[P-TC-15]

3RD INTRA MOOT COURT COMPETITION, 2019

IN THE HON’BLE SUPREME COURT OF INDICA

WRIT PETITION (CIVIL) NO. ____ OF 2019

UNDER ARTICLE 32 & ARTICLE 134 OF THE CONSTITUTION OF INDICA

IN THE MATTER OF:

Green Warriors…………….. …………………………………………………..PETITIONER

Antanio and Ors…………………………………………………………………PETITIONER

V.

Union of Indica……………………………………………………….…….…RESPONDENT

TO THE HON’BLE CHIEF JUSTICE OF INDICA AND HIS COMPANION JUDGES

OF THE HON’BLE SUPREME COURT OF INDICA

--MEMORIAL FOR THE PETITIONER--

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 -TABLE OF CONTENTS-

Cover Page……………………………………………………………………………….1

Table of Content…………………………………………………………………………2

List of Abbreviation..........................................................................................................3

Index of Authorities……………………………………………………………..…….4-5

State of Jurisdiction……………………………………………………………………..6

Statement of Fact………………………………………………………………………..7

Issued Raised……………………………………………………………………………8

Summary of Arguments………………………………………………………………..9

Arguments Advanced…………………………………………………………...…….10

1. This PIL Is Maintainable BEFORE THE HON’BLE SUPREME COURT OF INDICA..10

2. WHETHER THE UNION OF INDICA IS FAILED TO PROVIDE POLLUTION
FREE AND HEALTHY ENVIRONMENT TO ITS CITIZEN………...…………..…11-15
3. WHETHER THE PETITION FILED BY THE ANTONIO AND OTHERS UNDER
ARTICLE 134 OF THE CONSTITUTION OF INDICA IS MAINTAINABLE BEFORE
THE HON’BLE SUPREME COURT………………………………………………..…..15-16
4. WHETHER THE COUNTRY USB WITHOUT BEING MEMBER OF UNCLOS IS
BOUND BY ITS PROVISION……………………………………………………..……..16-17
5. WHETHER THE ANTANIO AND OTHERS ARE LIABLE FOR INJURY OF THE
FISHERMAN………………………………………………………………………………17-18

Prayer……………………………………………………………………………….....19

--MEMORIAL FOR THE PETITIONER-

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 LIST OF ABBREVIATION

¶ PARAGRAPH

AIR ALL INDIA REPORTER

HON’BLE HONOURABLE

& AND

SEC. SECTION

ORS. OTHERS

SC SUPREME COURT

SCC SUPREME COURT CASES

V. VERSES

COI CONSTITUTION OF INDIA

PIL PUBLIC INTEREST LITIGATION

Const. CONSTITUTION

F.R FUNDAMENTAL RIGHT

Art. ARTICLE

NGO NON-GOVERNMENTAL ORGANISATION

--MEMORIAL FOR THE PETITIONER—

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 INDEX OF AUTHORITIES

Books

1. Basu . D D , Constitution of India , 14th edition 2009, lexis Nexis Butterworth ,

wadhawa Publication Nagpur
2. Jain, M.P Indian Constitutional Law, 6th edition 2011, Lexis Nexis , Butterwoth
Wadhwa Nagpur
3. Shukla , V.N , Contitutionan of Indian 11th edition 2008, eastern Book Company.
4. Gaur , K.D 6th edition , Lexis Nexis , Universal Law Publication 2018

Legislation

1. The Constituion of India, 1950

2. Environment Protection Act, 1986
3. Water( Prevention and Control of pollution) Act, 1974
Covention

1. United Nation Convention on the Law of Sea,1982

Cases

1. Bandhu Mukti Morcha v. Union of India and Ors, (1997) 10 SCC 549
2. M.C.Mehta v. Union of India and Ors (1987) 4 S.C.C 463
3. S.P.Gupta v. Union of India AIR 1982 SC 149
4. State of Maharashtra v. Chandrabha AIR 1983 SC 803
5. Francie Coralie v. Union Territory Delhi Administrator AIR 1981 SC 746
6. Olga Tellus v. Bombay Corp. AIR 1986 SC 180
7. J N Chandurevdi v. Comm. All Dist 2001
8. Maneka Gandhi v. Union of India
9. Subhash Kumar v. State of Bihar AIR 1991 SC 42
10. Subhash Kumar v. State of Bihar AIR 1991 SC 420
11. F.K. Hussain V. Union of India AIR 1990
12. M.C. Mehta v. Union of India (1998) 2 SCC 435
13. M.C. Mehta v. Union of India AIR 2000 SC 1997
14. M.C. Mehta v. Kamal Nath (1997) 1 SCC 388
--MEMORIAL FOR THE PETITIONER--

