MEMORANDUM for PETITIONER [TABLE OF ABBREVIATIONS]

IMCC:033

NUALS INTERNAL MOOT COURT COMPETITION,2023

Before

THE SUPREME COURT OF INDISTAN

O.A.No___of 2023
INDISTAN YOUNG LAWYERS
ASSOCIATION……………………………….………….................................PETITIONER
V
UNION OF
INDISTAN…………………….…….….....................….........….……………RESPONDENT

PETITION INVOKED UNDER ART. 32 OF THE CONSTITUTION OF INDISTAN

ABOVE MENTIONED PETITIONS HAVE BEEN ENTERTAINED AS PIL ON THE

DIRECTIVE
OF THE HON’BLE SUPREME COURT OF INDISTAN

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORANDUM for PETITIONER [TABLE OF CONTENTS]

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS........................................................................................... 4

INDEX OF AUTHORITIES...............................................................................................5-7

STATEMENT OF JURISDICTION....................................................................................8

STATEMENT OF FACTS..................................................................................................9-10

ISSUES RAISED...................................................................................................................11

SUMMARY OF ARGUMENTS......................................................................................12-13

ARGUMENTS ADVANCED.............................................................................................1-14

I. WHETHER THE FOREST CONSERVATION (AMENDMENT)

ACT,2023 IS UNCONSTITUTIONAL?...........................................................1
1.1Whether the Forest Conservation (Amendment) Act,2023 violates Fundamental

Rights enshrined in the Part III of Constitution…………………………………………...1

1.1.1Whether or not the Act violates Art. 14 of the Constitution of Indica………….1-2

1.1.2Whether or not the Act violates Art. 19 of the Constitution of Indica…………....2
1.1.3Whether or not the Act violates Art. 21 of the Constitution of Indistan………...2-3

1.2. Whether The Act Violates The Federal Structure Of The Constitution……………4

1.2.1Whether the Act Violates 243A of the Constitution of Indistan……………………..5

1.2.2Whether the Act violates the provisions of Shedule VII of the Constitution of
Indistan………………………………………………………………………………………….6
1.2.3Whether the Act is violative of provisions enshrined in Shedule VII………………7

II WHETHER THE EVICTION PROCESS VIOLATED ANY

FUNDAMENTAL RIGHTS…………………………………………………...8
2.1. The process violates Article 14………………………………………………………….8

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MEMORANDUM for PETITIONER [TABLE OF CONTENTS]

2.2 The process violates Article 19……………………………………………….…….....8-9

2.3 The process violates Article 21……………………………………………………….9-10

2.3.1 The process was violative of The Right To Fair Compensation And Transparency In

Land Acquisition, Rehabilitation And Resettlement Act, 2013…………………………………12

2.3.2 The process was violative of Sheduled Tribes and Other Forest Dwellers Act

2006……………………………………………………………………………………….13-14

PRAYER..................................................................................................................................15

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MEMORANDUM for PETITIONER [TABLE OF ABBREVIATIONS]

TABLE OF ABBREVIATIONS

Abbreviations Expansions

¶ Paragraph

§/SEC. Section

& And

AIR All India Reporter

HC High Court

Ors. Others

Anr. Another

Art. Article

Govt. Government

HON’BLE Honourable

SC Supreme Court

SCC Supreme Court Cases

Ltd. Limited

ILR Indian Law Report

No. Number

W.P. Writ Petition

Const. Constitution

UOI Union of India

v. Versus

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MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

STATUES

1. Forest Conservation Act,1980

2. Forest Conservation Amendment Act,2023

3. Sheduled Tribes and Other Forest Dwellers Act 2006

4. The Right To Fair Compensation And Transparency In Land Acquisition,

Rehabilitation And Resettlement Act, 2013

BOOKS

1. V. N. SHUKLA, CONSTITUTION OF INDIA (13th Ed., 2019)

2. P. M. BAKSHI, CONSTITUTION OF INDIA (13th Ed., 2015)

3. M. P. JAIN, CONSTITUTION OF INDIA (8th Ed., 2022)

CASE LIST

1. Golak Nath v. State of Punjab, AIR 1967 SC 1643.

2. M Nagaraj V Union of India AIR 2007 SC 71

3. TN Godavarman Tirumulkpad v.UOI SCC 267

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MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

