IN THE HONBLE SUPREME COURT OF DASOI

Petitions filed under Article 32 of the Constitution of Dasoi

W.P. No.: THE PRESIDENT, GAYA

of 2012 Petitioner No. 1

KEERI vs. UNION OF DASOI

Petitioner No. 2

Respondent No. 1

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS

Most Respectfully Submitted to the Honble Chief Justice of India & other Companion Judges of the Honble Supreme Court of Dasoi 2012

SCHOOL OF EXCELLENCE, 5TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION CHENNAI, TAMIL NADU, INDIA

-TABLE OF CONTENTSTABLE OF CONTENTS

Page i of xi

CONTENTS INDEX OF AUTHORITIES LIST OF ABBREVIATIONS STATEMENT OF JURISDICTION SYNOPSIS OF FACTS STATEMENT OF CHARGES SUMMARY OF ARGUMENTS PLEADINGS AND AUTHORITIES

PAGE ii of xi vii of xi viii of xi ix of xi x of xi xi of xi 1 to 7

1. WHETHER THE DECISION OF THE GOVERNMENT TO SET UP URANIUM MINES AND NUCLEAR
PLANTS JUSTIFIED?................................................................................................................1

2. WHETHER

THE

GOVERNMENT

CAN BE HELD LIABLE FOR THE DAMAGE TO THE

ENVIRONMENT BECAUSE OF THE MINING AND POWER PLANT ACTIVITIES?...........................3

3. WHETHER THE CIVIL LIABILITY

OF

NUCLEAR DAMAGE ACT 2012, SECTION 5

IN

PARTICULAR, IS UNCONSTITUTIONAL? .4

4. WHETHER THE ORDER PASSED BY THE NUCLEAR ORDER CLAIMS TRIBUNAL IS VOID?........7

PRAYER FOR RELIEF..8

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CASES 1. A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531 ..................................................................... 5 2. A.R. Antulay vs. R.S Nayak, (1988) 2 SCC 602 ...................................................................... 4 3. Accountant General vs. S. Doraiswamy, (1981) 4 SCC 93 ..................................................... 4 4. Anandi Mukta Sadguru Trust v. V.R. Rudani, AIR 1989 SC 1607.......................................... 8 5. Ashok Kumar Gupta v. State of Uttar Pradesh, (1997) 5 SCC 201 ...................................... 10 6. B.B. Rajwanshi vs. The State of Uttar Pradesh, AIR 1988 SC 1089....................................... 4 7. Bennet Coleman and Co. v. Union of India, AIR 1973 SC 60 ................................................ 5 8. Bijayanand v. President of Union of India, AIR 1974 Ori 52 ................................................. 8 9. Binny Limited v. V. Sadasivan, 2005 AIR (SC) 3202 ............................................................. 8 10. C. Ravinchandran Iyer v. Justice A.M. Bhattacharjee, 1995 SCC (5) 457............................ 14 11. Chanderbhan vs. S. Kumar, AIR 1980 Bom 48 ..................................................................... 4 12. Chintaman Rao v. Slate of M.P., A.I.R. 1951 S.C. 118 .......................................................... 8 13. Civil Writ Petition of the High Court of Himachal Pradesh, C.W.P 155 of 1984 ................. 10 14. Common Cause, A Registered Society v. Union of India, (1999) 6 SCC 667 .......................... 8 15. Delhi Development Authority v. Skipper Construction Co. (P) Ltd., AIR 1996 SC 2005 ........ 5 16. Delhi Electric Supply Undertaking v. Basanti Devi, AIR 2000 SC 43 ................................. 10 17. Dinesh Trivedi, M.P. and Others v. Union of India and Others, (1997) 4 SCC 306................ 5

BOOKS DURGA DAS BASU: CONSTITUTIONAL LAW OF INDIA, WADHWA NAGPUR, 7TH EDN. (REP. 2003). JAIN, M.P.: INDIAN CONSTITUTIONAL LAW WADHWA AND COMPANY, NAGPUR, 5TH EDN. (REP. 2005). KAGZI: CONSTITUTION OF INDIA INDIA LAW HOUSE, 6TH EDN. (2001). KASHYAP, SUBHASH C.: PARLIAMENTARY PROCEDURE - LAW, PRIVILEGES, PRACTICE & PRECEDENTS 2ND EDITION (2007). MALIK, SURENDRA: SUPREME COURT ON WORDS AND PHRASES, EASTERN BOOK COMPANY, 1ST EDN, LUCKNOW (1993).
AND

