Moot court competition memorial, Papers of Law

Download Moot court competition memorial and more Papers Law in PDF only on Docsity! DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 1 MEMORANDUM ON BEHALF OF THE PETITIONERS GOVERNMENT OF TAMILNADU DIRECTORATE OF LEGAL STUDIES INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 BEFORE THE HON’BLE SUPREME COURT OF YAVANA (UNDER ARTICLE 32 OF THE CONSTITUTION OF YAVANA) IN THE MATTER OF: WRIT PETITION NO. ______ OF 2022 DIGNITY ASSURANCE FOR YAVANIANS PETITIONER VERSUS UNION OF YAVANA RESPONDENT ALONG WITH WRIT PETITION NO. ______ OF 2022 NATIONAL HUMAN RIGHTS COMMISSION & ORS. PETITIONER VERSUS UNION OF YAVANA & ANR. RESPONDENT ALONG WITH WRIT PETITION NO. ______ OF 2022 SENGAI VALLEY DWELLER’S SOCIETY PETITIONER VERSUS STATE POLLUTION CONTROL BOARD & ANR. RESPONDENT MEMORIAL ON BEHALF OF THE PETITIONERS MOST RESPECTFULLY SUBMITTED BEFORE THE BENCH OF THIS HON’BLE COURT TEAM CODE: KARUVEL DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 2 MEMORANDUM ON BEHALF OF THE PETITIONERS TABLE OF CONTENTS LIST OF ABBREVATIONS …………….……………….…….……….…………………4 INDEX OF AUTHORITIES ……………………...…….…………….…………...……....6 STATEMENT OF JURISDICTION …………………………….….………………….....8 STATEMENT OF FACTS ………………………………………………...……...............9 ISSUES RAISED………………………………………………………..…………….…...11 SUMMARY OF ARGUMENTS ………………………………………..………………..12 ARGUMENTS ADVANCED …………………………….……...……..…………….…..13 ISSUE 1: WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGER AND THEIR REHABILITATION ACT -2013 IS CONSTITUTIONALLY VALID?..............................................................13 1.1. THE PROVISIONS CONTAINED UNDER THE ACT ARE AGAINST THE SPIRIT OF THE ACT 1.2. THE ACT FAILS TO FULFILL THE TEST OF STRICT SCRUTINY 1.3. THE ACT INDIRECTLY CAUSES MS – THEREBY VIOLATING ARTICLE 21 1.4. INFRINGEMENT OF ARTICLE 17 ISSUE 2: WHETHER THE GOVERNMENT HAS COMPLIED WITH ITS INTERNATIONAL COMMITMENTS?................................................20 2.1. UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 2.2.THE COVENANT ON CIVIL AND POLITICAL RIGHTS 1966 2.3.THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966 2.4.THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN ISSUE 3: WHETHER THE DEPENDENTS OF THE DECEASED WERE ENTITLED TO CLAIM COMPENSATION?..............................................23 3.1. THE GOVERNMENT IS RESPONSIBLE FOR COMPENSATION 3.2. THE DESCENDANTS OF THE DECEASED ARE ENTITLED TO CLAIM COMPENSATION 3.3. VIOLATION OF ARTICLE 21 DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 5 MEMORANDUM ON BEHALF OF THE PETITIONERS 18 SC Supreme Court 19 SCC Supreme Court Cases 20 SCR Supreme Court Reporter 21 Sec Section 22 SPCB State Pollution Control Board 23 UOI Union of India 24 u/s Under section 25 Vol Volume 26 Vs. Versus DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 6 MEMORANDUM ON BEHALF OF THE PETITIONERS INDEX OF AUTHORITIES CASES 1. Anuj Garg & Ors vs. Hotel Association of India & Ors, AIR 2008 SC 663 2. Naz Foundation vs. Government of NCT of Delhi, 160 Delhi Law Times 277 3. Subhash Chandra vs. Delhi Subordinate Services Selection Board, WP(C) No.507 of 2006 4. Suresh Kumar Koushal & Anr vs Naz Foundation & Ors, Civil appeal no.10972 of 2013 (Arising out of SLP (C) No.15436 of 2009) 5. State Punjab vs. Mahinder Singh Chawla, AIR 1997 SC 1225 6. Kirloskar Brothers vs. Employees State Insurance Corporation, (1996) 2 SCC 68 7. Consumer Education and Research Centre and others vs. Union of India and others, AIR 1995 SC 922 8. Builders Association Of India And Ors. Vs. Union Of India.1989 SCALE (2)768 9. Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi (1981) 2 SCR 516. 10. Change India vs Government Of Tamilnadu ,W.P.No.25726 of 2017 11. Safai Karamchari Andolan And Ors vs Union Of India, W.P (Civil) NO. 583 OF 2003 12. P.Ayyaswami vs The Chief Secretary, W.P. No.25717 of 2012 13. B.Panju Selvarani vs The Secretary To Government, W.A.(MD) No.1029 of 2019 14. The Secretary To The Government vs Valaiyakka, W.A (MD) No.550 of 2016 and C.M.P(MD)No.3930 of 2016 15. Shalesh Kumar vs The State Of Bihar, W.P. 7312 of 2015 16. Union Of India And Ors. vs Bhanudas Krishna Gawde , 1977 AIR 1027, 1977 SCR (2)719 17. Shubham Suresh Thorat vs. The State of Maharashtra, Crl bail Appl. No. 3242 of 2020 18. Mr. 'X' vs. Hospital 'Z', Appeal (civil) 4641 of 1998 19. Vincent vs. Union of India, 1987 AIR 990 1987 SCR (2) 468 20. Bandhua Mukti Morcha vs. Union of India, [1984] 3 SCC 161 21. Haat Supreme Wastech Pvt. Ltd. Ors vs State Of Haryana, Appeal No. 63/ 2013 DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 7 MEMORANDUM ON BEHALF OF THE PETITIONERS STATUTES, ACTS AND RULES 1. The Constitution of India, 1950 2. The Indian Penal Code, 1860. 3. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 4. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 1993 5. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 6. Bio-Medical Waste Management Rules, 2016 7. Bio-Medical Waste Management Rules, 1998 8. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013 INTERNATIONAL INSTRUMENTS 1. Universal Declaration Of Human Rights, 1948 2. The Covenant On Civil And Political Rights 1966 3. The Covenant On Economic, Social And Cultural Rights 1966 4. The Convention On The Elimination Of All Forms Of Discrimination Against Women BOOKS AND COMMENTARIES 1. M.P. Jain, Indian Constitutional Law, (6th Ed, 2010) 2. Durga Das Basu, Shorter Constitution Of India, (14th Ed, 2009) 3. V.N. Shukla, Constitution of India, (12th Ed, 2016) 4. R.P.Kataria and Salah Uddin, Commentary on Human Rights( 1 st Ed,2011) LEGAL DATABASE 1. http://www.indiakanoon.com 2. http://www.scconline.com 3. http://www.casemine.com 4. https://www.scconline.com/ DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 10 MEMORANDUM ON BEHALF OF THE PETITIONERS Commission of Yavana took suo moto cognizance on the issue and also moved the matter to the Supreme Court under Article 32 of the Yavanian Constitution. Also, an Intervention Application has been filed by Mrs.Mersina,the mother of Jonila to implead in the case along with the relatives of other three deceased for claiming compensation for the sewer deaths. Fault in GHS’s incineration and negligence of SPCB: The GHS which owns a Huge plant of incinerator for medical waste in suburban of Maruvai, is adjacent to the „Sengai Valley‟ gated community which consist of 500 residents. A short time ago, several cases were reported in and around Sengai Valley hospitals of the residents facing similar health issues. Eventually by understanding the seriousness of the hazardous situation, Society approached the GHS as their Incineration producing noxious fumes in the vicinity of Sengai Valley. However,the GHS totally ignored this issue. Aggrieved by this act of GHS the Society approached the State Pollution Control board of Poigai. Since, there were no satisfactory actions on the part of SPCB of Poigai the Society has filed a writ petition in the Apex Court of the Union of Yavana. . On observing the multiplicity of proceedings which was in the larger public interest, the Apex Court of Yavana integrated all the above petitions and scheduled the matter for a hearing. DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 11 MEMORANDUM ON BEHALF OF THE PETITIONERS ISSUES RAISED ISSUE 1 WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGER AND THEIR REHABILITATION ACT 2013 IS CONSTITUTIONALLY VALID? ISSUE 2 WHETHER GOVERNMENT HAS COMPLIED WITH ITS INTERNATIONAL COMMITMENTS? ISSUE 3 WHETHER THE DEPENDANTS OF THE DECEASED WERE ENTITLED TO CLAIM COMPENSATION? ISSUE 4 WHETHER THE BIO-MEDICALWASTE DISPOSAL REGULATIONS ARE FULFILLING THE CONSTITUTIONAL MANDATES? . DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 12 MEMORANDUM ON BEHALF OF THE PETITIONERS SUMMARY OF ARGUEMENTS 1. WHETHER THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGER AND THEIR REHABILITATION ACT, 2013 IS CONSTITUTIONALLY VALID? It is humbly submitted that the Prohibition of Employment as Manual Scavenger and their Rehabilitation Act, 2013 is constitutionally invalid. The provisions of the Act are in contradiction with the objective of the Act. By redefining manual scavenger to include those only without safety gear, the Act implicitly promotes the inhumane act. 2. WHETHER THE GOVERNMENT HAS COMPLIED WITH ITS INTERNATIONAL COMMITMENTS? It is submitted that the government has not complied with the International Commitments to which Yavana is a signatory. Particularly, The Covenant on Economic, Social and Cultural Rights 1966, The Convention on the Elimination of All Forms of Discrimination against Women. 3. WHETHER THE DEPENDENTS OF THE DECEASED WERE ENTITLED TO CLAIM COMPENSATION? The dependents of the deceased are entitled to compensation on the grounds that the government bears vicarious liability for the loss of the lives of three Yavanian citizens and the research scholar from Utopia. The right to life guaranteed by Article 21 of the Constitution for citizens and non-citizens in the Union of Yavana. Compensation for violation of fundamental rights is based on strict liability, which in this case exists. 