CELEBRATION OF 70TH CONSTITUTION DAY MOOT COMPETITION 2020

MEMORIAL ON BEHALF OF THE RESPONDENT

SUMMARY OF ARGUMENTS

[ISSUE A]: THE NOTIFICATION IS NOT ARBITRARY, DISPROPORTIONATE

AND DOES NOT AMOUNT TO VIOLATION OF THE FUNDAMENTAL RIGHT OF
THE FARMERS TO EQUALITY.

The respondents humbly submitted before the Hon’ble Supreme Court of Purabdesh that the
notification issued by the Central Government on 10 th November 2019 is not arbitrary as it is
in accordance of the Environment (Protection) Act,1986 and also passes the test of
reasonableness. The notification is proportional as (a) the object sought to be achieved via
executive action is of vital importance and needs urgent and strict action. (b) the measure
adopted by the Government is rationally connected with the object sought to be achieved
through administrative action. (c) the Central Government appropriately weighed all the
alternatives and the circumstances prevailing before issuing the notification. Hence, the said
notification imposes restriction no more than necessary to achieve the objective. since the
notification was brought in public interest reasonable restriction can be imposed on the rights
of farmers and thus, not violative of right to equality of farmers.

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 CELEBRATION OF 70TH CONSTITUTION DAY MOOT COMPETITION 2020
MEMORIAL ON BEHALF OF THE RESPONDENT

ARGUMENTS ADVANCED

[ISSUE A]: THE NOTIFICATION IS NOT ARBITRARY, DISPROPORTIONATE,

AND DOES NOT AMOUNT TO VIOLATION OF THE FUNDAMENTAL RIGHT OF
THE FARMERS TO EQUALITY.
The respondents humbly submitted before the Hon’ble Supreme Court of Purabdesh that the
notification issued by the Central Government on 10 th November 2019 is not arbitrary as it is
in accordance of the Environment (Protection) Act,1986 and also passes the test of
reasonableness. The notification is proportional to the gravity of the offence and therefore,
not violative of right to equality of farmers.
[A.1]: THE NOTIFICATION IS NOT ARBITRARY.
‘Arbitrarily’ means in an unreasonable manner, as fixed or done capriciously or at pleasure,
without adequate determining principle, not founded in nature of things, nonrational, not
done or acting according to reason or judgment, depending on will alone.1
[A.1.1]: The notification is well grounded in law.
The law is settled on the point that an administrative act is arbitrary if it is exercised without
any principle or without any rule.2 A sound administrative action would be one which is
guided by law or governed by known principles of law. 3 Further, the court in the case of
Neelima Misra Vs Harinder Kaur Paintal And Others4 held, “An authority, however, has
to act properly for the purpose for which the power is conferred. He must take a decision in
accordance with the provisions of the Act and the statutes.”
In the instant case, the notification was brought by the Central Government under The
Environment (Protection) Act,1986.5 As per the notification, the Government issued a
direction to the farmers of NCR prohibiting stubble burning from immediate effect. It is
stated that The Environment (Protection) Act,1986 has vested the power with the Central
Government to take “all such measures” that it deems necessary and expedient for the
purpose of achieving the object of the legislation.6 The Central Government is empowered to

1
Sharma Transport v Government of AP AIR 2002 SC 322.
2
Som Raj v State of Haryana AIR 1990 SC 1176.
3
ibid.
4
Neelima Misra v Harinder Kaur Paintal And Others AIR 1990 SC 1402.
5
Moot Proposition, ¶ 23.
6
The Environment (Protection) Act 1986, s 3(1).

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MEMORIAL ON BEHALF OF THE RESPONDENT

issue directions to any person and such a person shall be bound to comply with the directions
issued.7
As a general rule, the person to whom such directions are issued is given an opportunity to
file objections8, however, the Central Government can issue directions without providing an
opportunity of filing objections if it is of the view that there is likelihood of grave injury to
the environment.9 Since, in the case at hand the situation was severe and Dilprastha already
recorded AQI of 99910, it was reasonable on part of the Government to implement the
notification with an immediate effect.
The Act also provides that in case of contravention of the direction issued the person will be
punished with imprisonment for a term which may extend to five years with fine which may
extend to one lakh rupees, or with both, for each contravention. 11 Accordingly, in the instant
case the Central Government prescribed fine of one lakh rupees in order to ensure no case of
stubble burning comes up in NCR.
Therefore, it is concluded that since the notification is based on principles and existing laws
of Purabdesh and not based on whims and fancies of the Government, it is not arbitrary.
[A.1.2]: The notification satisfies the test of reasonableness.
Generally, whenever an administrative action is challenged on the ground of arbitrariness, the
courts employ the test of Wednesbury Unreasonableness which was laid in the case of
Associated Provincial Picture Houses v. Wednesbury Corporation.12 Lord Diplock in the case
of Council of Civil Service Unions v. Minister for Civil Service said, “It is a principle that
applies to a decision which is so outrageous in its defiance of logic or of accepted moral
standards that no sensible person who applied his mind to the question to be decided could
have arrived at it.”13
In the present case, the condition of the environment of NCR was severe, one which required
strict action. Dilprastha recorded AQI of 999, a mark beyond which reading is not possible. 14
The Government had already rolled out Odd-Even scheme in order to control vehicular

