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ROLL NUMBER – 20

BEFORE THE HONOURABLE SUPREME COURT OF INDIANA

(Under Article 32 of the Constitution of Indiana.)

IN THE MATTER OF,

NARADA BACHAO ANDOLAN…………..…………………APPELLANT

VERSUS

UNION OF INDIA………...…………………………………RESPONDENT

BEFORE THE HONOURABLE CHIEF JUSTICE AND OTHER

COMPANION JUDGES OF THE SUPREME COURT OF UTOPIA.

[MEMORIAL ON BEHALF OF THE PETITIONER]

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS….......………………………………………..……………...03

INDEX OF AUTHORITIES…………………………………………………………….….04

STATEMENT OF JURISDICTION…………………………………………..…………...06

STATEMENT OF FACTS………………………………………………………………….07

STATEMENT OF ISSUES…………………………………………………………...…….09

SUMMARY OF ARGUMENTS……………………………………………………………10

ARGUMENTS ADVANCED……………………………………………………………….12

ISSUE I: WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE?

..................................................................................................................................................12

I. When the judgment under appeal has resulted in grave miscarriage of justice by
some misapprehension or misreading of evidence or by ignoring material
evidence then this Court is not only empowered but is well expected to interfere to
promote the cause of justice.
II. The present case is not of concurrent findings but of reverse findings hence
interference by this Court is vital to meet the ends of justice.
III. Application of precedents to factual matrix of the present case.

ISSUE II: WHETHER ACCUSED NO. 1 IS GUILTY FOR THE COMMISSION OF

OFFENCE U/S. 326A READ WITH SEC. 34 OF UPC AND WHETHER THE
COMMON INTENTION WITHIN THE MEANING OF SEC. 34 OF UPC IS
ESTABLISHED BETWEEN ACCUSED NO. 1 AND ACCUSED NO.
2?........................17

I. Common intention can be formed at the spur of the moment and during the
occurrence itself.
II. Presence of those who in one way or the other facilitate the execution of the
common design, is itself tantamount to actual participation in the ‘criminal act’.
III. To attract Section 34 of the UPC it is not necessary that each one of the accused
must commit the crime.

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IV. A co-perpetrator, who shares a common intention, will be liable to the extent that
he intends or could or should have visualized the possibility or probability of the
final act and “common intention” should not be confused with "intention" or
"mens rea" as an essential ingredient of an offence.
V. Conviction may be maintained on the ground of implied common intention also.
VI. Application of precedents to factual matrix of the present case.

ISSUE III: WHETHER ACCUSED NO. 1 IS GUILTY FOR THE COMMISSION OF

OFFENCE U/S 354D OF THE
UPC?.....................................................................................24

I. Attempt to foster personal interaction repeatedly despite a clear indication of

disinterest by woman is essential to constitute the offence of Stalking.
II. Application of precedents and provision to factual matrix of the present case.

PRAYER……………………………………………………………………………………..27

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LIST OF ABBREVIATIONS

Serial No. Full Form Abbreviation

1 Public Interest Litigation PIL
2 Environmental Impact Assessment EIA
3 Under Section U/S
4 Number No.
5 Narada Bachao Andolan NBA
6 Ministry of Environment, Forests and Climate Change MoEFCC

7 Environmental Impact Statement EIS

8 Environmental management plan EMP
9 Environment Clearance EV

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INDEX OF AUTHORITIES

CASE LAWS:

STATUTE:

1. The Indian Penal Code, 1860, No. 45, Acts of Imperial Legislative Council, 1860
(India).

CONSTITUTION:

1. ARTICLE 32 OF INDIANA CONSTITUTION

BOOKS:

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STATEMENT OF JURISDICTION

The Petitioner has filed this petition in Hon’ble Court under Article 32 of the Constitution of
Indiana.

