NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

TEAM CODE: TC- 07

1st NHRC NUSRL NATIONAL MOOT COURT COMPETITION, 2023

Before

THE HONOURABLE SUPREME COURT OF INDIA

IN THE MATTER OF
jhj
A
(CIVIL) APPEAL NO. ___/2023

IARO………………………………………………………………………….PETITIONER

VS.

CUCL &
WORKMEN ASSOCIATION & ORS…………………………………………RESPONDENT

UPON SUBMISSION TO

THE HON’BLE SUPREME COURT UNDER ARTICLE 32

OF THE CONSTITUTION OF INDIA

MEMORANDUM on behalf of PETITIONER

1|P age
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................ 2

TABLE OF ABBREVIATIONS ................................................................................... 3
INDEX OF AUTHORITIES.......................................................................................... 5
STATEMENT OF JURISDICTION.............................................................................. 7
STATEMENT OF FACTS ............................................................................................ 8
ISSUES RAISED ......................................................................................................... 11
SUMMARY OF ARGUMENTS ................................................................................. 12
ARGUMENTS ADVANCED .................................................................................... 14
ISSUE I - WHETHER THE WRIT PETITION FILED UNDER ARTICLE
32 BEFORE THE HON’BLE SC IS MAINTAINABLE OR NOT? ............. 14
GROSS INJUSTICE HAS BEEN DONE ..................................................... 14
RIGHT TO ENVIRONMENT ...................................................................... 15
ISSUE II: WHETHER RIGHT TO LIVELIHOOD OUTWEIGHS THE
RIGHT TO ENVIRONMENT? ........................................................................ 19
VIOLATION OF EIA & EMP ...................................................................... 20
ISSUE III: Whether the CUCL can be held liable for sabotaging the
environment under the polluter pay principle, the precautionary principle,
& the public trust doctrine? .............................................................................. 22
POLLUTER PAYS PRINCIPLE .................................................................. 23
APPLICATION OF THE ABSOLUTE LIABILITY PRINCIPLE .............. 25
PRECAUTIONARY PRINCIPLE ................................................................ 27
PUBLIC TRUST DOCTRINE ...................................................................... 29
ACCESS TO NATURAL RESOURCES ..................................................... 32
PRAYER ..................................................................................................................... 34

2|P age
NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

TABLE OF ABBREVIATIONS

SC Supreme Court

SCC Supreme Court Case

SCR Supreme Court Reporter

AIR All India Reporter

v. Versus

Ors Others

Hon’ble Honorable

CUCL Central Uranium Corporation Limited

NGT Nation Green Tribunal

& And

Anr Another

Pvt. Private

IARO Elis Anti-Radiation Organization

EIA Environment Impact Assessment

EMP Environmental Management Plan

Const. Constitution

3|P age
NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

PIL Public Interest Litigation

WA Workmen Association

RECA Radiation Exposure

Compensation Act

HC High Court

UOI Union of India

ART. Article

OB Overburden Dumps

W.P. Writ Petition

4|P age
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

INDEX OF AUTHORITIES

CASES
1. Francis Coralie Mullin v. The Administrator, Union Territory of
Delhi;
2. State of Himanchal Prdaesh & Anr. v Umed Ram Sharma & Ors;
3. Bandhua Mukti Morcha v UOI;
4. M.C Mehta v Kamal Nath & Ors;
5. M.C. Mehta v UOI;
6. Chhetriya Pardushan Mukti Sangharsh Samiti v State of U.P.;
7. Shantistar Builders v Narayan Khimalal Totame & Ors;
8. T. Damodhar Rao & Ors. v The Special Officer, Municipal
Corporation of Hyderabad & Ors;
9. Gaur & Ors v State of Haryana & Ors;
10. State of Bihar v Murad Ali Khan;
11. Sandeep Lahariya v State of M.P;
12. Skill Lotto Pvt Ltd v UOI;
13. Research Foundation for Science Technology Resource Policy v
UOI & Anr;
14. Olga Tellis & Ors v Bombay Municipal Corporation;
15. Council for Enviro-legal Action v. UOI;
16. Vellore Citizens' Welfare Forum v. UOI & Ors.;
17. Research Foundation for Science Technology Natural Resource
Policy v. UOI & Anr;
18. C. Kenchappa v. Karnataka Industrial Areas Development Board;
19. Rylands v. Fletcher;
20. Union Carbide Corporation v UOI;
21. Soman v Geologist;
22. Smoke Affected Resident's Forum & MCGM v Ors.;
23. Jeet Singh Kanwar v. MoEF & Ors;
24. Sarang Yadwadkar & Ors. v The Commissioner, Pune Municipal
Corporation & Ors;
25. S.P. Murturaman & Ors. v. UOI;

5|P age
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

26. Samta & Anr. v MoEF & Ors;

27. Democratic Youth Federation of India v. UOI;
28. Centre for Public Interest Litigation & Ors. v. UOI;
29. T.N. Godavarman Thirumulpad v UOI & Ors;
30. Intellectuals Forum v State of Andhra Pradesh & Ors;
31. Fomento Resorts &Hotels Limited & Anr. v Minguel Martins &
Ors;
32. Environment Protection Committee v Union of India;
33. Narmada Bachao Andolan v UOI;

STATUTES
1. Constitution of India, 1949.
2. Land Acquisition Act, 2013.
3. Mines Act, 1952.
4. Water (Prevention & Control of Pollution) Act 1974.
5. Environment (Protection) Act 1986 (EP Act).
6. Air (Prevention &Control of Pollution) Act, 1981.

BOOKS
1. S. Ghosh, Indian Environment Law.
2. Paras Diwan, Environment Administration Law and Judicial
Attitude.

TREATIES & CONVENTIONS

1. 1982 World Charter for Nature.
2. 1992 Framework Convention on Climate Change.
3. 1992 Convention on Biological Diversity.
4. 1995 Fish Stocks Agreement.
5. 2000 Bio safety Protocol.
6. 2001 Persistent Organic Pollutants Convention.
7. Rio Declaration.

6|P age
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

STATEMENT OF JURISDICTION

The petitioner in the present case has approached the Hon’ble Supreme Court of India
to initiate the present appeal under Article 32 of the Indian Constitution of India. The
petitioner most humbly & respectfully submits to the jurisdiction of the Hon’ble
Supreme Court in the present matter & contends to determine that the cause of the
petitioner be heard at utmost priority & be given sincere hearing in the present matter.

