(HNMCC), 2014

MEMORIAL ON BEHALF OF THE RESPONDENT

TEAM CODE -1
Before
THE HONBLE SUPREME COURT OF ARESSIA
AT AHALI CITY

IN THE MATTERS CONCERNING LINKING OF RIVERS

ORIGINAL SUIT NO.____OF 2014 (UNDER ARTICLE 131 OF THE CONSTITUTION OF ARESSIA)
STATE OF ADHALI & STATE OF PARMALA APPELLANT
v.

UNION OF ARESSIA...RESPONDENT
&
WRIT PETITION (CIVIL) NO. ___OF 2014 (UNDER ARTICLE 32 OF THE CONSTITUTION OF ARESSIA)
SAVE THE FARMERS FORUM..PETITIONER
v.

UNION OF ARESSIA...RESPONDENT
&
SLP(CIVIL) NO. _____OF 2014 (UNDER ARTICLE 136 OF THE CONSTITUTION OF ARESSIA)
FORUM FOR ENVIRONMENTAL RIGHT ....APPELLANT
v.

UNION OF ARESSIA...RESPONDENT
&
SLP(CIVIL) NO. _____OF 2014 (UNDER ARTICLE 136 OF THE CONSTITUTION OF ARESSIA)
CENTRE FOR ENVIRONMENTAL RIGHTS AND ADVOCACY .APPELLANT
v.

UNION OF ARESSIA...RESPONDENT
MEMORANDUM ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS
INDEX OF AUTHORITIES ..III
STATEMENT OF J URISDICTION ..VIII
STATEMENT OF FACTS .IX
STATEMENT OF ISSUES XI
SUMMARY OF ARGUMENTS...XII
ARGUMENTS ADVANCED
1. THAT

THE PETITION FILED BY

FORUM

FOR

ENVIRONMENTAL RIGHT (FER)

IS NOT

MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA.1

1.1

THAT THE PETITIONER HAD NO LOCUS STANDI BEFORE THE HIGH

COURT

OF

NERUDA.1

1.2

THAT INTEREST OF THE NATION IS PLACED ON A HIGHER PEDESTAL VIS-- VIS

INTERNATIONAL OBLIGATION2.

1.3

THAT POLICY DECISIONS OF THE GOVERNMENT ARE NOT AMENABLE TO JUDICAL

REVIEW..3

2. THAT SECTION 3

OF THE

LINKING

OF

RIVERS ACT, 2010

IS NOT ULTRA VIRES TO THE

CONSTITUTION OF ARESSIA..5
2.1

THAT FEDERALISM IN ARESSIA IS RECOGNIZED BY STRONG CENTRALIZING

TENDENCIES.,5

2.2. THAT SCHEDULE VII OF THE CONSTITUTION OF ARESSIA CONFERS EXTENSIVE POWERS
ON THE CENTRE.6

2.3.

THAT

IN

PITH

&

SUBSTANCE

IMPUGNED

ACT

IS

CONSTITUTIONAL

.8

-I-

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MEMORIAL ON BEHALF OF THE RESPONDENT

2.4. THAT

THE

AUTHORITY

FORMED

UNDER

SECTION

3(3)

IS

VALID

AND

CONSTITUTIONAL10

3. THAT
STATE

THE EXCLUSION AND NON-IMPLEMENTATION OF

OF

VINDHYA

VINDHYA

LINKING

OF

RIVER PROJECT

IS NOT VIOLATIVE OF FUNDAMENTAL RIGHTS OF PEOPLE OF

FOR THE

STATE

OF

AND STATE OF NORMANDA11

3.1 THAT

OWING TO THE INTERNATIONAL OBLIGATIONS, EXCLUSION OF STATE OF

VINDHYA IS VINDICATED.11.

3.2 THAT THE IMPLEMENTATION OF THE PROJECT WILL DAMAGE THE LARGEST WETLAND
IN ARESSIA, RESULTING IN VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE
PEOPLE12

3.3 THAT THE EXCLUSION OF STATE OF VINDHYA IS AN ESSENTIAL POLICY DECISION AND
IS NOT ARBITRARY .14

4. THAT THE LINKING OF RIVERS ACT, 2010 DOES NOT VIOLATES THE ENVIRONMENTAL RIGHTS
OF CITIZENS OF

ARESSIA

AND THE PROVISIONS OF THE

FOREST (CONSERVATION) ACT,

1980.16
4.1. THAT

IMPLEMENTATION OF

LINKING

OF RIVERS ACT,

2010

IS NOT INCONSISTENT

WITH THE ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA.16

4.2 THAT DIRECTIVE PRINCIPLES OF STATE POLICY ARE TO BE READ AS COMPLEMENTARY

TO FUNDAMENTAL RIGHTS AND NOT IN VIOLATION OF IT.18

4.3. THAT THE LINKING OF RIVERS ACT, 2010 WOULD NOT VIOLATE THE PROVISIONS OF
FOREST (CONSERVATION) ACT, 1980..20
PRAYERXIV.

II

INDEX OF AUTHORITIES
REFERRED IN

CASE LAWS

1. A.D.M.,Jabalpur v. Shivakant Shukla (1976) 2 SCC 521, AIR 1976 SC 1207..3

2. Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547..14
3. Ashoka Smokeless Coal India (P) Ltd. v. Union of India, (2007) 2 SCC 640..14
4. Att.Gen. for Canada v. Att. Gen. for British Columbia, 1930 A.C.111.9
5. BanwasiSeva Ashram v. State of UP, (1986) 4 SCC 753.....19
6. Centre for Environmental Law, World Wide Fund-India v. Union of India, (2013) 8
SCC 234 ..18
7. Chameli Singh v. State of U.P., (1996) 2 SCC 549 ....3,9
8. Check Post Officer v. K.P. Abdulla Bros., (1970) 2 SCC 355.....10
9. Chinta Lingam v. Government of India, (1970) 3 SCC 768 ....10
10. Citizen, consumer and Civic Action Group v. Union of India,
AIR 2002 Madras 298........................................................................................................18
11. Citizens Insurance Company v. Parsons 7 A.C. 96.9
12. Common Cause, A Regd. Society v. Union of India (1999) 6 SCC 667.....2
13. D.D. Suri v. A.K. Barren,(1970) 3 SCC 313...4
14. Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal and others, (2007) 8
SCC 418.15
15. Essar Oil Ltd. v. Halar Utkarsh Samiti, (2004) 2 SCC 392..17,18
16. Gaurav Kumar Bansal v. Union of India, 2014 SCC OnLine SC 696..4
17. Godfrey Phillips India Ltd v. State of UP, (2005) 2 SCC 515.7
18. Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534..3,12
19. Harakchand v. Union of India (1969) 2 SCC 166...7
20. Haryana State Industrial Development Corpn. v. Shakuntla, (2010) 12 SCC 448 ..15
21. HinchLal Tiwari v. Kamala Devi, (2001) 6 SCC 4969
22. HSEB v. Ram Nath ,(2004) 5 SCC 793...1
23. Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281.18
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MEMORIAL ON BEHALF OF THE RESPONDENT

24. Intellectuals Forum v. State of A.P 2006 (3) SCC 549 19

25. Jagdish Prasad v. State of Uttar Pradesh ,AIR 1971 SC 12244
26. Janta Dal v. H.S.Choudhary, AIR 1993 SC 892: (1992)4 SCC 3051
27. Jilubhai Nanbhai Khachar v. State of Gujrat:1995 Supp (1) SCC 5965
28. Jolly George Varghese v. Bank Of Cochin, (1980) 2 SCC 360 : AIR 1980 SC
4703
29. Kannan D.H.P Co. v. State of Kerela, AIR 1972 SC 230110
30. Karnataka Industrial Areas Development Board v. C. Kenchappa, (2006) 6 SCC 371:
AIR 2006 SC 2038.16
31. Keshavanandbharti v. State of Kerela, AIR 1973 SC 146115
32. Kuldeep Singh v. Govt. of NCT of Delhi, (2006) 5 SCC 702...15
33. KuldipNayar v. Union of India, (2006) 7 SCC 16
34. M. C. Mehta ( Badhkhal and Surajkund Lakes Matter) v UOI, (1997) 3 SCC 715,13.
35. M. Indira and others v. State of Tamil Nadu and others (2012) 3 MadLJ 646.12,13
36. M.C Mehta v. Union of India(CNG Litigation), AIR 2002 SC 1696...17
37. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 14
38. M.K. Balakrishnan (1) v. Union of India, (2009) 5 SCC 507 9
39. M.R.F. Ltd. v. Inspector Kerala Govt. and Others (1998) 8 SCC 227 .15
40. M.V.AL Quamar v Tsavliris Salvage (International) Ltd. And Others
(2000) 8 SCC 278...4
41. Man Singh v State of Punjab, AIR 1985 SC 1737.10
42. Maneka Gandhi v. Union of India, (1978) 1 SCC 2482
43. ManoharLal Sharma v. Union of India, (2013) 6 SCC 616.9
44. Monnet Ispat& Energy Ltd. v. Union of India, (2012) 11 SCC 1.10
45. Narmada BachaoAndolan v Union of India, AIR 2000 SC 3751, (2000) 10 SCC
664...4,7,16,20
46. National Highways Authority of India through Project Director, Project Implementation
Unit, Karaikudi v Secretary to Government, Public Works Department, Chennai and
others 2014 (1) MLJ 644....18
47. National Legal service Authority v Union of India, (2014) 5 SCC 43812
48. Nature Lovers Movement v. State of Kerala, (2009) 5 SCC 373..20
2

