Memorial for respondent | U.I.L.S.

UNIVERSITY INSTITUTE OF LEGAL

STUDIES, 9
th
SEMESTER
ACADEMIC MOOT COURT.

IN THE HONOURABLE SUPREME COURT OF INDIA

Writ petition No. of 2014

IN THE MATTER OF

X.Y.Z.

. PLANTIFF

VERSUS

UNION OF INDIA & OTHERS

.RESPONDENT


WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT.






MOST RESPECTFULLY SUBMITTED
COUNSEL FOR DEFENDANT NO.1
SD/-





Memorial for respondent | U.I.L.S.



TABLE OF CONTENTS.

1. INDEX OF AUTHORITIES
Statutes
Books
Websites
Cases
2. TABLE OF ABBREVIATIONS
3. STATEMENT OF JURISDICTION
4. STATEMENT OF FACTS
5. IDENTIFICATION OF ISSUES
6. BODY OF PLEADINGS
7. PRAYER FOR RELIEF




















Memorial for respondent | U.I.L.S.




INDEX OF AUTHORITIES.

1. STATUTES
Constitution of India, 1950
Chemical Disaster (processing of claims) Act, 2008
Halsburys Laws of England.
2. BOOKS
Iyers, Ramaswamy, The Law of Torts, Ed 9
th
, Lexis Nexis Butterworts
SP Sathe, administrative Law, Ed 7
th

Pandey, J.N., constitutional law of India, 2003. Allahbad : central law agency
Black's Law Dictionary, Vol.33 5th Edn. 1979
Tagore Law Lectures, 5th Edn. p. 404; Words & Phrases, permanentEdn.

3. WEBSITES
http://webpage.pace.edu/pacelegalassistance/negligence.htm
http://archive.org/stream/jstor-1321649/1321649_djvu.txt
www.duhaime.org Legal Dictionary
http://www.judis.nic.in
http://www.manupatra.com
http://www.findlaw.com
4. CASES
Mohapatra v. state of Orissa. 2007 (4) SCC 103.
Maneka Gandhi v. Union of India. AIR 1987 SC 597
Alfred L. Snapp& Son, Inc. v. Puerto Rico, 458 US 592, 73 L. Ed. 2d 995, 1028. Ct,
3260
Georgia v. Tennessee Copper Co., 206 US 230, 51 L.Ed. 1038, 27 S Ct 618
Collector of Customs, Madras v. NathellaSampathuChetty[1962] 3 SCR 786



Memorial for respondent | U.I.L.S.




TABLE OF ABBREVATIONS.

1. A.I.R. All India Reporter.
2. Art Article
3. HC High court
4. SC Supreme court
5. SCC Supreme Court Cases
6. P. Page
7. US United states of America
8. Vol. Volume
9. UOI union of India
10. CPC- Code of Civil Procedure, 1908




















Memorial for respondent | U.I.L.S.





STATEMENT OF JURTISDICTION.

In this instant matter the petition has been filed before the Honble Supreme Court claiming the breach
of Fundamental Rights, while the Respondent submits to the jurisdiction of this Honble Court under
Article 32 of the Constitution of India.

























Memorial for respondent | U.I.L.S.






STATEMENT OF FACTS.

The Counsels for the Respondent most respectfully showeth:

National Acetate (India) Limited (NAIL), which was a subsidiary of the New York based Central
Acetate Corporation (CAC) owned a plant in Chattisgarh to manufacture pesticides. A highly toxic gas,
Methyl Isocyanate (MIC) was used in the process and there was a massive leak from the storage tank on
the night between 2
nd
and 3
rd
December2007, which resulted in death of approximately 3000 people and
injuries to thousands of others.
The tragedy was followed by large number of suits being filed against the companies in both India and
the United States. With regard to this, the Government took a major step by enacting the Chemical
Disaster (Processing of Claims) Act, 2008 with the object to confer powers on the Central Government
to assure that claims arising out of, or connected with, the Chemical Disaster are dealt with speedily,
effectively, equitably and to the best advantage of the claimants and for matters incidental thereto.
1

Section 3 of the Act empowered the Central Government to file suits on behalf of the victims
exclusively, hence, taking away the rights of affected to file suits on their own. Though it was
specifically mentioned that in case of suits that were already filed before the enactment of the aforesaid
Act, the Central Government shall represent the victims or act in addition to them with the permission of
the Court. Hence the writ.