7|P age
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

STATEMENT OF FACTS

STATE OF APOLLO
The state of Apollo, a schedule V state of the Indian constitution, is a home to the largest
reserves of uranium. Average annual per capita income is equivalent to Rs 50,000
despite the existence of substantial coal &uranium reserves. Illiteracy is common.
People cook on fires fueled by dried cow dung cakes &woman walk the roadsides with
metal jugs carrying water from public wells.
In the last 60 years, Uranium has become most important energy minerals. Elis district
in Apollo state has been the main activity centre of Central Uranium Corporation
Limited (CUCL). CUCL is a public sector undertaking solely responsible for mining
&processing uranium ore in the country.
40 years ago, l&was compulsorily acquired from the locals after uranium was detected
in Elis district. The locals protested vehemently for years but to no avail. Eventually
they were left landless & without much resources at their disposal. They agreed to work
in the mines in exchange for their land & rehabilitated in shady small houses. No
cultivable land was provided & generations of such families have been working at the
lower level in these mines.

STATE OF ATHENA
The state of Athena, a schedule VI state of Indian Constitution, is abundantly rich in
Uranium mineral reserves. The Project in Athena for mining activities got suspended
due to massive protests from the locals. They claimed that radiation exposure from
uranium mining led to miscarriages, deformities in new born children & cancer.
Moreover, water in nearby streams & rivers got contaminated.

NATIONAL GREEN TRIBUNAL

The tribunal has not permitted uranium mining in Athena. The CUCL has failed to mine
uranium in Athena due to moratorium imposed over mining by the NGT.
Along similar lines, protest broke out in Elis district against the operation of uranium
mines. Various national & international NGOs showed a high prevalence of congenital
deformities, neo natal deaths, spontaneous abortions, cancer, skin diseases, etc., among

8|P age
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

the workers & others. CUCL, the company management, vehemently denied the
existence of such problems.
Due to nationwide power shortage, the officials want to increase nuclear power
generation capacity to 62,000 megawatts by 2032. Nuclear energy provides 1.9% of
India’s electricity generation capacity. CUCL, in-charge of supplying fuel, plans for
expansion of nuclear energy & employs 5,000 people in the mining & processing of
uranium. Uranium, a core element in making fuel pellets that fire the reactors in nuclear
power plants. Besides, CUCL operates the Suncity mines about 18miles away which
began in 2002 but there have been no comparable reports of illness there as in Elis &
adjacent villages.

MEASURES OF SAFETY BY CUCL

Elis mines are blocked off by concrete walls & barbed wires. Their gates open for 10-
wheel dump truck, loaded with chunks of uranium ore, rumbling down the road to a
central plant. After processing the powder into powdery compound known as
yellowcake, CUCL transports it to be made into pellets for atomic power stations.

SUO MOTO ACTION

Apollo Nation News published news item relating to the devastating effect of radiation
emanating from the mining of uranium on environment & population in Elis district. In
lieu of it, the court took suo moto cognizance of the matter on its Own Motion v Union
of India, showed deep concern about radioactive wastes discharged by the CUCL,
putting 50,000 people at risk. The court disposed off the case directing the CUCL to
take necessary action within 8 weeks.
Studies also showed inhalation of radon increases the risk of lung cancer, affects the
health of populations through groundwater &locally grown food products. Moreover,
no hospitals specializing in providing treatment related to hazardous radioactive
injuries & no need to expand the capacity of the CUCL as the country can buy & import
uranium from the international market.

SMALL LEAK
In Elis district at the uranium mines, a pipe carrying radioactive wastes had burst &
thousands of liters of radioactive waste spilled into the nearby Cuckoo Creek for 9 hours
before the flow of the waste was turned off.

9|P age
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

As a result, Elis Anti- Radiation Organization (IARO), an NGO working in the State of
Apollo filed a petition under Article 32 in Supreme Court of India claimed there exist
a conflict of rights between exploiting the land for development vis-à-vis those who
own it & use for subsistence.
The IARO questioned the usefulness of public hearing in Environmental Impact
Assessments, considering the locals were neither allowed to speak nor given the
Environmental Impact Assessment Reports (EIA) & the Environmental Management
Plan (EMP) of the expansion operations. Also, questioning the cost of the nation’s
efforts to become a nuclear superpower, they say the price is being paid by the locals
of Elis district as they suffer from multiple health diseases because of strong radiations.
The Public Interest Litigation before Supreme Court came down heavily on the state
machinery for ignoring the health & ecological issues & damages caused by the
working of the mines.

WORKMEN ASSOCIATION OF URANIUM MINES

They are of the opinion that when compared to hunger, pollution was a small issue. The
right to livelihood is threatened due to full closure of the mines & they may be left with
lands unsuitable for cultivation, if at all the lands returned to them.
The local workers are against the closure of mines as they would be rendered jobless in
addition to being homeless. Major portions of lands have been converted into huge pits.
Other portions are covered with overburden dumps (OB dumps). They claim the closure
of the mines goes against their Right to Employment. Moreover, they persistently
argued with the management of CUCL to adopt international standards & not to open
any new mines.
Whereas IARO (NGO) approached the apex court under the issue that the operation in
Elis District would go against the right of the villagers to enjoy wholesome
environment.

10 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

ISSUES RAISED

-ISSUE 1-

Whether the writ petition filed under Article 32 before the Hon’ble
Supreme Court is maintainable or not?

-ISSUE 2-

Whether right to livelihood outweighs the right to environment?

-ISSUE 3-

Whether liability under polluters pays principle, precautionary principle

& public trust doctrine can be sought before the court or not?

11 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

SUMMARY OF ARGUMENTS

ISSUE 1- Whether the writ petition filed under Article 32 before the
Hon’ble Supreme Court is maintainable or not?

The writ petition filed under Art 32 before the Hon’ble SC is maintainable
because this matter involves a substantial question of law of public importance.
In this case, CUCL violated the right to live in a healthy environment covered
under Art 21 of the constitution. Art 21 is a fundamental right and no person
shall be deprived of their fundamental right according to Indian Const, it being
the grundnorm. Furthermore, studies showed the radiation from the uranium
mines led to miscarriages, congenital diseases, deformities in new born children
& diseases like cancer which caused havoc among the locals. The state failed to
comply with the provisions of Art 47. If the SC does not take cognizance of such
a matter, it will result in gross injustice.

ISSUE II: Whether right to livelihood outweighs the right to environment?

The right to livelihood can never outweigh the right to environment. The company
flouted many national & international safety regulations in its functioning & exposing
the uniformed villagers to heavy health risks, hence the demands by the local villagers
for creating no new uranium mines & expanding the capacity of CUCL, is rational &
well grounded. Moreover, the land was compulsorily acquired by the government for
uranium mining purposes without any prior consent from the public and absence of
EIA, EMP which led to the violation of Section 4, 5 of Land Acquisition Act, 2013 by
CUCL. Though closure of tanneries may bring unemployment, loss of revenue, but life,
health & ecology have greater importance. The right to livelihood is important but not
as much as right to environment. Without environment, there could be no means or
sources from where the locals could get their living.

