TEAM CODE- R-320

2nd LEX MACULA VIRTUAL MOOT COURT COMPETITION, 2020

Before
THE HON’BLE HIGH COURT OF WAKANDA

IN THE MATTER OF –
WRIT PETITION (CIVIL) NO. _______ OF 2020
(UNDER ARTICLE 226 OF THE CONSTITUTION OF GOTHAM)

FUNDAMENTAL LIBERTIES GROUP ............. (PETITIONER)

V.

THE STATE OF WAKANDA ............ (RESPONDENT)

UPON SUBMISSION TO THE HONOURABLE JUDGES OF THE HIGH COURT OF WAKANDA

MEMORANDUM ON BEHALF OF THE RESPONDENT

MEMORANDUM for RESPONDENT [TABLE OF CONTENTS]

TABLE OF CONTENTS

INDEX OF ABBREVIATIONS........................................................................................... III

INDEX OF AUTHORITIES ................................................................................................ IV

STATEMENT OF JURISDICTION ................................................................................ VIII

STATEMENT OF FACTS ................................................................................................... IX

STATEMENT OF ISSUES .................................................................................................. XI

SUMMARY OF ARGUMENTS ......................................................................................... XII

ARGUMENTS ADVANCED .................................................................................................. 1

ISSUE [I]. THAT THE PETITION FILED BY THE FUNDAMENTAL LIBERTIES

GROUP (FLG) IS NOT MAINTAINABLE IN THE HONOURABLE HIGH COURT OF
WAKANDA .......................................................................................................................... 1

A. THAT THE PETITIONER HAS NOT EXHAUSTED THE EFFICACIOUS/ ALTERNATIVE

REMEDIES .................................................................................................................................. 1

1. That the Petitioner has neither exhausted a statutory remedy nor made a representation
to the State Government ............................................................................................................ 1

B. THAT THE HONOURABLE HIGH COURT ISSUING AN ORDER AGAINST THE GWP
WOULD BE A JUDICIAL OVERREACH....................................................................................... 2

ISSUE [II]. THAT THE EXTENSION OF GREEN WAKANDA POLICY IS

CONSTITUTIONALLY VALID .............................................................................................. 5

A. THAT THE EXTENSION OF GWP IS NOT CURBING, BUT PROTECTING THE RIGHTS OF
THE PEOPLE OF WAKANDA ...................................................................................................... 5

1. That the extension Green Wakanda Policy does not violate or curb the rights of people: ..
................................................................................................................................. 5

a) That the GWP imposes reasonable restrictions on the people to protect the larger interest_
_______________________________________________________________ 5
b) That the GWP is abiding by the Directive Principles of State Policy. _________________ 7

2. That the right to live in a pollution free environment is covered under Article 21: ........... 8

B. THAT THERE IS A PRESUMPTION OF CONSTITUTIONALITY............................................... 9

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MEMORANDUM for RESPONDENT [TABLE OF CONTENTS]

1. That the Petitioner failed to submit any proof of unfair curbs on citizens of Wakanda: ....
................................................................................................................................. 9

PRAYER ............................................................................................................................. XIII

PAGE | II
MEMORANDUM for RESPONDENT [LIST OF ABBREVIATIONS]

INDEX OF ABBREVIATIONS

ABBREV. FULL FORM

AIR All India Reporter

AQI Air Quality Index

Art./art. Article

Cal Calcutta High Court

Const. Constitution

Del Delhi High Court

FLG Fundamental Liberties Group

GWP Green Wakanda Policy

HC High Court

I.e. That is

Mad Madras High Court

NCT National Capital Territory

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

UOI Union of India

US Supreme Court of the United States

v. Versus

PAGE | III
MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

CASES PAGE NO.

Asif Hameed & Ors. v. State Of Jammu & Kashmir & Ors., 1989 AIR 1899 3

Balwant Singh Malik, Territoriality of executive powers of states in India, 2

(1998) 1 SCC (Jour) 14

Binoy Viswam v. Union of India and Others, (2017) 7 SCC 59 3

Chiranjit Lal Chowdhuri v. The Union of India & Ors., 1950 SCR 869 9

Commissioner of Income Tax v. Chhabil Dass Agrawal, 2013 SCC OnLine SC 1

717

Dr Ashwini Kumar v. Union Of India Ministry Of Home Affairs, 2

MANU/SCOR/02878/2019

Express Newspapers PVT. LTD. And Others v. Union of India And Others, 6
AIR 1958 SC 578

Har Sharan Varma v. Chandra Bhan Gupta, AIR 1962 All 301 4

His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and 3

Another, (1973) 4 SCC 225

I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu, (2007) 2 SCC 1 3

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 3

Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, AIR 1980 SC 8
1992

M.C. Mehta v. Union of India, (1991) AIR SC 813 9

M/s Laxmi Khandsari And Others. v. State of U.P. And Others., (1981) 2 SCC 8

PAGE | IV
MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES]

