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Moot memorial for petitioner in environmental law
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a. TABLE OF STATUTES b. WEBSITES c. BOOKS
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The Hon’ble Supreme Court of India has the jurisdiction in this matter under Article 32 of the constitution of India which reads as follows: “32. _Remedies for enforcement of rights conferred by this part-
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1. Whether the NGT has competent jurisdiction to hear this matter because the incident occurs 20NM off the coast of Vishakhapatnam, well beyond India’s territorial water which only stretch up to 12NM? ❖ The NGT deals with civil cases under the seven laws related to the environment, these include: 1.The Water (Prevention and Control of Pollution) Act, 1974,
11 (3) The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872 (1 of 1872). (4) The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decision; (g) dismissing an application for default or deciding its ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; (i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act; (j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I; (k) any other matter which may be prescribed. (5) All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
2. Whether the Tribunal is empowered to award compensation in lieu of the government of India’s (Indian coast guard) legal exercise of preserving the environment? Section 15 in The National Green Tribunal Act, 2010 15 Relief, compensation and restitution. –
12 (1) The Tribunal may, by an order, provide,- (a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance); (b) for restitution of property damaged; (c) for restitution of the environment for such area or areas, as the Tribunal may think fit. (2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991). (3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days. (4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit. (5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority. Section 23 in The National Green Tribunal Act, 2010 23 Cost. – (1) While disposing of an application or an appeal under this Act, the Tribunal shall have power to make such order as to costs, as it may consider necessary. (2) Where the Tribunal holds that a claim is not maintainable, or is false or vexatious, and such claim is disallowed, in whole or part, the Tribunal may, if it so thinks fit, after recording its reasons for holding such claim to be false or vexatious, make an order to award costs, including lost benefits due to any interim injunction. Section 24 in The National Green Tribunal Act, 2010 24 Deposit of amount payable for damage to environment. – (1) Where any amount by way of compensation or relief is ordered to be paid under any award or order made by the Tribunal on the ground of any damage to environment, that amount shall be remitted to the authority specified under sub-section (3) of section 7A of the
14 Article 3 of the UN Framework Convention on Climate Change was just one in a long list of international agreements that contained the precautionary principle, making it one of the most popular legal concepts in international environmental law today. Whereas traditional regulatory practices are reactive, precautionary measures are preventive and pre-emptive. In its simplest form, the precautionary principle (also known as PP) provides that if there is a risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection. There two widely referred definitions of the PP – The first one, The Rio Declaration (or Agenda 21) of 1992, states that: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” This definition given primarily with environmental issues in focus is also extended to cover health issues. The second definition is based on 1998 Wingspread Statement on the Precautionary Principle and it states: “…When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action. In this context the proponent of an activity, rather than the public, should bear the burden of proof.” It is worth noting the way the burden of proof is treated in these definitions. When an activity is likely to cause harm to the environment and/or humans, the conventional practice is that the opponents of the activity have to provide the proof of the harmful effects caused by the activity. The precautionary principle, on the other hand, shifts the burden of proof to the proponents of the activity – i.e., the proponents have to establish that the proposed activity will not cause any harm to the environment and/or human-beings. Further, it is also argued that since scientific uncertainty is inherent in the environmental problems for which the PP is typically applied, the decision-making process based on the PP may become more inclusive, participatory and democratic.
15 Where any person is beneficially interested otherwise than by way of mortgage in any ship or share in a ship registered in the name of some other person as owner, the person so interested shall, as well as the registered owner, be subject to all the pecuniary penalties imposed by this or any other Act on the owners of ships or shares therein, so nevertheless that proceedings for the enforcement of any such penalties may be taken against both or either of the said parties with or without joining the other of them.
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1. Whether the NGT has competent jurisdiction to hear this matter because the incident occurs 20NM off the coast of Vishakhapatnam, well beyond India’s territorial water which only stretch up to 12NM?
20 jurisdiction to deal with disputes relating to maritime pollution in exclusive economic zones in order to achieve this goal.
