R-450 - Sample Memorial for moot court competition PDF

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2 nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020BEFORETHE HIGH COURT OF WAKANDA ,THE REPUBLIC OF GOTHAMFUNDAMENTAL LIBERTIES GROUP........................................... ( PETITIONER)VERSUSSTATE OF WAKANDA............ .................................................. ( RESPONDENT )MEMORIAL O...

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TEAM CODE R - 450

2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020

BEFORE THE HIGH COURT OF WAKANDA, THE REPUBLIC OF GOTHAM

FUNDAMENTAL LIBERTIES GROUP……………………………………. (PETITIONER) VERSUS STATE OF WAKANDA……………………………………………….……. ( RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020 TABLE OF CONTENTS INDEX OF ABBREVIATIONS INDEX OF AUTHORITIES STATEMENT OF JURISDICTION STATEMENT OF FACTS SUMMARY OF ARGUMENTS ARGUMENTS ADVANCED PRAYER

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020 STATEMENT OF ISSUES

1. Whether the petition filed by Fundamental Liberties Group (FLG) is maintainable in the Hon’ble High Court of Wakanda? A. Lack of Reasonable Ground. B. Policy Matter.

2. Whether the extension of the Green Wakanda Policy is constitutionally valid? A. Directive Principles of State Policy and Fundamental Duties. B. Reasonable Restrictions. C. Sustainable Development. D. Precautionary Principle and Polluter Pays Principle E. Health and Environment

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020

LIST OF ABBREIVATIONS

Abbreviation

Expansion

§

Section

&

And

Anr.

Another

Art/Art.

Article

AIR

All India Reporter

Cl.

Clause

SCC

Supreme Court Cases

HC

High Court

Ed.

Edition

Hon‟ble

Honourable

w.r.t

With respect to

i.e

That is

ILJ

Indian Law Journal

ILR

Indian Law Reports

In re.

In the matter of

Inter alia

Amongst other things

V./Vs

Versus

KarLJ

Karnataka Law Journal

Ors.

Others

Parimateria

On the same subject matter

r/w

Read with

SC

Supreme Court

SCR

Supreme Court Reports

Sub Judice

Under Judgement

U/A

Under Article

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020

INDEX OF AUTHORITIES I.CONSTITUTION OF INDIA 1) Art.19 2) Art.21 3) Art.37 4) Art.39(e) 5) Art.47 6) Art.48 7) Art.48-A 8) Art.51-A 9) Art.226 II.STATUTES AND CONVENTIONS 1. The Air (Prevention and Control of Pollution) Act, 1981: (14 of 1981) 2. The Environment (Protection) Act, 1986: (29 of 1986) 3. International Covenant on Economic, Social and Cultural Rights (16 Dec. 1966) 4. Convention on the Rights of the Child (New York, November 20, 1989) 5. ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (Geneva, June 27, 1989)

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020 6.

African Charter on Human and Peoples Rights, (Banjul June 26,

1991) 7.

The American Convention on Human Rights in the area of

Economic, Social and Cultural Right III.BOOKS REFERRED 1.S. Shantha Kumar- Introduction to Environmental Law. 2. V.N.Shukla‟s Constitution of India-Mahendra Pal Singh-Twelfth Edition,2016.. IV. CASES CITED •

V. Annaraja vs The Secretary to The Union of India WP. No. 3822 of 2019

•

Municipal Council, Ratlam v. Shri Vardhichand & Others, 1980 AIR 1632,1981 SCR(1) 97

•

R v. Paddington Valuation Officer, Ex Parte Peachey Property Corporation

•

Akhil Bharat Goseva Sangh v. State of A.P., (2006) 4 SCC 162.

•

State of Madhya Pradesh v. Narmada Bachao Andolan and Anr(2011) 7SCC 639

•

TEHRI BANDH VIRODHI SANGARSH SAMITI AND ORS v. STATE OF U.P AND ORS. 606 1992 SCC

•

Dahanu Taluka Environment Protection Group v.Bombay Suburban Electricity 1991 (1) UJ 578 SC

•

Narmada Bachao Andolan v. Union of India And Others [2000] 10 S.C.C. 664

•

MC Mehta v. U.O.I., AIR 1988 SC 1037

•

L. K. Koolwal v. State of RajasthanAIR 1988 Raj 2

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020 •

Shasthri Nagar Colony Welfare v. Calicut Development AuthorityAIR 2006 Ker 46

•

Chintaman Rao vs The State Of Madhya Pradesh1958 AIR 388

•

Collector of Customs v. Sampathu Chetty, AIR 1963 SC 316 (para 35).

