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NHRC-NUSRL NATIONAL MOOT COURT

COMPETITION 2023

Before
THE HON’BLE SUPREME COURT OF INDIA

FILED UNDER ARTICLE 32 OF

THE CONSTITUTION OF INDIA

IN THE MATTER BETWEEN:

THE PETITIONER ELIS ANTI-RADIATION ORGANISATION

VERSUS

THE RESPONDENT UNION OF INDIA AND OTHERS

MEMORIAL for PETITIONER

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TABLE OF CONTENTS

Cover Page...............................................................................................................................1

TABLE OF CONTENTS........................................................................................................1

INDEX OF AUTHORITIES...................................................................................................2

INDEX OF ABBREVIATIONS..............................................................................................3

STATEMENT OF JURISDICTION.......................................................................................4

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

ISSUES RAISED...................................................................................................................10

SUMMARY OF ARGUMENTS...........................................................................................11

ARGUMENTS ADVANCED...............................................................................................12

PRAYER FOR RELIEF........................................................................................................19

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INDEX OF AUTHORITIES

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INDEX OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

Hon’ble Honourable

Art. Article
Edn edition

AIR All India Reporter

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

Pvt Private

Ltd Limited

Co Company

Govt. Government

AC Appeal Cases

Sol Jo Solicitor’s Journal

QB Queen’s Bench

L Ed Lawyer’s Edition

LJKB Law Journal, King's Bench

EWHC England and Wales High Court

ALL ER All England Law Reports

WLR Weekly Law Reports

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STATEMENT OF JURISDICTION

Elis Anti-Radiation Organisation, the Petitioner, has the honour to submit

before The Hon'ble Supreme Court of India, the Memorandum for the
Petitioner under Article 32.

The Constitution of India, Article 32: Remedies for enforcement of rights conferred
by this part-

1. The right to seek the Supreme Court’s intervention through appropriate

proceedings for the enforcement of the rights conferred by this Article of the
Indian Constitution is guaranteed.

2. The Supreme Court shall have power to issue directives under orders or writs,
including writs in the nature of Mandamus and Prohibition, for the
enforcement of any of the rights conferred by this Part.

3. The right, unless as otherwise allowed by the Constitution, this article shall not
be suspended.

The present memorandum sets forth the facts, contentions and arguments in the present
case.

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STATEMENT OF FACTS

 The State of Apollo, a Schedule V state of the Indian Constitution, is a land with the
natural gift of immense mineral potential and other natural resources. The state is also
home to the largest reserves of Uranium. In the last 60 years, uranium has become one
of the world’s most important energy minerals. Nuclear energy is not only considered
cost-effective but also a cleaner alternative to fossil fuels. Elis district in the Apollo
state where the uranium reserves have been mainly found has been the main activity
centre of the Central Uranium Corporation Limited CUCL for its uranium mining and
processing activities for the last 40 years. India’s three-stage nuclear power
programme was formulated by Homi Bhabha, the well-known physicist, in the 1950s
to secure the country’s long term energy independence, through the use of uranium
and thorium reserves. Homi Bhabha conceived of the three-stage nuclear programme
as a way to develop nuclear energy by working around India’s limited uranium
resources. In November 1954, Bhabha presented the three-stage plan for national
development, at the conference on Development of Atomic Energy for Peaceful
Purposes which was also attended by India’s first Prime Minister Jawaharlal Nehru.

 The State of Athena, a Schedule VI state of the Indian Constitution, is another state
abundantly rich in mineral reserves. Uranium reserves were also discovered in large
quantities in the state of Athena. But, before the uranium mining activities could start
in a full-fledged manner in Athena, the project got suspended due to massive protests
from the locals residing there. Prominent local voices in the state claimed that
radiation exposure from uranium mining was leading to miscarriages, deformities in
new-born children, and diseases like cancer had become rampant after the start of the
exploratory drilling activities in the vicinity, based on the lessons learnt from Elis
District in State of Apollo. Water in the nearby streams and rivers had also got
contaminated as a result of the mining activities.

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 In the matter lying before the National Green Tribunal NGT, the Tribunal has not yet
permitted uranium mining in the state of Athena where the locals are fighting against
the projects. In Apollo High Courts Suo moto action, Court on its Own Motion v.
Union of India and Others, the court took Suo moto cognizance of a news item
published in Apollo Nation News dated 18th July 2012 relating to the devastating
effect of radiation emanating from the mining of uranium on environment and also on
population in Sumatra village in Elis in the State of Apollo. The Court showed deep
concern about the radioactive wastes discharged by the CUCL, putting 50,000 people
at risk. The Court ordered a fresh survey into the discharge of wastes and some
alleged leaks by an independent body and directed the Department of Atomic Energy,
Government of India to suggest names of experts.