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MEMORIAL ON BEHALF OF THE RESPONDENT

49. Navinchandra v. CIT AIR 1955 SC 58 : (1955) 1 SCR 8297

50. Networking of Rivers, In Re (2012) 4 SCC 514,14,17
51. Orissa Cement Ltd. 1991 Supp (1) SCC 430...10
52. P.T.R. Exports (Madras) Pvt. Ltd. &Ors. Vs. Union of India &Ors, (1996) 5 SCC
268.15
53. People United for better Living in Calcutta v. State of W.B., AIR 1993 Cal 215.13
54. Prof. Yashpal v. State of Chattisgarh (2005) 5 SCC 4207
55. Province of Bombay v. Bombay Municipal Corporation : AIR 1947 PC 3410
56. Public Services Tribunal Bar Assn. v. State of U.P., (2003) 4 SCC 104 6
57. Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727 15
58. Railway Board v. Chandrima Das, (2000) 2 SCC 465 2,3
59. Ram Chandra v.State of Madhya Pradesh, AIR 1971 SC 1284
60. RamlilaMaidan Incident, In re, (2012) 5 SCC 1,2
61. Registrar of Cooperative Societies v K. Kunjambu, (1980) 1 SCC 340, ..10
62. Research Foundation for Science and Technology and Natural Resource Policy v.
Union of India, (2012) 7 SCC 764.17
63. Russell v. The Queen,7 A.C. 829....9
64. S.P. Gupta v.Union Of India (1981) Supp SCC 87.4
65. S.R. Bommai v. Union of India (1994) 3 SCC 1.6
66. Sachidanand Pandey v State of West Bengal AIR 1987 SC 1109.19
67. Sat Pal &Co.v. Lt.Governor of Delhi (1979) 4 SCC 232...8
68. Shri Rama Sugar Industries Ltd. v. State of A.P., (1974) 1 SCC 534...15
69. Som Prakash Rekhi v Union of India AIR 1981 SC 212,..19
70. Sri Ram RamNarainMedhi v State of Bombay, 1959 Supp (1) SCR 289.10
71. State of A.P. v. McDowell & Co., (1996) 3 SCC 709.6
72. State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453..5
73. State of Bombay v. Narottamdas , AIR 1951 SC 69.10
74. State of Karnataka v State of A.P., (2000) 9 SCC 572,.7,19
75. State of Karnataka v. Union of India ,(1977) 4 SCC 6086
76. State of Madras v. Cannon Dunkerley, AIR 1958 SC 560..7
77. State of Orissa v. Govt. of India, (2009) 5 SCC 492...3
3

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MEMORIAL ON BEHALF OF THE RESPONDENT

78. State of Rajasthan v. Union of India, (1977) 3 SCC 5927

79. State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201.5,18,9
80. Subhas Kumar v State of Bihar, AIR 1991 SC 420..13
81. Susetha .vs State of TN (Susetha), (2006) 6 SCC 543..13
82. T.N. GodavarmanThirumulpad v. Union of India, AIR 2005 SC 4256...18
83. T.N. GodavarmanThirumulpad v. Union of India, (2006) 5 SCC 47...20
84. T.N. GodavarmanThirumulpad v. Union of India, (2009) 16 SCC 47613
85. T.N. GodavarmanThirumulpad v. Union of India, (2012) 3 SCC 277..14
86. TarunBhagat Singh Alwar v Union of India WP(Civil) No. 509 of 1991,Supreme Court:
AIR 1992 SC 514...14
87. Union of India and Others v Hindustan Development Corporation and Others, (1993) 3
SCC .......14
88. Union of India v. H.S.Dhillon,(1971) 2 SCC 729......8,19
89. Union of India v. Shah Goverdhan L. Kabra Teachers' College, (2002) 8 SCC 228..9
90. Vaamika Island (Green Lagoon Resort) v. Union of India, (2013) 8 SCC 760 ...13
91. Vishaka v. State of Rajasthan, AIR 1997 SC 301112
92. Zee Telefilms ltd. v. Union of India, (2005) 4 SCC 649.2

CONSTITUTIONS, STATUTES, NOTIFICATIONS, POLICIES ET AL

1. Air (Prevention and Control of Pollution) Act, 1981
2. Environment (Protection) Act, 1986
3. Forest (Conservation) Act, 1980
4. Constitution of India,1950
5. National Green Tribunal Act, 2010
6. National Forest Policy (1988)
7. Environment Impact Assessment Notification (2006)
8. MoEF, [Notification no 657 Regd number D.L- 33004/99] vide letter dated on December
4th, 2010
9. Wetlands(Conservation and Management) Rules,2010

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MEMORIAL ON BEHALF OF THE RESPONDENT

BOOKS REFFERED
1. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (14th ed., 2011)
2. H.M. SEERVAI, CONSTITUIONAL LAW OF INDIA(4 TH ED.,2008)
3. JUSTICE BHAGABATIPROSAD BANERJEE, BHASKARPROSAD BANERJEE &SANKARPROSAD
BANERJEE, WRIT REMEDIES (6TH ED. 2013)
4. JUSTICE T S DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA,(2ND ED., 2010)
5. M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW, (6TH ED.,2011)
6. SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA (2ND
ED.,2001)

TREATISES
1. Stockholm Declarartion, June., 6, 1972, U.N Doc. A/Conf.48/14/Rev
2. Rio Declaration on Environment and Development,Aug.,12 1992, A/CONF.151/26(Vol
1)
3. Convention on Wetlands of International Importance especially as Waterfowl Habitat
Ramsar, art. 2, 2.2.1971 as amended by the Protocol of 3.12.1982 and the Amendments
of 28.5.1987

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE RESPONDENT

STATEMENT OF JURISDICTION
The respondent humbly submits to jurisdiction of the Honble Supreme Court of Aressia in all
the matters linked by this Court pertaining to Linking of Rivers.

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MEMORIAL ON BEHALF OF THE RESPONDENT

STATEMENT OF FACTS
RELEVANT FACTS

Aressia, a South Asian country is a union of 26 states and is having a written Constitution and a
federal government with strong centralizing tendency. Being an agrarian economy, Aressia has
suffered due to the failure of agricultural crops in many regions owing to shortage of water.
Consequently, hundreds of farmers became bankrupt all over the country and many of them
committed suicide. ACLU, an NGO filed a petition before the Supreme Court of Aressia
concerning the menace of water scarcity. The Court directed the Government of Aressia to
constitute a High Level Expert Committee and an Environment Impact Assessment(EIA)
committee to conduct a study on the viability of linking of rivers across the country. In
compliance of the directions issued the Central government on December 2009, constituted the
afore mentioned committees. The EIA had adequate representations from different strata of
society. In May, 2010, EIA committee while submitting its report to the Central Government
suggested that, certain rivers can be linked together to assuage the situation and also identified
various environmental and social harms that may be caused. However, the EIA committee
approved the project and suggested certain precautionary measures.
THE LINKING OF RIVERS ACT,2010
Section 3 of the act states subject to the provisions of this Act, the Central Government, shall
have the power to take all such measures as it deems necessary or expedient for the purpose of
ensuring availability and accessibility of water and linking of rivers all over the country.
Section 3(3)the constitution of an authority for the exercise of such powers and performance of
such functions which are necessary for the linking of rivers across the country. On the basis of
this provision the Central Government constituted an Authority for Linking of Rivers (ALR)
through a notification in official gazette on September 28, 2010.
STATE OF ADHALI & STATE OF PARMALA V. UNION OF ARESSIA
The Central Government decided to implement the act in three phases. The rivers identified by
ALR in Phase I belonged to seven states including State of Adhali and Paramala. The rivers were
exclusively located within their territory but post implementation they will become inter-state.
State of Adhali and Parmala challenged the validity of Linking of Rivers Act, 2010. The States
argued that Section 3 is ultra vires to the Constitution of Aressia and is an encroachment by the
Center on the States power.
7

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MEMORIAL ON BEHALF OF THE RESPONDENT

