TEAM CODE: 06

IN THE HON’BLE SUPREME COURT OF ARESSIA, AT AHALI CITY,

ARESSIA

Writ, Original and Civil Appellate Jurisdiction

Civil Appeal No.___ of 2014

IN THE MATTER BETWEEN

Two Aressian States & Others ….Appellants

v.
Union Of Aressia ….Respondents

MEMORANDUM ON BEHALF OF THE RESPONDENTS

[This Memorandum has been prepared for Respondents: Union of Aressia.]
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TABLE OF CONTENTS

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

ABBREVIATIONS.........................................................................................................................3

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

CASES.........................................................................................................................................4

BOOKS........................................................................................................................................6

INTERNATIONAL TREATIES AND CONVENTIONS AND STATISTICAL RECORDS. .8

STATUES REFERRED..............................................................................................................8

STATEMENT OF JURISDICTION...............................................................................................9

STATEMENT OF FACTS............................................................................................................10

STATEMENT OF ISSUES...........................................................................................................12

SUMMARY OF ARGUMENTS...................................................................................................13

ARGUMENTS ADVANCED.......................................................................................................14

ISSUE ONE...............................................................................................................................14

ISSUE TWO..............................................................................................................................19

ISSUE THREE..........................................................................................................................23

ISSUE FOUR.............................................................................................................................28

PRAYER........................................................................................................................................33

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ABBREVIATIONS

¶ : Paragraph
ACLU : Aressian Civil Liberties Union
AIR : All India Reporter
ALR : Authority for Linking of Rivers
Art. : Article
CERA : Centre for Environment Rights and Advocacy
DPA : Democratic Progressive Alliance
EC : Environmental Clearance
EIA : Environmental Impact Assessment
EPA : Environment (Protection) Act, 1986
Factsheet : Statement of Facts, 7th HNMCC, 2014 Problem
FC : Forest Clearance
FCA : Forest (Conservation) Act, 1980
FER : Forum for Environmental Right
HLEC : High Level Expert Committee
Hon'ble : Honourable
ICCPR : International Covenant on Civil and Political Rights
MoEF : Ministry of Environment and Forest, Government of India
NGT : National Green Tribunal
PIL : Public Interest Litigation
SC : Supreme Court
SCC : Supreme Court Cases
UDHR : Universal Declaration of Human Rights

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INDEX OF AUTHORITIES

CASES

Alloy Steel rolling Mills v. West Bengal Pollution Control Board, AIR 2006 Cal 75 33
Amrit Banaspati Ltd v. Union of India, AIR 1995 SC 1340 at 1343 18
Atiabari Tea Co. v. State of Asam, AIR 1961 SC 232 : 1961 (1) SCR 809 23
Aushotosh Gupta v. State of Rajasthan, AIR 2002 SC 1533 26
Banvasi Seva Ashram v. State of Uttar Pradesh, 1987 AIR 374. 29
Bokaro v. State of Bihar, AIR 1963 SC 516 : 1962 (Supp-3) SCR 831 18
Bombay Dyeing and Manufacturing Co. Ltd v. Bombay Environmental Action Group, AIR 2006
SC 1489 27, 29
Bombay v. F.N. Balsara, AIR 1951 SC 318 18
Budhan v. State of Bihar, AIR 1970 SC 1453: (1969) 2 SCC 166. 25
Calcutta Gas Co. v. State of W.B., AIR 1962 SC 1044 (1047) : 1962 (Supp-3) SCR 1 18
Chairman, Railway Board and Others v. Chandrima Das (Mrs) and Others AIR 2000 SC 988 :
(2000) 2 SCC 465 19
Chaitanya Prakash vs. Board of Secondary Education, Rajasthan, Jaipur, AIR 1960 Raj 185
(187,188) (DB) 28
Charanjit lal Chowdhary v. Union of India, AIR 1951 SC 41 18
D.D. Suri v. Union of India, (1979) 3 SCC 553, 561-62 : AIR 1979 SC 1596, 1601-02 17
Dahanu Taluka Environment Protection Group v. Bombay Suburban Electrictiy Supply
Company Ltd (1991) 2 SCC 539 33
Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 18
Glass Catons Importers & Users’Association v. Union of India, (1962) 1 SCR 862 : AIR 1961
SC 1514. 16
Gopal Narain v. State of Uttar Pradesh, AIR 1964 SC 370 (375) 26
Hans Muller v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367 : (1955) 1 SCR 1284
21
Indian Council for Enviro-Legal Action v. Union of India, 1996 (5) SCC 281 29
Indian Metal and Metallurgical Corporation vs. Industrial Tribunal, Madras and Anr., 1994 (1)
Mad. L. J. REP. 481 26
Indian Metal and Metallurgical Corporation vs. Industrial Tribunal, Madras and Anr., AIR 1953
Mad 98 (101) (DB) 28
Ivory Traders and Manufacturer Association v. Union of India, AIR 1997 Del 267, p 293 29
Jagjit Singh v. State of Hyderabad, AIR 1954 Hyd 28 26
Jonnala v. State of A.P., AIR 1971 SC 1507 : (1971) 2 SCC 163 (para. 9) 19
Kangshari v. State of W.B., 1960 SC 457(484): (1960) 2 SCR 646 25
Kannan D.H.P. Co. v. State of Kerala, AIR 1972 SC 2301 23
Karnataka Bank Ltd. v. State of Andhra Pradesh, (2008) 2 SCC 254 : (2008) 1 SCALE 660 21

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Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 Cri LJ 3139 23
Kedar Nath v. State of W.B. 1954 SCR 30 25
Krishna Bhimrao Deshpande v. Land tribunal, AIR 1993 SC 883 23
Laxmi Khandsari v. State of Uttar Pradesh, 1981 SC 873, 891: (1981) 2 SCC 600 25 lo o
Liberty Oil Mills & Others v. Union of India & Others, 1984 AIR 1271 : 1984 SCR (3) 676 16
Liberty Oil Mills v. Union of India (1984) 3 SCC 465, 478 : AIR 1984 SC 1271, 1279 16
M. C. Mehta v. Union of India, AIR 1988 SC 1037 29
M.C. Mehta vs. Union of India (UOI) and Ors. ,AIR 2002 SC 1696 27
Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942 18
Maharashtra Board of Secondary & Higher Secondary Education v. Paritosh AIR 1984 SC
1543 : (1984) 4 SCC 27 15
Maharashtra State Board of Secondary & Higher Secondary Education v. Paritosh, (1984) 4 SCC
27, 42-43, 50-21 : AIR 1984 SC 1543, 1551-52, 1556-57 : (1985) 1 SCR 9 17
N. D. Jayal v. Union of India, AIR 2004 SC 867 (Supp), p 878; 2007 (6) MLJ 813. 29
Nagaraj v. State of Karnataka, AIR 1977 SC 876 : (1977) 2 SCC 148 (para. 7); 19
Narmada Bachao Andolan Etc v. Union of India and Others AIR 2000 SC 3751 15
Narmada Bachao Andolan Etc v. Union of India and Others, AIR 2000 SC 3751 15
Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751 28, 31
Navinchandra Mafatlal v. Commr. Of Income-tax, Bombay, AIR 1955 SC 58 : (1955) 1 SCR
829 21
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. 28
P.N. Krishna Lal v. Govt. of Kerala, (1995) Supp (2) SCC 187 23
Premchand Jain v. R.K. Chhabra, AIR 1984 SC 981 : (1984) 2 SCC 302 20, 23
Ram Sarup v. UOI AIR 1965 SC 247(252): (1964) SCR 931 25
Sachiadanand Pandey v. West Bengal, AIR 1987 SC 1109 33
Satpal & Co. v. Lt. Governor of Delhi, AIR 1979 SC 1950 22
Shri Sitaram Sugar Co. Ltd. v. Union of India (1990) 3 SCC 223 : AIR 1990 SC 1277 17
Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277 : (1990) 3 SCC 223 15
Sita Ram v. State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 251 23
Southern Pharmaceutical ltd. V. State of Bihar, AIR 1983 SC 1019 : (1983) 4 SCC 45 23
State of Andhra Pradesh v. McDowell & Co., AIR 1996 SC 1628 at 1641 18
State of Bombay v. Narottamdas, AIR 1951 SC 69, 96 : 1951 SCR 51 23
State of Karnataka v. State of A.P, (2000) 9 SCC 572 30
State of Madhya Pradesh v. Gopal D. Tirthani, AIR 2003 SC 2952 (2064) 27
State of Maharashtra v. Lok Siksha Sanstha, AIR 1973 SC 588 : (1971) 2 SCC 410 : 1971 Supp
SCR 879 15
State of Maharashtra v. Lok Siksha Sanstha, AIR 1973 SC 588 : (1971) 2 SCC 410 : 1971 Supp
SCR 879 at p. 415(SCC) : 592 (AIR) 17
State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685 18

