IN THE HON’BLE SUPREME COURT OF INDIGO

No………………of 2019

IN THE MATTER OF

MR.ABC ………..PETITIONERS

V.

THE GOVT.OF NCT, DERBY ……….RESPONDENT

PUBLIC INTEREST LITIGATION

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIGO

WRITTEN SUBMISSION ON THE BEHALF OF THE RESPONDENT

NAME- SHUBHAM RANA

CLASS- B.COM.LLB (Hons.)
SECTION -9
ROLL NO-181/15(13748)

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 GROUP-D1

TABLE OF CONTENTS

S. NO. PARTICULARS PAGE

NO.
1. LIST OF ABBREVIATIONS 4
2. INDEX OF AUTHORITIES 5
3. STATEMENT OF JURISDICTION 8
4. STATEMENT OF FACTS 9
5. ISSUES RAISED 10
6. SUMMARY OF ARGUMENTS 11
7. ARGUMENTS ADVANCED
A. WHETHER THE PETITION UNDER ARTICLE 32 IS
MAINTAINABLE?
A.1 No right to interfere in the matters of public policy 13
A.2 National Green Tribunal (NGT) is the appropriate forum to decide 14
the issue
A.3 No Locus Standi 15
A.4 Limitation of Judiciary to usurp upon the domain of Legislature or 17
Executive
B. WHETHER GOVT HAS THE POWER TO LAUNCH SUCH
SCHEME? 20
20
B.1 The Preamble
21
B.2 Federal System of the Govt.
21
B.3 Obligation to Implement International Agreements
23
B.4 Directive Principle of State Policy.
B.5 Fundamental Rights

C. WHETHER THE ODD-EVEN SCHEME HAS IMPACT ON

DECREASE OF VEHICULAR POLLUTION ?

25
C.1 Derby- most polluted city in the world 26
C.2 Cause of air pollution in Derby 26
C.3 Role of vehicle in contributing to air pollution 28
C.4 Why govt. intervention is necessary? 32
C.5 How odd-even scheme will help in reducing air pollution?

D. WHETHER THE ODD-EVEN SCHEME VIOLATE THE

FUNDAMENTAL RIGHTS OF PEOPLE LIVING IN DERBY?

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 D.1 Article 19 37
D.2 Reasonable Restrictions under Article 19 38
8 PRAYER 40
.

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 LIST OF ABBREVIATIONS

S. NO. ABBREVIATION FULL FORM

1. & And
2. § Section
3. AIR All India Reporter
4. Anr. Another
5. ed. Edition
6. Govt. Government
7. HC High Court
8. Hon’ble Honourable
9. Ltd. Limited
10. NGT National Green Tribunal
11. Ors. Others
12. PIL Public Interest Litigation
13. SC Supreme Court
14. SCC Supreme Court Cases
15. Sec. Section
16. UK United Nations
17. UN United Nations
18. US United States
19. v. Versus
20. Vol. Volume
21. WHO World Health Organization
INDEX OF AUTHORITIES

TABLE OF CASES:

SR CASE NAME CITATION PAGE NO.

NO.
1. BALCO EMPLOYEES’ UNION VS. (2002) 2 SCC 333 13,14,18

UNION OF INDIA
2. FEDERATION OF RAILWAY OFFICERS 2003 (2) SCR 1085 18

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 ASSOCIATION V. UNION OF INDIA
3. JANATA DAL V. H.S. CHOWDHARY  AIR 1993 SC 892 15
4. JASBHAI DESAI V. ROSHAN KUMAR 1976 AIR 578 16
5. KASTURI LAL V. STATE OF JAMMU & 1980 AIR 1992 39

KASHMIR
6. L. KOOLWAL V. STATE AIR 1988 RAJ 2 14
7. N.D JAYAL V. UNION OF INDIA (2004) 9 SCC 362 18
14. SACHIDANAND PANDEY V. STATE OF 1987AIR1109 16

WEST BENGAL
15. T. DAMODAR RAO V. S.O AIR 1987 AP 171 22,23

MUNICIPAL CORPORATION,

HYDERABAD
16. TATA IRON AND STEEL CO. LTD. V. AIR 1996 SC 2462 18

UNION OF INDIA

STATUTES REFERRED

1. THE INDIAN PENAL CODE, 1860 [ACT NO 45 OF 1860]

2. THE CONSTITUTION OF INDIAN, 1950

3. THE ENVIRONMENTAL PROTECTION ACT,1986

4. THE CIVIL PROCEDURAL CODE, 1908

BOOKS AND COMMENTARIES REFERRED:

1. M.P. JAIN, “INDIA CONSTITUTIONAL LAW”, 6TH ED. LEXIS NEXIS BUTTERWORTHS

WADHWA, NAGPUR 2010.

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2. DURGA DAS BASU, “COMMENTARY ON CONSTITUTION OF INDIA”, 8TH ED. WADHWA

AND COMPANY NAGPUR 2007.

3. C.K TAKWANI, “CIVIL PROCEDURE WITH LIMITATION ACT, 1963”, 8TH ED., EASTERN

BOOK COMPANY, 2017.

4. PARAMJIT S. JASWAL, NISHTHA JASWAL, VIBHUTI JASWAL “ ENVIRONMENTAL LAW” 4TH

ED., ALLAHABAD LAW AGENCY, 2015.

LEGAL LEXICONS REFERRED :

1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8TH ED. 2001).

2. OXFORD ENGLISH DICTIONARY (2ND ED. 2009).

3. MISH F.C., MERRIAM-WEBSTER‘S COLLEGIATE DICTIONARY (11TH ED., 2003)

INTERNATIONAL TREATIES AND CONVENTIONS REFERRED:

1. THE RIO DECLARATION ON THE ENVIRONMENT AND DEVELOPMENT, 1992

2. THE STOCKHOLM DECLARATION ON THE HUMAN ENVIRONMENT

JOURNALS AND ARTICLES REFERRED:

WEBSITES REFERRED:

1. www.manupatra.com

2. www.unep.org/environmentalgovernance/portals/8/documents/training_manual.pdf

3. www.delhihighcourt.nic.in

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 STATEMENT OF JURIDICTION

The Petitioner appears before the Hon’ble Supreme Court by virtue of Article 32 of the

Constitution of Indigo which provides the citizens right to approach the Supreme Court by

appropriate proceedings for the enforcement of their rights.1

The counsels do not accept the jurisdiction.