SAVE THE FARMERS FORUM V. UNION OF ARESSIA

Out of the 12 rivers identified in the first phase from the State of Vindhya, 8 were to be linked to
Normanda which had severe water scarcity. State of Vindhya has been included in the Ramsar
List of Wetlands of International Importance. According to the State appointed EIA committee
this wetland will be damaged by the implementation of project. On request of State of Vindhya,
the Central Government directed ALR to exclude the State of Vindhya from the Linking of River
Project. Under the banner of, Save the Farmers Forum the farmers of both States approached
this Honble Court under Article 32 of the Constitution of Aressia impugning that the nonimplementation of the project will lead to deprivation of their fundamental right. The
government replied that such a decision was taken in lieu of their international obligation .
FORUM FOR ENVIRONMENTAL RIGHT V UNION OF ARESSIA
River Bhargavi which is a trans-boundary river has been identified by ALR in first phase.The
river starts in the State of Neruda and ends in the country of Boressia. In April 2013, the Minister
of Agriculture and Forest of Boressia, requested Union of Aressia to exclude river Bhargavi from
the first phase of Linking of River Project which was denied. In November 2013, FER an
international NGO with branch office in Neruda approached the Honble High Court of Neruda
assailing that the Linking of River Bhargavi will lead to destruction of forest area and wildlife,
submergence of wetlands and violation of right to livelihood of fishermen in Boressia. The High
Court dismissed the appeal in limine. FER has preferred an appeal before this Court.
CENTRE FOR ENVIRONMENTAL RIGHTS AND ADVOCACY V UNION OF ARESSIA
After a news report was aired including the negative opinions of the members of the EIA
committee appointed by the Central government. On 2nd April, 2014 Centre for Environment
Rights and Advocacy (CERA), an NGO impugned the legality of The Linking of Rivers Act,
2010 on the ground that the implementation of the project would violate the environmental
rights of the people of Aressia and also the provisions of the Forest (Conservation) Act, 1980.
However, on 4thJuly 2014, the NGT dismissed the petition filed by CERA against which Cera
has Appealed on 5th August 2014.
The Honble Supreme Court of Aressia for the sake of convenience decided to hear the petitions
together.

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MEMORIAL ON BEHALF OF THE RESPONDENT

STATEMENT OF ISSUES

1. WHETHER

THE PETITION FILED BY

FORUM

FOR

ENVIRONMENTAL RIGHT (FER)

IS

MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA?

2. WHETHER SECTION 3

OF THE

LINKING

OF

RIVERS ACT, 2010

IS ULTRA VIRES TO THE

CONSTITUTION OF ARESSIA?
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 S TATE OF NORMANDA?

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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MEMORIAL ON BEHALF OF THE RESPONDENT

SUMMARY OF ARGUMENTS
1. THAT THE PETITION FILED BY FORUM

FOR

ENVIRONMENTAL RIGHT (FER)

WAS NOT

MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA

It is humbly asseverated that in a Writ Petition under Article 226, Petitioner should have
a locus standi. This Legal standing has a quintessential connotation and it is a condition
precedent for the maintainability of a Writ Petition before the Court. Therefore, it
becomes imperative to establish that the interest of the People which the Appellant is
espousing, have legally enforceable rights, recognized under the Constitution of Aressia
.Union is obligated to safeguard the Fundamental Rights of person till the time he is
within the territorial bounds and not beyond it. The interest of the nation is placed on a
higher pedestal vis--vis international obligations. The instant case involves issues having
international and national aspects ,which renders it a policy decision. In such matters with
no legal standing interference in the policy decision is not warranted. Therefore, the Writ
Petition was not maintainable before the High Court of Neruda.

2. THAT SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS NOT ULTRA VIRES OF THE
CONSTITUTION OF ARESSIA

It is humbly submitted that Section.3 of Linking of Rivers, Act 2010is not ultra vires of
the Constitution of Aressia. The Quasi-federal character of Constitution aid in imparting
Constitutionality to the impugned Act. Under the Constitutional scheme Central
Government is couched with widest powers to enact such legislation. The act in pith and
substance is within the legislative competence of the Union.Also,Sec.3(3) does not confer
an arbitrary power upon Authority on Linking of Rivers (ALR), as the impugned Act
clearly lays down the policy and purpose for which it has been constituted. Therefore,
Section 3 is not ultra vires of the Constitution of Aressia.

10

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3. THAT,

MEMORIAL ON BEHALF OF THE RESPONDENT

THE EXCLUSION AND NON-IMPLEMENTATION OF

FOR THE

LINKING

OF

RIVER PROJECT

STATE OF VINDHYA IS NOT VIOLATIVE OF FUNDAMENTAL RIGHTS OF PEOPLE

OF STATE OF VINDHYA AND STATE OF NORMANDA

It is humbly submitted that there has been no violation of Fundamental Rights of the
people of State of Vindhya and Normanda due to exclusion of State of Vindhya.
Wetlands are an important part of our ecosystem which helps in maintaining ecological
balance. The act of exclusion is in consonance with the States obligation under the
Constitution. State of Vindhya was authorized to constitute an independent EIA
committee to evaluate consequential harm to the wetland in the State. Respondent after
taking into consideration the potential harm arising from proposed project considered it
expedient to exclude State of Vindhya. In addition to it, there is an established principle
in law that Courts should not preside over matters involving policy decision where such
decisions are rational. Therefore, the exclusion was not arbitrary and not in violation of
the Fundamental Rights of the people belonging to State of Vindhya & State of
Normanda..
4. THAT THE LINKING OF RIVERS ACT, 2010 DOES NOT VIOLATES THE ENVIRONMENTAL
RIGHTS

OF

CITIZENS

OF

ARESSIA

AND

THE

PROVISIONS

OF

THE

FOREST

(CONSERVATION) ACT, 1980

It is humbly submitted that the Linking of Rivers Act, 2010 is not in contravention with
the Environmental Rights of the citizens of Aressia and the provisions of the Forest
(Conservation) Act, 1980. The project is to be implemented for the benefit of the citizens
of Aressia and is in pursuit of national interest. The implementation would result in
availability of water not only for drinking but also the availability of water would be
conducive for agriculture and spread of green cover. The State has made endeavors to
strike a balance between the interest of citizens and environmental concerns. In the
instant matter implementation of the project aligns with the spirit of sustainable
development. Therefore, there is no violation of the environmental rights of the people
and Forest Conservation Act, 1980.
11

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ARGUMENTS ADVANCED
1. THAT

THE PETITION FILED BY

FORUM

FOR

ENVIRONMENTAL RIGHT (FER)

IS NOT

MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA

It is humbly asseverated that in a Writ Petition, Petitioner should have a legal standing. 1This
Legal standing has a quintessential connotation and it is a condition precedent for the
maintainability of a Writ Petition before the Court. As the Supreme Court of India has
observed,The requirement oflocus standiof a party to litigation is mandatory;because the legal
capacity of the party to any litigation whether in private or public action in relation to any
specific remedy sought for has to be primarily ascertained at the threshold. 2Therefore, it
becomes imperative to establish that the interest of the People which the Petitioner in the instant
case is espousing, have legally enforceable rights,recognized under the Constitution ofAressia.

1.1 THAT THE PETITIONER HAD NO LOCUS STANDI BEFORE THE HIGH COURT OF NERUDA
1.1.1 Under the Constitutional framework it is only the nationals over whom the States
exercise jurisdiction. Further, only a few fundamental rights have been guaranteed to Noncitizens and are enforceable against the state, the rest being available only to the citizens. 3
1.1.2 In order to ascertain the status of people (citizens of Boressia), who stand aggrieved by
the inclusion of River Bhargavi,it becomes pertinent to place reliance on an article on
"Citizenship and Allegianceby Salmond.The State, consists, in the first place, of all those who
by virtue of this personal and permanent relationship are its citizens or subjects, and, in the
second place, of all those who for the time being reside within its territory, and so possess a
temporary and territorial title to state-membership. Both classes are equally members of the body
politic, so long as their title lasts;"Non-resident aliens, on the other hand, possess no title of
membership and stand altogether outside the body politic". 4
1.1.3 Applying the notions of Salmond as reproduced above, it can be reasonably deduced that
the People whose rights were beingespoused by the Petitioner donot qualify as Nationals and
1

HSEB v. Ram Nath ,(2004) 5 SCC 793

Janta Dal v. H.S.Choudhary AIR 1993 SC 892:(1992)4 SCC 305
3
Art.14, Art.21,Art.22,Art,23 of Constitution of Aressia; Laws of India and Aressia are pari- materia
4
(1901) 17 L.Q.R 270;1SEERVAI H.M., CONSTITUTIONAL LAW OF INDIA 315 (6th ed. 2011)
2