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State of Rajasthan v. Vatan medical & General Store, AIR 2001 SC 1937 : (2001) 4 SCC 642 23
Suman Gupta v. State of J&K, (1983) 4 SCC 339, 344 : AIR 1983 SC 1235, 1238 17
Susetha v. state of Tamil Nadu, AIR 2006 SC 2893 p. 2896 29
Sushma Sharma v. State of Rajasthan, 1985 Supp SCC 45, 59 : AIR 1958 SC 11367, 1374-75 17
T. Damodar Rao v. The Speacial Officer, Municipal Corporation of Hyderabad, AIR 1987 AP
171 29
T.B. Ibrahim vs. Regional Transport Authority, Tanjore, AIR 1953 SC 79 (82) 28
Tarun Bharat Singh, Alwar v. Union of India, 1993 Supp (3) SCC 115 29
The Chairman, Railway Board and Ors. v. Mrs. Chandrima Das and Ors. 2000 SC 988 26
Ugar Sugar Works Ltd. v. Delhi Administration (2001) 3 SCC 635 : AIR 2001 SC 1447 16
Union of India v. H.S. Dhillon, 1972 AIR 1061 21
Union of India v. Shah Goverdhan L. Kabra Teachers College, (2002) 7 SCALE 435. 23
Vidharbha Sikshan Vyawashapak Sahasangh v. State of Maharashtra, (1986) 4 SCC 361 : AIR
11987 SC 135 17
Welfare Assn. ARP v. Ranjit P. Gohil, (2003) 9 SCC 358 : AIR 2003 SC 1266 21

BOOKS

1. MP JAIN, INDIAN CONSTITUTIONAL LAW, (6th Ed, LexisNexis Butterworth Wadhwa,

2010)
2. 1-4 P RAMANATHA AIYAR, ADVANCED LAW LEXICON, (YV Chandrachud, 3rd Ed,
LexisNexis Butterworth Wadhwa, 2009)
3. 13 MANOHAR & CHITALEY, AIR MANUAL – CIVIL AND CRIMINAL, (6th Ed, All India
Reporter Pvt. Ltd. Nagapur, 2004)
4. SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY, (2nd Ed,
Oxford University Press, 2012)
5. DR. H.N. TIWARI, ENVIRONMENTAL LAW, (3rd Ed, Allahabad Law Agency, 2010)
6. DR. S.C. TRIPATHI & MRS. VIBHA ARORA, ENVIRONMENTAL LAW, (5th Ed, Central Law
Publications, 2013)
7. [Link] & [Link], INTERNATIONAL LAW AND THE ENVIRONMENT, (2nd Ed,
Oxford University Press, 2004)
8. P LEELAKRISHNAN, ENVIRONMENTAL LAW IN INDIA, (3rd Ed, Lexis Nexis Butterworth
Wadhwa, Nagpur, 2010)

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9. JUSTINE THORNTON, M.A. (CANTAB.) & SILAS BECKWITH, LL.B (LOND.), SWEET
&MAXWELL’S TEXTBOOK SERIES ENVIRONMENTAL LAW,(2nd Ed, Sweet &Maxwell,
2004)
10. P LEELAKRISHNAN, ENVIRONMENTAL LAW CASE BOOK, (2nd Ed, Lexis Nexis
Butterworth Wadhwa, Nagpur, 2010)
11. 1-2 ALPANA PODDER, LAL’S ENCYCLOPEDIA ON ENVIRONMENTAL PROTECTION AND
POLLUTION LAWS, (5th Ed, Delhi Law House, 2013)
12. DR. G. INDIRA PRIYA DARSINI & PROF. K. UMA DEVI, ENVIRONMENTAL LAW AND
SUSTAINABLE DEVELOPMENT, (Regal Publications, 2010)
13. A. VAIDYANATHAN, OXFORD INDIA SHORT INTRODUCTIONS, (1st Ed, Oxford University
Press, 2013)
14. DR. RATHIN BANDOPADHYAY & DR. RAJENDRA DHAR DUBEY, AN INTRODUCTION TO
ENVIRONMENTAL RIGHTS , (1st Ed, Central Law Publications, 2010)
15. INDRAJIT DUBE, ENVIRONMENTAL JURISPRUDENCE POLLUTER’S LIABILITY, (Lexis Nexis
Butterworths, 2007)
16. [Link], HANDBOOK OF ENVIRONMENTAL DECISION MAKING IN INDIA AN
EIA MODEL, (1st Ed, Oxford University Press, 2009)
17. PHILIPPE SANDS,& JACQUELINE PEEL WITH ADRIANA FABRA & RUTH MACKENZIE,
PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, (3rd Ed. Cambridge University
Press, 2012)
18. 1-4 M.V. PYLEE, CONSTITUTIONAL AMENDMENTS IN INDIA, (3rd Ed. Universal Law
Publishing House Co. Pvt. Ltd.,2010 )
19. 1-3 JUSTICE SUJATA V. MANOHAR, T.K. TOPE’S CONSTITUTIONAL LAW OF INDIA, (3rd
Ed. Eastern Book Company, 2010)
20. 1-4 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA A CRITICAL COMMENTARY, (4th Ed.
Universal Law Publishing Co. Pvt. Ltd., 2010)
21. DHARMENDRA S. SENGAR, ENVIRONMENTAL LAW (PHI Learning Private Limited,2012)
22. ZAFAR MAHFOOZ MOMANI, ENVIRONMENT IMPACT ASSESSMENT LAWS, (Satyam Law
International, 2010)
23. 1-3 JAGDISH SWARUP & DR. L.M. SINGHVI, CONSTITUTION OF INDIA (3rd [Link]
Reuters South Asia Private Limited, 2013)

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24. 1-10 ACHARYA DR. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,
(11th Ed. , Lexis Nexis Butterworth Wadhwa, Nagpur, 2009)
25. 1-3 ARVIND [Link], DATAR COMMENTARY ON THE CONSTITUTION OF INDIA, (2nd Ed. ,
Lexis Nexis Butterworth Wadhwa, Nagpur, 2010)
26. P.J. FITZGERALD, SALMOND ON JURISPRUDENCE, (12th Ed. Universal Law Publishing Co.
Pvt. Ltd., 2010)

INTERNATIONAL TREATIES AND CONVENTIONS AND STATISTICAL RECORDS

1. United Nations Charter, 1945

2. Stockholm Declaration, 1972
3. Rio Declaration, 1992
4. Universal Declaration of Human Rights, 10 December 1948, 217 A (III)
5. International Covenant on Civil and Political Rights, 16 December 1966, 2200 A (XXI)

STATUES REFERRED

1. Constitution of India, 1950

2. Environment (Protection) Act, 1986
3. Forest (Conservation) Act, 1980
4. Indian Forest Act, 1927
5. Northern India Canal and Drainage Act, 1973
6. The (English) Public Health (Control of Disease) Act, 1984

IMPORTANT DEFINITIONS
‘Petitioners’ for the purposes of this memorandum in the first issue shall stand for ‘Forum For
Environmental Right’, in the second issue shall stand for ‘State of Adhala and Pamala’, in the
third issue shall stand for ‘Save the Farmers Forum’, in the fourth issue shall stand for ‘Centre
For Environmental Rights’.
‘Respondent’ for the purposes of this memorandum stands for ‘The Union of India’.

