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7 HNLU NATIONAL MOOT COURT COMPETITION

SEVENTH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL


MOOT COURT COMPETITION, 2014

IN THE SUPREME COURT OF ARESS IA AT AHALI CITY

ORIGINAL SUIT NO.****/2014


WITH
WRIT PETITION (CIVIL) NO. ****/2014
WITH
CIVIL APPEAL NO.****/2014
WITH
CIVIL APPEAL NO.****/2014
CASES REGARDING PETITIONS FILED UNDER ARTICLES 131, 32 AND 133 OF
THE CONSTITUTION OF ARESSIA, 1950 AND SECTION 22 OF THE NATIONAL
GREEN TRIBUNAL ACT, 2010

IN THE MATTERS OF
STATE OF ADHALI AND STATE OF PARMALAPETITIONERS
v.
UNION OF ARESSIA.RESPONDENT
WITH
SAVE THE FARMERS FORUMPETITIONER
v.
UNION OF ARESSIA.RESPONDENT
WITH
FORUM FOR ENVIRONMENTAL RIGHT.PETITIONER
V.
UNION OF ARESSIA....RESPONDENT
WITH
CENTRE FOR ENVIRONMENTAL RIGHTS AND ADVOCACY...PETITIONER
V.
UNION OF ARESSIA....RESPONDENT

MEMORIAL ON BEHALF OF PETITONERS


7th HNLU NATIONAL MOOT COURT COMPETITION 2014

THE TABLE OF CONTENTS

THE LIST OF ABBREVIATIONS ................................................................................................ v

THE LIST OF AUTHORITIES .................................................................................................... vii

THE STATEMENT OF JURISDICTION ...................................................................................... x

THE STATEMENT OF THE FACTS ........................................................................................... xi

THE STATEMENT OF ISSUES................................................................................................. xiv

THE SUMMARY OF ARGUMENTS ......................................................................................... xv

THE ARGUMENTS ADVANCED ............................................................................................. 16

I: WHETHER SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA


VIRES TO THE CONSTITUTION OF ARESSIA. ............................................................ 16

[I.A] THERE HAS BEEN AN ENCROACHMENT UPON THE POWER OF THE


STATES BY THE CENTRE. ................................................................................................ 16

[I.A.1] Water is a state subject under List II of the Seventh Schedule .............................. 16

[I.A.2] Central Government lacks Legislative competence in this case ............................ 16

[I.A.3] Doctrine of Ancillary Power not applicable here................................................... 17

[I.A.4] Section 3 makes the act a Colourable Legislation ................................................. 18

[I.A.5] Motive of the Act is not a defense ......................................................................... 18

[I.B] SECTION 3 GOES AGAINST THE FEDERAL NATURE OF THE


CONSTITUTION OF ARESSIA. ......................................................................................... 19

[I.B.1] States are not subsidiary to the Centre ................................................................... 19

[I.B.2] Constitutional fabric must be respected ................................................................. 19

II: WHETHER THE LINKING OF RIVERS ACT, 2010 VIOLATES THE


ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA AND THE PROVISIONS
FOREST (CONSERVATION) ACT, 1980? ......................................................................... 19

[II.A] VIOLATION OF ENVIRONMENTAL RIGHTS ...................................................... 20

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[II.A.1] The Act is against the provisions of the Constitution ........................................... 20

[II.A.3]Against the principle of sustainable development ................................................. 21

[II.A.4] Arbitrary power being vested in the Government through this Act ..................... 21

[II.B] PROVISIONS OF THE FOREST (CONSERVATION) ACT, 1980 ......................... 21

[II.B.1] Linking of Rivers will not allow Conservation in the true sense of the term ....... 22

III. WHETHER, THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING


OF RIVERS PROJECT FOR THE STATE OF VINDHYA IS VIOLATIVE OF
FUNDAMNETAL RIGHTS OF PEOPLE OF STATE OF VINDHYA AND STATE OF
NORMANDA........................................................................................................................... 22

[III.A] ARTICLE 14 HAS BEEN VIOLATED. ................................................................... 23

[III.A.1] Unfair treatment meted out to the people of Vindhya and Normanda ................ 23

[III.A.2] Action of the Central Government is not reasonable .......................................... 23

[III.A.3] No substantial proof of difference between Vindhya and other States ............... 23

[III.A.4] No legislative backing of the exclusion .............................................................. 24

[III.A.5] It is an arbitrary action of the Central Government of Aressia ........................... 24

[III.A.6] The people of Vindhya and Normanda had legitimate expectation from the
Central Government ........................................................................................................... 24

[III.A.7] Clear representation had been given by the Central Government ....................... 25

[III.B] ARTICLE 21 HAS BEEN VIOLATED. ................................................................... 26

[III.B.1] The Act fails the test of Reasonableness ............................................................. 26

[III.C] A WRIT OF MANDAMUS MUST BE ISSUED IN THIS CASE. .......................... 26

[III.D] CONSTITUTION IS ABOVE THE INTERNATIONAL OBLIGATIONS OF THE


STATE ................................................................................................................................... 27

[III.D.1] India follows the dualist approach....................................................................... 27

IV: WHETHER THE PETITION FILED BY FORUM FOR ENVIRONMENTAL


RIGHT (FER) IS MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA ..... 28

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[IV.A] THE WRIT PETITION IS MAINTAINABLE BEFORE THE HIGH COURT OF


NERUDA............................................................................................................................... 28

[IV.A.1]Extracts of the Constitution involved ................................................................... 28

[IV.A.2] Opinion of the Courts in previous matters .......................................................... 28

[IV.A.3] Obligation of Respondent to secure Fundamental Rights for Boressian citizens.