 As a result of the following events, Elis Anti-Radiation Organization (IARO), an

NGO working in the State of Apollo filed a petition under Article 32 in the Supreme
Court of India demanding a complete closure of the country’s largest Uranium mines
operating at the Elis district of Apollo. They claimed that there existed a conflict of
rights between those exploiting the land for development vis-a-vis those who own it
and use it for subsistence. A Public Interest Litigation has been initiated in the
Supreme Court of India under Article 32 of the Constitution of India by IARO
praying for a complete closure of the uranium mines in the Elis District. It has come
down heavily on the state machinery for ignoring the health and ecological issues and
damages caused by the working of these mines. However, surprisingly, the Workmen
Association of the Uranium mines which comprising locals, of Elis district have
already been impleaded as a party to the matter. They are of the opinion that when
compared to hunger, pollution was a small issue. Their right to livelihood is
threatened due to the full closure of the mines and they may be left with lands
unsuitable for cultivation, if at all the lands are returned to them. The local workers
are against the closure of mines as they would be left jobless and homeless. The land
utilised for mining and additional parts of land have been rendered uncultivable. The
closure of mines will not result in returning of acquired lands and even if it does, the
lands would be waste lands, unusable and unsuitable for any purposes.

 Hence, the present petition.

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ISSUES RAISED

I. Whether the petition filed under Article 32 is maintainable?

II. Whether the direction of the Government of India is in violation of Article 19 of

the Constitution of India?

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SUMMARY OF ARGUMENTS

I. WHETHER THE PETITION IS MAINTAINABLE UNDER ARTICLE

32 OF THE CONSTITUTION OF INDIA?

It is most humbly submitted before this Hon'ble Court that the present petition
is maintainable because the Petitioner has the requisite locus standi and as
there has been a violation of fundamental rights under Articles 21. There is no
alternative and efficacious remedy in the present case, and the court is a
“sentinel on the qui vive”. Hence, the petition is maintainable under Article 32
of the Constitution of India to entertain a writ for protection and improvement
on environment and issue directions or orders to undo the cause of pollution
for the protection of the environment from degradation.

II. WHETHER THE DIRECTION OF THE GOVERNMENT OF INDIA IS IN

VIOLATION OF ARTICLE 19 OF THE CONSTITUTION OF INDIA?
It is humbly submitted before this Hon'ble Court that the direction of the
Government is in violation of Article 19 of the Constitution of India. The
direction is not reasonable as it poses unnecessary and excessive restrictions and
tends to unravel our country's democratic thread. The direction was not in the
public interest and furthers the rigidity in the society and their mindsets towards
the contemporary issues prevailing in our surroundings. The cartoon tries to
break a certain taboo while the article only attempts to highlight the
inefficiencies of someone who has the power to take the nation towards
whichever direction one wants. Freedom of speech is one of the most treasured
rights, but in this case, it is quite easily exploited by this direction of the
Government of India. Hence, the direction is violative of Article 19 of the
Constitution.

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ARGUMENTS ADVANCED

1. THE PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA
It is most humbly submitted before this Hon'ble Court that the present Writ petition is
maintainable because it has requisite locus standi and interest in the present case:-

I. There is no alternative and efficacious remedy in the present case.

II. Since the court is a “sentinel on the qui vive”.

III.The writ petition is maintainable under Article 32 of the Constitution of India.

1.1. THE PETITIONER HAS LOCUS STANDI AND SUFFICIENT INTEREST

It is most humbly submitted that this Hon'ble Court has held in the case of
Simranjit Singh Maan vs. UOI, that a mere threat to infringement of fundamental
rights is enough to justify the issue of the writ petition. Elis Anti-Radiation
Organisation has the requisite locus standi to approach this court in the present
matter. Locus Standi means the right to bring an action, be heard in court, or
address the court on a matter before it. In other words, the term “locus standi”
can be understood as a legal capacity to challenge legislation, an order or a
decision. Under Article 32 , this Hon’ble Court has power to grant remedial relief
which includes the power to grant compensation in appropriate cases where the
fundamental rights of the poor are violated.

1.2. NO ALTERNATE AND EFFICACIOUS REMEDY IS AVAILABLE TO THE

PETITIONER It is humbly submitted before this Hon’ble Court that approaching
the Supreme Court under Article 32 for the protection of fundamental rights is
itself a fundamental right. It is unnecessary first to approach the High Court and
exhaust the remedy under Article 226 before approaching the Supreme Court.
Hence, it was held before this Hon'ble Court that the mere existence of an
adequate alternative legal remedy could not be per se be a suitable and sufficient
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ground for dismissing a petition under Article 32 of India's Constitution.

