Saarc Moot Memorial.docx

SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017

TEAM NRMC CODE 012 MEMORANDUM FOR PETITIONER

SECOND PROF. N.R. MADHAVA MENON SAARC MOOTING COMPETITION,2017

BEFORE THE HNOURABLE SUPREME COURT OF INDIA IN THE PROCEEDINGS BETWEEN

PEOPLE’S FORUM FOR NUCLEAR JUSTICE …….PETIONER UNION OF INDIA ………..RESPONDENT AND PEOPLE’S FORUM FOR NUCLEAR JUSTICE …….PETIONER

SUPPLIERS AND VENDORS ………..RESPONDENT

MEMORANDUM FOR PETIONER

COUNSELS APPEARING ON BEHALF OF PETITIONER 1

SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………

STATEMENT OF JURISDICTION……………………………………………

STATEMENT OF FACTS……………………………………………………..

STATEMENT OF ISSUES…………………………………………………

SUMMARY OF ARGUMENTS……………………………………………

ARGUMENT ADVANCED…………………………………

1. Whether the writ petition are maintainable ?

1.1 contract between npcil and Stratton Nuclear Power Company 1.2 doctrine of “forum of non convenience”

1.3 violation of fundamental right

1.4 maintainability of art 32

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

2. Whether the present case is under the jurisdiction of supreme court ? 2.1 Whether supreme court has jurisdiction over union of india? 2.2 Whether supreme court has jurisdiction over suppliers and vendors? 3.Whether the issues raised in writ petitions are valid ? 3.1 Polluter pay and precautionary principle 3.2 Challenging vires of clnda act 2010 3.3 mandatory public hearing to be held and mandatory sharing of

information at all

stages 3.4 No limitation on liability 4.Whether the grounds of dismissal of writ petion by the high court is valid ? 4.1 first writ petition 4.2 violation of ar 14 of part iii of constitution 4.3 central government bound to act in public intrest 4.4 consequence of not practising right to recourse 5. whether the directions issued by honourable high court to central government comes under its jurisdiction ? 5.1 interpretation of article 226 in regards with present case 6. WHETHER THE PRESENT CASE HAS NEW DEVELOPMENT IN TORT LIABILITY OF MULTINATIONAL ENTERPRISES.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

6.1 Nature and scope of torts in lieu of strict liability 6.2 evolution of tort liability 6.3 Why there is a need to evolve torts in india in refrence with this case 6.4 Exploitation of public at large

PRAYER………………………………………………………………………………………

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

LIST OF ABBREVATION

&

And

AIR

All India Report

Anr.

Another

Art

Article

Co.

Company

CLNDA

Civil Liability for Nuclear Damage Act 2010

CSC

Convention on Supplementary Compensation

Del

Delhi

Govt.

Government

GOI

Government of India

http

Hypertext Transfer Protocol

i.e.

That is

Ltd.

Limited

No.

Number

Ors.

Others

SC

Supreme Court

SCC

Supreme Court Cases

SCR

Supreme Court Report

SDR

Special Drawing Rights

UOI

Union of India

u/s

Under Section

v.

Versus

WP

Writ Petition

www

World Wide Web

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

S.NO. NAME OF THE CASES AND CASE CITATION 1.

ADARSH SHIKSHA MAHAVIDHYALAYA V SUBHASH RAHANGDALE, (2012 ) SCC 425

2.

BANDHUA MUKTI MORCHA V UNION OF INDIA ,(1984) 3 SCC 161

3.

BACHAN SINGH V STATE OF PUNJAB,(1982) 3 SCC 24

4.

CANTONMENT BOARD VTARA MANI DEVI, (1992) SUPP(2) SCC 501

5.

CHARAN LAL SAHU V UNION OF INDIA 1990 AIR 1480,1989 SCR SUPL (2) 597

6.

G.B. MAHAJAN V JALGAON MUNCIPAL COUNCIL,(1991) 3 SCC 91

7.

HARBANSLAL SAHNIA AND ANR VS INDIAN OIL CORPRATION&OTHER

8.

ENVIROLEGAL ACTION VS UNION OF INDIA, JT 1996

9.

LT COL KHAJOOR SINGH VS UNION OF INDIA (1960) SC

10.

SHRILEKHA VIDYARTHI VS STATE OF UP,(1991) 1 SCC 212

11.

MC MEHTA V UNION OF INDIA , AIR 1997 S 1086

12

UNION CARBIDE V UNION OF INDIA AIR 1992 SC 248

13

CORPORATION V BROJO NATH GANGULY (1986) 3 SCC 156

14.

FRANCIS CORALIE V UNION TERRITORY OF DELHI AIR (1994) SC 1844

15.

