SLC 2.0 Respondent Memorial

TC-26
TC-26
[5TH NATIONAL LEVEL MOOT COURT COMPETITION,2023-2024]
Before
THE SUPREME COURT OF INDICA
WRIT PETITION NUMBER _______ / [2023]
FILED UNDER ARTICLE 32 OF

THE CONSTITUTION OF INDICA
IN THE MATTER BETWEEN:
PEOPLE FOR ENVIRONMENT [PETITIONER]
versus
SHIAN TECH PVT. LTD & ORS. [RESPONDENT]
MEMORIAL for RESPONDENT

5TH NATIONAL LEVEL MOOT COURT COMPETITION, 2023-2024
TABLE OF CONTENTS
Table of Contents........................................................................................................................I
Index of Authorities.................................................................................................................III
Table of Cases…………………………………………………………………………………
Index of Abbreviations..........................................................................................................VIII
Statement of Jurisdiction.........................................................................................................IX
Statement of Facts.....................................................................................................................X
Issues Raised..........................................................................................................................XII
Summary of Arguments........................................................................................................XIII
Arguments Advanced.................................................................................................................1
1.Whether the operation of STPL violate right to Environment?
(1.1) No violation of fundamental right………………….…………………………………..1
(1.2) Sustainable development……….……………………….………………………………2
(1.3) New technology adopted by PSPCB……………………………………………………4
(1.4) Doctrine of public necessity……………………………………………………………5
2.Whether ceasing the operation of STPL violates the right to livelihood of the workers
of STPL?
(2.1)Right to livelihood is a fundamental right protected under the constitution of
Indica…………………………………………………………………………………………7
(2.2) Laws in India that gives certain right and protection to
ST……………………………………………………………………………………………12
PAGE | I
MEMORIAL for RESPONDENT TABLE OF CONTENTS
3.Whether ceasing the operation of STPL compromises the Security concerns of State of
Indica?
(3.1)Fundamental Right are not absolute in
Nature………………………………………………………………………………………..16
(3.2) National Security prevails over Fundamental Rights
…………………………………………………………………………………………….…17
Prayer for
Relief……………………………………………………………………………………….
………………………………………………………………………………………………….
20
PAGE | II
MEMORIAL for RESPONDENT TABLE OF CONTENTS
INDEX OF AUTHORITIES
BOOKS REFERRED:
1. D.D. BASU: “CONSTITUTION OF INDIA”, LEXIS NEXIS, NAGPUR, 14TH
EDN. (2009)
2. D.D. BASU: “SHORTER CONSTITUTION OF INDIA”, PRENTICE HALL OF
INDIA PVT. LTD., NEW DELHI, 12TH EDN
3. DR. J.N. PANDEY, “CONSTITUTIONAL LAW OF INDIA”, CENTRAL LAW
AGENCY, 51TH EDN. (2013)
4. JAIN M.P., “INDIAN CONSTITUTIONAL LAW”, WADHWA AND COMPANY,
NAGPUR, 5TH EDN. (REP.2005)
5. V.N. SHUKLA, “CONSTITUTION OF INDIA”, EASTERN BOOK COMPANY,
12TH EDN. (2013). P. LEELAKRISHNAN, “ENVIRONMENTAL LAW IN
INDIA”, LEXIS NEXIS BUTTERWORTHS WADHWA, NAGPUR. 3RD EDN
6. S.K. MOHANTY, “ENVIRONMENT AND POLLUTION LAWS”, UNIVERSAL
LAW PUBLISHING CO. LTD. (2008).
7. DIVAN ROSE, “ENVIRONMENTAL LAW AND POLICY IN INDIA”, OXFORD
INDIAN PAPERBACKS,2ND EDN.
8. S.C. TRIPATHI, “ENVIRONMENTAL LAW”, CENTRAL LAW
PUBLICATIONS,7TH EDN (2019)
9. ALL INDIA REPORTS.
10. SUPREME COURT CASES
PAGE | III
MEMORIAL for RESPONDENT INDEX OF AUTHORITIES
DICTIONARIES:
1. BLACK HENRY CAMPBELL, BLACK ' S LAW DICTIONARY 6TH ED., 1990
2. . GARNER BRYAN, BLACK ' LAW DICTIONARY, 7TH ED
3. THE NEW LEXICON ‘WEBSTER DICTIONARY’, EDITION 1990, LEXICON
PUBLICATION
STATUTES REFERRED:
1. THE CONSTITUTION OF INDIA, 1950
2. THE ENVIRONMENT (PROTECTION) ACT, 1986
3. THE NATIONAL GREEN TRIBUNAL ACT, 2010
4. THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLER
ACT, 2006.
LIST OF WEBSITES REFERRED:
1. http://www.cdjlawjournal.com
2. http://www.ebc-india.com
3. http://www.livelaw.com
4. http://www.manupatra.com
5. http://www.thehindu.com
6. http://www.timesofindia.indiatimes.com
PAGE | IV
TABLE OF CASES
Sl.NO. NAME OF THE CASE CITATION
1. A.P. Pollution control board v. Prof. M.V. 2000(3) SCALE 354.
Naydu
2. Ashok kumar Gupta vs State of U.P (97) 5SCC 201 (para 26)
3. Bandhua Mukti Morcha v. Union of India 1984 AIR 802,1984 SCR (2)
67
4. Banvasi Seva Ashram v. State of UP A.I.R. 1987 S.C. 374
5. Banwaslseva Ashram v. State of U.P AIR 1987 SC 374
6. Chhetriya Pardushan Mukti Sangarsh Samiti AIR 1990 SC 2060.
v State of U.P.
7. Citizens for Green Doon & Ors. vs Union of Civil Appeal No. 10930 of
India &Ors. 2018
8. Court On Its Own Motion v. Union of India 2012 (12) Scale 307.
9. G.Sundarrajan v. Union of india 2013(6) SCC 620.
10. Gurpal Singh v. State of Punjab 2005(5) SCC 136.
11. In Animal and Environmental Legal Defence (1997) 3 SCC 549
Fund v. Union of India
12. R.L. & E. Kendra Dehradun v. State of U.P. A.I.R. 1985 SC 652.
13. Indian Council for Enviro Legal Action v. 1996 AIR 1446
PAGE | V
Union of India
14. Jammula Chhoudaraiah and Ors. vs. Union of MANU/GT/0263/2021
India and Ors
15. Jasbhai Motibhai Desai v. Roshan Kumar 1976 (1) SCC 671
16. Karjan Jalasay Y.A.S.A.S. Samiti v. State of A.I.R. 1987 S.C. 532.
Gujarat
17. Kuttisankaran Nair vs. Kumaran Nair AIR 1965 Ker 161
18. M C Mehta v. Kamal Nath [1997] 1 SCC 388.
19. M.C. Mehta and Ors. vs. Union of India and MANU/GT/0067/2017
Ors
20. M.C. Mehta v Union of India AIR 1997 SC 734.
21. M.C. Mehta v. UOI (1996) 4 SCC 750
22. Malverer v. Spinke Dyer (1537) (Part I)356
23. Mohd. Hanif Qureshi vs. State of Bihar 1958 AIR 731,1959 SCR 629
24. N.D. Jayal v. Union of India Writ petition(civil) 295 of
1992
25. Naga People’s Movement of Human Rights (1998) 2 SCC 109
vs. Union of India
26. Olga Tellis v. Bombay Municipal corporation A.I.R. 1986 S.C. 180
27. Powell and Rayner v. United Kingdom 12 EHRR 355.