•

Vellore Citizens Welfare Forum v. Union of India And orsAIR 1996 SC

2715: (1996) •

Indian Council for Enviro-Legal Action v. Union of India 1996 AIR

1446,1996 SCC (3)212 •

Rural Litigation And Entitlement Kendra Dehradun& ORS v.State of

UP And Ors 1985 AIR 652

V. ONLINE LEGAL DATABASE 1. www.manupatra.com 2. www.scconline.com 3. www.leagleagle.com 4. www.lexisnexis.com 5. www.indiankanoon.org

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020

STATEMENT OF JURISDICTION

IT IS HUMBLY SUBMITTED THAT THE PETITIONER HAS APPROACHED THE HONOURABLE HIGH COURT OF WAKANDA BY THE VIRTUE OF ARTICLE 226 OF THE CONSTITUTION OF REPUBLIC Of GOTHAM, 1950. THE RESPONDENT HUMBLY SEEKS TO REFUTE THE SAME

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020

SUMMARY OF FACTS THE EVER WORSENING AIR POLLUTION IN WAKANDA The Republic of Gotham is located in South East Asia. It is a densely populated country with a population of over 1.4 billion people. Wakanda is a state located in the Northern part of the Republic of Gotham. Over the past few years, there have been increasing reports of extremely dangerous air quality levels in Wakanda and the ever-worsening situation in Wakanda can be tracked to a number of reasons from which the most concerning issue was of vehicular pollution. THE GREEN WAKANDA POLICY The Wakanda State Government introduced the „Green Wakanda Policy‟ for the month of January 2020. The policy aimed to reduce vehicular pollution and thus, drastically improve the air quality of the state. The policy puts restrictions upon the number of days an individual may use their motor vehicle to commute, it states that an individual is only permitted to use their vehicle for 10 days in a month and any deviation from the same will lead to heavy fines. The policy encouraged the citizens of Wakanda to use environment friendly means of transport like bicycling, carpooling, using public transport etc. and only use their motor vehicles when absolutely necessary. The policy encourages all employers to facilitate work from home for employees who cannot avail such environment friendly means of transport. Those commuting from neighbouring states for work are also subject to this policy and may use their motor vehicles within state boundaries for only 10 days in a month. This move by the Wakanda State Government has provided for due exceptions for individuals involved in the procurement of essential goods and services (details in Annexure – B). The „Green Wakanda Policy‟ turned out to be a major success as pollution levels significantly dropped in January 2020. EXTENSION OF THE POLICY AFTER ITS RESOUNDING SUCEESS The Wakanda State Government released a report detailing the improvement in air quality level while comparing the Air Quality Index of January 2020 to January 2019 as given in Annexure – 9

2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020 A. Seeing the resounding results shown due to the „Green Wakanda Policy‟ initiative, the Wakanda Government decided to expand the application of the policy from one month to a period of two years or until further notice. The Chief Minister of Wakanda, Mr. Ned Stark announced the move for extension of the policy on 8 th February 2020 saying – “The Wakanda Government is extremely proud of the efforts of all citizens and government officials in making the Green Wakanda Policy so successful. However, the battle may be won but war is still to come; the month of January was a small step towards the betterment of Air Quality in the National Capital. Taking note of the astounding results of the policy, the government of Wakanda has decided to extend the application of the Green Wakanda Policy to a period of two years till January 2022 or until further notice. We expect all citizens of Wakanda to use environmental friendly means of transport and help eradicate pollution from our home. In order to facilitate the same, the Wakanda Government has made efforts to increase public transport facilities. We hope for utmost cooperation from our citizens and officials in winning this war against pollution.” POLARISED REACTIONS The announcement made by the Chief Minister of Wakanda on 8 th February created waves all across the country of Gotham. The reactions were rather polarised as the environmental lobby claimed the move as a masterstroke in curbing pollution in the National Capital whereas many stakeholders including industrialists and businessmen from the non-essential goods and services sector oppose the policy. The extension decision also resulted in many citizens protesting against the policy on the ground that it curbed fundamental liberties and thus could not stand in the longer run. However, the Wakanda Government refused to roll back the extension owing to environmental concerns. The Fundamental Liberties Group, a registered society working towards upholding fundamental liberties for the citizens filed a petition challenging the extension of the „Green Wakanda Policy‟ in the Wakanda High Court citing unfair curbs on the rights of the citizens of Wakanda