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Aressia has inherent jurisdiction to try, entertain and dispose of
the present case by virtue of Article 131, 32 and 136 of The Constitution of India, 1950. Also
under S. 22 of National Green Tribunal Act, 2010 read with S. 100 of the Code of Civil
Procedure, 1908 the Supreme Court is empowered to hear appeal on those cases that are
adjudged by the National Green Tribunal.

Further Rule 5 Order XLVII of the Supreme Court Rules, 1966 1 allows the Supreme Court to
hear all the Petitions together.

1Rule 5 Order XLVII of the Supreme Court Rules, 1966 reads as : Where there are two or more appeals arising out
of the same matter, the Court may at any time either on its own motion or on the application of any party, order that
the appeals be consolidated.

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STATEMENT OF FACTS

PART-I

1. Aressia, a South Asian Country is a union of 26 states, with land of many small and big rivers
(including trans-boundary rivers) and is having a written Constitution and a federal government
with strong centralizing tendency. The main economic activity in the country is Agriculture but
due to shortage of water it is being significantly affected for the past two decades.

PART-II

2. Aressian Civil Liberties Union (ACLU), a NGO, filed a writ petition before the Hon’ble
Supreme Court of Aressia highlighting the shortage of water. The Hon’ble Supreme Court
disposed the said petition by providing directions to the Government of Aressia to constitute two
committees. On the direction of Apex Court, Central Government constituted two committees
namely ‘High Level Expert Committee’ and ‘Environment Impact Assessment Committee’. The
detailed report given by HLEC suggested and identified that certain rivers can be linked in the
country and EIA committee also identified various environmental and social impacts however it
approved the project cautioning the Government to take precautionary measures.

PART-III

3. In August, 2010 a Central Legislation ‘the Linking of Rivers Act, 2010’ was enacted. The
Centre is given all such powers as necessary to ensure availability of water and linking of rivers
vide S. 3 of the Act and also the power to constitute an appropriate authority to fulfill such
functions. In furtherance of the aforesaid sections the Central Government constituted an
‘Authority for Linking of Rivers’(ALR). However this project was criticized by several State
governments as well as NGOs. The Government decided not to implement the project
immediately. In April, 2011 there was a change in government. Due to huge financial cost
involved the Government decided to implement the project in phases. In February, 2012 ALR
published the first phase-list (the list) of rivers which then were exclusively belonging to the
State but after the enforcement of the Act.

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PART –IV

4. In March, 2012 the State of Adhali and the State of Parmala have objected the move of ALR
and jointly approached the Hon’ble Supreme Court of Aressia by challenging it is an
encroachment by Centre over State’s power and thus the Section 3 of the said Act is ultra vires
the Constitution.

5. In an apprehension that Wetlands would be damaged the State of Vindhya requested the CG
for the exclusion of itself from the said Act. The CG had directed ALR to do the same. The first
phase of the proposed project identified 12 rivers of State of Vindhya that were to be linked; out
of which 8 were to be linked to State of Normanda which was facing acute scarcity of water.
Protesting the exclusion, the farmers of both the states, formed an organization, ‘Save the
Farmers Forum’ (SFF) and approached the Apex Court of the Country under Article 32 of the
Constitution of Aressia.

6. One of the rivers included in the list was ‘Bhargavi’ which is a trans-boundary river, flowing
from State of Neruda to Boressia. In April 2013, the MoAF of Boressia requested Union of
Aressia to exclude river Bhargavi from the first phase of the project. However, considering the
prospective benefits for such an inclusion the CG did not change its decision. The Forum for
Environmental Right (FER) approached the Hon’ble High Court of Neruda for challenging the
inclusion of river Bhargavi on the ground that it is violative of Fundamental Rights of people of
Boressia. The Govt. of Aressia challenged the maintainability of FER’s petition and the Hon’ble
High Court of Neruda dismissed the petition filed by FER Aggrieved by this FER has
approached the Apex Court of Aressia on 2nd March, 2014.

7. In March, 2014 a news channel, ‘Daily News’ had telecasted an interview with four members
of EIA committee constituted by the Central Government who disclosed that enforcement of the
Act would result in Environmental Degradation and also confessed that because of political
pressure they had submitted a favorable EIA report. CERA, approached NGT for challenging the
validity of the aforesaid Act. However, on 4th July 2014 the NGT had dismissed CERA’s
petition. Aggrieved by this, on 5 th August, 2014 CERA has appealed to Apex Court of the
country. The Hon’ble Supreme Court of Aressia for the sake of convenience decided to hear all
the Petitions together.

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STATEMENT OF ISSUES

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ISSUE 1: Whether the petition filed by Forum for Environmental Right (FER) is maintainable
before the High Court of Neruda?

ISSUE 2: Whether Section 3 of the Linking of Rivers Act, 2010 is ultra vires to the Constitution
of Aressia?

ISSUE 3: Whether, 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?

ISSUE 4: Whether the Linking of Rivers Act, 2010 violates the environmental rights of citizens
of Aressia and the provisions of the Forest (Conservation) Act, 1980?

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SUMMARY OF ARGUMENTS

ISSUE ONE: THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT (FER) IS NOT
MAINTAINABLE.

The petition filed by FER is not maintainable in the High Court of Neruda as Firstly, whether to
link of not to link a particular river is purely a policy decision and the Court cannot sit on
judgment upon the wisdom of the policy. Secondly, all relevant considerations were taken before
such policy was enacted and thirdly, the Petitioners do not have any enforceable fundamental or
legal right to invoke the jurisdiction of the High Court.

ISSUE TWO: SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS NOT ULTRA VIRES TO THE
CONSTITUTION OF ARESSIA.

The Union has competence in enacting the Linking of Rivers Act as firstly, the subject matter of
the Act fall in the Union List particularly Entry 56 read with Entry 97 of List I. Secondly, the
matter is of economic and social importance vide Entry 20 of Concurrent List which requires
planning and implementation at a national stage. Thus the impugned section is not ultra vires the
Constitution of Aressia.

ISSUE THREE: THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING OF RIVER PROJECT

FOR THE STATE OF VINDHYA IS NOT VIOLATIVE OF FUNDAMENTAL RIGHTS OF PEOPLE OF
STATE OF VINDHYA AND STATE OF NORMANDA.

The exclusion of State of Vindhya was necessary to protect the environment and also to abide by
the international obligations. The exclusion was not arbitrary or unreasonable as the same was
made after due assessment and as such the exclusion is not violative of Art. 14, 19 and 21.

ISSUE FOUR: THE LINKING OF RIVERS ACT, 2010 DOES NOT VIOLATE THE ENVIRONMENTAL
RIGHTS OF CITIZENS OF ARESSIA AND THE PROVISIONS OF THE FOREST (CONSERVATION)
ACT.

The impugned Act is in furtherance of providing water to the citizens of Aressia which is their
fundamental right and all due assessments with regard to environment was taken before the Act
was enacted and as such the impugned legislation is legal and constitutionally valid.
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ARGUMENTS ADVANCED

ISSUE ONE

WHETHER THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT

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

(¶1.) It is humbly contended before the Hon’ble Court that the writ petition filed by Forum for
Environmental Right [Hereinafter referred to as “FER”] in High Court of Neruda [Hereinafter
referred to as “HC”] is not maintainable. Firstly, linking of river Bhargavi with other rivers in
Aressia is a pure Policy Decision [A] and secondly, no fundamental or legal right was infringed
by the Policy Decision [B] and therefore the writ will not be maintainable on these regards.