4. State of Madhya Pradesh vs Bhart Sing AIR 1967 SC 1170

5. Papnasam Labour Union vs Madhura coats AIR 1995 SC 123

6. AK Gopalan v State of Madras AIR 1950 SC 27

7. Bandua Mukti Morcha v UOI AIR 1997 SC 1461

8. OlgaTellis v. Bombay Municipal Corporation 1986 AIR 180

9. Kesavananda Bharati v UOI AIR 1973 SC 1461

10. Minerva Mills & Ors v UOI AIR 1980 SC 1789

11. Orissa Mining Corporation v. Ministry of Environment & (Civil) No 180 of 2011

Forest & Others

12. Daram Dutt v Union of India AIR 2004 SC 1295

13. Ashutosh Gupta v. State of Rajasthan AIR 2002 SC 1533

14. Jagannath Prasad vs state of Uttar Pradesh AIR 1961 SC 1245

15. Jaila, Singh v. State of Rajasthan AIR 1075 SC 1436

16. Laxmi Kandsari vs state of Uttar Pradesh AIR 1981 SC 873

17. Samatha v.State of AP & Ors. AIR 1997 SC 3297

18. T.N Godavarman Thirumulkpad v.UOI 1997 SCC 267

19. Kharak singh vs state of uttar Pradesh AIR 1963 SC 1295

20. Dr N B Khare vs state of delhi AIR 1950 SC 211

21. Francis Coralie Mullin Vsd Union Territory Of Delhi AIR 1981 SC 746

22. State Of Maharashtra Vs Chandrabhan AIR 1983 SC 803

23. Nshakar Khatua Vs State Of Orissa 2012(1) ILR -CUT 19

24. Samath Vs State Of Andra Pradesh AIR 1997 SC 3297

25. Narmada Bachao Andholan v UOI JT 1998 (6) SC 416, 1999

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MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

26. GujaratPradesh Panjayath Parishad v State of Gujarat (2003) 1 GLR 633

27. SR Bommai v UOI AIR 1918, 1994 SCC

WEB SOURCES

1. www.manupatrafast.com (MANUPATRA)

2. www.scconline.co.in (SCC ONLINE)

3. www. judis. nic.in (SUPREME COURT OF INDIA OFFICIAL)

4. www. aironline.in (ALL INDIA REPORTER)

5. www.scobserver.in (SUPREME COURT OBSERVER)

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MEMORANDUM for PETITIONER [STATEMENT OF FACTS]

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Court, invoking the extraordinary jurisdiction of
the Hon’ble Supreme Court of Indistan under Arts. 32 of the Constitution of Indistan.

Art. 32 of the Constitution is reproduced hereunder:

“32. Remedies for enforcement of rights conferred by this Part –

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement

of the rights conferred by this Part is guaranteed.1

(2) The Supreme Court shall have the 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.”2

1
INDIA CONST. art. 32, § 1.
2
Id. at 32 (2).

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MEMORANDUM for PETITIONER [STATEMENT OF FACTS]

STATEMENT OF FACTS

PROLOGUE

Indistan is a Sovereign, Socialist Democratic Republic with a liberal Constitution guaranteeing

elaborate fundamental rights, including recognition of community rights. Indistan is affluent
with natural resources, including widespread forest cover distributed along the territory.

NATURE OF CONSTITUITION

It is a is a Federal Republic that adheres to the idea of decentralization of power. It is also

considered to be a basic feature of the Indistan Constitution which cannot be amended by the
parliament

.NATURE OF POPULATION

The population of Indistan consists of rich cultural diversity, with innumerable indigenous
communities.Indistan is affluent with natural resources, including widespread forest cover
distributed along the territory. These forests are inhabited by many endangered species of plants
and animals, which the State has recognized and is under their active protection

FOREST CONSERVATION LEGISLATION(S)

In 1980, the Indistan Government enacted the Indistan Forest (Conservation) Act, with the
primary objective of safeguarding and conserving the nation's forests. Key provisions,
specifically Sections 2 and 3, imposed restrictions on the de-reservation of forest land for non-
forest purposes.

Recognizing the symbiotic relationship between forests and indigenous communities, the
Union Government passed the Indistan Scheduled Tribes and Other Forest Dwellers
(Recognition of Forest Rights) Act in 2006. Under Section 3 of this Act, the Union Government
could permit the diversion of forest land for essential facilities such as schools, hospitals, and
roads. Section 6 established a democratic process involving Gram Sabhas and committees to
decide on such diversions, ensuring the recognition of forest dwellers' rights.

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In February 2023 the Indistan s parliament passed the Forest Conservation (Amendment)Act
2023. The Amendment, as it stands, fundamentally alters the landscape of forest policy in
Indistan. It grants extensive powers to the Union Government, allowing for the easier
installation of structures and facilities deemed essential for national security and societal
development. Most notably, the Amendment permits the eviction of forest dwellers from areas
earmarked for development projects and allows for forest land diversion by a Central
Committee without prior approval from the authorities established under the 2006 Forest
Rights Act.

CASE BEFORE THE SUPREME COURT

In August 2023, the Indistan Young Lawyers Association, an activist group, filed a Public
Interest Litigation before the Supreme Court of Indistan. The case challenges the constitutional
validity of the Forest Conservation (Amendment) Act, 2023, which was passed by the
Parliament in February 2023.

The Indistan Young Lawyers Association argues that this Amendment infringes upon the basic
fundamental rights guaranteed to indigenous communities under Article 21 of the Constitution.
They also contend that it undermines the federal features of Indistan's governance structure by
centralizing power.

The Union Government's response defends the Amendment, asserting its alignment with
Indistan's cultural and environmental values, its necessity for combating left extremism, and
the absence of a fundamental right to property.

The Supreme Court accepted the Public Interest Litigation and seeks to address the key
questions at hand, including the constitutionality of the Amendment and the potential violation
of fundamental rights, particularly those of the indigenous communities affected by the
eviction.