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15. Intellectual Forum Tripathi v. State of A.P AIR 2006 SC1310
16. Avinder Singh v. State of Punjab

17. M.C.Mehta v. Union of India AIR 1987 SC 1086

18. Charal Lal Sahu v. Union of India (1990) 1 SCC 6113
19. North Sea Continental Shelf Cases
20. State of Orissa v. Ram Bahadur Thapa AIR 1960
21. Waryam Singh v. Emperor AIR 1926 Lah 554
22. Bouda Kvi v. Emperor AIR 1943

--MEMORIAL FOR THE PETITIONER—

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 STATEMENT OF JURISDICTION

Herein it is humbly submitted by the counsel for the petitioners that the petitions filed by both
the petitioners are maintainable.

 The first petition is a Public Interest Litigation, filed by Green Warriors under Article 32
of Constitution of Indica. The Hon’ble Supreme Court of Indica Constituted a
Constitutional bench to hear the matter which has all the jurisdiction to hear it.

 The Second Petition is Appellate Jurisdiction, filed by Antanio and others under Article
134 of Constitution of Indica. The Hon’ble Supreme Court of Indica Constituted a
Constitutional bench to hear the matter which has all the jurisdiction to hear it.

--MEMORIAL FOR THE PETITIONER—

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 STATEMENT OF FACTS

Indica is a country which is pari materia to India and situated in South Asian region of
the earth. Dillica is the capital of Indica, which is situated near Arabian Sea. Dillica is
the host of various factories and small-scale industries, along with this, construction
work goes on throughout the year and the number of vehicles and goods carriages is
very huge. Dillica is situated at the shores of Arabian Sea and many fishermen and
their families are dependent on the earnings from the sources coming from the sea.
Laviathan is a ship registered under the country USB carrying oil and gas tankers is
passing through Arabian sea and nearby Dillica. USB is among those very few
countries who are not the member of UNCLOS. The crewmembers of the Laviathan out
of ignorance and deviation from the formal sea route enter into the Territorial waters of
Indica where fisherman use to carry out their day to day activities. When crewmembers
saw fishermen, they gets confused with pirates and shoot them, in this incident two
fisherman gets injured. During this process few containers of oil and gases falls into the
water of the sea leading to the spill of oil into water and leakage of gas into atmosphere.
Due to this the shores of Dillica gets affected and atmosphere is also contaminated with
harmful gas. The Indican authorities seized the ship and 3 naming, Antanio, Andreas
and Jack out of 10 crew members are also arrested. The crewmember who had shot
fisherman also flew and reached his country. Green Warriors is an NGO working for
the protection of environment in Indica, when this incident of oil spill and gas leakage
took place in Dillica, Ms. Maya, the director of NGO comes to Dillica and prepares a
report on the pollution and send it to the government of Indica for taking strong action
against the arrested crew members and bringing back those rest members who has flew
to USB. USB and Indica are friendly countries and they share many treaties and
agreements for environmental causes. Both the countries are dedicated towards the fight
against the pollution and trying their best to control pollution under their Constitutional
and legal frameworks.USB to protect the interest of its citizens in Indica hires a lawyer
named John Wick from India, and filed a petition in High Court of Dillica. At the same
time, a suit is filed by Green warrior in the supreme court of Indica against the
government of Indica. But the Hon’ble High Court of Dillica, convicted the Antanio,
Andres and Jack and Others who flee back to USB. After that, Jhon Wick filed a
Petition in Supreme Court of Indica against the decision of High Court of Dillica.
--MEMORIAL FOR THE PETITIONER—

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 ISSUES RAISED

ISSUE 1

WHETHER THE PIL FILED BY THE GREEN WARRIORS UNDER ARTICLE 32

OF THE CONSTITUTION OF INDICA IS MAINTAINABLE BEFORE THE
HON’BLE SUPREME COURT?