12

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MEMORIAL ON BEHALF OF THE RESPONDENT

therefore the government of Aressia has no jurisdiction over them. These people can be labeled
as Non-resident aliens and hence they enjoy no rights under the Constitution.
1.1.4 It is an established position that a writ petition under article 226 is maintainable only for
enforcement of fundamental rights and for enforcement of public duties. 5 Thus, for the
maintainability of Petition under Article 226 it has to be proved beyond doubt that the aggrieved
people in Boressia have pre-existing rights under the Constitution, which are infringed.
1.1.5 On referring to standard books on interpretation for showing that it was a settled principle
of construction that all statutes were to be construed having territorial operation unless there was
aclear indication by express terms (and it may be added, by necessary implication) that they were
intended to have an extra territorial operation. 6Therefore a logical corollary can be drawn that the
Constitution of Aressia provides no fundamental rights to the people in Boressia and therefore
the Petitioners had no Locus standi to seek the remedy under Article 226 of the Constitution.
Another important aspect that needs to be made luminescent is that the State is obligated to
protect the right to life till the time the person is within the territorial bounds of the country
and not beyond it. 7

1.2 THAT

INTEREST OF THE NATION IS PLACED ON A HIGHER PEDESTAL VIS--VIS

INTERNATIONAL OBLIGATIONS

1.2.1 It is humbly submitted that the Government of Aressia, in compliance with directions of
this Honble Court in a PIL filed by ACLU to assuage the problem of acute water scarcity in the
country, constituted a High Level Expert Committee for evaluating the proposed Linking of
Rivers Project.8On reception of a favourable report, the Government in order to effectuate the
Project enacted a Legislation viz. Linking of Rivers Act,2010. 9An authority was also
constituted for monitoring the implementation of the said Project which had identified the
rivers which were going to be a part of First Phase of Project,Bhargavi being one among them. It

Common Cause, A Regd. Society v. Union of India (1999) 6 SCC 667 39; Railway Board v. Chandrima Das,
(2000) 2 SCC 465 7
6
Kailasam J, in Maneka Gandhi v. Union of India (1978) 1SCC 248 ,para ,1SEERVAI H.M., CONSTITUTIONAL LAW
th
OF INDIA 315 (6 ed. 2011) p.2515;Id.at 8
7
RamlilaMaidan Incident, In re., (2012) 5 SCC 1, 317;Zee Telefilms ltd. v. Union of India, (2005) 4 SCC 649
,Railway Board v. Chandrima Das, (2000) 2 SCC 465
8
Factsheet 3,4
9
Id. at 6

13

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MEMORIAL ON BEHALF OF THE RESPONDENT

is quiet an uncontroverted position that water has been recognized as indispensible for life and
has been held to be an intricate part of Right to life ,guaranteed under the Constitution in catena
of cases10.Therefore, it was incumbent upon the government to take affirmative action to help in
the realization of the Fundamental Right enshrined in our Constitution and at the same time
impart meaning to it.
1.2.2 InRailway Board v. Chandrima Das 11,Honble Supreme Court of India emphasised on
the need of respecting International Covenants and Declarations adopted by the United Nations
and all its signatories. The Court also went on to hold that applicability of the Universal
Declaration of Human Rights and the principles thereof may have to be read, if need be, into the
domestic jurisprudence. But at the same time it was observed that interest of the nation and the
security of State will have to be read into these international covenants.
1.2.3 Therefore, it is quiet palatable that while the Union is under a strict duty to uphold its
international obligations, any action or omission in pursuit of the interest of people and the
security of nation ought to be at pinnacle vis--vis any other obligation.It is also worth
mentioning that a customary international law is a part of domestic law as long as it is not
inconsistent with the Municipal law. 12It is implicit that interlinking of Bhragavi River was
authorized under the project and was in pursuance of fulfillingConstitutional obligation cast upon
the Union to ensure the realization of Fundamental Rights of the People.Therefore, any action of
the government cannot be impugned on the ground of being in breach of the international
obligations.

1.3 THAT POLICY DECISIONS OF THE GOVERNMENT ARE NOT AMENABLE TO JUDICAL REVIEW
1.3.1 It is humbly submitted that the Honble High Court of Neruda was correct in dismissing
the Writ Petition filed by FER as being not maintainable before it .The High Court may reject a
petition in limine if it takes the view that the petition raises complicated questions of fact for
determination which could not be properly adjudicated upon in a proceeding under

10

State of Orissa v. Govt. of India (2009) 5 SCC 492, 63;Chameli Singh v. State of U.P. (1996) 2 SCC 549 8
(2002)2SCC 465, 24
12
Justice H.R. Khanna's in A.D.M. v. Shivakant Shukla(1976) 2 SCC 521 : AIR 1976 SC 1207 , Jolly George
Varghes v Bank of Cochin (1980) 2 SCC 360 : AIR 1980 SC 470, Gramophone Co. case (1984) 2 SCC 534 : 1984
SCC (Cri) 313 : AIR 1984 SC 667
11

14

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MEMORIAL ON BEHALF OF THE RESPONDENT

Art.226.13Certainly the Court cannot be construed to be in a position to determine and examine

the deprivation caused by the impugned interlinking of rivers.
1.3.2 The domestic forums in Boressia were in the best position to ascertain the plight of the
people and accordingly provide a redress.14It is quiet implicit that dispute submitted before the
Court for adjudication constituted an international dispute. Constitution of Aressia is quiet lucid
that international disputes have to be settled by arbitration. 15 Therefore, Honble High Court of
Neruda was not an appropriate forum and hence doctrine of forum non conviens applies.
1.3.3 It is pertinent to mention that there are certain class of questions such as international
relations which cannot be entertained by the Court.16The issue of coordination at international
level with foreign countries and international bodies has to be left to the wisdom of experts in the
Government.17On matters affecting policy, the Court does not interfere unless the policy is
unconstitutional or contrary to the statutory provisions or arbitrary or irrational or in abuse of
power.18 It is now well settled that the Courts, in the exercise of their jurisdiction, will not
transgress into the field of policy decision. Whether to have an infrastructural project or not and
what is the type of project to be undertaken and how it has to be executed, are part of policymaking process and the Courts are ill-equipped to adjudicate on a policy decision so
undertaken. 19This has been reinforced by the judgment of Honble Supreme Court of India Court
in Networking of Rivers, In re20,Where it was observed that Court can hardly take unto itself
tasks of making of a policy decision or planning for the country under that programme.
Therefore in the instant matter it is expedient to submit that in such a dispute interference of this
Court is not warranted.

13

D.D.Suriv.A.K. Barren,(1970) 3 SCC 313;Jagdish Prasad v.State of Uttar Pradesh,AIR 1971 SC 1224;Ram
Chandra v.State of Madhya Pradesh,AIR 1971 SC 128
14
M.V.AL Quamar v Tsavliris Salvage (International) Ltd. And Others, (2000) 8 SCC 278 14,15,16
15
Article 51(d) of the Constitution of Aressia
16
S.P.Guptav.UnionOf India (1981) Supp SCC 87 998
17
Gaurav Kumar Bansal v.Union of India , 2014 SCC OnLine SC 696
18
Manohar Lal Sharma v. Union of India, (2013) 6 SCC 616, 14
19
Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 229
20
(2102)4 SCC 51 28

15

(HNMCC), 2014
2. THAT SECTION 3

MEMORIAL ON BEHALF OF THE RESPONDENT

OF THE

LINKING

OF

RIVERS ACT, 2010

IS NOT ULTRA VIRES TO THE

CONSTITUTION OF ARESSIA
It is humbly submitted that the Union has extensive powers to enact the Linking of rivers, Act
2010.The wide powers conferred by the Constitution upon the Union andthe quasi-federal
character of Constitution aid in imparting constitutionality to the impugned Act and therefore
Section 3 of Linking of Rivers, Act 2012 is not ultra vires.

The method of interpretation in cases of vires of an enactment has been enunciated by the
Honble Supreme Court of India in the case of JilubhaiNanbhaiKhachar v. State of Gujarat 21
Whenever the vires of an enactment is impugned, there is an initial presumption in favour of its
constitutionality and if there is any difficulty in ascertaining the limits of the legislative power,
the difficulty must be resolved, as far as possible, in favor of the legislature putting the most
liberal construction upon the legislative entry so that it may have the widest amplitude. 22
It is also pertinent to mention that due respect is to be accorded to an enactment of Parliament,
because in essence it is the reflection of the will of the people and it should not be lightly
inferred with. The unconstitutionality must be plainly and clearly established before an
enactment is declared as void and the same approach holds good while ascertaining the intent
and purpose of an enactment or its scope and application. 23 .
2.1 THAT FEDERALISM IN ARRESSIA

IS RECOGNIZED BY STRONG CENTRALIZING TENDENCIES.