28. Pradeep Krishen v. Union of India (1996) 8 SCC 599.
29. Research Foundation For Science AIR 2007 SC (Supp) 852.
PAGE | VI
Technology And Natural Resource Policy v.
Union Of India And Others
30. Romesh Thappar vs. State of Madras AIR 1950 SC 124
31. Sm. Rekharani Maitra & Ors. vs. Additional WRIT PETITION C.R. No.
District Magistrate 9063 (W) 83
32. State of Gujarat v. Mirzapur Moti Kureshi Appeal (civil) 4937-4940 of
Kasab Jamat 1998
33. State of H.P. V. Umed Ram A.I.R. S.C. 847.
34. Subhash Kumar v. State Of Bihar AIR 1991 SC
35. Sunil Fulchand Shah vs. Union of India & 16 Feb 2000
ors.
36. T.M.A. Pai Foundation vs. State of Karnataka (2002) 8SCC 481
37. Thirumalpad v. Union of India and Ors. (2002) 10 SCC 606
38. Unni Krishnan J.P. v. State of Andhra 1993 SCR (1) 594
Pradesh
39. Vellore Citizens' Welfare Forum v. Union of (1996) 5 SCC 647
India
INDEX OF ABBREVIATIONS
PAGE | VII
1. AIR: All India Reporter
2. Art: Article
3. Co.: Company
4. DPSP: Directive Principles of State Policy
5. EDN.: Edition
6. HC: High Court
7. Hon’ble: Honorable
8. i.e.: That is
9. J.: Justice
10. Ltd.: Limited
11. PIL: Public Interest Litigation
12. Pvt: Private
13. SC: Supreme Court
14. SCC: Supreme Court Cases
15. SCR: Supreme Court Reporter
16.Sd/-: Signed
17. Sec: Section
18. UOI: Union of India
19. v.: Versus
20. Vol.: Volume
21. W.P.: Writ Petition
PAGE | VIII
STATEMENT OF JURISDICTION
The Honorable Supreme Court of Indica has the jurisdiction in this matter under
Article 32 of the Constitution of Indica which reads as follows:
"32. Remedies for enforcement of rights conferred by this Part
(1)The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2)The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part."
Therefore, the counsel for the respondent submits that the Hon’ble Supreme Court of
Indica has the jurisdiction.
PAGE | IX
MEMORIAL for RESPONDENT STATEMENT OF JURISDICTION
STATEMENT OF FACTS
1. 'Shian Tech Pvt. Ltd.' (STPL) is a factory established in 2020.
2. In the month of August 2022, an NGO named 'People for Environment' (PFE) filed a writ
petition at the High Court of Pasoori that 'Shian Tech Pvt. Ltd.' (STPL) was carrying out
business since the year 2020 without obtaining the mandatory 'Environmental Clearance'
(EC) under the Environmental Protection Act, 1986.
3. The Pasoori State Pollution Control Board carried out an enquiry and found that STPL had
not caused any environmental pollution.
4. In September 2022, the High Court of Pasoori dismissed a writ petition by PFE, as they
could not prove environmental pollution caused by STPL.
5. However, four months later, PFE found new evidence of pollution caused by STPL, using
a previously undetectable compound. The evidence was discovered through new technology
implemented by PSPCB. Seeking an unbiased examination of the case, PFE approached the
Supreme Court of Indica, requesting the cessation of STPL's operations and damages for
environmental pollution.
6. In response, the Government of Indica filed an affidavit before the Supreme Court, stating
that a product manufactured by STPL is essential for the survival of Army Personnel
guarding the borders in high altitudes and cold temperatures, which is crucial for the
country's security. The government also mentioned that STPL provides employment to 2,500
Adivasis, who received specialized training from both STPL and the government for this
purpose.
7. The Supreme Court of Indica has scheduled the case for hearing in the first week of March
2023.
PAGE | X
MEMORIAL for RESPONDENT STATEMENT OF FACTS
ISSUES RAISED
ISSUE 1-
Whether the operation of STPL violate right to Environment?
ISSUE-2
Whether ceasing the operation of STPL violates the right to livelihood of the workers of
STPL?
ISSUE-3
Whether ceasing the operation of STPL compromises the Security concerns of State of
Indica?
PAGE | XI
MEMORIAL for RESPONDENT ISSUES RAISED
SUMMARY OF ARGUMENTS
ISSUE-1
DOES THE OPERATION OF STPL VIOLATE THE RIGHT TO ENVIRONMENT?
It is humbly submitted before this Hon’ble court that the operations of STPL does not violate
the right to environment. STPL has initiated sustainable development and activities of STPL
is necessary for Indica.
ISSUE-2
WHETHER CEASING THE OPERATION OF STPL VIOLATES THE RIGHT TO
LIVELIHOOD OF THE WORKERS OF STPL?
It is humbly submitted before this Hon’ble court that the right to livelihood of the workers of
the STPL will be violated by ceasing its operations including the Adivasis who have been
granted equal opportunity of employment under the Constitution of Indica.
ISSUE-3
WHETHER CEASING THE OPERATION OF STPL COMPROMISES THE
SECURITY CONCERNS OF STATE OF INDICA?
It is humbly submitted before this Hon’ble court that a national security is crucial for its
political, social, and economic development as well as for the expansion of its peace and
prosperity. The security of the nation is greatly concerned by the high-altitude border
guarding. Therefore, ceasing operation of STPL compromises with the security concerns of
State of Indica.
PAGE | 1
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED
ARGUMENTS ADVANCED
ISSUE-1
DOES THE OPERATION OF STPL VIOLATE THE RIGHT TO ENVIRONMENT?
It is humbly submitted before this Hon’ble court that the operations of STPL does not violate
the right to environment. STPL has initiated sustainable development and activities of STPL
is necessary for Indica.
1.1. No violation of fundamental right-
It is humbly submitted before this Hon’ble court that the operation of STPL does not violate
the right to environment guaranteed under Article 21 of the Constitution. While the
fundamental rights are an integral part of the Constitution, it would be incorrect to term them
as unconditional. These rights, by the Constitution itself, are restricted by conditions which
aim to balance the individual rights and rights to the necessity of public good and welfare.
Article 21 of the constitution provides for the fundamental right of life. It states that no
person shall be deprived of his right to life or personal liberty except in accordance with