A. COURTS CANNOT SIT IN JUDGMENT OVER THE WISDOM OF POLICY

(¶2.) It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress
into the field of policy decision.2 The question of policy is essentially for the State3 and such
matters do not ordinarily attract the power of judicial review. 4 In the case of Maharashtra Board
of Secondary & Higher Secondary Education v. Paritosh, 5 the Supreme Court held that, a court
cannot sit in judgment over the wisdom of the policy evolved by the legislature and the
subordinate regulation-making body.6

Linking of river Bhargavi is a Policy Decision

(¶3.) The Respondent relies upon the decision of the Apex Court in the case of Narmada
Bachao Andolan Etc v. Union of India and Others,7 wherein the court, while observing that
Establishment of large dam is a Policy Decision, held that ‘whether to have an infrastructural

2 Narmada Bachao Andolan v. Union of India and Others, AIR 2000 SC 3751
3 State of Maharashtra v. Lok Siksha Sanstha, AIR 1973 SC 588 : (1971) 2 SCC 410 : 1971 Supp SCR 879
4 Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277 : (1990) 3 SCC 223
5 Maharashtra Board of Secondary & Higher Secondary Education v. Paritosh AIR 1984 SC 1543 : (1984) 4 SCC
27
6 Id., at p. 1551 – 52 (AIR) : 42 (SCC)
7 Narmada Bachao Andolan Etc v. Union of India and Others AIR 2000 SC 3751
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project or not and what is the type of project to be undertaken and how it has to be executed, are
part of policy making process and the Courts are ill equipped to adjudicate on a policy decision
so undertaken.’8 In light of the aforementioned reasoning it is contended that the governmental
decision of linking river Bhargavi with other rivers in Aressia would classify to be a Policy
Decision.

The courts are ill equipped to decide on the appropriateness of a policy

(¶4.) In Ugar Sugar Works Ltd. v. Delhi Administration,9 the Apex Court adverted to the rule of
self-imposed restraint that there are good reasons for judicial restraint, if not judicial deference,
to judgment of the executive. It was observed in this case that, “the courts are not expected to
express their opinion as to whether at a particular point of time or in a particular situation any
such policy should have been adopted or not. It is best left to the discretion of the State.” 10
Further, while dismissing a petition challenging the validity of a particular import policy on the
grounds of Policy Decision the Supreme Court in the case of Liberty Oil Mills v. Union of
India,11 held that, “Obviously, Courts do not possess the expertise and are consequently
incompetent to pass judgment on the appropriateness or the adequacy of a particular import
policy.”

(¶5.) Extending the ration of Liberty Oil Mills12 ratio in the case of Delhi Science Forum v.
Union of India, the Supreme Court, while dismissing a petition which challenged the inclusion of
private companies in telecommunication industry, held that “what has been said in respect of
legislations is applicable even in respect of policies which have been adopted by Parliament.
They cannot be tested in Court of Law…. What should be the role of the State in the economic
development of the nation? How the resources of the country shall be used? How the goals fixed
shall be attained?... All these questions have to be answered by a vigilant Parliament… This
court cannot review and examine as to whether the said policy should have been adopted.”

8 Id., at para 293

9 Ugar Sugar Works Ltd. v. Delhi Administration (2001) 3 SCC 635 : AIR 2001 SC 1447
10 Id., at p. 643 (SCC) : 1452 (AIR)
11 Liberty Oil Mills v. Union of India (1984) 3 SCC 465, 478 : AIR 1984 SC 1271, 1279; see also Glass Catons
Importers & Users’Association v. Union of India, (1962) 1 SCR 862 : AIR 1961 SC 1514.
12 Liberty Oil Mills & Others v. Union of India & Others, 1984 AIR 1271 : 1984 SCR (3) 676
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All relevant factors are assessed before the Policy has been decided

(¶6.) A Policy Decision depends upon an overall assessment and summary of the requirements
of residents of a particular locality and other categories of persons for whom it is essential to
provide facilities for education. If the overall assessment is arrived at after a proper classification
on reasonable basis, it is not for the courts to interfere with the policy leading up to such
assessment.13 In the instant case all relevant assessment were taken up by the Government before
going ahead with the Linking of Rivers Project. An Environment Impact Assessment Committee
[Hereinafter referred to as “EIA Committee”] was constituted in order to conduct an
Environment Impact Assessment pertaining to linking of rivers 14 and consequently the said EIA
Committee has approved the Linking of rivers projects. 15 The Government has also considered
the prospective benefits of inclusion of river Bhargavi in first phase of Linking of River Project
and only then it decided to go ahead with the project without any change. 16 All this has been
done by the Government to ensure the availability of sufficient water 17 as the country of Aressia
is witnessing failure of agriculture due to shortage of water. 18 Thus, as an overall assessment of
relevant factors has been taken up before reaching to a particular policy i.e. the decision of
linking river Bhargavi.

The Policy is in furtherance of Public Interest and Object of the Act

(¶7.) It is humbly submitted that the Policy decision of linking river Bhargavi is in furtherance
of Public Interest and Object of the Act. In the case of Shri Sitaram Sugar Co. Ltd. v. Union of
India,19 a challenge against a policy decision was dismissed by observing that, “what is best for
the sugar industry and in what manner the policy should be formulated and implemented, bearing

13 State of Maharashtra v. Lok Siksha Sanstha, AIR 1973 SC 588 : (1971) 2 SCC 410 : 1971 Supp SCR 879 at p.
415(SCC) : 592 (AIR); See Also D.D. Suri v. Union of India, (1979) 3 SCC 553, 561-62 : AIR 1979 SC 1596, 1601-
02; Suman Gupta v. State of J&K, (1983) 4 SCC 339, 344 : AIR 1983 SC 1235, 1238; Maharashtra State Board of
Secondary & Higher Secondary Education v. Paritosh, (1984) 4 SCC 27, 42-43, 50-21 : AIR 1984 SC 1543, 1551-
52, 1556-57 : (1985) 1 SCR 9; Sushma Sharma v. State of Rajasthan, 1985 Supp SCC 45, 59 : AIR 1958 SC 11367,
1374-75; Vidharbha Sikshan Vyawashapak Sahasangh v. State of Maharashtra, (1986) 4 SCC 361 : AIR 11987 SC
135
14 Fact Sheet, para 4
15 Id., para 5
16 Id., para 13
17 Id., para 8
18 Id., para 1
19 Shri Sitaram Sugar Co. Ltd. v. Union of India (1990) 3 SCC 223 : AIR 1990 SC 1277
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in mind the fundamental object of the statue, viz., supply and equitable distribution of essential
commodities at fair prices in the best interest of the general public, is a matter for decision
exclusively within the province of the Central Government. Such matters do not ordinarily attract
the power of judicial review.”20 Placing reliance on the aforementioned case it is humbly
submitted that the Object of the Linking of Rivers Act as is reflected in Section 3 of the Act is to
ensure availability and accessibility of water in the best interest of public and it is in furtherance
of such objective and public interest that river Bhargavi is being linked with other rivers in
Aressia. Such decision of linking river Bhargavi in the first phase of the project is a decision
exclusively within the province of the Central Government and thus wouldn’t attract judicial
review.

B. NO FUNDAMENTAL RIGHT IS INFRINGED DUE TO THE POLICY DECISION

Presumption of Constitutionality

(¶8.) The Legislature composed as it is of the elected representatives of the people is presumed
to know and be aware of the needs of the people and what is good or bad for them and that a
Court cannot sit in judgment over the wisdom of the Legislature. 21 Therefore usually the
presumption is in favour of the Constitutionality of the statue and the onus to prove that it is
unconstitutional lies upon the person who is challenging it. 22 The allegations regarding the
violation of a constitutional provision should be specific, clear and unambiguous and it is for the
person who impeaches the law as violative of the constitutional guarantee to show that the
provision is infirm for the reasons stated by him.23

Existence of Right is the foundation of the petition under Article 226

20 Id., at p. 256 (SCC) : 1299 (AIR)

21 State of Andhra Pradesh v. McDowell & Co., AIR 1996 SC 1628 at 1641
22 Charanjit lal Chowdhary v. Union of India, AIR 1951 SC 41; Bombay v. F.N. Balsara, AIR 1951 SC 318;
Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942; Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR
1991 SC 101
23 Amrit Banaspati Ltd v. Union of India, AIR 1995 SC 1340 at 1343
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(¶9.) The existence of right is the foundation of the petition under Article 226. 24 The right
alleged may be a fundamental right 25 or an ordinary legal right.26 Hence the person who
complains of the infringement of a fundamental right must show that the alleged fundamental
right belongs to him.27 A person, who does not belong to the class of persons to whom a law or
Rule applies, cannot challenge its constitutionality.28

(¶10.) Reliance is placed on the case of Chairman, Railway Board and Others v. Chandrima
Das (Mrs) and Others,29 On this principle, even those who are not citizens of this country and
come here merely as tourists or in any other capacity will be entitled to the protection of their
lives in accordance with the Constitutional provisions. They also have a right to life in this
country. Thus, they also have the right to live, so long as they are here, with human dignity. Just
as the State is under an obligation to protect the life of every citizen in this country, so also the
State is under an obligation to protect the life of the persons who are not citizens. (Emphasis
supplied).

