WRITTEN SUBMISSIONS

I. Whether the PIL filed by Environment Concerned Agency (ECA) is

maintainable or not?

The petitioners humbly submit that the instant PIL is maintainable under Article 32 of the
Indian constitution. This argument is fourfold. Firstly, the petitioners have a bona fide interest
and hence they have a locus standi [1.1]. Secondly, the fundamental rights of the citizens
have been violated [1.2]. Thirdly, the alternative remedies available to the Petitioners are not
equally efficacious. [1.3]. Lastly, in any event, the alternative local remedy is not equally
efficacious [1.4].

1.1. That the petitioners have a locus standi.

“Locus standi” is the right of a party to appear and be heard on the question before any
tribunal.1 It means the legal capacity to invoke the jurisdiction of the court.

The SC has ruled that to exercise its jurisdiction under art 32, it is not necessary that the
affected person should personally approach the court. The court can itself take cognizance of
the matter and proceed suo motu or on a petition of any public spirited individual or body.2

In landmark cases3 the SC has evolved a new rule viz., any member of the public, acting
bona fide and having sufficient interest can maintain an action for redressal of public wrong
or public injury. In S.P Gupta v. UOI4 the court observed that, “any member of the public
having sufficient interest can maintain an action for judicial redress for public injury arising
from breach of public duty or from violation of some provisions of the constitution or the law
and seek enforcement of such public duty and observance of such constitutional or legal
provision”.

However, the member of the public should not be a mere busybody or a meddlesome
interloper but one who has sufficient interest in the proceeding. In the instant matter, the
petitioners i.e. SAVE BLUE is an organisation exclusively devoted to research and other
1
Wharton’s Law Lexicon, 15th Edn. 2009, p.1019.
2
Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722, (SC 1996).
3
S.P Gupta v. UOI, AIR 149, (SC 1982); PUDR v. UOI, AIR 1473,( SC 1982); Bandhua Mukti Morcha v. UOI, AIR
1986, (SC 802).
4
AIR 1989, (SC 849).
works to develop marine ecosystem and are concerned about the environment and the impact
it shall create on the public if hampered, so save blue has a right to be a locus standi and to be
heard before the Supreme Court of Sindia.

Furthermore, even if the petitioner in fact moved to the Court in private interest and for the
redressal of his personal grievances, or to seek his personal revenge, Court can proceed to
enquire the state of affairs of the subject of the litigation in the interest of justice and in
furtherance of justice. Individual conduct of the party would not be of any relevance when the
Court entertains PIL and construed not only provisions of any statute but also had taken into
consideration the subsequent events.5 So even if the PIL is filed by the top native people and
former Member of Parliament including Mr. Saarkar of opposition party Union People Party
(UPP) as members then also they have the Locus Standi. If the court finds the question raised
to be of substantial public interest, the issue of locus standi of the person placing the relevant
facts and materials before the court becomes irrelevant.6

In People’s Union for Democratic Rights v. Union of India7 at 1477 (of AIR), it was
observed that Public Interest Litigation, as we conceive it is essentially a cooperative or
collaborative effort on the part of the petitioner, the State or public authority and the Court to
secure observance of the constitutional or legal rights, benefits and privileges conferred upon
the vulnerable sections of the community and to reach social justice to them. The State or
public authority against whom public interest litigation is brought should be as much
interested in ensuring basic human rights, constitutional as well as legal, to those who are in a
socially and economically disadvantaged position, as the petitioner who brings the Public
Interest Litigation before the court. The State or public authority which is arrayed as a
respondent in public interest litigation should, in fact, welcome it, as it would give it an
opportunity to right a wrong or o redress an injustice done to the poor and weaker sections of
the community whose welfare is and must be the prime concern of the State or the public
authority. So in this case also it can be seen that the Sakura Island, the smallest of all is the
home of Saakuria tribe one of the most indigenous in the world with no outside world touch
and the island is a Prohibited Area and in other costal villages also native tribal people lived
whose primary occupation is fishing so it is necessary to protect the interest of the poor,
ignorant , socially and economically disadvantaged group of the society so Public Interest
Litigation brought by the Save blue organisation should be entertained.
5
Ashok Lanka v. Rishi Dixit,5 SCC 598, (SC 2005).
6
T.N. Godavarman Thirumulkpad v. UOI, , 2006 WP(C) No. 202 of 1995.
7
AIR 1982 SC 1473
In Bihar Legal Support Society v. Chief Justice of India8, the Supreme Court observed that
Supreme Court has always regarded the poor and disadvantaged as entitled to preferential
consideration than the rich and the affluent, the business and the industrialists. The reason is
that the weaker section of the Indian humanity has been deprived of justice for long years;
they had no access to justice on account of their poverty, ignorance and illiteracy. The
strategy of public interest litigation has been evolved by the Supreme Court with a view to
bringing justice within the easy reach of the poor and the disadvantaged sections of the
community.