4. WHETHER THE BIO-MEDICAL WASTE DISPOSAL REGULATIONS ARE FULFILLING THE CONSTITUTIONAL MANDATES? The Biomedical Waste Disposal Rules, 2016 do not fulfil the constitutional mandate to uphold the rights guaranteed in the Constitution. DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 15 MEMORANDUM ON BEHALF OF THE PETITIONERS such manner as may be prescribed. 3 However, it also leaves out an exception that a water flush latrine in a railway passenger coach, when cleaned by an employee with the help of such devices and using such protective gear shall not be deemed to be an insanitary latrine. [¶11.] This exception seems to be conflicting with sections 5 of the same act. Because, the section 5 - "Prohibition of insanitary latrines and employment and engagement of manual scavenger" states in its sub clause 2 that every insanitary latrine existing on the date of commencement of this Act, shall either be demolished or be converted into a sanitary latrine. [¶12.] Moreover, the Section 17 with regard to "Responsibility of local authorities to ensure elimination of insanitary latrines" clearly states that it shall be the responsibility of every local authority to ensure, through awareness campaign or in such other manner that no insanitary latrine is constructed, maintained or used within its jurisdiction. [¶13.] The Yavanian railways being a local authority with an obligation to demolish the insanitary latrine or convert it into a sanitary latrine, within a period of six months from the date of commencement of this Act, rather it seeks protection to continue such prohibited practice through the exception provided. [¶14.] There may be certain difficulties for the railway to avoid manual scavenging in case of small latrines constructed inside the railway compartments. Rather the Railway Authority should devise a method to clean the latrines by way of constructing portable/ removable small septic tanks beneath the small latrines inside the compartments, which may be cleared in the stations from time to time. 1.1.4. OTHER LOOPHOLES THAT DEFEAT THE ENTIRE PURPOSE OF THE ACT [¶15.] Section 4(1) of the Act 4 says that every Local authority shall: (a) carry out a survey of insanitary latrines existing within its jurisdiction, and publish a list of insanitary latrines, in such manner as may be prescribed, within a period of two months from the date of commencement of this Act. 5 [¶16.] It is observed that the Act refers to identification of only insanitary latrines. But, the Act does not mention identification of spots where open defecation is done and consequently 3 Section 2(1)(e) of PEMSR Act, 2013 4 Section 4(1) of PEMSR Act, 2013 5 Section 4(1)(a) of PEMSR Act, 2013 DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 16 MEMORANDUM ON BEHALF OF THE PETITIONERS someone has to clean manually human excreta from the open spaces in urban areas. Moreover, a period of two months is insufficient and seems to be an impossible task for carrying out surveys of such insanitary latrines. [¶17.] The section 39(1) of the Act states that the appropriate Government may, by a general or special order published in the Official Gazette, for the reasons to be recorded, and subject to such conditions as it may impose, exempt any area, category of building or class of persons from any provisions of this Act or from any specified requirement contained in this Act or any rule, order, notification, bye –laws or scheme made there under or dispense with the observance of any such requirement in a class or classes of cases, for a period not exceeding six months at a time; 6 This is a major gap in the Act as it empowers the Government to exempt the provisions of the Act and thereby creating a major gap that can defeat the entire purpose behind passing this piece of legislation. [¶18.] Hence it is most humbly submitted that the act itself is having provisions which may indirectly cause the manual scavenging. Hence, by applying the doctrine of severability, such contradictory provisions should be held unconstitutional and must be removed from the act. 1.2. THE ACT FAILS TO FULFIL THE TEST OF STRICT SCRUTINY [¶19.] The term “strict scrutiny” refers to a test by which statutes are pronounced unconstitutional unless they are “necessary” or “narrowly drawn” or “closely tailored” to serve a “compelling governmental interest”. So, to pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest 7 . Here, "Compelling government interest" refers to a fundamental state purpose, which must be shown before the law can limit some freedoms or treat some groups of people differently. [¶20.] Application of the test to the present case- Even though