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020

SUMMARY OF ARGUMENTS Issue 1 Whether the petition filed by Fundamental Liberties Group (FLG) is maintainable in the Hon‟ble High Court of Wakanda? It is humbly submitted before the Hon‟ble Court that the petition filed by the Fundamental Liberties Group(FLP) which is a busy body, is a frivolous petition and doesn‟t have any reasonable ground for the petition to have locus standi. The extension of the Green Wakanda Policy by the Wakanda State Government is the Policy Decision of the government. Therefore the petition filed before this hon‟ble court is not maintainable.

Issue 2 Whether the extension of the Green Wakanda Policy is constitutionally valid? It is humbly submitted before the Hon‟ble Court that the extension announced of the Green Wakanda Policy by the Wakanda State Government is within the Reasonable Restrictions provided in the Constitution of the Republic of Gotham. It is further submitted that the Wakanda State Government has taken this step following the DPSP provided in the Constitution and also protecting the health of the individual which is a fundamental right as per Article 21 of the Constitution. Therefore, the Petition filed is Constitutionally invalid.

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020 ARGUMENTS ADVANCED Liberties Group (FLG) is not maintainable before this Court since the extension of the 'Green Wakanda Policy' doesn't violate It is humbly submitted before this Hon'ble High Court of Wakanda that the Petition filed by the Fundamental the rights of the citizen of Wakanda.

A.Lack of Reasonable Ground. A Public Interest Litigation under Article 226 of Constitution1 can be filed before this hon'ble court only if the constitutional or legal right of general public at large is violated2 but here there is no question of violation of any legal rights or constitutional rights of the citizen.The Chief Minister of Wakanda has extended the 'Green Wakanda Policy' as it was very successful in curbing the pollution in the capital in the month of January 2020.It has also been considered as a masterstroke by the environmental lobby3. Article 21 of the Constitution 4 guarantees a fundamental right to life- a life of dignity, to be lived in a proper environment, free of danger of disease and infection. We all are aware of the fact that there exists a close link between life and environment. The

right

to

life would

be

meaningless if there was no healthy environment. The judicial interpretation has made Right to live in a healthy environment as the sanctum sanctorum of Human Rights.The Supreme Court has also held hat pollution free environment is an integral part of right to life under Article 21 of the constitution5.Taking all this into consideration in the interest of the general public and for the welfare and health of the citizens the government has extended the 'Wakanda Green Policy'. Therefore the extension in no way curbs the fundamental liberties of the citizen. Lord Denning has observed that if a citizen wants to challenge a law, the citizen must first show that he or she is experiencing harm as a result of that law. This means that people cannot 1

Consti. V.Annaraja v. The Secretary To The Union Of India WP. NO.3822 of 2019 3 Fact Sheet Pata 4 4 Consti. 5 Municipal Council, Ratlam v. Shri Vardhichand & Others, 1980 AIR 1632 SCR(1) 97 2