procedures established by law. The words “except in accordance with procedures established
by law” can be interpreted to mean that this provision is subject to exception and is regulated
by law which varies from case to case. The entire claim that STPL is engaged in
manufacturing of products causing pollution is based on the evidence found by PFE, who is
trying to act in the name of pro bono publico, in order to gain cheap popularity1.
1
Jasbhai Motibhai Desai v. Roshan Kumar, 1976 (1) SCC 671, para 37
PAGE | 2
Powell and Rayner v. United Kingdom2-
The court though acknowledged the fact that the rights of the person involved is affected in a
strict interpretation of guidelines, ultimately found that running an economic institution like
an airport was a modern economic necessity that justified the breach.
Right to wholesome environment is a fundamental right under Art.21 of the Constitution, but
the question is, can the environment be protected at present times when Indica is still at its
developing stage? To resolve this issue, the experts worldwide have come up with a doctrine
called ‘sustainable development’, means that there shall be a balance between development
and ecology.
1.2. Sustainable development-
It is further submitted that sustainable development is initiated by the respondent. The
principle of sustainable development requires that there shall be a balance between
environment protection and necessary development measures. Economic development cannot
be permitted to occur at the expense of the environment, but preserving the environment and
ecology should not impede economic and other forms of development 3. The Courts have
balanced the priorities while deciding the environmental matters in the past. As Indica is a
developing country, certain ecological sacrifices are deemed necessary to ensure the benefit
of future generations. This ethical mix is termed sustainable development 4. The declaration
on the right development, 1986 states right to development as an inalienable human right and
ILO convention No.169 declares that people concerned shall have the right to choose their
own process of development; the government acknowledges and respects such rights which is
2
12 EHRR 355.
3
Indian Council for Enviro Legal Action v. Union of India, 1996 AIR 1446
4
M.C. Mehta v Union of India, AIR 1997 SC 734.
PAGE | 3
the reason why an affidavit has been filed by the Govt. of Indica stating the importance of
STPL’s operation.
Jammula Chhoudaraiah and Ors. vs. Union of India and Ors5-
Principle of sustainable development not only includes use and conservation of natural
resources; precautionary principle, polluter Pay principle, intergenerational equity, new
burden of proof, obligation to assist and cooperate but also eradication of poverty and
financial assistance to the developing countries.
STPL is one such unit which is contributing to the revenue generation, foreign exchange and
production of good crucial for survival the army. Its operations shall not be shut due to such
reckless allegation of environment pollution by an NGO.
N.D. Jayal v. Union of India6
The court emphasized that the balance between environmental protection and developmental
activities could only be maintained by strictly following the principle of sustainable
development. Sustainable development means a path that ensures development while
protecting the environment, a path that works for all people and for all generations. The right
to environment is a fundamental right. On the other hand, right to development is also one.
Here right to sustainable development cannot be singled out.
A.P. Pollution control board v. Prof. M.V. Naydu7-
It was stated that just by the mere reason of an industry being hazardous, it cannot be
debarred from functioning. Necessary steps need to be taken to safeguard the environment
5
MANU/GT/0263/2021
6
Writ petition(civil) 295 of 1992
7
2000(3) SCALE 354.
PAGE | 4
and the people. Following the safeguards, any person shall be allowed to handle hazardous
substances.
1.3. New technology adopted by PSPCB-
M.C. Mehta and Ors. vs. Union of India and Ors8
The court observed the strategy of UP pollution control board and found that - UPPCB relies
on inspection and investigation as the primary strategy for pollution control. This needs to
change. There is no transparent, consistent and coherent enforcement protocol or framework
and most of the times, the regulatory response is subjective and in firefighting mode. The
UPPCB does not have any inventory of polluting sources, and rather just rely on data
presented which is not reliable.
It was also observed in M.C. Mehta 9 case that dedicated technical excellence cell with the
addition of new spheres of activity, the technical skills have not been updated through
retraining, etc., leading to a situation where, as of today, UPPCB finds itself technically
deficient in fulfilling its mandate under many of the newer laws and rules
It is a sound and well-established rule of law that the court is concerned with the quality and
not with the quantity of the evidence necessary for proving or disproving a fact. The Pasoori
state pollution control board has presented two contradictory reports in a period of 6 months
It is on the principle that the scientific evidence always renders an ‘opinion’ or ‘possibility’
only
8
MANU/GT/0067/2017
9
Ibid.
PAGE | 5
1.4. Doctrine of public necessity-
Applicability of Doctrine of Public Necessity The doctrine of public necessity is derived from
the maxim salus populi suprema lex i.e., the welfare of the people is of paramount
importance10. Public necessity is greater than private, so the individual inconvenience of an
NGO can be set aside.
The respondent herein submits that the product manufactured by STPL is crucial for the
survival of army personnel guarding the borders, posted in high altitude and cold temperature
which is a great concern for the security of the country. 11 In the light of larger public interest