STATEMENT OF FACTS

1. Indiana is second largest country in world in terms of population and has rich
reserves of natural resources. In Indiana population is largely depended upon
agriculture and animal husbandry. A large amount of water is needed for daily
sustenance of Indiana population. A similar has been the case with electricity as
well. Rural Indiana has been not electrified for a long time and still there are
villages where electricity has not reached. Industrial production, education of
students, agricultural production suffers due to short supply of electricity resulting
in slowing of development process.
2. The Narima River traverses three of Indiana's north-western states: Paschim
Pradesh, Madhya rashtra, and Uttar rashtra. Central Government in consultation
with the State Government of above States decided to sanction a mega dam project
along the Narima River. The Indiana government sought the World Bank's
assistance to build a complex of dams as part of the “Narada Valley Development
Project.” The Narada Project included the creation of thirty large dams, 135
medium dams, and 3,000 small dams.
3. The Indiana Sarovar Project in the state of Paschim Pradesh includes the most
controversial large dam. The government claimed that dam could solve various
problems related to shortage in supply of water and electricity and the said region
would flourish economically. The World Bank also granted some funds and for the
remaining of the funds Government decided to issue Governmental bonds and raise
money through them.

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4. In its initial assessment of the entire project, Government recognized three key
areas that were to taken up for meeting legal compliances and to clear the area for
setting the dam. These areas were Rehabilitation and Resettlement Policy,
Compensation Policy for resettled populations and Environment Impact Study of
the entire project as per environmental laws. A thorough environmental study of the
project was required.
5. However the government adopted a hurried approach in constructing the dam and
did not allotted any time for Standardized Environmental Impact study that was
mandated under various Environmental Legislations. Remarkably, the government
also permitted routine environmental studies rather than the comprehensive one that
were necessary. A limited group of Environmentalist was called to study the project
and submit the report. The population sought to be displaced was never consulted
and they were not informed about the entire manner in which the project was being
undertaken. There were a number of ambiguities in the resettlement and
rehabilitation policies. Media and social workers demanded transparent approach in
the entire process. Every norm of Environmental Impact Assessment was being
waved off and relaxed for the project.
6. Constitution of Indiana guarantees protection to all the citizens in form of
Fundamental rights. It guarantees Right to life under Article 21. Constitution has
also made special provisions for the protection of Tribal population of Indiana,
which include provisions for their peaceful co-existence, saving their culture and
traditions. Recognizing and conserving the right over property and forest and also
an elaborative policy for their rehabilitation and resettlement during the time of
their displacement from their natural places of existence. But the population
resettled was being given accommodation in a very faraway place which not in any
fashion resembled with their native place of settlement. Many leading social
workers joined the protest and labelled the approach to be violating the fundamental
and human rights of citizens and various environmental legislations that were in
force. Due to the ongoing revolt against the dam project, World Bank decided to
impose some qualifying criteria for releasing of funds. World Bank's Operational
Policies and Directives provided for general resettlement policy, which provided
that upon resettlement, displaced persons should retrieve at least their previous
standard of living.
After this, the government done many things for the tribals and refugees as per the

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guidelines of the World Bank. However the stakeholders were still not satisfied
with the efficacy of such arrangements.
7. Displacement of tribal impacted their culture and gradually their rich traditions and
culture. Environmentalist also continued to protest against the project on the ground
that there was no standard of “Environmental Impact Assessment” (EIA) that was
performed and in absence of any EIA, the project could turn out to be a disaster for
the region whose long-term impacts may include frequent flooding, complete
disappearance of flora and fauna from the region. Due to Government of Indiana's
pressure, World Bank approved the remaining funds even though the Indiana
Ministry of Environment and Forests has not consented to the project due to
incomplete environmental impact studies, which were never performed after the
approval.
8. The revolt by social workers attained a nationwide status and came to be known as
the Narada Bachao Aandolan (NBA). (NBA) through its representatives filed a Writ
Petition under Article 32 saying that there occurs to be violation of Fundamental
Rights of tribal population. In the said petition, Narada Bachao Aandolan (NBA)
pleaded before the Court to set aside this project on ground of the said violations.

STATEMENT OF ISSUES

ISSUE I: WHETHER THE CURRENT PETITION IS MAINTAINABLE?