1
Remedies for enforcement of rights conferred by this part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and , Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by
the Supreme Court under clause ( 2 )(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.

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 STATEMENT OF FACTS

 Derby, the National Capital of Indigo has become a highly populated metropolitan city.
The major reasons attributed for this growing population is urbanization and
industrialization. Further, the increase use of public and private automobiles has led to
increase in the pollution

 The Derby government taking a serious note of the rising levels of the pollution and its ill
effects on the health of the people living in Derby gave a Seven Point Pollution Control
Action Plan.

 One of the points suggested in the plan was to implement an Odd-Even Scheme wherein
odd and even no. vehicle ply on alternate days. The scheme was launched on trial basis
for few months duration.

 A Petition was filed in the Hon’ble High Court of Derby raising a plea that the basis of
the scheme was an unscientific study conducted by a foreign agency and the same is not
verified by the National Pollution Control Board.

 The plea was rejected by the High Court as a publicity stunt.

 The Derby government plans to launch the Odd-Even Scheme again.

 Against which a petition is filed in the Supreme Court of Indigo on the grounds that
national reports submitted to the Environment Tribunal earlier have suggested that odd-
even scheme has no impact on decrease in vehicular pollution and the fluctuations in air
quality is due to weather and change in wind patterns and hence this scheme should not
be permitted.

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 ISSUE RAISED

ISSUE I

Whether the petition filed under Article 32 is maintainable or not?

ISSUE II

Whether govt. has the power to launch such scheme?

ISSUE III

Whether the odd-even scheme has impact on decrease of vehicular pollution?

ISSUE IV

Whether the odd-even scheme violates the Fundamental Right of the people living in Derby?

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 SUMMARY OF ARGUMENTS

1.

WHETHER THE PETITION UNDER ARTICLE 32 IS MAINTAINABLE OR NOT?

It is humbly submitted to the honorable court that the concerned writ petition filed is not,the Court

cannot interfere unless the policy is unconstitutional or contrary to statutory provisions or

arbitrary or irrational or in abuse of power. Besides this, if there is any appropriate forum to

decide the validity of the scheme, it is National Green Tribunal and not the Supreme Court.

2.

WHETHER GOVERNMENT IS AUTHORIZED TO LAUNCH SUCH A SCHEME?

At the very outset, the Preamble of the Constitution of Indigo provides that our country is based

on “socialistic” pattern of society where the State pays more attention to social problems than on

individual problems. Indigo has adopted a federal system and Part IX (Article 245-263) of the

Constitution makes it evident that there are ample no. of provisions to make laws dealing with

environmental problems at the local level as well as the national level. Moreover, Indigo is party

to numerous international treaties and therefore the States are under an obligation to implement

international agreements otherwise the objective of such international agreement would be

defeated. The Constitution of Indigo obligates the “State” to protect and improve the

environment. Furthermore, Right to live in a healthy environment has been interpreted by the

judiciary into various provisions of Part III dealing with Fundamental Rights.

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 3.

WHETHER ODD- EVEN SCHEME HAS AN IMPACT ON DECREASE IN

VEHICULAR POLLUTION?

Derby has been ranked as the most polluted capital in the world in a recent study conducted by

Green Peace. According to the experts, breathing air in Derby is equivalent to smoking 15 packs

of cigarettes in a day. Two major sources that contribute to pollution in Derby are the pollution

due to crop burning and pollution by vehicles. Vehicles release chemicals like carbon monoxide,

nitrogen oxide etc. that not only increase the level of pollution in the air but are also extremely

dangerous for human health. Odd-Even scheme will definitely help in bringing down the level of

vehicular pollutants in the air. Moreover, research shows that the level of air pollution has

drastically decline in countries like Beijing, Paris, Mexico where this scheme was earlier

implemented.

4.

WHETHER THE SCHEME VIOLATES THE FUNDAMENTAL RIGHTS

OF THE PEOPLE LIVING IN DERBY?

The great and basic freedoms enumerated under Article 19 (1) have been recognized as the

natural rights, inherent in the status of a citizen but none of these freedoms is absolute and

uncontrolled. Each freedom is liable to be restricted by laws made by the State under Clauses (2)

to (6) of Article 19. Article 19 (1) (g) guarantees to every citizen fundamental freedom to move

freely throughout the country. However, this does not prevent a State to make laws which restrict

this right if it is in the interest of public.

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 ARGUMENTS ADVANCED

MOST RESPECTFULLY SHOWETH:

A. WHETHER THE PETITION UNDER ARTICLE 32 IS MAINTAINABLE?

A.1. NO RIGHT TO INTERFERE IN MATTERS OF PUBLIC POLICY

1. The views on the efficacy of such government policy may differ; however, the question

to be addressed is whether the policy decision warrants interference by this Court in

exercise of its power under Article 32 of the Constitution. The law is well settled that on

matters affecting policy, this Court cannot interfere unless the policy is unconstitutional

or contrary to statutory provisions or arbitrary or irrational or in abuse of power, since the

policy decisions are taken based on expert knowledge and the Courts are normally not

equipped to question the correctness of the same. The scope of judicial enquiry can

therefore only be confined to the question whether the decision taken by the Government

is against any statutory provision or it violates the fundamental rights of the citizens or is

opposed to the provisions of the Constitution of Indigo. 2 In the present case, neither any

of the aforesaid rights are violated nor is the policy against any provision of Constitution

of Indigo.

2. The implementation of the Odd-Even scheme may have caused hardship to a § of the

society, however, the power of judicial review cannot be extended to determine the

correctness of such a policy decision or to find out whether there could be more

appropriate or better alternatives. As held in BALCO Employees’ Union Vs. Union of

2
Parisons Agrotech (P) Ltd. v. Union of India (2015) 9 SCC 657, Manohar Lal Sharma v. Union of India (2013) 6
SCC 616, Union of India v. Dinesh Engg. Corpn. (2001) 8 SCC 491]

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 India3, it is neither within the domain of the Courts nor the scope of the judicial review to

embark upon an enquiry as to whether a particular public policy is wise or whether a

better public policy could be evolved. In L. Koolwal v. State4, the Supreme Court has held

that if the govt. is alive to various considerations requiring thought and deliberation &

has arrived at a cautious decision after taking them into consideration, it may not be

proper for the court to interfere in the absence of malafides.

