WETHER THE STATE ACTION IS ARBITRARY

It is humbly submited that the state action of mining on the land of Swadeshi forest 1 is arbitrary
and is antithetical to the rule of equality and hence violative of Art. 14.2 The jurisdiction of Art.
14 extends to prevention of the arbitrary and unreasonable actions of the state which are
antithetical to the rule of equality.3

THE RULE OF LAW

The term rule of law is derived from the French term , la principe de legalite, is the foundation
of the concept of a state that revolves around the law and not around the men.4 The essence of
judgment with development of the common law is that the exercise of discretion should be
coupled with equity and grounded in sound reason.5

The petitioner submits that in the present case power-crisis has been given more importance and
the local inhabitants are displaced from their lands without considering the laws made for their
protection.

ENVIRONMENTAL CLEARANCE SUFFERS FROM WEDNESBURY TEST OF

UNREASONABLENESS

The underlying principle of Wednesbury Case6 as laid down in Rameshwar Prasad Vs. Union of
India7 is that the unlawful decision is one to which no reasonable authority could have come.
Lord Greene MR in Wednesbury case expounded the duty of an authority to consider facts that
they are bound to consider.8

1
Moot Proposition Para. 5.
2
Art. 14 - Equality before law The state shall not deny to any person equality before law or the equal protection of
law within the territory of India.
3
4
I.P.MASSEY, ADMINISTRATIVE LAW, EASTERN BOOK COMPANY 25 (7thed, 2008).
5
H.W.R.WADE & C.F.FORSYTH, ADMINISTRATIVE LAW, OXFORD PUBLICATIONS, 293 - 294 (10thed,
2009).
6
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223It is true that discretion
must be exercised reasonably. This includes, for instance, that a person entrusted with a discretion must direct
himself properly in law. He must call his own attention to the matters which he is bound to consider.
7
(1994)3 SCC 1
8
Supra 7
The petitioner submits that when there are alternative sources of energy such as solar energy,
geo-thermal energy, wind energy etc. are available then this sources must be considered which is
not true in this case, so the state and fallen foul Wednesbury principle.

VIOLATION OF ARTICLE 14

In Avinder Singh Vs. State of Punjab9 it was held that the arbitrariness must be excluded from the
law, for if power is arbitrary, it is potential inequality and Art. 14 is fatally allergic to inequality
of law.10

The petitioner submits that the process of public hearing is mandatory by law and by choosing to
ignore the mandatory provision the state has acted unreasonably. The rights of the tribal people
cannot be abrogated to make way for a developmental project without the consent of gram
sabha.11 As per a circular of ministry of Environment and Forest12 written consent or rejection of
Gram Sabha13 and a separate written approval for diversion of forest land14 must be mandatorily
attached for forest clearance. In the case of Orrisa Mining15 this court stated that the approval of
Gram Sabha is pre-requisite for the sanction of forest clearance.In the given circumstance the
approval of Gram Sabha is not taken by the state. Furthermore the basis for such decision that the
public hearing is restricted to those with property rights has no founding in law and precedent.

9
AIR 1979 SC 321
10
ARVIND P DATAR, Commentary on the Constitution of India, WADHWA NAGPUR, (2nded: 2007)
11
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 3(2) Proviso (ii)
(2006): The clearance of such developmental projects shall be subject to the condition that the same is
recommended by the Gram Sabha.
12
MoEF Circular [F. No. 11-9/1998-FC (Pt)] vide letter dated August 3rd, 2009.
13
(f), MoEF Circular [F. No. 11-9/1998-FC (Pt)] vide letter dated August 3rd, 2009.
14
(c), MoEF Circular [F. No. 11-9/1998-FC (Pt)] vide letter dated August 3rd, 2009. The proposal must be
accompanied with several other important disclosures that ensure that the role of the Gram Sabha and tribal rights
are preserved. These include 1) A letter from the State Government certifying that the proposal was placed before
the Gram Sabha; 2) A letter from Gram Sabhas stating that they have consented to the diversion of forest land and
the compensatory measures if any; 3) A letter from the State Government certifying that all details and implications
of the project were placed before the Gram Sabha in vernacular language of the forest dwellers before the decision
was reached.
15
Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476.
Therefore, the decision of canceling the public hearing is unreasonable and arbitrary and the
action of the state is violative of Art. 14.