12 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

ISSUE III: Whether the CUCL can be held liable for sabotaging the environment
under the polluter pay principle, the precautionary principle, & the public trust
doctrine?

The CUCL was polluting the water bodies of the Elis, & the same principle of Polluters
pay shall have relevance by the Hon’ble Court & make the polluter pay for sabotaging
the environment. The polluting industries are absolutely liable to compensate for the
harm caused by them to the villagers in the affected area, to the soil, to the underground
water & hence, they are bound to take all necessary measures to remove the sludge &
other pollutants wing in the affected area & also to defray the cost of the remedial
measures required to restore the soil & the underground water sources. Furthermore,
CUCL liable for the precautionary principle which is a tool for hacking better health &
environmental decisions as it aims to prevent at the outset rather than manage after the
fact.

13 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

ARGUMENTS ADVANCED

ISSUE I - WHETHER THE WRIT PETITION FILED UNDER ARTICLE 32

BEFORE THE HON’BLE SC IS MAINTAINABLE OR NOT?

1. The petitioner most humbly submits before this Hon’ble Court that the petition
filed before the SC under Art. 32 is maintainable, as the matter involves a
substantial question of law of general public importance which makes it a
reasonable ground for filing of such petition. As if the SC does not take
cognizance of such a matter, it will result in gross injustice & that, miscarriage
of justice has already occurred. In the instant matter, the right to life & personal
liberty, is violated by CUCL & hence, it is a matter of general public
importance & therefore, calls for intervention by the SC.

GROSS INJUSTICE HAS BEEN DONE

2. It is most respectfully submitted that the basic principles of Art. 32 is that if

the litigant feels that injustice has been done & there is breach of fundamental
right, there is one superior court having original jurisdiction, which he/she may
directly approach through Art. 32 & that there can be no estoppel issued against
the Const. & which, in its discretion, deliver justice to him.

3. In the matter of Own Motion v. UOI & Ors. (as mentioned in paragraph no. 14
of the Moot Proposition), the Apollo HC took suo moto cognizance relating to
the devastating effect of radiation emanating from the mining of uranium on
environment, further the court also showed deep concern about the radioactive
wastes discharged by the CUCL, & thereafter while disposing off the case
directed CUCL to take necessary actions within a period of 8 weeks which
apparently CUCL failed to follow (clarification point no. 14), hence the
petitioner, IARO has the right to move to the apex court & the petition shall be
maintainable.

14 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

RIGHT TO ENVIRONMENT

4. It is most humbly contended that the higher judiciary's approach reflects the
formulation of the right to environment as the right derived from an existing
right, that is, the fundamental right to life as laid down in the Const. A certain
threshold of environmental quality is essential to ensure human dignity & to
guarantee a minimum quality of life. In the case of Francis Coralie Mullin v
The Administrator, Union Territory of Delhi 1, the SC stated that the right to
life includes, ‘the right to live with human dignity &everything that goes along
with it, to be specific, the bare necessities of life’. In the case of State of
Himanchal Prdesh & Anr. v Umed Ram Sharma & Ors2, the court held that
the right to life embraces ‘not only physical existence of life but the quality of
life’. The people in the Elis district were living in small shady homes with no
cultivable lands which raises a question against the right to life with human
dignity as shady homes deprives an individual of his right to proper shelter &
no cultivable or fallow lands deprives them with their right to freedom of
practice profess any profession as laid down in Art. 19(1)(g).

5. It is humbly submitted that the right to environment under Art. 21 read with
Art 48A traces its origin from the case of Bandhua Mukti Morcha v UOI3, the
court in this case recognized the need to ensure that workers can live a healthy
& decent life after reading the relevant provisions of the Mines Act, 1952. The
decision of the case, was significant to drive fundamental right to live with
human dignity, i.e. enshrined under Art. 21 of the Const. & observing that this
right drives its breath from the DPSP:-

i) implicitly recognized several rights such as health, clean drinking water,

better living condition in the state.

ii) vulnerable section of the society that is workmen &

iii) within the framework of the statutory duties of the government.

6. It is most humbly contended that the protection of health of workers,

opportunities for children to develop in a healthy manner, just & humane

1 Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981) 1 SCC 608, ¶ 8.
2
State of Himanchal Prdaesh & Anr. v. Umed Ram Sharma & Ors, (1986) 2 SCC 68, ¶ 11
3
Bandhua Mukti Morcha v. UOI, (1984) 3 SSC 161, ¶ 28

15 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

conditions of work & maternity relief are also included in right to life of human
dignity & no state (central or any state government) has the right to take any
action which will deprive a person of the enjoyment of these basic essential
rights. In the pertinent case, it was claimed that radiant exposure from uranium
mining was leading to miscarriages, deformities in new born children &
diseases like cancer were being recorded, which depicts the poor attention
towards the living of a healthy life of the workers & their families.

7. In the case of M.C Mehta v Kamal Nath & Ors 4 , the court held that any
disturbance of the basic environmental elements, namely air, water & soil
which are necessary for life, would be hazardous to life within the meaning of
Art 21 of the Const. Further, in the judgement of M.C. Mehta v UOI5, the SC
held that mining operations impair the right to natural resources.

8. In the case of Chhetriya Pardushan Mukti Sangharsh Samiti v State of U.P.6,

environmental pollution was being caused as a result of industrial activities,
the SC held that every citizen has the fundamental right to have the enjoyment
of quality of life & living as contemplated by Art 21. Anything which
endangers or impairs by conduct of anybody either in violation or in derogation
of laws, that quality of life & living by the people is entitled to be taken
recourse of Art 32 of the Const. In the present case, indeed the environment
was being destructed due to the mining activities, which is violation of law &
hence, Art. 32 comes into role.

9. Further, it is presented that in the case of Shantistar Builders v Narayan

Khimalal Totame & Ors7,the SC held that right to life would take within its
sweep, the right to decent environment. In the case of T. Damodhar Rao &Ors.
v The Special Officer, Municipal Corporation of Hyderabad & Ors8, some
HC had implicitly recognized the right to environment as a part of the
fundamental right to life & HC of Andra Pradesh held that it would be
reasonable to hold that the enjoyment of life & its attainment & fulfilment

4 M.C Mehta v. Kamal Nath & Ors, (2000) 6 SCC 213, ¶ 8

5
M.C. Mehta v. UOI, (2001) 4 SCC 577
6
Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P, (1990) 4 SCC 449, ¶ 8.
7
Shantistar Builders v. Narayan Khimalal Totame & Ors, (1990) 1 SCC 520, ¶ 9
8
T. Damodhar Rao & Ors. v The Special Officer, Municipal Corporation of Hyderabad & Ors, (1987)
SCC OnLine AP 6, ¶ 24

16 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

guaranteed by Art 21 of the Const. embraces the protection & preservation of

natures’ gift without which life cannot be enjoyed. The slow poisoning by the
polluted atmosphere caused by environmental pollution & spoliation should
also be regarded as amounting to violation of Art 21 of the Const.