7
The Environment (Protection) Act 1986, s 5.
8
The Environment (Protection) Rules 1986, s r 4(3)(a).
9
The Environment (Protection) Rules 1986, s r 4(5).
10
Moot Proposition, ¶ 19.
11
The Environment (Protection) Act 1986, s 15(1).
12
Om Kumar v Union of India AIR 2000 SC 3689; Associated Provincial Picture Houses v Wednesbury
Corporation (1948) 1 KB 223.
13
Council of Civil Service Unions v Minister for the Civil Services (1984) 3 All ER 935, 951.
14
Moot Proposition, ¶19.

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pollution and also ordered a 15 days suspension of operation of industries. 15 The Central
Government then, in order to control pollution caused by burning crop residue issued a
notification prohibiting stubble burning.16 It is stated that the state has an obligation under
Article 21 of the constitution, to ensure that the right to life of people is not violated. 17 The
right to life under article 21 includes right to enjoyment of pollution free environment. 18 The
air pollution in NCR was endangering the lives of people.19 The health of people was in peril.
Therefore, it was logical on part of the Government to bring out notification prohibiting
stubble burning with immediate effect. In order to ensure that no farmer engaged in stubble
burning the Government prescribed fine of one lakh rupees and also provided withdrawal of
existing benefits under the Minimum Support Price [ MSP] scheme for farmers who engaged
in stubble burning.
Even if it is assumed that administrative discretion was applied in a wrong manner, the
Courts do not go into the merits of the exercise of discretion by the State as the Court cannot
go into the question whether the opinion formed by the State is right or wrong. 20 The Courts
do not substitute its own views with that of the concerned administrative authority.21
[A.2]: THE NOTIFICATION SATISFIES THE TEST OF PROPORTIONALITY.
Constitutionality of every administrative action has always been tested on the anvil of
proportionality.22 Proportionality demands that the government action must be no more
restrictive than is necessary to meet an important public purpose. 23 A decision is said to be
proportionate if “(a) the executive objective is sufficiently important to justify limiting a
fundamental right, (b) the measures designed to meet the executive objective are rationally
connected to it and (c) the means used to impair the rights are no more than necessary to
accomplish the objective.”24

15
Moot Proposition, ¶ 22.
16
Moot Proposition, ¶ 23.
17
The Constitution of India 1950, art 21.
18
Subhash Kumar v State of Bihar (1991) 1 SCC 598.
19
Moot Proposition, ¶ 20.
20
Partap Singh v State of Punjab AIR 1964 SC 72.
21
Ram Manohar Lohia v State of Bihar AIR 1966 SC 740.
22
Om Kumar v Union of India AIR 2000 SC 3689.
23
John Adler, General Principles of Constitutional and Administrative Law (4th edn, Palgrave Macmillan,
Basingstoke 2002) 385.
24
De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing (1999) 1 AC 69.

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[A.2.1]: The executive objective is sufficiently important to justify limiting a

fundamental right
Burning of crop residue leads to emission of gases such as CO2, CH4, CO, N2O, NOX, SO2
and large quantity of particulates. 25 These are potential sources of Greenhouse Effect 26 which
leads to climate change. If the Government of Purabdesh allow emission of such gases it
would be contrary to the objective of United Nations Framework Convention on Climate
Change27
According to a report of WHO as the air quality diminishes , the risk of diseases such as
stroke, heart disease, lung cancer and chronic and acute respiratory diseases, including
asthma, increases.28 On similar lines is the report of CPCB, which in its Annual Report 2014-
2015 provided that “Scientific studies have indicated links between fine particulate matter
and numerous health problems including bronchitis, acute and chronic respiratory symptoms
such as shortness of breath and painful breathing”.29
In the instant case also some health concerns were reported. Government hospitals reported a
sudden increase in the cases of serious respiratory problems. 30 Around 50 people including
some children were reported to have died across the NCR in the last two weeks of October
due to respiratory problems.31 A lot of working-class people living in the NCR, fearing for
their lives, left their jobs and returned to their home towns. 32 As a result, the Central
Government in consultation with the government of Dilprastha declared a public health
emergency in the capital city. 33 The effect was seen at the economic front as well. Major
airlines both domestic and international suspended their flights for a week. 34 Schools and
offices were shut down for a month.35 An international cricket match series between
Purabdesh and its rival country Nooristan got cancelled. 36 Shut down of major economic
activities in the capital severely affected the national market.37
25
Moot Proposition, ¶ 16.
26