ARBITRARY ACTION OF RUC

RUC went on installing more plant than sanctioned by the Government. 16 RUC falls within the
definition of state.17 This led to widespread overuse of the resources.18The petition submits that
this action of the state is arbitrary and violative of the EC. Moreover it further deteriorated the
environment and leads to fast ending of non-renewable energy source which is not in accordance
with the sustainable mode of development.

WETHER THE MINING PROJECT INFRINGES THE RIGHTS OF

TRIBAL COMMUNITIES

It is humbly submitted that implementation of the mining project would result in violation of
multiple fundamental right as well as the statutory right of the resident of Swadeshi Forest. These
violations include violation of Art. 19 [3.1], violation of Art. 21 [3.2], violation of Art. 25 & 29
[3.3] and violation of other statutory rights [3.4].

HE MINING PROJECT VIOLATES ART. 19

The indigenous tribal communities have right to settle, reside and own property anywhere in
country which includes the Swadeshi forest as guaranteed by the Constitution19 in Art.19 (1)(e)
[3.1.1]. Moreover the tribal communities enjoy the right to practice any profession, or to carry
out any occupation, trade or business which is also guaranteed by the Constitution under Art. 19
(1)(g) [3.1.2].

16
Moot Proposition Para 28.
17
Art. 12 Constitution of India.
18
Moot proposition Para 28
19
Art. 19(1)(e) of Constitution of India 1950.
INFRINGMENT OF ART. 19 (1)(e)

The right of indigenous tribal communities to settle, reside and own property anywhere in
country20 is violated due to the deforestation caused by the mining project. Moreover their right
to move freely guaranteed under Art. 19 (1)(d) has also been violated. The Swadeshi forest is
home to the several indigenous tribal communities21 and they have resided there for generations.
Due to the mining project that has been ordered by the govt. the forest is cut down to provide the
space for the mining. It is imperative on the state to provide the permanent housing
accommodation to the indigenous tribal population or to sustain the privileges provided in any
undertaken projects within economic means.22 The tribal communities also enjoy the right to
shelter which is also recognized in Forest Right Act.23 The petitioner submits that the cost the
project which is paid by those indigenous tribal communities, who lost their ancestral home is
unreasonable and is violative of fundamental rights of those tribal communities.

INFRINGMENT OF ART. 19 (1)(g)

The indigenous tribal communities enjoy the right to practice any profession, or to carry on any
occupation, trade or business.24 In a famous case25 Bhandari J. expressed the view that right to
practice any profession or to carry out any occupation, trade or business becomes meaningless if
it do not include right to stay in a place suitable for such profession. The tribal communities
derive their means of livelihood from the forest land of Swadeshi by carrying out activities such
as apiculture, gathering of herbs, flowers & fruits and collection of gum dust and other
produce.26 The petitioner submits that by the deforestation caused by mining project the tribal
communities would loose their home and the means of their occupation. Providing a new place
of residence to them would be meaningless as the tribal community depend upon forest and the
deforestation will snach their right to free trade27 as guaranteed under the Constitution. Hence,
the state action of the mining is violative of Art. 19 (1)(g).

20
Ibid
21
Moot Proposition Para. 3.
22
P.G. Gupta v. State of Gujarat, 1995 (Supp-2) SCC 182
23
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 3 (2006).
24
Art. 19 (1)(g) of Constitution of India.
25
Ajiab Singh Vs. State of Punjab, 1952 Punj. 309 (F.B.)
26
Moot Proposition Para 2
27
Supra 17
THE MINING PROJECT VIOLATES ART. 21

The implementation of the mining project would result in violation of fundamental rights of
indigenous tribal community that is guaranteed under the Art. 21 of the Constitution. On
expanding the horizon of Art. 21 there exists many rights of the tribal communities which are
violated. These rights include Right to Shelter [3.2.1], Right to clean environment [3.2.2], Right
to health [3.2.3], Right to livelihood [3.2.4].