10. It is further submitted before the Court that Art 48A explicitly lays down the
duty of the state in respect of the environment. The word environment under
this article has a broad spectrum & includes hygienic atmosphere & ecological
balance as stated in the case of Virendra Gaur & Ors v State of Haryana &
Ors9. In addition, Art 47 creates a duty for the state to raise the level of nutrition
& the standards of living & to improve public health. In present case, neither
the state was maintaining & protecting the environment against the hazardous
pollutants nor was it taking care of the standard of livings & the overall health
of the general public in the state of Elis.

11. It is most humbly contended that the right to environment has also been seen
through the lens of ecological balance, the ecological balance in nature is based
on the fundamental concept that nature is a series of complex biotic
communities of which man is an interdependent part & that it should not be
given to a part to trespass & diminish the whole as held in the case of State of
Bihar v Murad Ali Khan10. The court has also identified the practices that
disturb the ecological balance, such as the working of mines for exploitation
of mineral resources, similarly as happened in the case in hand.

12. In M.C Mehta v UOI 11 the court reiterated that the right to environment is
linked to pollution free environment. Pollution is a civil wrong it is a tort
committed against the community. In addition, the pollution is also linked to
number of socioeconomic rights such as the right to health, housing, water &
sanitation. The maintenance & restoration of the wholesomeness of water for
different uses is one of the objectives of the Water (Prevention & Control of
Pollution) Act 1974 & the judiciary has recognized the duty of the state to
provide clean12, unpolluted or safe drinking water. In the present case it has
been mentioned that the water/ river was being contaminated as a result of the

9 Virendra Gaur & Ors v State of Haryana & Ors, (1995) 2 SCC 577, 7
10
State of Bihar v Murad Ali Khan, (1988) 4 SCC 655, ¶ 10.
11
M.C Mehta v UOI, (1992) 3 SCC 256, ¶ 2.
12
Subhas Chandran v Govt of Andra Pradesh, (2001) SCC ONLINE AP 746, ¶ 26

17 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

mining activities.

13. It is respectfully submitted that in the case of Sandeep Lahariya v State of

M.P 13 , the NGT highlighted the fundamental duty of every citizen, under
Article 51A (g) of the Const., to protect & improve environment, not only for
the benefit of the human beings & citizens of the country but having regard to
all living creatures. The river that was being contaminated due to mining
activities was affecting the aquatic live as well. The gaseous contaminates
causing the air pollution & affecting the health through groundwater was
affecting other creatures too.

14. It is further submitted that in the case of Skill Lotto Pvt Ltd v UOI14, the SC
held that, “Art. 32 is an integral part of the basic structure of the constitution.
Art. 32 is meant to ensure the observance of the rule of law, it provides for the
enforcement of fundamental rights which is the most potent weapon” & in the
pertinent case, as the issue involves right to live in a pollution free environment
which falls under the ambit of Art. 21 of the Const., which in itself is a
fundamental right & material breach of this right allows the petitioner to
approach the Hon’ble SC under Art. 32.

15. It is respectfully submitted that the SC in the case of Research Foundation for
Science Technology Resource Policy v UOI & Anr. 15 held that the right to
information & human health flows from Art 21 of the Indian Const.
Comparably, in the pertinent case, there has been breach of this right as the
affected villagers were neither allowed to speak nor were they given the
information i.e. EIA & EMP of the expansion operations & CUCL exposed the
uniformed villagers to heavy health risks.

16. It is most humbly submitted before the court that the harm to the environment
has amounted to the threatening of fundamental rights guaranteed by the Const.
It is an opportunity for the government to make basic human rights meaningful
to the deprived & vulnerable sections of the society & to assure them justice.

17. Moreover, by making shift in the lives of such people living in the territory of

13
Sandeep Lahariya v State of M.P, (2012)
14 Skill Lotto Pvt Ltd v UOI, (2018) W.P (civil) 961
15
Research Foundation for Science Technology Resource Policy v UOI & Anr, (2005) 10 SCC 510, ¶ 1

18 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

Elis, CUCL & the State failed to provide many basic & just resources needed
to live a healthy & natural life filled with dignity & liberty & in non-pursuance
of the same, the State failed its obligations as mentioned in Art. 21 of the Const.
& thus, such depravation of these basic rights & obligations by the state
towards the community members of Elis district makes it a perfect case to fall
under the ambit of Art. 21 & violation of such rights, makes it a perfect case to
be made maintainable by the Hon’ble SC under the provision of Right to
Constitutional Remedies as held in Art. 32 of the Indian Const. Thus, in the
light of the above arguments presented the petition shall be maintainable in the
Hon’ble SC.

ISSUE II: WHETHER RIGHT TO LIVELIHOOD OUTWEIGHS THE RIGHT

TO ENVIRONMENT?

18. The petitioner most respectfully submits before the court that right to livelihood
can never outweighs the right to environment. The SC in the case of Olga Tellis &
Ors v. Bombay Municipal Corporation 16 , stated that a right to life would be
meaningless without ensuring means of livelihood. No person can live without the
means of living, that is, the means of livelihood. It is significant to bring in notice
before the court that right to livelihood is essential but not as much as the right to
environment. Environment generates or creates means or sources for living or
earning livelihood for the locals. In laymen language, if environment becomes
unhealthy or unclean due to the mining activities, it would hamper the society as
whole.

19. It is humbly submitted that the claims by the experts in their studies that have
mentioned that the company flouted many national & international safety
regulations in its functioning & exposed the uniformed villagers to heavy health
risks, hence the demands by the local villagers for creating no new uranium mines
& expanding the capacity of CUCL, is rational & well grounded. Growth has to do
little with improving or ensuring their lives instead they are convinced that they are

16 Olga Tellis & Ors v. Bombay Municipal Corporation, (1985) Manu SC 0039

19 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

uprooted from their familiar world and compelled to learn to live with peculiar in
an unfamiliar society. In Kanpur Tanneries case17, the SC observed that though
closure of tanneries may bring unemployment, loss of revenue, but life, health &
ecology have greater importance.

20. It is humbly submitted that installed capacity of the uranium mines in the Elis
district is about 1,000 TPD ore & to obtain each kg of uranium, a thousand kg of
ore must be processed at a uranium mining plant, the bulk of which would be
discarded as waste & these wastes are contaminated with toxic heavy metals.
Moreover, the epidemiologic studies have shown that inhalation of randon
increases the risk of lung cancer & gaseous contaminants can affect the health of
populations through groundwater & locally grown products, thus leading to
environment degradation.