1
Preamble of the Chemical Disaster ( Processing of Claims) Act, 2008

Memorial for respondent | U.I.L.S.









IDENTIFICATION OF ISSUES.

The following core issues that came up, were,
1) Whether or not the Act was in accordance with the Fundamental Rights guaranteed under Article
14, 19 and 21 of the Indian Constitution?
2) Whether or not the Act was in accordance with the Principles of Natural Justice?
2.1) Whether being a joint tort feasor, the Union on India had any locus standi to
compromise on behalf of the victims as it itself had permitted the establishment of such
factories without necessary safeguards?
2.2) Whether or not the victims and their legal heirs were given opportunity to be heard?
2.3) Whether or not, due to conflict on interests, the Central Government was acting as a
judge in its own cause?
3) Whether or not the Central Government is legislatively competent to destroy/ demand the citizens
to surrender their rights in guise of giving aid?






Memorial for respondent | U.I.L.S.








PLEADINGS.

1. Whether or not the Act was in accordance with the Fundamental Rights guaranteed
under Article 14, 19 and 21 of the Indian Constitution?
The contention of the petitioners was that the Act infringed on their individual rights to legal remedy
against the CAC and NAIL for the consequences of carrying out dangerous and hazardous activities in
India. It was argued that the one could not take away the right of a person, the liberty of a person, to
institute proceedings for his own benefit and for his protection. Sections 3, 4 and 11 of the aforesaid
Act were contented to be in violation of Article 14, 19(1)(g) and 21 of the Constitution because the
procedure that was established under these Sections deprived the just and legitimate rights of the victims
to assert and obtain their just dues and therefore such rights cannot be destroyed because under law,
victims have a right to ventilate their rights. Another argument in this regard was that it has been
asserted by the Government that the Act was passed pursuant to Entry 13 of the List I of the Seventh
Schedule to the Constitution. It was therefore submitted that to the extent it was a law relating to civil
procedure, it sets up a different procedure for the Disaster victims and denies to them equality before
law, violating Article 14 of the Constitution. Attention was also drawn to the provisions of the
Universal Declaration of Human Rights in support of their argument.
It is argued that there were various reasons to enact the Act and some of them were- the plight of the
impoverished, the urgency of the victims need, the presence of the foreign contingency lawyers, the
procedure of settlement in USA in mass action, the strength of the foreign multinationals, the nature of
injuries and damages. Further, it is argued by the Government that the Preamble to the Constitution of
India, read with the Directive Principles, Articles 38, 39 and 39A of enjoins the State to take up

Memorial for respondent | U.I.L.S.


responsibility. The taking up of this responsibility has been derived directly from the doctrine of parens
patriae.
Parens Patriae means the father of the country and it is the inherent power and authority of a
legislature to provide protection to the person and property of persons non suijuris, such as minor insane
or incompetent persons. It should be taken into account that the victims cannot be considered to be
any match to the multinational companies or the government with whom in the conditions that the
victims or their representatives were after the disaster physically, mentally, financially,
economically and also because of the position of litigation would have to contend and in such a
situation of predicament, the victims could be legitimately be considered to be disabled and
therefore the power was vested in the Central Government. Further it was ruled that the Act in question
had been passed in recognition of the right of the sovereign to act as a parenspatriae. I t is necessary for
the State to ensure the Fundamental Rights in conjunction with the Directive Principles of State
Policy to effectively discharge its obligations and for this purpose if necessary, to deprive some rights
and privileges of the individual victims or their heirs to protect their rights better and secure these
further.
Alfred L. Snapp& Son, Inc. v. Puerto Rico, 458 US 592, 73 L. Ed. 2d 995, 1028. Ct, 3260 in this
connection. There it was held by the Supreme Court of the United States of America that
Commonwealth of Puerto have standing to sue as parenspatriae to enjoin apple growers' discrimination
against Puerto Rico migrant farm workers. This case illustrates in some aspect the scope of
'parenspatriae'. The Commonwealth of Puerto Rico sued in the United States District Court for the
Western District of Virginia, as parenspatriae for Puerto Rican migrant farm workers, and against
Virginia apple growers, to enjoin discrimination against Puerto Ricans in favour of Jamaican workers in
violation of the Wagner-Peyser Act, and the Immigration and Nationality Act. The District Court dis-
missed the action on the ground that the Commonwealth lacked standing to sue, but the Court of Appeal
for the Fourth Circuit reversed it. On certiorari, the United States Supreme Court affirmed.
Again an instructive insight can be obtained from the observations of Justice Holmes of the American
Supreme Court in the case of Georgia v. Tennessee Copper Co., 206 US 230, 51 L.Ed. 1038, 27 S Ct
618, which was a case involving air pollution in Georgia caused by the discharge of noxious gases from
the defendant's plant in Tennessee. Justice Holmes described the State's interest as follows: "This is a