............................................................................................................................................ 29

THE PRAYER .............................................................................................................................. 30

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THE LIST OF ABBREVIATIONS

& And

Anr. Another

Ors. Others

HC High Court

SC Supreme Court

V Versus

NGO Non Governmental Organization

EIA Environmental Impact Assessment

WP Writ Petition

Art Article

SCC Supreme Court Cases

C Civil

CERA Centre for Environment Rights and Advocacy

NGT National Green Tribunal

ALR Authority for Linking of Rivers

DPA Democratic Progressive Allaince

ACLU Aressian Civil Liberties Union

Edn Edition

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AIR All India Reporter

SCC Supreme Court Reports

Para

SCJ Supreme Court Journal

Ker Kerela

All Allahabad

Kar Karnataka

Pat Patna

Bom Bombay

Cal Calcutta

Guj Gujrat

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THE INDEX OF AUTHORITIES

LEGISLATIONS

1. The Constitution of India, 1950

2. Forest (Conservation) Act, 1980

3. Environment Protection Act, 1986

CASES

1. Abdul Quader v. S.T.O., AIR 1964 SC 922 ........................................................................ 2


2. Amita v. Union of India (2005) 13 SCC 721 ...................................................................... 8
3. Andhra Pradesh Pollution Control Board v MV Nayudu, AIR 1999 SC 812. ................... 6
4. Andhra Pradesh Pollution Control Board v. Prof. MV Nayudu, AIR 1999 SC 812,819 ... 8
5. Binny Limited vs. V. Sadasivan 2005 AIR (SC) 3202 ...................................................... 13
6. Board of Trustees v. Union College, AIR 1962 SC 458 ..................................................... 3
7. Chairman, Railway Board and others v Mrs. Chandrima Das and others, AIR 2000 SC
988..................................................................................................................................... 15
8. Cooper v. Union of India, AIR 1970 SC 564 ..................................................................... 3
9. Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101....................... 10
10. Dharam Dutt v. Union of India, AIR 2004 SC 1295 .......................................................... 3
11. Fatehchand v. State of Maharashtra, AIR 1977 SC 1855 .................................................. 2
12. Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.................................... 12
13. Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC ................................... 12
14. His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and
Anr.,AIR 1973 SC 1461 ...................................................................................................... 4
15. Indian council for Enviro-Legal Action v Union of India (CRZ Notification Case) 1996
(5) SCC 281. ....................................................................................................................... 5
16. Indra Sawhney v. Union of India, AIR 2000 SC 498 ....................................................... 10
17. Joshi v. Ajit Mills, AIR 1973 SC 2279................................................................................ 4
18. K.C.G. Narayan Deo v. State of Orissa, AIR 1953 SC 375 ............................................... 3
19. Kinkri Devi v State of Himanchal Pradesh AIR 1988 HP 4 ............................................... 6

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20. Louis De Raedt & Ors v Union of India & Ors., 1991 SCR (3) 149 ................................ 15
21. M C Mehta v Union of India(Delhi Stone Crushing Case) 1992 (3) SCC 256. ................. 5
22. M.P. Oil Extraction v State of M.P., AIR 1998 SC 145. .................................................. 11
23. Madras City Wine Merchants Association v. State of Tamil Nadu (1994) 5 SCC 509 .... 11
24. Maneka Gandhi v. Union of India, AIR 1978 SC 597...................................................... 12
25. Nageswara v. Andhra Pradesh Transport Corpn., AIR 1959 SC 308 ............................... 3
26. Navnit Lal v. I.T.A.A. Commr., AIR 1965 SC 1375............................................................ 3
27. Olga Tellis v. Bombay Municipal Corp, AIR 1986 SC 180 ............................................... 7
28. Om Kumar v. Union of India, AIR 2000 SC 3689............................................................ 12
29. Osmania University v. R. Madhavi, AIR 1998 AP130 ..................................................... 10
30. Pentiah v. Veeramallappa, AIR 1961 SC 1107 .................................................................. 2
31. Power Measurement Ltd. v U.P. Power Corporation Ltd. And Ors., 2003 (2) AWC 1642
........................................................................................................................................... 15
32. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002)5 SCC 111 .......... 9
33. Public Services Tribunal Bar Assn. v. State of U.P. (2003)4 SCC ..................................... 2
34. S.S. Bala v. Sardana (1997)8 SCC 522 .............................................................................. 3
35. Satish Nambiar v Union of India, 2007 (5) Bom CR 247 ................................................ 15
36. Satwant Singh v. D. Ramarathnam, AIR 1967 SC 1836 .................................................... 9
37. Shankaranarayana v. State of Mysore, AIR 1966 SC 1571 ............................................... 3
38. Sharma Transport v. Govt. of A.P., AIR 2002 SC 322 ..................................................... 10
39. State of A.P. v. Mcdowell & Co. (1996)3 SCC 709 ............................................................ 2
40. State of Bombay v. United Motors, AIR 1951 SC 252. .................................................... 13
41. State of Kerala v. A. Lakshmikutty AIR 1987 SC 331 ...................................................... 12
42. State of V.P. v. Moradhwaj, AIR 1960 SC 796 .................................................................. 3
43. State Trading Corporation of India Ltd. v Commercial Tax Officer, AIR 1963 SC 1811 15
44. Stelmakh Leonid Iuliia v Secretary, Ministry of External Affairs, WP 1648 of 2010
(Bombay High Court). ...................................................................................................... 15
45. Subhash Kumar v State of Bihar AIR 1991 SC 420, .......................................................... 5
46. Sundararamier v. State of A.P., AIR 1958 SC 468 ............................................................ 2
47. Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021 ............................................. 12
48. Syndicate v. Union of India, AIR 1975 SC 460 ................................................................ 12

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49. T. Damodar Rao v The Special Officer Municiapl Corporation of Hyderabad AIR 1987
AP 171 ................................................................................................................................ 5
50. T.N. Godavarman Thirumulpad Vs. Union of India (UOI) and Ors. AIR 2005 SC 4256.. 7
51. Union of India v. R. Sarangapani, AIR 2000 SC 2163 ...................................................... 9
52. Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715 ............................. 6
53. Virender Gaur v State of Haryana 1995 (2) SCC 577........................................................ 5

BOOKS REFERRED

1. Shyam Divan, Armin Rosencranz, Environmental Law and Policy in India, Second
Edition 2004, Oxford...6
2. D.D. Basu, Case Book on Indian Constitutional Law, Second Edition 2007, Kamal Law
House, Kolkata.3
3. M. P Jain, Indian Constitutional Law, Fifth Edition 2008, Wadhwa and Co., Nagpur...4
4. H.M. Seervai, Constitutional Law of India Volume 1,2,3, Fourth Edition 2002, Universal,
New Delhi..10

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THE STATEMENT OF JURISDICTION

The Appellants herein are the State of Adhali, the State of Parmala, Save The Farmers, the
Forum for Environmental Right and the Centre for Environmental Rights and Advocacy. Under
Article 131 (a) of the Constitution of Aressia, 1950, this Honble Court has been vested with
original jurisdiction as regards any dispute between the Government of Aressia and one or more
states. Further, under Article 32 of the Constitution, a party is permitted to move this Honble
Court by way of appropriate proceedings for enforcement of Fundamental Rights. Also, under
Article 133 of the Constitution, the Honble Court has been vested with Appellate Jurisdiction as
regards appeals arising from High Courts with respect to civil matters. Section 22 of The
National Green Tribunal Act, 2010, a statutory right of appeal within ninety days is given to any
person aggrieved by any order, award or decision of the National Green Tribunal.