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MEMORANDUM for PETITIONER [ISSUES RAISED]

ISSUES RAISED

ISSUE 1

Whether the Forest Conservation (Amendment) Act,2023 is unconstitutional?

ISSUE 2

Whether there is a fundamental right violation with regard to the Indigenous

communities with their eviction?

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

SUMMARY OF ARGUMENTS

[1] Whether the Forest Conservation (Amendment) Act,2023 is unconstitutional?

The arguments challenging the constitutionality of the Forest Conservation (Amendment) Act,

2023 in India revolve around multiple facets. Firstly, it is contended that the Act violates

Fundamental Rights enshrined in Part III of the Constitution, especially under Article 13(2), as

it curtails these rights in contrast to established Supreme Court precedents. Secondly, the Act

is criticized for breaching Article 14 by being arbitrary and enabling unchecked diversion of

forest lands. Thirdly, the Act is alleged to infringe on Article 19, impacting the right to reside

anywhere in India, as its provisions are seen as unreasonable and harmful to biodiversity.

Additionally, it is argued that the Act violates Article 21 by potentially evicting forest dwellers

without due process. The Act's undermining of India's federal structure is another focal point,

as it concentrates excessive powers in the Central Government, despite forests being a

Concurrent List matter, and infringes upon the principles of decentralization outlined in Article

243A and Article 243G. Furthermore, it is contended that the Act may violate the Basic

Structure Doctrine, particularly its federal character. Lastly, it is suggested that the Act breaches

Article 243G by disregarding local authorities and their consent in cases of eviction,

undermining the principles of decentralization and local self-governance, and also potentially

conflicting with the distribution of legislative powers detailed in Schedule VII.

[2] Whether there is a fundamental right violation with regard to the Indigenous

communities with their eviction?

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

The arguments in Issue 2 contest the eviction of indigenous communities and its potential

infringement on Fundamental Rights in India. Firstly, it is asserted that the eviction violates

Article 14 by treating the impoverished indigenous community differently and without due

consideration. It is also argued that the eviction lacks reasonableness and equality, particularly

as certain provisions in the Forest Conservation (Amendment) Act, 2023 arbitrarily classify

land and disregard the protection of previously conserved forest areas. Secondly, the eviction

is alleged to breach Article 19 as it disrupts the livelihoods and freedom of movement and

residence of the indigenous Irular community, impacting their rights under Article 19(d), (e),

and (f). Lastly, it is contended that the eviction process violates Article 21 by depriving the

community of its right to livelihood and lacking due process, including notice and fair hearing.

Additionally, violations of The Right To Fair Compensation And Transparency In Land

Acquisition, Rehabilitation And Resettlement Act, 2013, and the Scheduled Tribes and Other

Forest Dwellers Act 2006 are claimed, indicating inadequate rehabilitation and disregard for

the rights of forest-dwelling communitie

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

[1] WHETHER THE FOREST CONSERVATION (AMENDMENT) ACT,2023 IS

UNCONSTITUTIONAL?

1.1. Whether the Forest Conservation (Amendment) Act,2023 violates Fundamental Rights

enshrined in the Part III of Constitution.

¶1. It is humbly submitted before the Court that the legislation recently passed by the
parliament namely: Forest Conservation (Amendment) Act,2023 is unconstitutional and
ultra wires the constitution of Indistan. It is submitted by the Petitioners that the present Act
which has been brought into power by the Parliament of Indistan is in contravention of the
Fundamental Rights which is contained in Part III of the Constitution

¶2. Further, Art. 13(2)3 provides that the law shall be void to the extent of the contravention.
Now contravention in the context takes place only once when the law is made, for contravention
is the prohibition to make any law that takes away or abridges Fundamental Rights. This
Hon’ble Court has already made it clear in the Golaknath v. State of Punjab4 where it held
that “The Parliament possesses no right to curtail any of the Fundamental Rights in the
Constitution.” Nevertheless, the parliament of Indistan has brought in the Forest Conservation
(Amendment) Act,2023 which is violative of the Fundamental Rights of the individuals of
Indistan.

1.1.1 Whether or not the Act violates Art. 14 of the Constitution of Indica

¶3. It is humbly submitted before the honourable court that the provisions of the impugned Act
is arbitrary and violative of the Art.145 of the constitution of Indistan. The constitutional bench
of Sc in the case of M Nagaraj V Union of India6 has expanded the scope of Article 14 and

3
INDIA CONST. Art. 13(2)
4
Golak Nath v. State of Punjab, AIR 1967 SC 1643.
5
INDIA CONST.Art.14
6
M Nagaraj V Union of India, AIR 2007 SC 71

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had recognised the principles to comprehend the doctrine of Promissory estopple,non

arbitrariness, compliance with rules of natural justice eschewing rationality etc

¶4. The Section 4 (1A)7 a of the act arbitrary classifies certain lands as not covered under the
provisions of the act ,so that the Central Govt gets the power to classify such exceptions to be
used for non-forest purposes, which defeats the purpose for which the act was made. Thereby,
resulting in exploitation of such forested lands by allowing unchecked diversion of forest lands
without any assessment and mitigation plan which is a threat to biodiversity. It will also
increase the vulnerability of geologically sensitive areas which are already threatened by
unsustainable infrastructure developments and extreme weather events. A basic and obvious
test to be applied in cases where administrative action is attacked as arbitrary is to see whether
there is any discernible principle emerging from the impugned action and if so does it really
satisfy the test of reasonableness8. Thus, it satisfies the test of reasonableness