In the instant case also the petitioner have locus standi as they are fighting for the rights of
the most indigenous in the world.

In J.M. Desai’s case9 the summarization of the law of locus standi find out that the other
categories of persons aggrieved who can have the locus standi. “In recent trend it appears that
the scope of the PIL filed under Art. 32 of the constitution does not refer to any violation of
fundamental right and it appears that the judges have forgotten that ours is a written
Constitution and when power exercised under Art. 32 of the Constitution it shall be related to
violation of the fundamental rights of others who would not come to the court because of
their poverty, illiteracy and those who do not know how to come to the court for justice.

Therefore, locus standi of the petitioners should not be in question.

8
AIR 1987 SC 38:( 1986) 4 SCC 767.
9
AIR 1976 SC 578 : (1976) 1 SCC 671
1.4. In any event, the alternative local remedy is not equally efficacious

The respondents may submit that the NGT is better equipped to hear this case, than this
Hon’ble Court since it has expert members who can evaluate scientific claims. However, it is
submitted that the issues herein do not just relate to the procedural aspects of granting
environmental clearances. While this falls squarely within the jurisdiction of this Court under
Art 32, the NGT is not equipped to assess claims of violation of fundamental rights. Its
jurisdiction is circumscribed to adjudicating upon harm to the petitioner due to the
environmental consequences, damage to the environment and damage to property.10

Therefore, while it may be legal for the NGT to hear this case, it is not expedient or
efficacious.

Moreover, under the NGT Act only the person aggrieved by an order made under the FCA
and/or EPA can seek relief from the Court.11 These bars any public-spirited person or
organization, such as the Petitioner, from approaching the NGT due to the rigidity of the
locus standi requirement. On the contrary, the relaxation of locus standi rules by this Hon’ble
Court ensures that this dispute may be filed as a Public Interest Litigation (PIL). Further, the
petitioners submit that the persons whose Fundamental Rights have been affected are Tribal
Communities who are unaware of their Fundamental Rights and the legal procedure to seek
remedies. It is therefore imperative that the petition be adjudicated upon by the Supreme
Court so that concerned environmental groups like the Petitioner may render able assistance
to the Court.

In any case, the NGT is ill-equipped to deal with the petition in its entirety as its provisions
pertain only to the resolution of environmental disputes. While the NGT may have
jurisdiction for adjudicating upon orders passed under the FCA and EPA,12 it does not have
jurisdiction to decide upon issues arising out of FRA and PESA. It is submitted that these
questions are central to the petition as they concern statutory rights granted to the Tribal
Communities. This distinguishes the petition from a simple environmental dispute. Moreover,
it is illogical to split the petition because the issues of rights are integral and emanate from
the orders being challenged. Further, it will cause great inconvenience to the Petitioner to
agitate the matters in two different Courts. In the instant due to the special regulations 2.5 &
10
National Green Tribunal Act § 2(1)(m) (2010).
11
National Green Tribunal Act § 16 (2010).
12
National Green Tribunal Act § 16 (2010).
5.4.1 not only the unique environment of the costal stretches is in danger but also tribal
people of the island that is right to livelihood is also getting violated. Thus, it is submitted
that only the Supreme Court can render effective justice in the instant case.