(¶11.) Further, the Respondents as per Article 74 of the United Nations Charter took part in
consultation with the Ministry of Environment of the Boressia much before the project has been
implemented. It was only after the negotiations were complete and after all relevant assessments
were made that the Union decided to go ahead with the Project. Hence no international
obligations were violated by the Respondent in the instant case by linking river Bhargavi.

In the light of the aforementioned reasons, it is humbly submitted that petition filed by FER in
the High Court of Neruda is not maintainable

24 State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685

25 Bokaro v. State of Bihar, AIR 1963 SC 516 : 1962 (Supp-3) SCR 831
26 Calcutta Gas Co. v. State of W.B., AIR 1962 SC 1044 (1047) : 1962 (Supp-3) SCR 1
27 6 ACHARYA DR. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 6735 (8th Ed., 2007)
28 Nagaraj v. State of Karnataka, AIR 1977 SC 876 : (1977) 2 SCC 148 (para. 7); Jonnala v. State of A.P., AIR
1971 SC 1507 : (1971) 2 SCC 163 (para. 9)
29 Chairman, Railway Board and Others v. Chandrima Das (Mrs) and Others AIR 2000 SC 988 : (2000) 2 SCC 465
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ISSUE TWO

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

CONSTITUTION OF ARESSIA

(¶12.) The counsel on behalf of the Union humbly submits that S. 3 of the Linking of Rivers
Act, 2010 (Hereinafter referred as “Act”) is within the legislative competence of the Union as the
subject matter of the Act fall under the Union List and Concurrent List and thus is not ultra vires
to the Constitution of Aressia.

THE SUBJECT MATTER OF THE ACT FALL UNDER THE UNION LIST AND CONCURRENT LIST

(¶13.) In order to ensure availability and accessibility of water and linking of rivers the Union
has enacted the Linking of Rivers Act, 2012. It is humbly submitted that the pith and substance
or the subject matter of the Act is ‘networking of rivers all over the country’ (i). Further the said
subject matter falls under the Union List and the Concurrent List (ii).

The pith and substance of the Act is ‘Networking of rivers all over the country’

(¶14.) Before the legislation with respect to a subject in one List, and touching also on a subject
in another List, is declared to be bad, the Courts apply the rule of pith and substance. 30 To
adjudge whether any particular enactment is within the purview of one legislature or the other, it
is the pith and substance of the legislation in question that has to be looked into. 31 This rule
envisages that the legislation as a whole be examined to ascertain its ‘true nature and character’
in order to determine to what entry in which List it relates. 32 To ascertain the true character of the
legislation in question, one must have regard to it as a whole, to its objects and to the scope and
effect of its provisions.

(¶15.) The Linking of Rivers Act came into picture at a time when Aressia is facing shortage of
water which in turn affected the agriculture and ultimately the economy of Aressia. Failure in

30 Premchand Jain v. R.K. Chhabra, AIR 1984 SC 981 : (1984) 2 SCC 302
31 MP JAIN, INDIAN CONSTITUTIONAL LAW, 591 (6th Ed, LexisNexis Butterworth Wadhwa, 2010)
32 Id.
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agriculture lead to bankruptcy of hundreds of farmers all over the country and many of them
committed suicide. Many areas in western and eastern regions of Aressia faced water scarcity
and sufficient drinking water wasn’t available. Finding that Linking of Rivers can mitigate the
problem of water shortage in the country the Government, after duly assessing the environmental
impact of such linking of rivers, the Union enacted the Linking of Rivers Act, 2010.

(¶16.) The object of the act as reflected in S. 3 is to ensure availability and accessibility of water
and linking of rivers. The scope of the act is further evident in S. 3 wherein it declares that the
Central Government shall have the power to take all such measure as it deems necessary or
expedient for the purpose of ensuring availability and accessibility of water and linking of rivers
all over the country. Therefore, the true nature of the Linking of Rivers Act is to develop a
networking of rivers which in turn would help in making water accessible to all and hence the
subject matter of the Act is ‘networking of rivers’.

The subject matter of the Act falls under the Union List and the Concurrent List

(¶17.) A succinct appraisal of the relevant provisions of the Constitution reveals that the Union
has competence in enacting the Linking of Rivers Act. Firstly, Art. 246(1) confers on Parliament
an ‘exclusive power’ to make laws with respect to any of the matters in the Union List. The
entries in this List are such as need a uniform law for the whole country. 33 Entry 56 of Union List
reads as, “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.”

(¶18.) It is an accepted principle that Parliament can supplement any of its power under any
entry in List I and III with its residuary power. 34 It is also a well-recognized principle that entries
in the lists have to be given ‘widest amplitude’ 35 and ‘most liberal’ construction36 has to be put
on each entry. Art. 248 (1) says that “Parliament has exclusive power to make any law with
respect to any matter not enumerated in the Concurrent List of State List.” The Union vide Art.

33 MP JAIN, INDIAN CONSTITUTIONAL LAW, 532

34 Union of India v. H.S. Dhillon, 1972 AIR 1061
35 Karnataka Bank Ltd. v. State of Andhra Pradesh, (2008) 2 SCC 254 : (2008) 1 SCALE 660
36 Hans Muller v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367 : (1955) 1 SCR 1284; Navinchandra
Mafatlal v. Commr. Of Income-tax, Bombay, AIR 1955 SC 58 : (1955) 1 SCR 829; See also Welfare Assn. ARP v.
Ranjit P. Gohil, (2003) 9 SCC 358 : AIR 2003 SC 1266

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248 (1) gets the power to legislate on residuary powers. The field to legislate on residuary
matters is present in Entry 97 of List I which runs as “Any other matter not enumerated in List II
and List III including matter not enumerated in the Concurrent List or State List.”

(¶19.) Complex modern governmental administration in a federal set-up providing distribution

of legislative powers coupled with power of judicial review may raise such situations that a
subject of legislation may not squarely fall in any specific entry in List I or List III.
Simultaneously, on correct appraisal it may not be covered by any entry in List II, though on a
superficial view it may be covered by an Entry in List II. In such a situation, Parliament would
have power to legislate on the subject in the exercise of residuary power under entry 97, List I,
and it would not be proper to unduly circumscribe, corrode or whittle down this power by saying
that the subject of legislation was present to the mind of framers of the constitution because
apparently it falls in one of the entries in List II, and thereby deny power to legislate under entry
97.37 The Supreme Court has refused to accept any such limitation on the residuary power saying
that it is not proper to unduly circumscribe, erode or whittle down the residuary by a process of
interpretation as new developments may demand new laws not covered by any of the three Lists
and these Lists cannot be regarded as exhaustive of governmental action and activity. 38

(¶20.) In the case of Dillion the majority took a more expansive view of the residuary power of
the Centre. They took a view that Art. 248 was framed in the “widest possible terms” and so the
scope of residuary power was vast. A matter not included in List II or in List III falls within the
residuary field. No question need be asked whether the matter falls under List I or not. If the
subject-matter does not fall in List II or List III, Parliament has power to legislate on it.

(¶21.) There is no entry in the State List regarding Networking of rivers and States can only deal
with water within its territory.39 It is humbly submitted that accessibility of water can be
provided only when the rivers across the country can be linked which is beyond the competence
of a State to do so. There is no provision in the State List and as Residuary powers of the Union
List can be used to expand the scope of Entry 56 of Union List the said Act is intra vires and
within the Constitutional Limits for its subject matters falls within the Union List.