¶5. Section 6of the amendment act inserted section 3C9in the parent act which is read as
follows“. The Central Government may, from time to time, issue such directions, to any
authority under the Central Government, State Government or Union territory Administration,
or to any organisation, entity or body recognised by the Central Government, State
Government or Union territory Administration, as may be necessary for the implementation of
this Act. “This provision is arbitrary since it enables the Union govt to evict forest dwellers
from areas that are identified as areas for development projects.10

¶6. Additionally, the amendment also proposes to redefine the ambit of “non-forest purpose”
exemptions under section 2 of the FCA. This allows enumerated activities to be carried out on
the forest land without prior approval of the central government. It includes ‘silviculture’, the
establishment of a zoo/safari, ‘ecotourism facilities’ included in the Forest Working
Plan/Wildlife Management Plan/Tiger Conservation Plan; or ‘any other like purposes’
ordered/ specified by the Centre, under the ambit of "non-forest purpose". "Using terms like
‘proposed’, ‘ecotourism facilities’, and ‘any other purposes’ 11
are too vague and can be
exploited or misused for activities damaging forests and ecosystems in forest lands making it

7
Forest Conservstion (Amendment)Act §4 1A, No.10, Acts of Parliament, 2007,(India)
8
Renu v District and sessions judge Tisshassari Civil Appeal no:979 2014
9
Forest Conservation Amendment Act §5 II No.10, Acts of Parliament, 2007,(India)
10
Moot prop
11
Forest Conservation Amendment Act

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further arbitrary and unreasonable. “It does away with recognizing forests as per dictionary
meaning in accordance with the TN Godavarman judgment12

1.1.2. Whether or not the Act violates Art. 19 of the Constitution of Indica

¶7. The provisions of the FCA are violative of Art.19(e)13 [To reside and settle in any part of
territory of India]. The Act includes provisions that are overly broad, arbitrary, or excessive in
relation to the objective of forest conservation, it does not meet the criteria of reasonable
restrictions. Rather it shows the legislature intend in unchecked diversion of forest lands
without any assessment and mitigation plan which is a threat to biodiversity. (1A-1&2-Forest
Conservation Amendment Act)
¶8. In the case, State of Madhya Pradesh vs Bhart Sing14, the Supreme Court has declared
that the state law that authorized the district magistrate to require a person to live, or not live,
at a particular place was unreasonable on the ground that the law required a person to reside at
any place, without giving him hearing before selecting a place for him and also there was no
provision for providing him with a residence or means of livelihood in the place selected for
him for the residence15. Comparing the case with the instant matter, the amendment act gives
the union government arbitrary power to evict the indigenous people without any prior approval
or proper awareness which eventually violates the indigenous people’s right to reside. As we
apply the precedent above to the current case scenario it is understood that the amendment
violates the article 19, thus making the amendment unconstitutional
The impugned act does not meet the test of reasonableness as it has arbitrarily classified the
land under provision and not under the provision without any rational reason or nexus as
mentioned in the case Papnasam Labour Union vs Madhura coats 16

1.1.2. Whether or not the Act violates Art. 21 of the Constitution of Indistan.

¶9. The Petitioner humbly submits that the provisions of the impugned Act Section 1A(2)17
violate Art. 2118of the Const, which lays down that no person shall be deprived of his life or
personal liberty expect according the procedure established by law .In the case of AK Gopalan

12
TN Godavarman Tirumulkpad v.UOI (1997) 2 SCC 267
13
INDIA CONST.Art.19(e)
14
State of Madhya Pradesh vs Bhart Sing,AIR 1170 SCR (2) 454
15
State of Madhya Pradesh vs Bhart Sing, AIR 1967 SC 1170
16
Papnasam Labour Union vs Madhura coats, AIR 1995 SC 123
17
Forest Conservstion (Amendment)Act §4(2), No.10, Acts of Parliament, 2007, (India)
18
INDIA CONST.Art.21

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v State of Madras19the SC clarified that law in Art.21 does not mean merely enacted law but
incorporates principles of natural justice so that a law to deprive a person of his life or
personal liberty cannot be valid unless it incorporates these principles in the procedure laid
down by it20.

¶10. The impugned Amendment enables the Union government to evict forest dwellers from
areas that are identified for using development projects 21.This can lead to consequential
environmental destructing activities damaging forests and ecosystems in forest lands like
deforestation, loss of biodiversity, Loss of livelihood of local people and ethnic tribes rooting
from eviction, unhealthy environment(Bandua Mukti Morcha v UOI)22-the court developed
the concept of right to healthy environment as part of right to life) which is not fair and
unreasonable.

