moot memorial. bhopal gas tragedy

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

    UNIVERSITY INSTITUTE OF LEGALSTUDIES, 9 th SEMESTER

    ACADEMIC MOOT COURT.

    IN THE HONOURABLE SUPREME COURT OF INDIA

    Writ petition No. of 2014

    IN THE MATTER OF

    X.Y.Z.

    . PLANTIFF

    VERSUS

    UNION OF INDIA & OTHERS

    .RESPONDENT

    WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT.

    MOST RESPECTFULLY SUBMITTED

    COUNSEL FOR DEFENDANT NO.1SD/-

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    TABLE OF CONTENTS.

    1. INDEX OF AUTHORITIES Statutes Books Websites Cases

    2. TABLE OF ABBREVIATIONS

    3. STATEMENT OF JURISDICTION

    4. STATEMENT OF FACTS

    5. IDENTIFICATION OF ISSUES

    6. BODY OF PLEADINGS

    7. PRAYER FOR RELIEF

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    INDEX OF AUTHORITIES.

    1. STATUTES Constitution of India, 1950 Chemical Disaster (processing of claims) Act, 2008 Halsburys Laws of England.

    2. BOOKS Iyers, Ramaswamy, The Law of Torts, Ed 9 th , Lexis Nexis Butterworts SP Sathe, administrative Law, Ed 7 th

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

    3. WEBSITES http://webpage.pace.edu/pacelegalassistance/negligence.htm http://archive.org/stream/jstor-1321649/1321649_djvu.txt www.duhaime.org Legal Dictionary

    http://www.judis.nic.in http://www.manupatra.com http://www.findlaw.com

    4. CASES Mohapatra v. state of Orissa. 2007 (4) SCC 103. Maneka Gandhi v. Union of India. AIR 1987 SC 597 Alfred L. Snapp& Son, Inc. v. Puerto Rico, 458 US 592, 73 L. Ed. 2d 995, 1028. Ct,

    3260 Georgia v. Tennessee Copper Co., 206 US 230, 51 L.Ed. 1038, 27 S Ct 618 Collector of Customs, Madras v. NathellaSampathuChetty[1962] 3 SCR 786

    http://archive.org/stream/jstor-1321649/1321649_djvu.txthttp://www.duhaime.org/LegalDictionary.aspxhttp://www.manupatra.com/http://www.findlaw.com/http://www.findlaw.com/http://www.manupatra.com/http://www.duhaime.org/LegalDictionary.aspxhttp://archive.org/stream/jstor-1321649/1321649_djvu.txt
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    TABLE OF ABBREVATIONS.

    1. A.I.R. All India Reporter.2. Art Article

    3. HC High court

    4. SC Supreme court

    5. SCC Supreme Court Cases

    6. P. Page

    7. US United states of America

    8.

    Vol. Volume9. UOI union of India

    10. CPC- Code of Civil Procedure, 1908

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    STATEMENT OF JURTISDICTION.

    In this instant matter the petition has been filed before the Honble Supreme Court claiming the breach

    of Fundamental Rights, while the Respondent submits to the jurisdiction of this Honble Court under

    Article 32 of the Constitution of India.

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    STATEMENT OF FACTS.

    The Counsels for the Respondent most respectfully showeth:

    National Acetate (India) Limited (NAIL), which was a subsidiary of the New York based Central

    Acetate Corporation (CAC) owned a plant in Chattisgarh to manufacture pesticides. A highly toxic gas,

    Methyl Isocyanate (MIC) was used in the process and there was a massive leak from the storage tank on

    the night between 2 nd and 3 rdDecember2007, which resulted in death of approximately 3000 people and

    injuries to thousands of others.

    The tragedy was followed by large number of suits being filed against the companies in both India and

    the United States. With regard to this, the Government took a major step by enacting the Chemical

    Disaster (Processing of Claims) Act, 2008 with the object to confer powers on the Central Government

    to assure that claims arising out of, or connected with, the Chemical Disaster are dealt with speedily,

    effectively, equitably and to the best advantage of the claimants and for matters incidental thereto. 1

    Section 3 of the Act empowered the Central Government to file suits on behalf of the victims

    exclusively, hence, taking away the rights of affected to file suits on their own. Though it was

    specifically mentioned that in case of suits that were already filed before the enactment of the aforesaid

    Act, the Central Government shall represent the victims or act in addition to them with the permission of

    the Court. Hence the writ.

