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TEAM CODE: TC-19

BEFORE THE HON’BLE SUPREME COURT OF INDI

IN THE MATTERS OF:

MR. X ... APPELLANT

V.

THE UNION OF INDI ...RESPONDENT

PUBLIC INTEREST LITIGATION NO :_________

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDI

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDI

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS

COUNSEL APPEARING ON BEHALF OF THE APPELLANTS

TABLE OF CONTENTS

LIST OF ABBREVIATION…………………………………………………………………3
INDEX OF AUTHORITIES……………………………………………………………… 4-5
STATEMENT OF JURISDICTION……………………………………………………….. 7
STATEMENT OF FACTS…………………………………………………………………8-9
STATEMENT OF ISSUES………………………………………………………………... 10
SUMMARY OF ARGUMENTS……………………………………………………… 11-12
ARGUMENTS ADVANCED………………………………………………………………13
I. WHETHER THE PIL FILED BEFORE SUPREME COURT OF INDI IS

MAINTAINABLE ………………………………………………………………………13-15

1.1 The person X has Locus standi to file present petition…………………………………13

1.2. That the right to a healthy environment and livelihood under Article 21 may stand

violated since the constitutional guarantee of Article 21 as fundamental rights……………15

II. WHETHER CUSTOM PRACTICED IN HINDU RELIGION VIOLATES THE

FUNDAMENTAL RIGHT (ARTICLE 21), ENVIRONMENAT (PROTECTION) ACT,

1986 AND WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974-16-20

2.1 Right to Religion and Public Health……………………………………………………16

2.2 Violation of Environment (Protection) Act- 1986 and Water (Prevention and Control of

Pollution) Act-1974…………………………………………………………………………18

2.2.2 Violation of Environment (Protection) Act, 1986…………………………………….20

2.2.3 Violation of Uttar Pradesh Mahapalika Adhiniyam, 1959……………………………20

2.3 Violation of Article 21 …………………………………………………………………23

2.3.1. That the State has a positive obligation to guarantee A.21 of the Constitution………23

2.3.2. That A. 21 extends to the right to water and the same has been violated……………24

3.3.3. That A. 21 extends to right to basic necessities and the same has been violated…….25

3.3.4. That A. 21 extends to Right to Livelihood and Right to Work and the same have been

violated………………………………………………………………………………………25
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III. THAT THE DOCTRINE OF PUBLIC TRUST IS TO BE EXERCISED BY THE

GOVERNMENT AND THE NON- EXERCISING OF THE SAME HAS VIOLATED

ENVIRONMENTAL RIGHTS OF THE CITIZENS OF INDI…………………………26-27

3.1. That the Doctrine of Public Trust is to be exercised by the Government of India…….26

3.2. That the Doctrine has not been followed………………………………………………27

IV. WHETHER THE GOVERNMENT OF INDI HAS FAILED TO PROTECT THE

NATIONAL RIVER GARUDA…………………………………………………………27-31.

4.1Government Failed to Protect River ……………………………………………………28

4.2 Polluters pay Principle and Sustainable development………………………………….29

PRAYER……………………………………………………………………………………32

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LIST OF ABBREVIATION

¶ Para

¶¶ Paras

AIR All India Reporter

All Allahabad

Art. Article

Cal Calcutta

Del Delhi

Ed. Edition

Ori Orissa

p.. Page No.

SC Supreme Court

HC High Court

SCC Supreme Court Report

SCJ Supreme Court Journal

Sec. Section

u/a Under Article

PIL Public Interest Litigation

MPN Most Probable Number

Hon’ble Honourable

NGT National Green Tribunal

CPCB Central Pollution Control Board

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INDEX OF AUTHORITIES

STATUTES

Article 32, Constitution of India. .................................................................................................... 1

BOOKS, ARTICLES, TREATIES

1. Amartya Sen, (1999). Development as freedom, (1st ed.). New York: Oxford
2. Charmian Barton, Precautionary Principle In Australia, Vol. 22, 1988, Harv. Env.
4. D.D. Basu, Commentary on the Constitution of India, C.K. Thakker
5. D.D. Basu, Shorter Constitution of India, 13th ed., 2001
6. Dr. Maheshwara Swamy, Law Relating To Environmental Pollution And
7. Dr. Sunil Kumar Agarwal, Implementation Of International Law In India: Role
8. G.P. Singh, Principles of Statutory Interpretation, 13th ed. 2012
9. Granville Austin, The Indian Constitution – Cornerstone of a Nation 195 (2nd ed.
10. H. M. Seervai, Constitutional Law of India, 4th ed., vol. 2, 2007
11. M. Shamsul Haque, Environmental Discourse and Sustainable Development: Linkages
and Limitations, Ethics and the Environment, Vol. 5, No. 1 (2000)
12. M.P. Jain Indian Constitutional Law, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed.
13. Malcolm N Shaw, International Law, Cambridge University Press, 6th ed, 2008 ................... 3

CASES REFERRED

1. People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 2330

2. Vishwanath Chaturvedi v. Union of India (2007)4SCC380

3. Vishwanath Chaturvedi v. Union of India (2007)4SCC380

4. Enviro-Legal Action v. Union of India and others (1996) 5 SCC

5. M C Mehata vs UOI, AIR 1998, SC252

6. D.K.Basuv State of West Bengal, AIR 1997 SC 610

6. D.K. Yadav vs J.M.A Industries, AIR1986SC180

7. Olga Tellis vs. Bombay Municipal Corporation. AIR 1986 SC 180

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8. M.C. Mehta v. Kamal Nath and others (2000) 6 SCC Page 213