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020 challenge laws just on the principle of the matter or because they think that those laws might harm other people. These individuals must also be able to show that when the case is filed, their interest is also affected by the law.The Court will listen to anyone whose interests are affected by what has been done6.In this case it can be said without any doubt that no harm has been caused to the petitioner or the people on behalf of whom this petition is filed. The counsel would like to highlight that this policy has already been experienced for a month and no person has been badly affected as of now. The Government of Wakanda State is also trying it's best to introduce various measures so that the citizen doesn't find difficulty in the restrictions.Anyway this policy was introduced for the welfare of citizens itself. Hence it is evident that the Fundamental Liberties Group(FLP) which is a busy body has filed the present frivolous petition without any reasonable ground and this Public Interest Litigation doesn't have locus Standi. B.Policy Matter. The present petition is a policy decision of the Government which is beyond the court's ambit to review. Policy decision of the Government cannot be interfered with or struck down merely on certain factual disputes in the matter. It is not open to the court to strike down such decision until and unless a serious and grave error is found on the part of the Central Government or the State Government7.Here there is no grave error which is found, therefore this hon'ble court has no Jurisdiction to review it. The Court cannot engage in an exercise of comparative analysis over the fairness, logical or scientific basis, or wisdom of a policy and it also cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical8.

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R V. Paddington Valuation Officer, Ex Parte Peachey Property Corporation Ltd(1996)1QB380 Akhil Bharat Goseva Sangh v State Of A. P. (2006) 4SCC1962 8 State of Madhya Pradesh v. Narmada Bachao Andolan & Anr(201)1) 7SCC639 7

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020 The counsel would like to point the fact that the policy has already been experimented in the month of January 2020 and a report submitted by the government clearly shows the policy a successful one as there is much improvement in the air quality level while comparing the Air Quality Index to January 20199.So there is no question of striking down the extension of policy. The Judges in the earlier decisions have emphasized that it is not the job of the Court to interfere in the development activities because they raised scientific and technical issues and policy matters, which are best left to the executive agencies. The counsel in order to substantiate the argument would like to state that the views expressed by judges in all environmental litigation concerning infrastructure projects have supported the government‟s assertion that it must carry out its development activities, in the national interest. In the Tehri Dam case, the government‟s own expert committee had identified several violations of the conditions that the MOE imposed on the project before granting an environmental clearance, but the majority judgment allowed the government to construct the dam anyway10. Similarly, in the Dahanu case, the Supreme Court did not follow the MoEF‟s Appraisal Committee report, which declared that Dahanu was unsuitable for the construction of a thermal power plant as it did not meet environmental guidelines11. In the Narmada Dam case, the dissent urged that construction of the dam should not be allowed because it violated environmental guidelines, and the government had not provided for rehabilitation and resettlement of the project-affected people. But the majority judgment allowed the construction of the dam and found the government‟s report on rehabilitation and resettlement measures sufficient12. Article 37 under Directive Principle Of State

Policy of the Constitution 13 provides:The

provisions contained in part IV shall not be enforceable by any court, but the principles 9

Fact Sheet Para 3 Tehri Bandh Virodhi Sangarsh Samiti And Ors v. State of UP and ORS 606 1992 SCC 11 Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity 1991(1) UJ 578SC 12 Narmada Bachao Andolan v. Union Of India & ORS(2000)10 SCC 664 13 Consti. 10

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2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION 2020 therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws. Therefore this policy decision of the Government has been extended by it by seeing all aspects and is in no way arbitrary in nature and it is beyond courts ambit to review it. 2.Whether the extension of the Green Wakanda Policy is constitutionally valid? It is humbly submitted before this Hon'ble High Court that the extension of the Green Wakanda Policy by the Wakanda State Government is not arbitrary in nature and is constitutionally valid. A.Directive Principles Of State Policy and Fundamental Duties. The preamble to our constitution provides

for

a

socialist

society

which

promotes

environmental protection.The Constitution imposes an obligation on the “state” as well as its “citizens” to protect as well as improve the environment. The Directive principles Of State Policy in the Constitution puts an obligation on the state to provide a basic human right to an individual to live in a pollution free environment with complete human dignity.The Fundamental Duties in the Constitution imposes duty

on all

citizens to protect the environment. Healthy environment is one of the essential elements of a welfare state. The Supreme Court has observed that Articles 39(e), 47 and 48-A under Directive Principle Of State Policy of Constitution by themselves and collectively cast a duty on the state to secure the health of the people or to, improve public health and to protect and improve the environment14. Article 39(e) of the Constitution 15 states that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength

14 15

MC Mehta v. Union Of India.,AIR 1988 SC 1037 Consti.

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