VIOLATION OF EIA & EMP

21. It is most humbly submitted that as per Section 4 of the Land Acquisition Act,
2013, whenever the appropriate government intends to acquire land for a public
purpose, it shall consult the concerned Panchayat, Municipality or Municipal
corporation at the village level or ward level, in the affected area & carry out the
social impact assessment study in consultation with them & the same report shall
be made available to the public. Moreover, the EIA study shall be carried out
simultaneously. The fact as mentioned in the case that the villagers wanted the
CUCL to prepare credible EIA & EMP reports & a moratorium was to be declared
on the opening of new uranium mines depicts the magnanimity & vulnerability of
the lifestyles of such people living in those regions as such high level of
Environmental Degradation affected their lives precariously on day-to-day basis.

22. The appropriate government shall also take in consideration the impact that the
project will likely to cause on various components such as livelihood of the affected
families, sanitation, sources of drinking water, etc. It is evident from the facts of
the case that no such assessment was carried out with the consultation of the
concerned panchayat, municipal corporation or municipality. The components
such as radiation exposure from uranium mining was leading to miscarriages,

17
M.C. Mehta v. UOI, (1988) AIR 1115; (1998) SCC (1) 471.

20 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

deformities in new-born children & diseases like cancer had become rampant.

23. Further, it is also essential to present the studies of various national & international
NGOs which showed high prevalence of congenital deformities, neo-natal deaths,
spontaneous abortions, cancers, skin diseases, etc., among the workers, their
families & the villagers living close to the mines, the river also was contaminated
as a result of mining activities. Moreover, no hospitals specializing in providing
treatment related to hazardous radioactive injuries exist on the sites of mining.
Therefore, it is evident that the government did not take into consideration the
number of lives & the degree of destruction it was to cause to the environment.

24. Further, it is submitted that the statement that the local villagers had protested
vehemently & rallied around the local politicians for years after their lands were
taken compulsorily depicts that they were never provided with the opportunity of
presenting their sides. Right to be heard ought to be extended to the local villagers
or the land owners of the district of Elis.

25. It is submitted before the court that as per the 2001 census, the tribal people who
formed 8% of India’s total population constituted over 50% of the total displaced
persons due to development projects. Until 1990, almost 85 lakh tribals were
displaced by major development projects, according to the Ministry of Tribal
Affairs. The polices on liberalisation, privatisation and urbanisation have become
more troubling over the last two decades.

26. It is humbly submitted that Section 5 of the Land Acquisition Act, 2013, talks about
public hearing for social impact assessment, whenever such assessment is required
to be prepared, the government shall ensure that the public hearing is held at the
affected area & the views of the affected families to be recorded & included in the
Social Impact Assessment Report. In the pertinent case, the local villagers were
protesting vehemently & were not heard (paragraph no. 4 of the Moot Proposition),
moreover the petitioner has also questioned the usefulness of the public hearing in
EIA, claiming that the affected villagers were never allowed to speak nor were they
given the EMP, which is not in compliance with the provision of the Land
Acquisition Act, 2013.

27. It is most respectfully submitted that Section 8(2) of the Land Acquisition Act,
2013, says that after considering all the reports of the Social Impact Assessment

21 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

study, the recommendation shall be made after considering factors such as area for
acquisition which would ensure minimum displacement of people, minimum
disturbance to the infrastructure, ecology & minimum adverse impact on the
individuals affected. As aforementioned, no such consideration was taken in note.

28. Further, it is submitted that the section provides that where land is sought to be
acquired for any of the purposes as specified in the act, the appropriate Government
shall also ascertain as to whether the prior consent of the affected families was
taken or not. In the (paragraph no 4 of the Moot Proposition) it is mentioned that
the land was acquired compulsorily from the local villagers implying no prior
consent was taken.

29. It is most humbly submitted that there has been violation of Section 41 of the Land
Acquisition Act, 2013 in regard to the rehabilitation & resettlement of the local
villagers. The section highlights the provision for Schedule castes & Schedule
tribes, being a schedule area no acquisition of land shall be made in the such areas,
& in case, such acquisition takes place it shall be done only as a demonstrable last
resort & in case of land being acquired from members of the Scheduled Castes or
the Scheduled Tribes, at least one-third of the compensation amount due shall be
paid to the affected families initially as first installment & the rest shall be paid
after taking over of the possession of the land. In the case in hand, firstly the land
was compulsorily acquired even though the State of Apollo is a Schedule V state
of the Indian Const. & even if it was acquired, the facts nowhere depicts that it was
due to the last resort. Secondly, no compensation amount was provided to the land
owners. Moreover, they were rehabilitated in the shady homes & left with no
cultivable lands, & working of such families at the lower level of these mines
delineates even unfortunate scenario.

ISSUE III: Whether the CUCL can be held liable for sabotaging the environment
under the polluter pay principle, the precautionary principle, & the public trust
doctrine?

30. It is most humbly submitted before the court that Indian courts have held the

22 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

principles of precaution, polluters pay & public trust doctrine as the integral to the
corpus of Indian law. 18 CUCL has breached the following principles of law as
follows:

POLLUTER PAYS PRINCIPLE

31. In the case of Council for Enviro-legal Action v. UOI19, the polluters pay principle
was explicitly relied on for the first time in the domestic environmental law by the
Hon’ble SC. The case concerned the adverse environmental & health impacts of
water & soil pollution in Bichhri village & surrounding villages in the Udaipur
district in the state of Rajasthan, as a result of the dumping of untreated wastewater
& highly toxic sludge, particularly iron-based & gypsum-based, resulting from the
past production of H acid by chemical industries. The court relied on the polluter
pays principle that was recognized by OECD & the European Community &
observed that the principle has now come to be accepted universally as a sound
principle&is much closer to the ordinary, common-sense meaning of the term
"polluter pays". Comparably, in the pertinent case, the CUCL was polluting the
water bodies of the Elis, & the same principle of Polluters pay shall have relevance
by the Hon’ble court & make the respondents pay for sabotaging the environment.
32. The Supreme Court explicitly invoked the polluter pays principle for the second
time in Vellore Citizens' Welfare Forum v. UOI & Ors.20 The case concerned
pollution caused by the discharge of untreated effluent by tanneries & other
industries in the state of Tamil Nadu into river Palar & on land, which contaminated
surface water & groundwater, the main sources of water supply to the residents of
the area. Two observations can be made in respect of the Court's reliance on two
different sources of the polluter pays principle:
i. domestic law (the Constitution of India &environmental statutes) &
ii. international law (custom).
33. It is humbly submitted that based on the history of court of broad interpretation of
constitutional provisions. To that extent, as environmental statutes are concerned,
there is no direct reference to the polluter pays principle in the Water (Prevention
& Control of Pollution) Act 1974 (Water Act) &the Environment (Protection)