2.1.1 It is humbly submitted that Constitution provides for a quasi-federal structure. Several
provisions of the Constitution unmistakably show that the Founding Fathers intended to create a
strong Centre. 24
2.1.2 On conspectus of the various Articles of the Constitutionit can be reasonably deduced
that the scheme of the Constitutionis such as to secure the principle of Union Supremacy.There
are a myriad of Articles in the Constitution which point towards dominance of the Centreviz.
significant absence of the expressions like federal or federation in the constitutional
vocabulary, Parliament's powers under Articles 2 and 3, the extraordinary powers conferred to
21

AIR 1995 SC 142,1995 Supp (1) SCC 596

Id. 7, p 69
23
State of Bihar v. Bihar Distillery Ltd. (1997) 2 SCC 453; 17
22

24

State of W.B. v. Kesoram Industries Ltd. (2004) 10 SCC 201 50

16

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE RESPONDENT

meet emergency situations25 and other relevant provisions have led constitutional experts to
doubt the appropriateness of the appellation federal to the Indian Constitution. 26In the
Legislative sphere, supremacy of the Centre is further established by a bare perusal of Art.246
and other Articles like 249, 250 252, 253and356.The argument pertaining to a strong Centre is
further substantiated by the fact that Apex Court affirmed the afore mentioned peculiarities to
militate against the existence of strong Federalism in India in the case of KuldipNayar v. Union
of India.27
2.1.3 At this juncture it becomes crucial to refer to the discussion in Constituent Assembly
Debates on federalism in Indian Constitution, where amidst deliberating upon the
characteristics which impart a federal character to our constitution, Shri T.T. Krishnamachari
emphasized on the most important facet of federalism and where upon he stated that some
powers of the state are bound to be circumscribed by the exercise of federal authority.28It is for
this reason that the Constitution has often been referred to as Quasi Federal. 29
2.2 THAT SCHEDULE VII OF

THE CONSTITUTION OF ARESSIA CONFERS EXTENSIVE POWERS ON

THE CENTRE

2.2.1 It is humbly asseverated before this Court that Schedule VII confers extensive powers to
legislate upon subjects for the purpose of linking rivers in public interest. It is pertinent to
mention that constitutional validity of an Act can be challenged only on two grounds viz. (i) lack
of legislative competence; and (ii) violation of any of the fundamental rights guaranteed in Part
III of the Constitution or of any other constitutional provisions. 30 In State of A.P. v. McDowell
&Co.31 this Court has opined that except the above two grounds there is no third ground on the
basis of which the law made by the competent legislature can be invalidated. It becomes
luminescent that the impugned Act was enacted by the Central government for linking of

25

Article 352, Article 356,Article 360 Constitution of Aressia

S.R. Bommai v. Union of India (1994) 3 SCC 1, 21
27
KuldipNayar v. Union of India (2006) 7 SCC, 63
28
Shri T.T. Krishnamachari,Constitutional Assembly Debates ;See alsoId . at 51
29
State of Karnataka v. Union of India (1977) 4 SCC 608, 220
30
Public Services Tribunal Bar Assn. v. State of U.P., (2003) 4 SCC 104 , 26
31
Id., (1996) 3 SCC 709
26

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MEMORIAL ON BEHALF OF THE RESPONDENT

rivers in order to mitigate the problems of acute water scarcity, thereby fulfilling its sacrosanct
obligation of upholding the fundamental rights enshrined under our Constitution. 32
2.2.2 Adverting to examining the constitutionality of an enactment on the anvil of legislative
competence it is submitted that Section 3 of the Linking of Rivers Act,2010 gives power to the
central government to take all the requisites steps for ensuring availability and accessibility of
water and linking of rivers all over the country. 33 When an entry is in general terms in List II and
part of that entry is in specific terms in list I, the entry in List I take effect notwithstanding the
entry in List II. 34So for the purpose of impugned Act Entry 56 List I becomes a specific entry
and entry 17,List II is general. Thus former takes effect notwithstanding the latter, thereby
imparting constitutionality to the impugned provision of the Act.
2.2.3 It is quiet settled law of interpretation that entries in the Seventh Schedule are not powers
but field of legislation. 35 The legislature derives its powers by Art.246 and other related Articles
of Constitution. 36 An important principle to interpret the entries is that none of them should be
read in a narrow, pedantic sense ;that the widest possible and most liberal construction be put on
each entry, and that each general word in an entry should be held to extend to all ancillary or
subsidiary matters which can fairly and reasonably be said to be comprehended in it. 37Applying
this principle it is quiet ostensible that the Central government was competent to enact the
impugned Act under Entry 56 List I.
2.2.4 In State of Rajasthan v. Union of India 38, Beg CJ while illuminating the dichotomy in the
federalism in Indian Union,opined that the federalism is largely watered down by the needs of
progress and development of a country which has to be nationally integrated politically and
economically coordinated and socially, intellectually and spiritually uplifted.State cannot stand

Right to water has been recognized as a concomitant of Right to Lifeenshrined under Article 21 of Constitution
of Aressia; Referred in NarmadaBachaoAndolanv. Union of India (2000) 10 SCC 664, 248;State of Karnatakav.
State of AP (2009) SCC 572, 178
33
3,Linking of Rivers Act,2010 Factsheet 3,
34
Prof.Yashpal v. State of Chattisgarh (2005)5 SCC 420
35
Harakchand v. Union of India (1969) 2 SCC 166 at 174
36
supra note 21 at 148
37
Id.;Prof.Yashpal v. State of Chattisgarh (2005)5 SCC 420;Godfrey Phillips India Ltd v. State of UP (2005) 2 SCC
515;Navinchandra v. CIT AIR 1955 SC 58 : (1955) 1 SCR 829, 836; See also State of Madras v. Cannon
Dunkerley AIR 1958 SC 560
38
(1977) 3 SCC 592 56
32

18

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE RESPONDENT

in way of legitimate and comprehensively planned development of the country in the manner
directed by the Central Government.
2.2.5 Same was reiterated in Kesoram Industries Case39 where the apex Court emphasised on a
flexible interpretation of provisions of the Constitution and the need to accompany them by
dynamism and lean, in case of conflict, in favour of the weaker or the one who is more needy.
2.2.6 That even recommendations of Sarkaria Commission40 on the need of having a Central
legislation, for reasons such as-uniformity in regard to main principles of law throughout the
country, subject matter of legislation having national, international aspects, implementation of
fundamental rights etc. accentuate the need of having a central legislation for

ensuring

availability and accessibility of water bylinking of rivers.

2.2.7 Another aspect which inclines constitutionality in favour of Section 3 of the Act is the
established principle that there are no fetters on the Centre to supplement its Legislative power
under Article 246(1)read with Entry 56,List I along with legislative power under Article 246(2)
read with Entry 20,List III viz. social and economic planning and the residuary power under
Article 248 read with Entry 97,List I. 41Also it is pertinent to mention that Apex Court has refused
to accept any limitation on the residuary power saying that it is not proper to unduly
circumscribe, erode or whittle down the residuary powers 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. 42
2.2.8 Thus, it is quiet discernible that a synthesis of powers to legislate under Schedule VII
provides the necessary competence to the Centre for enacting Linking of Rivers Act,2010 and
the Central Government under Section 3(1) has wide powers to take steps in order to attain the
objective of the Act.
2.3 THAT IN PITH & SUBSTANCE IMPUGNED ACT IS CONSTITUTIONAL
2.3.1 It is humbly submitted that before a 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 doctrine of

39

State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201, 50

Sarakaria Commission Report,P.
41
Union of India v. H.S.Dhillon (1971)2SCC 729, 87
42
Sat Pal &Co.v.Lt.Governor of Delhi (1979) 4SCC 232
40

19

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE RESPONDENT

pith and substance. 43 In Union of India v. Shah Goverdhan L. Kabra Teachers' College 44 the
Apex Court held that in order to examine the true character of the enactment, the entire Act, its
object and scope is required to be perused. The question of invasion into the territory of another
legislation is to be determined not by degree but by substance. The doctrine of pith and substance
has utility not only in cases of conflict between the powers of two legislatures but also in any
case where the question arises whether a legislation is covered by a particular legislative field
over which the power is purported to be exercised. The paramount consideration is to be given to
the substance of the impugned Act.
2.3.2 The acton application of the doctrine of Pith and Substance falls within Entry 57 List I ,
Schedule VII, the object being linking of rivers for assuaging the acute water scarcity. 45 In
essence it intended creation of interstate rivers under entry 56

List I of the schedule VII and

entails only an incidental encroachment upon the State legislative sphere i. e. Water. Moreover
Centre can supplement its powers under various entires viz. Entry 56,List I, Entry 97 List I and
Entry 20 of List III to enact a legislation for linking of rivers. 46Further, India being a party to
various international covenants like ICCPR, UDHR it is obligatory for her to provide water
which has been coroneted as a basic need 47. In pursuance of its international obligation the
Union under Article 253 has been provided with the power to legislate in any mater regardless to
which list it belongs. 48A bare perusal of List II Schedule VII makes it axiomatic that the State
was not competent to enact any such legislation which had national & international implications
and therefore it was only the Centre who could legislate on such a novel concept. As long as the
ACT 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
43