600

Mina Parween vs The State Of West Bengal & Ors., 2018 SCC Online Cal 2947 1

Narender Chand Hem Raj & Ors. v. Lt. Governor, Union Territory, H.P. & 3
Ors., (1971) 2 SCC 747

Nivedita Sharma v. Cellular Operators Association of India, (2012) 14 SCC 1

(Civ) 947

Olga Tellis And Ors. v. Bombay Municipal Corporation And Ors., (1985) 3 8
SCC 545

Shanti Star Builders v. Narayan Totame, 1990(1) SCC 520 9

Shashwat Bhardwaj v. Govt. of NCT of Delhi and Another, 2019 SCC OnLine 1
Del 10964

Shubhash Kumar v. State of Bihar, (1991) 1 SCC 598 9

State Of Himachal Pradesh v. A Parent Of A Student Of Medical College , 3

Simla And Ors., (1985) 3 SCC 169

State of Rajasthan and Others v. Union of India and Others., (1977) 3 SCC 592 3

State of Tamil Nadu v. State of Kerala, (2014) SCC OnLine SC 432 3

Subhash Kumar v. State of Bihar, 1991 (1) SCC 598 9

T.N. Godavarman Thirumulpad v. Union of India and Ors., (2006) 1 SCC 1 10

Thansingh Nathmal v. Superintendent of Taxes, (1964) 6 SCR 654 1

Trop v. Dulles, 356 US 86 3

STATUTES PAGE NO.

Air (Prevention and Control of Pollution) Act, 1981 6

PAGE | V
MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES]

INDIAN CONSTITUTION Passim

ARTICLES PAGE NO.

HENRY SHUE, Chapter 1 Security And Subsistence, in BASIC RIGHTS: 8

SUBSISTENCE AFFLUENCE AND US FOREIGN POLICY, Princeton University Press,
pp. 13-34 (1996).

JUSTICE (RETD) RUMA PAL, Separation of Powers, in THE OXFORD HANDBOOK 2

OF THE INDIAN CONSTITUTION 271, 271 (Sujit Choudhry, Madhav Khosla and
Pratap Bhanu Mehta eds., 2016)

JUSTICE B.P. BANERJEE, Grounds of Judicial Review, in WRIT REMEDIES- 3

REMEDIABLE RIGHTS UNDER PUBLIC LAW, 528, 528 (2016)

BOOKS PAGE NO.

A.V. DICEY, LAW OF THE CONSTITUTION, 197-198 (8th Edition) 2

PARAS DIWAN, INDIAN CONSTITUTION- A DOCUMENT OF PEOPLE’S FAITH AND 2

ASPIRATION, 333, 339 (1981)

ONLINE SOURCES PAGE NO.

Chiranjit Lal Chowdhuri vs. The Union of India and Ors. LAW TIMES JOURNAL, 10
http://lawtimesjournal.in/chiranjit-lal-chowdhuri-vs-the-union-of-india-and-ors/
(last visited Jun 8, 2020)

Dr.G. Indira Priya Darsini & Prof. K. Uma Devi, Article 21 of Indian 9
Constitution- A Mandate To Pollution Free Environment, LEGAL SERVICE
INDIA, (last visited Jun 8, 2020) http://www.legalserviceindia.com/article/l399-
A-Mandate-To-Pollution-Free-Environment.html

PAGE | VI
MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES]

NATIONAL AIR QUALITY INDEX, https://app.cpcbccr.com/AQI_India/ (last 4

visited Jun 12, 2020)

Staff Reporter, HC dismisses plea against odd-even, THE HINDU, Oct. 24, 2019, 1
https://www.thehindu.com/news/cities/Delhi/hc-dismisses-plea-against-odd-
even/article29781393.ece (last visited Jun 12, 2020)

V. Karthyaeni, Test of Reasonableness under Article 19, GO FOR THE LAW (last 5
visited Jun 8, 2020),
http://www.goforthelaw.com/articles/fromlawstu/article48.htm

PAGE | VII
MEMORANDUM for RESPONDENT [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The jurisdiction of the Honourable High Court of Wakanda has been invoked by the
Petitioner by exercising the right given under Article 226 of the Constitution of The Republic
of Gotham, for challenging the extension of Green Wakanda Policy submitting that the
extension puts unfair curbs on the citizens’ rights. The Respondent respectfully submits to the
jurisdiction of this Honourable High Court and maintains that no such curbs shall be imposed
on the citizens of Wakanda on extending the policy. The Respondent affirmatively accepts
that the judgement delivered by this Honourable High Court shall be binding.

PAGE | VIII
MEMORANDUM for RESPONDENT [STATEMENT OF FACTS]

STATEMENT OF FACTS

BACKGROUND:

1. The Republic of Gotham is a South-East Asian country with a population of 1.4 billion,
approximately. Wakanda, a Northern State of The Republic of Gotham, has been showing
a dangerously increased levels of air quality. The situation is deteriorating and the reports
that track the reasons of such exceedingly hazardous air quality levels in the state show
that the chief reason is vehicular pollution and an immediate attention is required.