9. State of Bombay vs Narasu Appa Mali AIR 1952 Bom 84

10. M.C. Mehta (II) v Union of India reported in (1988) SCC Page 471

11. Indian Council for Enviro-Legal Action v. Union of India and others (1996) 5 SCC.

12. Nandini Sundar and Ors. v. State of Chhattisgarh, AIR2011SC2839

13. Maruti Shreepati Dubal v. State of Maharashtra, 1987 (1) Bom CR 499

14. Pathum maand Ors.v. Stateof Kerala and Ors. AIR1978SC771

15. State of Karnataka Vs. State of Andhra Pradesh & Ors.,AIR 2001 SC 1560

16. Atma Linga Reddy and Ors .v. Union of India(UOI)andOrs,AIR2009SC436

17. A.P.Pollution Control Board II v Prof. M.V. Naiduand & Others

18. Narmada Bachao Andolan v. Union of India and Others

19. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors, AIR 1981

SC746

20. Chameli Singh v. State of Uttar Pradesh, AIR1996SC1051

21.Olga Tellis v. Bombay Municipal Corporation, AIR1986SC180

22.Delhi Development Horticulture Employee’s Union v. Delhi Administration

24. KR Shenoy v. Chief Officers Town Municipal Council, AIR174SC2177

25. MC Mehta v. Kamal Nath & Ors v. Kamal Nath & Ors

26. Rural Litigation & Entitlement Kendra & others v. State of UP and A.I.R.1987

27. M.C. Mehta v. Union of India & others (1987) 4 SCC 463

28. Indian Council for Enviro - Legal Action v. Union of India, J.T. 1996

29. Research Foundation for Science Technology National Resource Policy v. Union of India

30.Vellore Citizens Welfare Forum v. Union of India and others (1996) 5 SCC Page 64.

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LEGAL DATABASES

1. Manupatra

2. SCC Online

3. West Law

4. Hein Online

LEXICONS

1. Aiyar Ramanathan P , Advanced Law Lexicon, 3

2. Garner Bryana, Black‟s Law Dictionary,

LEGISLATION

1. The Constitution of India, 1950

2. Environment Protection Act-1986

3. The water (Prevention and Control of Pollution) Act-1974

4. Wildlife Protection Act, 1972

5. Uttar Pradesh Mahapalika Adhiniyam, 1959

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STATEMENT OF JURISDICTION

The Counsel for Respondents, most Humbly and respectfully, concede that this Hon’ble

Supreme Court of Indi has the requisite jurisdiction to entertain this instant Public Interest

Litigation filed under Article 32 of the Constitution of Indi,1950. Its further submitted that all

procedure requirement have been adhered to in the prescribed manner.

The present memorandum sets forth the fact, contention and argument in the present case.

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STATEMENT OF FACT

1. The Garuda is a trans-boundary river of Asiana which flows through Indi and

Banglidesh. The 2,525 km (1,569 mi) river rises in the western Hims and empties into the

Bay of Dongal. It is the third largest river on Earth by discharge. The Garuda is the most

sacred river to Hindus. It is a lifeline to millions of Indi who live along its course and depend

on it for their daily needs. It is worshipped as the Goddess Garuda in Hinduism.

2. The Garuda is threatened by pollution. This poses a danger not only to humans but

also to animals. The levels of fecal coliform bacteria from human waste in the river near

Panasi are more than the Indi government's official limit. The Garuda Action Plan, an

environmental initiative to clean up the river has been taken up but is a failure which is

variously attributed to corruption, a lack of will in the government, poor technical expertise,

environmental planning, and a lack of support from the native religious authorities.

3. Pritish Indi agreed on 5 November 1914 that the uninterrupted flow of the Garuda is

the rudimentary right of Hindu believers after long struggle by the Garuda Mahasabha. The

sanctity of the agreement is not preserved by the state and central governments of Indi after

independence though it is legally valid. More and more river water is being diverted for

irrigation use, converting the river into a polluted sewer. The Garuda Action Plan (GAP) was

launched by former Prime Minister of Indi, on June 1986 with Rs 862.59 crores as

expenditure. Its main objective was to improve the water quality by the interception,

diversion, and treatment of domestic sewage and to prevent toxic and industrial chemical

wastes from identified polluting units from entering the river.

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4. NRGBA was established by the Central Government of Indi, on 20 February 2009

under Section 3 of the Environment Protection Act, 1986. It declared the Garuda as the

"National River" of Indi. The chair includes the Prime Minister of Indi and chief ministers of

states through which the Garuda flows. In 2011, the World Bank approved $1 billion in

funding for the National Garuda River Basin Authority.

5. A Public Interest Litigation was filed that the banks of the river Garuda should not be

grounds for the cremation ceremonies of the dead as it pollutes the water and the quantity of

the amount of the ashes be fixed as 10 gm for the disposal in the holy river with the direction

that the body be completely cremated as the pollution occurs right from where the river

originates to the end with the unburnt parts of the dead pollutes the water which is harmful

and unsanitary for the environment. The petitioner himself belonging to the Hindu Religion

claims that many religious rituals such as ‘Sati pratha’, ‘jauhar’, ‘nar-bali’ have been

abolished by the courts. High Court has also ordered that animals are not to be sacrificed in

temples, as protection of the Environment and Wildlife is more important than age-old holy

traditions and rituals that causes harm to our environment and promotes killing of the

animals.

6. The petitioner claims that he himself being a Hindu understands the importance of

rituals but believes that it is more important to protect our surroundings and the environment

we live in and since the cremation ceremonycreates drastic pollution of the river, it is in clear

violation of the Environment (Protection) Act, 1986 and The Water (Prevention and Control

of Pollution) Act, 1974 and also violates Article 21 of the Constitution of Indi.

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STATEMENT OF ISSUE

ISSUE I. WHETHER THE PIL FILED BEFORE SUPREME COURT OF INDI IS

MAINTAINABLE

ISSUE II. WHETHER CUSTOM PRACTICED IN HINDU RELIGION VIOLATES THE

FUNDAMENTAL RIGHT (ARTICLE 21), ENVIRONMENAT (PROTECTION) ACT,

1986 AND WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974.

ISSUE III. THAT THE DOCTRINE OF PUBLIC TRUST IS TO BE EXERCISED BY THE

GOVERNMENT AND THE NON- EXERCISING OF THE SAME HAS VIOLATED

ENVIRONMENTAL RIGHTS OF THE CITIZENS OF INDI.