ISSUE 2

WHETHER THE UNION OF INDICA IS FAILED TO PROVIDE POLLUTION

FREE AND HEALTHY ENVIRONMENT TO ITS PEOPLE?

ISSUE 3
WHETHER THE PETITION FILED BY THE ANTONIO AND OTHERS UNDER
ARTICLE 134 OF THE CONSTITUTION OF INDICA IS MAINTAINABLE
BEFORE THE HON’BLE SUPREME COURT?

ISSUE 4
WHETHER THE COUNTRY USB WITHOUT BEING MEMBER OF UNCLOS IS
BOUND BY ITS PROVISION?

ISSUE 5
WHETHER THE ANTANIO AND OTHERS ARE LIABLE FOR INJURY OF
THE FISHERMAN?

--MEMORIAL FOR THE PETITIONER—

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 SUMMARY OF ARGUMENTS

[1]THIS PIL BY THE GREEN WARRIORS IS MAINTAINABLE BEFORE THE

HON’BLE SUPREME COURT OF INDICA
It is most humbly submitted before this Hon’ble Supreme Court of Indica that this PIL
is maintainable in this court under Article 32 as there is violation of fundamental right
of the Constitution of Indica. The Hon’ble Supreme Court of Indica has all the
jurisdiction to hear it.
[2] WHETHER THE UNION OF INDICA IS FAILED TO PROVIDE
POLLUTION FREE AND HEALTHY ENVIRONMENT TO ITS PEOPLE
The petition filed by petitioner which seeks the free and healthy Environment from the
government of Indica. The government of Indica is failed to provide healthy environment
because the spill of oil into water and leakage of gas into atmosphere by the act of
Crewmembers of the ship of the country USB.
[3] WHETHER THE PETITION FILED BY THE ANTONIO AND OTHERS
UNDER ARTICLE 134 OF THE CONSTITUTION OF INDICA IS
MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT
It is most humbly submitted before this Hon’ble Supreme Court of Indica that this Petition is
maintainable in this court under Article 134 as there is Appellate Jurisdiction of the
Constitution of Indica. The Hon’ble Supreme Court of Indica has all the jurisdiction to hear
it.
[4] WHETHER THE COUNTRY USB WITHOUT BEING MEMBER OF UNCLOS IS
BOUND BY ITS PROVISION
The Country i.e., USB is not the member of UNCLOS that is why USB is not bound by the
provision of the UNCLOS. The law of the UNCLOS wil not followed by the USB and
Antonio and others is not liable for polluting the Environment of Indica.
[5] WHETHER THE ANTANIO AND OTHERS ARE LIABLE FOR INJURY OF THE
FISHERMAN

Antonio and others are not Liable for the Injury of the Fisherman due to their act of
shooting at them because they did it in the good faith that the crewmembers understood
that the fisherman were piarates.

--MEMORIAL FOR THE PETITIONER--

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 ARGUMENT ADVANCED

ISSUE – 1

THIS PIL IS MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT

OF INDICA

[¶1] It is most humbly submitted before the Hon’ble Supreme Court of Indica that this PIL
is maintainable in this Court. The sole object of Article 32 is the enforcement of the
fundamental rights guaranteed by the constitution of Indica. Further in the case PIL is
maintainable as, firstly the petitioners have locus standi to approach the hon’ble court,
secondly there is violation of fundamental rights and lastly the court is competent to
provide relief.

[1.1] The Petitioners have locus standi to approach the Hon’ble Court

[¶2] It is humbly submitted that petitioners have locus standi to approach the hon’ble
Supreme Court of Indica as the rule of locus standi has been liberalized by the Supreme
Court in Dillica of cases1. The prominent among which being S.P Gupta v. U.O.I2, in
which the court observed that “the court has to innovate new methods and devise new
strategies for the purpose of providing access to justice to large masses of the people
who are denied their basic human rights and to whom freedom and liberty have no
meaning.”[¶3] It is humbly submitted that in the case at hand the subject-matter
involves to pollute the environment due to the oil spill in the water and leakage of gas
in the atmosphere. So, the petitioner have a locus standi to approach the hon’ble
Supreme Court of Indica.