FACTS IN CHRONOLOGICAL ORDER:

2. To curtail the intensifying dangerous air quality levels, with an objective to decrease the
vehicular pollution and improve the hazardously deteriorating air quality levels, the
Government of Wakanda introduced the ‘Green Wakanda Policy’ hereafter referred to as
GWP in the month of January of the year 2020.

3. GWP imposes certain restrictions pertaining to the usage of private motor vehicles. GWP
gives a leeway of ten days in a month for an individual to use his/her/their motor vehicles
and the individual should not exceed this margin, failing which, shall lead to imposition
of fines. GWP primarily encourages the citizens to use transport, which are environmental
friendly and reduce the daily adverse impact caused by the usage of numerous motor
vehicles, on the air pollution. This policy also encourages the option of work from home
to be provided for the employees who cannot use the environmental friendly transport.

4. This policy applies to the citizens who live in the state of Wakanda and to the citizens
from other states who are in the state of Wakanda. Such citizens from neighboring states
are allowed use their motor vehicles only for ten days while operating within the
boundaries of Wakanda.

5. There are exceptions under GWP for the people involved with essential goods and
services sector. The scheme will be exempted for the individuals involved in this sector.

6. All hospital support services related transportation and the transportation of medical and
para-medic staff are permitted. All public transport services, inclusive of railways,
airways and roadways will continue to remain in operation.

7. By the end of the month January of 2020, the GWP turned out be outstandingly
successful and the pollution levels have been decreased considerably. Comparing the Air

PAGE | IX
MEMORANDUM for RESPONDENT [STATEMENT OF FACTS]

Quality Index (AQI) of the month of January of the year 2020 to the levels from the
month of January of the previous year, I.e. 2019, the significant decrease in air pollution
is indicated by the considerable decrease in the AQI in January 2020 after GWP is
implemented. (NOTE: As AQI increases, the risk of public health increases)

8. Pertaining to the splendid success of GWP, the State of Wakanda has decided to extend
this one-month scheme to two years i.e. till the month of January 2022. This
announcement was made by the Honourable Chief Minister of Wakanda, Mr. Ned Stark,
on the 8th day of February, 2020. This has been done with an intention to improve the
quality of air, as mentioned by the Chief Minister on 8th of February, 2020. This
extension, as mentioned earlier, is made for the subsequent two years or the policy will be
in implementation until further notice is issued by the Government of Wakanda. In light
of this extension, the Government has decided to make efforts for increasing the facilities
of public transport.

9. This decision has received polarized reactions. However, due to dire need of protecting
the environment, the Government has decided to keep up the extension of GWP.

10. Fundamental Liberties Group, hereafter referred to as FLG, which works for the
upholding of fundamental liberties of citizens had approached the Honourable High Court
of Wakanda, challenging the extension of GWP, alleging that the extension would impose
unfair curbs on the rights of citizens of the state of Wakanda. The High Court has
scheduled the hearing of this petition for 15th day of June, 2020.

PAGE | X
MEMORANDUM for RESPONDENT [STATEMENT OF ISSUES]

STATEMENT OF ISSUES

____________ISSUE: [1] ____________

WHETHER THE PETITION FILED BY THE FUNDAMENTAL LIBERTIES GROUP (FLG) IS

MAINTAINABLE IN THE HONOURABLE HIGH COURT OF WAKANDA?

____________ISSUE: [2] ____________

WHETHER THE EXTENSION OF GREEN WAKANDA POLICY IS CONSTITUTIONALLY VALID?

PAGE | XI
MEMORANDUM for RESPONDENT [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

ISSUE [1]: THAT THE PETITION FILED BY THE FUNDAMENTAL LIBERTIES GROUP (FLG) IS
NOT MAINTAINABLE IN THE HONOURABLE HIGH COURT OF WAKANDA.

This argument seeks to establish that the Petitioner has not exhausted the alternate remedies
available, before approaching this High Court under Article 226. The Petitioner has not made
any representation to the Government of Wakanda and thereby, deprived the Government
from having an opportunity to address the concerns of the Petitioner. Honourable Court
deciding on the policy matter shall be in violation of the doctrine of separation of powers and
in violation of the autonomy of the executive.

ISSUE [2]: THAT THE EXTENSION OF GREEN WAKANDA POLICY IS CONSTITUTIONALLY

VALID.

Under this issue, it is submitted that the Green Wakanda Policy is imposing only reasonable
restrictions on the people of Wakanda and such restrictions are being imposed on the lines of
Article 19. Green Wakanda Policy is being extended for the greater interest of public health
and reducing the environmental pollution. Thereby, upholding the fundamental right of
people to live a pollution free and healthy environment, which is granted to them under
Article 21 of the Constitution. Furthermore, there is a presumption of constitutionality for a
policy until the contrary is proved affirmatively by the party alleging the unconstitutionality,
which has not been established by the Petitioner in the present case.