MC MEHTA V KAMAL NATH AIR (2000) SC 1997

16.

RAJ NARAYAN V STATE OF U.P. AIR (1953)

17.

JAFFAR ULLA H AND ANOTHER V UNION OF INDIA AIR (2013)

18.

RAMESH V GENDALAL MOTILAL PATNI

19.

VELLORE CITIZEN WELLFARE FORUM V UNION OF INDIA

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CONSUMER EDUCATION AND RESEARCH CENTRE

Page no.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

B. Legislation referred

1.

Civil liability for nuclear damage act 2010

2.

Atomic Energy Act 1972

3.

Constitution of India

4.

International torts

5.

Civil procedure code 1908

C. Books Referred

1

Bare act Constituton Of India

2

Constitution of India by V.N. Shuklas 11th edition

3

Law Of Torts Dr R.K. Bangia

4.

Civil Procedure Code 7

SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

D.Journals reffered

1. 2.

All India Reporter Supreme court cases E. Data base referred

1.

www.Manupatra.com

2.

www.judis.nic.in

3.

www.SupremecourtofIndia.nic.in

F.International convention

STATEMENT OF JURISDICTION

The Honourable Supreme Court of India has the Jurisdiction in this matter under Article 32 of Constitution Of India which reads as follows:(1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2)The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part. 8

SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

(3)Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the power exercisable by the Supreme Court under clause(2).(4) The right guaranteed by this article shall not be suspended except as otherwise provide for by this constitution.

STATEMENT OF FACTS 1.BACKGROUND 1.Vihara is a large state in India and is known as India’s most progressive states with a variety of heavy industries. 2.NPCIL decided to import nuclear reactors made by the Stratton Nuclear Company located in Republic of Oakmont. To import 4 reactors of 1500MW each to be setup at the nuclear park in Vihara.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

3.India has also ratified the Convention on Supplementary Compensation (CSC), an international nuclear liability convention. Government of Oakmont raised concerns about the interpretation with respect to The Civil Liability for Nuclear Damage Act, 2010 ( CNLD Act ) especially Section 17 relating to supplier’s liability and Section 46. The concerns were also raised by the vendors of Stratton Nuclear Company such as Gaul & Co and Mongari Technicals that whether they will also be covered under the liability Act. India assured them that, 2010 act is with full compliance with internationally accepted nuclear liability principles. Following this both the Government of India and the Government of Oakmont committed to follow the prevailing law of India with respect to the project. A formal written contract was endorsed between NPCIL and Stratton Nuclear Power Company. However, it was stipulated that, any action on the part of government of India to indirectly render the Republic of Oakmont liable to any nuclear incident, for any reason whatsoever, may be resisted by the Republic of Oakmont.

Aberration in nature 1.Accordingly, the plant statted its working in 2009. After 5 years of successful operation, the 6th year witnessed two freak or rare weather related occurrences. in the 6th year rose to several degrees above the highest recorded temperatureand afterwards there was incessant rain for about two months. 2.The Vihara nuclear plant suffered a major accident. All the back-up emergency systems failed. AFTERMATH 1.Several hundred people in the villages in and around Vihara Plant were said to be exposed to high levels of radiation requiring specialised treatments. Large scale resettlement of 10

SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

villagers was also undertaken. Radiation plumes have also been noticed in neighboring states causing major environmental and health concerns. NPCIL being the operator of the plant paid the statutory mandated compensation of 1500 crores under Section 6 of the 2010 Act.

REPORT OF COMMITIES In the meanwhile, the Government of India constituted an independent fact finding technical committee gave The report of the committee unanimously opined and recommended: (i) That Considering the gravity of the accident, the central government and the Government of vihara should make provisions to pay higher amount of compensation, without being bound by the statutory limits, as the damage could be grave. (the instance of Bhopal Gas Leak case was cited) (ii) The Operator viz, NPICL, was exonerated of any operational fault or negligence within the scope of section 5 of the Act of 2010. (iii) The equipment supplied by Suppliers and their vendors were faulty having latent defects within the meaning of Section 17 (b) of the Act. The report concluded that these important safety instruments were found that there were latent defects, and that no blame could be laid on external factors, such as weather factors.

THE CONTRACT NPCIL has decided not to invoke its right of recourse as it found that the supply contract did not specify the class or kind of defects which may relate to the right of recourse. Even though the contract was in terms of international practice, there were certain omissions. Invoking Section 17 of the Act was thus not advised.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

WRITS PETITION 1.The first writ petition was against the Government of the India, NPCIL and Stratton praying for a direction against the NPCIL to seek right of recourse against suppliers and their vendors in relation to the Rs. 1500 crores already paid. 2. The second writ petition was against Stratton and Stratton’s vendors such as Gaul & Co and Mongari Technicals seeking compensation to the tune of 5 billion US Dollars for providing faulty equipment that caused the major accident resulting in irreparable human and environmental damage. It prayed that the money be deposited with the Central Government so the Claims Tribunal under CNLD Act can further apportion the money.