A.3 NATIONAL GREEN TRIBUNAL (NGT) IS THE APPROPIATE FORUM TO

DECIDE THE ISSUE

It is the NGT & not the Supreme Court which has appropriate jurisdiction to deal with the

matter. § 12 of the NGT Act, 2010 specifically provides that the NGT shall shave jurisdiction

over all civil cases where a substantial question relating to environment including enforcement of

any legal right relating to environment is involved.

The major objective behind introducing the odd even policy by the Derby govt. is that the move

is expect to bring down the level of air pollutants in the air as vehicular pollution is the second

major source of pollution in the capital. Hence, the NGT has the jurisdiction to deal with the

matter as it directly pertains to the environment issue and falls within the ambit of the expression

“substantial question of law relating to environment” under § 12 of the impugned Act. This

“substantial question” has been defined under the Act to include instances of direct violation of a

statutory environmental obligation leading to a direct or indirect impact on community or an

individual or where the gravity of damage to the environment or property is substantial. The Act

further clarifies that such substantial questions of environment are those arising out of

3
(2002) 2 SCC 333
4
AIR 1988 Raj 2

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implementation of the enactments mentioned in Schedule I of the Act.

Schedule I mentions seven environment and forest laws in the country, such as the Water

(Prevention and Control of Pollution) Act 1974, Forest (Conservation) Act 1980, Environment

(Protection) Act 1986, and Air (Prevention and Control of Pollution) Act 1981. Thus, any matter

related to these Acts form part of the NGT jurisdiction.5

A.4 NO LOCUS STANDI

1. In law, standing or locus standi is the term for the ability of a party to demonstrate to

the court in sufficient connection to and harm from the law or action challenged to support

that party's participation in the case.  In Janata Dal v. H.S. Chowdhary 6, the Supreme Court

held: Be that as it is may, it needless to emphasize that the requirement of locus standi of a

party to a litigation is mandatory; because the legal capacity of the party to any litigation

whether in private of public action in relation to any specific remedy sought for has to be

primarily at the threshold. It is pertinent to consider the preliminary question raised as to the

maintainability of this rule as the petitioners have acquired no locus standi and are not

competent to maintain this writ petition under article 32 because one has to satisfy the court

that he has a legal right which is a judicially enforceable right and this right has been affected

by an order made by the public authority to his prejudice. If a person is shown to have a

genuine grievance by an action or inaction of the authority to discharge his public duties

enjoined upon him by the Act, in that case such person will be an aggrieved person having

locus standi to maintain an application for a writ in the nature of mandamus and/or Certiorari

against the purported action or inaction on the part of such public authority.7.

5
Adarsh Co-operative Housing Society v. Union of India and others
6
AIR 1993 SC 892
7
Re: MonoranjanMaity v. District School Board decided on 31-3-1981, (1981 Lab IC NOC 179)

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2. The petitioner has no other evidence except the national reports submitted to Environmental

Tribunal earlier, to support the averments made by him in his petition. Even the correctness

of such report is also doubtful. Khalid, J. in his separate supplementing judgment

in Sachidanand Pandey v. State of West Bengal  8said: Today public spirited litigants rush to

Courts to file cases in profusion under this attractive name. They must inspire confidence In

Court and among the public. They must be above suspicion.... Public interest litigation has

now come to stay. But one is led to think that it poses a threat to Courts and public alike.

Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down

clear guidelines and to outline the correct parameters for entertainment of such petitions. If

Courts not restrict the free flow of such cases in the name of public interest litigations, the

traditional litigation would suffer and the Courts of law, Instead of dispensing justice, will

have to take upon themselves administrative and executive functions.... I will be second to

none in extending help when such help is required. But this does not mean that the doors of

this Court are always open for any one to walk in. It is necessary to have some self-imposed

restraint on public interest litigants.

3. The petitioner is merely an interloper who seeks to gain publicity and seek attention of the

masses. Sarkaria, J. in  Jasbhai Desai v. Roshan Kumar9 expressed his view and observed that

an applicant may ordinarily fall in any of these categories; (i) 'person aggrieved': (ii)

'stranger'; busybody or meddlesome interloper. Persons in the last category are easily

distinguishable from those coming under the first two categories. Such persons interfere in

things which do not concern them. They masquerade as crusaders for justice. They pretend to

act in the name of Pro Bono Public, though they have no interest of the public or even of

8
(1987) 2 SCC 295
9
  1976 (1) SCC 671

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 their own to protect. They indulge in the pastime of meddling with the judicial process either

by force of habit or from improper motives. Often they are actuated by a desire to win

notoriety or cheap popularity; while the ulterior intent of some applicants in this category,

may be no more than spooking the wheels of administration. In matters relating to public

interest litigation, the Supreme Court has to satisfy itself with (a) the credentials of the

applicant; (b) the prima facie correctness or nature of information given by him; c) the

information being not vague and indefinite. The information should show gravity and

seriousness involved. It has to be extremely careful to see that under the guise of redressing a

public grievance, it does not encroach upon the sphere reserved by the Constitution to the

Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters

and busy bodies or meddlesome interlopers impersonating as public spirited holy men. They

masquerade as crusaders of justice.