RIGHT TO SHELTER

In the present case, the tribal communities are displaced from their ancestral land, where they
lived for generations on account of large-scale mining operations. The petitioner humbly submits
that the displacement caused by the mining project violates their right to shelter guaranteed under
Art. 21 of the Constitution.

The right to shelter has been read into Art. 2128 as an essential concomitant of the fundamental
right to life.29 In a famous case this court has interpreted right to shelter to mean the right against
forceful eviction.30 Many international instruments also provide for adequate housing and shelter
as right.31 Moreover in regard to forest dwelling tribal communities right to shelter also been
codified in FRA.32

The petitioner submits that the lack of an enforceable rehabilitation policy violates the right to
shelter. The displaced population due to the mining project enjoys the right to rehabilitation
guaranteed under Art. 21.33 The petitioner submits that the govt. has not made any resettlement
plan or any rehabilitation plan for the displaced population of Namro. Merely mentioning

28
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; Shantistar Builders v. Narayan Khimalal
Totame, AIR 1986 SC 180; See also Protection of Human Rights Act 2(1)(d) (1993).
29
Francis Corallie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; Shantistar Builders v.
Narayan Khimalal Totame, AIR 1990 SC 630; Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan,
(1997) 11 SCC 123.
30
Ram Prasad Yadav v. Chairman, Bombay Port Trust, 1989 SCALE (1) 716; Ahmedabad Municipal Corporation
v. Nawab Khan Gulab Khan, (1997) 11 SCC 123; Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180;
Shantistar Builders v. Narayan Khimalal Totame, AIR 1986 SC 180; P. K. Koul v. Estate Officer, W.P.(C)
No.15239/2004
31
ICESCR, General Comment on Art. 11(1966); UDHR Art. 25.
32
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 3 (2006).
33
Bal Kishan v. State of Haryana, W.P. No. 596 of 2014; Sudama Singh v. Govt. of Delhi, W.P. (C) No. 8904/2009.
specific safeguard for compensation for the land losers34 in the EC is inadequate as it does not
create any independent right for the tribal communities, who are displaced, against the state.
Non-compliance of the given specific safeguard would at most result in cancelation of the EC
and no remedy will be provided to the tribal communities. Moreover land to land compensation
and merely directory in nature and prescribes instances where money may be given in lieu of
land.35 This would result in exposure of the tribal communities to the outer world with no means
of shelter & livelihood.

The Section 4(5) of FRA states that no tribal community can be displaced or evicted from the
land under his occupation until the recognition and verification of the right is complete.36 The
Ministry of Tribal Affairs has interpreted this provision to be absolute and enjoined State govt.
from evicting any forest dweller till the recognition and verification of the right is complete.37 In
the given circumstances there is nothing to suggest that the right of the tribal communities is
settled and so it also violates the FRA.

RIGHT TO CLEAN ENVIRONMENT

The tribal communities enjoy the right to wholesome pollution free clean environment. 38 This
has to be read in conjunction with Art.48A and Art. 51A (g) that imposes duty on the state to
preserve and improve the environment.39 The courts are relying on the directive principle as
complimentary to the fundamental right.40 The words used in Art. 48A is to protect and
improve that implies the state does not have to only preserve the environment but to improve it.
In order to attain the constitutional goal of protection and improvement of environment and