37 Satpal & Co. v. Lt. Governor of Delhi, AIR 1979 SC 1950

38 Id.
39 1992 AIR SCW 119 (154)
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(¶22.) Any incidental encroachment by the Union into the legislative domain of the State list
does not render the legislation as void. Reliance is placed on the case of Premchand Jain v. R.K.
Chhabra40 wherein it was held by the Supreme Court that:

“As long as the legislation is within the permissible field in pith and substance, objection would
not be entertained merely on the ground that while enacting legislation, provision has been made
for a matter which though germane for the purpose for which competent legislation is made, it
covers an aspect beyond it. In a series of decisions this Court has opined that if an enactment
substantially falls within the power expressly conferred by the Constitution upon the Legislature
enacting it, it cannot be held to be invalid merely because it incidentally encroaches on matters
assigned to another legislature.”41

(¶23.) Effect is not the same thing as subject matter. 42 Once it is found that in pith and substance
a law falls within permitted field, any incidental encroachment by it on a forbidden field does not
affect the competence of the concerned legislature to enact the law. As the pith and substance i.e.
the subject matter of the Act is ‘networking of rivers’ and as such subject is within the Union
List the Act cannot be declared to be ultra vires the Constitution as the Union has got every
power to enact a legislation upon the matters within and beyond the Union List as long as the
same is not present in the State List by virtue of Art. 246(1) and 248(1) and hence the powers
acquired by the Central Government by the Act, particularly S. 3 are well within the
Constitutional limits and not beyond them.

(¶24.) Thirdly, Article 246 (2) empowers the Union to legislate on any matters contained in the
Concurrent List. The entry in the Concurrent list that is relevant to the instant case is that of
Economic and Social Planning. The instant project of linking of rivers aims at uplifting the
economy of Aressia by providing water to irrigation and industries and also helps the farmers
and women of the society. There is an element of Economic and Social Planning involved in the

40 Premchand Jain v. R.K. Chhabra, AIR 1984 SC 981 : (1984) 2 SCC 302
41 Also see, State of Rajasthan v. Vatan medical & General Store, AIR 2001 SC 1937 : (2001) 4 SCC 642
42 State of Bombay v. Narottamdas, AIR 1951 SC 69, 96 : 1951 SCR 51; Atiabari Tea Co. v. State of Asam, AIR
1961 SC 232 : 1961 (1) SCR 809; Kannan D.H.P. Co. v. State of Kerala, AIR 1972 SC 2301. Also, Sita Ram v.
State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 251; Southern Pharmaceutical ltd. V. State of Bihar, AIR
1983 SC 1019 : (1983) 4 SCC 45; Krishna Bhimrao Deshpande v. Land tribunal, AIR 1993 SC 883; P.N. Krishna
Lal v. Govt. of Kerala, (1995) Supp (2) SCC 187; Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 Cri LJ
3139; Union of India v. Shah Goverdhan L. Kabra Teachers College, (2002) 7 SCALE 435.

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instant case which is a subject upon which the Union can legislate as per Entry 20 of the
Concurrent List and hence the Act is within the legislative competence of the Union.

In light of the aforementioned reasons, it is contended that the impugned Act is intra vires the
Constitution of India and the contention that S. 3 is ultra vires hold no substance in the scheme
of the Constitution.

ISSUE THREE

WHETHER, THE EXCLUSION AND NON-IMPLEMENTATION OF THE LINKING OF RIVER ACT

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

(¶25.) The counsel on behalf of Union of Aressia contends that the governmental action of
exclusion and non-implementation of Linking of Rivers Act for the State of Vindhya is in
furtherance of protection of the environment and thus not in violation of Article 14 [A] and
Article 19, 21 [B] of people of State of Vindhya and State of Normanda.

A. GOVERNMENTAL ACTION IS IN ACCORDANCE WITH ARTICLE 14

Scope of Article 14 of the Constitution

(¶26.) The counsel on the behalf of the respondents humbly submits before this Hon’ble court
that the governmental action of exclusion of State of Vindhya under Linking of Rivers Project is
valid under law and does not transgress the limits set by Article 14 43 of the Constitution. Article
14 envisages equality before law and equal protection of law. . 44 The principle of equal
protection does not take away from the state the power of classifying persons for the legitimate

43 Art. 14 of the Constitution of India, 1950

44 Id.
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purpose.45 The classification46 should be based upon two things47 firstly, it should be based upon
the Intelligible Differentia48 and secondly, the Intelligible Differentia should have a rational
nexus with the object sought to be achieved.49 Reasonable Classification is not just permitted but
also necessary in the interest of actual justice. 50 It must be presumed that the legislation
understands and correctly appreciates the need of its own people. 51 Equality clause does not
forbid geographical classification provided the difference between the geographical units has
reasonable relation to the object sought to be achieved.52

(¶27.) State of Vindhya is distinctive and does not stand at the same footing when compared to
other states.53 The respondent recognized such distinctiveness of State of Vindhya and excluded
it from Linking of Rivers Project under the Linking of Rivers Act, 2010. The basis of exclusion
of State of Vindhya is that Aressia is International Obligations and the object is to protect wet
lands54 in the State of Vindhya. Aressia is under International Obligation 55 as it is party to
Stockholm Declaration 197256 and Ramsar Convention, 197157. It is an obligation upon the
signatory states to International Covenants and Declarations not to do anything that would defeat
the purpose of the Convention.58 The Courts have taken affirmative action towards protection of
wet lands by recognizing Ramsar Convention and obligation of the Contracting Party towards
this Convention. In the case of People United for Better Living in Calcutta v. State of West

45 State of Bombay v. Balsara F. [Link] 1951 SC 609

46 “Classification means segregation of classes which have a systematic relation, usually found in common
properties and characteristics.” 2 ACHARYA DR. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF
INDIA, 1396 (8th Ed., 2007)
47 Kangshari v. State of W.B., 1960 SC 457(484): (1960) 2 SCR 646; Kedar Nath v. State of W.B. 1954 SCR 30:
AIR 1953 SC 404; Ram Sarup v. UOI AIR 1965 SC 247(252): (1964) SCR 931
48 “The expression Intelligible Diffrentia means difference capable of being understood. A factor that distinguishes
or in different state or class from another which is capable of being understood”. 2 RAMANATHA AIYER, ADVANCE
LAW LEXICON, 2391 (3rd Ed., 2005)
49 Laxmi Khandsari v. State of Uttar Pradesh, 1981 SC 873, 891: (1981) 2 SCC 600; Budhan v. State of Bihar, AIR
1970 SC 1453: (1969) 2 SCC 166.
50 Jagjit Singh v. State of Hyderabad, AIR 1954 Hyd 28
51 Aushotosh Gupta v. State of Rajasthan, AIR 2002 SC 1533
52 Gopal Narain v. State of Uttar Pradesh, AIR 1964 SC 370 (375)
53 Fact Sheet, para 11
54 Rule 2(g) of Wetlands (Management and Conservation) Rules, 2010
55 Fact Sheet, para 12
56 Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972.
57 Ramsar Convention Secretariat, 2013. The Ramsar Convention Manual: a guide to the Convention on Wetlands
(Ramsar, Iran, 1971), 6th ed. Ramsar Convention Secretariat, Gland, Switzerland.
58 The Chairman, Railway Board and Ors. v. Mrs. Chandrima Das and Ors. 2000 SC 988
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Bengal,59 Court considered protection of wetlands as a social necessity. In another case the court
prevented the destruction of wetlands in the Adyar estuary by directing the Madras Metropolitan
Development Authority not to permit the construction in the area.60