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ISSUE II: WHETHER ACCUSED NO. 1 IS GUILTY FOR THE COMMISSION OF

OFFENCE U/S. 326A READ WITH SEC. 34 OF UPC AND WHETHER THE COMMON
INTENTION WITHIN THE MEANING OF SEC. 34 OF UPC IS ESTABLISHED
BETWEEN ACCUSED NO. 1 AND ACCUSED NO. 2?

ISSUE III: WHETHER ACCUSED NO. 1 IS GUILTY FOR THE COMMISSION OF

OFFENCE U/S 354D OF THE UPC?

SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE CURRENT APPEAL IS MAINTAINABLE?

It is humbly submitted that when the judgment under appeal has resulted in grave miscarriage
of justice by some misapprehension or misreading of evidence or by ignoring material

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evidence then this Court is not only empowered but is well expected to interfere to promote
the cause of justice. The present case is not of concurrent findings but of reverse findings
hence interference by this Court is vital to meet the ends of justice. It is humbly submitted
that the interference of this honourable court is beseeched to avoid gross miscarriage of
justice and to meet the ends of justice. Therefore, the current appeal is maintainable.

ISSUE II: WHETHER ACCUSED NO. 1 IS GUILTY FOR THE COMMISSION OF

OFFENCE U/S. 326A READ WITH SEC. 34 OF UPC AND WHETHER THE
COMMON INTENTION WITHIN THE MEANING OF SEC. 34 OF UPC IS
ESTABLISHED BETWEEN ACCUSED NO. 1 AND ACCUSED NO. 2?

It is humbly submitted that common intention can be formed at the spur of the moment and
during the occurrence itself. Presence of those who in one way or the other facilitate the
execution of the common design, is itself tantamount to actual participation in the ‘criminal
act’. To attract Section 34 of the UPC it is not necessary that each one of the accused must
commit the crime. A co-perpetrator, who shares a common intention, will be liable to the
extent that he intends or could or should have visualized the possibility or probability of the
final act and “common intention” should not be confused with "intention" or "mens rea" as an
essential ingredient of an offence. Conviction may be maintained on the ground of implied
common intention also. Therefore, it is most humbly submitted that accused no. 1 is guilty for
the commission of offence u/s. 326A read with sec. 34 of the UPC and the common intention
within the meaning of sec. 34 of UPC has been distinctly established between accused no. 1
and accused no. 2.

ISSUE III: WHETHER ACCUSED NO. 1 IS GUILTY FOR THE COMMISSION OF

OFFENCE U/S 354D OF THE UPC?

It is humbly submitted that Attempt to foster personal interaction repeatedly despite a clear
indication of disinterest by woman is essential to constitute the offence of Stalking. The
uncontroverted facts clearly establish that accused no.1 attempted to foster personal
interaction with the victim repeatedly despite a clear indication of disinterest by the victim.
The act of dragging the victim by accused no. 1 distinctly attest to the fact that the contacting
and the attempt to contact by the accused no. 1 was in respect of outraging the modesty of the
victim. The uncontroverted facts clearly establish that the acts of accused no. 1 fell within the
purview of all the essential ingredients of section 354D of the UPC read with the persuasive

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precedents cited hereinbelow. Therefore, it is humbly submitted that accused no. 1 is guilty
for the commission of offence u/s 354D of the UPC.

ARGUMENTS ADVANCED

ISSUE I: WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE?

It is humbly submitted before this Honourable Supreme Court that the present Writ
Petition is maintainable.

1. WRIT JURISDICTION UNDER ARTICLE 32.

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1. Article 32 grants every individual the right to move the Supreme Court for the
enforcement of their fundamental rights. This means that if someone believes their
fundamental rights have been violated, they can approach the Supreme Court directly
for relief. The present Public Interest Litigation (PIL) is maintainable under Article
32, against the Respondents because there is an infringement of Fundamental Rights.
The primary focus of a PIL is ‘Public Interest’. Hence a PIL can be filed for violation
of any Fundamental Rights, violation of basic human rights. Any member of the
public or a social action organisation working in good faith may seek restitution from
the High Courts or the Supreme Court for violations of legal or constitutional rights of
individuals who are unable to approach the Court.