--MEMORIAL FOR THE PETITIONER--

1
Bandhua Mukti Morcha v. Union of India &Ors, (1997) 10 S.C.C. 549; M.C. Mehta v. Union of India &
Others, (1987) 4 S.C.C. 463; Rajeev Kumar and ors. v. The State of U.P. Through Principal Secretary,
Ministry of Sugarcane Development and ors., 2006 (1) A.W.C. 34; New Sun Education Society (Regd.)
Through Its Secretary Sri Haji Muqeet Ali v. State of Uttar Pradesh Through Secretary, Department of
Home and ors., 2008 (2) A.W.C. 1186; Professor G.K. Rai v. Chancellor, University of Allahabad and
ors., (2004) 2 U.P.L.B.E.C. 1691
2
A.I.R. 1982 S.C. 149

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 [1.2] Court is Competent to Provide Relief

[¶4]Art.32 itself is a fundamental right and the Supreme Court, as guardian of the
fundamental rights, has the powers for enforcement of those rights through issue of writs.
This Hon’ble Court has inherent powers issue orders to do complete justice under Art. 142 3.
This constitutional provision empowers the court to frame remedies for ensuring justice in
particular cases and ordinary law does not and cannot place constraints on its constitutional
powers. The Supreme Court in exercise of its constitutional powers can overcome
inadequacies and weakness of law and procedure, coin new remedies and add parties to case
where need be. It is humbly submitted that in this instant case as there is violation of
Fundamental Rights of the people of Indica. So, the Hon’ble court is competent to provide
relief.

ISSUE – 2

WHETHER THE UNION OF INDICA HAS FAILED TO PROVIDE POLLUTION

FREE AND HEALTHY ENVIRONMENT TO ITS PEOPLE

The Union of Indica has failed to regulate the activities within its Jurisdiction thereby
entailing primarily responsibility for the harm caused both in respect of oil spill and Air
pollution. In accordance with the constitutional rights given to the citizen of Indica, The
Union of Indica failed to provide pollution free and healthy environment which is a basic
fundamental right of the citizen under article 21 of Constitution of Indica Which States that
“No person shall be deprived of his life or Personal Libert.

[2.1]The Act of the Union of Indica Violate the Fundamental Rights Guaranteed
Under Article 21 of The Indica Constitution

Right to life enshrined in Article 21 means something more than survival or animal
existence.4 It would include right to live with human dignity.
--MEMORIAL FOR THE PETITIONER--

3
State of Maharashtra v. Madhkar Narayan AIR 1991 SC 207; Vishakha v. State of Rajasthan AIR 1997 SC
3011
4
State of Maharashtra v Chandrabhan AIR 1983 SC 803; see also MP Jain, Indian Constitutional Law, (5th Ed;
2005) P.

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It would include all those aspects of the life which goes to make man life meaningful,
complete and worth living 5. That which alone can make it possible to live must be declared to
be an integral component of right to life. 6

Every person enjoys the right to wholesome environment, which is a facet of the right to life
guaranteed under Article 21 of the constitution of India. 7

In the instant case, Environment is polluted due to the oil spill and gas leakage in the
territorial water of Indica and due to negligence that no security is given in the territorial
water of Union of Indica. People of the Dillica is facing the Environment pollution and
Rights of the people has deprived that guaranteed under Article 21 of the Constitution.

[2.2] Right to Clean Water Guaranteed under Article 21 of the Constitution of Indica is
Violated

Sec 2 of the Water (Prevention and Control of Pollution) Act 1974 defines water pollution as
“pollution means such contamination of water or such alternation of physical, chemical or
biological properties of water or such discharge of any sewage or trade effluent or of any
other liquid, gaseous or salt substance in to water (whether directly or indirectly) as may, or is
likely to create a nuisance or render such harmful or injurious to public health or safety, or to
domestic, commercial, industrial, agricultural or other legitimate use, or the life and health of
animals or plants or of aquatic organisms”.