The rule has been borrowed from Canada. Some Canadian cases on the rule are: Citizens Insurance Company
v.Parsons 7 A.C. 96;Russell v. The Queen 7 A.C. 829;Att.Gen.for Canada v. Att. Gen. for British Columbia ,1930
A.C. 111
44
(2002) 8 SCC 228, 7
45
3 of the Act
46
Union of India v. H.S. Dhillon (1971) 2 SCC 729, 87
47
M.K. Balakrishnan (1) v. Union of India, (2009) 5 SCC 507 at 510,HinchLalTiwari v. Kamala Devi (2001) 6 SCC
496 at 501, 13,14; Chameli Singh v. State of U.P. (1996) 2 SCC 549 at 555 , 8
48
State of W.B. v. Kesoram Industries Ltd. (2004) 10 SCC 201para 258, the parliament under this power has enacted
the Environmental protection Act,1986 and Air (prevention and control of pollution)act,1981

20

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MEMORIAL ON BEHALF OF THE RESPONDENT

within the powers 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. 49In the instant case the impugned Act impinges upon the Legislative
domain of the States only to the extent it gives powers to the Centre to link rivers for ensuring
availability and accessibility of water, for all other purposes the states legislative power remain
unfettered.50This doctrine equips the Court with a tool to insulate the legislation. 51

2.4 THAT THE AUTHORITY FORMED UNDER SECTION 3(3) IS VALID AND CONSTITUTIONAL.
2.4.1It is humbly submitted that the formation of any authority is permissible if the legislature
settles the policy, there is no bar against leaving the matters of detail to be fixed by executive and
such delegation will not amount to excessive delegation of legislative power such as to vitiate the
enactment. 52 In the instant matter, the legislature has laid down a policy.
2.4.2The apex Court has also reiterated that in situation which calls for adjustment from time to
time in view of varying economic and social factors, a sufficient degree of flexibility is needed,
and consequently it was appropriate for the legislature to leave measures of control to the rulemaking power of the State government. 53The linking of river is a subject where functions and
powers of the authority cannot be determined and they are subject to change with the subsequent
consequence. Further, The Court has laid down that where the discretion to apply the provisions
of a particular statute made in public interest is left with the Government, there shall be a
presumption that the discretion will not be abused and will be exercised in accordance with rule
of law54The discretionary power given to the authority in this case is conferred as necessity
demands such discretion for implementation of the project in publicinterest particularly those
statues which are designed to further the Directive Principles of State Policy. 55

49

See Check Post Officer v. K.P. Abdulla Bros. (1970) 2 SCC 355

50

Monnet Ispat& Energy Ltd. v. Union of India, (2012) 11 SCC 1, 140; Orissa Cement Ltd. 1991 Supp (1) SCC
430, 49
51
Kannan D.H.P Co. v. State of Kerela, AIR 1972 SC 2301;State of Bombay v. Narottamdas , AIR 1951 SC 69
52
Sri Ram RamNarainMedhi v State of Bombay, 1959 Supp (1) SCR 289
53
Man Singh v State of Punjab, AIR 1985 SC 1737, 18
54
Chinta Lingam v. Government of India (1971) 2 SCR 871 : (1970) 3 SCC 768 See alsoProvince of
Bombay v. Bombay Municipal Corporation 73 IA 271 : AIR 1947 PC 34
55
Registrar of Cooperative Societies v K. Kunjambu, (1980) 1 SCC 340, 3

21

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MEMORIAL ON BEHALF OF THE RESPONDENT

3. THAT 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 S TATE OF NORMANDA

It is humbly submitted that there has been no violation of Fundamental rights of the people of
State of Vindhya and Normanda due to exclusion of State of Vindhya. The Central Government is
fulfilling its international obligations by protecting an imperative component of the Aressian
ecosystem in the manner desired by the Ramsar Convention on wetlands of international
importance. In doing so the Central government is striving to uphold the right to environment of
the people of Aressia which is concomitant to right to life under Article 21

3.1. THAT OWING TO THE INTERNATIONAL OBLIGATIONS EXCLUSION OF STATE OF VINDHYA IS

VINDICATED.

3.1.1 It is humbly asseverated that owing to the international obligations, State of Vindhya has
to be excluded. It is also humbly submitted that the farmers of State of Vindhya have no interest
in the instant matter. Also no legitimate expectations from the implementation of the project has
arisen which would render the exclusion arbitrary. The exclusion was deliberate, so as to protect
the ecosystem and to prevent the detriment of wetland.
3.1.2 The Ramsar convention renders the most conclusive definition of a wet land 56. The
Ramsar convention lays down two significant concepts relating to wetlands- First, the
contracting parties agree to promote the conservation of wetlands declared to be of international
importance. Secondly as far as possible, the parties should give emphasis on the wise use of,
wetlands in their territory57. Aressia has acceded to the Ramsar Convention thereby obligating
itself to the aforesaid commitments enunciated in the convention. It is owing to these obligations
that the government was forced to remove the State of Vindhya from the first phase of the
project.

56

Article 1(1) For the purpose of this Convention wetlands are areas of marsh, fen, peatland or water, whether
natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including
areas of marine water the depth of which at low tide does not exceed six metres.
57
Convention on Wetlands of International Importance especially as Waterfowl Habitat Ramsar art. 2, 2.2.1971 as
amended by the Protocol of 3.12.1982 and the Amendments of 28.5.1987

22

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MEMORIAL ON BEHALF OF THE RESPONDENT

3.1.3 The international obligations of a nation are considered to be a pertinent aspect of

governance which reflects as to how a nation honours its pacts.The supremacy of international
law lasts, pro forointerno, only so long as the State does not expressly and unequivocally
derogate from it.58 The fact that Aressiahas signed the Stockholm Convention 59 and the RIO
Declaration 60 binds the State to uphold the principles contained therein which provide express
directives for the State to safeguard the environment. It is evident that the exclusion of State of
Vindhya is in furtherance of its effort to safeguard an ecological asset against damage.
3.1.4 Aressia has identified the Wetland in State of Vindhya as warranted by the dictates of the
Convention.61In addition to that the Action taken by Authority is protected by the principles
enunciated under Article 253 of the Constitution of India.This Article62 empowers the Parliament
to enact laws even onthe State subjects in order to give effect to international convention 63. In
exercise of this power the Central government tnotified the Wetlands (Conservation and
management) rules, 2010 64 which mandates the protection of wetlands. Thus the exclusion was
in the light of these international obligations along with the doctrine of incorporation as carved
out by the judiciary in the context of Article 51 of the Constitution. 65

3.2 THAT THE IMPLEMENTATION OF THE PROJECT WILL DAMAGE THE LARGEST WETLAND IN
ARESSIA,RESULTING IN VIOLATION OFTHE FUNDAMENTAL RIGHTS OF THE PEOPLE.

3.2.1 It is pertinent to illuminate upon the significance of wetlands in maintaining the

ecological balance. When considered as an ecosystem, the wetlands are useful for a nutrient
recovery and cycling, releasing excess nitrogen, inactivation of phosphates, removing toxins,
chemicals, heavy metals through absorption by plants, and also in treating waste water. Retention

58

Gramophone Co. of India Ltd. v. BirendraBahadurPandey, (1984) 2 SCC 534 at 539

Stockholm Declarartion, June., 6, 1972, U.N Doc. A/Conf.48/14/Rev
60
Rio Declaration on Environment and Development,Aug.,12 1992, A/CONF.151/26(Vol 1)
61
M. Indira and others v State of Tamil Nadu and others,(2012) 3 MadLJ 646
62
Art.253-Legislation for giving effect to international agreements.- Notwithstanding anything in the foregoing
provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India
for implementing any treaty, agreement or convention with any other country or countries or any decision made at
any international conference, association or other body.
63
National Legal service Authority v Union of India, (2014) 5 SCC 438
64
MoEF, [Notification no 657 Regd number D.L- 33004/99] vide letter dated on December 4th, 2010
65
Vishaka v State of Rajasthan, AIR 1997 SC 3011
59