Memorial for respondent | U.I.L.S.


suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an
interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It
has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall
breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the
final power.
When the States by their union made the forcible abatement of outside nuisances impossible to each,
they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of
making reasonable demands on the ground of their still remaining quasi-sovereign interests"
The Court in Collector of Customs, Madras v. Nathella Sampathu Chetty[1962] 3 SCR 786 emphasized
that the constitutional validity of the statute would have to be determined on the basis of its provisions
and on the ambit of its operation as reasonably construed. It has to be borne in mind that if upon so
judged it passes the test of reasonableness, then the possibility of the powers conferred being improperly
used is no ground for pronouncing the law itself invalid.
Hence the act is constitutional valid and not infringing on the Fundamental Rights of the victims under
Articles 14, 19 and 21.

2. Whether or not the Act was in accordance with the Principles of Natural Justice?
Whether being a joint tort feasor, the Union on India had any locus standi to compromise
on behalf of the victims as it itself had permitted the establishment of such factories
without necessary safeguards?
The contention of the Government is that it only represented the victims as a party and did not
adjudicate between the victims and the CAC and hence the rights of the victims were adjudicated by the
Court only. It is also stated that such a representation of the victims by the Government cannot be
considered to be bad anywhere and hence there is no scope of violation of any principle of natural
justice. The respondent contends that it was acting on behalf of the victims because the Doctrine of
Necessity applied in the present case. Referring to Halsburys Laws of England, in which it is stated
that, even if all the members of a tribunal competent to determine a matter were subject to
disqualification, they might be authorized and obliged to hear that matter, by virtue of the operation of

Memorial for respondent | U.I.L.S.


the common law doctrine of necessity . Even in this case if the Central Government might somewhere
be liable in a case of this nature, it would be proper that it should be able and authorized to represent the
victims because only the Government is capable of representing the victims (has locus standi) in such a
peculiar case and the doctrine of necessity would apply and the principles of natural justice are not
violated.
In the case of J. Mohapatra vs. State of Orrisa
2
. In this case, there was dispute as to selection of books
meant for Government libraries. The selection was done on basis of recommendations by a Committee
and there were allegations that the Committee had members who recommended their own books. The
Court dwelling into the Doctrine of Bias, commented on its exception in the following way: An
adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he
has to decide, may be required to adjudicate if there is no other person who is competent or authorized
to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be
constituted. In such cases, the principal of natural justice would have to give way to necessity for
otherwise there would be no means of deciding the matter and the machinery of justice or
administration would break down.
3


Whether or not the victims and their legal heirs were given opportunity to be heard?
One of the basic principles of Natural Justice is that people affected by an action or inaction should have
a Right to be Heard. In this case, the petitioners contended that they were not given any right to be heard
as the Central Government took control to represent all the victims together. Even by doing so they
could have got their say if the Court notified them about the due proceedings, settlement agreement
through newspapers, television, radio or any other adequate sources.
Reference to the case of Maneka Gandhi vs Union of India
4
were her passport was impounded by the
authorities without giving her any prior notice or opportunity to be heard. The legal question was can a
post decisional hearing mitigate the injustice caused by the lack of pre decisional hearing. All the

2
2007 4 SCC 103
3
Para. 4 (1)- J. Mohapatra vs. State of Orrisa, 2007 4 SCC 103
4
AIR 1978 SC 597

Memorial for respondent | U.I.L.S.