the inconvenience of NGO can be set aside. The Doctrine of Public Necessity is to be applied
in the instant case. To achieve the larger public good, the property, liberty and life of an
individual can be placed in jeopardy in the case of existing, immediate and overwhelming
necessity12. It has to be respectfully accepted as a proposition of law that individual interest
or, for that matter, smaller public interest must yield to the larger public interest.
Inconvenience of some should be bypassed for larger interest or cause of the society 13. The
security of Indica is of utmost necessity.
It is depressing to note that on account of such trumpery proceedings initiated before the
courts, innumerable days are wasted, which time otherwise could have been spent for the
disposal of the cases of genuine litigants. “We must protect the society from so called
protectors”.14 Thus, nobody should be allowed to indulge in wild and reckless allegations
besmirching the character of others.15
10
Sm. Rekharani Maitra & Ors. vs. Additional District Magistrate WRIT PETITION C.R. No. 9063 (W) 83
11
Moot proposition, affidavit filed by Govt. of Indica
12
Malverer v. Spinke (1537) Dyer, (Part I), 356
13
G.Sundarrajan v. Union of india, 2013(6) SCC 620.
14
Chhetriya Pardushan Mukti Sangarsh Samiti v State of U.P., AIR 1990 SC 2060.
15
Gurpal Singh v. State of Punjab,2005(5) SCC 136.
PAGE | 6
ISSUE-2
WHETHER CEASING THE OPERATION OF STPL VIOLATES THE RIGHT TO
LIVELIHOOD OF THE WORKERS OF STPL?
It is humbly submitted before this Hon’ble court that there will be violation of right to
livelihood under Article 21 of the Constitution of Indica since (2.1) Right to livelihood is a
fundamental right protected under the constitution of Indica; (2.2) Laws in India that gives
certain right and protection to Scheduled Tribes.
2.1. Right to livelihood is a fundamental right protected under the Constitution of
Indica.
Art 21 of the Constitution guarantees protection of life and personal liberty, no person
shall be deprived of his life or personal liberty except according to procedure established
by law.16 The Judicial grammar of interpretation has further broadened the scope and
ambit of Art 21 and now “Right to Life” includes the “Right to livelihood”. So much so
that even right to earn livelihood is also considered as a part of right to life under Art 21
of Constitution.17
This broad interpretation of the right to life is very helpful in checking the governmental
actions which has an environmental impact that threatens the poor people of their
livelihood by dislocating them from their place of living or otherwise depriving them of
their livelihood.
In Olga Tellis v. Bombay Municipal corporation,18 the court held that: If the right to
16
ARTICLE 21,THE CONSTITUION OF INDIA
17
State of H.P. V. Umed Ram, A.I.R. S.C. 847.
18
A.I.R. 1986 S.C. 180
PAGE | 7
livelihood is not treated as a part of the constitutional right to life, the easiest way of
depriving a person of his right to life would be to deprive him of his means of livelihood
to the point of abrogation. Such deprivation would not only denude the life of its effective
content and meaningfulness but it would make life. impossible to live.
The Court further held: The State may not by affirmative action, be compelled to provide
adequate means of livelihood or work to the citizens. But, any person, who is deprived of
his right to livelihood except according to just and fair procedure established by law, can
challenge the deprivation as offending the right to life conferred by article 21. 19
Now let us consider the question whether there is any conflict between environment and
development. This question is to be considered in the larger dimensions of national
complexities. Because on one hand for the national progress and growth, the construction
of dams, thermal power plants and exploitation of natural resources is a must. On the
other hand, these actions may infringe the fundamental rights of the people in the area
where that project is undertaken. Judiciary in India has been very cautious in reconciling
the environmental interest with the development process and avoiding any kind of
conflict between those two.
In Banvasi Seva Ashram v. State of UP,20 a letter from Banwasi Seva Ashram was
registered under article 32 of the Constitution. The main grievance of the petitioner was
that Adivasis and other backward people (tribal forest dweller) were using forest as their
habitat and means of livelihood. Part of the land was declared reserved forest and in
respect of other part acquisition proceedings were initiated as the government had decided
that a Super Thermal Plant of the National Thermal Power Corporation Ltd. (NTPC) was
19
Ibid.
20
A.I.R. 1987 S.C. 374. See also Banwasi Sewa Ashram v. State of U.P., (1987) 3SCC 304 and (1992) 1 SCC
117; Banwasi Sewa Ashram v. State of U.P., (1992) 2 SCC 21; Banwasi Sewa Ashram v. State of U.P., (1993) 2
SCC 612.
PAGE | 8
to be located there.
The Supreme Court gave detailed directions safeguarding and protecting the interests of
the Adivasis and backward people who were being ousted from their forest land by
NTPC. The Court permitted the acquisition of land only after NTPC agreed to provide
certain facilities to the ousted forest dwellers.21
Though the Court did not make any reference to article 21 but the Court was impliedly
treating the right of the Adivasis under that article when it observed that "it is common
knowledge that Adivasis and other backward people living within the jungle used the
forest area as their habitat...and for generations (they) had been using jungles around for
collecting the requirements for their livelihood, fruits, vegetables, fodder, flowers, timber,
animals by way of sport and fuel wood." At the same time the Court highlighted that for
industrial growth as also for provisions of improved living facilities there is a great
demand in this country for energy such as electricity.22
Similarly, in Karjan Jalasay Y.A.S.A.S. Samiti v. State of Gujarat,23 though again the