COMPANY,

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MALIK, SURENDRA: SUPREME COURT YEARLY DIGEST 1999, EASTERN BOOK COMPANY, LUCKNOW (1999). SEERVAI, H.M.: CONSTITUTIONAL LAW OF INDIA: A CRITICAL COMMENTARY UNIVERSAL BOOK TRADERS, 4TH EDN. (1997). SHUKLA, V.N.: CONSTITUTION OF INDIA EASTERN BOOK COMPANY, 10TH EDN. (2003). SINGH, G. P.: PRINCIPLES OF STATUTORY INTERPRETATION, 12TH ED., NAGPUR: WADHWA, BUTTERWORTHS LEXIS NEXIS (2010).

DICTIONARIES AIYAR, RAMANATHA P.: THE LAW LEXICON, WADHWA & COMPANY, 2ND EDN. NAGPUR (2002). BLACK, HENRY CAMPBELL: BLACKS LAW DICTIONARY, 6TH ED., CENTENNIAL ED. (18911991). CURZON. L. B: DICTIONARY OF LAW, PITMAN PUBLISHING, 4TH EDN. NEW DELHI (1994). GARNER, BRYAN A.: A DICTIONARY OF MODERN LEGAL USAGE, OXFORD UNIVERSITY PRESS2ND EDN. OXFORD (1995). GREENBERG, DANIEL AND ALEXANDRA, MILLBROOK: STROUDS JUDICIAL DICTIONARY OF WORDS & PHRASES, VOL. 2, 6TH ED., LONDON: SWEET & MAXWELL (2000). JUSTICE DESAI, M.C.
AND

AIYAR, SUBRAMANYAM: LAW LEXICON & LEGAL MAXIMS,

2ND ED., DELHI: DELHI LAW HOUSE (1980). MITRA, B.C. & MOITRA, A.C., LEGAL THESARUS, UNIVERSITY BOOK, ALLAHABAD (1997). MOYS, ELIZABETH M., CLASSIFICATION & THESAURUS FOR LEGAL MATERIAL, 3RD ED., LONDON: BOWKER SAUR (1992). OPPE., A.S., WHARTONS LAW LEXICON, 14TH ED., NEW DELHI: SWEET & MAXWELL (1997). PREM, DAULATRAM, JUDICIAL DICTIONARY, 1ST ED., JAIPUR: BHARAT LAW PUBLICATION (1992).

STATUTORY COMPILATIONS THE CIVIL LIABILITY OF NUCLEAR DAMAGE ACT, 2010 THE CONSTITUTION OF INDIA, 1950

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INTERNET SITES Official Sites http://mpa.nic.in/ http://www.cag.gov.in/

Legal Sites http://www.findlaw.com http://www.indiankanoon.com http://www.indlawinfo.org/ http://www.jstor.org. http://www.judis.nic.in http://www.lawsofindia.org http://www.manupatra.com http://www.scconline.com http://www.supremecourtcaselaw.com

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-LIST OF ABBREVIATIONSLIST OF ABBREVIATIONS A.I.R. AC All AP Art. Bom Cal Co. Comm. CrLJ Del e.g. Ed. JT Lah LR Mad MANU p. Para. Pun QB SC SCC SCR SCW Sec. Supp U.O.I. US v. ALL INDIA REPORTER APPELLATE COURT ALLAHABAD ANDHRA PRADESH ARTICLE BOMBAY CALCUTTA COMPANY COMMISSIONER CRMINAL LAW JOURNAL DELHI
EXEMPLUM GRATIA (FOR EXAMPLE)

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EDITION JUDGMENTS TODAY LAHORE LAW REPORTER MADRAS

MANUPATRA

PAGE PARAGRAPH PUNJAB AND HARYANA QUEENS BENCH SUPREME COURT SUPREME COURT CASES SUPREME COURT REPORTER SUPREME COURT WEEKLY SECTION SUPPLEMENTARY UNION OF INDIA UNITED STATES OF AMERICA
VERSUS (AGAINST)

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-STATEMENT OF JURISDICTIONSTATEMENT OF JURISDICTION

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THE PETITIONERS HAVE APPROACHED THE HONBLE SUPREME COURT OF INDIA UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, WHICH READS AS HEREUNDER: __________________________________________ 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 AN Y OF THE RIGHTS CONFERRED BY THIS PART.