the government’s ultimate aim through the PEMSR act is to completely prohibit the practice of manual scavenging, however its inbuit provisions does not support its object. The narrowly tailored definition of 6 Section 39(1) of PEMSR Act, 2013 7 Anuj Garg & Ors vs. Hotel Association of India & Ors, AIR 2008 SC 663; Naz Foundation vs. Government of NCT of Delhi, 160 Delhi Law Times 277; Subhash Chandra vs. Delhi Subordinate Services Selection Board, WP(C) No.507 of 2006 DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 17 MEMORANDUM ON BEHALF OF THE PETITIONERS “manual scavenger” under section 2(1)(g) appears discriminatory in nature since it contains an unnecessary exception. Because, such an exception can possibly end up in violating the fundamental rights as guaranteed under the Yavanian constitution. 1.3. THE ACT INDIRECTLY CAUSES MS – THEREBY VIOLATING ARTICLE 21 [¶21.] The Act implicitly promotes MS, insofar as the workers are provided with the necessary “protective gear and devices”. Furthermore, the Act does not list out the protective gear necessary for those who do choose to employ a worker for manual scavenging. Such an omission makes it convenient for such employers to provide merely the minimum protective gear to escape liability in case of death or injury. Due to this ambiguity in definition, sometimes employers just give them gloves, which fulfil the criterion of protective gear. But merely providing gloves does not stop them from the exposure to health hazards. Hence, this type of provision can lead to the infringement of the implicit rights guaranteed under Article 21. 8 1.3.1. RIGHT TO HEALTH [¶22.] The Constitution is a living document and it should remain flexible to meet newly emerging problems and challenges. So, the Fundamental rights are be interpreted in an expansive and purposive manner so as to enhance the dignity of the individual and worth of the human person. 9 [¶23.] 'Right to life' in Article 21 of the Constitution of India includes protection of the health of every person and medical care 10 . It has a much wider meaning which includes the right to a better standard of life and hygienic conditions at the workplace. 11 [¶24.] It is explicit from the aforementioned ground that certain provisions of the PEMSR Act are not completely prohibiting the practice of manual scavenging and instead they are 8 Article 21 Constitution of India, 1949 9 Suresh Kumar Koushal & Anr vs Naz Foundation & Ors(civil appeal no.10972 of 2013 (Arising out of SLP (C) No.15436 of 2009) 10 State Punjab vs. Mahinder Singh Chawla, AIR 1997 SC 1225; Kirloskar Brothers vs. Employees State Insurance Corporation, (1996) 2 SCC 68 11 Consumer Education and Research Centre and others vs. Union of India and others, AIR 1995 SC 922 DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 20 MEMORANDUM ON BEHALF OF THE PETITIONERS 2. WHETHER THE GOVERNMENT HAS COMPLIED WITH ITS INTERNATIONAL COMMITMENTS? [¶32.] It is humbly submitted that the government has not complied with its International Commitments. 2.1.UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 [¶33.] Yavana is a signatory to the UDHR. It is a fact that the Yavanian constitution was greatly influenced by the UDHR. [¶34.] Provisions of UDHR that prohibits manual Scavenging: Article 1 16 of UDHR states that all human beings are born free and equal in dignity and rights. The article 5 17 states that no one shall be subjected to inhuman or degrading treatment. Article 22 18 includes the right to work, an adequate standard of living and social security. Under Article 23 19 , right just and favorable conditions of work are provided. [¶35.] While the Article 5 prohibits inhumane treatment, the government of Yavana hides such inhumane activities by providing such workers with protective gear and excluding them from the category of manual scavengers. Moreover, due the lack of clarity regarding the type of protective gears, the just and favorable conditions of work are in question. 