PAGE | XII
MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

ISSUE [I]. THAT THE PETITION FILED BY THE FUNDAMENTAL LIBERTIES

GROUP (FLG) IS NOT MAINTAINABLE IN THE HONOURABLE HIGH COURT OF
WAKANDA

A. THAT THE PETITIONER HAS NOT EXHAUSTED THE EFFICACIOUS/ ALTERNATIVE

REMEDIES

1. THAT THE PETITIONER HAS NEITHER EXHAUSTED A STATUTORY REMEDY NOR MADE A
REPRESENTATION TO THE STATE GOVERNMENT

(¶ 1.) It is humbly submitted to the Honourable Court that the Petitioner has not exhausted
any alternate remedies before approaching the High Court under Article 226. In the case of
Nivedita Sharma v. Cellular Operators Association of India,1 the Apex Court held that under
Article 226, the party who claims to have suffered, should approach the High Court only after
an alternate remedy has been exhausted. The party claiming the aggravation should have
exhausted the other remedies available and then approach the High Court.2

(¶ 2.) The Court in Commissioner of Income Tax v. Chhabil Dass Agrawal,3 further held
that a High Court shall not entertain a petition in the case of availability of alternate remedies
and this is a self-imposed rule of limitation.4 In the present case, the Petitioner has not
exhausted their alternate remedies and yet approached the Honourable High Court. There is
no exceptional case established by the Petitioner.

(¶ 3.) In such cases of grievances with a policy by the government, a representation should
be made to the Government, which was not done by the Petitioner in the present case. The
Petitioner has not made any sort of representation to the Government of Wakanda before
approaching the Court. The Court in the case of Shashwat Bhardwaj v. Govt. of NCT of Delhi
and Another,5 has dismissed a Public Interest Litigation on the grounds that the Petitioner in
that case has failed to make a representation to the Government.6 Therefore, the Petitioner, by

1
Nivedita Sharma v. Cellular Operators Association of India, (2012) 14 SCC (Civ) 947.
2
Mina Parween vs The State Of West Bengal & Ors., 2018 SCC Online Cal 2947.
3
Commissioner of Income Tax v. Chhabil Dass Agrawal, 2013 SCC OnLine SC 717.
4
Thansingh Nathmal v. Superintendent of Taxes, (1964) 6 SCR 654.
5
Shashwat Bhardwaj v. Govt. of NCT of Delhi and Another, 2019 SCC OnLine Del 10964.
6
Staff Reporter, HC dismisses plea against odd-even, THE HINDU, Oct. 24, 2019,
https://www.thehindu.com/news/cities/Delhi/hc-dismisses-plea-against-odd-even/article29781393.ece (last
visited Jun 12, 2020).

PAGE | 1
MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

not making such representation to the State Government, has deprived the State Government
from the opportunity of having their concerns addressed and thereby inviting appropriate
suggestions for the Green Wakanda Policy.

(¶ 4.) In the present case, it is humbly submitted to this Court that the Petitioner has not
made any representation to the Government of Wakanda to ensure that their concerns have
been addressed by the Government. The Petitioner has failed to exhaust their alternate
remedy before approaching the Court. Therefore, it is prayed that the petition be hold as not
maintainable in this Honourable High Court of Wakanda.

B. THAT THE HONOURABLE HIGH COURT ISSUING AN ORDER AGAINST THE GWP
WOULD BE A JUDICIAL OVERREACH

(¶ 5.) It is respectfully submitted that the Article 1627 of the Constitution of The Republic of
Gotham, states that the executive powers of the states are extended to the matters with
regards to the extent which the state within its powers, can make laws.8 Under Article 2269 of
the Constitution, the High Courts can review the policies of the executive with regards to the
bona fide intention of the state and the limits that the policy covers.

(¶ 6.) The Judiciary is the guardian and an independent interpreter of the Constitution.10 The
judiciary steps in when a policy of the executive violates the basic structure of the
Constitution, infringes the fundamental rights guaranteed by the Constitution or negates/
contradicts any existing legislation. The Supreme Court in the case of Dr Ashwini Kumar v.
Union Of India Ministry Of Home Affairs,11 held that the courts will only examine the legality
of a policy by the executive and will not get into the merits or the demerits of that policy. The
judiciary should be careful of its boundaries while dealing with the policy decisions of the
executive and such restraint can only be self-imposed. The doctrine of separation of powers
under the Constitution of The Republic of Gotham separates the three organs, with unequal
powers, where the executive has been entrusted with the dominant powers,12 and wide
discretion.13

7
INDIA. CONST. art. 162.
8
Balwant Singh Malik, Territoriality of executive powers of states in India, (1998) 1 SCC (Jour) 14.
9
INDIA. CONST. art. 226.
10
PARAS DIWAN, INDIAN CONSTITUTION- A DOCUMENT OF PEOPLE’S FAITH AND ASPIRATION, 333, 339 (1981).
11
Dr Ashwini Kumar v. Union Of India Ministry Of Home Affairs, MANU/SCOR/02878/2019.
12
JUSTICE (RETD) RUMA PAL, Separation of Powers, in THE OXFORD HANDBOOK OF THE INDIAN
CONSTITUTION 271, 271 (Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta eds., 2016).
13
A.V. DICEY, LAW OF THE CONSTITUTION, 197-198 (8th Edition).