A.5 LIMITATION OF JUDICIARY TO USURP UPON THE DOMAIN OF

LEGISLATURE OR EXECUTIVE

1. The judiciary has no inherent power to encroach upon the legislative acts of the Legislature.

The doctrine of Separation of Powers divides institutions of government into three branches:

legislative, executive and judicial. The legislature makes the laws; the executive put the laws

into operation; and the judiciary interprets the law. It is further submitted that there is no

scientific data as to show that the fluctuations in air quality is due to weather and change in

wind patterns. Therefore, it would not be appropriate for the Court to intervene in such a

matter which ought to be left for better judgment and appreciation by the experts as they

would encroach upon the doctrine of separation of power which is an essential feature of the

Indigo’s Constitution

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2. The doctrine of judicial independence does not enable the judiciary to function as a kind of a

Super Legislature‘ or a Super Executive‘, as Pandit Jawaharlal Nehru in the Constituent

Assembly said: “No Supreme Court and no judiciary can stand in judgment over the

sovereign will of Parliament representing the will of the entire community. If we go wrong

here and there, it can point it out, but in the ultimate analysis, where the future of the

community is concerned, no judiciary can come in the way.........ultimately the fact remains

that the Legislature must be supreme and must not be interfered with by the Court of law in

measures of social reforms.10 In Tata Iron and Steel Co. Ltd. v. Union of India 11, and BALCO

Employees' Union v. Union of India12, it has been laid down by the Apex Court that in cases

where legal issues are intertwined with those involving determination of policy and a

plethora of technical issues, that Law Courts have to be very wary while exercising their

jurisdiction and must not transgress into the realm of policy making unless the policy is

inconsistent with the Constitution and the laws.

3. Further, the Supreme Court in the matter of Federation of Railway Officers Association v.

Union of India13 held that on matters affecting policy and requiring technical expertise, the

Court ought to leave the matter for decision of those who are qualified to address the issues,

unless the impugned action is inconsistent with the Constitution and the laws or it is a case of

abuse of power. The decision reported in N.D. Jayal v. Union of India14, can be relied upon to

contend that the Court cannot sit in judgment over the cutting age of scientific analysis and

such matters must be left to the better wisdom of the Government or the implementing

agency, if the impugned decision has been taken after considering all relevant matters. The

10
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, A CRITICAL COMMENTARY., 1141(7TH ED., VOLUME 1, 2007)
11
AIR 1996 SC 2462
12
(2002) ILLJ 550 SC
13
[2003] 2 SCR 1085
14
(2004) 9 SCC 362

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important role of the Court in such matters, it is submitted is to see whether the decision

making agency has taken a well informed decision and if it is found that the decision is well

informed, the interference of the Court is not called for as consideration in such cases is

based in the process of decision and not on the merit of the decision itself.

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 B. WHETHER GOVT HAS THE POWER TO LAUNCH SUCH A SCHEME?

The main cause of environment degradation is the human activity, in one way or the other. Law
is a regulator of human conduct. Hence, the law plays an important role in the protection of
environment from pollution by regulating human activities.
The govt of Derby derives its authority to make such policy from various provisions of law
mentioned herein-

B.1 THE PREAMBLE

The preamble of the Constitution of Indigo provides that the country is based on “socialistic”

pattern of the society where the State pays more attention to the social problems than on any

individual problem. The basic aim of socialism is to provide “decent standard of life to all”,

which can be possible only in a pollution free environment. Pollution is one of the social

problems and the State is required under the Supreme Law to pay more attention to this social

problem and march towards avowed aim of just social order.

B.2 FEDERAL SYSTEM OF GOVERNMENT

The problem of environment is tackled through various statutes. Therefore, from an

environmental point of view, the allocation of legislative authority is very important. Indigo has

adopted a federal system in which the governmental power is shared between the Union and

State govt. Article 246 divides the subject areas of legislation between Union and States. The

Union list contains 97 subjects over which the Parliament alone has the power to legislate while

State list contains 66 subject matters over which the state legislatures of different states have

exclusive power of legislation subject to their territorial jurisdiction. The subjects mentioned in

the state list include public health, hospitals, dispensaries, drainage, sanitation etc. Thus, the

subject matters, environmental impact of which is local are left to be tackled at the local level.

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From the above scheme of distribution, it is clear that there are ample provisions which empower

the State govt. to make laws dealing with environmental problems at local level.

B.3 OBLIGATION TO IMPLEMENT INTERNATIONAL AGREEMENTS

The objectives of International environmental agreements would be effectively achieved if all

relevant State who are parties to them rigorously implement the agreements. Indigo is a signatory

to numerous international treaties and agreements relating to regional or global environmental

issues. Indigo has been playing a leading role from 1972 UN Conference on Human

Environment at Stockholm to the 1992 UN Conference on Environment and Development at Rio

De Janerio and in Earth Summit Plus Five of 1997 at New York. Thus, Indigo is under an

obligation to translate the contents and decisions of international conferences, treaties and

agreements into stream of national law. Article 51(c) provides that “State shall endeavor to foster

respect for international law and treaty obligations in the dealings of organized people with one

another.” The decision to implement such odd-even scheme keeping in mind the increasing level

of air pollution is a step taken in furtherance to achieve such an objective.

B.4 DIRECTIVE PRINCIPLE OF STATE POLICY

1. Part IV of the Constitution deals with Directive Principles of State Policy. These

directive principles represent the socio-economic goals which the nation is expected

to achieve. Article 47 of the Constitution is one of the DPSP and provides that the

state shall regard the raising of the level of nutrition and standard of living of its

people and the improvement of public health as among its primary duties. The

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 improvement of public health shall also include improvement of environment without

which public health cannot be ensured.

2. The Constitution (Forty-Second Amendment) Act, 1976, added a new DPSP in

Article 48-A. dealing specifically with protection and improvement of environment. It

provides, "State shall endeavor to protect and improve the environment and to

safeguard the forests and wildlife of the country."

3. The state cannot treat the obligations of protecting and improving the environment as

mere pious obligation. The DPSP are not mere show-pieces in the window dressing.

They are fundamental in governance of the country and being part of the law of the

land has to be implemented.

4. Art 37 of the Constitution declares that the DPSP “shall not be enforceable by any

court, but the principles therein laid down are nevertheless fundamental in the

governance of the country and it shall be the duty of the state to apply these principles

in making laws.”

In T.Damodar Rao v. S.O Municipal Corporation, Hyderbad15, the court pointed out that in the

view of Art. 48-A and 51-A (g), it is clear that protection of environment is not only the duty of

every citizen but is also obligation of the State and all other state organs including Courts.