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SUMMARY OF ARGUMENT

I. WHETHER THE PIL FILED BEFORE SUPREME COURT OF INDI IS

MAINTAINABLE

The PIL filled before Supreme Court of Indi under Article 32 of the Indian Constitution is

maintainable. It is argued that the present petition is maintainable primarily on two grounds

A) Person X has locus standi to file the present petition since they are general public with a

presence in Indi and the writ petition comes within the ambit of the doctrine of public interest

litigation.

B) That the right to a healthy environment and livelihood under Article 21 may stand violated

since the constitutional guarantee of Article 21 as fundamental rights.

II. WHETHER CUSTOM PRACTICED IN HINDU RELIGION VIOLATES THE

FUNDAMENTAL RIGHT (ARTICLE 21), ENVIRONMENAT (PROTECTION) ACT,

1986 AND WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

The Custom practiced in Hindu religion which causes severe pollution to the river Garuda

and it causes harm the public health. Its clear violation of provision of fundamental rights

under Article 21 of the citizens of Indi: right to life and liberty has been violated due to a

violation in the rights that have been read under A.21 such as Right to Water, Right to Basic

Necessities, Right to Social Justice and Economic Empowerment, Right to Livelihood and

Right to Work. And also, it violates provisions of Environment (Protection) Act, 1986 and

Water (Preventionand Controlof Pollution) Act, 1974.

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III. THAT THE DOCTRINE OF PUBLIC TRUST IS TO BE EXERCISED BY THE

GOVERNMENT AND THE NON- EXERCISING OF THE SAME HAS VIOLATED

ENVIRONMENTAL RIGHTS OF THE CITIZENS OF INDI.

The environmental rights of the Indi have been violated by the Legislature on

not maintaining water quality and unhygienic this is clear violation of Doctrines of Public

Trust and Precautionary Principle. The object of WPA and EPA act reflects the intention of

the legislature to protect river and environment and the latter is required to ascertain the

object of the act. Not conforming to the objective specified in these environmental statutes is

an explicit show of how the government defies the environmental rights of the Indi.

IV. WHETHER THE GOVERNMENT OF INDI HAS FAILED TO PROTECT THE

NATIONAL RIVER GARUDA.

The measures taken by the Government of Indi to clean the river Garuda was not so effective

in terms of policy implementation. The Government of Indi has failed to take necessary steps

to clean the river Garuda and failed to discharge its basic duty to protect public health.

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ARGUMENTS ADVANCED

I. WHETHER THE PIL FILED BEFORE SUPREME COURT OF INDI IS

MAINTAINABLE.

1. Writ Jurisdiction of the Supreme Court flows from Article 32,1 which confers wide

powers enabling the Court to issue writs, directions, orders for the enforcement of

fundamental or legal rights.2 The exercise of writ jurisdiction by the Supreme Court is

discretionary in nature.3 It is submitted that the writ petition is maintainable on primarily two

grounds:

A) That the person X has locus standi to file the present petition.

B) That the right to a healthy environment and livelihood under Article 21 may stand

violated.

1.1 THE PERSON X HAS LOCUS STANDI TO FILE PRESENT PETITION.

2.A Public Interest Litigation is a petition that can be filed by any member of the public for

any matter of public interest, for redress of public wrong or injury. Public interest litigation is

not defined in any statute or in any act. It has been interpreted by judges to consider the intent

of public at large. Public interest litigation is the power given to the public by courts through

judicial activism.

In instances of public wrong or injury, if an act or omission by the State runs contrary to the

Constitution then any member of the public has locus standi.4 In Vishwanath Chaturvedi v.

1
Article 32,ConstitutionofIndia.
2
H.M.SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4thed, vol.2,2007atp.1586.
3
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia
& B. P. Banerjee eds., Vol. 6, 8th ed. 2012, p. 6614.
4
People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 2330 at¶10.

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Union of India,5 it has been observed that in determining the question of locus standi in

‘public interest litigation’ the Court must look into:

(i) the credentials of the applicant;

(ii) prima facie correctness of information;

(iii) information should show failure of public duty

(iv) must not go into merits of the case.6

3. Court while dealing with public interest litigation relating to environmental issues, is

to see that the executive authorities take steps for implementation and enforcement of law.

As such the Court has to pass orders and give directions for the protection of the

fundamental rights of the people. Passing of appropriate orders requiring the

implementation of the law cannot be regarded as the Court having usurped the functions of

the Legislature or the Executive.7 In Ganga water case, to prevent any further pollution of

Ganga water, Supreme Court held8 that petitioner although not a riparian owner is entitled

to move the court for the enforcement of statutory provisions, as he is the person interested

in protecting the lives of the people who make use of Ganga water.

4. In the present case appellant is citizen of Indi and though he belongs to Hindu religion

he is completely aware of the pollution due to unscientific religious practice which is a threat

not only to humans but also to endangered species. And although Government of Indi

introduced several policies to rejuvenate the national river, it has failed because of corrupt

administration and lack of coordination between its own Departments which converted holy

Garuda river into highly polluted one9. There is an urgency to protect river and flora and

fauna which are dependent on it, hence this PIL is filed.

5
Vishwanath Chaturvedi v. Union of India (2007)4SCC380.
6
Vishwanath Chaturvedi v. Union of India (2007)4SCC380at ¶¶27-30.
7
Enviro-Legal Action v. Union of India and others (1996) 5 SCC Page 281, ¶26,28,41
8
M C Mehata vs UOI, AIR
9
Moot Proposition

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1.2. THAT THE RIGHT TO A HEALTHY ENVIRONMENT AND LIVELIHOOD

UNDER ARTICLE 21 MAY STAND VIOLATED SINCE THE CONSTITUTIONAL

GUARANTEE OF ARTICLE 21 AS FUNDAMENTAL RIGHTS.

