Special leave Petition | Papers Constitutional Theory

ARGUMENTS ADVANCED

1. WHETHER THE WATER IS A STATE SUBJECT AND UNION HAS NO POWER TO

LEGISLATEON THE SUBJECT?

1. It is humbly submitted before the Hon’ble Supreme court of Indiathat the water is a state

subject, but the provisions are quite complicated. In 2011 Ashok Chawla Committee

underscored the need for a comprehensive national legislation on water either by

bringing water in the Concurrent List

or through a legal framework for treating water as

a unified common resource. Based on the committee recommendation Union has a power

to legislate on the water subject.It is humbly requested that this Hon’ble court may be

pleased to declare the Special Leave Petition

filed by the petitioner is not maintainable

before theHon’ble Supreme of India.

2. States have power to legislate (State list, entry 17), with respect to the following subject:

“Water, that is to say, water supplies, irrigation and canals, drainage and embankments,

water storage and water power, subject to the provisions of Entry 56

of List 1.

3. Union list, entry 56, reads as under: “Regulation and development of inter-State rivers

and river valleys, to the extent to which such regulation and development under the

control of the Union is declared by Parliament by law to be expedient in the public

interest.”

4. It is humbly submitted “Article 262

states that adjudication of disputes relating to waters

of inter-State rivers or river valleys may by law provide for the adjudication of any

dispute or complaint with respect to the use, distribution, or control of the waters of, in

any inter-State River or river valley. Notwithstanding anything in this Constitution,

Parliament may, by law, provide that neither the Supreme Court nor any other court shall

exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause.

5. Parliament has plenary power to legislate for the Union Territories regarding any subject.

Regarding Union Territories there is no distribution of legislative power. Article 246(4)

enacts that Parliament has power to make laws with respect to any matter for any part of

the territory of India not included in a State notwithstanding that such matter is a matter

enumerated in the State List.

High power Ashok Chawla Committee was st up by Central Government in January 2011

Article 246 of Indian Constitution 1949

Article 136 of Indian constitution 1949

Entry 56 of Union List specified in Indian Constitution

Article 262 of I Indian Constitution

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ARGUMENTS ADVANCED

1. WHETHER THE WATER IS A STATE SUBJECT AND UNION HAS NO POWER TO

LEGISLATEON THE SUBJECT?

It is humbly submitted before the Hon’ble Supreme court of Indiathat the water is a state subject, but the provisions are quite complicated. In 2011 Ashok Chawla Committee (^1) underscored the need for a comprehensive national legislation on water either by bringing water in the Concurrent List^2 or through a legal framework for treating water as a unified common resource. Based on the committee recommendation Union has a power to legislate on the water subject.It is humbly requested that this Hon’ble court may be pleased to declare the Special Leave Petition^3 filed by the petitioner is not maintainable before theHon’ble Supreme of India.
States have power to legislate (State list, entry 17), with respect to the following subject: “Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, subject to the provisions of Entry 56 4 of List 1.
Union list, entry 56, reads as under: “Regulation and development of inter-State rivers and river valleys, to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.”
It is humbly submitted “Article 262^5 states that adjudication of disputes relating to waters of inter-State rivers or river valleys may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution, or control of the waters of, in any inter-State River or river valley. Notwithstanding anything in this Constitution, Parliament may, by law, provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause.
Parliament has plenary power to legislate for the Union Territories regarding any subject. Regarding Union Territories there is no distribution of legislative power. Article 246(4) enacts that Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. (^1) High power Ashok Chawla Committee was st up by Central Government in January 2011 (^2) Article 246 of Indian Constitution 1949 (^3) Article 136 of Indian constitution 1949 (^4) Entry 56 of Union List specified in Indian Constitution (^5) Article 262 of I Indian Constitution

In the case of R.K Sen v. Union 6 states that the it was pointed out that having regard to Article 367, the definition of State in section 3(58)^7 of the general clauses act, 1897 applies for the interpretation of the Constitution unless there is anything repugnant in the subject or context. Under thatdefinition, the expression State as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956 shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory. But this inclusive definition is repugnant to the subject and context of Article 246. There, the expression State means the States specified in the First Schedule.
There is a distribution of legislative power between Parliament and the legislatures of the States. Exclusive power to legislate with respect to the matters enumerated in the State List is assigned to the legislatures of the States established by Part VI. There is no distribution of legislative power with respect to Union Territories. That is why Parliament is given power by Article 246(4)^8 to legislate even with respect to matters enumerated in the State List.
If the inclusive definition of State in section 3(58) of the general clauses act were to apply to Article 246(4), Parliament would have no power to legislate for the Union Territories with respect to matters enumerated in the State List and until a legislature empowered to legislate on those matters is created under Article 239A^9 for the Union Territories, there would be no legislature competent to legislate on those matters. (^6) R.K Sen v. Union (1966) 1 SCR 430: AIR 1966 SC 644 (^7) Section 3(58) of the General Clauses act, 1897 (^8) Article 246(4) of Indian Constitution 1949 (^9) Article 239A of Indian Constitution 1949