34
Moot Proposition Anexure A
35
National Rehabilitation and Resettlement Policy Cl. 7.14 (2007)
36
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 4(5) (2006): Save
as otherwise provided, no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be
evicted or removed from the forest land under his occupation till the recognition and verification procedure is
complete.; Forest Rights Act 6 (2006): The recognition and verification procedure is done by the Gram Sabha
with appeals to a Sub-Divisional Committee and a District Level Committee.
37
V(a), MoTA Guidelines [No. 23011/32/2010-FRA {Vol. II (Pt.)}] vide letter dated July 12th, 2012.
38
Subhash Kumar v. State of Bihar, 1991 AIR 420; M.C. Mehta v. Union of India, (1998) 9 SCC 589; Virender
Gaur v. State of Haryana, (1995) 2 SCC 577.
39
Constitution of India Art. 48A (1950); Constitution of India Art. 51A(g) (1950); M.C. Mehta v. Union of India,
(1998) 9 SCC 589.
40
732003 Cri LJ (NOC) 277: 2003 (1) Mad LW 262 (273).
protecting people inhabiting the vulnerable, the court will be left with no alternative but to
intervene effectively by issuing appropriate writs, orders and directions.41

The right enjoyed by indigenous tribal communities has been violated by exposing them to
radiation as the uranium mill tailings retain about 85% of the radioactivity of the ore.42 The
compulsory exposure to unwilling person to pollution has been held as violative of Art. 21.43 The
mining project would result in ecological imbalance44 and destroy the guarantee of wholesome
environment. This court has duty to guard against irreversible ecological damage.45

The petitioner submits that this govt. policy of large scale mining has no clear indication as to the
safety measures taken by the state. Even if tribal people are relocated then also they are
endangered by the radiation effect. This would not only lead to the continuation of the violation
of fundamental right of those people but also push them towards the cloud of genocide.
Moreover if the court does not intervene to guard against irreversible ecological imbalance then
the natural biodiversity of rare flora and fauna for which Indiana took pride46 will be lost forever.
Moreover the mining activity take place within 5 kilometers from the boundary of Wushu
National Park.47 The mining project would destroy the life of various rare species which the
govt. is trying to protect by the means of building the national park.

RIGHT TO HEALTH

The right to health has been held as integral and meaning part of right to life and so is protected
under Art. 21 of the Constitution.48 Art. 47 allow citizen to highest standard of health.49 It has
been interpreted that this obligation to includes the prevention of pollution by extractive
industries50 and insuring hygienic environment.51

41
AIR 1988 HP 4; (1988) 1 Sim LC 32 (DB).
42
Moot Propostion Para. 21.
43
P.A. Jacob v. Supt. of Police, Kottayam, AIR 1993 Ker 1; Murli S Deora v. Union of India, W.P.(C) 316 of 1999.
44
Rural Litigation Entitlement Kendra v. State of Uttar Pradesh, AIR 1985 SC 652.
45
Goa Foundation v. Diksha Holdings Pvt. Ltd., 2001(1) Bom. C.R. (S.C.) 639; T.N. Godavarman Thirumulpad v.
Union of India, (2006) 1 SCC 1.
46
Moot Proposition Para 2.
47
Moot Proposition Para 17.
48
State of Punjab v. Mahinder Singh Chawla, S.L.P. (C) Nos. 12945 and 18828 of 1996, Paramanand Katara v.
Union of India, AIR 1989 SC 2039; State of Punjab v. Ram Lubhaya Bagga, AIR 1998 SC 1703.
49
CESC Ltd. v. Subash Chandra Bose, AIR 1992 SC 573.
50
ICESCR General Comment 12 on Art. 11 (1966).
The petitioner submits that mere condition of developing emergency response procedure is
insufficient as the tribal communities are still suffering from slow poisoning by polluted
atmosphere and are compelled to live under the dark shadow of genocide. Moreover this project
cannot be justified on the grounds of employment and revenue generation as in a famous case
this court explicitly laid down that life and public health override the consideration such as
unemployment and revenue generation.52 Hence, it is submitted that the right to health is
neglected by state.

RIGHT TO LIVLIHOOD

Art. 21 of the constitution envisages the right to livelihood as fundamental right. 53 This court has
expressly recognized right to livelihood is protected under Art. 21.54 In a famous case55 Field J.
has explained the meaning of life which is more than mere animal existence. Moreover many
organization56 also recognized that right to life is coupled with adequate standard of living.