5.If the right guaranteed under A. 21 stands to be violated, it is open for the aggrieved person

or group of personas general public to seek judicial redress under A.32.10 It is herein

submitted that the fundamental right under A. 21 may stand infringed.

1.2.1 That the right to a healthy environment and livelihood are present within the auspices

of Article 21.

6. The Supreme Court, in a number of instances, has recognised the right to a healthy

environment as part of the right articulated under Article 21. In the instant case, unscientific

religious practice and government failure to abolish those practices lead to destruction of

quality of river water and ecological balance.11

Furthermore, the right to livelihood has also been read into the constitutional guarantee under

A. 21.12 It has been observed that in interpreting ‘life’ in the strict sense without including

livelihood would render the right meaningless since nobody could live without means of

livelihood.13 It has been claimed by the petitioner that the livelihood of human and natural

species in river front of Garuda highly affected due to immense amount of pollution.

7. Causing disturbance to ecological balance would be hazardous to life within the

meaning of Article 21 of the Constitution of India. The powers of this Court under Article 32

are not restricted and it can award damages or it can pass an order to government to take

necessary steps to restore ecological balance in a PIL or a Writ Petition as has been held in a

series of decisions.14In light of the above, it is humbly submitted that the constitutional

10
D.K.Basuv State of West Bengal, AIR 1997 SC 610 at ¶¶46-48.
11
Moot Problem
12
D.K.Yadavv.J.M.A.Industries,AIR1986SC180,¶¶13-14.
13
Olga Tellis vs. Bombay Municipal Corporation. AIR 1986 SC 180, ¶32.
14
M.C. Mehta v. Kamal Nath and others (2000) 6 SCC Page 213

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guarantee under A. 21 extends to the people of Indi and a PIL regarding their plight may not

be preliminarily rejected.

II. WHETHER CUSTOM PRACTICED IN HINDU RELIGION VIOLATES THE

ENVIRONMENAT (PROTECTION) ACT-1986, WATER (PREVENTION AND

CONTROL OF POLLUTION) ACT- 1974 AND FUNDAMENTAL RIGH

(ARTICLE21, 25).

8. According to the averments made in the moot proposition, though the respondent is

aware of the situation of further decreasing quality of water, but they have completely failed

to take any preventive or remedial measures. The flora and fauna dependent on the river is

also adversely affected. The River Garuda is a way of life for all Hindus, however, as of

today, the river is most polluted due to continuous discharge of sewage and industrial

effluents and unscientific religious practices. There is a growing need to control and prevent

the pollution into river Garuda and restoration of quality of river water. It would be apt to

mention that both centre and state government and pollution control boards of both centre and

state remiss in discharge of its statutory duties. The stringent provisions are contained in the

Water (Prevention and Control of Pollution) Act, 1974 and the Environment (Protection) Act,

1986.

2.1 Right to Religion and Public Health.

9. Right to practice religion/faith of choice is a basic epitome of modern secular society.

This leads to conducive nurturing and development of human beings and formation of social

capital. In this regards Article 25 in Indian constitutions provides to citizens right to practice

and profess any religion of their choice. However, this right is subjected to regulations under

public order, health and morality.

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What is protected under Article 25 was the religious faith and not a practice which may

counter to public order, health, morality. The sharp distinction must be drawn between

religious faith and belief. If religious practice run counter to public order, morality or health

or policy of social welfare upon which the state has embarked, then the religious practice

must give way to the good of the people of the state as a whole.15

10. During pandemic, Governments were imposed restriction on Article25 of the

constitution for the protection of public health and safety. This was challenged before High

Court in the form of PIL and court held that 16

“It is with a heavy heart that we hold that in these testing times, it is not possible to lift the

prohibition by providing any guidelines for regulating the mourning rituals/practice. The

drastic step of prohibition has been taken for all communities, on account of the

extraordinary situation created due to the pandemic and, therefore, in the given

circumstances the total prohibition is reasonable and not violative of the fundamental rights

of the petitioners or members of the any community, as sought to be alleged.”

11. In several cases the Hon’ble Supreme Court and High Courts have held that

protection of public health and safety is very important than protection of Article25. If any

religious practice brings absurdity to public health and safety then it must be declared as

unlawful and restriction has to be imposed on it. The customary practice in Hindu religion

which is cremation of dead bodies and scattering its entire ashes over the water of Garuda in

its river banks been followed since several years. Due to this unscientific practice the quality

of river water Garuda has deteriorated and its affected livelihood in a large extent. The

petitioner himself belonging to Hindu religion knows his customary right and its importance,

mentioned measures by him makes river Garuda clean and it is best method to balance both

15
State of Bombay vs Narasu Appa Mali AIR 1952 Bom 84
16
Public Interest Litigation No. - 840 of 2020, Allahabad High Court

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religious practice and environment safety. For the purpose of protection of public health and

safety putting a quantity restriction on these practices will not amount to violation of Art 25.

12. The National Green Tribunal on July 2017 declared the area 100 metres from the edge

of the river Ganga as a 'no-development zone' in the stretch between Haridwar to Unnao. The

green panel directed that there should not be any kind of waste dumping within 500 meters

from the edge of Ganga within the stretch of Haridwar. National Green Tribunal (NGT)

questioned the procedure to cremate human remains in open area and scattering its ashes

leads to air pollution and subsequently it also effects natural water resources. Keeping in

mind the growing level of pollution, especially in the national capital, the Tribunal asked the

Union Environment Ministry and Delhi government to initiate programmes to provide

alternative modes of cremation. It held the issue involves question of faith and circumstances

in which the people live. It is, therefore, the responsibility of the men who lead, particularly

religious leaders, to steer the faith in a direction so as to change the mindset of people

practising their faith and make them adopt practices which are environment-friendly. It is also

the responsibility of the government to facilitate the making of the mindset of the citizens as

well as to provide environment-friendly alternatives for cremation to its citizen. 17

2.2 Violation of Environment (Protection) Act- 1986 and Water (Prevention and Control of

Pollution) Act-1974.