(3) WITHOUT PREJUDICE TO THE POWERS

AND

CONFERRED ON THE SUPREME

COURT BY CLAUSE (1) COURT

(2), PARLIAMENT MAY BY LAW EMPOWER ANY OTHER COURT TO EXERCISE WITHIN THE LOCAL

LIMITS OF ITS JURISDICTION ALL OR ANY OF THE POWERS EXERCISABLE BY THE SUPREME UNDER CLAUSE (2).

(4) THE RIGHT GUARANTEED BY THIS ARTICLE SHALL NOT BE SUSPENDED EXCEPT AS OTHERWISE
PROVIDED FOR BY THIS CONSTITUTION.

__________________________________________

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-SYNOPSIS OF FACTSSYNOPSIS OF FACTS ROFLS COMING TO POWER: MARCH 2005 NUCLEAR POWER POLICY DECISION: JUNE 2005

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The Radical Organisation for Freedom and Liberty Party (ROFL) came into power in March 2005. One of their campaign promises was to reduce if not completely stop power cuts by use of nuclear power. In June 2005, the Government took a policy decision to set up a nuclear power station in Bondavi District of Brinji state and also set up mining activities in Pakodavi district in Brinji state, which had rich uranium ore deposits, using open pit and underground mines for extraction. To study the technical, scientific, environmental and economic feasibility of

JOINT HIGH LEVEL the project. All the members of the Committee were of exemplary repute in COMMITTEE SET
UP

their respective fields but had at some point in their careers, served with the Government under the ROFL regime earlier

WRIT PETITION BY GAYA NUCLEAR PLANT

BECAME

Filed before the Supreme Court of Dasoi against the decision of Government to set up uranium mines and nuclear plants, on various grounds including threat to environment and life and a subsequent direction for clean energy practices to be adopted by Dasoi. The nuclear power plant became operational in July 2008 and the project was initially a success The Government therefore, commissioned another uranium mine in Chapappu district in the state of Gongura, which has vast areas of reserve forests and perennial rivers that serves as a potable water source for 6 states in Dasoi. An independent panel of experts from Keeri, an association actively

OPERATIONAL: JULY 2008 NEW URANIUM MINE SET UP

REPORT OF KEERI promoting clean energy and educating the public on the ill-effects and MADE PUBLIC: dangers of nuclear energy on the people and environment, carried on a NOVEMBER 2010 detailed study for over 2 years and made their report public EARTHQUAKE IN THE STATE OF BRINJI: 2010
While the matter stood thus, an earthquake of magnitude 6 on the Richter occurred in the state of Brinji. The storage tank containing radioactive waste in the Bondavi plant was damaged and caused a radiation leak which resulted in the death of 150 farmers and damage to almost 200 acres of farm lands.

NUCLEAR DAMAGE An application was filed which dismissed the application quoting Section 5 CLAIMS of the Civil Liability for Nuclear Damage Act, 2010. COMMISSION
The said order, the Civil Liability for Nuclear Damage Act and more specifically Section 5, were challenged before the High Court of Brinji under Article 226 of the Constitution by the affected parties. The Supreme Court of Dasoi withdrew the writ petitions pending before the High Courts of Gongura and Brinji and clubbed it along with the writ petition pending before it and placed the matter for final hearing.

SUPREME COURT OF DASOI

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-QUESTIONS PRESENTEDQUESTIONS PRESENTED

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THE PETITIONERS RESPECTFULLY ASKS THE HONBLE SUPREME COURT OF INDIA, THE
FOLLOWING QUESTIONS:

1. WHETHER

THE DECISION OF THE

GOVERNMENT

TO SET UP URANIUM

MINES AND NUCLEAR PLANTS WAS JUSTIFIED?

2. WHETHER THE GOVERNMENT CAN BE HELD LIABLE FOR THE DAMAGE

TO THE ENVIRONMENT BECAUSE OF THE MINING AND POWER PLANT ACTIVITIES?

