CLASS MOOT 2017

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Writ Petition no. ____ Of 2017

In the matter of

TRIBAL PROTEST FORUM ……………PETITIONER

V.

STATE OF KERALA ………………………RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS iii

INDEX OF AUTHORITIES iv

STATEMENT OF JURISDICTION v

SUMMARY OF FACTS vi

ISSUES RAISED vii

SUMMARY OF ARGUMENTS viii

ARGUMENTS ADVANCED 1-5

CONTENTION 1. THAT THE RIGHTS OF THE TRIBAL COMMUNITIES ARE VIOLATED BY THE DAM
PROJECT.

CONTENTION 2. THAT THE FOREST CLEARANCE IS NOT VALID.

PRAYER 6

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LIST OF ABBREVIATIONS

& And
¶ Page
AIR All India Reporter
Art. Article
A.P. Andhra Pradesh
Anr. Another
Bom. Bombay
Cal. Calcutta
Cri Criminal
Contd. Continued
EIA Environmental Impact Assessment
Ed Editor
Edn. Edition
Hon’ble Honourable
H.P. Himachal Pradesh
MoTA Ministry of Tribal Affairs
S. Section
S.C. Supreme Court
S.C.C. Supreme Court Case
T.N. Tamil Nadu
UDHR Universal Declaration of Human Rights
v. Versus
Vol. Volume

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INDEX OF AUTHORITIES

STATUTORY COMPILATIONS

 THE CONSTITUION OF INDIA, 1950

 NATIONAL GREEN TRIBUNALS ACT, 2010
 THE FOREST RIGHTS ACT, 2006

BOOKS AND DIGESTS

 NARENDER KUMAR, CONSTITUTIONAL LAW OF INDIA, 9TH EDITION

 DR. PARAMJIT S. JASWAL, ENVIRONMENTAL LAW, 4TH EDITION

TABLE OF CASES

1. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180

2. Francis Corallie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746

3. Ram Prasad Yadav v. Chairman, Bombay Port Trust, 1989 SCALE (1) 716

4. Bal Kishan v. State of Haryana, W.P. No. 596 of 2014

5. State of Bihar v. Prem Kumar Singh, L.P.A/702/2012 IN (CWJC/3114/2012)

6. P Rami Reddy v. State of Andhra Pradesh, AIR 1988 SC 1626

7. Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476

8. Chewan Pintso Bhutia v. State of Sikkim, W.P.(C) No, 22 of 2012

9. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd, (2008) 13 SCC 30.

10. Lubicon Lake Band v. Canada CCPR/C/38/D/167/1984

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STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THIS HONORABLE COURT UNDER THE WRIT
JURISDICTION OF THE SUPREME COURT AS GIVEN UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA

ARTICLE 32. 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

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SUMMARY OF FACTS

1. Panchamuki river starts in Kerala, flows through it for 160 km and crosses Tamilnadu, runs

through it for 285 kms and empties into the Bay of Bengal.

2. The state of Kerala decided to build a large dam across the river at Jrugnalakuda. The

project has already started and is awaiting clearance from central water commission,

Ministry of Environment and forest and Ministry of welfare.

3. Tribal people of five villages living on the banks of the river in the state of Tamil Nadu,

fearing the consequences, formed an agitation committee under the ‘Tribal protest forum’

and filed a case against the state of Kerala in the Supreme Court challenging the dam

project on the following grounds:

1) The dam project will cause ecological imbalance and violates their right to environment.

2) Their livelihood is affected.

3) They will be displaced since the dam project will submerge their villages.

4) Their place of worship will be destroyed and hence the project is violative of their

religious rights.

5) Kerala’s action is violative of the forest rights act.

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ISSUES RAISED

1. WHETHER THE RIGHTS OF THE TRIBAL COMMUNITIES ARE VIOLATED BY THE DAM
PROJECT?
2. WHETHER THE FOREST CLEARANCE IS VALID?

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SUMMARY OF ARGUMENTS

1. The dam project violates several fundamental rights including the right to shelter, livelihood,
religion and culture by displacing the tribal communities from their homes and lands that are sacred
to them. The constitutional right to property also stands violated by the dam project.
2. The forest clearance is invalid since it violates many rights of the tribal communities who are
forest dwellers within the meaning of the forest rights act. First, the tribal communities cannot be
displaced before the recognition and verification of their rights are completed; and second, the
gram sabha has not consented to this dam project. Therefore, the fc is invalid.

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ARGUMENTS ADVANCED

II. THE DAM PROJECT INFRINGES ON VARIOUS RIGHTS OF THE TRIBAL

COMMUNITIES
It is submitted that implementation of the Project would result in a violation of multiple
Fundamental and statutory rights that emanate therefrom. These rights include the right to Shelter
under Art. 21 [A], the right to livelihood under Art. 21 and Art. 19(1)(g)[D],The right to religion
and minority rights under Art. 29 and Art. 25 [E].