(¶28.) It is humbly submitted that Government of Aressia is not merely under International
Obligation to protect environment but also under Statutory Obligation. Under Article 253 61 read
with Entry 13 of List I62 of the Constitution the Parliament can give effect to International
Convention in the form of law for the whole or any part of the territory of the country. Therefore
the Parliament enacted Environment (Protection) Act, 1986 63 to give effect to Stockholm
Declaration. The preamble of the Environment Protection Act, 1986 64 clearly indicates that
Parliament took an affirmative action in protection and improvement of Environment. 65 The
object of this Environment (Protection) Act, 1986 corresponds to Principles laid down in
Stockholm Declaration. The Government by exercising its powers under Section 25, 66 read with
sub-section (1)67 and clause (v)68 of sub-section 2 and sub-section 369 of section 3 of the
Environment (Protection) Act, 1986 notified Wetland (Conservation and Management) Rules,
2010 (Herein after referred as Rules, 2010). The Preamble of Rules, 2010 identifies Aressia
being party to Ramsar Convention, 197170 and such rules are framed for wise use 71 of wetlands.
The Rules, 2010 also recognizes benefits of wetlands to environment. 72 Apart from the
International and Statutory obligation, Constitution cast a mandate on the state by virtue of

59 Id.
60 Indian Metal and Metallurgical Corporation vs. Industrial Tribunal, Madras and Anr., 1994 (1) Mad. L. J. REP.
481
61 Art. 253 of the Constitution of India, 1950
62 Entry 13 of List I of the Constitution
63 Environment (Protection) Act, 1986, No. 29 OF 1986
64 Id.
65 Section 2(a) of Environment (Protection) Act, 1986
66 Section 25 of Environment (Protection) Act, 1986
67 Section 3(1) of Environment (Protection) Act, 1986
68 Section 3(2)(v) of Environment (Protection) Act, 1986
69 Section 3(3) of Environment (Protection) Act, 1986
70 Wetland (Conservation and Management) Rules, 2010
71 Wise use of wetlands is the maintenance of their ecological character, achieved through the implementation of
ecosystem approaches, within the context of sustainable development, “Ramsar Convention Secretariat, 2013. The
Ramsar Convention Manual: a guide to the Convention on Wetlands (Ramsar, Iran, 1971), 6th ed. Ramsar
Convention Secretariat, Gland, Switzerland.”
72 People United for Better Living in Calcutta v. State of West Bengal, AIR 1993 Cal 215.
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Article 48A73 to secure the health of the people, improve public health and protect and improve
the environment.74 Therefore it is submitted that as long as there is nexus between the basis of
classification and the object sought to be achieved, the classification is valid. 75

Exclusion is based on proper findings and on request of State of Vindhya

(¶29.) Environment (Protection) Act, 1986 being parent legislation ensures that any activity
which deals with environmental aspect, the exercise of Environment Impact Assessment is
mandatorily required to be done by the competent authority. 76 It is necessary to carry out
Environment Impact Assessment (Herein referred as EIA) under EIA Notification, 2006 to carry
out Linking of Rivers Project. Rule 4(2)(i)77 of Rules, 2010 read with Rule 278 of EIA
Notification, 2006 empowers State government to carry out EIA upon the state. As per State EIA
findings the Linking of River Project would lead to damage to wet lands. On the request of State
of Vindhya, central government directed Authority for Linking Rivers to exclude the State of
Vindhya. It is contended that if governmental action after due care and consideration to the
conflicting issues then court cannot sit in appeal over such a decision. If the decision is not
against any law, mala fide or arbitrary in nature, the court cannot investigate into those areas. 79
Therefore it is humbly submitted that the Respondent through State EIA carried out its duty and
for the protection and preservation of wet lands.

B. GOVERNMENTAL ACTION IS IN ACCORDANCE WITH ARTICLE 19 AND 21 OF THE

CONSTITUTION

No actual violation of Article 19 and Article 21

(¶30.) It is humbly submitted that to invoke Article 21 of the Constitution, it is necessary that
there should be an actual violation of right. Mere future possibility of infringement would not
attract Article 19 and 21. The right under Article 19(1)(g) does not cast an obligation on the State

73 Art. 48A of the Constitution of India, 1950

74 M.C. Mehta vs. Union of India (UOI) and Ors. ,AIR 2002 SC 1696
75 State of Madhya Pradesh v. Gopal D. Tirthani, AIR 2003 SC 2952 (2064)
76 Bombay Dyeing and Manufacturing Co. Ltd v. Bombay Environmental Action Group, AIR 2006 SC 1489
77 Rule 4(2)(i) of Wetland (Conservation and Management) Rules, 2010
78 Rule 2 of Environment Impact Assessment Notification, 2006
79 Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751
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or any authority subordinate authority to create conditions so as to make the trade lucrative or to
bring customers to the trader or businessman. 80 State may not by affirmative action; be
compellable to provide adequate means of livelihood or work to the citizens.81

Right to carry any occupation and Right to Livelihood is subject to Right to Environment

(¶31.) The right under 19(1)(g) is not an absolute right but one which is liable to be restricted
under Article 19(6).82 The restrictions must be in the interests of general public, an expression
which is a very wide one and will include all matters affecting public weal, such as public safety,
public health, public morals etc. 83 A great American Judge emphasizing the imperative issue of
environment by saying that government is placed above big business, individual liberty above
government and environment above all.84 Therefore right to livelihood cannot render national
interest and public interest subservient to Right of an individual or Right of a community. In M.
C. Mehta v. Union of India,85 the closure of tanneries might result in unemployment and loss of
revenue; life, health and ecology had greater importance. In another case the rights of an ivory
dealer are subject to the paramount rights of other people to have healthy and balanced ecology. 86

(¶32.) It is further submitted that Environment Protection Act, 1986 aims at sustainable
development.87 Doctrine of Sustainable Development is not an empty slogan; bust must be
viewed in a pragmatic manner.88 It demands delicate balance between environmental values and
developmental needs.89 The Supreme Court observed that environmental statutes were enacted to
ensure a good quality of life for unborn generations since it is they who must bear the brunt of
ecological degradation.90 Therefore it would be reasonable to hold that the enjoyment of life and

80 Chaitanya Prakash vs. Board of Secondary Education, Rajasthan, Jaipur, AIR 1960 Raj 185 (187,188) (DB)
81 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
82 T.B. Ibrahim vs. Regional Transport Authority, Tanjore, AIR 1953 SC 79 (82)
83 Indian Metal and Metallurgical Corporation vs. Industrial Tribunal, Madras and Anr., AIR 1953 Mad 98 (101)
(DB)
84 Tarun Bharat Singh, Alwar v. Union of India, 1993 Supp (3) SCC 115
85 M. C. Mehta v. Union of India, AIR 1988 SC 1037
86 Ivory Traders and Manufacturer Association v. Union of India, AIR 1997 Del 267, p 293
87 N. D. Jayal v. Union of India, AIR 2004 SC 867 (Supp), p 878; 2007 (6) MLJ 813.
88 Susetha v. state of Tamil Nadu, AIR 2006 SC 2893 p. 2896
89 Bombay Dyeing and Manufacturing Co. Ltd v. Bombay Environmental Action Group, AIR 2006 SC 1489;
Banvasi Seva Ashram v. State of Uttar Pradesh, 1987 AIR 374.
90 Indian Council for Enviro-Legal Action v. Union of India, 1996 (5) SCC 281
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its attainment and fulfillment guaranteed by Article 21 91 of the Constitution as it embraces the
protection and preservation of nature’s gifts without which life cannot be enjoyed.92

In light of the above mentioned reasons it is humbly submitted that writ of mandamus should
NOT be issued to Union of Aressia as the exclusion of State of Vindhya from Linking of River
Project is NOT in violation of Article 14, 19 and 21 of the Constitution.

ISSUE FOUR

WHETHER THE LINKING OF RIVERS ACT, 2010 VIOLATES THE ENVIRONMENTAL RIGHTS
OF CITIZENS OF ARESSIA AND THE PROVISIONS OF THE FOREST (CONSERVATION) ACT,
1980?