2.2.THE COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966 [¶36.] Article 8 20 of ICCPR provides the right to not be enslaved and Article 26 21 confers the right to equality before law. All these are virtually absent in case of manual scavengers. Because, in a country like Yavana, manual scavenging is considered to be the work of a certain community of people and this is manifested through various data. 16 Art 1, Universal Declaration of Human Rights, 1948 17 Art 5, Universal Declaration of Human Rights, 1948 18 Art 22, Universal Declaration of Human Rights, 1948 19 Art 23, Universal Declaration of Human Rights, 1948 20 Art 8, The Covenant On Civil And Political Rights, 1966 21 Art 26, The Covenant On Civil And Political Rights, 1966 DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 21 MEMORANDUM ON BEHALF OF THE PETITIONERS 2.3.THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, 1966 [¶37.] As a signatory to ICESCR, Yavana has obligations to fulfill the following rights- Article 7 22 provides for just and favorable conditions of work; Article 9 23 provides for right to social security including social insurance, Article 11 24 for adequate standard of living for himself and his family including adequate food, clothing and housing. But normally in case of manual scavengers these rights are violated to its maximum extent. [¶38.] In Yavana, in spite of executing various schemes aimed to rehabilitate the manual scavengers, none of them have been successful. The Self-Employment Scheme for Rehabilitation of Manual Scavengers (SRMS) was introduced in January, 2007, with the objective to rehabilitate the remaining manual scavengers and their dependents in alternative occupations by March, 2009. However, till date the count of manual scavengers and the prevalence of such inhumane practices exist. This is due to the internal contradictions and loopholes that exist among the laws that guarantees prohibition of manual scavenging. 2.4.THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, 1979 [¶39.] India has been one of the initial signatories of the UN Committee on the Elimination of Discrimination against Women (CEDAW). However, it is yet to deliver equality, quality of life, social security, education, rehabilitation and employment to women manual scavengers. [¶40.] While working to rehabilitate and support manual scavengers, one of the first steps should be to recognise the women engaged in this work and prioritise their needs. Estimates by several organisations suggest that more than 75 percent of manual scavengers are women. So far, policies and laws have failed to address the problems faced by women engaged in this hazardous occupation, and there is a pressing demand to cater to their specific needs. 22 Art 7, The Covenant On Economic, Social And Cultural Rights, 1966 23 Art 9, The Covenant On Economic, Social And Cultural Rights, 1966 24 Art 11, The Covenant On Economic, Social And Cultural Rights, 1966 DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 22 MEMORANDUM ON BEHALF OF THE PETITIONERS [¶41.] With regard to the ratification of aforementioned international human rights instruments, the Yavana government is yet to ratify these conventions. This depicts its lack of interest towards the complete prohibition of manual scavenging. [¶42.] Hence, the Government of Yavana has failed on all counts to comply with its International Commitments since the practice of Manual Scavenging is still prevalent in Yavana. Despite laws and regulations being in place, the practice has not been curtailed but has been forced underground. 25 25 WHO report on” Health, Safety and Dignity of sanitation workers- An initial assessment” DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 25 MEMORANDUM ON BEHALF OF THE PETITIONERS fundamental right, compensation is due to Mrs. Mangai Selvendiran, Mr. Selvendiran, Aged 52, and Mr. Arivu, and the foreign researcher Ms. Jonila. The Supreme Court in Shalesh Kumar vs The State Of Bihar 32 declared, that “compensation in a proceeding under Article 32 by this Court…is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply” [¶49.] Strict liability exists when a defendant is liable for committing an action; regardless of what his/her intent or mental state was when committing the action. Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, which is not applicable as adjudicated by the hon'ble apex court, “The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State…and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.” [¶50.] Similarly in this case, the government bears the liability for the death of Mrs. Mangai Selvendiran, Mr. Selvendiran, Aged 52, and Mr. Arivu, and the foreign researcher Ms. Jonila, as demonstrated in the first ground, and the families of the deceased are entitled to claim compensation. Article 21 is guaranteed for non-citizens as well, as affirmed by the Supreme Court in Union Of India And Ors. vs Bhanudas Krishna Gawde 33 “fundamental rights are conferred and guaranteed by the Constitution so that citizens, and, in the cases of Articles 14 and 21, even non-citizens, may get relief against 'the State and its agencies.”It is submitted that Ms. Jonila’s right to life guaranteed for foreign citizens as well, has not been protected by the State. 