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IN THE HONOURABLE SUPREME COURT OF INDIA WRIT PETITION NO. OF 2010 [UNDER ARTICLE 32]
IN THE MATTER OF: BHUWAN.. PETITIONER VERSUS STATE OF TALUNA & OTHERS.... RESPONDENT
MEMORIAL ON BEHALF OF THE PETITIONER
TABLE OF CONTENTS
LIST OF ABBREVIATION. I INDEX OF AUTHORITIES.II,III STATEMENT OF JURISDICTION IV STATEMENT OF FACTSV ISSUES FOR CONSIDERATIONVI SUMMARY OF ARGUMENTSVII BODY OF ARGUMENTS(1) ART. 32 IS MAINTAINABLE1 (2) VIOLATION OF ART. 21.2-4 (3) ESTABLISHMENT OF INDUSTRY POSING A THREAT TO ECOLOGY.5-7 (4) CREDIBILITY OF ENVIRONMENTAL CLEARANCE.7-9 (5) SCHEME OF REHABILITATION10
LIST OF ABBREVIATIONS
AIR Art. AP EIA FDI Govt. Honble i.e MoEF Pat. PIL SC SCC Sec. ST Supp. U.P. U.O.I Viz. V.
ALL INDIA REPORTER ARTICLE ANDHRA PRADESH Environment Impact Assesment Foreign Direct Investment Government Honourable That is Ministry of Environment and Forest Patna Public Interest Litigation Supreme Court Supreme Court Cases Section Schedule Tribe Supplementary Uttar Pradesh Union Of India Namely Versus
INDEX OF AUTHORITIES[ACTS AND STATUTES] The Constitution of India, 1950 The Environment (Protection) Act,1986 The Environment Protection Rules, 1986 Displaced Persons (Compensation and Rehabilitation) Act, 1954 The Indian Forest Act, 1927 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 [ARTICLES] C.M. Jariwala: Complex Enviro-Techno Science Issues: Judicial direction [BOOKS] D.D. Basu, Shorter Constitution Of India,(Wadhwa & Company Law Publishers, Nagpur, 13th edn., 2004) H.M. Seervai, Constitutional Law Of India, (Universal Publishing Pvt. Ltd., 4th edn., Vol.1) P.Leelakrishnan, Environment Law in India,( Lexis Nexis Butterworths Wadhwa Nagpur, 3rd edn.,2008) [CASES] 1. Tarun Bharat Sangh , Alwar v. U.O.I, AIR 1992 SC 514 2 .Olga Tellis v. Bombay Municipal Corp., AIR 1986 SC 180 3. P. Rathinam v. U.O.I , AIR 1994 SC 18444 . Shantisar Builders v. Naryan Khimalal Totamae, AIR 1990 SC 630 5. Barudev Yadav v. State of Bihar, AIR 2002 Pat. 64 6. MP Rambabu v. Divisional Forest Officer, AIR 2003 AP 256
7. Madhavi v. Thilakan 8. A.P. Pollution Control Board v. Prof. M.V. Nayudu , A.I.R 1999 SC 812. 9 . Sachinand Pandey v. State of West Bengal AIR 1987 SC1109. 10. Vellor Citizens Welfare form v. UOI AIR1996 SC2715 11. M.C. Mehata v. Kamal nath (1997) 1 SCC 388 (II)
12. Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P, 1987 Supp SCC 4872 13. Goa Foundation, Goa v. Diksha Holdings pvt. Ltd., AIR2001 SC 184 14. M.C. Mehta v. U.O.I , AIR 1988SC 38215. Vedire Venkatta Reddy v. U.O.I, AIR 2005 AP 155 16. Vedanta Alumina Ltd. v. Praffulla Samantra & others
17. Essar Oil Limited v. Halar Utkarsh Samiti & Others, 18. Kamal Nagar Welfare Association v. Govt. Of Andhra Pradesh, AIR 2000 AP 132
STATEMENT OF JURISDICTION
The petitioners in the present case have approached the Honble Apex Court of India under Art. 32 of the Constitution of India. The Operative part of Art.32 provides----(1) The right to move the Supreme Court by appropriate proceedings of the enforcement of the rights conferred by the part is guaranteed. (2) The Supreme Court shall have power to issue directions of orders of 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. All of which is urged in detail in the written submission and is submitted most respectfully.
STATEMENT OF FACTS IThe state of Taluna is a newly formed state bifurcated from the parent state of Anadi Pradesh in the eastern region of the U.O.I. 40% of the state is covered by the forest with about 1 million tribal population. State of Taluna is rich in minerals along with a diverse , complex and self-perpetuating eco-system.A proposal was made by the MOEF to convert a part of forest area into a sanctuary. II Unemployment, underdevelopment and illiteracy are rampant in the Haku tribe, a listed schedule tribe.There is one major industry in the region. A govt. established environmental organization GO GREEN- has set up a govt. approved observatory. III There are many protests and agitations on the part of tribal people against the establishment of steel plant called CORSO which will involve over 3500 acres of the forest land and will result in relocation of 40000 people. It is estimated that the project will invite FDI of $100 million and possibly create 60,000 jobs. Atleast 10,000 people will be incorporated by the CORSO who will lose their livelihood by the construction of the plant. IV In april 2009, MOEF gives clearance to the plan based on an EIA test carried out in 2000.As per the information of the RTI filed by the Bhuwan, the leader of the Haku tribe it was discovered that the ten years study carried out by the GO GREENs and its recommendations were completely ignored. (V)
ISSUES FOR CONSIDERATIONI. WHETHER THE WRIT PETITION UNDER ART.32 IS MAINTAINABLE? II. WHETHER THERE IS VIOLATION OF ART. 21? III. WHETHER ESTABLISHMENT OF INDUSTRY POSES ANY THREAT TO ECOLOGY? IV. WHETHER THE ENVIRONMENTAL CLEARANCE HAS ANY CREDIBILITY? V. WHETHER THE SCHEME OF REHABILITATION IS SUFFICIENT FOR A WEAKER AND SPECIFIC CLASS LIKE SCHEDULE TRIBES?