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THE STATEMENT OF FACTS

I. [THE FUNDAMENTAL PROBLEM]


Aressia, a South Asian country, is a land of many small and big rivers and its economy is mainly
based on agriculture and fishing. It has a written constitution and a federal government with a strong
centralizing tendency. During the past two decades, the agriculture sector failed in Aressia because of
shortage of water. Farmers became bankrupt and an acute shortage of water in the western and eastern
regions of Aressia compelled the women folk to travel long distances in order to get drinking water.

II. [A PROBLEM-SOLUTION MISMATCH]


In the year 2009, Aressian Civil Liberties Union (ACLU), a nongovernmental organization, filed a
Writ Petition before the Honble Supreme Court of Aressia in which it highlighted the plight of the
farmers, women folk and others and also pointed out that the shortage of water was due to increased
extraction of ground water by the industries, pollution of river waters due to industrial and domestic
wastes, population growth, large scale sand mining, use of water for agricultural purposes and
unplanned urban development. ACLU also submitted a report which said that there were 782 rivers in
Aressia during 1960s and the numbers had come down to 324 by 2000, out of which 50% were highly
polluted and the water was unfit for irrigation purposes. To address the issue of water scarcity and
drying of rivers all over Aressia, the ACLU suggested Linking of Rivers across the country. The
Honble Supreme Court directed the Government of Aressia to constitute two committees one, a
High Level Expert Committee to examine the viability of connecting the rivers and the second, to
conduct an Environment Impact Assessment (EIA) pertaining to linking of rivers. The writ was
disposed on 24th September, 2009.

III. [HEALTHY CRITICISM PAID HEED TO]


In May 2010, the High Level Expert Committee identified various rivers which could be linked
together to mitigate the problem of water shortage. The EIA committee, identified some
environmental and social harms that may be caused by inter linking of rivers.

Section 3 of The Linking of Rivers Act, 2010, enacted by the Central Government in August 2010,
gave the Central Government the power to take measures for ensuring availability of water and
linking of rivers. Section 3 (3) provides for the constitution of an authority to take necessary steps for
the linking of rivers. The

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Central Government constituted an Authority for Linking of Rivers (ALR) on September 28, 2010.
Some State Governments expressed concerns regarding submergence of land and forest,
intrusion of saline water in coastal area, decrease in fisheries and sharing of water between the
states and neighboring countries. Some NGOs saw political motivation and a possibility of
corruption creeping in the implementation of the project and this compelled the Central
Government not to implement the Linking of River Project immediately.

IV. [ARBITRARY ACTIONS OF THE CENTRAL GOVERNMENT]


The Democratic Progressive Alliance (DPA) came into power in April 2011 and decided to
implement the project in three phases. The rivers included in the first phase of Linking of River
project were in the states of Somanda, Normanda, Adhali, Neruda, Vindhya and Parmala, and
exclusively belonged to the States in which they were flowing but would become inter-state after
linking. Bhargavi, one of the included rivers, started from the State of Neruda and ended in the
neighboring country of Boressia. In March 2012, Adhali and Parmala jointly approached the Honble
Supreme Court and argued that Section 3 is ultra vires to the Constitution of Aressia and is an
encroachment by the Center on the States power. Out of the 12 rivers identified from Vindhya, 8
were to be linked with rivers in Normanda. The EIA Committee appointed by the State of Vindhya
identified that the wet land in Vindhya will be damaged due to the project and the Central
Government decided to exclude the State of Vindhya from the Project upon the request of the State.
Save the Farmers Forum, which comprised farmers from the states of Normanda and Vindhya,
approached the Honble Supreme Court under Article 32 of the Constitution of Aressia for issuance of
writ of mandamus, arguing that the exclusion will violate the fundamental rights of the people of
both the states.

V. [ RIGHTS OF NEIGHBOURS NEGLECTED]


The Union of Aressia decided to go ahead with its plan of including Bhargavi in the first phase of
the project, despite the request of the Minister of Agriculture and Forest of Boressia to exclude it from
the plan on his visit to Aressia in April 2013. The Forum for Environmental Right (FER), stated in the
Honble high Court of Neruda that the linking of river Bhargavi will lead to destruction of forest
area and wildlife, submergence of wetlands and violation of right to livelihood of fishermen in
Boressia. The writ petition was dismissed on January 3rd, 2014. FER has preferred an appeal to the
Honble Supreme Court on 2nd March, 2014.

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VI. [A JOLT TO ENVIRONMENTAL RIGHTS ]


In March 2014, some members of the EIA committee, in an interview on the Daily News news
channel, said that the Linking of Rivers in certain states would result in submergence of land,
destruction of forest and wildlife and disturb the ecological balance. Four of them, out of which
two were from the Central Government, confessed that they gave a favorable EIA report under
political pressure. This news was heavily publicized by the media and NGOs and there were
widespread protests against the implementation of the project. On 2nd April 2014, Centre for
Environment Rights and Advocacy (CERA) approached the National Green Tribunal (NGT) of
Aressia and argued that the Linking of River Project is in direct conflict with the environmental
rights of citizens of Aressia and also the provisions of the Forest (Conservation) Act, 1980. On
4th July 2014, the NGT dismissed the petition filed by CERA. The CERA preferred an appeal to the
Honble Supreme Court of Aressia on 5th August 2014. The Honble Supreme Court of Aressia for the
sake of convenience decided to hear all the petitions together and framed certain issues. It is
imperative to note here that the laws in Union of Aressia and Republic of India are in pari materia.

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THE STATEMENT OF ISSUES

THE APPELLANTS IMPUGN THE FOLLOWING ISSUES FOR THE HONBLE


COURTS CONSIDERATION,

ISSUE 1:

WHETHER SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA


VIRES TO THE CONSTITUTION OF ARESSIA.

ISSUE 2:

WHETHER THE LINKING OF RIVERS ACT, 2010 VIOLATES THE


ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA AND THE PROVISIONS
OF THE FOREST (CONSERVATION) ACT, 1980.