18 Vellore Citizens’ Welfare Forum v. UOI, (1996) 5 SCC 647, ¶ 10 & 11.
19
Council for Enviro-legal Action v. UOI, (1996) 3 SCC 212
20 Supra note 18

23 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

Act 1986 (EP Act), which were enacted by Parliament in order to implement the
decisions of the United Nations Conference on the Human Environment of 1972,
where the polluter pays principle was not mentioned& in response to the Bhopal
gas tragedy of 1984, respectively. However, in view of' the statutory provisions,
that is the Water Act, EP Act &the Air (Prevention &Control of Pollution) Act,
1981 (Air Act), the Court had no hesitation in holding that the polluter pays
principle is a part of the environmental law of the country. 21
34. The court while considering the international law dimension of the polluter pays
principle held that sustainable development has been accepted as a part of the
customary international law though its salient features have yet to be finalized by
the international law jurists. The Court then identified the polluter pays principle
as one of the 'salient principles' & 'essential features' of sustainable development.
This signifies that the Court considered the polluter pays principle to be part of
customary international law.
35. It is further presented that the court further reiterated thatonce these principles are
accepted as part of the Customary International Law there would be no difficulty
in accepting them as part of domestic law. It is almost an accepted proposition of
law that the rules of Customary International Law which are not contrary to the
municipal law shall be deemed to have been incorporated in the domestic law &
shall be followed by the courts of law.22
36. It is further submitted that the principle has also been envisaged under Principle
16 of the Rio Declaration: -
National authorities should endeavor to promote the internalization of
environmental costs & the use of economic instruments, taking into account the
approach that the polluter should, in principle, bear the cost of pollution, with
due regard to the public interest &without distorting international trade
&investment.
37. In the case of Research Foundation for Science Technology Natural Resource
Policy v. UOI & Anr.23, the Court specifically relied on Principle 16 of the Rio
Declaration. Further in the case of C. Kenchappa v. Karnataka Industrial Areas

21
Supra note 18 ¶ 13 & 14
22
Ibid ¶ 15
23
Research Foundation for Science Technology Natural Resource Policy v. UOI & Anr, (2005) 13 SCC
186

24 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

Development Board 24 , the Court referred to the Rio Declaration, &traced the
foundation of the polluter pays principle to its previous judgments in Bichhri &
Vellore. Broadly, therefore, the polluter pays principle has been incorporated into
domestic environmental jurisprudence.

APPLICATION OF THE ABSOLUTE LIABILITY PRINCIPLE

38. It is most humbly submitted that in the context of environmental pollution, liability
rules can perform a curative or preventive function. The curative function is
performed when the polluter is held responsible for environmental damage & for
payment of compensation to victims. Liability rules perform a preventive function
when the probability of damages incentivices measures to reduce or pre-empt
environmental damage.
39. In the case of Rylands v. Fletcher25, the principal of no-fault or strict liability was
laid down. There was no requirement to prove the polluter's fault. In India, the
polluter was held liable for the damage resulting from its activities, for instance, as
a remedy in tort law, much before the express incorporation of the polluter pays
principle into domestic environmental jurisprudence. Pollution also falls under
public nuisance, which is broadly defined as an unreasonable interference with a
general right of the public, &, therefore, the provisions relating to public nuisance
in civil & criminal laws are also relevant.
40. It is further presented that in the case of M. C. Mehta & Anr. v UOI & Ors26.
popularly known as the Oleum Gas Leak case, the absolute liability principle was
developed by a Constitutional bench of the SC, a case concerning leakage of oleum
gas from a unit of Shriram Foods & Fertilizer Industries on 4th & 6th December,
1985, almost a year after the Bhopal gas tragedy, which affected several persons.
The Court held that where an enterprise is engaged in a hazardous or inherently
dangerous activity & results causes harm to anyone on account of an accident in
the operation of such hazardous or inherently dangerous activity resulting, for
example, in the escape of toxic gas the enterprise is strictly & absolutely liable to
compensate all those who are affected by the accident &such liability is not subject

24
C. Kenchappa v. Karnataka Industrial Areas Development Board, (2006) 6 SCC 371
25
Rylands v. Fletcher, UKHL 1, L.R. 3 H.L. 330
26
M. C. Mehta & Anr. v. UOI & Ors, (1987) SCR (1) 819; AIR (1987) 965

25 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

to any of the exceptions which operate the tortious principle of strict liability under
the rule laid in Rylands v. Fletcher27.
41. The Court further observed that the measure of compensation must be correlated
to the magnitude & capacity of the enterprise because such compensation must
have a deterrent effect. The larger & more prosperous the enterprise, the greater
must be the amount of compensation payable by it for the harm caused on account
of an accident in the carrying on of the hazardous or inherently dangerous activity
by the enterprise. It is pertinent to mention that following the Bhopal gas tragedy
of December 1984, questions were raised about the extent of liability of
corporations in the event that any injurious liquid or gas escapes, on account of
negligence or otherwise, &the remedies to secure payment of damages to the
affected persons.
42. It is further presented that in the case of Union Carbide Corporation v UOI28, the
absolute liability principle was applied by the HC of Madhya Pradesh to support
the award of interim compensation to the victims of the Bhopal gas tragedy.
However, the judgment was never implemented because of the final settlement
between the parties. Moreover, Justice K. N. Singh, in his separate judgment,
mentioned that Union Carbide Corporation had accepted its liability while entering
into the settlement. Subsequently, in Union Carbide Corporation & Ors v. UOI &
Ors29, the petitioners requested the Court to apply the principle of absolute liability
instead of the principle of strict liability in cases relating to the Bhopal gas tragedy.
But the Court held the law declared in the Oleum Gas Leak case to be obiter. Later,
the judiciary explored the relationship between the polluter pays principle &the
absolute liability principle.
43. The Court held that the polluting industries area absolutely liable to compensate
for the harm caused by them to the villagers in the affected area, to the soil, &to
the underground water & hence, they are bound to take all necessary measures to
remove the sludge &other pollutants wing in the affected area & also to defray the
cost of the remedial measures required to restore the soil &the underground water
sources. The Court concluded that the polluter pays principle is stated in 'absolute'
terms in the Oleum Gas Leak case. This suggests that the Court recognized the

27
Supra note 25
28
Union Carbide Corporation & Ors v. UOI & Ors, (1990) AIR 273 (1989) SCC (2) 540
29
Ibid

26 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

distinction between the absolute liability principle or no-fault liability, which

applies to inherently dangerous or hazardous activities, & the polluter pays
principle, which applies more broadly to different cases of pollution.
44. It is most respectfully submitted that in the case of Vellore, after referring to its
previous opinion expressed in Bichhri case30 that any principle evolved on this
behalf should be simple, practical & suited to the conditions obtaining in this
country,68 the Court went on to hold that the 'Polluter Pays' principle as interpreted
by the Court means that the absolute liability for harm to the environment extends
not only to compensate the victims of pollution but also to the cost of restoring the
environmental degradation. Remediation of the damaged environment is part of the
process of 'Sustainable Development' & as such polluter is liable to pay the cost to
the individual sufferers as well as the cost of reversing the damaged ecology.