PROCEEDINGS 20. Before the High Court both NPCIL and the Central Government took the stand that the High Court cannot issue a mandamus directing the parties to invoke section 17 of the 2010, Act, providing for operator right of recourse. While the Central Government is bound to act in safeguard of the interests of the citizens, it cannot authorize NPCIL to invoke section 17 of the Act, as that would be acting outside the scope of the law. It also contended that the suppliers have questioned the correctness of the conclusions and the report drawn by the High Power Committee and they have called for an enquiry by an international panel. As Stratton Nuclear Company is partly owned by the Republic of Oakmont, the Central Government cannot act unilaterally and disrupt the comity of nations and international relationships.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

21. The Suppliers challenged the maintainability of the writ petition on the ground that they are not liable to be sued in the courts in India and the extent of their liability if any, can only be to the extent agreed upon in the contract in question between NPCIL, Stratton Nuclear Company and other suppliers. They also seriously question the technical correctness of the conclusions drawn by the High power committee, particularly that the reactors have latent defects. Since these are matters of high scientific and technical nature, it was contended that the High Court cannot within the limited scope of its enquiry competence, deal with these questions.

22. The High Court of Vihara found that section 17 of the Civil Liability for Nuclear Damages Act, 2010, has not been challenged. On perusing the contract between the parties, the High Court found serious limitations on the part of the NPCIL to invoke section 17 of the Act. The High Court also opined that courts have limited role to play in evaluating or condemning public policy decisions by Government which have several implications. The High Court was of the view that much more than technical factors, the nuclear incident might have been the result of unforeseen and erratic weather events. Consequently, the High Court concurred with the Central Government that diplomatic parleys and negotiations are the appropriate avenues and thus dismissed the petitions.However, the High Court issued a direction to the central Government to amend Sections 5, 6, 7 and 17 of the Act and also to pursue the matter of higher compensation through international and other diplomatic sources. The High Court required the Central Government to complete the task within six months. In the meanwhile, the Central Government was directed to set up a special task force to look into the provision of medical and other services. The central government was under

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

tremendous pressure to convince the Republic of Oakmont to share the burden of compensation as a measure of responsibility for the acts of its agent.

22. On the application moved by the Petitioners, the High Court of Vihara granted a certificate of fitness stating that the case involves substantial questions of law of general importance both of domestic and international law and that the said questions needed to be decided by the Supreme Court. 25. Both the parties have filed petitions of appeal under Art. 133 of the Constitution of India. The Writ Petitioners have also filed a petition under Art. 32 of the Constitution challenging the vires of Section 5, 6, 7 and 17 of the Civil Liability for Nuclear Damages Act, 2010 on the ground that the Act not having provided for due process of law in relation to mandatory public hearing to be held and mandatory sharing of information at all stages, there can be no limitation on liability.. 26. The Supreme Court is set to hear both the appeals and the Writ Petition. Parties will address arguments on the legality of the judgment of the High Court, the several directions issued by it and also on the issues raised in the writ petition, including questions of jurisdiction, maintainability, new developments in the tort liability of multinational enterprises. STATEMENT OF FACTS

ISSUE I. Whether the writ petition are maintainable ?

ISSUE II. Whether the present case is under the jurisdiction of supreme court ?

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

ISSUE III.Whether the issues raised in writ petitions are valid ?

ISSUE IV.Whether the grounds of dismissal of writ petion by the high court is valid ?

ISSUE V. whether the directions issued by honourable high court to central government comes under its jurisdiction ?

ISSUE VI Whether in present case new development of tort liability in multinational enterprises

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

SUMMARY OF ARGUMENTS

ISSUE I. Whether the writ petition are maintainable ? The writ petitions are maintainable in present case as it has locus standi. In this case due to nuclear accident radiations are effecting the environment and life of the people. And violate the fundamental right Article 21 of the Constitution. Where any fundamental right is violated writ petition is maintainable. Petitioner challenged the constitutionality of civil liability nuclear damage Act,2010 which is maintainable under Article 32 of the constitution. ISSUE II. Whether the present case is under the jurisdiction of supreme court ? Supreme court has jurisdiction over Union of India under Ar 12 and Ar 132 and 133 furthermore a certificate of fitness was also given under art 134 Supreme court has jurisdiction over supplier and vendor according to sec 9 of cpc and the sighned contract between NPCIL and Suppliers and vendors .Doctrine of forum convinens and art 32 can also be enforced on supliers and vendors ISSUE III.Whether the issues raised in writ petitions are valid ? After the accident, high power committee was set. And the report concluded that these important safety instruments were found to be technically defective, and that no blame could be laid on weather factors. Thus the suppliers are liable to pay compensation of 5 billion for providing faulty equipment. And another writ petition is challenging the vires of section 5, 6,7,17 of civil nuclear liability damage act,2010on the ground that the Act not having provided for due process of law in relation to mandatory public hearing to be held and mandatory sharing of information at all stages, there can be no limitation on liability. ISSUE IV. Whether the grounds of dismissal of writ petition by the high court is valid ?