Mandamus is not refused on the ground that there is an adequate alternative

remedy where the Petitioner complains that his fundamental right is infringed.
The courts are duty-bound to protect the fundamental rights, and therefore,
mandamus is issued. It is only when mandamus is issued "for any other purpose"
that the existence of an alternate remedy bars its issuance. In Rashid Ahmad v.
Municipal Board, it was held that in relation to the Fundamental Rights, the
availability of alternative remedy could not be an absolute bar for the issue of
writ however, the facts can be taken into consideration. By reason of the above
holdings, the present petition stands maintainable in the absence of an alternate
and efficacious remedy.

1.3. “THE HON'BLE COURT IS A “SENTINEL ON THE QUI VIVE”

This Hon'ble Court has repeatedly assumed the role of the “sentinel on the qui
vive” to enforce the fundamental rights of the people. It is the watchful Guardian
of our rights. It is humbly submitted that in light of the prevailing circumstances
in India, the Court has the constitutional duty and obligation to entertain this
petition. It is the duty of the Courts to examine the merits of each case with
respect to the prevailing situation, looking at the violations of the fundamental
rights alleged, and decide in view of the changing notions of life and personal
liberty of humans.

Therefore, we request this Hon’ble Supreme Court to hold the petition as

maintainable under Art. 32 of the Constitution of India.

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2. THE DIRECTION OF THE GOVERNMENT OF INDIA IS IN VIOLATION OF

ARTICLE 19(6) OF THE CONSTITUTION OF INDIA.

It is most humbly submitted before this Hon'ble Court that the direction given by the
Government of India is in violation of Articles 19(6) of the Constitution of India.
Article 19(1)(g) says to practice any profession, or carry on any occupation, trade or
business but is subject to restrictions imposed in the interest of the general public
under Article 19(6). In Burrabazar Fire Works Dealers Association and Others v.
Commissioner of Police, Calcutta AIR 1998 Cal. 121 , 15 it was held that the Article
19 (1)(g) does not guarantee any freedom which is at the cost of the community’s
safety, health and peace. Right to Health is a part and parcel of Right to Life and
therefore right to health is a fundamental right guaranteed to every citizen of India.
We owe the recognition of this right to the fact that this Supreme Court of India,
through a series of judicial precedents, logically extended its interpretation of the
right to life to include right to health.

2.1. THE DIRECTIONS OF THE GOVERNMENT ARE NOT REASONABLE

The Supreme Court has held that in examining the reasonableness of a statutory
provision, whether it violated the fundamental right guaranteed under Art. 19,
one has to keep in mind that the directions must not be arbitrary or of an
excessive nature, going beyond the requirement of the general public's interest.
No abstract or general pattern or a mixed principle can be laid down so as to be
of universal application. A just balance has to be struck between the directions
mandate and social welfare envisaged by Art. 19. We need to think about the
prevailing social welfare , which are to be satisfied with the appropriate
directions .There must be a direct and proximate nexus or a reasonable
connection between the legal directions and the object sought to be achieved by
the Act, that being so a strong presumption in favour of the constitutionality of
the Act will naturally arise.16 Now, in the present case

2.2. THE DIRECTIONS BY THE GOVERNMENT SEEMS ARBITRARY AND

UNJUSTIFIED

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There are numerous decisions, both from India and foreign countries which
mandate that “obscenity” should be gauged with respect to contemporary
community standards that reflect the sensibilities as well as the tolerance levels
of an average reasonable person.17
‘Apollo National News’ dated 18th July 2012 relates to the devastating effect of
radiation emanating from the mining of uranium on environment and the people
living in the vicinity . As related to the Indian Council for Enviro-Legal Action v.
Union of India , which too implies the plight of people living in a torturous
environment and further requesting for the remedial measures . These facts
simply indicates that the government is too careless to examine the harmful
devastating effects of something which is done in favour of so called nation
growth in name of life threats of innocent people . It is worthy to note the fact
that if the action is done by a PSU assigned by the Department of Atomic
Energy, Government Of India is violating a person’s fundamental right , the
court should not accept the mere excuse that it is not ‘State’ within the meaning
of Article 12, and therefore it is pleaded that the appropriate action should be
taken against it .

2.3. THE DIRECTIONS CANNOT JUSTIFY THE CONSTITUTION It is most

humbly submitted to the Hon’ble Court that the basic relevant provisions of the
Constitution are violated by the ‘State’ which further includes the right to healthy
life of an individual.

2.3.1. The Principles of substantial and grave injustice were propounded in M.C.
Mehta vs. State of Tamil Nadu which directly connects with the hazardous
employment of the people living thereby and thus considered a true meaning
of infringement of fundamental rights.