ISSUE 3:

WHETHER, THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING OF


RIVER PROJECT FOR THE STATE OF VINDHYA IS VIOLATIVE OF
FUNDAMENTAL RIGHTS OF PEOPLE OF STATE OF VINDHYA AND STATE OF
NORMANDA.

ISSUE 4:

WHETHER THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT


(FER) IS MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA.

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THE SUMMARY OF ARGUMENTS

[I] Whether Section 3 of the Linking of Rivers Act, 2010 is ultra vires to the Constitution of
Aressia.
It is humbly submitted before the Honble Court that Section 3 of the Linking of Rivers Act is
ultra vires to the Constitution of Aressia, as there has been an encroachment upon the powers of
state by the Centre. The Central Government has passed a legislation whose provisions go
against the federal nature of the Constitution.

[II] Whether the Linking of Rivers Act, 2010 violates the environmental rights of citizens of
Aressia and the provisions of the Forest (Conservation) Act, 1980.
It is humbly submitted before the Honble Court that there has been violation of the environmental
rights as the interlinking of rivers would cause irreversible environmental damage which would
violate the fundamental rights, which have been extended to include environmental rights. It also goes
against the basic motive of Forest (Conservation) Act, as there would be destruction of forest land due
to this move.

[III] Whether, the exclusion and non-implementation of Linking of River Project for the
State of Vindhya is violative of fundamental rights of people of State of Vindhya and State
of Normanda.
It is humbly submitted before the Court that exclusion of State of Vindhya does violate Article 14 and
Article 21, as the government has not substantial proof of difference between Vindhya and the other
states of Aressia due to which the exclusion of Vindhya is done, and there is no reasonableness in tis
action. The government has been arbitrary in its action of excluding Vindhya from the process of
interlinking and has not given a legislative backing to this exclusion.

[IV] Whether the Petition filed by Forum for Environmental Right (FER) is maintainable
before the High Court of Neruda.
It is humbly submitted before the Court that the Petition is maintainable before the High Court as
there is an obligation on the Government of Aressia, as per the provisions of the Constitution of
Aressia and opinion of courts laid down in previous cases to ensure that the Fundamental Rights of
the citizens of Boressia are not violated.

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THE ARGUMENTS ADVANCED

I: WHETHER SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA


VIRES TO THE CONSTITUTION OF ARESSIA.

It is humbly submitted before this Honble Supreme Court of Aressia that Section 3 of The
Linking of Rivers Act, 2010 is ultra vires to the Constitution of Aressia1 as there has been an
encroachment upon the power of the States by the Centre [I.A]. It also goes against the federal
nature of the Constitution of Aressia [I.B].

[I.A] THERE HAS BEEN AN ENCROACHMENT UPON THE POWER OF THE


STATES BY THE CENTRE.

[I.A.1] Water is a state subject under List II of the Seventh Schedule


Entry 56 of the Union List is in relation to Regulation and development of inter-State rivers and
river valleys to the extent to which such regulation and development under the control of the
Union is declared by Parliament by law to be expedient in the public interest.2 Entry 17 of the
State List is in relation to Water, that is to say, water supplies, irrigation and canals, drainage
and embankments, water storage and water power subject to the provisions of entry 56 of List I.
3
Section 3 of the Linking of Rivers Act, 2010 declares that subject to the provisions of this
Act, the Central Government, shall have the power to take all such measures as it deems
necessary or expedient for the purpose of ensuring availability and accessibility of water and
linking of rivers all over the country.4 Further, Section 3(3) provides for the constitution of an
authority for the exercise of such powers and performance of such functions which are necessary
for the linking of rivers across the country.

[I.A.2] Central Government lacks Legislative competence in this case


It is humbly submitted before the Honble Court that the rivers concerned with the Linking of
Rivers project are exclusively belonging to the States in which they are flowing 5 and none of
them are inter-state. Under Articles 245 and 246 of the Constitution, the Legislature of a State

1
Constitution of Aressia is pari materia to the Constitution of India.
2
Entry 56, List I, Schedule VII, The Constitution of Aressia, 1950.
3
Entry 17, List II, Schedule VII, The Constitution of Aressia, 1950.
4
6, Moot Proposition.
5
9, Moot Proposition.

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can make laws for the State or any part thereof. Thus, the Central Government of Aressia has no
power whatsoever to take decisions regarding the linking of these rivers. The constitutional
validity of an act can be challenged only on two grounds viz., (i) lack of legislative competence;
and (ii) violation of any of the fundamental rights guaranteed in part III of the Constitution or of
any other constitutional provisions.6 It is respectfully brought to the notice of the court that the
Central Government of Aressia does not have competence to legislate regarding the rivers
included in the first phase of Linking of River Project, as water is a state subject and thus, the
initiative and responsibility for development of inter-state rivers and river valleys must primarily
rest on State Governments. Moreover, Section 3 of the act also violates provisions contained in
the Seventh Schedule of the Constitution of Aressia by stating that measures can be taken by the
Central Government in relation to water and linking of rivers.

[I.A.3] Doctrine of Ancillary Power not applicable here


Parliament, while enacting a law relating to List I, may make ancillary provisions which trench
upon the State field. In such a case, the State Legislature loses its admitted power under List II. 7
However, the doctrine of ancillary powers cannot be resorted to with a view to extending the
power of a Legislature over a subject which has been already provided for by the Constitution in
a specific Entry relating to that subject.8 An ancillary power must be in aid9 of and not
inconsistent with the granted power.10 The test is whether the power claimed can be reasonably
comprehended within the granted power.11 Since water has already been provided for by the
Constitution in Entry 17 of List II, the Parliament cannot extend its power over the subject.
Section 3 of the act in no way aids the legislative field demarcated by the Entries in the
respective lists. The doctrine of ancillary power would not permit a re-writing of the
Constitution.12

6
Public Services Tribunal Bar Assn. v. State of U.P. (2003)4 SCC 104; State of A.P. v. Mcdowell & Co. (1996)3 SCC
709
7
Fatehchand v. State of Maharashtra, AIR 1977 SC 1855.
8
Sundararamier v. State of A.P., AIR 1958 SC 468.
9
Abdul Quader v. S.T.O., AIR 1964 SC 922.
10
Pentiah v. Veeramallappa, AIR 1961 SC 1107.
11
Navnit Lal v. I.T.A.A. Commr., AIR 1965 SC 1375.
12
Cooper v. Union of India, AIR 1970 SC 564; D.D. BASU, CASE BOOK ON INDIAN CONSTITUTIONAL LAW 413
(2003).