13. The Parliament has enacted the Water (Prevention and Control of Pollution) Act,

1974 and Environment (Protection) Act- 1986. The Statement of Objects and Reasons of the

said Act are that the problem of pollution of river and streams has assumed considerable

importance and urgency in recent years as a result of the growth of industries and the

increasing tendency to urbanization.

17
PIL No 220/2016 Before National Green Tribunal

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2.2.1Violation of Water (Prevention and Control of Pollution) Act, 1974.

14. Section 2(k) defines trade effluent which includes any liquid, gaseous or solid

substance which is discharged from any premises used for carrying on any [Industry,

operation or process, or treatment and disposal system], other than domestic sewage.

Section 24 Prohibition on use of stream or well for disposal of pollution matter, etc.

(1) Subject to the provisions of this section, - (a) no person shall knowingly cause or permit

any poisonous, noxious or polluting matter determined in accordance with such standards as

may be laid down by the State Board to enter (whether directly or indirectly) into any stream

or well or sewer or on land or (b) no person shall knowingly cause or permit to enter into any

stream any other matter which may tend, either directly or in combination with similar

matters, to impede the proper flow of the water of the stream in a manner leading or likely to

lead to a substantial aggravation of pollution due to other causes or of its consequences.

(2) A person shall not be guilty of an offence under sub-section (1), by reason only of having

done or caused to be done any of the following acts, namely; -

(a) depositing any materials on the bank or in the bed of any stream for the purpose of

reclaiming land or for supporting, repairing or protecting the bank or bed of such stream

provided such materials are not capable of polluting such stream;

Section 32 of the Act provides for emergency measures to be resorted to in case of pollution

of stream or well. The Board is also empowered to make an application to the Courts for

restraining the person from polluting the water in any stream or well.

Section 3 of the Act of 1974 provides for Constitution of a Central Board and

Section4 empowers the State to constitute the State Boards. The functions of the State Board

are laid down under Section 17 of the Act. Every such Board is bound by the directions,

issued in writing, as the Central Government or the State Government, as the case may be,

may give to it. The Central Government could also not be oblivious to the non- functioning of

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the statutory body. The Central Government ought to have issued the directions to the State

Pollution Control Board under Section 18 of the Act of 1974 to implement the provisions of

the Act strictly.

2.2.2 Violation of Environment (Protection) Act, 1986.

15. The Parliament has also enacted the Environment (Protection) Act, 1986Section 2(a)

of the said Act defines environment, 2(b) environmental pollutant and 2(c) environmental

pollution. Section 3 empowers the Central Government to take measures to protect and

improve environment. Section 15 provides that whoever fails to comply with or contravenes

any of the provisions of this Act, or the rules made or orders or directions issued thereunder,

shall, in respect of each such failure or contravention, be punishable with imprisonment for a

term which may extend to five years with fine which may extend to one lakh rupees, or with

both, and in case the failure or contravention continues, with additional fine which may

extend to five thousand rupees for every day during which such failure or contravention

continues after the conviction for the first such failure or contravention.

2.2.3 Violation of Uttar Pradesh Mahapalika Adhiniyam, 1959; -

16. Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959.The duties and powers of the

Mahapalika authorities are set out in Chapter V of the Adhiniyam. Clauses (iii) (vii) and (viii)

of Section 114 of the Adhiniyam, which incorporates the obligatory duties of the Mahapalika.

Section 114 of the Adhiniyam states, “It shall be incumbent on the Mahapalika to make

reasonable an adequate provision, by any means (sic) which it is lawfully competent to it to

use or to take, for each of the following matters, namely; -

(iii) the collection and removal of sewage, offensive matter and rubbish and treatment and

disposal thereof including establishing and maintaining farm or factory:

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(vii) the management and maintenance of all Mahapalika waterworks and the construction or

acquisition of new works necessary for a sufficient supply of water for public and private

purposes.

(viii) guarding from pollution water used for human consumption and preventing polluted

water from being so used.”

the Section 251, 388, 396, 398, 405 and 407 of the Adhiniyam which provide provisions for

disposal of sewage, prohibition of cultivation, use of manure, or irrigation injurious to health,

power to require owners to clear away noxious vegetation and power of the Mukhya Nagar

Adhikari to inspect any place at any time for the purpose of preventing spread of dangerous

diseases. These provisions governing the local bodies indicate that the Nagar Mahapalikas

and the Municipal Boards are primarily responsible for the maintenance of cleanliness in the

areas of their jurisdiction.

17. Parliament and the State legislature have enacted laws imposing duties on the Central

and States Boards. It is the duty of the statutory authorities to maintain the parameters and

standards under the Water (Prevention and Control of Pollution) Act, 1974 as well as under

the Environment (Protection) Act, 1986 ,U.P. Nagar Mahapalika Adhiniyam and the

Rules framed thereunder. Many of those provisions have just remained on paper without any

adequate action being taken. Having regard to the grave consequences of the pollution of

water and air and the need for protecting and improving the natural environment which is

considered to be one of the fundamental duties under Article 51-A(g).18

18. Enactment of a law, but tolerating its infringement, is worse than not enacting law at

all. The continued infringement of law, over a period of time, is made possible by adoption of

such means which are best known to the violators of law. Continued tolerance of such

violations of law not only renders legal provisions nugatory but such tolerance by the

18
M.C. Mehta (II) v Union of India reported in (1988) SCC Page 471

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Enforcement Authorities encourages lawlessness and adoption of means which cannot, or

ought not to, be tolerated in any civilized society. Law should not only be meant for law

abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually

enacted because the Legislature feels that it is necessary. It is with a view to protect and

preserve the environment and save it for the future generations and to ensure good quality of

life that the Parliament enacted the Anti-Pollution Laws, namely, the Water Act, Air Act and

the Environment (Protection) Act, 1986.19

19. When a law is enacted containing some provisions which prohibits certain types of

activities, then, it is of utmost importance that such legal provisions are effectively enforced.