PAGE | 2
MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

(¶ 7.) Justice Frankfurter once quoted that the Constitution has not authorized the judiciary
to decide on the wisdom and the duties of the Congress.14 While dealing with the policies of
the executive the judiciary should only decide on whether the executive is acting in the limits
and powers conferred upon it by the Constitution. In this process, the judiciary should be
conscious of the power of review given by the Constitution.15 The court will not be
entertaining an issue of crossing such limitation while ordering the executive to enact a law
or order not to enact a law that is competent enough to enact.16 The Supreme Court further
reiterated in State Of Himachal Pradesh v. A Parent Of A Student Of Medical College, Simla
And Ors.,17 that it is completely for the Government branch of the executive to decide on
implementing a particular policy or a legislation and the courts shall not interfere with such
decision of the executive.

(¶ 8.) The drafters of the Constitution have introduced and ingrained the separation of
powers doctrine as a part of the basic structure.18 Though such limitations are not distinctly
drawn,19 the judiciary has been bequeathed with the responsibility to scrutinize such limits
and check whether such limits have been contravened.20 Consequently, the judiciary, while
exercising such responsibility, should be conscious of balancing that separation of powers
and maintain the essence of the doctrine.21 Further, the ‘three wings of the state’ must be
obligated to not over-step on each other’s territory.22 In the case of Indira Nehru Gandhi v.
Raj Narain,23 the Apex Court has ruled that under Article 256 (1)24 of the Constitution, the
courts cannot interfere with the policies of the executive, unless there is established
infringement of any constitutional provision.

(¶ 9.) According to the rule laid down in State of Rajasthan and Others v. Union of India
and Others,25 the necessity of judicial scrutiny for the policies of the executive comes only
when there is established mala fide or extraneous considerations are made by the executive in
the exercise of its power. The decisions of the executive should not be reviewed by the
14
Trop v. Dulles, 356 US 86.
15
Asif Hameed & Ors. v. State Of Jammu & Kashmir & Ors., 1989 AIR 1899.
16
Narender Chand Hem Raj & Ors. v. Lt. Governor, Union Territory, H.P. & Ors., (1971) 2 SCC 747.
17
State Of Himachal Pradesh v. A Parent Of A Student Of Medical College , Simla And Ors., (1985) 3 SCC
169.
18
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another, (1973) 4 SCC 225.
19
State of Tamil Nadu v. State of Kerala, (2014) SCC OnLine SC 432.
20
JUSTICE B.P. BANERJEE, Grounds of Judicial Review, in WRIT REMEDIES- REMEDIABLE RIGHTS UNDER
PUBLIC LAW, 528, 528 (2016).
21
I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu, (2007) 2 SCC 1.
22
Binoy Viswam v. Union of India and Others, (2017) 7 SCC 59.
23
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
24
INDIA. CONST. art. 256 (1).
25
State of Rajasthan and Others v. Union of India and Others., (1977) 3 SCC 592.

PAGE | 3
MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

judiciary unless there is a violation of any law or violation of constitution or the policy by the
executive is likely to endorse or promote or cause disrespect to the law.26 In the present case,
the Petitioner neither established any of these on part of the State Government of Wakanda
nor brought to the notice of the Court any of the aforementioned factors that could call for the
scrutiny of the Green Wakanda Policy by the judiciary.

(¶ 10.) It is submitted humbly, to the Honourable Court, that the State of Wakanda is acting
in good faith, within the powers conferred on it by the Constitution and being mindful of its
limits, acting with an intention to provide the citizens of the nation’s capital with safe and
breathable air. There is no establishment of any kind of infringement of any constitutional
provision that would be a potential result of the extension of the Green Wakanda Policy. As
the Court can take notice of the Air Quality Index of Wakanda, which shows the decreased
levels of AQI, the Respondent submits that the AQI levels from 0-50 is ‘good’,27 51-100 is
‘satisfactory’ 101-200 is ‘Moderate’ and above 201 is ‘poor and hazardous’. The AQI of
January 2019 shows the value as high as 488,28 which is extremely hazardous. This is prior to
the implementation of the Green Wakanda Policy. After implementing the policy, in January
2020, the AQI fell to as less as 70, which is ‘satisfactory’ stage.29 The below table is for
quick reference for the bench:

AQI VALUE CONDITION

0 to 50 Good

51 to 100 Satisfactory

101 to 200 Moderate

201 to 300 Poor

301 to 400 Very Poor

401-500 Severe

26
Har Sharan Varma v. Chandra Bhan Gupta, AIR 1962 All 301.
27
NATIONAL AIR QUALITY INDEX, https://app.cpcbccr.com/AQI_India/ (last visited Jun 12, 2020).
28
MOOT PROPOSITION, Annexure-A, Horizontal Row 24, Vertical Column 2.
29
MOOT PROPOSITION, Annexure-A, Horizontal Row 31, Vertical Column 4.