3. WHETHER THE CIVIL LIABILITY

OF

NUCLEAR DAMAGE ACT 20121,

SECTION 5 IN PARTICULAR, IS UNCONSTITUTIONAL? 4. WHETHER THE

ORDER PASSED BY THE

NUCLEAR DAMAGE CLAIMS

COMMISSION IS VOID?

Hereinafter referred to as the Act

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-SUMMARY OF ARGUMENTSSUMMARY OF ARGUMENTS

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1.

WHETHER THE DECISION OF THE GOVERNMENT TO SET UP URANIUM MINES AND NUCLEAR
PLANTS WAS JUSTIFIED?

1.1 THAT THE GOVERNMENT IS DUTY-BOUND TO PROTECT AND CONSERVE THE ENVIRONMENT UNDER
THE CONSTITUTION OF DASOI.

1.2 THAT 1.3 THAT

THERE IS AN ADDED DUTY IN CASE OF MINING OPERATIONS DUE TO ITS DANGEROUS

NATURE. THE DECISION WAS TAKEN WITHOUT COMPLETE COST-BENEFIT ANALYSIS AND HENCE

PREMATURE.

1.4 THAT THE TIMING OF THE DECISION IMPLIES LACK OF GOOD FAITH. 1.5 THAT 2.
THE

KEERI REPORT IS EVIDENCE OF THE FACT THAT THE PRINCIPLE OF SUSTAINABLE

DEVELOPMENT HAS NOT BEEN FOLLOWED.

WHETHER

THE

GOVERNMENT

CAN BE HELD LIABLE FOR THE DAMAGE TO THE

ENVIRONMENT BECAUSE OF THE MINING AND POWER PLANT ACTIVITIES?

2.1 THAT THE GOVERNMENT MUST NOT ONLY REGULATE THE ACTS OF PERSONS INVOLVED IN MINING
OPERATIONS BUT ALSO REGULATE ITSELF ON THE SAME STANDARD

2.2 THAT THERE IS A PROVISION FOR PENALTY FOR CONTRAVENTION WITH THE MINERALS CONSERVATION AND DEVELOPMENT RULES WHICH CAN BE APPLIED TO THE GOVERNMENT AS
WELL.

3.

WHETHER THE CIVIL LIABILITY

OF

NUCLEAR DAMAGE ACT 20122, SECTION 5

IN

PARTICULAR, IS UNCONSTITUTIONAL?

3.1 THAT THE ACT, SECTION 5 IN PARTICULAR, IS IN VIOLATION OF ARTICLE 21 3.2 THAT THE ACT, SECTION 5 IN PARTICULAR, IS IN VIOLATION OF ARTICLE 14

4.

WHETHER THE ORDER PASSED BY THE NUCLEAR ORDER CLAIMS TRIBUNAL IS VOID? 4.1 THAT SINCE THE ACT ITSELF, SECTION 5 IN PARTICULAR, IS VOID ANY ORDER MADE UNDER THE
ACT SHALL ALSO BE VOID.

Hereinafter referred to as the Act

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PLEADINGS AND AUTHORITIES 1. WHETHER THE DECISION OF THE GOVERNMENT TO SET UP URANIUM MINES AND NUCLEAR
PLANTS JUSTIFIED?

1.1

It is submitted before this Honble Court that the decision of setting up of uranium extraction mines and nuclear power plants by the Government in June 2005 was premature and unjustified.

1.2

It is humbly submitted that the Government has been given certain duties under the Constitution as caretakers of the welfare of the nation. Some of these entail protection and conservation of the environment. Article 48A was inserted in the Constitution of Dasoi so as to ensure that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife activities. Such a duty has also been imposed on the citizens of India to protect and improve the natural environment including forests, lakes, rivers and wildlife under Article 51A. Further right to life under Article 21 includes within its ambit the certain vital necessities namely air, water and soil. This Honble Court has repeatedly said that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right to of enjoyment of pollution-free water and air for full enjoyment of life. 3 The natural resources of air, water and soil cannot be utilized if the utilization results in irreversible damage to the environment. Such provisions of law make it amply clear that the environment is not to be taken lightly and the Government has a duty to towards it.