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

The judgement passed by high court by dismissing writ petition is invalid as it is violation of article 14 of constitution of India. And as central government is bound to act in interest of public it is legal duty of central government do such acts which do not violate any right of the people at large .

ISSUE V. whether the directions issued by honourable high court to central government comes under its jurisdiction ? The issue of directions issued by high court to central government comes under the jurisdivtion of high court as according to article 226 of constitution of india high court has been given powers to issue writ in form of directions to government . it will be prejudicial if therse inherent powers of high court have not been enforced in judicious manner . hence in the instant issue high court has power to issue directions to central government.

ISSUE VI Whether there is any need to develop tort liability of multinational enterprises? Cnsidering the severity of the occurred nuclear disaster it is has become a necessasity to develop new tort liability of multinational enterprises in the light of mc Mehta and Bhopal gas disaster.It has become necessity for India to develop torts in such a way to get the appropriate amount of compensation.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

ARGUMENTS ADVANCED 1.WHETHER THE WRIT PETITIONS ARE MAINTAINABLE IN THE PRESENT CASE? It is humbly submitted that writ petition is maintainable in present case because of below mentioned points:1-The petitioner has locus standi (“the right to bring an action or to be heard in a given forum”). 2- All the requirements of instituting public interest litigation have been fulfilled. Contract between NPCIL and Stratton Nuclear Power Company: As it is clearly stated in page no. 5, para no. 8 that- “Both the Government of India and the government of Oakmont committed to follow the prevailing law of India with respect to the project. A formal understanding to this effect was also reduced to writing, endorsing the contract between NPCIL and Stratton Nuclear Power company.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

Thus this contract make Stratton to be sued in India, as they committed to follow the prevailing law of India. Doctrine of “forum non convenience”: In Bhopal gas leak case: Charanlal v. Union of IndiaUnder the section 3 of Bhopal gas leak disaster act, 1985, the Union of India filed a suit on behalf of all the victims, against the Union carbide corporation in the United states district of New York. The U.S. lawyers filed a lawsuit in India challenging the India government’s action of filing a lawsuit on behalf of all the victim in united states, alleging that the Bhopal Act violated the right of Indian citizen under the constitution of India to choose their own counsel, and alleging a conflict of interest by the Indian government, for it could not represent the victim because of its shared responsibility for the disaster by failing to enforce safety regulations. The judicial panel of Multidistrict Litigation consolidated all the lawsuits brought in the United States in federal district court in the Southern District of New York. On May 12, 1986, District judge Keenan dismissed the case on the ground of forum non convenience ie ,the suit can be more conveniently tried in India, as apart from many other factors, India was the place of the catastrophe, and the plant personnel, victim, witness, documentary and all related evidence located there. In a nutshell, according to forum non convenience, in present case supplier is liable to be sued in court of India. Violation of Fundamental Right: The court can enter into policy matter on violation of fundamental rights, which are basic structure of the constitution. 19

SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

Fundamental Rights under art. 21(which is Right to life) of constitution is violated in present case. Francis Coralie v. union territory of Delhi, (AIR 1994 SC1844): Article 21 of constitution envisages a right to life and personal liberty of a person. The word “life” under art. 21 means quality of life. M.C. Mehta v. Kamal Nath (AIR 2000 SC1997): Any disturbance in environmental elements is detrimental to this right. Maintainability of Article 32 in Supreme Court: Article 32 is ‘remedies for enforcement of rights conferred by this part’. “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed. In Jaffar Ullahand Anr v. Union of India 2013: the present writ petition is being filed in the public interest under art.32 of the constitution of India, relating to serious violation of the right of life, maternal health, the right to health, which is maintainable in supreme court as , in this case article 21 is violated. Therefore in our case, writ petition is maintainable under article 32 of the constitution.