In M.C Mehta v. Union of India16, the Court observed that Art. 39 (e), 47, and 48-A by

themselves and collectively cast a duty to secure the health of the people, improve public health

and protect the environment.

15
AIR 1987A.P. 171.
16
(2008) 4 SCC 356.

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B.5 FUNDAMENTAL RIGHTS

In order to be a part of fundamental right, it is not necessary that it should be expressly stated as

one in Part III of the Constitution dealing with Fundamental Rights. In other words, there are

various unenumerated fundamental rights in Part III and judicial activism in Indigo has taken a

lead in interpreting various unenumerated rights in Part III of the Constitution. Environment

protection is one of them. Though specific provisions for the protection of environment are

found in Part IV of the Constitution yet right to live in a healthy environment has been

interpreted by judiciary into various provisions of Part III dealing with Fundamental Rights.

For instance, Article 21 of the Constitution of Indigo guarantees all persons a fundamental right

to life- a life of dignity, to be lived in a proper environment, free of danger of disease and

infection. It is an established fact that there is a close link between life and environment. The talk

of fundamental rights would become meaningless if there is no healthy environment17.

In Oleum Gas Leakage case18, Supreme Court impliedly treated the right to live in pollution free

environment as a part of fundamental right to life under Article 21 of the Constitution.

Maintenance of health, preservation of the sanitation and environment falls within the purview of

Article 21 of the Constitution as it adversely affects the life of the citizen and amounts to slow

poisoning and reducing the life of the citizen because of the hazards created if not checked.19

In T. Damodar Rao v. S.O Municipal Corporation, Hyderabad20, the Andhra Pradesh High Court

observed, “The slow poisoning by the polluted atmosphere caused by the environmental

pollution and spoliation should be regarded as amounting to violation of Art.21 of the

Constitution.
17
R.L & E Kendra, Dehradun v. State of U.P, AIR 1985 SC 652.
18
M.C Mehta v. Union of India, AIR 1987 SC 106.
19
L. Koolwal v. State of Rajasthan, AIR 1988 Raj 2.
20
AIR 1987 A.P 171.

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C. WHETHER THE ODD-EVEN SCHEME HAS AN IMPACT ON DECREASE IN

VEHICULAR POLLUTION?

In order to know whether the odd-even scheme has an impact on decrease of vehicular pollution,

it is important to do a detailed analysis of the problem of air pollution in Derby, cause and effects

of air pollution along with the impact of odd-even scheme in bringing down the level of air

pollution in the captial.

C.1 DERBY IS THE MOST POLLUTED CAPITAL IN THE WORLD

Derby has been ranked as the most polluted capital in the world, while Gurugram is the most

polluted city, according to a Greenpeace report. According to the latest data compiled in the IQ

Air Visual 2018 World Air Quality Report and interactive world’s most polluted cities ranking,

which is prepared in collaboration with Greenpeace Southeast Asia in order to reveal the state of

particulate matter (PM2.5) pollution in 2018, Derby had an average yearly PM2.5 concentration

at 113.5 micrograms per cubic metre. The report is based on air quality data collected in 2018

from public monitoring sources, with a special focus on data which has been published in real-

time or near real-time.21 When it comes to comparing PM10 measurements of the world’s largest

cities, Indigo’s capital Derby ranks sixth in the list and comes in with an annual average of 292

according to latest study conducted by WHO.22

21
www.news18.com, Article “Delhi Ranked Most Polluted Capital in the World - Here's How We Can Reduce Air
Pollution”, published on 6 March, 2019, (last accessed on 28 September, 2019).
22
www.vox.com, Article:“Why India’s air pollution is so horrendous”, published on 31 October, 218 (last accessed
on 28 September, 2019)

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C.2 LARGE NUMBER OF VEHICLE CAUSES OF AIR POLLUTION IN DERBY

There are many reasons for such massive air pollution in Derby. Derby being one of the major

cities is highly populated with number large number vehicles, which cause traffic and pollution.

Vehicle emissions contribute a huge amount of pollution. This is because of burning of diesel

and petrol and lack of green cover around the city. In past few years there has been tremendous

increase in number of vehicles causing traffic and air pollution. The number of vehicles in the

national capital surged to 1.09 crore by March 2018, including over 70 lakh two wheelers,

according to Derby's Economic Survey 2018-19 report. The total number of motor vehicles in

the national capital territory of Derby roads was 109.86 lakh on March 31, 2018, showing growth

per cent of 5.81 to the previous year.23

C.3 ROLE OF VEHICLES IN CONTRIBUTING TO AIR POLLUTION

Chemicals Released by Car Exhaust?

There are several chemicals released by combustion engines that are harmful to humans24-

 Benzene (C6H6) - This substance is produced from exhausts of vehicles as unburnt fuel

during the combustion process. It occurs naturally in small amounts of diesel and petrol.

Benzene is highly toxic and long-term exposure has been linked to leukemia.

 Carbon Dioxide (CO2) - Reducing the amount of CO2 in our environment is one of the

main goals for governments around the world. The reason is that, although, the substance

is non-toxic, it is a dangerous greenhouse gas and contributes to acidification of the

oceans.

23
www.economictimes.com, Article “Number of vehicles on Delhi roads over 1 crore, with more than 70 lakh two
wheelers: Economic survey”, published on 23 February, 2019. (last accessed on 28 September, 2019)
24
www.news18.com, Article “Delhi-ranked-most-polluted-capital-in-the-world-heres-how-we-can-reduce-air-
pollution”, published on 06 March, 2019 (last accessed on 28 Septemeber, 2019)

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  Carbon Monoxide (CO) - Carbon Monoxide is odourless and colourless and is caused

by an incomplete combustion process. However, it can be extremely harmful. It has been

known to cause irritations such as headaches and respiratory problems.

 Hydrocarbons (HC) - Emitted as unburnt fuel, hydrocarbons also evaporate from the

vehicles fuel tank. In sunlight, hydrocarbons react with NOx to create photochemical

oxidants which can cause breathing issues and make symptoms, such as asthma worse.

 Nitrogen Oxide (NO) - Produced in any kind of combustion produce, NOx is oxidised in

the atmosphere and is one of the major contributing factors to acid rain. It has been

known to cause lung irritation and reduce the immune system when fighting respiratory

infections. Tie in something about how this has resulted in the decline on diesels?