¶11. The Amendment seeks to redefine the purview of Forest lands in order to exempt certain
landa from such definition including plantation. Further the amendments also increased the
possibilities of forest exploitation by giving permission to private and capital-oriented
companies or firms to use forest land for ecotourism and the development of other
infrastructural facilities for tourist recreation which promotes corporate interests to a larger
extent and plunder the sources of livelihood of the marginalised, poor and uneducated tribal
communities. In the case of OlgaTellis v. Bombay Municipal Corporation (1985)23,the
Supreme Court recognized the right to livelihood as an integral part of the right to life under
Article 21.

1.2. WHETHER THE ACT VIOLATES THE FEDERAL STRUCTURE OF

THE CONSTITUION

¶12. Indistan is a Federal Republic that adheres to the idea of decentralization of power which
made them bring about a Constitutional Amendment in 1992 to provide more legislative and
administrative powers to the Municipalities and Panchayats, which are considered as the lowest
unit of the democracy in the country. It is also considered to be a basic feature of the Indistan
Constitution which cannot be amended by the parliament.24

19
AK Gopalan v State of Madras, AIR 1950 SC 27
20
INDIA CONST.Art.21
21
Moot Prop
22
Bandua Mukti Morcha v UOI (1997)10 SCC 549
23
OlgaTellis v. Bombay Municipal Corporation 1986 AIR 180
24
Moot prop

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¶13. The Act in question is contrary to the concept of Federalism, which forms an essential
part of the constitutional framework of Indistan. By conferring excessive powers upon the
Central Government, despite Forests falling under the Concurrent List in the seventh schedule,
the Act undermines the principles of power division outlined in Schedule 7. Moreover, it is
contended that the Act violates the provisions of Article 243A & Article 243G of the Indistan
Constitution, thereby infringing upon the principles of decentralization of power brought in by
the enactment of The Panjayathi Raj Act.

1.2.1 Whether The Provisions Of The Act are Violative Of The Basic Structure
Doctrine

¶14. In the The Kesavananda Bharati 25case the SC held that the basic structure of the Indian
Constitution could not be abrogated even by a constitutional amendment. The basic structure
doctrine has been further reaffirmed in the Minerva Mills case of 1980 26and the Waman Rao
case of 1981 27
wherein amendments held to be violative of the Indian constitution’s basic
structure were struck down. The Federal Character of the Constitution was one of the basic
structures listed in the Kesavananda Bharati judgement. In IR Coelho v State of Tamil Naidu
200728(known as the 9th schedule case), of state laws to central laws. The Court emphasized
that the Constitution establishes a federal structure with a division of powers, and both the
Union and the states have their respective legislative authority. In SR Bommai vs UOI,the SC
reiterated that the essence of a federation is the existence of the Union and the States, as well as the
distribution of powers between them29. Federalism thus entails the separation of powers in a federal
accord

¶15.The impugned Act allows for diversion of forest lands by a Central Committee appointed
by the Union Government, without prior approval of the local government bodies and the
authorities established by the Indistan Scheduled Tribes and Other Forest Dwellers
(Recognition of Forest Rights) Act in 2006. This creates a situation wherein the Central
Government can take decisions without considering the needs of the affected communities with
a disregard for democratic decision-making. Thus, this is a clear hijacking of power by the
Union government from the local government and thus a threat to the nation’s federal features.

25
The Kesavananda Bharati v UOI (1973) AIR 1973 SC 1461
26
Minerva Mills & Ors v UOI (1980) AIR 1980 SC 1789
27
Waman Rao & Ors v UOI (1981) 2 SCC 362
28
IR Coelho v State of Tamil Naidu (2007) AIR 2007 SC 861
29
SR Bommai v UOI 1994 AIR 1918, 1994 SCC

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1.2.2 Whether the Act is violative of Article 243G

¶16. Article 243G empowers the state legislature to pass laws granting panchayats the
necessary powers and authority to function effectively as self-governing institutions. Such a
law may contain provisions for the devolution of powers and responsibilities upon panchayaths
with respect to (a)the preparation plan for the economic development and social justice (b) the
implementation of the schemes for the economic development and social justice as may be
entrusted to them including those in relation to the matters listed in the XI Schedule of the
constitution30

¶17. The act of the central govt gives the Union govt the powers to evict forest dwellers from
areas that are identified for development projects by a central committee appointed by the
Union govt without prior approval of the Local authorities. The act of non-consulting the
concerned local authorities (Gram Sabha)as given by the Forest Rights Act 2006,goes against
the principles laid down by 73rd Ammendment.Since Panjayat Raj falls under 9th
schedule,violating the basic principle underlying this act is a violation of Basic Structure
doctrine. In Orissa Mining Corporation Ltd vs Ministry Of Environment & Forest case31
the court recognized their cultural, religious and spiritual rights on the Niyamgiri Hill, over
Vedanta Company’s claim to exploit the hills for bauxite. Importantly, the Gram Sabha was
given the authority to examine possible infringements on their rights.