Supreme Court did not refer to article 21, yet it passed the interim orders under article 32
requiring the State agencies to resettle and rehabilitate the tribal people who were being
displaced by dams.
In Pradeep Krishen v. Union of India,24 the SC in this case on the one hand protected the
right to livelihood of the tribal and on the other hand showed its concern for the
protection of ecology. This approach of the court is in consonance with the concept of
sustainable development.
21
Id.,376- 378
22
Id., 374.
23
A.I.R. 1987 S.C. 532.
24
(1996) 8 SCC 599.
PAGE | 9
Bandhua Mukti Morcha v. Union of India,25The Supreme Court, in this case, recognized
that the right to life under Article 21 encompasses the right to livelihood. It emphasized
that the right to livelihood is essential for a dignified life and held that any violation of
this right would be unconstitutional.
Unni Krishnan, J.P. v. State of Andhra Pradesh,26The Supreme Court held that the right
to livelihood is an integral part of the right to life under Article 21. It emphasized that
education and employment are essential for securing the right to livelihood and that the
state has a duty to provide opportunities for livelihood.
In Animal and Environmental Legal Defence Fund v. Union of India,27 is yet another
case where the Supreme Court protected the right to livelihood of the tribal villagers and
at the same time showed its concern for the protection of the environment.
The Supreme Court once again showed its concern for the right to livelihood of the tribal
villagers and while balancing this traditional right of the tribal villagers with the need for
development and preservation of ecology, held that while every attempt must be made to
preserve the fragile ecology of the forest area, the right of the tribal formerly living in the
area to keep their body and soul together must also receive proper consideration.
Undoubtedly, every effort should be made to ensure that the tribal, when resettled, are in
a position to earn their livelihood. In this case the Supreme Court also observed that it
could have been more desirable, had the tribal been provided with suitable fishing areas
outside the National Park or if land had been given to them for cultivation.28
In R.L. & E. Kendra, Dehradun v. State of U.P.,29 one can appreciate the consciousness
25
1984 AIR 802, 1984 SCR (2) 67
26
1993 AIR 2178, 1993 SCR (1) 594
27
(1997) 3 SCC 549
28
Id., at 553
PAGE | 10
of the court in dealing with the issue of workers who were rendered unemployed after the
closure of the limestone quarries and the hardship of the lessees. The Court observed that
"this would undoubtedly cause hardship to them, but it is a price that has to be paid for
protecting and safeguarding the right of the people to live in healthy environment with
minimal disturbance of ecological balance and without avoidable hazards to them and to
their cattle, homes and agricultural land and undue affection of air, water and
environment."30
In order to mitigate the hardship, the Court directed the State of U.P. to give priority to
the claims of displaced lessees in other parts of the State thrown open for the quarrying of
limestone. The workmen were directed to be rehabilitated in program of afforestation and
soil conservation to be undertaken in the reclamation of the area by the Eco-Task Force of
the Department of Environment.31
In M.C. Mehta v. UOI,32 in this case the SC protected the right to livelihood of the
workmen tried to the balance the industrial development and environmental protection.
Development comes through industrialization, which in turn is the main factor behind the
degradation of environment. To resolve the issue, the experts worldwide have come up
with a doctrine called 'Sustainable Development', i.e., there must be balance between
development and ecology.
2.2. Laws in India that gives certain right and protection to Scheduled Tribes
Under the Constitution of India, the right to employment does not explicitly mention the
specific groups such as Scheduled Castes (SC) and Scheduled Tribes (ST). However, the
29
A.I.R. 1985 SC 652.
30
Id., at 656.
31
Id., at 658.
32
(1996) 4 SCC 750.
PAGE | 11
Indian Constitution includes provisions that aim to protect the interests and promote the
welfare of SC and ST communities, including their right to equal opportunities in
employment. Here are some constitutional provisions that support the right to employment
for SC and ST communities:
Article 15(4): This provision allows the state to make special provisions for the advancement
of socially and educationally backward classes, which includes SC and ST communities.
These provisions may include measures to ensure equal access to employment opportunities.
Article 16(4): This article allows the state to provide reservations in public employment for
any backward class of citizens, including SC and ST communities. It enables the state to
adopt affirmative action policies to promote representation and access to employment
opportunities for these communities.
Article 46: This article directs the state to promote the educational and economic interests of
SC and ST communities and protect them from social injustice and all forms of exploitation.
This includes measures to provide employment opportunities and improve their socio-
economic conditions.
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: This legislation
provides protection against atrocities, discrimination, and harassment faced by SC and ST
communities. It includes provisions to ensure their right to employment without any form of
discrimination or bias.
 Right to education for Adivasis -
Post-independence, the constitution and subsequent policies emphasized education as a
bridge for Adivasis to catch up with the rest of the country. However, the reality is a majority
of Adivasi children either don’t attend school or leave at an early stage. As Per the 2011
census, the literacy rate of STs is 59%. Given the sub-standard quality of education and
PAGE | 12