27
United Nations Framework Convention on Climate Change, art 2.
28
https://www.who.int/phe/health_topics/outdoorair/databases/cities/en/
29
[<http://cpcb.nic.in/upload/AnnualReports/AnnualReport_55_Annual_Report_2014-15.pdf> accessed 20
September 2020.]
30
Moot Proposition, ¶ 20.
31
ibid.
32
Moot Proposition, ¶ 21
33
Moot Proposition, ¶ 22.
34
Moot Proposition, ¶ 20.
35
ibid.
36
ibid.
37
Moot Proposition, ¶ 21.

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Also, in a report by Committee on Review of The Scheme “Promotion of Agricultural

Mechanisation for In-situ Management of Crop Residue in States of Punjab, Haryana, Uttar
Pradesh and NCT of Delhi” reported that, “burning of one tonne of paddy straw accounts for
loss of 5.5 kg Nitrogen, 2.3 kg phosphorus, 25 kg potassium and 1.2 kg sulphur besides,
organic carbon. Generally, crop residues of different crops contain 80% of Nitrogen (N),
25% of Phosphorus (P), 50% of Sulphur (S) and 20% of Potassium(K). If the crop residue is
incorporated or retained in the soil itself, it gets enriched, particularly with organic C and
N.”38
In Laxmi Khandsari v. State of U.P.39, the Supreme Court held that “the law is clear on the
point that while deciding the reasonableness of the restriction the underlying purpose of the
restriction imposed, the extent and urgency of the evil sought to be remedied thereby,
prevailing conditions at the time should all enter into judicial verdict.”
Therefore, it is concluded that the object sought to be achieved via executive action is of vital
importance and needs urgent and strict action.
[A.2.2]: The measure adopted is connected to the objective.
In order to achieve the objective of better air quality in the city of Dilprastha and surrounding
regions the Central Government brought the impugned notification. The notification, with an
immediate effect, prohibited stubble burning in NCR. It also prescribed a fine of one lakh
rupees and also contemplated withdrawal of benefits under MSP scheme. It was done to
ensure that the farmers resorted to alternative methods of dealing with crop residue and that
no case of stubble burning is reported.
Hence, it is concluded that the measure adopted by the Government is rationally connected
with the object sought to be achieved through administrative action.
[A.2.3]: The measure is no more than necessary.
It is submitted that to tackle the manifold rise of air pollution in the NCR due to large scale
stubble burning in the States forming KPP, the Central Government with the help of State
Governments took several steps. Some notable long-term policies were framed in this regard
including monetary incentives to farmers to use the latest technologies.40

38
Report of Committee on Review of The Scheme “Promotion of Agricultural Mechanisation for In-situ
Management of Crop Residue in States of Punjab, Haryana, Uttar Pradesh and NCT of Delhi” <
https://farmech.dac.gov.in/revised/1.1.2019/REPORT%20OF%20THE%20COMMITTEE-
FINAL(CORRECTED).pdf> accessed 20 September 2020.
39
Laxmi Khandsari v State of UP (1981) 2 SCC 600.
40
Moot Proposition, ¶ 17.

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According to the report of Committee on Review of The Scheme “Promotion of Agricultural

Mechanisation for In-situ Management of Crop Residue in States of Punjab, Haryana, Uttar
Pradesh and NCT of Delhi” financial assistance was provided for the procurement of
agriculture machinery and Equipment for in-situ crop residue management to the farmers.
Financial assistance to the tune of 50% of the cost of machinery/equipment was provided.41
However, despite taking such measures, there was no sign of reduction of harmful pollutants
in the air.42 To the contrary in October 2019, Air Quality Index (“AQI”) plunged to 'Severe'
and 'Hazardous' categories in many stretches of NCR. Many areas in Dilprastha recorded an
AQI of 999, beyond which a reading is not possible. As a result, the Central Government
brought the impugned notification.
Under the said notification the Central Government prescribed the highest fine provided
under EPA as the environmental law operates on deterrent theory of Criminal Justice
Administration.43 If the fines are reduced the farmers would pick the penalties over the cost of
managing the straw in their farms.44 Also, fines cannot be reduced on the ground that the
offender cannot afford to comply with the requirements.45 Further, in Association of
Registration, Plates v. Union of India46, the Court observed that “judicial review of
administrative action is limited to consideration of legality of decision-making process and
not legality of the decision per se. Mere possibility of another view cannot be a ground for
interference.”
In the present scenario it is therefore concluded that the Central Government appropriately
weighed all the alternatives and the circumstances prevailing before issuing the notification.
Hence, the said notification imposes restriction no more than necessary to achieve the
objective.
Since, the above mentioned three parameters of the proportionality test are fulfilled,
therefore, it is concluded that the notification satisfies the test of proportionality.