1.3

This Honble Court has recognized the hazards relating to mining in the case of M.C. Mehta v. Union of India4. It was distinguished that mining operation is hazardous in nature; it impairs ecology and people's right of natural resources. The entire process of setting up and functioning of mining operation require utmost good faith and honesty on the part of the intending entrepreneur.5 Thus, the endeavour of undertaking mining operations are to be governed not only by the principles of environmental protection in the Constitution but also with the added burden of utmost good and honesty due to its inherent dangerous nature.

1.4

In the instant matter projects undertaken were open pit and underground mines for extraction of uranium ore.6 These processes are inherently known to have an adverse impact on the
3
4

Subhash Kumar v. State of Bihar, [1991] 1 SCR 5. [2004] 3 SCR 126. 5 M.C. Mehta v. Union of India, [2004] 3 SCR 126. 6 Page 2, Paragraph 1 of the Fact Sheet.

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environment due to the complete destruction of the habitat, flora and fauna as large tracts of land are cut into for the purpose of exploration and extraction of minerals. Therefore, such projects must be undertaken only after making complete investigations that satisfactorily conclude that there will be an overall positive impact of the project. In the instant matter it cannot reasonably be said that complete and satisfactory investigations were undertaken taking into account facts such as the submission of the report of the Joint High Level Expert Committee within 2 months and the association of its members with the ROFL. 7 1.5 It is humbly submitted that it must be kept in mind that the timing of this policy decision was rather incredulous. The decision was taken around the same time that other countries were phasing out their nuclear programs due some nuclear disasters. In light of such disasters such a decision shows lack of good faith and can be called hasty and premature. If there is a concern over the safety of nuclear power projects in countries where the technology has existed longer, it would only be prudent to take a step back rather than a step forward in ones own country. 1.6 It is reverentially submitted that apart from less than favourable sequence of events in the implementation of the disputed Government Policy, the Keeri Report made public in November 2010 makes it clear that the decision was also harmful to the environment in the long run. The report gave findings of two years of research revealing that there had been damage to the marine ecosystem, pollution in large water bodies and a decrease in the number of Olive Ridley Turtles in the coast.8 Further cause for concern was the finding that the power plants fell within the Seismic Zone II.9 It cannot be denied that there must be a balancing of developmental and environmental needs. This is very aptly contained in the concept of sustainable development. This Court has previously defined sustainable development to mean the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation, in these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test.10 It is evident that from the facts brought forth by the Keeri Report that the guiding principle of sustainable development has not been followed as there has been great loss to the environment due to the mining activities.

7 8

Page 2, Paragraphs 2 and 3. Page 4, Paragraph 2. 9 Ibid. 10 Narmada Bachao Andolan v. Union of India and Ors. (2002) 10 SCC 408.

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Such factual evidence of the impact of the projects vindicates the allegation that the decision taken by the Government was not justified. 1.7 Making reference to the prevalent legal duties towards the environment, rights regarding the environment and the facts of the instant case it is submitted that the action of the Government in setting up the uranium mines and power plant was premature and unjustified. 2. WHETHER
THE

GOVERNMENT

CAN BE HELD LIABLE FOR THE DAMAGE TO THE

ENVIRONMENT BECAUSE OF THE MINING AND POWER PLANT ACTIVITIES?

2.1

It is submitted that the Government can be held liable for the damage to the environment because of the mining and power plant activities.

2.2

It is submitted that as mentioned earlier the Government is duty bound to endeavour to protect and improve the environment. For the sake of specificity and clarity this Constitutional duty has been incorporated in the Mines and Minerals (Regulation and Development) Act, 1957 as well. Section 18(1) of the Act is aimed towards Mineral Development wherein it is stated that It shall be the duty of the Central Government to take all such steps as may be necessary for the conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling any pollution which may be caused by prospecting or mining operations. The Government has been empowered to make rules that are in furtherance of this duty. The subject matter of these rules is stated in Section 18(2). Section 18(3) further provides that All rules made under this section shall be binding on the Government. making it clear that the Government must not only regulate the acts of persons involved in mining operations but also regulate itself on the same standard in cases where mining operations are undertaken by the Government itself.