2. Whether the Tribunal is empowered to award compensation in lieu of the government of India’s (Indian coast guard) legal exercise of preserving the environment? - Mantri Technoze Pvt. Ltd. vs Forward Foundation. on 5 March, 2019 The Honourable Supreme Court stated that “ The Tribunal has been established under a constitutional mandate provided in Schedule VII List I Entry 13 of the Constitution of India, to implement the decision taken at the United Nations Conference on Environment and Development. The Tribunal is a specialized judicial body for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment. The right to healthy environment has been construed as a part of the right to life under Article 21 by way of judicial pronouncements. Therefore, the Tribunal has special jurisdiction for enforcement of environmental rights”. The jurisdiction of the Tribunal is provided under Sections 14, 15 and 16 of the Act. Section 14 provides the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved. However, such question should arise out of implementation of the enactments specified in Schedule I. The Tribunal has also jurisdiction under Section 15(1)(a) of the Act to provide relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in Schedule I. Further, under Section 15(1)(b) and 15(1)(c) the Tribunal can provide for restitution of property damaged and for restitution of the environment for such area or areas as the Tribunal may think fit. It is noteworthy that Section 15(1)(b) & (c) have not been made relatable to Schedule I enactments of the Act. Rightly so, this grants a glimpse into the wide range of powers that the Tribunal has been cloaked with respect to restoration of the environment. Section 15(1)(c) of the Act is an entire island of power and jurisdiction read with Section 20 of the Act. The principles of sustainable development, precautionary principle and polluter pays, propounded by this Court by way of multiple judicial pronouncements, have now been embedded as a bedrock of environmental jurisprudence under the NGT Act. Therefore, wherever the environment and ecology are being compromised and jeopardized, the Tribunal can apply Section 20 for taking restorative measures in the interest of the environment. - Colaba Koliwada Jamshedji Bunder ... vs Ministry Of Environment Forest ... on 18 January, 2023 The Supreme Court held that “we would like to consider the plea taken by the learned counsel for the applicant with respect to one of the reliefs falling under Section 15 of the National Green Tribunal Act, 2010 i.e. challenging the CZMPs under Section 15 of the National Green Tribunal Act and hence claiming the period of limitation of five years. It is argued by the learned counsel for the applicant that the said relief would mean that earlier prepared CZMPs
21 should be taken into consideration while making appraisal of the project to be cleared instead of the CZMPs prepared under CRZ Notification of 2019. Therefore, it should be treated to be covered under `restitution' which is one of the grounds in Section 15 of the National Green Tribunal Act. After having gone through the above provision, we find that the Tribunal may, by an order, provide for restitution of property damaged and for restitution of the environment for such area or areas, as the Tribunal may think fit.” In the present case the Tribunal should held that it has the authority to award compensation for the costs incurred by the Central Government in cleaning up wrecks that could endanger navigation and the maritime environment. Several international treaties have provisions to that effect. With this, under section 15 and 17 read with section 14 and 20 of the NGT Act, 2010, respondent no. 5, 7, and 11 (Delta International Group – owner of the ship) should be held liable of environmental compensation to the Government of India’s Ministry of Shipping.
3. The sender and his subsidiaries intended to play the blame game, the insurer was registered outside India and claimed bankruptcy, the re-insurer, also a foreign entity, was not a party, and the receiver was claiming no fault theory, his claim is that his goods (non choking coal) had no impact on the marine and coastal ecosystem. In such a case who should be held liable? - In M.C. Mehta v. Union of India [(1987) 4 SCC 463] this Court held as under: The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over unemployment and loss of revenue problem. The Precautionary Principle‖ has been accepted as a part of the law of the land. Articles 21, 47, 48 - A and 51- A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes. - Ajay Jayvatrao Bhosale vs Union Of India Through The ... on 1 December, 2022 The Tribunal, specially constituted with Judicial Members as well as with Experts in the field of environment, has a legal obligation to provide for preventive and restorative measures in the interest of the environment. The Tribunal observed that-