41
Report of Committee on Review of The Scheme “Promotion of Agricultural Mechanisation for In-situ
Management of Crop Residue in States of Punjab, Haryana, Uttar Pradesh and NCT of Delhi” <
https://farmech.dac.gov.in/revised/1.1.2019/REPORT%20OF%20THE%20COMMITTEE-
FINAL(CORRECTED).pdf> accessed 20 September 2020.
42
Moot Proposition, ¶ 18.
43
Maharaja Shri Umaid Mills Ltd, Pali and Others v State of Rajasthan and Others AIR 1998 Raj 9 (DB).
44
Manish Sirhindi, ‘Punjab Farmers say Fine is Less Expensive, Continue to Burn Stubble’ The Times of India
(Patiala, 17 October 2018).
45
Determination and Application of Administrative Fines for Environmental Offences: Guidance for
Environmental Enforcement Authorities in EECCA Countries, OECD 2009, page 22, accessed 13 September
2020.
46
Association of Registration, Plates v Union of India (2004) 5 SCC.

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 CELEBRATION OF 70TH CONSTITUTION DAY MOOT COMPETITION 2020
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[A.3]: THE SAID NOTIFICATION DOES NOT VIOLATE THE RIGHT OF

FARMERS TO EQUALITY.
The preamble to the Constitution of Purabdesh declares Purabdesh as a socialist nation. 47 A
socialistic state is one which is concerned with the welfare of the people. Welfare state is one
which seeks to promote prosperity and well-being of the people.48 It is the duty of the state
under article 4749 to raise the level of nutrition and the standard of living of its people and the
improvement of public health.
It is within the powers of the Government to impose reasonable restrictions on fundamental
rights, for promoting or effectuating a DPSP in public interest. 50 Though, DPSPs are non-
justiciable in nature, however, these are not merely moral principles, these are fundamental in
the governance of the country.51 They are relevant in considering reasonable restrictions that
can be imposed on fundamental rights.52 The maxim Salus populi suprema lex is followed in
all courts which means “The individual right sinks in the necessity to provide for the public
good”53
In the case of Sajjan Singh v State of Rajasthan the court laid down that “in case of conflict
between the right of the individual and the laws aiming to implement socio-economic policies
in pursuance of Directive Principles, weightage should be given to the latter and every
legislation enacted in pursuance of Directive Principles should be construed as one purporting
to be in ‘public interest’ or as a reasonable restriction on the Fundamental Rights.”54
In the case at hand, the notification was brought in greater public good as stubble burning
emitted harmful gases in the environment and the deteriorating air quality of NCR posed
serious threats on health of the people. Burning crop residue also affected the economics of
NCR as tourism was the major source of revenue for the capital city 55 and due to rise in air
pollution major airlines suspended domestic and international flights.56
Therefore, since the notification was brought in public interest reasonable restriction can be
imposed on the rights of farmers and thus, not violative of right to equality of farmers.
47
Moot Proposition, ¶ 2.
48
Paschim Band Khet Mazdoor Society v State of West Bengal (1996) 4 SCC 37.
49
The Constitution of India 1950, art 47.
50
Papanasam Labour Union v Madura Coats Ltd (1995) SCC 1501.
51
The Constitution of India 1950, art 37.
52
State of Gujrat v Mirazpur Moti Kureshi Kassab Jamat AIR 2006 SC 212.
53
Special Deputy Collector v N Vasudeva Rao [2003] 12 ILD 342.
54
Sajjan Singh v State of Rajasthan AIR 1965 SC 845; State of Bihar v Kameshwar Singh AIR 1952 SC 252;
Bijoya Lakshmi Cotton Mills v State of West Bengal AIR 1967 SC 1145.
55
Moot Proposition, ¶ 9.
56
Moot Proposition, ¶ 20.

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CELEBRATION OF 70TH CONSTITUTION DAY MOOT COMPETITION 2020
MEMORIAL ON BEHALF OF THE RESPONDENT