A. The Dam Project violates the right to shelter

1. In the instant case, the Forest is home to the indigenous Tribal Communities who are being
displaced on account of large-scale dam operations. It is submitted that this displacement
of the Tribal Communities violates their right to shelter guaranteed under Art. 21 of the
Constitution.

a) The Tribal communities enjoy a fundamental right to shelter

2. The right to shelter has been read into Art. 211 as an essential concomitant of the
fundamental right to life.2 This Hon'ble Court has interpreted the right to shelter to mean
the right against forceful eviction.3 Additionally, many international instruments that
India is a party to explicitly provide for the right to adequate housing and shelter.4
Crucially, with regard to forest dwelling tribal communities, this right has been codified

1
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; Shantistar Builders v. Narayan Khimalal
Totame, AIR 1986 SC 180; See also Protection of Human Rights Act § 2(1)(d) (1993)
2
Francis Corallie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; Shantistar Builders v.
Narayan Khimalal Totame, AIR 1990 SC 630; Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan,
(1997) 11 SCC 123
3
Ram Prasad Yadav v. Chairman, Bombay Port Trust, 1989 SCALE (1) 716; Ahmedabad Municipal
Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123; Olga Tellis v. Bombay Municipal Corporation,
AIR 1986 SC 180; Shantistar Builders v. Narayan Khimalal Totame, AIR 1986 SC 180; P. K. Koul v. Estate
Officer, W.P.(C) No.15239/2004
4
ICESCR, General Comment on Art. 11(1966); UDHR Art. 25.

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under the Forest Rights Act. 5 Therefore, it is submitted that the Tribal Communities are
entitled to their natural habitat under Art. 21 and this is contravened by the Project.

b) The lack of an enforceable rehabilitation policy violates the right to shelter.

3. The right to rehabilitation of displaced persons is a part of Art. 21.6 In cases of forced
displacement, it has been held “rehabilitation of the oustees is a logical corollary of
Article 21".7 Further, since there is a void in domestic law, international law instruments
become relevant. This is especially true in issues concerning the environment and human
rights. Therefore, the Guiding Principles on Internal Displacement must be considered. In
the present case, there is no plan for rehabilitation or measures for resettlement for and of the
displaced tribal communities.

B. The Dam Project violates the right to livelihood

4. The right to livelihood, being an important facet of the right to life is protected under Art.
21.8 With respect to forest dwelling tribal communities, this is also statutorily guaranteed in
the FRA. In the instant case, the tribal communities' livelihood includes activities such
as apiculture, gathering of herbs, fruits and flowers, and collection of gum dust.
Therefore, it is submitted that the dam project, by displacing the tribal communities from
their land and forest deprives them of their right to livelihood.

5. The Respondent may take up the defence that the tribal communities have been given
access to the Forest for their livelihood requirements. However, it is not mere access but
actual availability and possession of land that is indispensable to the livelihood and
sustenance of tribal communities.9 Moreover, the environmental degradation caused by
dam will inevitably have an adverse effect on livelihoods that are heavily dependent on the

5
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act § 3 (2006).
6
Bal Kishan v. State of Haryana, W.P. No. 596 of 2014; Sudama Singh v. Govt. of Delhi, W.P. (C) No.
8904/2009.
7
State of Bihar v. Prem Kumar Singh, L.P.A/702/2012 IN (CWJC/3114/2012); N .D. Jayal v. Union of India,
(2004) 9 SCC 362
8
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; Shantistar Builders v. Narayan Khimalal
Totame, AIR 1986 SC 180.
9
P Rami Reddy v. State of Andhra Pradesh, AIR 1988 SC 1626; Madhu Kishwar v. State of Bihar AIR 1996
SC 1864; Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191.

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forest ecosystem and forest produce. In any case, demand for exact evidence to show
the loss of livelihood by eviction is 'unrealistic'. Indeed, the Supreme Court in Olga,
advocated for the use of common-sense and not strict proof of nexus between eviction
and loss of livelihood.

6. The Respondent may also submit that the Compassionate-Employment safeguard is

sufficient to ensure that right to livelihood is not deprived. However, it is submitted that this
is inadequate for two reasons. First, the safeguard in the EC is merely a guideline and not a
guarantee. Moreover, in the absence of stipulations like provision of vocational training, such
a safeguard is meaningless. Indeed, the Planning Commission of India has admitted that there
has been a failure to provide "alternative livelihoods to those displaced by developmental
projects". Second, even the safeguard is limited to one adult member
per family and not to every single person who may lose their livelihood.

C. The Dam Project violates the religious and cultural rights

7. Petitioner submits that the Dam Project in the forest encroaches upon the religious and
cultural rights of the Tribal communities. The lands and the rocks are sacred to indigenous
tribal communities that reside therein and form a part of their cultural heritage. It is
submitted that the dam project materially interferes with the tribal communities' right to
religion [a] and right to culture [b].

a) The Dam Project violates Art. 25

8. The tribal communities enjoy a right to practice their religion that is protected under Art.
25 of the Constitution. Further, the right includes the right to practice rituals and observation
in addition to faith and belief.10 It is submitted that the Dam Project violates this right
by destroying the lands and rocks that are sacred to the tribals and further, the right to
practice their religion by displacing them from their sacred land, destroying the rocks
and preventing access to those areas. Moreover, no safeguards have been provided to protect
these religious sentiments as was done in Alaknanda.