It is humbly submitted thatIPC makes a departure from the general rule in few cases, on the principle of respondent superior. In such a case a master is held liable under various sections of the IPC for acts committed by his agents or servants. Section 149^11 provides for vicarious liability, it states that if an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilty of the offence committed.
It is humbly submitted thathe next prong of argument is on the principle of vicarious liability. The question of making a company liable for criminal offences committed by its directors, managers, officers, and other employees while conducting business has gained importance in criminal law jurisprudence which is subject of so much debate. The traditional view was that a corporation could not be guilty of a crime, because a criminal offence requires men’s rea, which a company does not possess.
To counter this, the courts developed the ‘ ’. As per this doctrine, in the event of an act or omission leading to violation of criminal law, the mens rea is attributed to those who are the ‘directing mind and will’ of the corporations. Although this doctrine was developed in the United Kingdom and has been in use in India since many years, the Hon'ble Supreme Court's judgment in Iridium Indian Telecom Limited v. Motorola Inc. (2011) 1 SCC 74^12 finally authoritatively resolved the debate. However, the Supreme Court in the Iridium case discussed the doctrine of attribution, not to adjudge the liability of the directors, but to determine the liability of the corporation.
The Apex Court held that criminal liability of corporations would arise when the offence is committed in relation to the business by a person or body of persons in control of its affairs and when the degree of control is such that a body or body of persons can be said to be its ‘directing mind and will’. Thereby, the Apex Court resolved the position regarding criminal liability of corporations. The immediate result of this position of law was that Directors, Partners, Officers, Employees started getting arrayed as a party to criminal proceedings on the basis that they were the “mind and will” of the company/firm/corporation.
The issue which next arose for consideration was that in a several number of cases of this nature, proceedings were initiated against such persons without even arraying the company as an accused in the complaint. It was then observed and held by the Hon'ble Supreme Court that in the absence of any specific allegation of vicarious liability against (^11) Section 149 of Indian Penal Code 1860 (^12) Iridium Indian Telecom Limited v. Motorola Inc. (2011) 1 SCC 74

the Managing Director or such other officials of a company, and in the absence of the company being arrayed as a party, proceedings initiated against such Managing Director or any officer of a company were liable to be quashed.

It has also been settled that when a complainant intends to rope in a Managing Director or any officer of a company, it is essential to make a specific averment or requisite allegation to demonstrate how the person, so accused, is vicariously liable for the offences of the company.
An employer can be held liable for his employee’s crime, as a general rule, only where the is a participant in them within the rules governing. It is a matter of our understanding that imposition of vicarious liability is the work of the courts rather than of Parliament. Statutes do occasionally say, in terms, that one person is to be liable for another’s crime. It is more common, however, for the courts to detect such as intension in statutes.