2.WHETHER THE PRESENT CASE IS UNDER THE JURISDICTION OF SUPREME COURT

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

2.1 WHETHER SUPREME COURT HAS A JURISDICTION OVER UNION OF INDIA? INTERPRETATION OF ART 12 Supreme Court has jursdiction over union of india according to the art 12 which defines the state which include the government and parliament of India and the government and the legislature of each of the states and all local or authorities within the territory of India or under the control of the Government of India. APPEALEATE JURISDICTION OF SUPREME COURT Furthermore Art 132 states that Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Article 134A that the case involves a substantial question of law as the interpretation of this Constitution and in the following case the aforesaid procedure was done. In Ramesh v Gendala Motilal Patni 1 said that. The right of appeal to this Court is thus stated in general words in Arts. 132, 133 and no exception not mentioned in the articles can be implied. Cases involving an interpretation of the Constitution are dealt with in Art. 132. That article covers all cases in which a High Court certifies that any judgment, decree or final order of the High Court involves a substantial question as to the interpretation.

1. Retirived on 20th day MANU/SC/0039/1966 para 10

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

POWER OF ISSUING WRITs Under art 32(2) which states that (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. In the aforesaid situation government of India is not performing its duty and hence writ of mandamus2 can be issued by supreme court under this article. Accordingly UoI can be harked in Supreme Court.

2.2WHETHER SUPREME COURT HAS JURISDICTION OVER SUPPLIER AND VENDORS? EXCLUSIVE JURISDICTION There is a contract which is signed between NPCIL and Stratton Company which says that all prevailing law of India must be followed. This clause implicitly provide exclusive jurisdiction to Indian courts Interpretation of exclusive jurisdiction

Exclusive Jurisdiction clauses are terms in a contract that provide for wavering the right of the parties to go to any of the civil courts having jurisdiction to resolve a dispute arising out of that contract by giving exclusive jurisdiction to one or more of the competent courts

2.retrived from black law dictionary pg1046 Mandamus mandamus (man-day-m"s), n. [Latin "we command"](16c) A writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or body, usu. to correct a prior action or failure.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

. Several issues arise while drafting such contracts including but not limited to issues such as: Validity under Indian Contract Act, 1872 (Contract Act) with specific reference to Section 28.

WHETHER SEC 9 OF CPC CAN BE ENFORCED ON SUPPLIERS?

Section 9 of Civil Procedure Code, 1908 (CPC) states that the Courts shall (subject to the provisions of CPC) have jurisdiction to try all suits of a civil nature except suits which are either expressly or impliedly barred

Hence the contract explicitly mentioned that they can be tried in the courts of India in a way that they agreed to follow prevailing law of India and according to sec(35) of CLNDA they can be harked in honourable HC and SC as CLNDA is statuary provision which comes under the ambit of law. Furthermore doctrine of forum convenience 6 is applicable as India is the place of catastrophe, victims, witnesses and all the related evidence are located here hence according to doctrine of forum conveniens supreme court has jurisdiction over Stratton and Stratton co. A jurisdiction clause in a derivatives contract was exclusive notwithstanding the absence of express wording that it was intended to be so. In Global Maritime Investments Cyprus Limited v O.W. Supply & Trading A/S ( the High Court considered that a reasonable commercial person who agreed to this clause, and who had also agreed to English governing law, would not regard it as permitting them to issue proceedings outside England. (under konkurs) [2015] EWHC 2690 (Comm) Black law dictionary pg 726forum conveniens (for-am bn-vee-nee-enz). [Latin "a suitable forum"] The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses. .

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

According to international case law it can be concluded proceedings against Stratton and co must be held in India. WHETHER THE SUPPLIER CAN BE HARKED IN SC UNDER ART 32? Additional it was held in Consumer Education and Research Centre (CERC) v UOI the court held that the direction can be issued under Art 32 not only to the state but also to a company or a person acting in purported exercise of powers under a stature of license issued under a statue for compensation to be given for violation of fundamental right.According to the interpretation above judgement and art 32 stratton and Stratton co got a business deal a charted ,liscense to supply equipment of nuclear reactor in India.They can be held under art 32 of Indian constitution.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

Retirived on 20th day of November MANU/SC/0175/1995 para30

3.WHETHER THE ISSUES RAISED IN WRIT PETITIONS ARE VALID? It is humbly submitted that that issues raised in writ petitions are valid. Writ petition was against Stratton and Stratton’s vendors such as Gaul & co and Mongari technical seeking compensation to the tune of 5 billion us dollar for providing faulty equipment that caused major accident. Though the below mention points council would like to throw light on the recital which favors the contention of our client. Polluter Pay & Precautionary Principle : Vellore citizen welfare forum v. union of India: it is a landmark judgment in that it was the first time that the supreme court took the concept of sustainable development into the purview of the law and also held that the “polluter pays principle” and “precautionary principle” were with the ambit of the law of the land. “The polluter pays” principle has been held to be a sound principle by this court in India council for Indian council for Enviro-legal action vs. union of India JT 1996 (2)196. The court observed, “We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the condition obtaining in this country “. The court ruled that “Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on”. Liable to pay 5 billion us dollar: As the accident is of sever nature. Many life and environment is damage because of the supplier’s faulty equipment which was confirmed by the high power committee. Thus supplier is liable to pay compensation.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

In the case of Union Carbide vs. Union of India: Suppliers has to pay compensation to 470 million. In Chernobyl Case: In this case compensation of 3 billion U.S. Dollar was given to the victim.

