IPC, 1860 contains “offenses
affecting the Public health, safety, convenience” and Section 268 defines ‘public
nuisance’ as an offense.

3.2.2 Section 284 of the IPC concerns with the negligence conducted with respect to
poisonous substances.

3.2.3 Further, the provisions contained in Chapter X – Part B of the Cr.P.C. 1973 deal with
public nuisance and relate to abatement of environmental pollution. Sections 133 to
143 of the Cr.P.C. deals with the protection of environment.

3.2.4 It is further stated that the right of the workers to know of the imminent and unseen
dangers of their profession has also been violated under Section 41-H of the Factories
Act 1948. Hence proper criminal proceedings are to be taken under the rule of law.

3.2.5 Conclusively, the petitioner would like to humbly submit before this Hon’ble Court of
Law that the impugned provisions stated above are violative of Art. 21 and thus
unconstitutional.

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PRAYER FOR RELIEF

Wherefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully requested that the Hon’ble Supreme
Court of India be pleased to:

1. Declare, that the writ petition is maintainable under Article 32 of the Constitution of
India.

&

2. Declare, that the direction of the Government of India is in violation of Article 19 of

the Constitution of India

&

3. Declare, that the acts of the mining company CUCL are harming the environment.

AND/OR

The Court may issue any other order as the court deems fit in the interest of justice, equity
and good conscience.

For this act of kindness, the Respondents shall be duty-bound forever.

All of which is most humbly and respectfully submitted.

MEMORIAL for PETITIONER PAGE | PRAYER FOR RELIEF