¶18. It is humbly submitted before the court that the above-mentioned act violates article 243G
of the constitution of Indistan. In the case of Gujarat Pradesh Panchayath Parishadn vs State
of Gujarat32 it was pointed out that the what was sought to done by the seventy- third
Amendments which inserted Part IX was to confer constitutional status on District Panchayath,
Taluk Panchayath and Village Panchayath as instruments of local self-government33.The facts
of the case clearly states that the amendment enables the union government to evict the forest
dwellers from the areas that are identified for the developmental projects , without the prior
consent of the authorities established under the Indistan Scheduled Tribes and Other Forest

30
INDIA CONST.Art.243G
31
Orissa Mining Corporation v. Ministry of Environment & Forest & Others WP (Civil) No 180 of 2011
32
Gujarat Pradesh Panjayath Parishad v State of Gujarat (2003) 1 GLR 633
33
Mp Jain, Const. of India

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Dwellers (Recognition of Forest Rights) Act in 2006 is a clear violation of Art. 243G of the
constitution of Indistan.

1.2.3 Whether the Act violates the provisions of Shedule VII of the Constitution of Indistan

¶19.The crux, the pivotal point, of a federal constitution is the division of powers and functions
between the centre and the regions. The distribution of legislative powers between centre and
the regions is the most important characteristic of a federal constitution. The whole structure
of the federal system continue to revolve around this central point.34Under the 7th shedule there
is threefold distribution of legislative power between union and the states, made by 3 lists of
the constitution

¶20. Art 246(2) confers concurrent powers of legislature on both the centre and the states with
respect to the matters enumerated in the Concurrent list35(List III of the seventh schedule
).Forest comes under Entry17 A.It was transferred from List 2(State list)to list 3 by realising
the importance of conservation of forest and wildlife because the parliament felt that from an
administrative point of view these matters are best handled by decentralisation of powers
between the union and the state.36Though the scheme of our constitution is to secure a
constitutionally strong centre it has been clarified by the Sc decisions that it does not mean
giving Central supremacy always (IR Coelho v State of Tamil Naidu37).Since the impugned act
comes under the ambit of Concurrent List, the excessive power of the Union govt to evict the
forest dwellers from the areas that are identified for the developmental projects , without the
prior consent of the State authorities is not a proper realisation of of the Centre s concurrent
power.

34
Daram Dutt v Union of India AIR 2004 SC 1295
35
INDIA CONST.Art.246(2)
36
Mp Jain,Constitution of India
37
Supra note 29

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ISSUE 2

[2] WHETHER EVICTION OF INDIGENOUS COMMUNITIES VIOLATES

FUNDAMENTAL RIGHTS ?

2.1. The process violates Article 14

¶21. It is humbly submitted before the court that the eviction of the indigenous people has
breached Article 14 of the constitution of Indistan. The doctrine of equality before the law is a
necessary corollary Rule of law that pervades the Indian constitution38. The underlying object
of Article 14 is to secure to all persons, citizens or non-citizens, the equality of status and
opportunity referred to in the preamble of the constitution39. It does not necessarily imply that
all citizens should be subject to the same laws, or all laws in the nation must be equally
applicable regardless of differences of circumstances. It implies that among equals the law
should be equal and equally administered and that the like should be treated alike without
distinction of race, religion, wealth, social status, or political influence40.

¶22. The State Government of Keranadu has identified people who are under extreme poverty
and starvation, as they are struggling to adjust to the changes in society41. The statement clearly
conveys that they should be treated differently and should be given care as they are integrating
with society slowly42, considering this it is clearly understood that the actions of the
government have violated the essence of Article 14 by evicting the indigenous community from
Keranadu.

Violation of the test of equality and reasonableness

38
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34: AIR 2002 SC 1533.
39
Natural Resources Allocations, In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1 (77) : 2012 AIR
SCW 6194: 2012 9 SCALE 310
40
Jagannath Prasad vs state of Uttar Pradesh, AIR 1961 SC 1245 : (1962) 1 SCR 151; Mohd. Shabeb Mahboob
vs Dy Custodian, AIR 1961 SCC 1657 : (1963) 2 SCR 371.
41
Moot prop
42
Moot prop

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¶23. It is humbly submitted before the court that the eviction of the indigenous people by the
government failed to meet the test of reasonableness and eventually the test of equality given
by the law. To attract Article 14 it is necessary to show the selection or differentiation is
unreasonable or arbitrary: that it does not rest on any rational basis having regard to the object
which the legislature has in view in making the law in question43. In section 4(2) of the
impugned Amendment Act, it is stated that the forest land which is proposed to be used for the
construction of defence-related projects or a camp for paramilitary forces or public utility
projects, as may be specified by the Central Government will not be covered under the
provisions of the forest conservation Act which does not have a reasonable nexus.

¶24. As stated in the facts, Indistan is affluent with natural resources, including widespread forest
cover distributed along the territory. These forests are inhabited by many endangered species of
plants and animals, which the State has recognized and is under active protection. 44 The differentia
adopted as the basis of classification must have rational or reasonable nexus with the object sought
to be achieved by the statute in question.45 The differentiation between the land under protection
and the land which does not come under the conservation Act is arbitrary,it is disregarding the
forest land that was before under active protection. The act has completely disregarded the fact that
the forest land given for defence-related projects which are protected because of the natural
resources, rich culture, and various other factors. The amendment further disrupts the sole aim of
the act to protect and conserve the forest across the country. 46

¶25. Secondly, eviction of the Indigenous community has arbitrarily neglected the rights of the
tribal people, also it disregarded the fact that the movement of non-tribals is restricted to tribal
people's area, so as to avoid their exploitation47, thus the act fails to meet the test of reasonableness
under Article 14 of the constitution. The eviction has resulted in the arbitrary classification of the
Irular community.