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MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

(¶ 11.) In the light of the aforementioned arguments and issues submitted, it is humbly
prayed before the Honourable Court that the said petition by the FLG be dismissed as not
maintainable in this High Court of Wakanda.

ISSUE [II]. THAT THE EXTENSION OF GREEN WAKANDA POLICY IS

CONSTITUTIONALLY VALID

A. THAT THE EXTENSION OF GWP IS NOT CURBING, BUT PROTECTING THE RIGHTS OF
THE PEOPLE OF WAKANDA

1. THAT THE EXTENSION GREEN WAKANDA POLICY DOES NOT VIOLATE OR CURB THE RIGHTS
OF PEOPLE:

a) That the GWP imposes reasonable restrictions on the people to protect the larger
interest

(¶ 12.) Article 19 (2) to (6) of the Constitution30 of the Republic of Gotham, confers the State
to impose restrictions on the rights conferred to the people of Gotham. It is an established
rule that such restrictions should be reasonable and those restrictions should be related to the
purposes mentioned in the said clauses. This acts as a double-test to judge whether the
restrictions imposed by the State are valid.31 The restrictions imposed on the state of
Wakanda by GWP are in direct connection with Article 19 (1) (d) and (1) (g) of the
Constitution, where Article 19 (1) (d)32 confers a right to move freely throughout the territory
of The Republic of Gotham and Article 19 (1) (g)33 confers a right to practice any profession
or carry out any trade, business or occupation.

(¶ 13.) Article 19 (5)34 and (6)35 of the Constitution, confers the responsibility on the State to
impose reasonable restrictions on the people to protect the interest of larger public. In the
present case, the State Government of Wakanda has a responsibility under the said Air Act of
1981, to make rules to protect the environment and to protect the citizens of Wakanda from
harmful pollution. According to the Principle of Proportionality, to determine whether the
validity of a legislation, its substance should be taken into consideration and not the
appearance of it. Thus, the Courts shall consider whether the restrictions are disproportionate
30
INDIA. CONST. art. 19.
31
V. Karthyaeni, Test of Reasonableness under Article 19, GO FOR THE LAW (last visited Jun 8, 2020),
http://www.goforthelaw.com/articles/fromlawstu/article48.htm.
32
INDIA. CONST. art. 19 (1) (d).
33
INDIA. CONST. art. 19 (1) (g).
34
INDIA. CONST. art. 19 (5).
35
INDIA. CONST. art. 19 (6).

PAGE | 5
MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

or the least restrictive of all the available options. In the case of Express Newspapers PVT.
LTD. And Others v. Union of India And Others,36 the Court held that the direct and real
consequences of the legislation should be considered while determining its validity and not
the remote effect of that legislation on the fundamental rights.

(¶ 14.) It is humbly submitted that the GWP strikes a balance between the rights guaranteed
by Article 19 (1)37 and the restrictions imposed under Article 19 (2) to (6). The State
Government, while exercising the power conferred by the said Articles to fulfill its
responsibility towards the citizens of Wakanda I.e. to protect them and ensure a decent
environment, has formulated the Green Wakanda Policy, to curb the dangerously decreased
levels of air quality in Wakanda.

(¶ 15.) It is submitted to the Honourable High Court that the State Government is conferred
with the power make policy decisions to curtail the air pollution by Section 54 of the Air
(Prevention and Control of Pollution) Act, 1981.38 The said section explicitly mentions that
State Government shall make the rules that would protect the environment and carryout the
purposes of the said act.

(¶ 16.) Annexure-A of factsheet gives insight into the tremendously improved quality of air
in Wakanda after imposition of GWP in January 2020, while compared to January 2019.
Subsequent to such success of the policy, the Government has decided to extend the policy
for two years to improve the quality of the air and reduce the levels of pollution in the
environment and the Policy is least restrictive in nature. The policy provides for a leeway of
10 days to use private vehicles, for the individuals who cannot avail any of the alternative
facilities, there is provision to claim work from home and the Government has planned to
increase the public transport so that the people are not restricted from performing their daily
tasks and works. The essential goods and services departments mentioned in the Annexure-
B39 are getting a complete exemption from the policy. As the extension of policy shall be
only for a finite time period, with reasonable restrictions and relaxations, it is submitted that
the extension will not be in violation of rights of the people.

36
Express Newspapers PVT. LTD. And Others v. Union of India And Others, AIR 1958 SC 578.
37
INDIA. CONST. art. 19 (1).
38
Air (Prevention and Control of Pollution) Act, 1981.
39
MOOT PROPOSITION, Annexure-B.

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MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

b) That the GWP is abiding by the Directive Principles of State Policy.