PRECAUTIONARY PRINCIPLE

45. It is most humbly contended that the most elaborate definition of the precautionary
principle has been provided by the Rio Declaration, which says, in order to protect
the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation. Once a threat to the
environment has been identified, action should be taken to abate environmental
interference, even though there may be scientific uncertainty as to the effects of the
activities. Science is still relevant & influential in the identification of risk, in that
there must be a scientific basis for predicting environmental damage.
46. It is submitted that the precautionary principle has received widespread recognition
in international environmental law since it was first found, expression in the 1982
World Charter for Nature. It finds reflection, inter alia, in the 1992 Framework
Convention on Climate Change, 1992 Convention on Biological Diversity; 1995
Fish Stocks Agreement; 2000 Bio safety Protocol & 2001 Persistent Organic
Pollutants Convention. It has also been incorporated into numerous national &

30
Supra note 19

27 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

regional legislation. As stated in section 20 of the NGT Act 31 & invoked in

countless domestic courts.
47. It is submitted that in the case of Soman v. Geologist32, the Kerala HC held that
mining companies are obliged on the basis of the precautionary principle & polluter
pays principle to fill mining pits once mining reaches a groundwater level.
48. In Smoke Affected Resident's Forum & MCGM33, the Bombay HC applied the
precautionary principle to require a particular model of taxis to convert to
compressed natural gas (CNG) liquefied petroleum gas (LPG) or be phased out, as
this is necessary to protect the health of Mumbai citizens. The certainty of impacts
was not in question in any of these cases; rather these cases considered possible
responses to predictable, proven, & certain harms.
49. It is further submitted that in the case of Jeet Singh Kanwar v. MoEF & Ors.34,
NGT quashed an environmental clearance for a coal-based thermal power plant on
the grounds that the MoEF had not properly considered the precautionary principle.
In the view of the court, the clearance was not granted due to the excessive
pollution caused in the nearby areas by the use of coal as a fuel. The court in the
case did not deal with the uncertain impacts but rather was considering the possible
responses to proven harms.
50. It is presented that in the case of Sarang Yadwadkar & Ors. v. The Commissioner,
Pune Municipal Corporation & Ors. 35 , the NGT defines the precautionary
principle as the principle of prevention. It mentioned that the principle of
precaution involves anticipation of environmental harm & taking measures to
avoid it or to choose the least environmentally harmful activity. Similarly, in S.P.
Murturaman & Ors. v. Union of India 36 , NGT stated that the precautionary
principle is a proactive method of dealing with the likely environmental damage,
& that the purpose should be to avert the major environmental problems before the
most serious consequences & side effects would become obvious. It can be inferred
that the precautionary principle is a tool for hacking better health & environmental
decisions as it aims to prevent at the outset rather than manage after the fact.

31 Canada [(Canadian Environmental Protection Act, 1999, Section 2(1)(a)]

32
Soman v. Geologist, (2004) SCC OnLine Ker 510
33
Smoke Affected Resident's Forum & MCGM (2002) SCC OnLine Bom 510
34
Jeet Singh Kanwar v. MoEF & Ors, (2011)
35
Sarang Yadwadkar & Ors. v. The Commissioner, Pune Municipal Corporation & Ors, (2013), NGT
Principal bench dated 11 July 2013.
36
S.P. Murturaman & Ors. v. UOI, (2015)

28 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

51. In the case of Samta & Anr. v MoEF & Ors37., NGT interpreted the precautionary
principle as requiring a proper prior assessment of environmental impacts, before
grant of environmental clearance. It is evident that the court is beginning to
interpret the principle so as to require a robust evidence base for appropriate
decisions to prevent environmental harm.
52. Further in the case of Narmada Bachao Andalon38, the SC stated that the principle
is not engaged where the effect on ecology or environment of setting up of an
industry is known. Instead the court observed if the environment is likely to suffer,
& then what steps can be taken to offset the same. In other words, where the effects
of a project are known, it is not precaution but the principle of sustainable
development that comes into role. This engages a balancing exercise between the
environmental & social costs of the activity &development imperatives. Needless
to mention, there are multiple risks associated with large dam projects, but the
Court here, interpreting precaution narrowly, questioned the extent of damages that
are likely to be inflicted is unknown or known. If it is known, then other principles
such as sustainable development should play a role in the decision-making.
53. It is further submitted that in the case of Democratic Youth Federation of India v.
UOI39, the SC created a committee to consider the harmful impacts of the pesticide
endosulfan & in the meantime, in light of the precautionary principle, the Court
banned its use. This judgment adopts a strong version of the principle, but in
launching a risk assessment, &banning the use of endosulfan in the interim, it
engages the precautionary principle under conditions of scientific uncertainty in
relation to impacts.

PUBLIC TRUST DOCTRINE

54. It is most humbly submitted before the court that the Kamal Nath judgement of the
SC is the lodestar of the public trust doctrine in Indian environmental
jurisprudence. In the case of M.C. Mehta v. Kamal Nath40, the Court relied on the
public trust doctrine & held that the area being ecologically fragile & full of scenic

37
Samta & Anr. v. MoEF & Ors, (2011), NGT, dated 13 December, 2013
38
Narmada Bachao Andalon v. UOI, (2000) 18 SCC 664
39
Democratic Youth Federation of India v. UOI, (2011) W.P. (C) 213
40
M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, ¶ 38

29 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

beauty should not have been permitted to be converted into private ownership &for
commercial gains & that the government had committed a patent breach of the trust
as held by the court. Moreover, the Court extensively mentioned that from the
influential 1970 law review Article by Joseph L. Sax41 on the public trust doctrine
& discussed American case law which relied on this doctrine.
55. It observed that as the doctrine was part of the English common law & as the Indian
legal system was based on the common law system, the public trust doctrine was
part of Indian jurisprudence. The Court declared the doctrine to be a part of the law
of the land, although it was the first time that a court in India was relying on it in
the context of environmental conservation, & it had not been statutorily
incorporated.
56. It is most humbly submitted that the State is the trustee of all natural resources
which are by nature meant for public use & enjoyment. Public at large is the
beneficiary of the sea-shore, running waters, airs, forests & ecologically fragile
lands. The State as a trustee is under a legal duty to protect the natural resources.
These resources meant for public use cannot be converted into private ownership.42
57. It is respectfully submitted that the public trust doctrine, in essence, protects certain
components of the natural environment from exploitation. These components often
referred to in this context as natural resources or properties, are held in trust by the
State for the people, who are, in a sense, the real owners & beneficiaries of the
same. Over the years, Indian courts have applied the doctrine to various natural
resources, However, only in some cases have the courts provided a justification for
considering a particular natural resource as being held in trust by the State.
58. In Kamal Nath 43 case, the Court made three important observations in the
aforementioned context :
i. all natural resources which are by nature meant for public use &
enjoyment are held in trust by the State & such properties are of great
importance to the people as a whole;
ii. public at large is the beneficiary of the sea-shore, running waters, airs,
forests &ecologically fragile lands; &