It is well settled in the case of Fadeyeva v. Russia, 2005^13 that the court generally applies the “beyond reasonable doubt” standard of proof. Such proof may follow from the coexistence of sufficiently strong, clear, and concordant inferences or of similar unrebutted presumptions of fact. The Court allows flexibility in this respect, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved. In certain instances, only the respondent Government have access to information capable of corroborating or refuting the applicant’s allegations.
It is also well settled in pollution cases Ledyayeva and Others v. Russia, 2006^14 , and Wałkuska v. Poland 2008 the Court holds that there is no doubt that serious industrial pollution negatively affects public health in general
It is humbly noted that in the case of Vardhman Kaushik v Union of India,^15 the legal standard of ‘beyond a reasonable doubt’ is assigned as the contributory sources of air pollution (vehicles, construction activities, burning of municipal solid waste (MSW) and agricultural residue, dust on roads, industrial and power house emissions including fly ash, and emissions from hot-mix plants and stone crushers) in Delhi were ‘firmly identified’ .The ‘convincing data’ showed that the ambient air quality was severe and adversely and hazardously affected the public health and persons of all generations without exception. Accordingly, the NGT ordered precautionary measures including banning 15 years old vehicles or older, closure of stone crushing units, implementing dust management plans, installing air purifiers, no burning of waste and preference to the use of public transport systems.
It is well settled in the case of Vellore Citizen Welfare Forum v Union of India,^16 the Supreme Court was convinced ‘beyond a reasonable doubt’, therefore level 9, that leather tanneries operating in Tamil Nadu destroyed the ecology, degraded the environment and posed a health hazard. The technical reports evidenced the untreated effluents from nearly 900 industries polluted groundwater, contaminated agricultural lands and exposed the residents to serious diseases. Accordingly, the Supreme Court applied the precautionary principle and directed the closure of rogue tanneries, prohibition, and restriction on the location of industries and installation of treatment effluent plants before the reoperation of industries. (^13) Fadeyeva v. Russia, 2005 (No.55723/00) 9/6/ (^14) Ledyayeva and Others v. Russia, 2006 (^15) Vardhman Kaushik v Union of India O.A.No.21 of 2014 (^16) Vellore Citizen Welfare Forum v Union of India AIR 1996(5) SCC 647

4. WHETHER INADMISSIBILITY OF ELECTRONIC EVIDENCE AS A RELVANT

FACT

It is humbly submitted that Indianlaw provide for the admissibility of electronic evidenceas relevant facts, subject to certain conditions and procedures to ensure authenticity andreliability. It is important to comply with these provisions and procedures to make electronic evidence admissible in court.
The admissibility of electronic evidence as relevant facts in environmental cases is governed by the provisions of the Indian Evidence Act, 1872,.It is humbly submitted that the admissibility of electronic evidence in the form of electronic records, subject to certain conditions, including the requirement for a certificate in the prescribed form .Under Section 65B^17 the Indian Evidence Act, which was inserted by the IT Act, provides for the admissibility of electronic records as evidence in court proceedings. The section reads as follows: Admissibility of electronic records.—(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
It is humbly noted that under Section 65A of the Indian Evidence Act^18 provides that electronic evidence must be produced in a form that can be inspected by the court and is capable of being converted into a readable form.
It is also noted that The National Green Tribunal (NGT) has issued guidelines for the admissibility of electronic evidence in environmental cases in India. These guidelines provide a framework for the admissibility of electronic evidence in NGTproceedings.Such as Electronic evidence must be accompanied by a certificate in the prescribed format, signed by the person in charge of the computer system or device that generated the evidence. Electronic evidence must be verified and authenticated before being admitted as evidence in court. The authenticity and integrity of electronic evidence must be established through a process of digital forensics, which may include methods such as hash value analysis and digital signature verification. The person presenting the electronic evidence must be able to demonstrate that the evidence has not been tampered (^17) Section 65B Indian Evidence Act 1872 (^18) Section 65A of the Indian Evidence Act 1872

through other means. However, the use of surveillance cameras must comply with applicable laws and regulations, including those related to privacy and FourthAmendment protections against unreasonable searches and seizures.

It is well settled in case of National Green Tribunal, Southern Zone, Chennai v. SterliteIndustries (India) Ltd^23. (2013) the National Green Tribunal admitted surveillance videocamera evidence that was obtained by an environmental group to show that Sterlite Industries, a copper smelting company, was discharging pollutants into a nearby river. The tribunal held that the video footage was admissible under Section 32 of the Indian Evidence Act, which provides for the admissibility of public documents.
It is well settled in case of R. K. Verma v. State of Rajasthan^24 (2011) the Rajasthan High Court admitted surveillance video camera evidence that was obtained by the Rajasthan State Pollution Control Board to show that a marble factory was violating pollution control norms. The court held that the video footage was admissible under Section 65B of the Indian Evidence Act, as it was accompanied by a certificate that identified the electronic record and described the mode of its creation and storage.
In the case of Jai Singh v. State of Haryana (2003)^25 the Punjab and Haryana High Court admitted surveillance video camera evidence that was obtained by the Haryana State Pollution Control Board to show that a paper mill was discharging effluents into a nearby river. The court held that the video footage was admissible under Section 65B of theIndian Evidence Act, as it was accompanied by a certificate that identified the electronic record and described the mode of its creation and storage.
It is humbly submitted that summary as the use of surveillance cameras to monitor compliance with environmental regulations can help to ensure the protection of our water resources and the environment. It is therefore that electronic evidences are admissible as relevant facts (^23) National Green Tribunal, Southern Zone, Chennai v. SterliteIndustries (India) Ltd OA No.7 of 2019 (^24) R. K. Verma v. State of Rajasthan (1to14) (CW-5753/2020) (^25) Jai Singh v. State of Haryana (2003) C.A.No.5480 of 1995