In the present case, forest dwelling communities also enjoy a statutory right guaranteed in
FRA.57 The tribal communities depend upon the products of this forest for livelihood. They are
engaged in the activities which were in line with conservation of the forest and never did any
activities which they felt would destroy the environment in which they live in. In-depth
knowledge and utmost reverence as regards the surrounding in which they live in provide for a
best practice as far as environment protection is concern.58 Therefore it is submitted that the
mining project, by displacing them from their land and forest deprives them of their life and
livelihood.

The respondent may take the defense that the tribal communities have been given assess to forest
product for their livelihood requirement.59 However it is not the mere access but the actual

51
Virender Gaur v. State of Haryana, (1995)2 SCC 577; T.N. Godavarman Thirumulpad v. Union of India, 2002
Indlaw SC 1386; ICESCR Art. 12(c) (1966).
52
M.C. Mehta v. Union of India, (1998) 9 SCC 589.
53
Art. 21 protection of life and personal liberty- No person shall be deprived of his life and personal liberty except
the procedure established by law.
54
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; Shantistar Builders v. Narayan Khimalal
Totame, AIR 1986 SC 180.
55
Munn v. Illinois, (1876) 94 US 113
56
Article 6, ICCPR.; Article 3, UDHR; Article 11, ICESCR
57
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 3(1) (2006)
58
Moot proposition para. 3
59
Anexture A moot proposition.
availability and possession of land that is indispensible to the livelihood and sustenance of tribal
communities.60 Furthermore compassionate-employment safeguard is not sufficient to insure the
right to livelihood is not deprived. The reason of this is that it is only a condition for the grant of
EC and on not fulfillment of the condition61 would only lead to cancelation of EC and the tribal
communities do not get independent right sue the govt. for the same. Moreover even if
employment is given in accordance with EC then also it will be given to only one person per
family.62It is not given to every person of the family who may loose their livelihood.

The petitioner submits that the indigenous people are exploited by the outsiders.63 Thus, there is
a necessity to protect the inherent rights of indigenous people to empower them to utilize and to
exercise control over forest for sustainable development.64 Moreover state is casted upon the
duty to protect the forest land from deforestation and to encourage forestation.65 The actions of
the tribal community for their sources of livelihood were in line with the forest protection. 66 So,
by bringing up the mining project the state is not only taking the livelihood of those tribal
communities but also endangering the forest having rich natural bounty.67

VIOLATION OF ART. 25 & 29

The mining project in Swadeshi forest encroaches upon the religious and cultural rights of the
tribal communities. The land and rocks of Swadeshi forest are sacred to the tribal communities
and these trees and rivers which fall within the area of mining project form a part of their cultural
heritage.68 It is submitted that the mining project interfere with the tribal communities Right to
religion [3.3.1], Right to culture [3.3.2].

RIGHT TO RELIGION

60
P Rami Reddy v. State of Andhra Pradesh, AIR 1988 SC 1626; Madhu Kishwar v. State of Bihar AIR 1996 SC
1864; Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191.
61
Anexture A mott proposition.
62
Ibid.
63
M P Jain, The Constitution of India, First Report of the Commissioner For Scheduled Castes and Scheduled
Tribes, 3, 11(1952); Samatha v. State of Andhra Pradesh & Ors., AIR 1997 SC 3297.
64
Ashok Kumar Tripathi v. Union of India and others, W.P. No. 2262/99.
65
A.P. State Fishermen Development and Welfare Association v. District Collector and Ors, 2010 (2) ALD 300.
66
Moot proposition para. 3
67
Moot proposition para. 2
68
Moot proposition Para. 20
The tribal communities enjoy a right to practice their religion69 which is protected under the
Constitution. In many cases, it has been held that the Right to religion includes the right to
practice rituals and observation in addition to faith and belief.70

The petitioner submits that the mining project is violating the right to religion of the tribal people
as the project demanded de-forestation of the area required for mining which is sacred to the
tribal communities71 and also separated the tribal communities from their sacred land by means
of displacing them. This action of the state infringes their right to religion by destroying their
sacred place.

RIGHT TO CULTURE

The tribal communities have a fundamental right to conserve their distinct culture.72 Since these
tribal communities are living within the reserved forest of Swadeshi they are forest dwelling
Scheduled tribe73 for FRA and are provided with certain statutory rights for protection of their
culture.74 Moreover in the recent precedents75 it has been established that the tribal communities
are entitled to protect their rights under FRA. Court may liberally adopt principles from
International Conventions since it is an issue concerning 'human rights, environment, ecology
and other second-generation or third-generation rights'.76 Thus, international instruments that
mandate recognition of customary and cultural rights of indigenous people77 become relevant.

69
Art. 25 Constitution of India.
70
Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476; Acharya Maharajshri
Narendera Prasadji Anand Prasadji Maharaj v. State of Gujarat, AIR 1974 SC 2098; Seshammal v. State of Tamil
Nadu, 1972 (3) SCR 815.
71
Supra 67
72
Constitution of India Art. 29(1) (1950).
73
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2(c) (2006).
74
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 3(i), 3(k), 5(c)
(2006); 4(d), Panchayats (Extension to Scheduled Areas) Act (1996).
75
Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476; Chewang Pintso Bhutia v.
State of Sikkim, W.P.(C) No. 22/2012.
76
Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd, (2008) 13 SCC 30.
77
ICCPR Art. 25 (1966), International Labour Organization (ILO) Convention on Indigenous and Tribal
Populations Convention No. 169 (1957); Convention on Biological Diversity (1992).
The petitioner submits that the right of the tribal communities guaranteed by the Constitution,
various statues and international convention is being violated by the mining project as they are
displaced and deprived of their lands.

OTHER STATUTORY RIGHTS

The state action of the mining has violated the right of the forest dwelling indigenous tribal
communities which was guaranteed to them. The govt. has violated their right guaranteed by
Scheduled tribes & traditional forest dwellers Act [3.4.1], the action of the state has also violated
the right to environmental information [3.4.2]

SCHEDULED TRIBES & TRADITIONAL FOREST DWELLERS ACT

The govt. has not made any resettlement policy for the tribal communities being displaced. This
leads to the violation of Sec. 4 (2)(d)78 as the section provides for giving mandatory resettlement
or alternative package to be prepared and communicated that provides a secure livelihood to the
displaced population. But in the present case the state has only mentioned it in EC which leads to
the violation of the above mentioned section.

Again, 4 (2)(e) of the above mentioned section states that the free informed consent of the gram
sabha is needed79 which the state ignored arguing that the tribal communities are not vested with
the land and so the public hearing is not needed which is not true as the same above mentioned
act in Sec. 4(8) expresses that the forest rights recognized under this act includes right to land.80

RIGHT TO ENVIRONMENTAL INFORMATION

78
Sec. 4 (2)(d) Scheduled tribes and traditional forest dwellers Act, 2006
79
Sec. 4 (2)(e) Scheduled tribes and traditional forest dwellers Act, 2006
80
Sec. 4(8) Scheduled tribes and traditional forest dwellers Act, 2006
There exist a right to environmental information.81 This right has been recognized as a corollary
to right to clean and hygienic environment under Art. 21 of the Constitution.82 Moreover public
trust doctrine,83 necessitates that the public be informed of any diversion of these natural
resources and be made known of its environmental consequences.

The petitioner submits that public hearing is one of the ways on which the state realizes the
citizens right to access environmental information. In the present case the public hearing was
cancelled84 and the right to access information has been curtailed.

81
SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 157-158
(2nd ed. 2002).
82
Research Foundation for Science Technology National Reserve Police v. Union of India, (2005) 10 SCC 510.
83
M.C. Mehta v. Kamal Nath, (1997)1 SCC 388
84
Moot proposition para 24.