Kyshtm Disaster: In this case compensation of 1.4 billion U.S. Dollar was given to the victim. As the aforesaid cases was occurred many years ago and at present inflation is at its peak. And the accident is major resulting in irreparable human & environmental damage. Supplier should pay compensation of 5 billion U.S. Dollar.

2nd writ petition was filed challenging the vires of sec. 5,6,7,17 of CLND Act, and mandatory public hearing to be held and mandatory sharing of information at all stages, there can be no limitation on liability.

Sec. 5, 6, 7, 17 violates the constitutionally guaranteed rights of the citizens of India. They are ultra vires the constitution of India, violates the basic structure doctrine as settled by law and is capable of denying to the citizens of India the right to be effectively compensated in case of a nuclear calamity. Vires of section 5: Sec. 5 of the Act to the extent it provides that the operator shall not be liable in certain circumstances, which violates the rights of guaranteed under Part III of the constitution and also express law as laid down by the Honorable Supreme Court in M.C. Mehta v. union of India (AIR 1987 SC1086). Vires of section 6: 26

SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

It is submitted that the section 6(1) and 6(2) of civil liability for nuclear damage, 2010 violates article 14 of the constitution of India and the ratio laid in M.C. Mehta v. Union of India by arbitrarily fixing the liability of the operator and by not rationally linking the maximum amount of liability with the financial capacity of the operator. Vires of section 7: This clause can be used by operator to exploit government of India explicitly as if the damage is of more than the aforesaid mentioned amount then the operator will be exonerated from its liability if the government of India pay such amount it will lead to natural injustice as the person who has done the wrongful act will not be brought to justice hence infringing the article 14 of India Constitution.

Vires of section 17: On interpretation of this section- victims do not have right to sue supplier directly, which is against the public interest and the contract which will be enacted in future will be unconscionable contract and it will violate article 14 of Indian Constitution. According to the judgment held in Corporation v. Bbrojo Nath Ganguly(1986)3 scc 156.

Mandatory public hearing to be held and mandatory sharing of information at all stages: As right to information is a part of the fundamental rights under article 19(1) of the constitution. Article 19 (1) says that every citizen has freedom of speech and expression. As early as in 1976, the Supreme Court said in the case of Raj Narain vs. State of U.P. that the people cannot speak or express themselves unless they know. Therefore, right to information is embedded in article 19. In the same case, Supreme

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

Court further said that India is a democracy. People are the masters. Therefore, the masters have a right to know how the governments, meant to serve them, are functioning. Further, every citizen pays taxes. Even beggar on the street pay taxes (in the form of sales tax, excise duty etc.). The citizens therefore, have a right to know how their money was being spent. These three principles were laid down by the Supreme Court while saying that RTI is a part of our fundamental rights. Thus the people have right to information. No limitation on liability: There is no limitation regarding time under civil liability legislations for nuclear damage in enacted in countries like Austria and Japan. There is unlimited liability for the operator under the national legislation for liability for nuclear damage of japan Germany and Austria. There is unlimited liability for state foe nuclear damage under the national laws of United States, Russia, South Korea, Ukraine and Canada. The civil liability for nuclear damage act, 2010 through limitation of amount under sec. 6 and time under 15(2) and 18(b) forces the victims of nuclear incidents to bear the burden of injury, whereas society as a whole benefits from the existence and development of nuclear power. It is submitted that the section 6(1) ant 6(2) of civil liability for nuclear damage, 2010 violates article 14 of the constitution of India and the ratio laid in mc Mehta v union of India by arbitrarily fixing the liability of the operator and by not rationally linking the maximum amount of liability with the financial capacity of the operator.

(4)WHETHER THE WRIT PETITION DISMISSED BY HIGH COURT IS VALID?