32 Shalesh Kumar vs The State Of Bihar, W.P. 7312 of 2015 33 Union Of India And Ors. vs Bhanudas Krishna Gawde , 1977 AIR 1027, 1977 SCR (2)719 DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 26 MEMORANDUM ON BEHALF OF THE PETITIONERS 4. WHETHER THE BIO-MEDICAL WASTE DISPOSAL REGULATIONS ARE FULFILLING THE CONSTITUTIONAL MANDATES? [¶51.] It is humbly submitted that the Bio medical Waste disposal Rules do not fulfill its constitutional mandates. Constitutional mandates are obligations imposed upon the State to ensure that the rights granted under the Constitution are available to citizens. Under biomedical waste management, the state is under obligation to ensure that the right to life is not infringed (Article 21) 34 , ensure that public health is being taken care of and to take proper measures in protecting the same and to formulate its policies keeping in consideration its duties as laid down by the constitution (Article 47) 35 . The constitution also mandates the protection and improvement of the environment and safeguarding the forests and wildlife of the country (Article 48A) 36 , protection and improvement of the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures (Article 51A). 37 [¶52.] The facts state that during this controversy, a viral video showed two dogs fighting for anatomical waste–human hands, in the public street of Maruvai. Further, noxious fumes are said to be rising out from the incinerator of GHS, along with an increase in disease related to biomedical wastes– throat infection, lung problems, headaches, fainting, eyesight problems, nausea and even coughing blood. 4.1. FAILURE TO ENSURE PROPER DISPOSAL [¶53.] As per the facts, DEMOCRATIC NEWS has recorded at a large-scale the neglect of proper disposal of biomedical waste, specifically anatomical waste, which by itself calls into question the extent to which the Act has fulfilled its constitutional mandate. The extent to which an Act fulfils its objective determines its effectiveness. The Act has failed on such a 34 Article 21 Constitution of India, 1949 35 Article 47 Constitution of India, 1949 36 Article 48a Constitution of India, 1949 37 Article 51A Constitution of India, 1949 DIRECTORATE OF LEGAL STUDIES, TAMIL NADU INTER-COLLEGEIATE STATE LEVEL MOOT COURT COMPETITION-2022 27 MEMORANDUM ON BEHALF OF THE PETITIONERS large-scale, across the nation. Its constitutional mandate to uphold the rights granted under the Constitution, has not been upheld. This ground will be elaborated further in the arguments dealing with the violation of article 21 38 and the failure of the state to uphold Directive Principles of State Policy. 4.2. PUNISHMENTS FOR VIOLATION OF REGULATIONS [¶54.] The Act is not bolstered by any punishments or penalty for violations of the regulations. The Act without such provisions appears as suggestions for disposal of biomedical wastes, without the threat for violation of said regulations. In Shubham Suresh Thorat vs. The State of Maharashtra, 39 the Bombay High Court mentioned obiter dicta, that “punishment is the coercion used to enforce the law and it is one of the pillars of modern civilization. Providing a peaceful society life is the duty of a State. Lack of punishment causes the law to lose its face and may result in a lawless society.” [¶55.] The legal maxim Lex talionis, meaning ‘an eye for an eye– a basis for the retributive theory used in criminal law, is applicable in a broad sense in this case, as the Act provides for no penalty for inflicting injury on the society. Private companies of the size and influence of GHS bypass these regulations to inflict injury to the eye of the society and face no retribution for them. The Act, thus, fails to fulfill its constitutional mandate. 4.3. DISEASES CAUSED DUE TO IMPROPER WASTE DISPOSAL – VIOLATION OF ARTICLE 21 AND ARTICLE 47 [¶56.] The facts record a rise in diseases in the surrounding areas– throat infection, lung problems, headaches, fainting, eyesight problems, nausea and even coughing blood. Article 21 guarantees right to life, not apart from, but along with right to healthy life, as said by the hon’ble Court in Mr. 'X' vs. Hospital 'Z' 40 “Right to Life includes right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition”. Right to healthy life is to be interpreted as the right to the highest attainable standard of physical and mental 38 Article 21 Constitution of India, 1949 39 Shubham Suresh Thorat vs. The State of Maharashtra, Crl bail Appl. No. 3242 of 2020 40 Mr. 'X' vs. Hospital 'Z', Appeal (civil) 4641 of 1998