2.3

It is submitted that the rules in this respect have been laid down in the Minerals Conservation and Development Rules, 1988 of which the relevant rules concerning the environment are in Chapter V. The rules pertaining to the protection and conservation of the natural environment in the course of mining operations are not merely directory rather they are mandatory in nature. This can be asserted with a certainty as can be seen from the usage of the word shall in rules ranging from protection to restoration of environment. Further Rule 58 lays down a strict penalty for those who contravene with the rules of two years imprisonment or fine extending to fifty thousand rupees or both. In view of Section 18(3) there is no doubt that the

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rules for mineral conservation are applicable to the Government as well, including the penalty provision. In light of these provisions it is submitted that the Government can be held liable to for damage caused to the environment due to the mining and power plant activities.

3.

WHETHER THE CIVIL LIABILITY

OF

NUCLEAR DAMAGE ACT 201211, SECTION 5

IN

PARTICULAR, IS UNCONSTITUTIONAL?

It is humbly submitted before the Honble Supreme Court of India that Section 5 of the Act is indeed unconstitutional and in violation of Article 14 and Article 21 of the Constitution of Dasoi. The same shall be proved through subsequent arguments.

3.1

THAT THE ACT, SECTION 5 IN PARTICULAR,

IS IN VIOLATION OF ARTICLE 21

3.1.1 It is humbly submitted that Section 5 of the Act states as follows: 5. (1) An operator shall not be liable for any nuclear damage where such damage is caused by a nuclear incident directly due to(i) a grave natural disaster of an exceptional character; or (ii) an act of armed conflict, hostility, civil war, insurrection or terrorism. (2) An operator shall not be liable for any nuclear damage caused to(i) the nuclear installation itself and any other nuclear installation including a nuclear installation under construction, on the site where such installation is located; and (ii) to any property on the same site which is used or to be used in connection with any such installation; or (iii) to the means of transport upon which the nuclear material involved was carried at the time of nuclear incident: Provided that any compensation liable to be paid by an operator for a nuclear damage shall not have the effect of reducing the amount of his liability in respect of any other claim for damage under any other law for the time being in force. (3) Where any nuclear damage is suffered by a person on account of his own negligence or from his own acts of commission or omission, the operator shall not be liable to such person. It is amply clear that the section aims to hedge the responsibilities of the Operator in certain situations, i.e natural disasters, armed conflict etc. This implies that the act has not incorporated the Absolute Liability or Polluter Pays principles that provide no defences to corporations for the damage caused by them even in cases where the has been due diligence or a high standard of care.
11

Hereinafter referred to as the Act

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3.1.2 It is humbly submitted that The precautionary Principal necessitates that if there are reasonable scientific grounds for believing that a process, product or technology may not be safe then the industry must not be allowed to proceed ahead unless that industry or establishment is able to demonstrate reasonable certainty of no harm. This principle can also be applied to existing technologies when new evidence appears suggesting that they are less safe than what the society had previously expected, as has been in the case of tobacco, greenhouse gases, chloro-floro carbons, genetically modified food etc. This Honble Court in A. P. Pollution Control Board v. M V Nayudu12, held that precautionary principle is part of the law of the land. The principle mandates that when a new technology or process can cause serious and irreversible harm to human health and the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.

3.1.3 It is submitted that Nuclear energy is inherently dangerous. Even low intensity radiation termed safe by the respondents in instances of radiation leakages, can cause irriversible genetic alterations in the human body and the long-termimplications of it have not yet been fully understood, as evident from a scientific article published in The Hindu on September 15, 2011 by K.S. Parthasarathy, Raja Ramanna Fellow in Department of Atomic Energy which states The findings of the present study emphasize that a level of radiation exposure considered safe' by regulatory standards can induce profound biochemical and cellular adaptation. 3.1.4 Further, the argument used by the proponents of nuclear energy that nuclear power is free from carbon-emissions is baseless as is conclusively demonstrated in an article written by eminent energy researcher Prof. Benjamin Sovacool where he records the carbon-emission cost of construction, operation, uranium mining and milling, and finally plant decommissioning that are all part of the lifecycle emissions of a nuclear plant. 3.1.5 The International Atomic Energy Agency (IAEA), the official international organization which is seen as a proponent of nuclear energy, did a study of 582 uranium mines and deposits world-wide in 2001. Even IAEA was forced to acknowledge the severe shortage of
12