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

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    IDENTIFICATION OF ISSUES.

    The following core issues that came up, were,

    1) Whether or not the Act was in accordance with the Fundamental Rights guaranteed under Article

    14, 19 and 21 of the Indian Constitution?

    2) Whether or not the Act was in accordance with the Principles of Natural Justice?

    2.1) Whether being a joint tort feasor, the Union on India had any locus standi to

    compromise on behalf of the victims as it itself had permitted the establishment of such

    factories without necessary safeguards?

    2.2) Whether or not the victims and their legal heirs were given opportunity to be heard?

    2.3) Whether or not, due to conflict on interests, the Central Government was acting as a

    judge in its own cause?

    3) Whether or not the Central Government is legislatively competent to destroy/ demand the citizens

    to surrender their rights in guise of giving aid?

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    PLEADINGS.

    1. Whether or not the Act was in accordance with the Fundamental Rights guaranteed

    under Article 14, 19 and 21 of the Indian Constitution?

    The contention of the petitioners was that the Act infringed on their individual rights to legal remedy

    against the CAC and NAIL for the consequences of carrying out dangerous and hazardous activities in

    India. It was argued that the one could not take away the right of a person, the liberty of a person, to

    institute proceedings for his own benefit and for his protection. Sections 3, 4 and 11 of the aforesaid

    Act were contented to be in violation of Article 14, 19(1)(g) and 21 of the Constitution because the

    procedure that was established under these Sections deprived the just and legitimate rights of the victims

    to assert and obtain their just dues and therefore such rights cannot be destroyed because under law,

    victims have a right to ventilate their rights. Another argument in this regard was that it has been

    asserted by the Government that the Act was passed pursuant to Entry 13 of the List I of the Seventh

    Schedule to the Constitution. It was therefore submitted that to the extent it was a law relating to civil

    procedure, it sets up a different procedure for the Disaster victims and denies to them equality before

    law, violating Article 14 of the Constituti on. Attention was also drawn to the provisions of the

    Universal Declaration of Human Rights in support of their argument.

    It is argued that there were various reasons to enact the Act and some of them were- the plight of the

    impoverished, the urgency of the victims need, the presence of the foreign contingency lawyers, the

    procedure of settlement in USA in mass action, the strength of the foreign multinationals, the nature of

    injuries and damages . Further, it is argued by the Government that the Preamble to the Constitution of

    India, read with the Directive Principles, Articles 38, 39 and 39A of enjoins the State to take up

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    responsibility. The taking up of this responsibility has been derived directly from the doctrine of parens

    patriae.

    Parens Patriae means the father of the country and it is the inherent power and authority of a

    legislature to provide protection to the person and property of persons non suijuris, such as minor insaneor incompetent persons. It should be taken into account that the victims cannot be considered to be

    any match to the multinational companies or the government with whom in the conditions that the

    victims or their representatives were after the disaster physically, mentally, financially,

    economically and also because of the position of litigation would have to contend and in such a

    situation of predicament, the victims could be legitimately be considered to be disabled and

    therefore the power was vested in the Central Government. Further it was ruled that the Act in question

    had been passed in recognition of the right of the sovereign to act as a parenspatriae. I t is necessary for

    the State to ensure the Fu ndamental Rights in conj unction wi th th e Di rective Pri ncipl es of State

    Policy to effectively dischar ge it s obli gations and for this pur pose if necessary, to depri ve some r igh ts

    and pr ivi leges of the in dividual victims or th eir heirs to protect their ri ghts better and secure these

    further.

    Alfred L. Snapp& Son, Inc. v. Puerto Rico, 458 US 592, 73 L. Ed. 2d 995, 1028. Ct, 3260 in this

    connection. There it was held by the Supreme Court of the United States of America