5. ADMISSIBILITY AND RELIANCE OF SCIENTIFIC EVIDENCES IN CRIMINAL

PROSECUTION

It is humbly submitted that the admissibility and reliance of scientific evidence in criminal prosecution is an important aspect of the criminal justice system. Particularly in environmental related cases scientific evidence is admissible if it meets certain criteria, such as being relevant, reliable, and trustworthy.
It is humbly submitted that reliance on scientific evidence is the degree to which the courtwill rely on the evidence in making its decision. This depends on the weight and quality of the evidence presented, as well as the credibility of the expert Reliance on scientificevidence is the degree to which the court will rely on the evidence in making its decision. This depends on the weight and quality of the evidence presented, as well as thecredibility of the expert witnesses who testify to the evidence witnesses who testify to theevidence.
It is humbly noted that in environmental cases, scientific evidence can include data onpollution levels, environmental monitoring reports, chemical analyses of samples, and expert testimony on the effects of pollutants on human health and the environment. The court will consider the relevance and reliability of each piece of evidence before decidingwhether to admit it and how much weight to give it.
It is well stated that in the case M.C. Mehta v. Union of India (1986)^26 , the Supreme Court of India relied on scientific evidence to order the closure of industries that were causing pollution in the Ganges river. The court held that scientific evidence was essential indetermining the extent of the pollution and its impact on human health and the environment.
It is well stated that in the case Vellore Citizens' Welfare Forum v. Union of India (1996) the Supreme Court of India held that scientific evidence was necessary to prove the violation of environmental laws. The court also held that the principle of 'polluter pays' should be applied in cases where industries cause pollution.
It is well stated that in the case Samaj ParivartanaSamudaya v. State of Karnataka (2012) (^27) the Karnataka High Court relied on scientific evidence to order the closure of a (^26) M.C. Mehta v. Union of India 1984 AIR 802, 1984 SCR (2) 67 (^27) Samaj ParivartanaSamudaya v. State of Karnataka W.P.(C) No.- 000562 - 000562 / 2009

extent of pollution and its impact on human health and the environment. The court may rely on theevidence presented by such experts in making its decision.

It is humbly and particularly noted that Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 Act^35 provides for the appointment of analysts to assist in the investigation of water samples. The section also provides for the admissibility of the report of such analysts as evidence in any legal proceeding. The report of the analyst canbe used as scientific evidence to prove the presence of pollutants in the water and the extent of pollution and Section 26 of the Water Act^36 provides for the admissibility of reports of the Central and State Pollution Control Boards as evidence in any legal proceeding. The reports of these boards can be used as scientific evidence to prove the extent of pollution and the harm caused to the environment and Section 29 37 provides for the appointment of experts to assist the court in any legal proceeding relating to water pollution. The section also provides for the admissibility of the opinion of such experts as evidence in the legal proceeding and provides for the admissibility of reports and analysis of samples taken from water bodies. The court may rely on such evidence in determiningthe extent of pollution and the liability of the accused. These provisions of the Water Act demonstrate that scientific evidence is admissible and can be relied upon in legal proceedings related to water pollution. The reports of analysts and the Pollution Control Boards, as well as the opinions of experts, can be used as scientific evidence to prove the extent of pollution and the harm caused to the environment.
It is humbly submitted that Section 17 of the Air (Prevention and Control of Pollution) Act, 1981^38 , provides for the appointment of experts to assist the court in determining the nature and extent of air pollution and its impact on human health and the environment.The court may rely on the evidence presented by such experts in making its decision.
It is also further noted that under the Federal Rules of Evidence provide the framework for the admission of evidence in federal courts, including scientific evidence in the case Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)^39 is used in federal courts and some state courts. Under this standard, scientific evidence is admissible if it is based on a reliable methodology and is relevant to the case. Rule 702, which was amended inresponse to the Daubert decision, requires that scientific evidence be based on a reliable methodology and be relevant to the case. (^35) Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 Act (^36) Section 26 of the Water (Prevention and Control of Pollution) Act, 1974 Act (^37) Section 29 of the Water (Prevention and Control of Pollution) Act, 1974 Act (^38) