TEAM CODE: 20

7TH JUSTICE HIDYATULLAH MEMORIAL NATIONAL MOOT COURT

COMPETITION 2014

BEFORE THE HONOURABLE SUPREME COURT OF ARESSIA

ORIGINAL/APPELLATE JURISDICTION

IN THE MATTER OF:

TWO ARESSIAN STATES & OTHERS…………………..PETITIONERS/APPELLANTS

V.

UNION OF ARESSIA…………………………………………………RESPONDENTS

~ WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS/APPELLANTS ~

~ TWO ARESSIAN STATES AND OTHERS ~

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Table of Contents

INDEX OF AUTHORITIES........................................................................................................... 4

STATEMENT OF JURISDICTION............................................................................................... 7

STATEMENT OF FACTS ............................................................................................................. 9

STATEMENT OF ISSUES .......................................................................................................... 11

SUMMARY OF ARGUMENTS .................................................................................................. 12

ARGUMENTS ADVANCED ...................................................................................................... 13

I. THE PETITION FILED BY THE ‘FORUM FOR ENVIRONMENTAL RIGHT’ (FER)

IS MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA. .................................... 13

A. THE PETITIONER HAS THE LOCUS STANDI TO APPROACH THE HIGH

COURT OF NERUDA. ......................................................................................................... 13

B. EXTRA TERRITORIAL APPLICATION OF ARTICLE 21. ...................................... 14

C. FORUM FOR ENVIRONMENTAL REFORMS HAS THE LOCUS STANDI IN THE

PRESENT CASE................................................................................................................... 15

D. THE HIGH COURT HAS TERRITORIAL JURISDICTION TO ISSUE WRIT IN THE

GIVEN MATTER. ................................................................................................................ 16

E. NON- EXISTENCE OF ALTERNATIVE LEGAL REMEDY. ................................... 16

F. OBLIGATION UNDER ART 51-C OF THE CONSTITUTION OF ARESSIA. ........ 16

II. WHETHER SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA

VIRES TO THE CONSTITUTION OF ARESSIA? ................................................................. 18

A. SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 VIOLATES THE SCHEME

OF DISTRIBUTION OF POWERS BETWEEN THE CENTRE AND THE STATE AND
THEREFORE IS UNCONSTITUTIONAL. ......................................................................... 18

B. THE LINKING OF RIVERS ACT, 2010 IS VIOLATIVE OF FUNDAMENTAL

RIGHTS AND IS THEREFORE UNCONSTITUTIONAL. ................................................ 21

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III. THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING OF RIVER

PROJECT FOR THE STATE OF VINDHYA IS VIOLATIVE OF FUNDAMENTAL
RIGHTS OF PEOPLE OF STATE OF VINDHYA AND STATE OF NORMANDA. .......... 22

A. THE RIGHTS OF PETITIONERS ARE VIOLATED UNDER ARTICLE 21 OF THE

CONSTITUTION OF ARESSIA. ......................................................................................... 22

B. INTER LINKING OF RIVER PROJECT IS OF GREATER WELFARE OF THE

PEOPLE AND IS A PUBLIC NECESSITY. ........................................................................ 24

IV. THE LINKING OF RIVERS ACT, 2010 VIOLATES THE ENVIRONMENTAL

RIGHTS OF THE CITIZENS OF ARESSIA AND THE PROVISIONS OF THE FOREST
(CONSERVATION) ACT, 1980. ............................................................................................. 27

A. FUNDAMENTAL RIGHTS ENSHRINED UNDER ARTICLE 14 OF THE

CONSTITUTION ARE VIOLATED IN THE PRESENT CASE ........................................ 27

B. RIGHTS ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION ARE

VIOLATED IN THE PRESENT CASE. .............................................................................. 28

C. LINKING OF RIVER ACT WILL VIOLATE THE RIGHTS OF PEOPLE

INHABITING IN FOREST AND ALSO THE FOREST CONSERVATION ACT, 1980. . 31

PRAYER ....................................................................................................................................... 34

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THE INDEX OF AUTHORITIES

I. CASES REFERRED ( INDIAN)

1. Subhash Kumar v. State of Bihar, (1991) 1 SCC 598.

2. Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 SCC 575.
3. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
4. Union of India v. G. Ganayutham, (1997) 7 SCC 463, 478-479.
5. Coimbatore Distt. Central Coop. Bank v. Employees’ Assn., (2007) 4 SCC 696.
6. M.C. Mehta v. Union of India, (2004) 12 SCC 118.
7. A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718.
8. T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606.
9. N.D. Jayal v. Union of India, (2004) 9 SCC 362.
10. Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647.
11. G. Sundarrajan v. Union of India, (2013) 6 SCC 620, 674.
12. M.C Mehta v. Kamal Nath, (1997) 1 SCC 388.
13. M.C Mehta v. Union of India, (1998) 9 SCC 589.
14. M.C. Mehta v. Union of India, (1987) 4 SCC 463.
15. Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1985 SC
625.
16. Goa Foundation and Others v. State of Goa and Others, 2001 (3) BomCR 813.
17. Ramsumaran Prasad v. ShyamKumari , AIR 1922 P.C. 856.
18. In Re: Airports Authority of India Ltd. , AIR 1999 SC 2367.
19. BSES Ltd. v. Union of India, 2001 (1) Bom CR 394.
20. Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity
Supply Company Ltd. (1991) 2 SCC 539.
21. Union of India v. G. Ganayutham, (1997) 7 SCC 463, 478-479.
22. Coimbatore Distt. Central Coop. Bank v. Employees’ Assn., (2007) 4 SCC 696.

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23. Jaora Sugar Mills Pvt. Ltd. v. State of M.P., AIR 1966 SC 416.
24. Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Sabha Union, AIR 1967 SC 691, 701.
25. Krishna A.S. v. State of Madras, AIR 1957 SC 297
26. .S.Bola v. B.D.Sardana, AIR 1997 SC 3183.
27. K.C.Gajapati Narayana Deo v. State of Orissa, AIR 1954 SC 375, 379.

II. CASES REFERRED (FOREIGN)

1. Associated Provincial Picture House v. Wednesbury, (1948) KB 223
2. Council of Civil Services Union v. Minister of Civil Services, (1984) 3 All ER 935
(HL).
3. Ashburton Acclimatisation Society v. Federated Farmers of New Zealand (1988) 1
NZLR 78.
4. Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892).
5. National Audubon Society v. Superior Court of Alpine Cnty. (Mono Lake Case), 658
F.2d 709 (Cal. 1983).

III. BOOKS

1. Basu D.D , Constitution of India ,14th edition 2009, LexisNexis, Butterworths

Wadhwa Publication Nagpur.
2. Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth
Wadhwa.
3. Desai . A. Ashok, Environmental Jurisprudence , 2nd Edition 2002, Modern Law
House.
4. Divan Shyam , Rosencranz Armin ,Environmental Law and policy in India, Second
Edition 2004, Oxford India paperbacks.
5. Seervai H.M. , Constitutional law of India, 4th Edition 2002, Volume 2, Universal
Book Traders.
IV. CONSTITUTION AND LEGISLATIONS
1. Constitution of India, 1949.
2. Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forests
Right) Act, 2006.

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3. Forest (Conservation) Act, 1980.

4. Panchayats (Extension to the Scheduled Areas) Act, 1996.
V. CONVENTIONS AND TREATIES
1. Declaration of the United Nations Conference on the Human Environment, 1972.
2. Rio Declaration, 1982.
3. Universal Declaration of Human Rights, 1948.
4. International Covenant on Economic, Social and Cultural Rights, 1966.
5. Ramsar Convention, 1971

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THE STATEMENT OF JURISDICTION

The Petitioners/Appellants herein have invoked the jurisdiction of this Honorable Court under:

Article 32 of the Constitution of Aressia which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 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 Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution”

Article 131 of the Constitution of Aressia which reads as follows:

“131. Original jurisdiction of the Supreme Court

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any
other court, have original jurisdiction in any dispute

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other
States on the other; or

(c) between two or more States, if and in so far as the dispute involves any question (whether of
law or fact) on which the existence or extent of a legal right depends: Provided that the said

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jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant,
engagements, and or other similar instrument which, having been entered into or executed before
the commencement of this Constitution, continues in operation after such commencement, or
which provides that the said jurisdiction shall not extend to such a dispute

Article 133 of the Constitution of Aressia which reads as follows:

“133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil
matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil
proceeding of a High Court in the territory of India if the High Court certifies under Article
134A

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme
Court

(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under
clause ( 1 ) may urge as one of the grounds in such appeal that a substantial question of law as to
the interpretation of this Constitution has been wrongly decided

(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise
provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a
High Court

Section 22 of National Green Tribunal Act, 2010 which reads as follows:

“22. Appeals to Supreme Court.

Any person aggrieved by an award, decision or order of the tribunal, may, file an appeal to the
Supreme Court, within ninety days from the date of communication of the award, decision or
order of the Tribunal, to him, on any one or more of the grounds specified in Section 100 of the
Civil Procedure Code, 1908.

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THE STATEMENT OF FACTS

Aressia’s water crisis

Aressia is a union of 26 states and follows the federal structured government with a strong
centralizing tendency. It has many small and big rivers, among which few are trans-boundary
rivers. These rivers were considered as the blood vein of Aressia as the economy of Aressia is
mainly based on agriculture and fishing. During the past two decades the economy of Aressia
suffered due to the failure of agricultural crops in many regions of Aressia. The prime reason for
the agricultural failure is shortage of water.
The plan to Link the Rivers of Aressia
In the year 2009, Aressian Civil Liberties Union (ACLU), a non–governmental organization,
filed a Writ Petition before the Hon’ble Supreme Court of Aressia. For the same, the court set up
a High power expert committee and EIA Committee, to conduct a study on the viability of
linking of rivers across the country.
The Linking of Rivers Act, 2010
The Linking of Rivers Act was passed in 2010 which gave all the powers to the Central
Government to implement the Project. An authority was also established under the act. The
various State governments in Aressia have criticized the idea of Linking of Rivers.
The approval of the first phase of the project
In February, 2012 the Authority for Linking of Rivers (ALR) published a list of rivers included
in the first phase of Linking of River Project. These rivers were in the State of Somanda; State of
Normanda; State of Adhali; State of Neruda; State of Vindhya and State of Parmala. Currently
the rivers are exclusively belonging to the States in which they are flowing but after linking of
rivers they will be inter-state. One of the rivers included in the list is river ‘Bhargavi’ which is a
trans-boundary river flowing to Boressia.
Opposition to the project by states, farmers, NGO’s and Environmentalists

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This move was criticized by the States of Parmala and Adhali. The State of Vindhya is having
the largest wet land in Aressia. It has been included in the Ramsar List of Wetlands of
International Importance. The EIA report which was prepared by the EIA Committee appointed
by State of Vindhya identified that this wet land will be damaged due to the proposed Linking of
River Project. On request of State of Vindhya, the Central Government directed the ALR to
exclude the State of Vindhya from the Linking of River Project. The farmers of Vindhya and
Normanda objected to this exclusion.

The Boressian Angle to the Project

In 2013, The Forum for Environmental Right (FER) is an international NGO having its head
office in Boressia and branch office in in Aressia, approached the Hon’ble High Court of Neruda
challenging the inclusion of river Bhargavi in the Linking of River Project on the ground that any
attempt to link river Bhargavi with other rivers in Aressia will violate the fundamental rights of
people in Boressia. This was rejected by the High Court.

The news controversy over the report of Environment Impact Assessment

In March 2014, a news channel, ‘Daily News’ telecasted an interview with some members of
EIA Committee who confessed to the news reporter that, there was political pressure on them to
give a favorable EIA report related to Linking of River Project. This news was heavily
publicized by media and NGO’s working for the protection of environment. As a result there was
widespread protest against the implementation of Linking of River Project.
Case in the National Green Tribunal
On 2nd April, 2014 Centre for Environment Rights and Advocacy (CERA), approached the
National Green Tribunal (NGT) of Aressia challenging the legality of ‘The Linking of Rivers
Act, 2010’. However, on 4thJuly 2014, the NGT dismissed the petition filed by CERA.
Aggrieved by the order of NGT, the CERA preferred an appeal to the Hon’ble Supreme Court of
Aressia on 5thAugust 2014.
Current position on the Project
The Hon’ble Supreme Court of Aressia for the sake of convenience decided to hear all the
petitions together and framed the issues for hearing.

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THE STATEMENT OF ISSUES

I.

WHETHER THE PETITION FILED BY FORUM FOR ENVIRONMENTAL

RIGHTS (FER) IS MAINTAINABLE IN THE HIGH COURT OF NERUDA?
II.
WHETHER SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA
VIRES TO THE CONSTITUTION OF ARESSIA?
III.
WHETHER THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING
OF RIVERS PROJECT FOR THE STATE OF VINDHYA IS VIOLATIVE OF
THE FUNDAMENTAL RIGHTS OF PEOPLE OF STATE OF VINDHYA AND
STATE OF NORMANDA?
IV.

WHETHER THE LINKING OF RIVERS ACT, 2010 VIOLATES THE

ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA AND PROVISIONS
OF THE FOREST (CONSERVATION) ACT, 1980?

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THE SUMMARY OF ARGUMENTS

1. WHETHER THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHTS

(FER) IS MAINTAINABLE IN THE HIGH COURT OF NERUDA?

The petition filed by the FER in the High Court of Neruda is maintainable. The petitioner has the
locus standi in the matter. Article 21 of the Constitution has been given extra territorial application.
The high court has also been given extra territorial jurisdiction in the present matter. There is also no
alternate legal remedy available.

2. WHETHER SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA VIRES

TO THE CONSTITUTION OF ARESSIA?

Section 3 of the said act is ultra vires the constitution, as it violates the scheme of distribution of
powers between the Centre and the State. The act itself is unconstitutional as it is violative of
fundamental rights.

3. WHETHER THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING OF

RIVERS PROJECT FOR THE STATE OF VINDHYA IS VIOLATIVE OF THE
FUNDAMENTAL RIGHTS OF PEOPLE OF STATE OF VINDHYA AND STATE OF
NORMANDA?

The Linking of Rivers Act is violative of Article 21 and various rights under Article including right to
water, livelihood and economic development, of the people of Vindhya and Normanda, and the Linking
of rivers is of greater public welfare and necessity to the people of the two States.

4. WHETHER THE LINKING OF RIVERS ACT, 2010 VIOLATES THE

ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA AND PROVISIONS OF THE
FOREST (CONSERVATION) ACT, 1980?

The Act is violative of the Fundamental Rights of the people of Aressia under Article 14 and 21 of the
Constitution of Aressia. It violates the right to clean and safe environment and right to livelihood
under Article 21 of the Constitution of Aressia and it violates the rights of people inhabiting in forest
and also the provisions of the Forest Conservation Act, 1980.

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ARGUMENTS ADVANCED

I. THE PETITION FILED BY THE ‘FORUM FOR ENVIRONMENTAL RIGHT’

(FER) IS MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA.

It is submitted that in the instant case, ‘Forum for Environmental Reforms’ (FER) filed a petition
in the High Court of Neruda challenging the inclusion of river Bhargavi in the Linking of River
Project on the ground that it will violate the fundamental rights of people of Boressia. It will lead
to the destruction of forest area and wildlife, submergence of wetlands and violations of right to
livelihood of thousands of fishermen in Boressia. The writ petition was dismissed by the High
Court of Neruda.1

A. THE PETITIONER HAS THE LOCUS STANDI TO APPROACH THE HIGH

COURT OF NERUDA.
Article 226 of the Constitution of Aressia empowers, the High Court to issue writs, directions or
orders for the enforcement of Fundamental Rights conferred under Part III of the Constitution of
Aressia.

In the present case, it is humbly submitted that the right of people of Boressia under Article 21
i.e., right to life and personal liberty under part III of the Constitution is violated.

The Constitution of Aressia provides Fundamental Rights under Chapter III. These rights are
guaranteed by the Constitution. One of these rights is provided under Article 21 which highlights
Protection of Life and Personal Liberty. The Supreme Court through its judicial interpretation
has expanded the scope of Article 21 to include right to live in a healthy environment with
minimum disturbance to ecological balance.2 The Supreme Court has in catena of cases, held
right to clean and safe environment provided under Article 48-A as a facet of Right to life under

1
Factsheet, ¶ 14.
2
Rural Litigation Entitle Kendra v. State of Uttar Pradesh, AIR 1987 SC 359.

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Article 21.3 This mandate as recognized by the court is also provided under various international
covenants to which Aressia is a signatory.4 Further the Supreme Court has interpreted Article 21
to include right to livelihood.5

The rights of the people of Boressia are violated as the Inter-linking of River Bhargavi would
lead to destruction of forests and wildlife, submerge wetlands which are important for ecological
balance and hence violate the right to clean and healthy environment. Further, livelihood of
thousands of fishermen in Boressia will be affected by this project, thus their right to livelihood
will be violated.

B. EXTRA TERRITORIAL APPLICATION OF ARTICLE 21.

The rights under Article 21 are not restricted to citizens and are available to both citizens and
foreigners.6 Just as the State is under an obligation to protect the life of every citizen in this
country, it is also under an obligation to protect the life of the persons who are not its citizens.7

In Chairman, railway Board v. Chandrima Das,8 the Supreme Court ruled that relief could be
granted to a foreigner under Article 226 for violation of Fundamental Right under Article 21.
Therefore, a foreigner can also claim protection under Article 21 along with the Aressian
Citizens.9 The Supreme Court has also interpreted the word "life" and has given it the same
interpretation as has been placed on that word by the Universal Declaration of Human Rights.
Therefore, according to the tenor of the language used in Article 21, it will be also available to a
"person" who may not be a citizen of the country.10

3
M.C Mehta v. Union of India, (1998) 9 SCC 589; See also, Vellore Citizens’ Welfare Forum v. Union of India
(1996) 5 SCC 647; M.C Mehta v. Union of India, (2004) 12 SCC 118.
4
Declaration of the United Nations Conference on the Human Environment, 5 to 16 June 1972; See also, M.C.
Mehta v. Union of India, (1987) 4 SCC 463, 467.
5
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; D.K Yadav v. J.M.A Industries, (1993) 3 SCC
259.
6
Loius De Raedt v. Union of India, (1991) 3 SCC 554.
7
Chairman, railway Board v. Chandrima Das, AIR 2000 SC 988.
8
AIR 2000 SC 988.
9
Common Cause, A registered society v. Union of India, AIR 199 SC 2979.
10
Kubic Darusz v. Union of India & Ors, AIR 1990 SC 605.

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On the question whether the Fundamental Rights have extra-territorial application in Maneka
Gandi v. Union of India,11 the Supreme Court has stated that the fundamental rights are not
restrained to India and has extra territorial application unless they are explicitly restricted by the
Constitution itself. Article 21 has no such restrictions and therefore the application of Article 21
can be beyond the territory of Aressia.

It is humbly submitted that the rights conferred under Article 21 of the Constitution of Aressia
are also available to people of Boressia who will be severely affected by the inclusion of river
Bhargavi in the Linking of River Project.12 Further, Article 21 has extra-territorial application
and can be invoked even when the aggrieved are outside the territory of Aressia.

C. FORUM FOR ENVIRONMENTAL REFORMS HAS THE LOCUS STANDI IN

THE PRESENT CASE.
The petitioner has the legal standing which is essential to file a writ petition under Article 226.13
The rule of locus standi has been relaxed with the advent of Public Interest Litigation and it is
not necessary that a petitioner should himself have a personal interest in the matter.14

It is submitted that the court in S.P. Gupta case15 held that the test applied for determining the
standing in individual interest cannot be strictly applied to public interest. The court has
expanded the concept of “Affected party” in the case of public interest. All the requirements of
instituting public interest litigation has been fulfilled in the present case. First, there is a
violation of Fundamental Right. Second, the petitioner represents rights of the public. Third, the
petitioners have come to this court with clean hands.

11
Chairman, railway Board v. Chandrima Das, AIR 2000 SC 988.
12
Factsheet, ¶ 14.
13
Prasar Bharti Broadcasting Corporation of India v. Debyajoti Bose, AIR 2000 Cal 43.
14
M/s Mohapatra & Co. v. Orissa, AIR 1984 SC 1572, 1574.
15
S.P. Gupta and Others v. Union of India, 1981 Supp. SCC 87; See also, M.C Mehta v. Union of India, (1987) 1
SCC 395.

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D. THE HIGH COURT HAS TERRITORIAL JURISDICTION TO ISSUE WRIT IN

THE GIVEN MATTER.
The high Court can issue a Writ if the cause of action either wholly or partly arises within the
High Court’s territorial jurisdiction.16 The High Court within whose jurisdiction a cause of action
arises is competent to issue writs to the Central Government located in New Delhi.17

In Stelmakh Leonid Iuliia v. Secretary to the Ministry, the Bombay High Court accepted the
jurisdiction of the Ukraine National whose visa to work in Bombay was denied. The Court was
said to have territorial jurisdiction to decide the issue in question even when the aggrieved party
was outside the territory of India because the place where the petitioner seeked employment was
in Bombay.18
In the instant case, since, the river Bhargavi starts from the State of Neruda19 and is connected to
other states in Aressia from Neruda, the cause of action arises in the State of Neruda. Therefore,
the High Court of Neruda has the territorial Jurisdiction to issue Writ in the given matter.

E. NON- EXISTENCE OF ALTERNATIVE LEGAL REMEDY.

It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he
should be required to pursue that remedy and not invoke the jurisdiction of the High Court to
issue a prerogative or writ.20 In the present case the petitioners have no other remedy as they
cannot approach the courts in Boressia to challenge the decision taken by the Aressian
Authorities, the petition is filed in the Aressian Courts.

F. OBLIGATION UNDER ART 51-C OF THE CONSTITUTION OF ARESSIA.

As provided by Article 51(c) of the Constitution of Aressia, the State is under a constitutional
directive to endeavor to foster respect for international law and treaty obligations. The directive
principles of State Policy are fundamental in the governance of the Country. In Vishaka & Ors.

16
Article 226 (2), Constitution of Aressia; See also, M.P Jain, Indian Constitution Law 407 (Lexis Nexis, 7 th edn.,
2014).
17
M.P Jain, Indian Constitution Law 407 (Lexis Nexis, 7 th edn., 2014).
18
Stelmakh Leonid Iuliia v. Secretary To The Ministry, 2011(3) Bom CR 268.
19
Factsheet, ¶ 9.
20
Union of India v. T.R. Varma, AIR 1957 SC 882.

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v. State of Rajasthan & Ors.,21 the Supreme Court spelled out that any International Convention
must be read with the Fundamental Rights to promote the object of the constitutional guarantee.

The Supreme Court in Forum, Tirupathi v. State of Andhra Pradesh22 emphasized on the state
responsibility to protect environment arising under the International law like International
Conference on Human Environment, Stockholm, 1972, to which Aressia is a party.

Under Customary International Law, the basic Principle is that no nation is entitled by its own
activities to cause damage to the environment of any other nation.23 This principle have also been
enshrined in Rio Declaration,24 Stockholm Declaration25 and the 1986 Noumea Convention.
Aressia is a signatory to both Rio Declaration and Stockholm Declaration. Further, Aressia is
violating its obligations under the Ramsar Convention to which it is signatory which obligates
protection and preservation of wetlands.

Moreover, Aressia the interlinking of river is also in breach of its obligations under the Universal
Declaration of Human Rights26 and The International Covenant on Economic, Social and
Cultural Rights.27 Aressia is a signatory to the Universal Declaration of Human Rights, 194828
and ICESCR and has obligations towards the people to uphold these inalienable rights. The
growing jurisprudence insists that state parties should refrain from the adoption of measures that
could negatively affect the enjoyment of such rights abroad.29

21
(1997) 6 SCC 241.
22
AIR 2001 A.P 118.
23
Trail Smelter Case, Reports of International Arbitral Awards, 1938, Vol. III, p. 1905; See also, Legality of threat
of use of Nuclear Weapons, Advisory Opinion, I.C.J reports 1996, Corfu Channel (United Kingdom v. Albania),
Merits, Judgment, I.C.J. Reports 1949, p. 22.
24
Report of the United Nations Conference on Environment and Development (A/CONF. 151/26/Rev, 1 ), Vol. 1,
Ann. 1, p.3.
25
Principle 21, Stockholm Declaration on the Human Environment, 1972.
26
Articles 3, 7, 28, The Universal Declaration of Human Rights.
27
Articles 6, 11, 12, The International Covenant on Economic, Social and Cultural Rights.
28
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
29
W. Vadenhole, ‘Completing the UN complaint Mechanisms or Human Right Violations Step by Step’,
Netherlands Quaretrly of Human Rights, 21 , No.3, 2003, 423-62 at 445-6; See also, M. Craven, the International

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A State is thus obliged to use all the means at its disposal in order to avoid activities which take
place in its territory, or in any area under its jurisdiction, causing significant damage to the
environment of another State.

II. WHETHER SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA

VIRES TO THE CONSTITUTION OF ARESSIA?

A. SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 VIOLATES THE

SCHEME OF DISTRIBUTION OF POWERS BETWEEN THE CENTRE AND
THE STATE AND THEREFORE IS UNCONSTITUTIONAL.

It is respectfully submitted that the legislation Linking of Rivers Act, 2010 is liable to be struck
on the grounds of want of legislative competence. The Legislature has no competence to legislate
upon Rivers which exclusively belongs to the States as it falls exclusively under State List, 30 but
under the guise of Regulation and development of inter-State rivers,31 the Legislature has
purported to do so. Hence, it is colourable exercise of power which goes against the scheme of
the Constitution.

The pivotal point of a federal constitution is the division of powers and functions between the
Centre and the regions. The Aressian Constitution contains a very elaborate scheme of
distribution of powers and functions between the Centre and the States. Under Article 246(3),
powers are exclusively conferred to make laws with respect to matters enumerated in State List
and represents the prohibited field for centre.

In the present case the centre does not have the legislative competence to pass the said Linking
of Rivers Act, 2010. This is because the said piece of legislation is a colourable legislation. The

Covenant on Economic, Social and Cultural Rights: a perspective on its development 147-150 (Oxford University
Press, 1995) .
30
Entry 17 List 2, Constitution of Aressia, 1949.
31
Entry 56, List 1 and Article 262, Constitution of Aressia, 1949.

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idea of colourable legislation is that the legislature purports to act within the limits of its power,
yet in substance and reality, it has transgressed these limits of its power by taking resort to a
mere pretence or disguise.32 The doctrine of colourable legislation is based on the maxim that
what cannot be done directly cannot also be done indirectly.33 The doctrine becomes applicable
when a legislature seeks to do something in an indirect manner what it cannot do directly. 34 If
that is so the legislation in question is invalid.35 The doctrine is in essence a question vires or
power of the legislature to enact the law in question.36 Therefore a statute can be invalidated on
the ground that it constitutes a colourable exercise of, or a fraud upon, the legislative power.37
In the present situation the law that has been passed is the Linking of Rivers Act, 2010. This is
because the legislature claims competence for passing such law under Entry 56 of List I but what
it actually is doing is, making a law for Rivers which exclusively belongs to the States that is a
subject matter under Entry 17 of List II of the Schedule VII.
The courts have devolved a two tier test to determine the substance of the enactment;
(a) effect of the legislation38 and (b) object or purpose of the Act.39

The real purpose of a legislation maybe different from what appears from its face, but it would
be colourable legislation if the real object is not attainable by the legislature because it lies
beyond its ambit.40
In the first case of colourable legislation that is Bailey v. Drexel Furniture Co41 the power of
Taxation vested with the Union and the Law made was for Child Labour Tax Law 1919. The

32
Jaora Sugar Mills Pvt. Ltd. v. State of M.P., AIR 1966 SC 416; See also, Jalan Trading Co. Pvt. Ltd. v. Mill
Mazdoor Sabha Union, AIR 1967 SC 691, 701; See also, Krishna A.S. v. State of Madras, AIR 1957 SC 297.
33
S.S.Bola v. B.D.Sardana, AIR 1997 SC 3183.
34
M.P. Jain, Indian Constitution Law, 120 (Lexis Nexis Buttersworth, 6th ed. 2010).
35
S.S Bola v. B.DSardana AIR 1997 SC 3183.
36
K.C.Gajapati Narayana Deo v. State of Orissa AIR 1954 SC 375, 379; See also, Kunhikaman v. State of Kerala
AIR 1962 SC 723; See also, Shankara Narayana, B.R. v. State of Mysore, AIR 1966 SC 1571.
37
Jagannath Baksh Singh v. State of U.P., AIR 1962 SC 1563; See also, CST v. Pine Chemicals Ltd., (1995) 1 SCC
58; See also, Devidayal Rolling Mills v. Prakash Chimanlal Parikh, AIR 1993 SC 1982.
38
KCG Narayan Deo v. State of Orissa, AIR 1953 SC 375.
39
Sonapur Tea Co v. Deputy Commissioner, AIR 1962 SC 137.
40
KCG Narayan Deo v State of Orissa, AIR 1953 SC 375.
41
[1922] 250 US 20.

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US Supreme Court struck down the law based on colourable legislation as the Union did not
have the power to regulate child labour and it could not do so indirectly by using its power of
taxation. The same was upheld in the case of State of Bihar v. Kameshwar Singh.42

The relevant provisions in the Aressian Constitution in respect to water are Entry 17 in the State
List, Entry 56 in the Union List and Article 262.
Entry 17 in the State List runs as follows:
"Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water
storage and water power subject to the provisions of Entry 56 of List I".

Therefore, water, under the Aressian Constitution is indeed in the State List but this is subject to
the provisions of Entry 56 in the Union List, which runs as follows:
“Regulation and development of inter-State rivers and river valleys to the extent to which such
regulation and development under the control of the Union is declared by Parliament by law to
be expedient in the public interest”.

The Central Government only has power to legislate only on ‘inter-State rivers’ as per Entry 56
List 1 of Schedule VII of the Constitution of Aressia.43 In the instant case, the rivers belonged
exclusively to the States and therefore the Central Government has no power to legislate on such
matters. This view has been time and again been interpreted by the courts.44
Therefore, water is a state matter and the ambit of the same was discussed by the Courts. In the
Matter of Cauvery Water Dispute45 where it was spelled out by the court that Under Entries 14,
17 and 18 of List II, the State Legislature has competence to legislate with respect to all water
within its territory, but so far as inter-State rivers flowing through the State are concerned, the

42
(1952) 1 SCR 889.
43
Tamil Nadu Cauvery Neerppasanavilaiporulgal Vivasayigal Nala v. Union Of India And Ors, AIR 1990 SC 1316.
44
Shri Ramaswamy Iyer, Aspects Of Federalism, Water and the Constitution of India
http://sandrp.in/riverlinking/ilrprpsl.pdf (last visited 10 Sept., 2014).
45
AIR 1992 SC 522.

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power of State Legislature shall be subject to Entry 56 of List 1. This view has been reiterated by
several High Court Judgments.46
Further the Supreme Court in clear terms has stated that the powers of the Parliament as well as
the State legislature are expressed in precise and definite terms. While an entry is to be given its
widest meaning but it cannot be so interpreted as to over-ride another entry or make another
entry meaningless and in case of an apparent conflict between different entries, it is the duty of
the court to reconcile them.47

Therefore the petitioners humbly submit that the legislature has blatantly passed the Linking of
Rivers Act, 2010. The Linking of Rivers Act, 2010 is linking the rivers which exclusively
belong to the States and it is a real and substantive encroachment upon the powers of State to
regulate as provided under Entry 17 List II of the Seventh Schedule. Hence, the said legislation is
a piece of colourable legislation which should be struck down due to incompetence of the
legislature to make the said legislation.

B. THE LINKING OF RIVERS ACT, 2010 IS VIOLATIVE OF FUNDAMENTAL

RIGHTS AND IS THEREFORE UNCONSTITUTIONAL.
Arguendo, even if the matter falls under Entry 56 of List I the said power is to be exercised
within the constitution and not outside. Fundamental rights as a part in the constitution cannot be
disregarded for exercise of any power provided within the constitution.48 The only permissible
disregard of fundamental rights is where the constitution in express terms provides for such
disregard.49
Constitutional validity of an Act can be challenged on two grounds50 which are: lack of
legislative competence and the violation of Fundamental rights.

46
Venkatagiriyappa v. Karnataka Electricity Board (1999) 4 KarLJ 482; See also, Ismayil v. Deputy Tahsildar &
Ors, (2011) 2 KLJ 414.

47
Union of India & Ors v. Shah Goverdhan L. Kabra Teachers College, AIR 2002 SC 3675.

48
A.K Gopalan v. State of Madras, AIR 1950 SC 27, 34;See also, Maneka Gandhi v. Union of India, (1978) 1 SCC
248.
49
D.D. Basu, Commentary on the Constitution of India 1722 (Lexis Nexis, 8th edn., 2012).
50
D.D. Basu, Commentary on the Constitution of India 1678 (Lexis Nexis, 8th edn., 2012).

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As submitted before this honorable court the Linking of Rivers Act will violate the Fundamental
Rights of not only of the people of Aressia but also of Boressia.51 The Fundamental Rights
enshrined under Article 1452 and 2153 has been breached by virtue of the Linking of Rivers Act,
2010. Therefore, the Linking of Rivers Act, 2010 violates the Fundamental Rights and is
therefore unconstitutional.

III. THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING OF RIVER

PROJECT FOR THE STATE OF VINDHYA IS VIOLATIVE OF
FUNDAMENTAL RIGHTS OF PEOPLE OF STATE OF VINDHYA AND STATE
OF NORMANDA.

A. THE RIGHTS OF PETITIONERS ARE VIOLATED UNDER ARTICLE 21 OF

THE CONSTITUTION OF ARESSIA.
The Fundamental Right enshrined under Article 21 of the Constitution of Aressia runs as
follows:
No person shall be deprived of his life or personal liberty except according to procedure
established by law.

The scope and ambit of Article 21 has been widened to include various other rights like Right to
Livelihood,54 Right to Water,55 and Right to Development56 which have been violated by the
Central Government of Aressia by exempting the two states from the Linking of River project.

51
Factsheet, ¶ 14.
52
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; See also, Associated Provincial Picture House v.
Wednesbury, (1948) KB 223; See also, Council of Civil Services Union v. Minister of Civil Services, (1984) 3 All
ER 935 (HL); See also, Bank v. Employees’ Assn., (2007) 4 SCC 696; See also, A.P. Pollution Control Board v.
Prof. M.V. Nayudu, (1999) 2 SCC 718, 735.

53
M.C Mehta v. Union of India, (1998) 9 SCC 589 (Para. 4-6); Vellore Citizens’ Welfare Forum v. Union of India
(1996) 5 SCC 647.
54
Centre for Environment and Food Security v. Union of India, 2011 AIR SCW 231; See also, Board of Trustees of
the Port of Bombay v. Dilipkumar, AIR 1983 SC 109.

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Right to Water.

Water is of primary importance in any country. In Narmada Bachao Andolan,57 the Apex Court
has held that the right to water is a fundamental right under Article 21 of the Constitution. Water
is a basic need for the survival of human beings and is part of right of life and human rights as
enshrined in Article 21 of the Constitution and can be served only by providing a source of water
where there is none.

Further, Aressia is a party to the Resolution of the United Nations Organizations passed during
the United Nations Water Conference in 1977 as under: "All people, whatever their stage of
development and their social and economic conditions, have the right to have access to drinking
water in quantum and of a quality equal to their basic needs."

Thus, the right to access to drinking water is fundamental to life and there is a duty on the State
under Article 21 to provide clean drinking water to its citizens. 58 In a few instances the High
Court has cast positive obligation on the government authorities to take certain positive measures
to provide safe drinking water to the people.59

Similarly in this case, the petitioner seeks directions from the court to the Central Government
and ALR, to undertake the Linking of Rivers project as envisaged earlier so as to provide water
for drinking and other purposes to the people of the two states as there was acute scarcity of
water. The linking of rivers would recharge the ground water and create natural flow of water in
rivers having scarcity of water.

Violation of Right to Livelihood

55
Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345; See also, A.P. Pollution Control Board II v Prof.
M.V. Naidu and Others, (2001) 2 SCC 62; See also, P.R Subas Chandran v. Government of A.P. and Ors 2001 (5)
ALD 771.
56
C.E.R.C v. UOI, AIR 1995 SC 946, 1257; See also, Murlighar Dayandeo Kesekar v. Vishwanath Pandu Borde,
(1995) 2 SCC 549.
57
Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345.
58
A.P. Pollution Control Board II v. Prof. M.V. Naidu and Others, (2001) 2 SCC 62.
59
P.R Subas Chandran v. Government of A.P. and Ors 2001 (5) ALD 771; See also, Siromani Mittasala, Chairman,
v. President, Brindavanam Colony 2001, 2002 (1) ALD 136.

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Article 39(a) of the Constitution of Aressia obligates the state to secure to all men and women
equally, right to an adequate means of livelihood. The Supreme Court has taken recourse to
interpret Article 21 to include therein the “right to livelihood”.60 Article 21 protects the right to
livelihood as an integral facet of right to life.61

In Olga Tellis v. Bomabay Municipal Corporation,62 it was held that the right to livelihood is
born out of the right to life, as no person can live without means to livelihood.63

Right of agriculturist to cultivation is a part of their fundamental right to livelihood under Article
21.64 The economy of Aressia is mainly based on agriculture and fishing which was suffering
due to acute shortage of water. The exemption of the State of Adhali and Vindya from the
linking of river projct violates the Fundamental right to livelihood of the people. Therefore the
Central Government should be directed to undertake the linking of river project to protect the life
and livelihood of the people of the two states.

Further, the Farmers have a right to Development and economic empowerment as derived from
Article 2165 read with Articles 14, 21, 38, 39 and 46, and the Preamble to the Constitution.66 The
court has observed in R. Chandevarappa v. State of Karnataka67 that economic empowerment is a
way of life of political democracy.

B. INTER LINKING OF RIVER PROJECT IS OF GREATER WELFARE OF THE

PEOPLE AND IS A PUBLIC NECESSITY.
The interlinking of River is for the greater welfare of the States of Vindhya and Normanda and is
a public necessity.

Greater welfare of the people

60
Centre for Environment and Food Security v. Union of India, 2011 AIR SCW 231.
61
Board of Trustees of the Port of Bombay v. Dilipkumar, AIR 1983 SC 109.
62
AIR 1986 SC 180.
63
D.K Yadav v. J.M.A Industries, (1993) 3 SCC 259.
64
Dalmia Cement (Bharat) Ltd v. UOI, (1996) 10 SCC 104.
65
C.E.R.C v. UOI, AIR 1995 SC 946, 1257.
66
Murlighar Dayandeo Kesekar v. Vishwanath Pandu Borde, (1995) 2 SCC 549.
67
(1995) 6 SCC 309.

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Interest of general public is a comprehensive expression intended to achieve the socio-economic

justice for people by the State.68
This court has extended the scope of Article 21 and has held that there is a need to balance
environment and development, and if excessive focus is given to the right to live in a clean and
healthy environment, then, the state would be violating its duty to provide a better quality of life
to its individual. The environment shall have to be protected but not at the cost of the
69
development of the society. The necessity to preserve ecology and environment should not
hamper economic and other developments,70 which includes generation of revenue and public
interest.71 Therefore there should be a proper balance between the protection of environment and
the development process.

Further, the Directive Principles of state policy also reinstates that the distribution of the material
resources of the community in such a way as to subserve the common good. 72 ‘Material
Resources’ means anything which is capable of producing wealth for the community.73 In the
present context, water is a material resource, because it will facilitate agricultural activities,
which in turn will generate wealth for the farming community and the country at large.
It is humbly submitted that the linking of river project will result in greater welfare of the people
of both the States of Vindhya and Normanda. It will benefit thousands of farmers and other
people who are facing problems due to acute shortage of water in those areas.
Necessity

68
Court on its own motion v. Union of India, 2012 (12) Scale 307.
69
Goa Foundation, Goa v. Diksha Holdings Pvt. Ltd. & Ors, (2000) RD SC 553.
70
Banwaslseva Ashram v. State of U.P, AIR 1987 SC 374; See also,T.N. Godavarmanthirumalpad v. Union Of
India And Ors., (2002) 10 SCC 606.
71
Research Foundation For Science Technology And Natural Resource Policy v. Union Of India And Others, AIR
2007 SC (Supp) 852.
72
Article 39(b), Aressian Constitution; See also, State of Kartnataka v. Ranganatha Reddy, (1977) 4 SCC 471.
73
Assam Sillimanite Ltd. v. Union of India, AIR 1992 SC 938.

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The doctrine of public necessity is derived from the maxim Salus Populi Suprema Lex i.e. the
welfare of the people is of paramount importance.74 The Roman Law principle "salus populi est
suprema lex" is the abiding all pervasive perambular faith of the Constitution of Aressia.75

Necessity is the kind of pressure which the law recognizes as serious and sufficient. 76 To achieve
the public good, the property, liberty and life of an individual can be placed in jeopardy in the
case of existing, immediate and overwhelming necessity.77

The Interlinking of River project should be allowed, as it is in the interest of the two states and is
of utmost necessity.78

In the instant case the Interlinking of Rivers is a matter of urgency to protect the livelihood of
thousands of farmers, to provide the growth of the economy and to provide access to water, as all
these rights are dependent on this project. Therefore, by not Interlinking the rivers, the State will
be failing in performing its duty to safeguard the well-being of the people, keeping in mind that
the needs of environment need to be balanced with the needs of community at large in a
developing country79 and hence there violation of the rights of the people.
In People United for better living in Calcutta v. State of west Bengal,80 the High Court of
Calcutta balancing between need to protect wetlands and development of the state, permitted the
construction of World Trade Centre which was necessary for the development of states even
though it reclaimed certain wetlands for the same.

In the alternative, even if the linking of river project causes any harm of to the environment and
wetlands, the same can be compromised towards general welfare and necessity.

74
Rekharani Maitra & Ors. v. Additional District Magistrate & Ors, MANU/WB/0403/1997.

75
D. Viswanatha Reddy and Company, Kurnool Vs. Government of Andhra Pradesh, 2002 (4) ALD 161.
76
Ramsumaran Prasad v. ShyamKumari , AIR 1922 P.C. 856.
77
Malverer v. Spinke (1537) Dyer, (Part I), 356.
78
In Re: Airports Authority of India Ltd., AIR 1999 SC 2367.
79
BSES Ltd. v. Union of India 2001 (1) BomCR 394; See also, Dahanu Taluka Environment Protection
Group v. Bombay Suburban Electricity Supply Company Ltd., (1991) 2 SCC 539.
80
AIR 1993 Cal 215.

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IV. THE LINKING OF RIVERS ACT, 2010 VIOLATES THE ENVIRONMENTAL

RIGHTS OF THE CITIZENS OF ARESSIA AND THE PROVISIONS OF THE
FOREST (CONSERVATION) ACT, 1980.

In the instant case, Centre for Environment Rights and Advocacy (CERA) has approached this
honorable Court, challenging the legality of ‘The Linking of Rivers Act, 2010’ on the ground
that the implementation of the project would violate the environmental rights of the people of
Aressia and also the provisions of the Forest (Conservation) Act, 1980 owing to the detrimental
effects of the linking of rivers on the environment.

It is humbly submitted that the provisions of the Linking of Rivers Act, 2010 and its
implementation will directly affect the Fundamental Rights of the people of Aressia as enshrined
under Article 14 and 21 of the Constitution of Aressia and also the Forest (Conservation) Act,
1980.

A. FUNDAMENTAL RIGHTS ENSHRINED UNDER ARTICLE 14 OF THE

CONSTITUTION ARE VIOLATED IN THE PRESENT CASE
It is submitted that Article 14 requires all state actions, whether executive or legislative to be
made on reasonable grounds without any form of arbitrariness.81 Reasonableness as recognized
by common law82 and Aressian law83 requires an action to be free from irrationality. The term
‘rationality’ is defined as taking reasonable grounds into consideration before formulating an
action and disregard unreasonable grounds. In examining environmental cases, the court applies

81
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
82
Associated Provincial Picture House v. Wednesbury, (1948) KB 223; See also, Council of Civil Services Union v.
Minister of Civil Services, (1984) 3 All ER 935 (HL).
83
Union of India v. G. Ganayutham, (1997) 7 SCC 463, 478-479; See also, Coimbatore Distt. Central Coop. Bank v.
Employees’ Assn., (2007) 4 SCC 696.

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‘reasonable man test’ wherein the court as a man of ordinary prudence analyses on the basis of
reports and facts presented as to whether harm to the environment and human health exist.84
It is humbly submitted that, the Central Government did not take into account the adverse effect
of the linking of rivers on the environment of Aressia.
Even if the court is of the firm opinion that there is no actual loss but a presumptive loss, it is
submitted that the Honorable Supreme Court in its various findings, have applied ‘precautionary
principle’ given under principle 15 of Rio Conference of 1992 to which Aressia is a party. 85 The
principle of precaution involves the anticipation of environmental harm and taking measures to
avoid it or chose the least environmentally harmful activity. Precautionary duties must not only
be triggered by the suspicion of the concrete danger but also by justified concern or risk
potential. This principle has been accepted as part of the law of the land provided under Article
21 47, 48-A and 51-A (g) of the Constitution.86

Therefore, in the instant case, the Government of Aressia failed to take into the account the
deleterious effects of the Linking of River Act, 2010 thus in violation of Article 14 of the
Constitution of Aressia.

B. RIGHTS ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION ARE

VIOLATED IN THE PRESENT CASE.

I. VIOLATION OF THE FUNDAMENTAL RIGHT TO CLEAN AND SAFE

ENVIRONMENT AND RIGHT TO LIVELIHOOD.
Article 21 of the Constitution envisages a right to life and personal liberty of a person. The word
“Life” under Article 21 means a quality of life,87 which includes the right to a wholesome

84
M.C. Mehta v. Union of India, (2004) 12 SCC 118, 166; See also, A.P. Pollution Control Board v. Prof. M.V.
Nayudu, (1999) 2 SCC 718, 735; See also, Ashburton Acclimatisation Society v. Federated Farmers of New Zealand
(1988) 1 NZLR 78.
85
T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606; See also, N.D. Jayal v. Union of India,
(2004) 9 SCC 362.
86
Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647, 659; See also, G. Sundarrajan v. Union of
India, (2013) 6 SCC 620, 674.
87
Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.

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environment.88 Also International Covenant on Civil and Political Rights(ICCPR),89 Universal

Declaration of Human Rights(UDHR)90 and International Covenant on Economic Social and
Cultural Rights(ICESCR)91 recognizes right to life and adequate standard of living.
The Supreme Court has in catena of cases, held right to clean and safe environment provided
under Article 48-A as a facet of Right to life under Article 21.92 The Honorable Court has
emphasized that resources cannot be utilized in a manner resulting in irreversible damage to the
environment and the needs of the present cannot be met by compromising the ability of future
generation to meet their own needs.93 This mandate as recognized by the court is also provided
under various international covenants to which Aressia is a signatory.94
In the Silent Valley case,95 the Apex Court ordered that the Construction of dam for hydropower
in Kerala be stopped because of which the biodiversity is threatened and may be destroyed. In M.
C Mehta’s case,96 the Apex court has held that “we are conscious that closure of industries may
bring unemployment, loss of revenue but life, health and ecology have a greater importance to
people.” In another case, The Supreme Court had banned the activities which were causing
erosion of soil and deforestation in the ecologically fragile area. 97
Therefore in the instant case, in light of the adverse effect that will be caused by the linking of
rivers, the said proposal of linking of rivers will violate the Fundamental Right to clean and safe
environment under Article 21 is violated.

88
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
89
Article 6, ICCPR.
90
Article 3, UDHR.
91
Article 11, ICESCR.
92
M.C Mehta v. Union of India, (1998) 9 SCC 589; See also, Vellore Citizens’ Welfare Forum v. Union of India
(1996) 5 SCC 647.
93
M.C Mehta v. Union of India, (2004) 12 SCC 118.
94
Declaration of the United Nations Conference on the Human Environment, 5 to 16 June 1972; See also, M.C.
Mehta v. Union of India, (1987) 4 SCC 463, 467.
95
Society for Protection of Silent Valley v. Union of India and others, 1980 Kerala HC; Excerpts of judgment by
V.P. Gopalan Nambiar, J. have been cited in Shyam Divan and Armin Rosencranz, Environmental law and policy
in India - Cases, materials and statues, 428-430 (New Delhi: Oxford University Press, 2nd edn., 2001).
96
M.C Mehta v. UOI AIR 1992 SC 382.
97
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1985 SC 625.

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Further, The Supreme Court has taken recourse to interpret Article 21 to include therein the
“right to livelihood”.98 Article 21 protects the right to livelihood as an integral facet of right to
life.99 In Olga Tellis v. Bombay Municipal Corporation,100 it was held that the easiest way to
depriving a person of his right to life would be to deprive him of his means of livelihood to this
point of abrogation.101

Therefore, the Linking of River project would submerge the land and forests in Aressia which
would violate the right to livelihood of people of Aressia.

II. NON COMPLIANCE WITH THE ENVIRONMENTAL IMPACT ASSESSMENT

VIOLATES ARTICLES 21 OF THE CONSTITUTION.

It is submitted that right to life conferred under Article 21 can only be taken away by a procedure
established by law.102 This procedure established by law not only requires a law and a procedure
but a just, fair and reasonable procedure and law. The court has accepted that violation of Article
14 will also attract Article 21 as the standard of reasonableness under Article 14 and 21 are the
same.103 This was held in the case of Maneka Gandhi v. Union of India.104In the instant case, the
right to life conferred under Article 21 is taken away by unjust, fanciful and unreasonable
procedure established by law.
In the present circumstance, the rights of the people can be taken away by a procedure
established by law. The procedure in this case is carrying out a mandatory Environment Impact
Assessment.105 The procedure of carrying out Environmental Impact Assessment (EIA) under the

98
Centre for Environment and Food Security v. Union of India, 2011 AIR SCW 231.
99
Board of Trustees of the Port of Bombay v. Dilipkumar, AIR 1983 SC 109.
100
AIR 1986 SC 180.
101
D.K Yadav v. J.M.A Industries, (1993) 3 SCC 259.
102
M.C Mehta v. Kamal Nath, (1997) 1 SCC 388; See also, Vellore Citizens' Welfare Forum v. Union of India,
(1996) 5 SCC 647; See also, Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892); See also, National Audubon
Society v. Superior Court of Alpine Cnty. (Mono Lake Case), 658 F.2d 709 (Cal. 1983).
103
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
104
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
105
Environment Protection Rules, Environment Impact Assessment Notification 2006

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Environment Protection Act should be done properly, with unbiased approvals, taking into
consideration all relevant factors.106
In numerous High Court judgments, the courts have held that the carrying out of any activity
with an apprehension of any harm to the environment without the required environmental
clearance is in breach with the procedure.107
It is humbly submitted that in the instant case, the undisputed facts of the case, clearly suggests
that four members of the EIA Committee disclosed that the linking of rivers in certain states
would result in adverse environmental effects and that there was a political pressure at the time
of giving of the approval by the committee members, as they had also admitted on national
television.108 Since the government did not follow the due procedure, there is a violation of
Articles 14 and 21 of the Constitution, and the project must not be allowed.

Therefore, Linking of river violates Article 21 which in turn violates Article 14. In order to
establish violation of Article 21, the act should be subjected to the equality test of Article 14. 109
Article 14 strikes at arbitrariness because it negates equality110 and permeates the entire fabric of
Rule of Law.111 Therefore, every action of the State must be guided by reason for public good
and not by whim, caprice, and abuse of power.112

C. LINKING OF RIVER ACT WILL VIOLATE THE RIGHTS OF PEOPLE

INHABITING IN FOREST AND ALSO THE FOREST CONSERVATION ACT,
1980.

106
Environment Impact Assessment Notification, 2006
107
M/s Vedanta Aluminium Ltd. v. Union of India and Another, MANU/OR/0119/2011; See also, Courts On Its
Own Motion v. State of Himanchal Pradesh and Others, CWPIL No.15 of 2009; See also, Lafarge India Pvt. Ltd v.
Union of India and others, (2011) 7 SCC 338.
108
Factsheet, ¶ 15.
109
Maneka Gandhi v. Union of India. AIR 1978 SC 597.
110
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
111
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
112
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; See also, Dolly Chandra v. Chairman Jee,
(2005) 9 SCC 779.

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The people dwelling in Forest because of their backwardness113 and lack of exposure to
civilization114 are dependent on basic natural resources115 for life and livelihood.

The source of livelihood for forest dwelling people116 for generations have been forests and
forest lands117 and so are considered inseparable.118 However, with the advent of civilization they
were exploited by outsiders,119 thus, there was a necessity to protect the inherent rights of
indigenous people to empower them to utilise and to exercise control over forest for sustainable
development.120 Therefore, to protect forest land from deforestation and to encourage
forestation,121 State is casted upon a duty to save the fast diminishing forest cover of the
country122 under the principle of Public Trust Doctrine,123 Panchayats (Extension to the
Scheduled Areas) Act 1996 (PESA)124 and Articles 48A of the Constitution to preserve the
Forests which are considered to be a national wealth under Environment Protection Act, 1986.125

The Rio Submit, 1992, The Indigenous and Tribal Populations Convention, 1957126 and United
Nation Declaration on Indigenous people also recognize the rights of people over the land.127
The international conventions are considered important to be read with fundamental rights as

113
State Of Kerala And Another v. Peoples Union For Civil Liberties; See also, Kerala State Unit And Others, ILR
2009 (4) Kerala 387.
114
Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297
115
Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297. .
116
Section 2 (o), The Scheduled Tribes and other Traditional Forest Dweller Act, 2006.
117
Section 2(c), The Scheduled Tribes and other Traditional Forest Dweller Act, 2006.
118
K. Guruprasad Rao v. State of Karnataka and others, 2013 Indlaw SC 628.
119
M P Jain, The Constitution of India, First Report of the Commissioner For Scheduled Castes and Scheduled
Tribes, 3, 11(1952); See also, Samatha v. State of Andhra Pradesh & Ors., AIR 1997 SC 3297.
120
Ashok Kumar Tripathi v. Union of India and others, 2000 (2) MPHT 193.
121
Rural Litigation and Entitlement Kendra v. State of U.P, 1989 Supp (1) SCC 504.
122
A.P. State Fishermen Development and Welfare Association v. District Collector and Ors, 2010 (2) ALD 300.
123
Ibid.
124
Section 4(d) and (m), Panchayat (Extension to the Scheduled Areas) Act, 1996.
125
Subhash Kumar v. State of Bihar, (1991) 1 SCC 598.
126
Article 11, ILO Convention, 1957.
127
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, ILR 2009 (4)
Kerala 387.

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they further, enlarge the scope of the same.128 This depicts the special relationship between the
people and the forests and their sustenance which solely arises from these forests.

I. THE ACT IS IN VIOLATION OF THE PROVISIONS OF THE FOREST

CONSERVATION ACT, 1980.

Section 2(II) (IV) of The Forest (Conservation) Act, 1980 provides that Central Government can
only grants the permission of deforestation for the “non-forest purposes”129 and such clearances
are granted if Central Government considers it reasonable to cut the forest, which is decided on
the basis of the report of the committee constituted under this Act.130
However the provisions of this Act was not followed by the Central Government before giving
approval for the implementation of the Interlinking of Rivers project, as the committee under this
Act was not consulted by the Central Government before giving the approval for cutting down of
Forests.
Further, main Object of the Forest Conservation Act, 1980 is to protect the forests and to prevent
further deforestation but the Interlinking of River project will submerge the forest area and
destroy the forests which is against the objects of this Act. In V. Shankar Reddy v. State of
AP131, the Court upheld the invalidation of a government order permitting a forest area to be
cleared, since the order was against the purpose of the legislation, which was forest conservation.
The powers exercised against the object of the law are impermissible.

128
Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest, 2013 (3) EFL T560; See also, Vishaka v.
State of Rajasthan, (1997) 6 SCC 241, 249; See also, People's Union for Democratic Rights v. Union of India, AIR
1982 SC 1473, 1487.
129
Section 2, Forest (Conservation) Act, 1980.
130
Constituted under Rule 2-A of the Forest Conservation Rules,1981, Rule 5 and 6 of Forest Conservation Rules ,
1981; See also, Goa Foundation and Others v. State of Goa and Others, 2001 (3) BomCR 813.
131
1992 (2) Andhra .L.T.514, 529.

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THE PRAYER

In the light of facts stated, issues raised, arguments advanced and authorities cited, the petitioner
most humbly and respectfully pray and request the Honourable court:

1) TO ISSUE THE WRIT OF MANDAMUS.

2) TO DECLARE THE ACT PASSED BY THE GOVERNMENT OF ARESSIA AS

UNCONSTITUTIONAL.

3) TO GRANT ANY OTHER RELIEF WHICH THE HON’BLE COURT MAY DEEM
THINK FIT IN THE EYES OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is respectfully submitted and for such act of kindness the Petitioner shall be duty
bound as ever pray.

Sd/-

COUNSEL FOR THE PETITIONER

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