(¶ 17.) It is respectfully submitted to this Court that the State Government of Wakanda is
acting in order to secure and promote the Directive Principles of State Policy under Part IV of
the Constitution of The Republic of Gotham. Green Wakanda Policy is made in the best
interest of the people of Wakanda and it promotes the Directive Principles of State Policy.

(¶ 18.) The Directive Principles of State Policy under Article 4240 of the Constitution state
that policy by the State shall be directed towards providing the secure and humane conditions
for work. By widening the ambit of this Article, the State has planned the policy to make the
environment safer so that the individuals who depend on manual labour and the individuals
who work in open air are not deprived of a secure working environment. It becomes a duty of
the State to secure the interests of the underprivileged portion of the public sphere, who are
potentially the most-affected portion of the people. The people who are not dependent on
their private vehicles would be the people that get affected if the private vehicles are allowed
without any limitations. The air quality after the introduction of GWP has improved
immensely. At this point, it becomes extremely important to reduce the levels of Air Quality
Index (AQI), so that the pollution is reduced and a secured workspace is ensured for the
people who work in open areas.

(¶ 19.) Article 4741 of the Constitution explicitly mentions that it is the responsibility and a
primary duty of the State to improve the public health of its people. Green Wakanda Policy is
a policy, which is directed towards improving the public health by decreasing the
environmental pollution. The restrictions imposed under GWP are pertinent to be a part of the
policy. Strict application of those reasonable restrictions will be resulting in decreased AQI.
As the records in Annexure-A42 of the factsheet show success of GWP, with decreased AQI
by the end of January 2020, the Government’s decision to extend the policy will be an
affirmative gesture to secure public health by improving the quality of the air.

(¶ 20.) Under the Directive Principles of State Policy, Article 48A43, the State is directed to
improve and protect the environment. By implementing and extending GWP, the
Government is acting towards protecting and improving the environment. The environment
has been improved since the GWP has come into action and a further extension of the policy
can bring about more than what is desired from the policy.
40
INDIA. CONST. art. 42.
41
INDIA. CONST. art. 47.
42
MOOT PROPOSITION, Annexure-A.
43
INDIA. CONST. art. 48A.

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MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

(¶ 21.) Furthermore, The Supreme Court in the case of Kasturi Lal Lakshmi Reddy v. State of
Jammu and Kashmir,44 held that when an action taken by the Government with an intention
to promote any one or more than one of the Directive Principles of State Policy, then such
action would be considered as reasonable by the Court. It was also held that in case of such
restrictions which are imposed, are in consistence with the Directive Principles, then such
restrictions would be considered to be made in the best interests of public and ‘manifestly
reasonable’.45

(¶ 22.) Therefore, it is submitted to this Honourable Court that due to the abovementioned
arguments, the extension of Green Wakanda policy is not in violation of any rights of people.
The extension of policy is an affirmative gesture to protect the rights of the people to live in a
healthy environment. GWP is in accordance with the Directive Principles. Thus, the
extension of Green Wakanda Policy will be constitutionally valid.

2. THAT THE RIGHT TO LIVE IN A POLLUTION FREE ENVIRONMENT IS COVERED UNDER ARTICLE
21:

(¶ 23.) It is respectfully submitted that the Article 21 of Constitution46 of The Republic of

Gotham provides for the right to life and liberty of the people. The Article says that no one
shall be deprived of such right and liberty, except by the procedure that is established by law.
This applies to not only the citizens of Gotham but to everyone who lives in the territory of
The Republic of Gotham. The ambit of Article 21 has been expanded by various precedents
to suit the situations and to uphold the rights of the people to have a dignified life.

(¶ 24.) As Henry Shue writes that when there is an existence of a right, then there is a
demand on someone else to ensure that, that right has been fulfilled.47 State is entrusted with
such duty in the case of basic rights. Right to life is a basic right. While there is a right and a
duty, there should be an ‘actual enjoyment’ of that right. This is also further reiterated by the
Supreme Court in the case of Olga Tellis And Ors. v. Bombay Municipal Corporation And
Ors.48

(¶ 25.) The ambit of this Article is widened by including the Right to live in a healthy,
pollution free and decent environment. The Supreme Court, in the case of Subhash Kumar v.

44
Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, AIR 1980 SC 1992.
45
M/s Laxmi Khandsari And Others. v. State of U.P. And Others., (1981) 2 SCC 600.
46
INDIA. CONST. art. 21.
47
HENRY SHUE, Chapter 1 Security And Subsistence, in BASIC RIGHTS: SUBSISTENCE AFFLUENCE AND US
FOREIGN POLICY, Princeton University Press, pp. 13-34 (1996).
48
Olga Tellis And Ors. v. Bombay Municipal Corporation And Ors., (1985) 3 SCC 545.