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

It is humbly submitted that issue of legality of judgement of high court in reference to the dismissal of writ petition is invalid. FIRST WRIT PETITION The first writ petition which was filed against the government of India , NPCIL and Stratton praying for a direction against suppliers and their vendors in relation to the Rs 1500 crores already paid para. 21 has been dismissed by honourable High Court . VIOLATION OF Ar 14 OF PART III OF CONSTITUTION Interpretation of article 14 of constitution of India : Ar 14. Equality before law---the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Article 14 of part III of the Indian constitution has been violated here as the decision took by the Honourable High Court was arbitrary and unguided which neglected the interest of public at large which violates a 14 of Indian constitution. In case Bacchan singh v state of Punjab it is held by Supreme Court that where unguided and unfettered discretion is conferred on any authority ,whether it be the execute or judiciary ,it can be exercised arbitrarily by such authority, there can be no equal protection without equal principles in exercise of exercise of discretion whether vested in the executive or in the judiciary . CENTRAL GOVERNMENT BOUND TO ACT IN PUBLIC INTREST Central government is bound to act in favour of public at large in all sense but the contract is going against public interest as no right to recourse can be invoked according to terms of contract.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

As held in case G.B Mahajan v Jalgaon Municipal Council, contractual decision by state or its instrumentality with private party must invoke public element. States contract with private party also governed by article 14 it has to act justly , fairly and reasonably even in contractual field held in Shrilekha Vidyarthi v State of U.P. CONSEQUENCE OF NOT PRACTISING RIGHT TO RECOURSE The failure to provide for and have right to recourse against the supplier would ultimately impact public funds. No recourse or limited recourse ultimately will entail a burden on tax payer particular when the nuclear programme is being implemented through public service unit and having regard to the provision of section 7 where ultimate liability is of central government . Consequence of not practising right to recourse will be a burden on tax payers as the compensation of 300 million SDR paid by NPCIL is in the form of money by tax payers . It is against the rule of natural justice and indeed an economical loss which can’t be reckoned and the fair question of justice arises because the party liable to pay is not condemned here . JUDICIAL PRECIDENTS In case of Cantonment board v Taramani Devi ,1992 : held that violation of rule of “audi alteram partem” is coved under :natural justice”. In case of Harbanslal Sahnia and Anr v Indian oil Corp ltd. and Ors. Supreme Court held that in an appropriate case in spite of availability of alternative remedy the high court may still exercise its jurisdiction in at least 3 contingencies : 1.Where the writ petition seeks enforcement of any of the fundamental rights.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

2.Where there is failure of principle of natural justice . 3.Where the orders or proceedings are wholly without jurisdiction or vires of an act and is challenged .

In Adarsh Shiksha Mahavidhyalaya v Subhash Rahangdale it was held that PIL is maintainable if petitioner is genuinely interested in public cause and has no ulterior movie nor is the same a publicity gimmick . in case where private relief is claimed , superior courts can entertain PIL to look into issues of public importance .

CONCLUSION Hence it can be concluded that as the petition was in public interest the writ petition should not have been dismissed.

(5) WHETHER THE DIRECTIONS ISSUED BY HONOURABLE HIGH COURT TO CENTRAL GOVERNMENT COMES UNDER ITS JURISDICTION ? It is humbly submitted that Honourable High Court can issue directions in form of mandamus to Central Government in accordance with Ar 226 of constitution of India .

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

ARTICLE 226(1) AND 226(2) OF CONSTITUTION OF INDIA : Article 226(1): Power of high court to issue certain writs – (1) Notwithstanding anything in article 32 , every high court shall have power , throughout the territories in relation to which it exercises jurisdiction , to issue any person or authority , including in appropriate cases , any government , within those territories directions , orders or writs including [ writs in nature of habeas corpus , mandamus, prohibition , quo warranto and certiorari, or any of them for the enforcement of any rights conferred by part III or any other purpose ] (2) The power conferred by clause (1) to issue directions , orders , writs to any government , authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action , wholly or partly arises for the exercise of such power , notwithstanding that the seat of such government or authority or residence of such person is not within those territories. INTERPRETATION OF ARTICLE 226 IN REGARDS WITH PRESENT CASE : (1)

In aforementioned articles it is mentioned that directions in forms of mandamus can

be issued by honourable high court “in appropriate cases ” to “any

government ” which itself interprets that honourable high court can issue mandamus to central government too in specific cases . (2)

Government of India is within the territories of every high court in India, the High court has jurisdiction to issue a writ or order or direction under article 226 or article 32 (2) against GOI, it is the one within the territories under which the act or omission took place, against which relief was sought to place.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

(3)

The High court within the jurisdiction of which the act or omission takes place has jurisdiction not because a part : cause of action arose there , but in consequence of the use of the words “in appropriate cases”.

PRECEDENTS LAID DOWN In Bandhua mukti morcha v Union of India : what has been laid down by Supreme Court in regard to exercise of jurisdiction by Supreme Court under article 32 must apply equally in relation to exercise of jurisdiction by High Courts under article 226. The jurisdiction of the High Courts under article 226 is much wider , because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and disadvantaged which are creation of statue which need to be enforced as urgently and vigorously as fundamental rights. In case of Lt. Col Khajoor Singh v Union of India held that when the Union Government infringes the legal right and interest of a person residing within the territorial jurisdiction of a High Court has the power under a 226 to issue a writ to that government. CONCLUSION In a nutshell it can be stated that high court has all powers to issue directions to Central Government under article 226 of the constitution.