23

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE RESPONDENT

of sediments by wetlands also reduces siltation in the rivers. Wetlands also help in mitigating
floods, recharging acquifers and in reducing surface run off and consequent erosion. 66
3.2.2 The importance of conservation of wetland was highlighted in the case of Vaamika Island
(Green Lagoon Resort) v. Union of India,67 where the Honble Supreme Court of India observed
that conservation and safe guard of wetlands is expedient in want of public interest. Hence in the
instant matter considering the overarching interest of the conservation of wetlands because of
their utility, the actions of the state were vindicated. 68
3.2.3 The retention of water bodies is envisaged not only in view of the fact that right to an
wholesome environment has been recognized as a fundamental right under Article 21 69, but also
in view of the fact that the same has been recognized in Articles 48-A70 of the Constitution of
India and the Courts have often used this to interpret environmental rights71. Natural water
storage resources like wetlands are not only required to be protected but also steps are to be
taken for restoring the same if it has fallen to misuse. 72Thus, the Union of Aressia is enjoined
with a duty to maintain natural resources providing for water storage facilities and required to
take preventive measures.
3.2.4 While performing the duty enforcing organs of the mandate of the Constitution the
Honble Court has formed various principles in interest of protecting the environment. The
Precautionary principle, Doctrine of Intergenerational equity and Sustainable development
thathave been expounded by the Honble Court73 have made it obligatory for the state to put the
environmental interests above all other. The Court has also opined thatAny disturbance of the

66

M. Indira and others v State of Tamil Nadu and others: report of the study on the economics of ecosystems and
biodiversity: water and wetlands , UNEP/CBD/COP/11/INF/22, 26 September 2012
67
(2013) 8 SCC 760 at 768
68
supra note 61
69
Subhas Kumar v State of Bihar AIR 1991 SC 420 at 424; (2006) 6 SCC 543Susetha .vs State of TN(2006) 6 SCC
543
70
The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of
the country
71
Sachidnand Pandey . v State of W.B. AIR 1987 SC 1109 at 1114-15
72
People United for better Living in Calcutta v. State of W.B., AIR 1993 Cal 215; T.N. GodavaramThirumulpad v.
Union of India, (2006) 5 SCC 47
73
M. C. Mehta ( Badhkhal and Surajkund Lakes Matter) v UOI, (1997) 3 SCC 715

24

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE RESPONDENT

basic environment elements, namely air, water, soil which are necessary for life would be
hazardous to life within Article 21 of the Constitution.74
Thus it can be reasonably deduced that the exclusion of State of Vindhya by the Authority is the
reflection an eco-centric approach rather than an anthropocentric approach while dealing with
matters implementation of which can alter ecological balance of the society 75.
3.3

THAT THE EXCLUSION OF STATE OF VINDHYAIS AN ESSENTIAL POLICY DECISION AND IS

NOT ARBITRARY

3.3.1 It is humbly submitted that the decision taken by ALR as per the wishes of Central
government was not arbitrary.Further, asseverating the procedure adapted by the State of
Vindhyawas in consonance with the rules enacted, which authorizes the state to carry EIA before
any activity harming the wetland can be carried 76.In pursuance of this report,Honouring its
international obligation and keeping in mind that the Courts have always enunciated that the
environmentissuesshall receive the highest attention 77, ALR excluded the State of Vindhya.
Further, National wildlife action plan 2002-2016 specifically brings the protection and
enrichment of wetlands under its purview thus making it a policy decision. 78It is settled in law
that the judiciary cannot interfere into the policy decision of the government. A mere Change of
policy by itself does not render it arbitrary79especially when the decision was in furtherance of
the Directive principles of state policy80.
3.3.2 In the instant matter the questions concerningplanning, acquisition, financing, pricing,
civil construction, environmental issues are essential policy decisions affecting the legislative
competence and would squarely fall in the domain of the Government and the Court should
notinterfere in it81. It is also pertinent to mention that when in matters involving the nice
balancing of relevant considerations the Court will be justified in abstaining from ruling in such

74

M.C. Mehta v Kamal Nath, (1997) 1 SCC 388 81

Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547 : (2014) 3 SCC (Cri) 136 at 590 57.1
76
Rule 4 Sub rule 4 of Wetlands(Conservation and Management) Rules,2010
77
TarunBhagat Singh Alwar v Union of India(Sariska Case)WP(Civil) No. 509 of 1991,Supreme Court,14 May
1992: AIR 1992 SC 514
78
T.N. GodavaramThirumulpad v. Union of India, (2012) 3 SCC 277 at 18
79
Union of India and Others v Hindustan Development Corporation and Others (1993) 3 SCC 499 9,11,12,28,34
80
Ashoka Smokeless Coal India (P) Lts. And Others v Union of India And Others, (2007) 2 SCC 640 104,106
81
Networking of Rivers, In re., (2012) 4 SCC 51
75

25

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MEMORIAL ON BEHALF OF THE RESPONDENT

matters and resign itself to the decision of the concerned authority. 82Hence the decision of the
authority regarding the exclusion or inclusion of any river cannot not be questioned by the Court
as ALR is in the best possible position to judge that. 83
3.3.3 The Honble Supreme Court of India has exposited that the directive principles are to be
construed in such a manner so that they help in realization of the basic rights 84and anything done
in pursuance of this objective cannot be termed as arbitrary85. The Courts could interfere only if
the decision taken by the authority was arbitrary, unreasonable or not taken in public interest 86.
The Courts must follow an objective method by which the decision-making authority is given the
full range of choice which the legislature is presumed to have intended. If the decision is reached
fairly and objectively, it cannot be interfered with on the ground of procedural fairness 87 and as
mentioned the decision was taken in consonance with the wetland (conservation and
management) rules88. Thus where a change in the policy decision is valid in law, any action
taken pursuant thereto or in furtherance thereof, cannot be invalidated 89 and no question of
legitimate expectation would arise. 90
In the instant matter the decision has been made in interest of protecting the largest wetland of
Aressia and honouring the international obligations of the state as well as to secure the
Environmental rights of the citizens of India which has been recognized as a pimodial right
under Article 21 by the by the Honble Supreme Court.

82

Supra at note 17.

Haryana State Industrial Development Corpn. v. Shakuntla, (2010) 12 SCC 448 at 453 12.
84
Keshavanandbharti v State of KerelaAIR 1973 SC 1461
85
M.R.F. Ltd. v. Inspector Kerala Govt. and Others (1998) 8 SCC 227
86
Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttaranchal and others, (2007) 8 SCC 418
87
Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727 at 744 33
88
Supra note 73
89
Kuldeep Singh v. Govt. of NCT of Delhi, (2006) 5 SCC 702 at 712.
90
P.T.R. Exports (Madras) Pvt. Ltd. &Ors. Vs. Union of India &Ors, (1996) 5 SCC 268 , Shri Rama Sugar Industries
Ltd. v. State of A.P., (1974) 1 SCC 534 at 542 11.
83

26

(HNMCC), 2014
4 .THAT

THE

LINKING

MEMORIAL ON BEHALF OF THE RESPONDENT

OF

RIVERS ACT, 2010

VIOLATES THE ENVIRONMENTAL RIGHTS OF

CITIZENS OF ARESSIA AND THE PROVISIONS OF THE FOREST (CONSERVATION) ACT, 1980

It is humbly submitted that the Linking of Rivers Act, 2010 is not in contravention with the
Environmental Rights of the citizens of Aressia and the provisions of the Forest (Conservation)
Act,1980.The project is to be implemented for the benefit of the citizens of Aressia and is in
pursuit of national interest. The State has made endeavors to strike a balance between the
interest of citizens and environmental concerns.

4.1 THAT IMPLEMENTATION OF LINKING OF RIVERS ACT, 2010 IS NOT INCONSISTENT WITH THE
ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA
4.1.1 It is submitted before thisHonble Court that the implementation of the project would
augment the ecological balance by providing water to drought prone or arid parts of the country.
The implementation would result in availability of sufficient water not only for drinking or
sanitation but also for agricultural and industrial purposes. 91
4.1.2 The Supreme Court of India in a similar case, pertaining to construction of large dams,
held that the project would make positive contribution for preservation of environment in several
ways. It was also observed that availability of water would be conducive for agriculture and
spread of green cover in areas facing water scarcity. The Court devised the precautionary
principle to balance both the environmental and developmental imperatives.It was emphasized
that the construction of large dams would undoubtedly result in alteration of environment, but it
cannot be presumed that such a construction entails adverse consequences for the environment.
Therefore, the Court held the project would neither violate the mandate of Article 21 nor
sustainable development 92. The objectives of sustainable developmentinclude projects to be
integrated with environmental considerations. 93In the instant matter implementation of the
Project aligns with the spirit of Sustainable development.
4.1.3 The EIA committee formed by the Central Government has identified various
environmental and social harms that may be caused by the project while suggesting certain
91

Factsheet 8
Narmada BachaoAndolan v Union of India, AIR 2000 SC 3751
93
Karnataka Industrial Areas Development Board v. C. Kenchappa, (2006) 6 SCC 371: AIR 2006 SC 2038
92