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MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

State of Bihar,49 held that Article 21 covers right to pollution free water and air, for a full and
complete enjoyment of life. The Apex Court in the case of M.C. Mehta v. Union of India,50
ordered the Central Government to take necessary action in order to renovate the quality of
the air, while adding that life and public health have greater importance over loss of revenue
and unemployment.51 In this case, the Court has given greater importance to the people’s
right to live in a pollution free environment. Therefore, the fundamental right to life includes
the right to enjoy the life to the fullest, which covers the right to have pollution free water and
air.52 Right to live in a decent environment is covered under Article 21.53

(¶ 26.) The Green Wakanda Policy is a step taken by the State Government to ensure that this
fundamental right of people to live in a pollution free and healthy environment is fulfilled.
Thus, it is submitted that the GWP is protecting and enforcing the rights of people.

B. THAT THERE IS A PRESUMPTION OF CONSTITUTIONALITY.

1. THAT THE PETITIONER FAILED TO SUBMIT ANY PROOF OF UNFAIR CURBS ON CITIZENS OF
WAKANDA:

(¶ 27.) It is humbly submitted that the Petitioner has the responsibility to prove that there are
unfair curbs being imposed on the citizens of Wakanda due to the implementation of GWP
or/and due to the extension of GWP. It is a settled principle in law that the party alleging the
unconstitutionality of an Act or Policy, carries that burden to prove that such incidents have
occurred, which go against the legal or constitutional rules, or have curbed the rights of
people, due to which that Act or Policy should be declared unconstitutional.

(¶ 28.) The Supreme Court, in the case of Chiranjit Lal Chowdhuri v. The Union of India &
Ors.,54 held that in the case where a party alleges the unconstitutionality of a legislation, it is
on the party that has alleged the unconstitutionality, to prove it. Unless such alleged
unconstitutionality is proved, the judiciary shall presume the constitutional validity of that

49
Subhash Kumar v. State of Bihar, 1991 (1) SCC 598.
50
M.C. Mehta v. Union of India, (1991) AIR SC 813.
51
Dr.G. Indira Priya Darsini & Prof. K. Uma Devi, Article 21 of Indian Constitution- A Mandate To Pollution
Free Environment, LEGAL SERVICE INDIA, (last visited Jun 8, 2020)
http://www.legalserviceindia.com/article/l399-A-Mandate-To-Pollution-Free-Environment.html.
52
Shubhash Kumar v. State of Bihar, (1991) 1 SCC 598.
53
Shanti Star Builders v. Narayan Totame, 1990(1) SCC 520.
54
Chiranjit Lal Chowdhuri v. The Union of India & Ors., 1950 SCR 869.

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MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

legislation. In the said case, the party that had alleged the unconstitutionality had failed to
prove the allegations.55

(¶ 29.) The Court in T.N. Godavarman Thirumulpad v. Union of India and Ors.,56 opined that
the approach towards environmental justice should be eco-centric and not anthropocentric.
Anthropocentricism approach concentrates on sustainable development and human interests.
However, eco-centric approach is concentrated on conservation of nature. The eco-centric
approach does not prioritize human interests over the environmental interests. It is pleaded
before the Honourable Court that the non-enforcement (and non-extension) of the GWP will
increase the AQI levels which have been brought down to satisfactory levels, due to the
implementation of the policy. The continuation of the policy for a limited period as decided
by the State Government will protect the environment from hazardous deterioration. In
extreme cases of air pollution, like the present case, the eco-centric approach to the case shall
benefit the larger public and protects the public from falling victims to polluted air.

(¶ 30.) In the present case, while the Petitioner alleges that the extension of the GWP would
impose curbs on rights of the people, the Petitioner has not submitted any proof, evidence, or
victim of the alleged curbing of rights that could establish the allegations of the GWP
imposing unfair curbs on the rights of the citizens and the people who reside in the state of
Wakanda. As mentioned earlier, the person who alleges the unconstitutionality, in this case
by alleging the curbing of rights, shall bear the burden of proof of so alleged
unconstitutionality. As the Petitioner did not satisfy this burden of proof, the GWP shall stay
constitutionally valid.

(¶ 31.) In the light of the above submitted arguments, it is respectfully prayed that the
Honourable Court hold the extension of Green Wakanda Policy as constitutionally valid.

55
Chiranjit Lal Chowdhuri vs. The Union of India and Ors. LAW TIMES JOURNAL,
http://lawtimesjournal.in/chiranjit-lal-chowdhuri-vs-the-union-of-india-and-ors/ (last visited Jun 8, 2020).
56
T.N. Godavarman Thirumulpad v. Union of India and Ors., (2006) 1 SCC 1.

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MEMORANDUM for RESPONDENT [PRAYER]

PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before this Honourable High Court that it may be pleased
to adjudge and declare that—

1. The petition filed by the Fundamental Liberties Group (FLG) is not maintainable in
this Honourable High Court of Wakanda.

2. The extension of Green Wakanda Policy (GWP) is constitutionally valid.

And pass any order, direction or relief that this Honourable Court may deem fit in the
interests of Justice, Equity and Good Conscience.

Respectfully submitted on behalf of the Respondent

PLACE: Wakanda sd/-

DATE: COUNSEL FOR THE RESPONDENT

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