 Particulate Matter (PM) - Soot is often a byproduct of using a motor vehicle powered

by fossil fuels. Tiny particles, smaller than one-tenth the diameter of a human hair, can

seriously impact the health of a human being as they penetrate deep into the lungs. Diesel

is one of the major causes of PM pollution.

 Sulphur Dioxide (SO2) - By burning fuel that contains sulphur, especially the likes of

diesel and coal, combustion engines cause contamination when the sulphur reacts in the

atmosphere to form fine particles and other pollutants. This can cause a major health risk,

particularly to children.

How Dangerous are Vehicle Exhaust Fumes?

Although the risk of exposure to vehicle exhaust fumes is rarely talked about at any great length

in the media when compared to other preventable causes of death, such as consumption of

alcohol or tobacco, the statistics show that the number of deaths is similar.

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A study by the Massachusetts Institute of Technology concluded that in the UK, 5,000 people die

every year as a result of heart attacks and lung cancer caused by vehicle exhaust fumes. That’s

three times as many who die from traffic accidents. Pollution from overall UK combustion

emissions, which includes power plants and other forms of industry, accounts for 13,000 deaths

per year. It’s also a similar story in the US, with the study estimating that 53,000 deaths per year

are caused by emissions from vehicles. This is around 16,000 more than traffic accidents.

Overall in the US, 200,000 early deaths each year are caused by overall air pollution.25

C.4 WHY GOVT’S INTERVENTION IS NECESSARY?

Air pollution has a no. of ill-effects, one of the most dreadful is that it leads to many health

problems. Indigo’s Medical Association has warned public to retrain themselves form going out

and declared a “Public Health Emergency” in Derby, two years back. 26

Particulate matter is a complex mixture that may contain soot, smoke, metals, nitrates, sulfates,

dust, water and tire rubber. Fine particulate matter, also known as PM2.5, can enter the lungs and

bloodstream. High levels of air pollution can cause a range of health problems, including

respiratory ailments, cardiovascular diseases, adverse pregnancy outcomes (such as preterm

birth), and even death.

1. Health related problem: Respiratory problems, like dry cough, wheezing,

sinusitis, sore throat, breathlessness etc.; Threat to lung functioning, reduced lung

capacity, lung cancer; Headaches, eye irritation; Heart diseases- Certain gasses

prevent oxygen in blood and this can lead to reduction in supply of oxygen to

heart, Asthama and Premature birth or birth defects in certain cases. The capital
25
www.news18.com Article “Delhi-ranked-most-polluted-capital-in-the-world-heres-how-we-can-reduce-air-
pollution” Published on 06 March, 2019 (last accessed on 28th September, 2019)
26
www.hindustantimes.com, Article ‘Delhi air pollution: What are its harmful effects on health, and how to cope
with it”, published on 08 November, 2018 (last visited on 28 September, 2019)

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 city loses 80 lives every day to pollution from PM2.5. Global Burden of Disease

study in 2013 had estimated approximately 627,000 premature deaths in Indigo

for 2010 due to PM 2.5 with ischemic heart diseases claiming more lives than

respiratory diseases.27

How pollutants affect human health?28

Particulate matter (PM10 and PM2.5) - Numerous studies have linked exposure to particulate

matter to a number of conditions - although the size of determines their potential to cause health

problems.

 PM10 (particles in the air with a diameter of fewer than 10 micrometres) -  these are

small particles enough to pass through the throat and nose and enter the lungs. Inhalation

of these particles can result in a number of health issues, ranging from coughing and

wheezing to asthma attacks and bronchitis to high blood pressure, heart attack, strokes,

and even premature death.

 PM2.5 (particles in the air with a diameter of 2.5 micrometres or less) -  Fine particles

(PM2.5) pose the greatest health risk, they are so tiny and can get deep into the lungs and

into the bloodstream. Exposure to fine particles can also affect lung function and worsen

medical conditions such as asthma and heart disease. Long-term exposure to fine

particulate matter has been linked with an increased rate of chronic bronchitis, reduced

lung function and increased mortality from lung cancer and heart disease.

27
www.economictimes.com , Article “Delhi air pollution adds to eye irritation, breathlessness; docs urge to stay
indoors” published on 11 October, 2019 (last assessed on 29 September 2019)
28
www.timesnow.com, Article “Delhi-air-pollution-how-particulate-matter-pm-and-air-pollutants-affect-your-
health”, Published on 05 November, 2019 (last assessed on 28 September, 2019)

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Hydrocarbons (benzene, methane etc.) - Health effects of hydrocarbons include a dull

headache, weakness, dizziness, nausea, vomiting, shortness of breath, disorientation and loss of

consciousness, etc. 

Nitrogen oxides - A highly reactive gas that has a variety of adverse health effects on the

respiratory system. Potential health effects from exposure to nitrogen dioxide include susceptible

to respiratory infections, cough, chest pain, difficulty breathing, asthma, chronic bronchitis,

airway inflammation in healthy people.

Carbon monoxide - Carbon monoxide (CO) can cause various health issues by reducing the

amount of oxygen reaching the body’s organs, such as the heart, brain and tissues. Potential

health effects from exposure to CO include- headache, nausea, dizziness and anxiety, reduced

mental alertness, cardiovascular diseases, heart attack, impaired fetal development. In higher

concentration, it can even cause death.

Sulfur dioxide - Sulphur dioxide cause eye irritation, wheezing, chest tightness, shortness of

breath, sore throat, nose irritation, asthma, chronic bronchitis. It has also been found to

exacerbate cardiovascular diseases.

Ozone - Even at low levels, ground-level ozone can be harmful to our health. It can irritate the

lining of the nose, airways and lungs, resulting in respiratory tract infections, breathing

difficulty, asthma, lung damage and even premature death. Some people may experience chest

pain.

Biomass and waste burning - Burning biomass emit large amounts of pollutants, such as carbon

dioxide (CO2). Exposure to CO2 can lead to a number of health problems, including a headache,

nausea, dizziness and anxiety, reduced mental alertness, cardiovascular diseases, heart attack,

impaired fetal development. In higher concentration, it can even cause death.