2. In this case the population sought to be displaced was never consulted and they were
not informed about the entire manner in which the project was being undertaken. 1
There were a number of ambiguities in the resettlement and rehabilitation policies. It
is humbly submitted that issuing a writ in the present case at hand is perfectly
maintainable as there has been breach of various Fundamental Rights such as Article
14 i.e. Equality before Law, Article 19 i.e. Right to Freedom, Article 21 i.e. Protection
of Life and Personal Liberty.

2. DOCTRINE OF EXHAUSTION OF ALTERNATIVE REMEDIES AND

EXCEPTIONS TO THE DOCTRINE.

1. General rule is that litigant should approach the forum that is closest to them in the
judicial hierarchy and that valuable judicial resources shouldn't be squandered as a
result of forum shopping, both at the lower, possibly specialized level and at the
higher level, but it not a rule of absolute rule of law.

2. The Supreme Court has recently held that writ petitions cannot be termed as non-
maintainable merely because the alternative remedy provided by the relevant statutes
has not been pursued by the parties desirous of invocation of the writ jurisdiction. The
writ petition is been filed for the enforcement of any of the Fundamental Rights
1
Factsheet

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protected by Part III of the Constitution of Indiana. There has been a violation of the
principle of natural justice.

3. Doctrine of exhaustion of alternative remedy is not an absolute rule of law, and there
are certain valid exceptions where the writ petitions are maintainable. Supreme Court
in the case of Harbanslal Sahnia v Indian Oil Corporation Ltd. stated that the
availability of alternative remedies is not an absolute bar to the granting of writ. 2

4. In State of U.P Mohd. Nooh it is stated that alternative remedy would not operate as
an absolute bar and that Writ Petition and could still be entertained in exceptional
circumstances.3 There are numerous cases in which writ has been issued in spite of the
fact that the aggrieved party had other adequate legal remedies.

5. In Whirlpool Corporation v. Registrar of Trademarks, Supreme Court held that High

Court has discretion in regard to the matter of entertaining a writ petition and the
existence of alternate remedy has been consistently held by this court not to operate as
a bar in at least three contingencies namely:
a) The writ petition has been filed for the enforcement of any of the Fundamental Rights
protected by Part III of the Constitution.
b) There has been violation of the principle of Natural Justice.
c) The order or proceedings are wholly without jurisdiction or the vires of an Act is
challenged. 4

Therefore, it is humbly submitted before this Honourable Supreme Court that the present
Writ Petition is maintainable.

2
Harbanslal Sahnia vs Indian Oil Corporation Ltd. And others,AIR 2003 SC 2120
3
State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86
4
Whirlpool Corporation v. Registrar of Trademarks Mumbai, AIR 1998 SCW 3345

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ISSUE II: WHETHER THE STATE OF INDIANA HAS FAILED TO CONDUCT THE
ENVIRONMENTAL IMPACT ASSESSMENT AS PER THE APPLICABLE LAWS.

1. LACK OF THOROUGH ENVIRONMENTAL ANALYSIS.

1. In present case the government adopted a hurried approach in constructing the dam
and did not allotted any time for Standardized Environmental Impact study that was
mandated under various Environmental Legislations. Every norm of Environmental
Impact Assessment was being waved off and relaxed for the project. There was no
standard of “Environmental Impact Assessment” (EIA). In absence of any EIA the
project could turn out to be a disaster for the region whose long-term impacts may
include frequent flooding, complete disappearance of flora and fauna from the region,
and chances of bursting of dam due to silt deposition in dam's base.