If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise,

infringement of law, which is actively or passively condoned for personal gain, will be

encouraged which will in turn lead to a lawless society. Violation of anti-pollution laws not

only adversely affects the existing quality of life but the non-enforcement of the legal

provisions often results in ecological imbalance and degradation of environment, the adverse

effect of which will have to be borne by the future generations.20

20. Article 48A in part IV (Directive Principles) brought by the Constitution 42nd

Amendment Act, 1976, enjoins that "the state shall endeavour to protect and improve the

environment and to safeguard the forests and wild life of the country". Article 47 further

imposes the duty on the State to improve public health as its primary duty. Article 51A

imposes "a fundamental duty" on every citizen of India to protect and improve the natural

"environment" including forests lakes, rivers and wild life and to have compassion for living

creatures". The word 'environment' is of broad spectrum which brings within its ambit

"hygienic atmosphere and ecological balance". It is, therefore, not only the duty of the State

but also the duty of every citizen to maintain hygienic environment. The State, in particular

19
MC Mehata vs Union of India AIR1986 SC 125
20
Indian Council for Enviro-Legal Action v. Union of India and others (1996) 5 SCC Page 281, ¶26, 28 and 41

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has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in

its policy to maintain ecological balance and hygienic environment.

21. The onus lies on the both Centre and State Governments and Its departments to

maintain the standards enacted under the law. The Court can take judicial notice of the fact

that the Central Pollution Board as well as the State Pollution Board are well aware that the

standards and parameters to maintain the quality of water of holy and scared river Garuda are

not being maintained. Stern action, required under the law, has not been taken against the

defaulters.

2.3 Violation of Article 21

2.3.1. That the State has a positive obligation to guarantee A.21 of the Constitution.

22. The Rights read into A. 21 are those Directive Principles which the Supreme Court

believed important enough to make justiciable by including them under the ambit of

Fundamental rights. Though A.21 is couched in negative phraseology,21 it enforces positive

obligations22 on the state to take steps to ensure that the individual enjoys a dignified life. 23In

the present case, the Government of Indi has aware of the pollution which is caused due to

sewage water and religious practice but failed to take necessary action to prevent it.

23.Post Maneka Gandhi v. Union of India,24 the Supreme Court expanded the phrase

“personal liberty” in its interpretation of A. 21 to the widest amplitude.25 This fundamental

right guarantees various rights, the following of which have been violated in this situation:

21
Nandini Sundar and Ors. v. State of Chhattisgarh, AIR2011SC2839, ¶63.
22
Maruti Shreepati Dubal v. State of Maharashtra, 1987 (1) Bom CR 499.
23
Alan Gewirt, Are All Rights Positive?,Philosophy&PublicAffairs,Vol.30,No.3,2001,p.321.
24
Here in after referred to as the ‘Maneka Gandhi case’.
25
Pathum Maand Ors.v. State of Kerala and Ors. AIR 1978 SC 771.

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2.3.2. That A. 21 extends to the right to water and the same has been violated.

That Article 21 extends to the right to water.

24.The Hon’ble Supreme Court has interpreted the Right to Water within the Right to Life

and Liberty,26 and has given a differential importance to it in accordance with its two primary

functions;

[a] For the purpose of consumption: water is imperative to the survival of man and is thus

regarded as a human right.27 This right has been read into A.21 as an absolute right and the in

keeping with the Directive Principle of State Policy under A.47,28 reminded the State of its

duty to provide for the same to its citizens.29

(b) For purposes of irrigation and domestic use: it is observed that the right to flowing water

'is a right publici juris’30 and though not an absolute or human right, water for this purpose is

recognised under A.21 as a Right to Use Water. In Narmada Bachao Andolan v. Union of

India and Others,31 the Hon’ble Supreme Court upheld the Right to Water as a fundamental

right.

25. Inclusion of water into A.21 shows the indispensable importance of water. 32In the

given case, all the citizen of Indi has an equal right to clean water and right to use clean water

as guaranteed by A.21 of the Constitution. Since both these rights are imperative to a

dignified life and are so intrinsically related with the survival of the human being as well as

other living species. The State has to ensure these rights in their absolute form and it has to

protect the fundamental right of every citizen. In light of the aforementioned law, cases and

arguments, the Counsel humbly submits that the Right to clean Water has been violated and

26
State of Karnataka Vs. State of Andhra Pradesh & Ors.,AIR 2001 SC 1560.
27
Atma Linga Reddy and Ors .v. Union of India(UOI)andOrs,AIR2009SC436.
28
A.P.PollutionControlBoardIIvProf.M.V.NaiduandOthers(CivilAppealNos.368-373of1999).
29
Narain Vrinda, Water As A Fundamental Right: Perspective From India,2009,VermontLawReview,p.917.
30
Clarkv. Allaman, 71Kan.206:70LRA971, upheld in Cauvery Water Disputes Tribunal, AIR 1992 SC 522.
31
Narmada Bachao Andolan v. Union of India and Others, AIR2000SC3751.
32
C.Ramachandraiah, Drinking Water As A Fundamental Right, Economic and Political
Weekly,Vol.36,No.8(Feb.24-Mar.2,2001),p.619-621.

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consequently, the Right to Life and Liberty has also been violated as guaranteed by A. 21 of

the Constitution.

2.3.3. That A. 21 extends to right to basic necessities and the same has been violated

26. Water is considered as basic necessities for every individual and living creature .The

Hon’ble Supreme Court has read Right to Basic Necessities33 into the Right to Life and

Liberty under A.21.34 This right inherently ensures a dignified life to citizens of India,35

which not only entails an assurance of fulfilling their primary needs which includes right to

water,36 but also guarantees all those conditions to the citizens which make life worth

living.37 A.21 of the Constitution has been given a qualitative concept to Life,38 and it

safeguards the basic human rights required of every civilization.39

2.3.4. That A. 21 extends to Right to Livelihood and Right to Work and the same have been

violated.

27. The landmark case Olga Tellis v. Bombay Municipal Corporation,40 established that

Right to Livelihood, is a fundamental right under the purview of A.21.

“Deprive a person of his right to livelihood and you shall have deprived him of

his life.”41

In Delhi Development Horticulture Employee’s Union v. Delhi Administration,42 the Supreme

Court further expanded this Right to life include the Right to Work.

33
Byrraju Ramalinga Rajuv. The State CBI, Criminal PetitionNo.5454of2009.
34
Durga Das Basu,CommentaryontheConstitutionofIndia,Vol.3,8thed.,2008,p.371.
35
Francis Coralie Mullin v. The Administrator, Union Territory ofDelhi&Ors.,AIR1981SC746.
36
Supran.44, p. 1272.
37
M.P. Jain, Indian Constitutional Law, Vol.1,5thed.,2003,p.1309.
38
Chameli Singh v. State of Uttar Pradesh, AIR1996SC1051.
39
Justice Fazil Karim, Judicial Review Of Public Action, Vol.1pp.588-589.
40
Olga Tellis v. Bombay Municipal Corporation, AIR1986SC180.
41
Olga Tellis v. Bombay Municipal Corporation AIR1986SC180,¶32.

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A.37 though renders Directive Principles unenforceable; A.39 (a) and A.41have been read

harmoniously43 with fundamental rights. The State has an obligation to ensure that Right to

livelihood and Right to Work should be read into Right to Life.44

28. Every occupation is somehow connected to the requirement of water, its pollution

and impact on clean drinking water creates such a drastic impact on the livelihood of people

of Indi. Every person have been guaranteed a Right to a Dignified life which guarantees them

of their livelihood and Work, under A. 21 which as specified in §2.1., entails a positive

obligation on the state to provide them with water, the very means of their livelihood.

In light of the aforementioned law, cases and arguments, the Counsel humbly submits that the

pollution caused due to non-effective implementation of policy and failure to take necessary

steps led huge pollution and deprivation of their Right to Livelihood and Right to Work under

A. 21 of the Constitution.

III THAT THE DOCTRINE OF PUBLIC TRUST IS TO BE EXERCISED BY THE

GOVERNMENT AND THE NON- EXERCISING OF THE SAME HAS VIOLATED

ENVIRONMENTAL RIGHTS OF THE CITIZENS OF INDI.

3.1. That the Doctrine of Public Trust is to be exercised by the Government of India.

29. The doctrine of Public Trust in Common law45 states that the government holds the

natural resources as a trustee and it has to protect them for the benefit of the general public.46

The nucleus of this Doctrine was formulated by Professor Sax,47 who believed that

42
Delhi Development Horticulture Employee’s Union v. Delhi Administration, AIR1992SC789.
43Minerva Mills Ltd .and Ors. v. Union of India(UOI)andOrs.,AIR1980SC1789.
44Arvind P. Datar, Datar On Constitution Of India,Wadhwa&Company,ed.2001,p.340.
45Justice TS Doabia, Environmental & Pollution Laws in India,WadhwaNagpur,Vol.1,1sted.,2005,p.423
46KR Shenoy v. Chief Officers Town Municipal Council, AIR174SC2177.
47Joseph Lax, Public Trust Doctrine In Natural Resource Law: Effective Judicial
Intervention,MichiganLawReview,Vol.68,PartI.

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“Public trust problems are found whenever governmental regulation comes into

question, in situations where diffused public interests need protection against

tightly organized groups with clear and immediate goals.”

30. This understanding of the doctrine was first adopted by the Indian Judiciary in MC

Mehta v. Kamal Nath & Ors.48 to determine the environmental rights of the citizens. The state

as a trustee is expected to safeguard the natural resource for the benefit of the public and to

ensure that these are utilised and protected in a well sufficient manner.

3.2. That the Doctrine has not been followed.

31. In this case, if the government had been genuinely working for the interests of the

general public, then even after introducing several policies for the protection of national river

Garuda it has failed to protect it from source of pollution and failed to protect it as trustee,

Due to the aforementioned principle, law and arguments, the Counsel humbly submits that

the environmental rights of the Indi have been violated due to a breach in the Public Trust.

IV. WHETHER THE GOVERNMENT OF INDI HAS FAILED TO PROTECT THE

NATIONAL RIVER GARUDA.

32. The River Garuda supports many areas of life in Indi. Hindus consider the river as

holy, and as such, it supports ceremonial functions along its length. Not only is the water

believed to be sacred and purifying, but the river itself forms an important part of the death

ritual. Cremation alongside the Garuda and scattering ashes into the waters ensures passage

into the afterlife for believers. For the living, bathing in the Garuda is purifying, both

48
MC Mehta v. Kamal Nath & Ors v. Kamal Nath & Ors.,(1999)4CompLJ44(SC),¶ 52

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physically and spiritually washing away sins. Each year, devotees gather along the river to

worship and to give offerings.

4.1Government Failed to Protect River

33. Millions of people in the Garuda drink its water under an abiding faith and belief to

purify themselves to achieve moksha release from the cycle of birth and death. It is tragic that

the Garuda, which has since time immemorial, purified the people is being polluted by man

in numerous ways, by dumping of garbage, throwing carcass of dead animals and discharge

of effluents. Scientific investigations and survey reports49 have shown that the Ganga which

serves one-third of the India's population is polluted by the discharge of municipal sewage

and the industrial effluents in the river.50

34. The river and its many tributaries also support basic water needs for populations along

its course. According to a BioMed Central article, around 400 million people draw water for

bathing, cooking and agriculture from the river, often very close to where sanitation drains

empty sewage and industrial effluent into the water course. As populations increase, pressure

on the river rises, and Garuda river pollution hits critical levels.