27

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE RESPONDENT

precautionary measures to avoid such harms. 94 The precautionary principle mentions that it is
upon the developer to show that his action is environmentally benign. 95 It is luminescent that
State has taken necessary precautions in implementation of the project which is apparent from
exclusion of the largest wet land in Aressia. 96 The Courts can hardly take unto themselves the
tasks of framing a policy decision or planning for the country or determining economic factors or
other crucial aspects like need for acquisition and construction of river linking channels under
that program. 97
4.1.4 It is also asseverated that when the Government has taken all precautions to ensure that
the impact on the environment is transient and minimal, a Court will not substitute its own
assessment in place of the opinion of persons who are specialists and who may have decided the
question with objectivity and ability. 98Therefore, it is submitted that the Court should place
reliance on the report and presume that the respondent has taken all the taken all the necessary
precaution as mentioned by the EIA committee which was constituted as per the directions of
this Honble Court.
It cannot be denied that certain collateral damages will be take place on the implementation of
the project, but a panopticon view is desired recognizing the needs of the society to develops
well as protection of the environment. The Principle of Proportionality explains it is an exercise
in which the Courts have to balance the priorities of development on one hand and
environmental protection on the other hand. 99 In such matters the required standard is that the
risk of harm to environment or to human health is to be decided in public interest. 100In the like
vein, environment shall have to be protected, but not at the cost of development of the society.
Both shall co-exist and go hand in hand. Therefore, a balance has to be struck and administrative
actions ought to proceed in accordance therewith, and not de-hors the same. 101This is further
reinforced by a literal interpretation of, Principle 12 of the Stockholm declaration states that:the
environmental policies of all States should enhance and not adversely affect the present or future
94

Factsheet 5
M.C Mehta v. Union of India(CNG Litigation), AIR 2002 SC 1696
96
Factsheet 11
97
Networking of Rivers, In re., (2012) 4 SCC 51
98
Essar Oil Ltd. v. HalarUtkarshSamiti, (2004) 2 SCC 392 at 409
99
Research Foundation for Science and Technology and Natural Resource Policy v. Union of India,(2012) 7 SCC
764
100
Supra at note 2
101
Citizen, consumer and Civic Action Group v. Union of India,AIR 2002 Madras 298
95

28

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MEMORIAL ON BEHALF OF THE RESPONDENT

development potential of developing countries nor should they hamper the attainment of better
living conditions for all102.

4.1.5 The National Forest Policy impliedly statesthat such development projects are allowed
but should take measures for the harm so caused by the project. 103 The principal aim of forest
policy must be to ensure environmental stability and maintenance of ecological balance. The
derivation of direct economic benefit must be sub-ordinate to this principle aim. 104The objective
of the project is to secure benefit for people belonging to all strata of the society and as such
ought to override all other obligations including environment. Whereas it is not possible to
ignore intergenerational interest, it is also not possible to ignore the dire need which the society
urgently requires. 105
4.1.6 The objective of all laws on environment should be to create harmony between the two,
since neither one can be sacrificed at the altar of the other. 106The Court while examining all
environmental legislations in the light of Constitutional provisions and various international
conventions107observed that it is evident that there is a shift of focus from the environmental
rights to ecological rights, though gradual but substantial. 108In the present matter,
implementation of the project would enhance the ecological balance and therefore the
environmental rights of citizens.

4.2 THAT DIRECTIVE PRINCIPLES OF STATE POLICY ARE TO BE READ AS COMPLEMENTARY TO

FUNDAMENTAL RIGHTS AND NOT IN VIOLATION OF IT

4.2.1 It is humbly submitted that whenever there is a conflict between the Fundamental Rights
enshrined in Constitution vis--vis Directive Principles, the latter has to be construed in
consonance with the former. Thus, in the instant matter the obligation to provide its subjects with
102

Stockholm Declarartion, June., 6, 1972, U.N Doc. A/Conf.48/14/Revquoted in Essar Oil Ltd. v.
HalarUtkarshSamiti, (2004) 2 SCC 392
103
Provision 4.4.1 of National Forest Policy,1988
104
Basic objective 10 of National Forest Policy, This extract is taken from T.N. GodavarmanThirumulpad v. Union
of India, AIR 2005 SC 4256
105
National Highways Authority of India v Secretary to Government and others 2014 (1) MLJ 644
106
Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281 31; Id.
107
the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (Cites); Convention
on Biological Diversity, 1992 (CBD)
108
Centre for Environmental Law, World Wide Fund-India v. Union of India, (2013) 8 SCC 234 44.

29

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MEMORIAL ON BEHALF OF THE RESPONDENT

water is the paramount for the government. The Supreme Court of India has opined, that where
the scheme is of national importance, deforestation may be allowed for such purpose. 109
Provision for drinking water should be a primary consideration. 110 Water is an important factor
in the economic development of the country which ultimately affects the social and human
relations between the habitants.111 Water is a basic need for the survival of human beings and is
part of right to life and human rights as enshrined in Article 21 and thus the directives under
article 48-A of the Constitution should be construed harmoniously so as to effectuate the
realization of fundamental rights. 112Further, National water policy also states that the water
resources available to the country should be brought within the category of utilizable resources to
the maximum possible extent and in pursuance of this policy the project proposes a solution to
the problem by linking the water affluent rivers to those facing scarcity .113
4.2.2 The directive principles have been cited as complementary to the fundamental rights 114. It
has been reiterated by the Supreme Court of India that whenever a problem of ecology is brought
before the Court, the Court is bound to bear in mind Article 48A of the constitution which also
includes improvement of rivers. 115 The Court should not resort to the task of balancing relevant
considerations and if such a matter is presented before it then it should adopt a policy of
resignation to the decision of the authority. 116 Hence, in the instant matter it would be expedient
for the Court to refrain from adjudicating on such intricate matters of competing constitutional
rights and directives.

109

BanwasiSeva Ashram v State of UP (1986) 4 SCC 753

Provision 4.1 of National Water Policy, 1987
111
State of Karnataka v State of A.P., (2000) 9 SCC 572
112
United Nations Water Conference 1977 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.Supra note 2 at248, United Nations Water Conference 1977 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.Supra n.2 atp.248
113
Provision 3.1 of National Water Policy, 1987
114
As in SomPrakashRekhi v Union of India AIR 1981 SC 212
115
Intellectuals Forum v. State of A.P,2006 (3) SCC 549
116
SachidanandPandey v State of West Bengal AIR 1987 SC 1109 at 1114,1115
110

30

(HNMCC), 2014
4.3 THAT

THE

LINKING

MEMORIAL ON BEHALF OF THE RESPONDENT

OF RIVERS ACT WOULD NOT VIOLATE THE PROVISIONS OF

FOREST

(CONSERVATION) ACT, 1980

4.3.1 It is humbly submitted that linking of rivers project constitutes a forest purpose as it was
ancillary to the development of forest. Non-Forest Purpose as mentioned in Explanation to
Section 2 of Forest(Conservation) Act, does not include any work relating or ancillary to
conservation, development and management of forests and wildlife. The implementation of
project is ancillary to the development of forest as it would enhance ecological balance and
would lead to water availability in arid parts of the country resulting in conservation of forest and
wildlife in those parts. The impact on environment should be seen in relation to the project as a
whole. As inferred from the case of Narmada Bachao Andolan v. Union of India,117while an area
of land will submerge but the implementation of project will result in multifold improvement in
the environment of the areas where the waters will reach. This project can also has the potential
to convert a wasteland into agricultural land and make the area greener. In addition to that the
Supreme Court of India in various cases has allowed the government to carry out its projects
even if there is deforestation by assigning a Compensatory Afforestation Charge 118 so that the
loss to nature can be counterbalanced.
4.3.2 The implementation of the project is for forest purpose and therefore no prior permission
is to be taken from the central government as prior approval is only needed for non-forest
purpose as per Section 2 of Forest (Conservation) Act, 1980.119

117

(2000) 10 SCC 664

T.N. GodavarmanThirumulpad v. Union of India, (2009) 16 SCC 476
119
Nature Lovers Movement v. State of Kerala, (2009) 5 SCC 373
118

31

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE RESPONDENT

PRAYER
Therefore in the light of issues involved, arguments advanced, reasons given and the authorities
cited, this Honble Court may be pleased:
a) To uphold the order passed by the High Court of Neruda and dismiss the Appeal filed by
Forum for Environmental Right (FER).
b) To declare that Section 3 of the Linking of Rivers Act, 2010 is not ultra vires to the
Constitution of Aressia.
c) To dismiss the Writ Petition filed by the Save the Farmers Forum and hold that the
exclusion and non-implementation of Linking of River Project for the State of Vindhya
by ALR is not violative of Fundamental Rights of people of State of Vindhya and
Normanda.
d) To dismiss the appeal filed by CERA and declare that the Linking of Rivers Act, 2010 is
not in contravention with the environmental rights of citizens of Aressia and the
provisions of the Forest (Conservation) Act, 1980
Any other which this Honble Court may be pleased to grant in the interests of Justice, Equity
and Good Conscience. All of which is respectfully submitted.
For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.

Sd/(Counsels for the Respondent)

XIV