Right it life under Article 21 includes Right to enjoyment of pollution free water and air for
full enjoyment of life. 8

Right to life includes right to potable water as it is one of the basic elements which sustain
life itself. 9

--MEMORIAL FOR THE PETITIONER—

5
Maneka Gandhi v Unioon of India AIR SC 597 see also Bd.of Trustee of port of Bombay v. Nata Dilip Kumar
AIR 1983 SC 109, Burra Bazar v.Comm. of Police Cal AIR 1998 Ca/121
6
Supra on 25 see also D.D Basu , Shorter Constitution of India [13th Ed 2001]
7
Subhash Kumar v. State of Bihar , AIR 1991 SC 42
8
Subhash Kumar v State of Bihar AIR 1991 SC 420: see also; Rural Litigation & Entitlement Kendra v State of
UP AIR 1987 SC 359; DD.Vyas v Ghaziabad Development Authority AIR 1993 All 57; Narmada Bachao
Andolan v.State of MP AIR 2008 MP 142; MC. Mehta v.State of Orissa AIR 1992 Ori 225,
9
F.K Hussain v Union of India AIR 1990 Ker 321: see also Charanlal Shahu v Union of India AIR 1990 SC
1480 ; M.C Mehta v Union of India (1998) 2 scc 435; P. Leela Krishnan, Environmental Law in India [1st
Ed.1999]

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In the instant case, oil spill and leakage of gas by the crewmember of the Laviathan ship have
an adverse affect on the quality of the territorial water of Indica. Water which is essential for
the very existence of human being is a gift of nature.

Article 48-A and 51A (g) have to be considered in the lig4ht of Article 21 of the Constitution.
Article 48 A of the constitution of India mandates that State shall endeavor to protect and
improve the environment and safeguard the forest and wildlife of the country. Article 51-A
(g) enjoys that it shall be the duty of every citizen of India, inter alia, to protect and improve
national environment including forest, lakes, rivers, wild life and to have compassion for
living creatures.10

These two Articles are not only fundamental in governance of the country but also shall be the
duty of the State of apply these principles in making policies11.

In MC Mehta v. Kamal Nath 12 the Supreme Court accepted the doctrine of public trust which
rest on the premise that certain natural resources like air, sea water are meant for general use.
These resources are gift of nature and the State as a trustee thereof, is duly to bound to protect
them.

Hence it is humbly submitted before this Hon’ble Court that the act of Union of Indica is
violative of Article 21 of People of Indica.9

[2.3] Right to Life and Right to Live in a Healthy Environment

The Constitutional scheme to protect and preserve the environment has been provided under
Article 14,21,48-A(g) which includes fundamental right to have healthy and pollution free
environment, constitutional obligation of the state and fundamental duty of all citizen of
Indica to protect and improve the natural environment.

--MEMORIAL FOR THE PETITIONER--

10
MC Mehta v Union of India AIR 2000 SC 1997; T.Ram Krishna Rao v. The Chairman Huda and Ors, ILR
(2001) 2 AP 180
11
Intellectual forum Tripathi v. State of Andra Pradesh AIR 2006 SC 1310 see also: Sitaram Chhaparia v.State
of Bihar AIR 2002 Pat 134; Satyavani v. A.P Pollution Control Board AIR 1993 AP, Nature Lovers Movement
v. State of Kerala AIR 2000 Ker 13125
12
(1997) 1 SCC 388

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Art.21 is the heart of fundamental rights and has received expanded meaning from time to
time and there is no justification as to why right to live in a healthy environment cannot be
interpreted in it. For healthy existence and preservation of the essential ingredients of life,
right to life-a life of dignity, to be lived in a proper environment, free of danger of disease
and infection.

The petitioner submits that it is not unknown for a Governmental Agency to exaggerate the
benefits and underplay the deficiencies while making policy decision. In Avinder Singh v.
State of Punjab13 it was held that arbitrariness must be excluded from the law, for if power is
arbitrary, it is potential inequality, and Art 14 is fatally allergic to inequality of the law 14. The
counsel for the petitioner submits that matters of national importance cannot be implemented
negligently as has been done by the Government in the present matter. Hence, violative of
Art. 14.

Section 2(e)15 of the Environment Protection Act of 1986 defines, “A hazardous substance to
mean any substance or preparation which, by reason of its chemical or physio-chemical
properties or handling, is liable to cause harm to human beings, other living creatures, plants,
micro-organisms, property or the environment.”