35. The principal sources of pollution of the Garuda river can be characterised as

follows: • Domestic and industrial wastes, domestic wastewater of industrial sewage are

going into the river. • Solid garbage thrown directly into the river. • Non-point sources of

pollution from agricultural run-off containing residues of harmful pesticides and fertilisers. •

Animal carcasses and half-burned and unburned human corpses thrown into the river. •

Defecation on the banks by the low-income people. • Mass bathing and ritualistic practices.51

49
SISR Report 2016
50
Rural Litigation & Entitlement Kendra & others v. State of UP and A.I.R. (1987) SC, p359,
51
Report Published by World Health Organization on 2018

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36. Uttarakhand Environment Protection and Pollution Control Board (UEPPCB)52

conducted a study and slotted the water of river Ganga in four categories: (a) being fit for

drinking, (b) for bathing, (c) for agriculture and (d) for excessive pollution. The level of

coliform bacteria in the river water is above the prescribed limit. The coliform found in the

water should be below 50 mpn/100 ml to be fit for drinking; less than 500 mpn/100 ml for

bathing and below 5000 mpn/100 ml for agricultural use. The present level of coliform in

river Ganga has reached 5500 mpn/100 ml. The main cause attributed to the higher level of

coliform is the disposal of human faeces, urine and sewage directly thrown into the river from

its origin in Gaumukh till it reaches Haridwar.

37. In a public interest litigation filed against Ganga Water Pollution, Court has held that

pollution of the river Ganga is affecting the life, health and ecology of the Gangetic Plan. It is

the sacred duty of all those who reside or carry-on business around the river Ganga to ensure

the purity of Ganga.53

Above data published by several agencies and court judgements were clearly shows that the

existence of pollution causes in the banks of river Garuda and failure of Government of Indi

to take necessary action to prevent it.

4.2 Polluters pay Principle and Sustainable development.

38. The 'polluter pays' principle is the commonly accepted practice that those who produce

pollution should bear the costs of managing it to prevent damage to human health or the

environment. Pollution is a civil wrong. By its very nature, it is a Tort committed against the

community as a whole. A person, therefore, who is guilty of causing pollution has to pay

damages (compensation) for restoration of the environment and ecology. He also has to pay

damages to those who have suffered loss on account of the act of the offender.

52
Average Data of River Ganga & Its Tributaries. Report published on May 2017
53
M.C. Mehta v. Union of India & others (1987) 4 SCC 463,

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39. Once the activity carried on is hazardous or inherently dangerous, the person carrying

on such activity is liable to make good the loss caused to any other person by his activity

irrespective of the fact whether he took reasonable care while carrying on his activity. 54 the

precautionary principle, the polluter pays principle form an intrinsic part of the laws of the

environmental laws of India. The ‘polluter pays principle’ was already considered as a part of

the customary practices of international laws for the protection of the environment. Hence,

the principles ought to be included in environmental laws of India.55,

40. Doctrine of “Sustainable Development” was discussed in the Stockholm Declaration of

1972. Thereafter, in 1987, the World Commission on Environment and Development

submitted its report, called “Our Common Future”. In 1992, Rio Declaration on Environment

which is regarded as a significant and a milestone set anew agenda and Development codified

the principle of Sustainable Development. Principle of Sustainable Development has to be

adopted as a balancing concept. Precautionary Principle and Polluter Pays Principle are

acceptable as part of the law of country and should be implemented. The precautionary

environmental measures should be taken by the State Government and statutory authorities

and lack of scientific certainty cannot be a ground for postponing such measures where there

are serious threats to ecology56.

41. In this present case, although respondent is completely aware of river’s condition and

its source of pollution, hasn’t take any proper action to prevent it and has failed rejuvenate it.

In 2017 the Uttarakhand High court declared river Garuda as Living entity to protect it from

destruction. Later the SC over ruled the High Court judgement and directed the respective

government to maintain river properly. This clearly shows that amount of destruction which

has been caused to river and the urgency to protect it. Present condition of river and non-

54
Indian Council for Enviro - Legal Action v. Union of India, J.T. (1996)
55
Research Foundation for Science Technology National Resource Policy v. Union of India and Anr
56
Vellore Citizens Welfare Forum v. Union of India and others (1996) 5 SCC Page 647,

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implementation of effective action is clear violation of international norm and principle laid

down by apex court matter governing environmental issue.

42. All the rivers have the basic right to maintain their purity and to maintain free and

natural flow. River Garuda is flowing since time immemorial. It has provided us drinking

water and irrigated our lands. River Garuda is the soul of India. In our National Anthem,

there is a reference of most sacred rivers Ganga and Yamuna, which shows our respect and

cultural values for the rivers. However, the fact of the matter is that we have polluted her soul

by permitting the pollutants to be discharged into the river. We have to change our rituals

with the passage of time in order to maintain the purity of water of river Ganga. One or two

generations cannot be permitted to pollute the rivers and to destroy their free and natural

flow. The rivers must exist in their pristine glory for coming generations. The Courts cannot

permit impairment of water quality of rivers.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is

humbly requested that this Honourable Court may be pleased to adjudge and declare:

1. That the PIL filed by Mr. X is maintainable by Supreme Court of Indi.

2. That Banks of river Garuda shouldn’t be used as cremating grounds.

3. Fix the quantity of ashes to be scattered to a limit of 10gms.

4. That the above said practice is violative of Art.21 of the Constitution.

5. That violations in this regard be penalized and imprisoned for up to 20 years.

And pass any such order, writ or direction in the interest of Justice, equity and Good

conscience as the Honourable Court deems fit and proper, necessary on the facts and in

circumstances of the case.

FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL AS INDUTY BOUND

EVER PRAY

ALL OF WHICH IS RESPECTFULLY SUBMITTED

PETITIONER IN PERSON

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