10
Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476; Acharya Maharajshri
Narendera Prasadji Anand Prasadji Maharaj v. State of Gujarat, AIR 1974 SC 2098; Seshammal v. State of
Tamil Nadu, 1972 (3) SCR 815

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9. Respondents may suggest that the religious rights of the Tribals may be restricted in
favour of a Dam Project that purports to be in public interest. However, it is submitted that
this restriction in not in pursuance of “public order, morality and health and any other
fundamental right” and hence, impermissible.

b) The Dam Project violates Art. 29

10. The tribal communities have a fundamental right to conserve their distinct culture. 63 Since
the petitioners are indigenous tribal communities living within the reserve forest, they are
“forest dwelling Scheduled Tribes” for the purposes of the FRA and are entitled to certain
statutorily guaranteed cultural rights.
Moreover, recent precedents such as Orissa Mining11 and Chewang Pintso Bhutia12 have
recognised that tribals are entitled to protect their rights under the FRA.

11. Moreover, this Court may liberally adopt principles from International Conventions since it
is an issue concerning 'human rights, environment, ecology and other second-generation or
third-generation rights'. 13Thus, international instruments that mandate recognition of
customary and cultural rights of indigenous people14 become relevant. In fact, in Lubicon
Lake Band, an energy exploration project that threatened “the way of life and culture” of the
indigenous community was held to violate the cultural rights guaranteed under the ICCPR.
15

II. THE FOREST CLEARANCE IS INVALID

12. The petitioner submits that the Forest Clearance obtained is invalid as first, it violates
various rights of the Tribal Communities conferred by the FRA. The FRA confers
various individual and community rights to tribal and indigenous communities residing in
forests. It is submitted that the Tribal Communities in the instant case qualify as “forest

11
Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476.
12
Chewang Pintso Bhutia v. State of Sikkim, W.P.(C) No. 22/2012.
13
Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd, (2008) 13 SCC 30.
14
ICCPR Art. 25 (1966), International Labour Organization (ILO) Convention on Indigenous and Tribal
Populations Convention No. 169 (1957); Convention on Biological Diversity (1992)
15
Lubicon Lake Band v. Canada CCPR/C/38/D/167/1984

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dwelling Scheduled Tribes”, and consequently, enjoy rights such as the right to hold,16
cultivate and live on forest land, right to access forest resources for livelihood, right
to protect, conserve and manage any community resource for sustained use, right of access
to biodiversity and any other traditional right customarily enjoyed by them. Any Forest
Clearance must necessarily comply with the provisions of FRA to be valid. It is submitted
that the Forest Clearance in the instant case violates the provisions of the FRA in two distinct
ways and is therefore, invalid.

13. First, Section 4(5) of the FRA stipulates that no tribal can be evicted or displaced from
the land under his occupation until the recognition and verification of rights is completed.
The Ministry of Tribal Affairs has interpreted this provision to be absolute and enjoined
State Governments from evicting any forest dweller till the recognition and verification of
rights is completed.17 In this case, there is nothing to suggest that the rights of the Tribal
Communities have been settled. Therefore, it is submitted that the grant of Forest Clearance
disregards this procedure under the FRA and is impermissible.

14. Secondly, the rights of the tribals cannot be abrogated to make way for a developmental
project without the consent of the Gram Sabha. Further, as per a circular of the Ministry of
Environment and Forest, additional compliance requirements such as written consent or
rejection of the Gram Sabha and a separate written approval for diversion of forest land
must be mandatorily attached to the Forest Clearance application. Indeed, this Hon’ble
Court in Orissa Dam18, reiterated that the Gram Sabha’s approval is a pre- requisite for the
sanction of forest clearance It is submitted that the omission to seek the approval of the
Gram Sabha is in blatant disregard of the aforementioned stipulations. Therefore, the
petitioner submits that the Forest Clearance is invalid and should be set aside.

15. It is submitted that the omission of a mandatory consultation to seek the approval of the
Gram Sabha is in blatant disregard of the aforementioned stipulations. Therefore, the
petitioner submits that the Forest Clearance is invalid and should be set aside.

16
“The forest rights recognised and vested under this Act shall include the right of land to forest dwelling
tribes….” Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act § 4(8)
(2006)
17
¶ V(a), MoTA Guidelines [No. 23011/32/2010-FRA {Vol. II (Pt.)}] vide letter dated July 12th, 2012.
18
Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476.

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PRAYER

In the light of the facts of the case, issues raised, arguments advanced and authorities cited, the
Counsel for the Petitioner humbly prays before the Hon’ble Court to kindly adjudge and declare
that:

1. THAT THE RIGHTS OF THE TRIBAL COMMUNITIES ARE VIOLATED BY THE

DAM PROJECT.
2. THAT THE FOREST CLEARANCE IS NOT VALID.

And to further pass any order that the Hon’ble Court may deem fit.
And for this act of kindness, the Counsel on behalf of the Petitioner, as duty bound shall forever
pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_______________________________

SD/-

COUNSEL FOR THE PETITIONER