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Mercury - Mercury can get into the air from a number of sources, such as forest fires, burning of

fossil fuels, etc. According to the WHO, inhalation of mercury vapour can produce harmful

effects on the nervous, digestive and immune systems, lungs and kidneys, and may be fatal. In

the long-term, it can cause memory problems, kidney damage and respiratory failure.

Polycyclic aromatic hydrocarbons (PAHs) - Air pollutants, including PAHs, can result in

poisoning, disorientation, organ damage, especially the lungs.

Selenium - Environmental contaminants, such as selenium can lead to organ damage, low IQ,

behavioural problems, cancer, etc.

Soot - Tiny particle pollution, commonly referred to as ‘soot’, is one of the deadliest forms of air

pollution. Health effects from exposure to soot include airway irritation, breathing difficulty,

aggravated asthma etc. Recently, new research presented at the European Respiratory Society

International Congress showed soot particles are able to reach the placenta via the bloodstream.

According to Dr Arvind Kumar, Founder Trustee, Lung Care Foundation and Chairman of

Centre for Chest Surgery, Sir Ganga Ram Hospital, “The impact of the foul air on public health

can be compared to smoking 15-20 cigarettes a day.”29

2. Apart from various health problems, there are no. of other problems that are

caused due to air pollution. Increase in no. of accidents and death toll due to

smog, train and airline cancellation due to smog are few of them. 69 trains

delayed, 22 rescheduled and 8 cancelled due to smog in first two weeks of

November, 2018.30 More than 300 flights were delayed and at least eight

29
www.indiatoday.in, Article “Dr Arvind Kumar, Founder Trustee, Lung Care Foundation and Chairman of Centre
for Chest Surgery, Sir Ganga Ram Hospital” published on 04 November, 2018 (last assessed on 29 September,
2019)
30
www.financialexpress.com Article “69 trains delayed, 22 rescheduled and 8 cancelled due to smog” Published on
13 November, 2018 (last assessed on 30TH September, 2019).

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 cancelled, while 400 trains reached their destinations late on account of fog if we

go by the NDTV reports.31

Considering all these factors, it is important that the govt. takes some stern action and adopt

preventive measures so as to reduce the air pollution of Derby which is increasing at an alarming

rate.

C.5 HOW ODD-EVEN SCHEME WILL HELP?

The odd-even scheme is a car-rationing scheme borrowed from countries like China and many

European nations, where it is believed to have brought down the pollution levels caused by

vehicular emissions. Under the odd-even scheme, cars with licence plates ending in an odd

number and even number are allowed to ply on alternate days, except weekends, but exemptions

were earlier granted to women, VIPs, and two-wheelers.

The scheme, under which odd-numbered vehicles will be permitted to ply only on odd dates and

even-number vehicles only on even days, is aimed at reducing the number of vehicles as they are

seen as major pollutants. According to the government data, there were 109.86 lakh motor

vehicles on roads in Derby as on March 31, 2018. Also, there were 598 vehicles per 1,000

population in 2017-18, up from 356 in 2007-08.

Why is this Scheme needed?

There are 3.1 million registered cars (as of 2018) plying on the roads of Derby with 1000 new

cars adding to the load every day on an average. Derby has been ranked on top of the World

Health Organization’s ranking of the world's most polluted cities for several years, with

31
www.scroll.in, Article: ‘Delhi airport resumes operations after dense fog brought it to a halt for nearly four
hours.”published on 02 January, 2019 (last assessed on 01 October, 2019)

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vehicular and industrial emissions, dust from building sites, and smoke from the burning of

waste and crop residue contributing to it.

Derby High Court once said that living in Derby is like "living in a gas chamber", and can cause

severe damage to health. The Particulate Matter (PM) is worse among other forms of toxic gases

and coagulates during winters to cause much trouble in Derby. On the higher sides, the PM 10

can reach around 800 µg/m3 (microgram per cubic meters) in Derby, at least 8 times more than

the prescribed standards, which is around 100 µg/m3. The PM 2.5, which is much worse than

PM 10 can reach 400 µg/m3, against the limits of 60 µg/m3.

While pollution has gone down nearly 25 per cent in the last three years compared to the 2011-

2014 period, studies show that pollution needs to be further cut by 65 per cent to meet clean air

targets.

Since the vehicular pollution has become a major source of air pollution in the city, it is

important that some policy is introduced in order to bring down the air pollution level.32

Does this scheme really works?

1. According to a study on Derby's Odd-Even policy by experts at the Energy Policy

Institute of University of Chicago (EPIC) and that of Harvard University, the first term of

the policy in January 2016 resulted in a drop in PM 2.5 levels by 14-16 per cent as

compared to neighbouring cities -- Gurugram, Faridabad and Rohtak. "Their

recommendation was that odd-even policy is a very effective emergency measure,

especially in winter months."

2. When the scheme was implemented on trial basis, the pollution levels went down by 20-

25% during the fortnight with 90% people against it when it began but 90% now

32
www.news18.com Article “Odd-Even Scheme Returns – Here’s All You Need to Know” Published on 13
September, 2019 (last assessed on 01 October, 2019).

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 supporting the policy. The scheme helped cut down vehicular pollution. “In December,

PM 2.5 particles were above 600 (µg/m3), but in the last 15 days, average PM2.5 levels

stayed at 400 even though weather conditions were worse in January. CSE [the Centre for

Science and Environment] reading also says so. Had the scheme not been in place, the

pollution level would have crossed 600.”33

3. In 2017, a joint study conducted by atmospheric scientists of IITs and IIM had revealed

that pollution levels declined only by 2%-3% in the first phase of the odd-even scheme.

Only three areas in Derby—Najafgarh, Shalimar Bagh and Greater Kailash—witnessed

an 8%-10% drop in pollution, the study said.