Article 21 of the Constitution envisages a right to life and personal liberty of a person. The
word “Life” under Article 21 means a quality of life, which includes right of food, and
reasonable accommodation to live in73 and the right to a wholesome environment. Also
ICCPR16, UDHR17 and ICESCR18 recognizes right to life and adequate standard of living.

In MC Mehta v. Union of India19 , the Supreme Court impliedly treated the right to live in
pollution free environment as a part of fundamental right to life under Article 21 of the
constitution. The right to live in a healthy environment was specifically declared to be a part
of article 21 of the constitution.

--MEMORIAL FOR THE PETITIONER—

13
AIR 1979 SC 321
14
ARVIND P DATAR, Commentary on the Constitution of India, WADHWA NAGPUR, (2nded: 2007)
15
THE ENVIRONMENT PROTECTION ACT, 1986
16
Article 6, ICCPR
17
Article 3, UDHR
18
Article 11, ICESCR
19
AIR 1987 SC 1086

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The court was conscious that the environment changes are the inevitable consequences of the
industrial development of our country, but at the same time the quality of environment cannot
be permitted by damaging the air, water and land to such an extent that it becomes a health
hazard for the residents of the area. Showing deep concern to the environment, the court
reiterated that every citizen has a right to fresh air and to live in a pollution free environment.

In Charal lal sahu v. Union of India 20 , the Supreme Court of India while upholding the
validity of the Bhopal Gas Leak disaster held that ‘in context of our national dimensions of
human rights, right to life, liberty, pollution free air and water is guaranteed by the
constitution under Article 21, 48-A and 51-A(g).

In Vellore citizens welfare forum v. Union of India, the Supreme Court held that in view of
the constitutional provisions contained in articles 21, 47, 48-A, 51-A (g) and other statutory
provisions contained in the Water Prevention and control of pollution Act, 1974, the Air
Prevention and control of pollution Act, 1981, and the Environment Protection Act, 1986, the
“precautionary principles” and the “polluter pays principle” are part of the environmental law
of the country. In other words, two basic principles of sustainable development can be
derived from various provisions including the right to life under Article 21 of the
Constitution21.

ISSUE – 3

Whether the Petition Filed by the Antonio and Others under Article 134 of the
Constitution of Indica is Maintainable before the Hon’ble Supreme Court
It is most humbly submitted before the Hon’ble Supreme Court of Indica that this Petition
is maintainable in this Court. Under Article 134 the Appellate jurisdiction by the
constitution of Indica . Further in the case Petition is maintainable as, firstly the petitioners
have locus standi to approach the hon’ble court.

--MEMORIAL FOR THE PETITIONER—

20
(1990) 1 SCC 613
21
Supra note 69 at 54

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 [3.1] The Petitioners have locus standi to approach the Hon’ble Court

It is humbly submitted that petitioners have locus standi to approach the hon’ble
Supreme Court of Indica as the rule of locus standi has been liberalized by the Supreme
Court in Indica of cases22. The prominent among which being S.P Gupta v. U.O.I23, in
which the court observed that “the court has to innovate new methods and devise new
strategies for the purpose of providing access to justice to large masses of the people
who are denied their basic human rights and to whom freedom and liberty have no
meaning.” It is humbly submitted that in the case at hand the subject-matter involves
the oil spill and gas leakage in territorial water of Indica and injuries of the fisherman
shot by the crewmember of the Laviathan Ship.

ISSUE – 4

Whether the Country USB without Being Member of UNCLOS is bound by its
Provision

The Country USB has not the member of United Nations Convention on the Law of the
Sea (UNCLOS). In the North Sea Continental Shelf Cases,24 this Court held that a State
was under no obligation to heed the terms of an unratified treaty. Consequently, the
USB government is not bound by the terms of the UNCLOS. The duties placed on
States who have ratified the UNCLOS should not be applied to USB. It ought not to be
held liable for any perceived non-compliance with the provisions of the UNCLOS.

Article 194 of the UNCLOS, for example, addresses measures to prevent, reduce and
control pollution of the marine environment. It imposes on States a duty to police or
regulate, to the fullest possible extent, activities which may result in the pollution of the
marine environment 25.