SUMMARY OF ARGUMENTS 1. PETITION UNDER ARTICLE 32 IS MAINTAINABLEA. LOCUS STANDI B. PREMATURITY 2. VIOLATION OF ARTICLE 21: A. PROTECTION OF LIFE AND PERSONAL LIBERTY B. RIGHT TO LIVELIHOOD: C. RIGHT TO LIVE WITH HUMAN DIGNITY D. RIGHT TO FOOD AND CLOTHING E. RESTRICTION ON TRADE AND BUSINESS F. LIBERAL INTERPRETATION OF ARTICLE 21 GIVING STATUS OF FUNDAMENTAL RIGHTS 3. ESTABHISHMENT OF INDUSTRY POSING A THREAT TO ECOLOGY A. PRECAUTIONARY PRINCIPLE: B. PUBLIC TRUST DOCTRINE C. PRINCIPLE OF INTERGENERATION EQUITY D. KYOTO PROTOCOL 1997 E. THIRD GENERATION RIGHTS F. ENVIRONMENT (PROTECTION) RULES, 1986 G. DEVELOPMENT V. ENVIRONMENT H. THE ENVIRONMENT (PROTECTION) ACT 1986 4. CREDIBILITY OF ENVIRONMENTAL CLEARANCE A. OVERLOOKING OF ENVIRONMENT IMPACT ASSESSMENT B. OBJECTIVES OF EIA C.ENVIRONMENTAL CLEARANCE AND LOCATION OF INDUSTRIES 5. . INSUFFICIENT SCHEME OF REHABILITATION A. DISPLACED PERSONS (COMPENSATION AND REHABILITATION) ACT, 1954 B.SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006
BODY OF ARGUMENTSI. PETITION UNDER ARTICLE 32 IS MAINTAINABLE : LOCUS STANDI : Technical objections as to the legal status of the Petitioner is irrelevant in class-actions involving public interest. PREMATURITY: The mere existence of a law is enough for a cause of action and Art. 32 and thus the contention of Prematurity is misplaced. Petitioners concern for the environment, ecology and the wildlife should be shared by the government. The observation of the court is important as it emphasizes the rationale of PIL in environmental issues. It is the duty of the state to protect the environmenta duty imposed by the Directive Principles and Fundamental Duties, introduced by the fortysecond amendment of the Constitution.1 The range of issues addressed by PIL has been very broad. It extends from compassion to animals2, privileges of tribal people and fishermen3, to the eco-system of Himalayas and forests4, eco-tourism, land use patterns5 and vindication of an eco-malady of a village.6
1. 2. 3. 4. 5. 6.
Tarun Bharat Sangh , Alwar v. U.O.I, AIR 1992 SC 514 AIR 1993 AP 257 AIR 1996 SC 2041 AIR 1988 SC 2187 AIR 1992 Kant. 57 AIR 1986 SC 1446
II VIOLATION OF ARTICLE 21: ARTICLE 21: PROTECTION OF LIFE AND PERSONAL LIBERTY: No person shall be deprived of his life or personal liberty except according to procedure established by law. RIGHT TO LIVELIHOOD: The state is under negative obligation, viz, not to deprive a person of this right with out just and fair procedure. any person, who is deprive of his right livelihood except according to just and fair procedure established by law, can challenged the deprivation as offending the right of life conferred by Article 21.1 In the present case people of haku tribe dependent on forests and common land for a variety of non-commercial timber forest products for food and fuel, small timber for housing, and herbs and medicinal plants for meeting their subsistence livelihood needs. In a series of meeting held by the Government to resolve the issue, the Company, CORSO, promises to incorporate only 10,000 persons who may lose their livelihood as a result of the establishment of this industry. RIGHT TO LIVE WITH HUMAN DIGNITY: The right to live with human dignity and the same does not connote continued drudgery. It takes within its fold some of the fine graces of civilization which makes life worth having and that the expanded concept of life would mean the tradition, culture and heritage of the person concerned.2._____________________________________
1.Olga Tellis v. Bombay Municipal Corp., AIR 1986 SC 180 2.P. Rathinam v. U.O.I , AIR 1994 SC 1844 (2)
In the present case the haku tribe does not want to relocate from their natural and indigenous home and there many protest and agitations across these areas. It is natural that the man living in the hills and valleys is dependent for survival on natural resources. To remove him and rehabilitate him in the plains is taking a fish from the river and putting it into an artificial reservoir or an aquarium where it might survive but can never be happy. RIGHT TO FOOD AND CLOTHING: The right to life under article 21 would include the right to food and clothing, decent environment and reasonable accommodation to live in. the difference between the need of an animal and a human being for shelter has to be kept in view. For t