(1999) 2 SCC 718

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uranium and it stated As we look into the future, presently known resources fall short of demandit will become necessary to rely on very high cost conventional or unconventional resources to meet demand as lower cost known resources are exhausted. The Government does not seem to have learnt a lesson from Fukushima, Chernobyl or the Three Mile Island accidents and has also ignored cost-benefit calculations forgetting the experience of infamous Enron power project. The promotion of nuclear power on a massive scale at huge cost to the exchequer is a classic example as to how the Governments policy gets disconnected from concern for public welfare and gets corrupted and subverted by extraneous considerations and corporate pressures. It is to be noted that each nuclear power plant has a life span of about 40 years after which it has to be decommissioned and decontaminated at exorbitant cost running into thousands of crores of rupees.

3.1.6 It is thus amply clear from all of the above that Nuclear Energy is not a viable long term alternative, one that is prone to disasters and one that can be harmful to the public in its safest forms. Keeping all of this in mind, there is a clear violation of the fundamental right to a clean environment as envisaged under Article 21 of the Constitution of Dasoi. In a catena of cases, such as N.D Jayal and Anr. v. Union of India as well as M.C Mehta v. Union of India13, it has been reiterated that the right to clean environment is a guaranteed fundamental right. In different context, the right to development is also declared as a component of Article 21 in cases like Samata v. State of Andhra Pradesh, , and in Madhu Kishore v. State of Bihar. Through excessive expenditure of public money in developing Nuclear Energy, which as explained above is a non viable source of energy, it is submitted there the Right to Development of Indian citizens is also being impeded. 3.2 THAT THE ACT, SECTION 5 IN PARTICULAR,
IS IN VIOLATION OF ARTICLE 14

3.2.1 It is reverentially put forth that the Governments plans for development and expansion of the nuclear power programme and construction of newer and huge nuclear power plants without undertaking a thorough safety and comparative cost-benefit analysis, clearly made under the influence of foreign countries and multi-billion dollar nuclear industry, shows arbitrary decision-making, based on extraneous considerations and non-application of mind. The same is in violation of Article 14 the Constitution of India. This is clear from the fact that even the approval of the committee was done by member who had at some point been involved with
13

W.P. Number 295 of 1992

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the ROFL government. Also, the approval was granted in a very short span of 2 months, which is paltry with respect to the magnitude of the project being undertaken. 3.2.2 Public hearings, that are mandatory under law before an environment clearance is given, have not been properly conducted and the strong opposition of large local populations has been ignored. The same is arbitrary, defeats the objective of mandatory public hearings and violates Article 14, 19 and 21 of the Constitution of India. It has been held by this very court that arbitrary and capricious actions are in violation of the Constitution of Dasoi 14.

4.

WHETHER THE ORDER PASSED BY THE NUCLEAR ORDER CLAIMS TRIBUNAL IS VOID? It is simply put forth that this merely an extension of the previous issue. Since the Act itself, Section 5 in particular, is void, it is but obvious that any order passed under the act also be held void.

14

Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and Anr., 2004 3 SCC 214

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-PRAYER FOR RELIEF-

Page 8

PRAYER FOR RELIEF WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS HONBLE COURT MAY BE PLEASED TO:

I.

DECLARETHAT

THE THE DECISION OF THE

GOVERNMENT

TO SET UP URANIUM

MINES AND NUCLEAR PLANTS JUSTIFIED

II.

DECLARE

THAT THE

GOVERNMENT CAN

BE HELD LIABLE FOR THE DAMAGE TO

THE ENVIRONMENT BECAUSE OF THE MINING AND POWER PLANT ACTIVITIES

III.

DECLARE THAT THE CIVIL LIABILITY OF NUCLEAR DAMAGE ACT 2010, SECTION 5 IN PARTICULAR, IS UNCONSTITUTIONAL

IV.

DECLARE

THAT THE ORDER PASSED BY THE

NUCLEAR ORDER CLAIMS

COMMISSION IS VOID

AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

-M EM O R IA L

O N BE HA LF O F TH E

P E TI TIO N ER S -

-PRAYER FOR RELIEF-

Page 9 COUNSELS FOR THE PETITIONERS

-M EM O R IA L

O N BE HA LF O F TH E

P E TI TIO N ER S -