1.2 That there is violation of fundamental rights of the Tribal People

It is humbly submitted that there was violation of fundamental rights of the citizens due to the
acts of the government. The fundamental rights are fundamental in the sense that human
liberty is predicated on their availability and vice versa, and thus they cannot be waived.13

Article 21 of the Constitution envisages a right to life and personal liberty of a person. The
word “Life” under Article 21 means a quality of life14 , which includes right of food, and
reasonable accommodation to live in15 and the right to a wholesome environment.16Also
ICCPR17, UDHR18 and ICESCR19 recognizes right to life and adequate standard of living.

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 19.20 Article 14 strikes at
arbitrariness because it negates equality21 and permeates the entire fabric of Rule of Law22.
Therefore, every action of the State must be guided by reason for public good and not by
whim, caprice, and abuse of power.23Article 19 provides that a restriction can be
characterized to be reasonable if it strikes a balance between the fundamental right and
restriction imposed thereon.24

The fundamental rights are intended not only to protect individual rights but they are based
on high public policy. Liberty of the individual and the protection of the fundamental rights
are the very essence of the democratic way of life adopted by the constitution, and it is the
privilege and the duty of this court to uphold those rights.25

13
Basheshar Nah v. I.T. Commissioner, AIR 149, (SC 1959) ; Olga Tellis v Bombay Municipal Corporaion,
AIR 180, (SC 1986) ; Nar Singh Pal v. UOI ,3 SCC 589,(SC 2000).
14
Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.
15
Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630.
16
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
17
Article 6, ICCPR.
18
Article 3, UDHR.
19
Article 11, ICESCR
20
Maneka Gandhi v. Union of India. AIR 1978 SC 597.
21
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
22
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
23
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514.
24
Om Kumar v. Union of India, AIR 2000 SC 3689.
25
Daryao v. State of UP, AIR 1457, (SC 1961
Violation of fundamental rights is sin qua none of the exercise of the right conferred by art.32
.26When once the court is satisfied that the petitioner’s fundamental right has been infringed,
it is not only its right but also the duty to afford relief to the petitioner, and he need not
establish either that he has no other adequate remedy, or that he has exhausted all remedies
provided by law, but has not obtained proper redress. When the petitioner establishes
infringement of his FR, the court has no discretion but to issue an appropriate writ in his
favor.27

In Bandhua Mukti morcha28 the apex court has clarified that procedurally, under article 32,
it is not bound to follow the ordinary adversary procedure and may adopt such procedure as
may be effective for the enforcement of the FR.

In S.S Bola v. B.D. Sardone,29 it was held that the constitutional courts alone are competent
and it is their primary constitutional duty to exercise the power of judicial review to
pronounce upon the constitutionality of the act, rules and orders. The object of the judicial
review is to maintain constitutionalism to uphold the constitutionality and to uphold the
legislative act, administrative action and quasi-legislative order within the confines of the
constitution. It is basically directed against the action of the state or its instrumentality.
Judicial review has an unavoidable necessity wherever there is a constant danger of
legislative or executive lapses, an appalling erosion of an ethical standard of the society. The
judicial review is the basic feature of the constitution which has been entrusted to the
Constitutional court namely the Supreme Court and the High Court under Articles 32, 226
and 227 respectively. It is the constitution duty and the responsibility of the Constitutional
Court as assigned under the Constitution to maintain the balance of power between the
legislative the executive and the judiciary. The Court either would enforce valid act/action or
refuse to enforce them when found unconstitutional.

In the instant case, In October 2019 government launched a huge ocean power project in
Sabath Island wherein 10 costal villages were to be taken up and given rehabilitation
including the two villages of native tribes whose primary occupation is fishing. Due to above
mentioned project there is violation of Article 19 (1) (g) as their primary occupation will get
curtailed and article 21 which also includes right to livelihood is also getting infringed

26
Federation of Bar association in Karnataka v UOI, AIR 344, (SC 1981).
27
Supra note 7.
28
AIR 814, (SC 1984)
29
AIR 1997 SC 3127 : (1997) 7 SCC 123.
because they are in a habit of living in a closed group so they will not be able to adapt at the
new place.