41
Joseph L. Sax, ‘The Public Trust Doctrine in Natural Resourse Law: Effecive Judicial Intervention’
(1970) 6803, Michigan Law Review
42 Supra note 40, ¶ 34
43
Supra note 40, ¶ 24 & 33

30 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

iii. sees no reason why the public trust doctrine should not be expanded to
include all ecosystems operating in our natural resources.
59. It is submitted that the the Court justified its approach of subjecting all ecosystems
to the public trust doctrine by observing that US courts were expanding the
application of the doctrine to new types of lands & waters by accepting ecological
concepts to identify trust properties. In the Centre for Public Interest Litigation &
Ors. v. UOI44 popularly known as the 2G spectrum case, the SC relied on the public
trust doctrine. The court raised question for itself as whether the government has
the right to alienate, transfer or distribute natural resources/national assets
otherwise than by following a fair & transparent method consistent with the
fundamentals of the equality clause enshrined in the Const. (45) The Court held
that the State, as a trustee of the people, is the legal owner of natural resources. The
Judgment provided a guidance as to what constitutes “natural resource”.
60. The court considers it proper to observe that even though there is no universally
accepted definition of natural resources, they are generally understood as elements
having intrinsic utility to mankind. They may be renewable or non-renewable.
They are thought of as the individual elements of the natural environment that
provide economic & social services to human society & are considered valuable in
their relatively unmodified, natural form. A natural resource's value rests in the
amount of the material available & for it. The latter is determined by its usefulness
to production. Natural resources belong to the people but the State legally owns
them on behalf of its people & from that point of view natural resources are
considered national assets, more so because the State benefits immensely from
their value.45
61. It is submitted that in the case of T.N. Godavarman Thirumulpad v. UOI & Ors.46,
Natural resources, thus, defined identified a distinctly anthropocentric approach to
the application of the public trust doctrine.
62. In the case of Fomento Resorts & Hotels Limited & Anr. v. Minguel Martins &
Ors.47, according to the SC, the basic premise of the public trust doctrine lies in the
limits & obligations it places on the government agencies on behalf of people. In

44
Centre for Public Interest Litigation & Ors. v. UOI, (2007) 139 DLT 289
45 Ibid, ¶ 74
46
T.N. Godavarman Thirumulpad v. UOI & Ors, (2012) 3 SCC 277
47
Fomento Resorts & Hotels Limited & Anr. v. Minguel Martins & Ors, (2009) 3 SCC 571

31 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

Intellectuals Forum, the Court has relied on Sax's formulation of the types of
restriction on governmental authority which are imposed by the public trust
doctrine.
63. The issue before the Court in Intellectuals Forum v. State of Andhra Pradesh &
Ors. 48 was those two historical ‘tanks’, which were still in use as sources of
drinking water & irrigation water, & for augmenting groundwater, had been
alienated for the construction of houses. The Court, while applying Sax's
formulation, held that the first & the third restrictions had been violated, although
it did not provide any explanation for the same. It decided to overlook the violation
of the second restriction because the development of the housing complex was
being undertaken by the government &not by a private party.
64. In Kamal Nath49 , the SC addressed the second &third restrictions. It held that
resources meant for public use cannot be converted for private ownership or for
commercial use. The public trust property had to be maintained for a certain type
of uses actively prevent the infringement of the community's right. In Environment
Protection Committee v. Union of India50, the HC of Guwahati held that it is the
'the bounden duty for the government to protect the Nambul River by evicting the
Encroachers.

ACCESS TO NATURAL RESOURCES

65. It is submitted that the another aspect of the public trust doctrine that courts have
highlighted is that of access to natural resources, although the nature of access that
has been considered is different. One type of access was discussed by the Supreme
Court in Fomento Resorts, the public's right to enjoy uninterrupted access to a
natural resource, in this case, a beach. While finding that the hotel was under a
statutory obligation to maintain access to the beach without any obstruction, the
Court also discussed the public trust doctrine in detail. It held that people are
entitled to uninterrupted use of common properties." If the transfer of a public trust
property interferes with the right of the public, the State cannot transfer such

48
Intellectuals Forum v. State of Andhra Pradesh & Ors., (2006) 3 SCC 549
49 Supra note 40, ¶ 35
50
Environment Protection Committee v. UOI, (2011) (1) EFLT 326

32 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

property. If it does, courts can step in & invoke the public trust doctrine, to protect
the 'right of the people to have access to light, air, & water & also for protecting
rivers, sea, tanks, trees, forests, &associated natural ecosystems.
66. In Reliance Natural Resources Ltd. v. Relience Industries Ltd.51, The Supreme
Court also referred to the access element with regard to resources mentioned in
Article 297 of the Constitution of India. The Court held that the Union of India
cannot allow a situation to develop wherein the various users in different sectors
could potentially be deprived of access to such resources &that any user of such
resources shall not be given guaranteed continued access beyond a period specified
by the government. Access in this case was access for commercial use of a
resource, not for direct public benefit.
67. Thus, in the light of arguments presented by the petitioner, CUCL is completely
liable on the grounds of Polluter Pays Principle, Precautionary Principle & Public
Trust Doctrine as determined by the Hon’ble SC in its various landmark judgement.

51
Reliance Natural Resources Ltd. v. Relience Industries Ltd, (2010) 7 SCC 1

33 | P a g e
 NHRC-NUSRL NATIONAL MOOT COURT COMPETITION

PRAYER

WHEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS

ADVANCED, REASONS GIVEN & AUTHORITIES CITED, THIS COURT MAY
BE PLEASED TO:

I. To declare that the writ petition filed under Art 32 before the Hon’ble SC is
maintainable.
II. To declare that the right to livelihood does not outweighs right to environment.
III. To declare that the CUCL can be held liable for sabotaging the environment under
the polluter pay principle, precautionary principle & public trust doctrine.

And any other relief that this Hon’ble Court may be pleased to grant in the interests of
Justice, Equity, & Good Conscience.

All of which is respectfully submitted.

PLACE: SUPREME COURT, INDIA

Sd /-
COUNSEL FOR THE PETITIONER

34 | P a g e