2. There was need of thorough environmental study of the project 5 because the
notification of Ministry of Environment, Forests and Climate Change (MoEFCC) in
September 2006 makes it mandatory for various projects such as mining, thermal
power plants, river valley, infrastructure (road, highway, ports, harbours and airports)
and industries including very small electroplating or foundry units to get
environment clearance. There is detailed process of EIA which include 6 steps:-
a) Screening: Which projects need a full or partial assessment study is decided in
this stage.
b) Scoping: Which impacts are necessary to be assessed is decided in this stage.
While doing so, legal requirements, international conventions, expert
knowledge, and public engagement are also considered. Alternative solutions
that avoid or at least reduce the adverse impacts of the project are also studied
5
Factsheet

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in this stage. Investigation of alternate designs or sites that avoid or mitigate

impact takes place.
c) Assessment & Evaluation of Impacts and Development of Alternatives:
Environmental impacts of the proposed project are analysed and light is
thrown upon the alternatives present to such projects.
d) EIA Report also called Environmental Impact Statement (EIS): An
environmental management plan (EMP) and also a non-technical summary of
the project’s impact is prepared for the general public in this stage.
e) Decision Making: The fate of the project is decided. Whether the project is to
be given approval or not and if it is to be given, under what conditions.
f) Monitoring, compliance, enforcement and environmental auditing: Monitoring
whether the predicted impacts and the mitigation efforts happen as per the
EMP.

However the government did not analysed for alternative projects and not drafted any EMP
or summary of project for understanding of general public. The project was approved in very
inaccurate way.

2. EX POST FACTO ENVIRONMENT CLEARANCE (EC).

1. The granting of EC cannot be considered as a mechanical exercise. It can only be
permitted after due diligence and care, as damage to the environment can have long
lasting effects. Emphasizing the relevance of the “Precautionary Principle”, the
Supreme Court in MC Mehta vs. Union of India 6 held that it makes it mandatory for
the State Government to anticipate, prevent and attack the causes of environmental
degradation. In this case court also that, adopt the “Precautionary Principle” and
thereby ensure that unless an activity is proved to be environmentally benign in real
and practical terms. It is to be presumed to be environmentally harmful.

2. In Common Cause v. Union of India (2017), the Supreme Court headed by Justice
Madan B. Lokur held that granting an ex-post-facto environmental clearance could be
harmful and may cause irreparable degradation of the environment. As per the
Supreme Court, the concept of an ex-post-facto or a retrospective EC is totally alien
to environmental jurisprudence, including the EIA 1994 and EIA 2006.7
6
M.C Mehta Union Of India, AIR 2002 SC 1696
7
Common Cause v. Union of India, 2017 (9) SCC 499

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3. In the judgment by Justice DY chandrachud noted the above observations made in

Common Cause and observed in Alembic Pharmaceuticals Ltd vs Rohit Prajapati 8 that
the purpose of an EC is for the government to properly assess the damage that the
industrial unit could have on the environment and only after various stages of that
decision-making process can an EC be granted. The point of an EC is lost when it is
granted after operations have begun and damage has been done to the environment.
Hence this bench of the Supreme Court upheld the decision made in Common Cause
v. Union of India.

4. In the latest Judgment Vanashakti vs Union of India bench headed by Justice BR

Gavai and Sandeep Mehta, stays Centre’s orders from July 2021 and January 2022 for
Ex-post facto environmental clearance.9

8
Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Others, AIR 2020 SC 445
9
Vanashakti vs Union of India, 2024 SCC Online SC 139

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ISSUE III: WHETHER THE FUNDAMENTAL RIGHTS OF THE TRIBAL AND

OTHER AFFECTED PEOPLE HAVE BEEN VIOLATED?

PRAYER

WHEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUEMTS

ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS
HONOURABLE COURT BE PLEASED TO:

1. Allow the appeal.

2. Quash and set aside the judgment and order delivered by the honourable High Court.
3. Convict accused no. 1 for the commission of offences under section 326A read with
section 34 and section 354D of the Utopian Penal Code, 1860.

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4. Direct accused no. 1 to pay ₹ 15, 000, 00 /- (Indian Rupees Fifteen Lakhs only.) to the
victim.

ANY OTHER ORDER BE PASSED IN THE INTEREST OF JUSTICE, EQUITY AND

GOOD CONSCIENCE.

ALL OF WHICH IS HUMBLY PRAYED,

COUNSEL FOR THE APPELLANT.

MEMORIAL ON BEHALF OF THE PETITIONER