1.3 There is no requirement for the Petitioner to exhaust local remedies

a) The right under Art. 32 is not subject to the exhaustion of local remedies

The right to approach this Hon'ble Court in case of violation of fundamental rights is itself a
fundamental right enshrined in Art. 32.30 In Prem Chand Garg, it was held that this right is
absolute and may not be impaired on any ground.31 Further, unlike in Art. 226, the remedy
provided by Art. 32 is a fundamental right and not merely a discretionary power of the
Court.32 Moreover, this Hon’ble Court has on multiple occasions expressly rejected an
argument that called for exhaustion of local remedies.33 Therefore, it submitted that it is not
open to this Court to carve out exceptions when there are none in the text.

Furthermore, judicial orders are not amenable to writ jurisdiction under Art. 32.34
Consequently, if a violation of Art. 32 takes place by this Court's rejection of the instant
petition, the petitioners will have absolutely no remedy for such violation of their
fundamental right. Hence, the Petitioner submits that a liberal approach should be adopted,
erring on the side of caution, in cases where the Court rejects a petition under Art. 32.

b) The rule of exhaustion of local remedies is not binding on this Hon'ble Court

Admittedly, cases such as Paul Manickam,35Kanubhai,36and PN Kumar37require the

exhaustion of local remedies before approaching the Court under Art. 32. However, it is
submitted that this Hon'ble court must not be constrained by these decisions for the following

30
India Constitution. Art. 32.
31
Prem Chand Garg v. Excise Commissioner, AIR 996, (SC 1963).
32
Daryao v. The State of Uttar Pradesh, AIR 1457, (SC 1961); Tilokchand Motichand v. H.B. Munshi, AIR
878,(SC 1970).
33
Kharak Singh v. State of Uttar Pradesh, AIR 1295, ( SC 1963); Romesh Thappar v. The State of Madras,
AIR 124, (SC 1950).
34
Sahibzada Saiyed Muhammed Amirabbas Abbasi v. The State of Madhya Bharat, AIR 768,( SC 1960);
Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1, (SC 1978).
35
Union of India v. Paul Manickam, AIR 4622, ( SC 2003) .
36
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1159, ( SC 1987).
37
P. N. Kumar v. Municipal Corporation of Delhi,4 SCC 609, ( SC 1987).
reasons: First, this self-imposed restraint is merely a rule of convenience and discretion38 and
does not oust the jurisdiction of this Court under Art. 32.39 Secondly, these cases are per
incuriam as they were rendered in ignorance of previous decisions by higher benches of this
Hon'ble Court that expressly rejected such a rule. Finally, Art. 32(4) specifically provides
that this right may not be suspended except by a constitutional provision.40 A rule of self-
imposed restraint by the judiciary that requires exhaustion of local remedies constitutes an
extra-constitutional partial suspension and is therefore, unconstitutional.

c) This Hon'ble Court has a constitutional duty to entertain the instant petition

The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has
been interpreted broadly41 and as one that exists independent of any other remedy that may be
available.42 This is particularly true in cases of grave public importance, such as
environmental litigation where relief may not be denied on mere technical grounds.
Consequently, it is submitted that a refusal to entertain the instant petition would be
inconsistent with the aforesaid obligation.43

38
State of Uttar Pradesh v. Mohammad Nooh, AIR 86, (SC 1958).
39
Mohammed Ishaq v. S. Kazam Pasha, 1 SCC (Cri.) 721.
40
India Constitution. Art. XXXII, ¶ 4.
41
MC Mehta v. Union of India, AIR 1086, (SC 1987).
42
Nilabati Behera v. State of Orissa, AIR 1960,( SC 1993); Kharak Singh v. State of Uttar Pradesh, AIR
1295,( SC 1963).
43
Kharak Singh v. State of Uttar Pradesh, AIR 129, (SC 1963);. Romesh Thappar v. The State of Madras,
AIR 124, ( SC 1950).