Also, in the past three years, air pollution has come down by 25 per cent, according to the

data and findings of Derby Pollution Control Committee (DPCC) as well as Central

Pollution Control Board (CPCB). The report further states that between 2011 and 2014,

the number of days with severe-plus levels (more than 300 micro gramme per cum)

ranged between 20-40 days during the winter months. This has reduced during 2016-18

to less than 15 days.34

4. The Energy and Resources Institute (TERI) in its analysis of the scheme said that

although the percentage effect could be small, but given the concentrations as high as in

Derby, the absolute reductions in PM 2.5 concentrations are “significant” as it can help

reduce health impacts. TERI said that the scheme has brought “considerable” additional

benefits including reducing on road congestion, increase of average car speeds, reduced

fuel usage and made significant impact on public awareness levels on air pollution and its

impacts on human health.

33
www.thethirdpole.net Article “Delhi’s odd/even scheme inspires, even with mixed results”, published on Januray
13, 2016 (last assessed on 1 October, 2019)
34
www.livemint.com, Article,“Delhi to have odd-even scheme despite a dip in pollution” published on 16
September, 2019 (last assessed on 30 September, 2019).

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Odd even rule in other countries

The odd-even rule has been tried positively across the globe in various countries in the past.

Some of the countries where the rule was applied and showed good results are -

Beijing- Beijing has been the biggest influencer in the case of Derby. Beijing has over 6 million

vehicles on the road and both the cities have an identical population. During the 2008 Olympics,

a system of road-rationing the licence plates was implemented in Beijing to check the rising

pollution levels in the Chinese capital and the emission levels came down to 40 percent. For the

first time ever in a long time, people were able to see a blue sky and the PM level dropped by

73.2% compared to the previous year. road traffic volume reduced 22.5% compared with that of

pre-Olympics, and average car travel speed in morning peek of working days reached 30.2km/h,

increased by 6.7km/h compared with that of pre-Olympics, and the numbers of accident reduced

53.1%.

Sao Paulo-The Brazilian financial capital is one of the most populated cities in the world. They

have been using the vehicle rationing system based on registration numbers for over a decade

now, leading to lesser pollution.

Oslo- Norway's capital Oslo, although has a very nice air quality, implemented such restrictions

keeping the future in mind.

London- Britain's capital implemented the vehicle exclusion rule during the 2012 Olympics to

reduce pollution and congestion.

This clearly shows that the odd-even scheme were successful in other countries also where they

were introduced to tackle the increasing problem of air pollution, traffic jams etc.

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D. WHETHER THE ODD-EVEN SCHEME VIOLATE THE FUNDAMENTAL RIGHTS
OF THE PEOPLE OF DERBY?

D.1 ARTICLE 19

It is true that the Constitution of Indigo gives its citizens right to move freely throughout the

territory without any restrictions. Art 19 in the Constitution of Indigo, 1949 reads as-

(1)(d) All citizens shall have the right to move freely throughout the territory of Indigo;

However, it while reading Article 19, the exceptions laid down cannot be ignored. Art 19 (5)

reads as-

“Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing

law in so far as it imposes, or prevent the State from making any law imposing, reasonable

restrictions on the exercise of any of the rights conferred by the said sub clauses either in the

interests of the general public or for the protection of the interests of any Scheduled Tribe.”

Grounds of Restrictions: The State may under clause (5) of Article 19 impose reasonable

restrictions on the freedom of movement on two grounds:-

(1) In the interest of general public;

(2) For the protection of the interest of Scheduled Tribes

Therefore, it is evident from the wordings of the above clause that though the freedom

enumerated in Article 19 (1) have been recognized inherent to the status of a citizen, but none of

these freedoms are absolute or uncontrolled.

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D.2 REASONABLE RESTRICTIONS UNDER ARTICLE 19

Some of the principles which the Supreme Court has affirmed in ascertaining the reasonableness

of restrictions can be taken into consideration:

1. Reasonableness demands proper balancing: A restriction to be valid must have a direct and

proximate nexus with the object which the legislation seeks to achieve and the restriction must

not be in excess of that object i.e a balance between the freedoms guaranteed under Art. 19(1)(a)

to (g) and the social control permitted by clauses (2) to (6) of Art. 19. This introduces the

principle of ‘proportionality’. This means the court would consider whether the restriction

imposed by legislation on the Fundamental Rights are disproportionate to the situation and are

“not the least restrictive of the choices”.

2. Reasonableness and objective concept: The reasonability of a restriction has to be determined

in an objective manner. It should be from the standpoint of the general public and not from the

view of the persons upon which the restrictions are imposed or upon abstract considerations.

3. Reasonableness of restriction and not of law: The Court is called upon to ascertain the

reasonableness of the restriction and not of the law which permits the restriction. A law may be

reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.

4. Reasonableness and Directive Principles of State Policy: The DPSPs are also relevant in

considering whether a restriction on a Fundamental Right is reasonable or not. A restriction

which generally promotes a Directive Principle is regarded as reasonable. The Supreme Court

observed in Kasturi Lal v. State of Jammu & Kashmir35 “Any action taken by the Government
35
1980 AIR 1992

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with the view to giving effect to any one or more of the Directive Principles would ordinarily

qualify for being regarded as reasonable.”

There is no confusion in arriving to the conclusion that the impugned scheme satisfies in

affirmative all the principles of reasonable restriction. Therefore, it can be concluded that the

freedom to move freely does not come with absolute restriction but a reasonable restriction can

be imposed by the legislature. In the present case, the restriction on the use of private vehicle

very well falls within the ambit of a “reasonable” restriction introduced in the “interest of the

state”.

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 PRAYER

WHEREOF IN THE LIGHT OF FACTS OF THE INSTANT CASE, WRITTEN PLEADINGS AND

AUTHORITIES CITED, IT IS HUMBLY PRAYED BEFORE THIS HON'BLE SUPREME COURT THAT IT

MAY BE PLEASED TO HOLD, ADJUDGE AND DECLARE:

1) The petition is not maintainable under article 32 of Constitution of Indigo.

2) The Government has the authority to implement such a scheme.

3) That the Odd-Even scheme has a significant impact on decrease in vehicular pollution.

4) That no fundamental rights of the citizens will be violated by the implementation of Odd-

Even scheme in Derby.

Pass any other order, which the court may deem fit in light of the facts of the case, evidences

adduced and justice, equity and good conscience.

Sd/-

Counsels for the Respondent

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