infrastructure in many tribal areas, Adivasi students continue to experience exclusion in
various segments of education. 33
 Right to Employment especially to Adivasis-
Since independence, governments have spent a lot of money on affirmative action program
for the protection and welfare of Adivasis. However, most of them work in the informal
sector, farms, tea gardens, forest areas, mining, etc. They’re mainly an invisible workforce
where labor rights seldom apply. Many of them move away from their homes for
employment and become migrant workers.34
So, Under the broad category of Scheduled Castes (SCs) and Scheduled Tribes (STs) in India,
Adivasis are among the most talked-about and oppressed. But here the STPL is providing
employment to many people which also includes 2,500 Adivasis. 35 If the operation of STPL
is ceased it will adversely affect the livelihood of 2,500 Adivasis and also their family
members who are depending on the income from STPL.
Indian Constitution does not explicitly recognize the ‘right to work’ as a fundamental right. It
is placed in Part IV (Directive Principles of State Policy) of the Constitution under Article 41,
which hence makes it unenforceable in the court of law. Despite the absence of an express
wording of the ‘right to work’ in Part III (Fundamental Rights) of the Constitution, it became
a ‘fundamental right’ through a judicial interpretation.
The wider interpretation of Article 21 made by the Hon’ble Supreme Court through its
judgement in Olga Tellis & Ors. v Bombay Municipal Corporation & Ors. 36 - ‘right to work’
33
https://eitherview.com/rights-of-adivasis/
34
Ibid
35
Moot Proposition, pg.1, affidavit filed by government of Indica
36
Supra,3.
PAGE | 13
was recognized as a fundamental right inherent in the ‘right to life’.
Art 15(1) discusses about Recruitment and condition of employment under Indigenous and
Tribal People Convention, 1957(No.107) “Each Member shall, within the framework of
national laws and regulations, adopt special measures to ensure the effective protection with
regard to recruitment and conditions of employment of workers belonging to the populations
concerned so long as they are not in a position to enjoy the protection granted by law to
workers in general.”37
The onerous duty lies upon the State under the concept of 'sustainable development' 38
recognized as a fundamental right under Article 21 39 to keep in mind the "principle of
proportionality"40 so as to ensure protection of environment on the one hand 41 and to
undertake necessary development measures on the other hand 42, since, the economic
development cannot be allowed to take place at the cost of ecology but the necessity to
preserve ecology and environment should not hamper economic and other developments 43,
which includes generation of revenue and public interest.44
“Tribal looked upon forest, the nature’s gift, as their own property and they had unfettered
freedom to do so as they pleased. But the situation continued to change after the enactment of
37
C107- Indigenous and Tribal population Convention, 1957(No.107)
38
Brutland Commission Report, 1983; Principle 2 of Stockholm Conference,1973; Principle 1 of Rio
Declarartion,1992.
39
Indian Council for Enviro-Legal Action v. Union of India , (1996) 5 SCC 281; Vellore Citizens' Welfare
Forum v. Union of India, (1996) 5 SCC 647
40
Thirumalpad v. Union of India and Ors. (2002) 10 SCC 606; M C Mehta v. Kamal Nath, [1997] 1 SCC 388.
41
Court On Its Own Motion v. Union of India, 2012 (12) Scale 307.
42
Thirumalpad v. Union of India and Ors. (2002) 10 SCC 606; Subhash Kumar v. State Of Bihar, AIR 1991 SC
43
Banwaslseva Ashram v. State of U.P, AIR 1987 SC 374; T.N. Godavarmanthirumalpad v. Union Of India
And Ors., (2002) 10 SCC 606
44
Research Foundation For Science Technology And Natural Resource Policy v. Union Of India And Others,
AIR 2007 SC (Supp) 852.
PAGE | 14
the Indian forest Act. The master of the forest-the-tribal- is now no more than a wage
earner.”45 Earlier tribal people were subjected to many abusive activities by many people
including untouchability. Now it is a high time for the development of Scheduled Tribes.
Now ST have certain right and protection which emphasis for education and employment.
In the present case the Government of Indica has filed an affidavit that STPL is proving
employment to 2,500 Adivasis who were jointly trained by STPL and Government of Indica
specially for this purpose.46
The state has a duty bound to provide employment opportunities and economic
empowerment47 for its citizens. The operation of STPL, it not only providing employment to
Adivasis but it also makes substantial contribution towards the revenue generation and
foreign exchange reserve for development of Indica.
45
V.S. Saxena, “social Forestry inTribal Development”, in Deshbandhu and R.K. Garg(Ed.) Social Forestry and
Tribal Development ”, 1986 at pp.38-39.
46
Moot Proposition, pg.1, affidavit filed by government of Indica.
47
Ashok kumar Gupta vs State of U.P, (97) 5SCC 201 (para 26)
PAGE | 15
ISSUE-3
WHETHER CEASING THE OPERATION OF STPL COMPROMISES THE
SECURITY CONCERNS OF THE STATE OF INDICA?
It is humbly submitted before this Hon’ble court that a national security is crucial for its
political, social, and economic development as well as for the expansion of its peace and
prosperity. The Army personnel posted in high altitudes and cold temperatures who defend
the country's borders depend on the STPL product to survive. The security of the nation is
greatly concerned by the high-altitude border guarding. Therefore, ceasing operation of STPL
compromises with the security concerns of State of Indica.
3.1 Fundamental Right are not absolute in Nature
Fundamental rights are not absolute rights, they have certain reasonable restrictions. Nothing
in Article 19 prevents the State from passing legislation imposing, in the interests of the
general public.
Kuttisankaran Nair vs. Kumaran Nair48
“Public Interest” means a subject matter in which the rights of the public or a section of the