ISSUE 6. WHETHER THE PRESENT CASE HAS NEW DEVELOPMENT IN TORT LIABILITY OF MULTINATIONAL ENTERPRISES.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

6.1 NATURE AND SCOPE OF TORTS IN LIEU OF STRICT LIABILITY In India torts law are not codified and all the rules and precedents are followed on the basis of British laws.In aforesaid case, rule of strict liability has been applied on the basis of the rule which was propounded by Blackburn j in Exchequer Chamber1:we think that the rule of law is,that the person who for his own purposes brings on his lands and keeps there anything likely to do mischief if it escapes,must keep in at his peril, and if he does not do so, in prima facie answerable for all the damage which is the natural consequences of its escape. He can excuse himself by showing that the escape was owing to the plaintiff ‘default: or perhaps the escape was the consequence of vis major, or the act of god. 6.2 EVOLUTION OF TORT LIABILITY IN INDIA This rule of strict liability has become obsolete and there is a new need to develop the liability of torts. By analysing the need to modify the 19th century rule of Strict Liability the apex court of India in M.C. Mehta CASE2 stated that "Moreover the principle so established in Ryland v. Fletcher of strict liability cannot be used in the modern world, as the very ".

1. Retirived on 18th day of November 2016 This rule was formulated by Blackburn J in Exchequer Chamber in Fletcher v. Rylands (1886) L.R. 1 Ex. 265 and the same was approved by the House of Lords in Rylands v Fetcher ,(1868) L.R. 3 H.L. 330 2. Retirived on 18th day of November 2016 A.I.R. 1987 S.C. 1086 :1987 ACJ 386 :This case was decided by a Bench consisting of 7 Judges on a reference made by a Bench of three Judges.That Bench had earlier decided whether the working of the Shriram Food and Fertilizer Industries should be re-started, and if so, with what conditions.

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

principle was evolved in 19th century, and in the period when the industrial revolution has just begun, this two century old principle of tortuous liability cannot be taken as it is in the modern world without modifications Justice Bhagwati also stated that the rule of strict liability was evolved in 19th century, the time when nature industrial developments was at primary stage, in today’s modern industrial society where hazardous or inherently dangerous industries are necessary to carry out development programme, thus this old rule cannot be held relevant in present day context. Also one cannot feel inhibited by this rule which was evolved in the context of totally different social and economic structure. 6.3 WHY THERE IS A NEED TO EVOLVE TORT IN INDIA IN REFRENCE WITH THIS CASE ? As nuclear industry is fairly a new modern way to produce energy with its own dangerous which can cause atrocities among people like Bhopal case disaster hence it essential to take steps to upgrade the laws and further implement it into similar cases like The rule laid down in MC Mehta was also approved by the Apex Court in Charan Lal Sahu v Union of India3 The Court pointed out that that this rule is absolute and non-delegable' and the enterprise cannot escape liability by showing that it has taken reasonable care and there was no negligence on its part. The Supreme Court also explained the basis of this rule as follows: -If an enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, 3. Charan Lal Sahu v Union of India 1990 AIR 1480, 1989 SCR Supl. (2) 597para 91

the law must presume that such permission is conditional on the enterprise absorbing the court of any accident (including indemnification of all those who suffer harm in the accident)

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads; and -The enterprise alone has the resource to discover and guard against hazards or dangers and to provide a warning against potential hazards. Indian Council for Environment Legal Action V Union Of India4 The Supreme Court Of India imposed the principle of MC Mehta case and held that "Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity is by far the more appropriate and binding.

6.5 EXPLOITATION OF PUBLIC AT LARGE The language that multinational corporates understand is the language of profits.Profits are more important to them in doing so they even try to violate fundamental rights of host countries.Judiciary of India should use its power of judicial activism to maintain the sanctity of part 3 of Indian constitution. To stop the derogation of basic fundamental rights of Indian costitution by the mnc. On the basis of above mentioned precedents, multinational enterprises must be held liable without any excuses and must pay the compensation to cover up the losses of the activity which they do without any precaution and care. It is highly advisable that the development in

4. MANU/SC/0285/1990 para 91

torts liability should take place and the scope and liability of multinational enterprises should

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SECOND PROF N.R. MADHVA MENON SAARC MOOTING COMPETITION ,2017 MEMORANDUM FOR PETITIONER

be increased and a milestone must be setup for providing justice in such similar cases in future.

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