2.3.2. In Shriram Food and Fertiliser Case, well known as M.C. Mehta vs. Union
Of India, 1987 which allows the PIL to humbly submit the negligence of
management in maintenance which is hereby proven with the facts of the
case which comes under the absolute liability of the respondent.

2.3.3. Section 41-C of Factories Act 1948 impugned provisions for the specific
responsibility in relation to hazardous process to which the petitioner
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humbly submits its negligence.

2.3.4. Article 21 of the Indian Constitution guarantees the right to life and
personal liberty which includes the right to healthy environment free from
pollution through which the petitioner humbly submits the meaning of
communal harmony under the light of Ramesh vs. Union of India.

2.3.5. Balancing the interest of the petitioners through the merits of the case,
hence thereby, the pleading is constitutional in rule of law.

2.4. DIRECTIONS VIOLATING THE IMPUGNED SECTIONS AS IN LITERAL

MEANING

2.4.1. The Scope of Article 21 was elaborately considered by the supreme court
in Indian Council for Enviro-Legal Action vs. Union of India depicting the
plight of people living in vicinity of the chemical industry plants in India.
Compulsion, in this context, means no other alternative for the remedial
measures with the hope that this Hon’ble Court will entertain the matter with
full legal actions implementing the necessary issues and orders to perform
the various statutory duties as mentioned in various concerning acts and
regulations.

‘Polluter Pays Principle’ prima facie concerns with the principle on which
the liability of the respondents to defray the costs of remedial measures will
be determined is, “Polluter Pays”. It is thereby humbly submitted before this
Hon’ble Court to issue directions to check the requisite licenses and to
inquire about the installation of any equipment for treatment of highly toxic
effluents discharged by them and thereby in accordance to that it is pleaded
to quash the order of implementation of this mining company and forbid any
further works.
2.4.2. It is humbly submitted by the petitioners that Section 3(d) of Fair
Compensation and Transparency in Land Acquisition Rehabilitation and
Resettlement Act, 2013 has been violated as the work going on does not
define “public purpose” for which land has been acquired.
2.4.3. The ‘shady homes’ therefore contents with the fact that the impugned
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sections in the questions are not aligned with the provisions of Section 23 of
the LARR Act, which provides for compensation to be paid to the land
owners and those whose livelihoods are affected by the acquisition of
aforementioned land. It is felt that the interest of the local people who are
victims of the arbitrary action of the govt. is not protected under the Sec. 41
of the LARR Act which concerns the facility of providing rehabilitation and
resettlement of those affected by the land acquisition. The Objects and
reasons are not clearly defined by the govt. and thereby it is humbly pleaded
before this Hon’ble Court for the speedy trial to restore the infringed
fundamental right as mentioned.
2.4.4. A similarly placed classification in Article 21 was held to be reasonable in
Subhash Kumar vs. State of Bihar. Therefore reading this judgement in the
light of the fact of vulnerability of victims who have the right to enjoy
pollution free water and air which concerns the right to healthy life and
hereby this pleading is reasonable.
2.4.5. Reading all the aforementioned judgements, in parallel to the facts of the
present case, it is to be clearly noted that the impugned provisions stand tall
on all the tests pronounced by this Hon’ble Court.

2.5. NUISANCE AND NEGLIGENCE PROVING THE MERITS OF PENALTY:

2.5.1. It is humbly submitted by the petitioner that postulates of absolute liability
is in distinction to prove the merit of the case and to protect the wills of the
victims so that, a welfare state is established. M.C. Mehta vs State of Tamil
Nadu concluded that pollution is a civil wrong by its nature, it is a tort
committed against community as a whole. A person whosoever guilty of the
cause, has to pay for the damages and compensation thereby.

2.5.2. It is thereby pleaded in this Hon’ble Court that the ‘State’ cannot have a
just excuse to defend and can be proved guilty as per the statements which
arise during the proceedings. In Pakkle vs. P. Aiyaswami Ganapathi, the
court has observed that the standard of reasonableness is to be judged
accordingly in compliance to the principles of ‘sovereign immunity’.

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2.5.3. The objects and reasons of this petition corelates with the magnitude and
gravity of the harm caused, it is pleaded before the court that an absolute
liability must be obliged with the considerable compensation to disprove the
negligence caused so that it can respectfully be submitted the interpretation
of Nilabati Behera vs. State of Orissa which laid down the principle for the
awarding of compensation by the court under Article 32 to the victim of
State action.

2.6. PROCEDURAL LAW DICTATING THE MERITS OF PENALTY

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PRAYER FOR RELIEF

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