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[I.A.4] Section 3 makes the act a Colourable Legislation


Colourable Legislation is such legislation where the legislators were not competent to enact. The
legislature either travels beyond its power or competence or transgresses the limits imposed by
the Constitution while framing the act.13 Since water is a State subject under Entry 17 of List II
of the Seventh Schedule, the Central Government is not authorized to legislate with regard to any
matter that pertains to it. The rivers concerned belong exclusively to their states and the State
enjoy absolute authority to make laws regarding the usage of their water, and whether the rivers
need to be linked or not. The Central Government, under Entry 56 of List I, can legislate over
rivers that are inter-state. The Central Government, through this act, has clearly acted beyond its
power and has transgressed the limits prescribed by the Constitution under the different Lists of
the Seventh Schedule. What a legislature cannot do directly, it cannot do indirectly, under the
guise of exercising ancillary power.14

[I.A.5] Motive of the Act is not a defense


The doctrine of colourable legislation does not involve any question of bona fides or mala
fides.15 If the legislature lacks competency, the question of motive does not arise at all. 16 It is
respectfully brought to the notice of the Court that the Central Government cannot take the
defense that it has passed the Linking of Rivers Act, 2010 in national interest and for the benefit
of the people of Aressia. Whether a statute is constitutional or not is always a question of
power.17 The intention of the Central government is of least importance here; what is to be noted
is that the power of the States has been encroached upon. The Central Government has gone
astray and the limits set by the Constitution have not been respected.

13
S.S. Bala v. Sardana (1997)8 SCC 522; K.C.G. Narayan Deo v. State of Orissa, AIR 1953 SC 375.
14
Id.,at 9.
15
Nageswara v. Andhra Pradesh Transport Corpn., AIR 1959 SC 308; State of V.P. v. Moradhwaj, AIR 1960 SC
796; Board of Trustees v. Union College, AIR 1962 SC 458; Shankaranarayana v. State of Mysore, AIR 1966 SC
1571.
16
Dharam Dutt v. Union of India, AIR 2004 SC 1295.
17
Joshi v. Ajit Mills, AIR 1973 SC 2279.

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[I.B] SECTION 3 GOES AGAINST THE FEDERAL NATURE OF THE


CONSTITUTION OF ARESSIA.

[I.B.1] States are not subsidiary to the Centre


It is humbly submitted before the Court that though the centre in Aressia is strong, the States are
not agents of the Centre; they exist under the Constitution and not at the sufferance of the Centre;
they enjoy a large amount of autonomy at normal times and their powers are derived from the
Constitution and not from the Central laws.18 The Constitution provides for dual government and
separation of powers which are essential features of a federal country. Section 3 of the Linking
of Rivers Act, 2010 encroaches upon the power of the states to make laws regarding water of
the rivers belonging exclusively to those states.

[I.B.2] Constitutional fabric must be respected


It is humbly submitted that Federal character of the Constitution has been regarded as a part of
the basic structure of the Constitution.19 The Central government, in this case, has acted in a
manner which is against the federal nature of our constitution The Central Government of
Aressia must respect the provision laid down by the Constitution, in which powers have been
discreetly vested in proper authorities and the scope of ambiguity is negligible. The Constitution
of Aressia, being written, constitutes the fundamental law of the land and it does not only confer
powers on the various organs of the government but also seeks to restrain those powers. It is
quite evident that this piece of legislation is against the Constitutional fabric and consequentially,
ultra vires to the Constitution.

II: WHETHER THE LINKING OF RIVERS ACT, 2010 VIOLATES THE


ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA AND THE PROVISIONS
FOREST (CONSERVATION) ACT, 1980.

It is humbly submitted before the Honble Supreme Court of Aressia that the provisions of
Linking of Rivers Act are violative of the Environmental Rights of people [II.A] and the
provisions of Forest (Conservation) Act, 1980[II.B].

18
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 19-20 (2008).
19
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr.,AIR 1973 SC 1461.

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[II.A] VIOLATION OF ENVIRONMENTAL RIGHTS

[II.A.1] The Act is against the provisions of the Constitution


It is humbly submitted before the court that the Linking of Rivers will cause violation of
environmental rights of citizens of Aressia. Every person enjoys the right to wholesome
environment, which is a facet of the right to life guaranteed under Article 21 of the Constitution
of India.20 The enforcement agencies are under an obligation to strictly enforce environmental
laws.21 Article 48(A) of the Constitution of Aressia imposes an obligation on the government,
including courts, to protect the environment.22 The interlinking of the rivers will cause adverse
affect to the environment, as it may lead to submergence of land and forest of the state, intrusion
of saline water in fertile coastal areas and decrease in fisheries. These will result in the violation
of right to healthful environment.

[II.A.2] Not very successful previous attempts


The apprehensions of the state governments are very justified as previously in other countries
such projects have awry. The Siberian experiment failed miserably as there was saline water
incursion and subsequent ecological disaster whenever the canal came up. The inter-linking will
never enhance drinking water supply.23 The human right to water is invoked in the context of
water, being only a small part of total water needs, the link with human rights that justifies
judicial activism cannot be invoked in aid of a direction for the linking of rivers, argues the
author.24 The ecological imbalance to the natural drainage of the river basins and the massive
human displacement caused by connecting the countrys rivers are yet to be fathomed.25 It is
better to err on the side of caution and prevent environmental harm, than to run risk of
irreversible harm.26

20
Subhash Kumar v State of Bihar AIR 1991 SC 420, 424; M C Mehta v Union of India(Delhi Stone Crushing Case)
1992 (3) SCC 256.; Virender Gaur v State of Haryana 1995 (2) SCC 577..
21
Indian council for Enviro-Legal Action v Union of India (CRZ Notification Case) 1996 (5) SCC 281.
22
T. Damodar Rao v The Special Officer Municiapl Corporation of Hyderabad AIR 1987 AP 171, 181.
23
Pankaj Singh and Dharamveer Singh, A Tughlakian Folly, Down To Earth, March 15, 2004, 54.
24
Ramaswamy R Iyer, Linking of judicial activism or error, Economic and Political Weekly, XXXVII, November
16, 2002, 4595.
25
Asha Ramachandran, Does the concept of networking of rivers hold water? The debate rages, Down to earth, Vol
II, no 13, November 30, 2007, 7-8.
26
Andhra Pradesh Pollution Control Board v MV Nayudu, AIR 1999 SC 812.