(¶33.) The counsel on the behalf of Respondent contends that Linking of Rivers Act, 2010 is not
in violation to environmental rights of the citizens of Aressia [A] and also not in violation to the
provisions of Forest (Conservation) Act, 1980. [B]

A. LINKING OF RIVERS ACT DOES NOT VIOLATE ENVIRONMENTAL RIGHTS OF CITIZENS OF

ARESSIA

Linking of Rivers Act, 2010 is in National Interest

(¶34.) It is humbly submitted that Water is the basic need for the survival of human beings and
is part of right of life and human rights as enshrined in Article 21 93 of the Constitution.94 The
Linking of Rivers Act, 2010 aims to ensure availability and ensure availability and accessibility
of water.95 To fulfill this object, linking of rivers is being done throughout the Country. There is
acute shortage of water in Western and Eastern Regions of Aressia 96 and this can only be

91 Art. 21 of the Constitution of India, 1950

92 T. Damodar Rao v. The Special Officer, Municipal Corporation of Hyderabad, AIR 1987 AP 171
93 Art. 21 of the Constitution of India, 1950
94 State of Karnataka v. State of A.P, (2000) 9 SCC 572
95 Fact Sheet, para 6
96 Id., para 2
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removed by providing source of water where there is none. The Resolution of the U.N.O. in
197797 to which Aressia is a signatory, during the United Nations Water Conference resolved
unanimously inter alia 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.”

(¶35.) It is humbly submitted that in the instant case, the prime reason for the agriculture failure
is shortage of water.98 For safeguarding the right to livelihood of the farmers, Respondent
enacted Linking of Rivers Act, 2010. NCAER report clearly opines that interlinking of river
projects will prove fruitful for the nation as a whole and would serve a greater purpose by
allowing higher returns from the agricultural sector for the benefit of the entire economy. 99 The
1980 National Perspective Plan of the erstwhile Ministry of Irrigation, presently the Ministry for
Water Resources, envisaged inter-basin transfer from water-surplus to deficit areas. Linking of
Rivers would have direct benefits, like the irrigation of 35 million hectares (Mha), full
exploitation of existing irrigation projects of 140 Mha, power generation of 34 million Kilowatt
(KW); besides the indirect benefits like flood control, navigation, water supply, fisheries,
pollution control, recreation facilities, employment generation, infrastructure and socio-
economic development etc.100 In Re: Networking of Rivers this Court has aptly observed that the
project of linking of rivers to be of National Importance.101

Right to Development vis-à-vis Right to Environment

(¶36.) The Counsel on behalf of the Respondent submits that Linking of Rivers Project will
improve the ecology and environment of the nation. The change in environment does not per se
violate any right under Article 21 especially when ameliorative steps are taken not only to
preserve but to improve ecology and environment. 102 The proper channelization of

97 A/RES/32/158, ‘United Nations Water Conference’, 19/12/1997

98 Fact Sheet, para 1
99 Economic Impact of Interlinking of Rivers Programme, National Council of Applied Economic Research, April,
2008
100 In Re: Networking of Rivers, 2012 (3) SCALE 74
101 Id
102 Narmada Bachao Andolan vs. Union of India and Others, AIR 2000 SC 3751 (3804)
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developmental activities enhances ecology and environment. 103 There is an apprehension that
Linking of Rivers Project will submerge land and forests but it is humbly submitted that Dams
and other like projects submerge the forest area, but they convert wasteland into greener areas. 104

(¶37.) It is further submitted that the crops and trees in the irrigated areas increase in
photosynthesis, and improve the overall availability of oxygen. Rise in overall water table
improves greenery in the area. Catchment area treatment and command area development will
solve the problem of soil erosion caused by massive degradation of forest.105

(¶38.) It is humbly submitted that protection of life under Article 21 includes the principle of
sustainable development and it is sine qua non for maintenance of symbolic balance between
rights to development and environment.106 This Court in N. D. Jayal v. Union of India, 107 held
Sustainable development to be a fundamental right in order to justify construction of a dam as a
symbol of wholesome development. Construction of dam or mega project is treated as integral
component for development.108 The concept of sustainable development means “that
development that meets the need of the present without compromising the ability of future
generations to meet their own needs109”.

(¶39.) Further, as per Preambulary statement given by New Delhi International Law Association
(ILA) on Principle of International Law Relating to Sustainable Development “Sustainable
Development involves a comprehensive and integrated approach to economic, social and
political processes, which aim at the sustainable use of natural resources of the Earth and the
protection of the environment on which nature and human life as well as social and economic
developments depend and which seek to realize the right of all human beings to an adequate
living standard on the basis of their active, free and meaningful participation in the development

103 Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751

104 Pradip Bijal, ‘Large Dams: can we do without them?’, Economic and Political Weekly, XXXV, 6 th May 2000,
p 1959
105 PRADIP BIJAL, ET AL, ‘LARGE DAMS: CAN WE DO WITHOUT THEM?’, 1659 (Economic and Political Weekly,
XXXV, 6 May 2000)
106 N. D. Jayal and Anr. v. Union of Inida and Ors., (2004) 9 SCC 362
107 Id
108 Id
109 G.H. BRUNDTLAND, REPORT OF WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON
FUTURE, 43 (1987)

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and in the fair distribution of benefits resulting there from, with due regard to the needs and
interests of future generations.”110

B. LINKING OF RIVERS PROJECT ACT, 2010 DOES NOT VIOLATES PROVISIONS OF FOREST
(CONSERVATION) ACT, 1980
(¶40.) The counsel from the Respondent submits that Linking of Rivers Project, 2000 is not in
violation to the provisions of Forest (Conservation) Act, 1980. As per Environment (Protection)
Act, 1986 read with Forest (Conservation) Act, 1980, Government is under an obligation to
conduct an Environment Impact Assessment of Projects pertaining to Environment.

(¶41.) It is humbly submitted that in the instant case Government took necessary and required
measures for environment clearance of Linking of Rivers Project. On the directions of this
Court,111 Central Government appointed two committees. The first was High Level Expert
Committee was appointed to study the practical issues involved in Linking of Rivers Project and
the other was Environment Impact Assessment Committee to assess the impacts of Linking of
Rivers.112 High Level Expert Committee identified various rivers that can be linked together to
mitigate the problem of water shortage in the country. The EIA committee also approved the
project.113

(¶42.) It is humbly submitted that EIA committee comprised of representatives from all sections
i.e. Central Government, State Government, Environmental Experts, NGO’s, Industrialists and
members from farmers’ organization,114 therefore approval from EIA Committee due to political
pressure does not comes into question. It is further submitted that a policy decision based on the
report of a High Powered Committee shall not be interfered by Court. 115 Courts can only
investigate and adjudicate the questions as to whether the Government was conscious to the
inherent danger and applied its mind to the safety of the dam.116

110 ILA Declaration on Principles of International Law Relating to Sustainable Development, Preamble, ILA 2002,
70th Biennial Conference of the International Law Association, p. 212
111 Fact Sheet, para 3
112 Id., para 4
113 Id., para 5
114 Id., para 4
115 Alloy Steel rolling Mills v. West Bengal Pollution Control Board, AIR 2006 Cal 75; Sachiadanand Pandey v.
West Bengal, AIR 1987 SC 1109
116 Tehri Bandh Virodhi Sangarsh Samiti and Ors. vs. State of U.P. and Ors., (1992) Supp 1 SCC 44
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(¶43.) In the case of Dahanu Taluka Environment Protection Group v. Bombay Suburban
Electricity Supply Company Ltd.117 the court stated that ‘we are not concerned with the question
whether the decision taken is right or wrong; the question is whether it has been taken after
consideration of all relevant aspects.

In light of the above mentioned reasons it is humbly submitted that Linking of Rivers Act, 2010 is
legal and constitutionally valid law.

PRAYER

117 Dahanu Taluka Environment Protection Group v. Bombay Suburban Electrictiy Supply Company Ltd (1991) 2
SCC 539

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WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Hon’ble Court to adjudge and declare on behalf of
the Union of Aressia that:

1. The Petition filed by FER is not maintainable before the High Court of Neruda.
2. The Section 3 of the Linking of Rivers Act, 2010 is intra vires the Constitution.
3. The exclusion and non-implementation of the Linking of Rivers Act, 2010 to the
State of Vindhya is valid.
4. The Linking of Rivers Act, 2010 is legal and constitutionally valid law.

The court may also be pleased to pass any other order, which this Hon’ble Court may deem fit in
light of justice, equity and good conscience. All of which is respectfully submitted on behalf of

The Respondent

Sd/-

..............................

(Counsel for the “Respondent”)

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