public is interested or the means of concern which is advantageous to people as a whole49
Court on its own motion vs. Union of India50
48
AIR 1965 Ker 161
49
T.M.A. Pai Foundation vs. State of Karnataka, (2002) 8SCC 481
50
2012 (12) SCALE 307
PAGE | 16
Interest of general public is a comprehensive expression intended to achieve the
socioeconomic justice for people by the State.
Mohd. Hanif Qureshi vs. State of Bihar51
Such restrictions must be within reasonable bounds because the first amendment added the
term "reasonable" to the definition. Both the substance of the restrictions and the mechanism
outlined in the law should be appropriate. For instance, the process for enforcing such a
legislation should be consistent with natural justice principles. Additionally, consideration of
the interest of the broader public should be used to determine if the restriction is reasonable.
State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat52
The Supreme Court ruled that the phrase "in the interest of the general public" in Article
19(6) has a broad meaning that encompasses public order, public health, public security,
morals, community economic welfare, and the goals outlined in Part IV of the Constitution.
From the above instances, it is made clear that under Article 19 reasonable restrictions can be
imposed.
3.2 National Security prevails over Fundamental Rights
Fundamental rights are frequently reduced to a less important position and proposition when
weighed against national security and interests in a variety of jurisdictions around the world.
When issues involving the state are brought up for discussion, the courts have historically
demonstrated a tendency to tilt on the state's side in the sake of national security.
Sunil Fulchand Shah vs. Union of India & ors. 53
51
1958 AIR 731, 1959 SCR 629
52
Appeal (civil) 4937-4940 of 1998
PAGE | 17
However, where individual liberty comes into conflict with an interest of the Security of the
State or public order, then the liberty of the individual must give way to the larger interest of
the nation
Naga People’s Movement of Human Rights vs. Union of India54
The Supreme Court of India maintained the legality of the harsh provisions of the Armed
Forces (Special Powers) Act (AFSPA) without even making a passing mention of the
constitutionally guaranteed principles of equality, liberty, and life. In addition, the Delhi High
Court decided that it is a "social imperative" that must come first. All of this is done in the
interest of national security.
Citizens for Green Doon & Ors. vs Union of India &Ors.55
In order to increase connectivity between the four Uttarakhand pilgrimage destinations of
Kedarnath, Badrinath, Yamunotri, and Gangotri, the Char Dham Mahamarg Vikas Pariyojna
was launched in December 2016. The government has declared that all of the highways
would be two lanes with a paved shoulder and a minimum width of 10 meters. As a stand-
alone project or as a component of road widening projects, the projects also involve
mitigation measures/stabilization of chronic landslide & sinking spots/zones to prevent
landslides and ensure the safety of road users. For the stability of unstable slopes, bio
engineering techniques like hydro seeding are being used for vegetative growth. All of these
actions will protect the road and people against natural disasters. Travel will be more
convenient, affordable, cozy, environmentally friendly, and all-weather thanks to the
increased road connectivity, which aims to expand and enlarge these highways.
The government has proposed that broader roads be built in the Char Dham region in order to
53
16 Feb 2000
54
(1998) 2 SCC 109
55
Civil Appeal No. 10930 of 2018
PAGE | 18
convey essential military equipment to the hilly region, which is close to the India-China
border, as well as to facilitate travel for purposes of tourism and pilgrimage in Uttarakhand.
The central government appealed the decision, claiming national interest considerations.
Trucks carrying artillery, rocket launchers and tanks may need to pass over these routes,
according to Attorney General KK Venugopal. "China is building helipads and buildings on
the other side," he added.
The NGO further argued that the road widening project was just wanted to make the Char
Dham Yatra easier. On Tuesday, December 14, the Supreme Court issued a ruling in the Char
Dham case, approving the double-lane, paved shoulder arrangement for the Char Dham road
project. The court's directive was developed in light of the most recent security issues at the
India-China border as well as the strategic value of double-lane roads for the quick mobility
of the military forces.
It's humbly submitted before the Hon’ble court that Fundamental Rights are not absolute in
nature, they have certain reasonable restrictions. If NGO ceases the operation of STPL it will
compromise the security concerns of the State of Indica. Therefore, if matters affecting state
security are brought up for discussion, fundamental rights are typically demoted to a lower
priority position.
PAGE | 19
PRAYER FOR RELIEF
In the light of issues raised, arguments advanced and authorities cited, the counsel for
respondents most humbly and respectfully prays before this Hon’ble Court that it may be
pleased to declare and adjudge that-
a. To dismiss the petition filed by the petitioner.
b. To dismiss the claim that the operation of STPL constitutes a violation of right
to environment.
c. To upheld the right to livelihood of the workers of STPL.
d. To upheld that ceasing the operations of STPL compromises the security
concerns of the State of indica.
AND/OR
The Court may also pass any such order, as it deems fit, in the light of justice, equity and
good conscience. All of which is most humbly and respectfully submitted.
And for this act of kindness, your lordships, respondents shall as duty bound ever humbly
pray.
Respectfully submitted
………………………………
(Counsels for Respondent)
PAGE | 20
MEMORIAL for RESPONDENT PRAYER FOR RELIEF