43
Jaila, Singh v. State of Rajasthan, AIR 1075 SC 1436 : (1976) I SCC 682. But when charge of discrimination
was made for treating diploma holders and degree holders in the same category, the Supreme Court held that
Art, 4 cannot be stretched too far as it will paralyze the administration and repelled in challenge. Dilip Kumar
Garg v. State of Uttar Pradesh, (2009) 4 SCC 753 : (2009)
3 JT 202.
44
Moot prop
45
Laxmi Kandsari vs state of Uttar Pradesh, AIR 1981 SC 873, 891 : (1981) 2 SCC 600. Test for the valid
classification restated.
46
Moot prop
47
Samatha v.State of AP & Ors. AIR 1997 SC 3297, T.N Godavarman Thirumulkpad v.UOI, (1997) 2 SCC 267.

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2.2 The process violates Article 19

¶26. It is humbly submitted before the court that the eviction of the Irular community has
violated Article 19 of the constitution. The eviction of the indigenous community has resulted
in the disturbance of their livelihood, trade, and occupation as the lifestyle of the community is
closely intertwined with the forest and its ecosystem. This action of the government had resulted
in violation of clause (d),(e) and (f) of Article 19.

Eviction of the Irular community in contravention of the right to movement and residence

¶27. The right to free movement and the right of residence is protected under the constitution
of Indistan48. The eviction has resulted in the violation of Article 19(d) and (e) simultaneously
as both of the rights go together when a person is asked to quit a particular place.49

¶28. Although the rights are not absolute and come with some of reasonable restriction, the
scope of the right of movement is much wider as the word ‘freely’ has been used, which gives
more scope for interpretation50. The restriction to be imposed on the citizen's right to move
freely or of residence needs to be backed up by the law under article 19(5) of the constitution
and the circumstances or manner in which restrictions are put also constitute an important
component of reasonableness.51 The reasonable restriction provided under the article provides
dual grounds for imposing reasonable restrictions on this freedom, namely, the interests of the
general public and the protection of the interests of any scheduled tribe. The eviction has
clearly violated the reasonable restriction given under Article 19(5) as it states that the
restriction should protect the interest of the scheduled tribe52. The eviction in fact completely
disregarded the interests of the indigenous people to live by their ancestral values and norms
closer to the forest areas by evicting and providing temporary settlements on the outskirts of
the nearby town.53

2.3 The process violates Article 21

¶29. It is humbly submitted before the court that Article 21 of the constitution is violated by
the impugned act. Article 21 lays down that no person shall be deprived of his life or personal

Indian constitution art 19(1)(d) & (e)

49
Mp Jain, Const. of India.
50
Kharak singh vs state of Uttar Pradesh, AIR 1963 SC 1295
51
Dr N B Khare vs state of Delhi AIR 1950 SC 211
52
INDIA CONST.Art.19 (5)
53
Moot Prop

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liberty except according to procedure established by law54. The phrase "procedure established
by law" appears in the provision most prominently.

Deprivation of livelihood of Irular community by the eviction

¶30. In the case, of Olga Tellis vs Bombay Municipal Corporation Supreme Court has
expanded the scope of the right to life to include right to livelihood in it 55 because Article 21
defines "life" as "something more than merely an animal existence."56

¶31. The eviction has resulted in the disruption of the livelihood of the people as they are
closely intertwined with the forest and its ecosystem, they are different from the mainstream
of the rest of the population57. The court has also held that depriving person of his land which
is the sole basis oh his income which provides for his family would violate Article 21, right to
livelihood.58 Furthermore, the court has held that the lands in tribal areas are preserved for the
social and economic empowerment of the tribal people59 which is a fundamental right under
Article 21, thus the eviction by the union government constitutes the violation of the right to
livelihood and Article 21.

The eviction failed to meet the element of due process of law

¶32. The word ‘due’ is interpreted to mean ‘just’, ‘proper’, or ‘reasonable’, according to the
judicial view, therefore the courts can pronounce whether the law affecting a person’s life,
liberty, or property is reasonable and the court may declare a law invalid if it does not accord
with its notion of what is just and fair in the circumstances. In the present case scenario, the
eviction was completely unreasonable and unjust to the scheduled tribe, thus The most
important word in this provision is procedure established by law.

¶33. It was contended in A. K. Gopalan vs. The Government Of India that the expression
procedure established by law was synonymous with the American concept of ‘procedural due
process and therefore, the reasonableness of any law affecting a person’s life or personal liberty
should be justifiable in order to access whether the person affected was given a right of fair
hearing, further the right to livelihood under the Article is violated by the eviction.