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[II.A.3]Against the principle of sustainable development


The precautionary principle27 requires the government authorities to anticipate, prevent and
attack the causes of environmental degradation is also violated. Precautionary Principle also
plays a significant role in determining whether the developmental process is sustainable or not.
The World Charter for Nature and Principles of Sustainable Developments, which defines it as
using the living resources in a manner which ensures the preservation of the species and
ecosystems for the benefit of future generations. As the interlinking of rivers will destroy the
ecology, it is against the principles of sustainable development.

[II.A.4] Arbitrary power being vested in the Government through this Act
Article 14 of the constitution may also be infringed by the government decisions that have an
impact on the environment.28 It may be invoked to challenge government sanctions for activities
with high environmental impact, where the permissions are arbitrarily granted without an
adequate consideration of environmental impacts.29 It is an environmental right as it protects the
citizens against arbitrary actions of government which will result in environmental degradation.
The act which was passed for the interlinking of rivers, named The Linking of Rivers Act, gives
arbitrary power to the government for taking steps for interlinking of rivers, irrespective of the
threat to the environment and ecology. Thus, it violates the fundamental right under Article 14.

[II.B] PROVISIONS OF THE FOREST (CONSERVATION) ACT, 1980

The legislature has passed the Forest (Conservation) Act, 1980 to provide for conservation of
forest and for matters connected therewith or ancillary or incidental thereto enacted the Forest
(Conservation) Act.30 The various State Governments in Aressia have shared their apprehension
that the linking of rivers may lead to submergence of land and forest. The apprehensions have a
strong foundation since linking of rivers is often accompanied by repercussions such as
deforestation and soil erosion.31 Some major impacts can be submergence of forest habitats and
movement routes of wildlife, loss of bio-diversity (flora and fauna), the deterioration of soil

27
Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715.
28
SHYAM DIVAN, ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 418(2008).
29
Kinkri Devi v State of Himanchal Pradesh AIR 1988 HP 4, 9.
30
T.N. Godavarman Thirumulpad Vs. Union of India (UOI) and Ors. AIR 2005 SC 4256.
31
Dharmendra Mehata & Naveen K. Mehta, INTERLINKING OF RIVERS IN INDIA: ISSUES & CHALLENGES,
available at http://www.geoecomar.ro/website/publicatii/Nr.19-2013/12 _mehta _web _2013.pdf (Last visited on
September 2, 2014).

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fertility, alterations in geomorphic features leading to loss of aquatic and riparian habitats,
implications for estuarine processes, changes in saline circulation and salinity gradients, altered
energy flows, changes in water quality, introduction of invasive species, and subsequent
establishment and spread of disease vectors.32 Linking of Rivers is an act of violence against
nature as it involves an action and not with the logic of nature.

[II.B.1] Linking of Rivers will not allow Conservation in the true sense of the term
It is respectfully brought to the notice of court that Conservation includes preservation,
maintenance, sustainable utilization, restoration and enhancement of the natural environment.33
The Central Government, as of now, has not announced any action that it plans to undertake in
order to counter the ill-effects that the linking of rivers will cause. The term conservation has a
huge ambit and holds under it facets of preservation, maintenance and sustainable utilization. It
is highly unlikely that any protective step taken by the government, under the precautionary
principle34 will be able to cover all the dimensions of it. It is humbly submitted that the Linking
of Rivers Project under the Linking of Rivers Act, 2010 will have a detrimental impact on the
forest cover of the country of Aressia.

III. WHETHER, THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING OF


RIVERS PROJECT FOR THE STATE OF VINDHYA IS VIOLATIVE OF
FUNDAMNETAL RIGHTS OF PEOPLE OF STATE OF VINDHYA AND STATE OF
NORMANDA.

It is humbly submitted before the Honble Supreme Court of Aressia that the exclusion and non-
implementation of Linking of Rivers Project for the state of Vindhya is violative of Fundamental
Rights of people of State of Vindhya and State of Normanda as Article 14[III.A] and Article
21[III.B] of the Constitution are being violated. Also, a writ of mandamus can be issued in this
case [III.C]. It is also to be noted that the Constitution is above the international obligations of
the country [III.D].

32
Nidhi Pasi & Richard Smardon, Inter-Linking of Rivers: A solution for water-crisis in India or a decision in
doubt?, 2 JSPG 19 (2012).
33
Olga Tellis v. Bombay Municipal Corp, AIR 1986 SC 180.
34
Andhra Pradesh Pollution Control Board v. Prof. MV Nayudu, AIR 1999 SC 812,819.

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[III.A] ARTICLE 14 HAS BEEN VIOLATED.

[III.A.1] Unfair treatment meted out to the people of Vindhya and Normanda
Article 14 of the Constitution of Aressia lays down that no one can be discriminated against
anybody and everyone should be treated as equals. It contemplates reasonableness in State
action, the absence of which would entail the violation of Article 14.35 It is humbly submitted
before the Court that all the States of Aressia would be availing themselves of the benefits of the
Linking of Rivers Project that have been enumerated by the Central Government, while the
States of Vindhya and Normanda have been unfairly prejudiced against and have been excluded
from the aforementioned project.

[III.A.2] Action of the Central Government is not reasonable


Article 14 contemplates reasonableness in State action, the absence of which would entail the
violation of Article 14 of the Constitution.36 The basis of the exclusion is an EIA report prepared
by the EIA committee appointed by the State of Vindhya. 37 It is respectfully brought to the
notice of court that a previous EIA committee appointed by the Central Government had
approved the project38 with certain precautionary measures. Therefore, it can be reasonably
assumed, as the facts are silent about the same, that the EIA by the committee appointed by the
State of Vindhya did not do its work properly since, had it conducted the job efficiently, there
would be no contradiction between the two aforementioned EIA reports.

[III.A.3] No substantial proof of difference between Vindhya and other States


The question of discrimination, if any, can arise only or between persons who are similarly, if
not identically situated.39 When we compare the people of Vindhya and Normanda to people of
other states which have been included in the first phase of Linking of River Project, no
difference arises whatsoever except for the EIA report of committee appointed by the State of
Vindhya, the credibility of which can be reasonably questioned.