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TC-26

[5TH NATIONAL LEVEL MOOT COURT COMPETITION,2023-2024]

THE SUPREME COURT OF INDICA

WRIT PETITION NUMBER _______ / [2023]

FILED UNDER ARTICLE 32 OF

IN THE MATTER BETWEEN:

PEOPLE FOR ENVIRONMENT [PETITIONER]

SHIAN TECH PVT. LTD & ORS. [RESPONDENT]

MEMORIAL for RESPONDENT

1.Whether the operation of STPL violate right to Environment?

(1.1) No violation of fundamental right………………….…………………………………..1

(1.2) Sustainable development……….……………………….………………………………2

(1.3) New technology adopted by PSPCB……………………………………………………4

(1.4) Doctrine of public necessity……………………………………………………………5

(2.1)Right to livelihood is a fundamental right protected under the constitution of

(2.2) Laws in India that gives certain right and protection to

(3.1)Fundamental Right are not absolute in

(3.2) National Security prevails over Fundamental Rights

1. D.D. BASU: “CONSTITUTION OF INDIA”, LEXIS NEXIS, NAGPUR, 14TH

2. D.D. BASU: “SHORTER CONSTITUTION OF INDIA”, PRENTICE HALL OF

INDIA PVT. LTD., NEW DELHI, 12TH EDN

3. DR. J.N. PANDEY, “CONSTITUTIONAL LAW OF INDIA”, CENTRAL LAW

AGENCY, 51TH EDN. (2013)

4. JAIN M.P., “INDIAN CONSTITUTIONAL LAW”, WADHWA AND COMPANY,

NAGPUR, 5TH EDN. (REP.2005)

5. V.N. SHUKLA, “CONSTITUTION OF INDIA”, EASTERN BOOK COMPANY,

12TH EDN. (2013). P. LEELAKRISHNAN, “ENVIRONMENTAL LAW IN

INDIA”, LEXIS NEXIS BUTTERWORTHS WADHWA, NAGPUR. 3RD EDN

6. S.K. MOHANTY, “ENVIRONMENT AND POLLUTION LAWS”, UNIVERSAL

LAW PUBLISHING CO. LTD. (2008).

7. DIVAN ROSE, “ENVIRONMENTAL LAW AND POLICY IN INDIA”, OXFORD

INDIAN PAPERBACKS,2ND EDN.

8. S.C. TRIPATHI, “ENVIRONMENTAL LAW”, CENTRAL LAW

PUBLICATIONS,7TH EDN (2019)

9. ALL INDIA REPORTS.

10. SUPREME COURT CASES

2. . GARNER BRYAN, BLACK ' LAW DICTIONARY, 7TH ED

3. THE NEW LEXICON ‘WEBSTER DICTIONARY’, EDITION 1990, LEXICON

1. THE CONSTITUTION OF INDIA, 1950

2. THE ENVIRONMENT (PROTECTION) ACT, 1986

3. THE NATIONAL GREEN TRIBUNAL ACT, 2010

4. THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLER

LIST OF WEBSITES REFERRED:

Sl.NO. NAME OF THE CASE CITATION

1. A.P. Pollution control board v. Prof. M.V. 2000(3) SCALE 354.

4. Banvasi Seva Ashram v. State of UP A.I.R. 1987 S.C. 374

5. Banwaslseva Ashram v. State of U.P AIR 1987 SC 374

6. Chhetriya Pardushan Mukti Sangarsh Samiti AIR 1990 SC 2060.

India &Ors. 2018

9. G.Sundarrajan v. Union of india 2013(6) SCC 620.

10. Gurpal Singh v. State of Punjab 2005(5) SCC 136.

11. In Animal and Environmental Legal Defence (1997) 3 SCC 549

Fund v. Union of India

14. Jammula Chhoudaraiah and Ors. vs. Union of MANU/GT/0263/2021

India and Ors

18. M C Mehta v. Kamal Nath [1997] 1 SCC 388.

20. M.C. Mehta v Union of India AIR 1997 SC 734.

21. M.C. Mehta v. UOI (1996) 4 SCC 750

22. Malverer v. Spinke Dyer (1537) (Part I)356