--MEMORIAL FOR THE PETITIONER—

22
Bandhua Mukti Morcha v. Union of India &Ors, (1997) 10 S.C.C. 549; M.C. Mehta v. Union of India
& Others, (1987) 4 S.C.C. 463; Rajeev Kumar and ors. v. The State of U.P. Through Principal Secretary,
Ministry of Sugarcane Development and ors., 2006 (1) A.W.C. 34; New Sun Education Society (Regd.)
Through Its Secretary Sri Haji Muqeet Ali v. State of Uttar Pradesh Through Secretary, Department of
Home and ors., 2008 (2) A.W.C. 1186; Professor G.K. Rai v. Chancellor, University of Allahabad and
ors., (2004) 2 U.P.L.B.E.C. 1691
23
A.I.R. 1982 S.C. 149; 1981 Supp S.C
24
North Sea Continental Shelf Cases, 1969, pp.3, 25; 41 ILR, pp 29, 54.
25
Art.194(3).

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Here, the UNCLOS require Member of the State in order for the treaty to become
obligatory26. While USB is not the Member of UNCLOS. USB consent to be bound by
the UNCLOS is therefore not yet effective. Consequently, USB is not yet bound by,
and cannot be held liable for damages under the UNCLOS.

ISSUE – 5

Whether the Antanio and Others Are Liable for the Injury of the Fisherman

Antanio and others are not Liable for the injury of the fisherman because their conduct
are Bona fide in nature they acted in good faith that they thought that fisherman were
pirates and they shooted them they don’t have any type of criminal intention or
knowledge regarding their conduct. Their whole intention and conduct of them is to
save their ship from the pirates. Antonio and others isn’t liable for injury of the
fisherman or aiming directly at the fishing boat.

In the case of state of Orissa v. Ram Bahadur Thapa 27 On the aforesaid facts the respondent
was charged under Section 302 I.P.C. for the murder of Gelhi Majhiani, under Section
326 I.P.C. for having caused grievous hurt to victim under Section 324 I.P.C. for having
caused hurt to Krishna Chandra Patrol. The learned Sessions Judge held that the respondent
committed the said acts, under a bona fide mistake of fact, thinking that he was attacking
ghosts and not human beings and hence he acquitted him relying on Section 79 I.P.C.

In this case that the respondent had neither the necessary criminal intention or knowledge and
it was fairly conceded by the learned Standing Counsel that when the respondent attacked his
victims he thought he was attacking ghosts and not human beings.

The two leading decisions on the question of criminal liability where a person kills what he
considers to be ghosts are Waryam Singh v. Emperor28, and Bouda Kui v. Emperor29.

--MEMORIAL FOR THE PETITIONER—

26
UNCLOS, Art.306.
27
AIR 1960 Ori 161, 1960 CriLJ 1349
28
AIR 1926 Lah 554
29
AIR 1943 Pat 64

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In these two cases also, if the assailant had taken special care to ascertain who the person
assailed was, he would have easily known that he was attacking a human being and not a
ghost. Neverthless the High Court held that the assailant was protected by Section 79 I.P.C.
because, from the circumstances under which the apparition appeared before him and his pre-
disposition, it would be reasonably inferred that he believed, in good faith, that he was
attacking a ghost and not a human being. There may be slight difference on facts between
these cases and the instant case. But on the evidence of the prosecution witnesses it is clear
that the respondent is protected by Section 79 I.P.C. The mere fact that had he exercised extra
care and attention the incident might have been averted is no ground for denying him the
protection of that section.

--MEMORIAL FOR THE PETITIONER—

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 PRAYER

In the light of the issues raised, arguments advanced and the authorities cited the Petitioners
humbly prayed that this Hon’ble Court may kindly adjudge and declare that:

1. The Writ Petition Under Article 32 is Maintainable:

2. The Union of Indica is failed to protect or provide free and healthy environment to its
citizen:
3. The petition filed by Antonio and others is Maintainable under Article 134:
4. The USB is not bound by the provision of UNCLOS:
5. Antonio and others is not Liable for the Injury of the Fisherman:

And may kindly pass any order that this Hon’ble court may deem fit.

Respectfully submitted

Sd/-

(Counsel for the Petitioners)

--MEMORIAL FOR THE PETITIONER—

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