35
Amita v. Union of India (2005) 13 SCC 721.
36
Id.
37
11, Moot Proposition.
38
5, Moot Proposition.
39
Union of India v. R. Sarangapani, AIR 2000 SC 2163.

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[III.A.4] No legislative backing of the exclusion


The doctrine of equality before the law is a necessary corollary to the high concept of rule of law
accepted by our Constitution. One of the aspects of rule of law is that every executive action,
prejudicial to any person, must be supported by some legislative authority.40 The direction of the
Central Government to the ALR, to exclude the State of Vindhya from the project is not backed
by any legislation or act and is completely arbitrary. The right to equality does not only mean the
right not to be discriminated against but also protection against any arbitrary or irrational act of
the State.41Violation of principle of equality envisaged under Article 14 amounts to violation of
basic structure of Constitution.42

[III.A.5] It is an arbitrary action of the Central Government of Aressia


The expression arbitrarily means: in an unreasonable manner, as fixed or done capriciously or
at pleasure, without adequate determining principle, not founded in nature of things, non-
rational, not done or acting according to reason or judgment, depending on will alone.43 It is
humbly submitted that the Central government of Aressia has not shown much prudence by
excluding the State of Vindhya from the Linking of Rivers project. The exclusion does not have
sufficient determining principle as it has been done only on the basis of an EIA report which is in
conflict with another EIA report made by the EIA committee appointed by the Central
government. It is respectfully brought to the notice of court that absence of arbitrary power is the
first essential of the rule of law upon which our whole constitutional system is based. In a system
governed by rule of law, discretion, when conferred upon executive authorities must be confined
within defined limits.44 There has been a violation of Article 14, on account of arbitrariness in
the action of the Central Government of Aressia.

[III.A.6] The people of Vindhya and Normanda had legitimate expectation from the Central
Government
The Linking of Rivers Act, 2010 gives a legal right to the people of Vindhya and Normanda to
become a beneficiary of the Linking of Rivers Project as the act does not contain any provision
that talks about their exclusion. Arguendo, even if no legal right arises, the people of Normanda

40
Satwant Singh v. D. Ramarathnam, AIR 1967 SC 1836.
41
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002)5 SCC 111.
42
Indra Sawhney v. Union of India, AIR 2000 SC 498.
43
Sharma Transport v. Govt. of A.P., AIR 2002 SC 322.
44
Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101.

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and Vindhya can have a legitimate expectation from the Central Government regarding the
implementation of the project.

A case of legitimate expectation would arise when a body by representation or by past practice
aroused expectation which it would be within its power to fulfill. 45 The Central Government of
Aressia had launched a full-fledged project which was to be implemented in six states of the
country Vindhya being one of the states. Now this sudden exclusion has robbed the people of
Vindhya as well the people of Normanda of the opportunity of getting the benefits of linking of
the rivers. Problems of a large number of farmers of these states were going to be addressed but
the exclusion will render then economically hapless.

[III.A.7] Clear representation had been given by the Central Government


For an expectation to be legitimate there must be an express promise given by a public authority
and the expectation must be reasonable.46 There is a very reasonable expectation from the
people of these two states as the problem of shortage of water is acute, and there was a clear
representation and an express promise given by the Central government through the enactment of
the Linking of Rivers Act, 2010 and then inclusion of the rivers of Vindhya in the first phase of
the Linking of Rivers Project.

The mere reasonable or legitimate expectation of a citizen may not by itself be a distinct
enforceable right, but failure to consider and give due weight to it may render the decision
arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms
part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. The
doctrine of legitimate expectation operates in the domain of public law and in appropriate cases,
constitutes a substantive and enforceable right.47 It is humbly pleaded before the court that the
exclusion of the state of Vindhya from the Linking of Rivers Project is a case where an arbitrary
decision has violated Article 14- a golden thread that runs through the entire fabric of the
Constitution.

45
Osmania University v. R. Madhavi, AIR 1998 AP130; H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 342-43
(2002).
46
Madras City Wine Merchants Association v. State of Tamil Nadu (1994) 5 SCC 509.
47
M.P. Oil Extraction v State of M.P., AIR 1998 SC 145.

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[III.B] ARTICLE 21 HAS BEEN VIOLATED.

Article 21 of the Constitution envisages a right to life and personal liberty of a person. The
fundamental right to livelihood48 guaranteed under Article 21 has been violated on account of the
arbitrary action of the State. The Linking of Rivers Project was to improve the economy of the
country by addressing the issue of water scarcity and drying of rivers all over Aressia. 49 Since
the Government is committed to ensure the availability of sufficient water not only for drinking
or sanitation but also for agricultural and industrial purposes, it is highly unjust on the part of the
Central Government to deprive the people of Vindhya and Normanda of these opportunities. The
word Life under Article 21 means a quality of Life,50 which can only be provided to the people
of Vindhya and Normanda by mitigating the shortage of water.

[III.B.1] The Act fails the test of Reasonableness


Further, in order to establish violation of Article 21, the act should be subjected to the equality
test of Article 14 and test of reasonableness under Article 19.51 Article 14 strikes at arbitrariness
because it negates equality.52 Therefore, every action of the State must be guided by reason for
public good and not by whim, caprice, and abuse of power.53 Article 19 provides that a
restriction can be characterized to be reasonable if it strikes a balance between the fundamental
right and restriction imposed thereon.54

[III.C] A WRIT OF MANDAMUS MUST BE ISSUED IN THIS CASE.

The existence of a right is the foundation of the jurisdiction of a court to issue a writ of
mandamus.55 The Linking of Rivers Act, 2010 had been enacted to ensure availability of water
to the people of Aressia by linking rivers across the country. The people of the states of Vindhya
have a legal right in this case which cannot be denied. Mandamus lies to enforce a public duty in
the performance of which the petitioner has a sufficient legal interest, but he must show that he

48
Id at 33.
49
3, Moot Proposition.
50
Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.
51
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
52
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
53
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2005) 9
SCC 779.
54
Om Kumar v. Union of India, AIR 2000 SC 3689.
55
State of Kerala v. A. Lakshmikutty AIR 1987 SC 331.