Judges agreed that it was a clear violation of the Doctrine of audi alteram partem and hence the Court
decided to give a post decisional hearing to her.
5

Thus, this is clear that some say was actually given to the victims by Section 4 of the aforesaid Act to
represent themselves before the Court before it comes to any conclusion in respect of any settlement. It
was because of the mass tort action and the magnitude and nature of this case that it was near to
impossible to hear each and every concerned.
Whether or not, due to conflict on interests, the Central Government was acting as a
judge in its own cause?
It was contended by the Petitioners that the Central Government owns 22% shares in NAIL and hence
there is a conflict of interest between the victims and hence on that ground the latter is disentitled to
represent the former in their battle against NAIL and CAC which would make the government a judge in
its own cause, thus breaching this principle of natural justice. However the court must take into
consideration that these are statutory independent organisations namely FTI and UIC who own 20-22%
share in NAIL. The Government has certain amount of say in UIC and FTI and hence there is no conflict
on interests in real sense of matter with respect to the given case. Secondly, in such a critical situation,
only the Central Government can pursue and effectively represent the victims.
Thus the Doctrine of Necessity would over ride the possible violation of the principles of natural justice
that no one should be a judge in his own cause.
Thus it can be seen that the Court applied to Doctrine of Necessity in its widest scope in this case. It
seemed that Court in this case was in agreement to an extent that the principles of natural justice would
be violated due to the enactment of the Act but the sheer magnitude and complexity of the situation led
the Court to make this exception to the Doctrine of Bias appUICable to this case. The Court found that it
was only the Government which was capable of leading, representing and taking forward the cause of
the victims, even though it may be denying them the right to be heard in some sense and would be a
judge in its own cause in some sense, but the situation called for the exception to be adopted


5
SP Sathe, Administrative Law, 7
th
Ed., Pg. 236

Memorial for respondent | U.I.L.S.


3. Whether or not the Central Government is legislatively competent to destroy/ demand the
citizens to surrender their rights in guise of giving aid?
The victims have contended that it is not permissible for the State to grant legal aid at the cost of
destroying rights that in here in citizens or by demanding the rights of the citizens to the State. On
interpretation of the Act it is noticed that Sections 3 and 4 gave exclusive power to the Government to
represent the victims and hence there is deprivation of victims right to sue for the wrongs done to them
which is uncanalised and unguided and the expression due regard in Section 4 of the Act does not
imply consent and hence it violates the rights of the victims.
In response, the Central Governments argument is that the Act was passed to give effect to the
Directive Principles as enshrined under Article 39A of the ConstitFTIon of India and thus the Central
Government is legislatively competent in enacting such provisions taking DPSP under Article 39 as a
feasible defense for such competency .











Memorial for respondent | U.I.L.S.





PRAYER FOR RELIEF.

This case has been a unique case in itself where the urgency of the situation and the lack of legislations
and administrative provisions led to the enactment of the Act in a haste and this subsequent case where
the Supreme Court has to interpret that the situation called for the exceptions in Administrative Law to
apply.
Wherefore, in the light of the facts stated, issues raised and arguments advanced, it is most humbly
prayed before the Honble Supreme Court that it may be pleased to:

i. Dismiss the instant writ petition.

ii. Allow the costs which have been incurred by the respondents.


And to pass any other order which the Court may deem fit in the ends of equity, Justice and good
Conscience.
All of which is most humbly and respectfully submitted.



Memorial for respondent | U.I.L.S.


To do a great right after all, it is permissible sometimes to do a little wrong
6


Place: New Delhi Counsel for the Respondent



6
SP Sathe, Administrative Law, 7
TH
Ed., Pg. 603