54
INDIA CONST.Art.21
55
Olga Tellis vs Bombay Municipal Corporation AIR 1986 SC 180
56
Francis Coralie Mullin SD Union Territory Of Delhi , AIR 1981 SC 746; State Of Maharashtra Vs
Chandrabhan, AIR 1983 SC 803
57
Moot Prop
58
Nshakar Khatua Vs State Of Orissa, 2012(1) ILR -CUT 19
59
Samath Vs State Of Andra Pradesh, AIR 1997 SC 3297

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¶34.Due process has two aspects: Substantive and Procedural. Procedural due process
envisages a reasonable procedure that a person affected should have the fair right of hearing
which includes four elements:(i)Notice,(ii)Opportunity to be heard,(iii)an impartial tribunal,
and (iv)an orderly procedure60. The eviction was done without any prior notice and without
any proper awareness. The act itself enables the union government to initiate the eviction
process without any prior notice of the responsible authorities, hence it is understood that the
eviction does not meet the components to uphold the ‘procedure established by law. Here the
indigenous people were evicted without proper awareness and time to cope with the sudden
changes61,thus the process of eviction clearly falls under (i).Further the process was continued
violating statues like - Right To Fair Compensation And TransparencyIn Land Acquisition,
Rehabilitation And Resettlement Act, 2013. and Shedule Tribes and Other Forest Dwellers
Act 2006,thus satisfying (iv).

2.1.1.The process was violative of The Right To Fair Compensation And Transparency In

Land Acquisition, Rehabilitation And Resettlement Act, 2013

¶35. It is humbly submitted before the honourable court that the eviction has violated the

provisions of The Right To Fair Compensation And Transparency In Land Acquisition,

Rehabilitation And Resettlement Act, 2013.The act was made with the aim Ensure fair land

acquisition with minimal disruption, just compensation, and rehabilitation, making affected

persons partners in development. The act covers the Scheduled Tribes and other traditional

forest dwellers, who have lost any forest rights recognised under the Scheduled Tribes and

Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

¶36. The eviction process carried down here is violative of Sections 41(1),(3),(5),(6),(7),(9)

and 42(3) which lays down special provisions for Shedule Tribes. These provisions realizes

Special provisions for Scheduled Castes and Scheduled Tribes include avoiding land

acquisition in Scheduled Areas whenever possible, obtaining prior consent from local

authorities, developing alternate resources, providing upfront compensation, prioritizing

60
Mp Jain, Constitution of India
61
Moot Prop

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resettlement in the same area, and nullifying illegal land alienation with benefits to original

owners.

¶37. In the present case before the court the Irular community was translocated without prior

consent and not considering any alternative options. They were not given proper rehabilitation

which led them to poverty and starvation. It is further stated in the facts that they were clueless

with little help from either the state or union government which supports the argument that

proper rehabilitation was not carried down. In Narmada Bachao Andolan vs UOI62 the SC

held that displacement of the tribals and other persons would not per se result in the violation

of their fundamental or other rights. The effect is to see that on their rehabilitation at new

locations they are better off than what they were. At the rehabilitation sites they will have more

and better amenities than which they enjoyed in their tribal hamlets. The gradual assimilation

in the mainstream of the society will lead to betterment and progress.”

2.1.2.The process was violative of Sheduled Tribes and Other Forest Dwellers Act

2006

¶38. It has been already submitted before this honourable court that silencing the provision in

the act that requires prior approval from authorities established under the act like Gram Sabha

distrurbs federalism. The aim of brining this act itself was to recognise the relationship between

livelihood of indigenous people residing in forests. Though the Amendment allows for the

diversion of forest lands by a Central Committee appointed by the Union Government, without prior

approval of the authorities established under the Indistan Scheduled Tribes and Other Forest Dwellers

(Recognition of Forest Rights, 2006.,there are other provisions of the act that has been violated by the

implementation of eviction carried one by such relaxation. The provisions of the act such as Chapter

II Section 3(a),(c),(i) which gives the beneficiaries of this act the right to rights to live on forest

62
Narmada Bachao Andholan v UOI JT 1998 (6) SC 416, 1999

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land, access minor forest produce, and manage community forest resources sustainably.; In the

present case the beneficiaries’ were restricted from entering the forest as a result of which they

couldn’t collect food63thus violating Section 3(a),(b)&(i) of the act.

63
Moot Prop

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MEMORANDUM for PETITIONER [PRAYER]

PRAYER

Wherefore in light of the facts stated, issues raised, arguments advanced, authorities cited,

submissions made hereto above and those to be urged at the time of the hearing, it is humbly

prayed that this Hon’ble Court may be pleased:

1. TO SET ASIDE, THE ARBITRARY AND UNREASONABLE FOREST

CONSERVATION (AMENDMENT) ACT,2023

2. TO DECLARE THE EVICTION OF INDIGENOUS COMMUNITIES UNDER THE

AMENDMENT ACT AS A VIOLATION OF THEIR CONSTITUTIONAL RIGHTS.

3. TO ISSUE DIRECTIONS TO GIVE OUT PROPER REHABILITATION

MEASURES TO THE EVICTED PEOPLE.

And pass any other Order, Direction, or Relief that this Hon’ble Court may deem fit and

appropriate in the interests of justice, equity, and good conscience.

All of which is humbly prayed,

033

COUNSEL FOR THE PETITIONER

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