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has demanded performance which has been refused.56 The farmers from State of Vindhya and
State of Normanda protested the exclusion of State of Vindhya from the linking of river project
but ultimately they had to approach the Honble Supreme Court for issuance of the writ of
mandamus. The very purpose of mandamus is to do justice when there is a wrongful exercise of
power or a refusal to perform duties57 and even if there is an adequate alternate remedy,
mandamus is not refused where the petition deals with the violation of fundamental rights.58

[III.D] CONSTITUTION IS ABOVE THE INTERNATIONAL OBLIGATIONS OF THE


STATE

It is humbly submitted before the Court that the Central Government of Aressia cannot take a
defense that the exclusion of State of Vindhya from the Linking of Rivers Project is in
accordance with its international obligations. The Constitution is the most supreme law of the
land and any action that violates the basic structure of the Constitution can never be justified on
the grounds that it was done in order to make compliance with any other law or regulation.
According to Heinrich Triepel, the German Jurist, International law is made for states, while
national laws are for individuals.

[III.D.1] India follows the dualist approach


The rights of the individuals have been infringed here and thus this entire case must be seen with
an individualistic point of view. The dualist theory also states that municipal law prevails over
international law in case of conflicts,59 and India follows the dualist theory for the
implementation of international law at domestic level.60 The sanctity of the Constitution must not
be compromised with and it must be considered by the Honble Supreme Court that a clear
violation of the fundamental rights of the people of the States of Vindhya and Normanda has
taken place.

56
Syndicate v. Union of India, AIR 1975 SC 460.
57
Binny Limited vs. V. Sadasivan 2005 AIR (SC) 3202.
58
State of Bombay v. United Motors, AIR 1951 SC 252.
59
Edwin Borchard, The Relation between International Law and Municipal Law, 27 Va. L. Rev. 137 (1940).
60
Jolly Jeorge Vs. Bank of Cochin, AIR 1980 SC 470.

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IV: WHETHER THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT


(FER) IS MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA.

It is humbly submitted before the Honble Court that the writ petition is maintainable before the
High Court of Neruda since The Respondent has a duty to ensure Fundamental Rights of
Boressian citizens [IV.A].

[IV.A] THE WRIT PETITION IS MAINTAINABLE BEFORE THE HIGH COURT OF


NERUDA.

[IV.A.1]Extracts of the Constitution involved


It is respectfully urged and submitted before this Honble Court that the Respondent herein,
namely the Union of Aressia, is bound under Constitutional provision to ensure Fundamental
Rights to Boressian citizens. The Forum for Environmental Right had approached the Honble
High Court of Neruda challenging the inclusion of the river Bhargavi in the Linking of River
Project on the ground that an attempt to link the river Bhargavi with other rivers in Aressia will
violate the Fundamental Rights of the citizens of Boressia. The FER stated that the linking of
river Bhargavi will lead to destruction of forest area and wildlife, submergence of wetlands and
violation of right to livelihood of thousands of fishermen in Boressia. In sum, the entire line of
reasoning and argumentation adopted by FER before the Honble High Court of Neruda is
concerned with the gross and blatant violation of Fundamental Rights of Boressian citizens, if
the project is continued with.
Reproduced herein are the relevant extracts from the Constitution of Aressia, 1950:-

14. Equality before law.The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.

21. Protection of life and personal liberty.No person shall be deprived of his life or
personal liberty except according to procedure established by law.

[IV.A.2] Opinion of the Courts in previous matters


The Honble Bombay High Court observed that so far as foreign nationals are concerned, all the
fundamental rights enshrined in the Constitution of India are not available to them, except

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Articles 21 and 14 of the Constitution of India.61 The Fundamental Rights are available to all the
Citizens of the country but only a few of them are also available to persons. 62 It has been
held by the Honble Supreme Court that the words all citizens have been deliberately used to
keep out all non-citizens, including aliens.63 The fundamental right of a foreign citizen is
confined to Article 21 for the life and liberty.64 A Division Bench of the Honble Allahabad High
Court has also opined that the foreigners enjoy some Fundamental Rights under the Constitution
of this country but the same is confined to Article 21 of the Constitution. Fundamental rights,
which are available to the citizens of this country, cannot be extended to non-citizens through
Article 14 of the Constitution.65

[IV.A.3] Obligation of Respondent to secure Fundamental Rights of Boressian citizens.


But even non-Aressian citizens are entitled to the aforementioned certain Fundamental Rights.
Article 14 of the Constitution does not restrict its application only to the citizens, but commands
the State not to deny equality before law or the equal protection of laws to any person. Article
14, thus, makes a general rule, which, of course, is capable of being deciphered by several
circumstances justifying a differentiation.66

It is therefore urged that since even non-Aressian citizens are entitled to these limited
Fundamental Rights, therefore even Boressian citizens are entitled to avail of them. Thus, it is
urged that the petition was maintainable before the Honble High Court of Neruda and fit to be
heard, as certain Fundamental Rights are available to non-citizens, including Boressian citizens.

Hence, it is clear that certain rights have indeed been bestowed on non-citizens also. So, the river
linking project, on account of it being harmful to the citizens of Boressia, cannot be sustained in
the eyes of law. The Honble High Court of Neruda, thus, stands unjustified in rejecting the writ
petition on the ground of preliminary objection raised by the Respondent.

61
Stelmakh Leonid Iuliia v Secretary, Ministry of External Affairs, WP 1648 of 2010 (Bombay High Court).
62
Chairman, Railway Board and others v Mrs. Chandrima Das and others, AIR 2000 SC 988.
63
State Trading Corporation of India Ltd. v Commercial Tax Officer, AIR 1963 SC 1811.
64
Louis De Raedt & Ors v Union of India & Ors., 1991 SCR (3) 149.
65
Power Measurement Ltd. v U.P. Power Corporation Ltd. And Ors., 2003 (2) AWC 1642.
66
Satish Nambiar v Union of India, 2007 (5) Bom CR 247.

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THE PRAYER

WHEREFORE, in the light of the Acts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Honble Court, that it may graciously be
pleased to

1. Declare Section 3 of the Linking of Rivers Act, 2010 ultra-vires to the Constitution.
2. Constitute a high-powered committee to conduct a detailed Environment Impact
Assessment and a Social Impact Assessment.
3. Examine the report of such committee.
4. Include adequate safeguards to protect Environmental interests, the interests of the states of
Aressia as well as the interests of Boressian citizens.

And pass any other order/s that this Honble Court may deem fit in the favour of the Petitioners
so as to meet the ends of equity, justice and good conscience.

All of which is mostly humbly and respectfully submitted.

COUNSEL FOR THE PETITIONERS

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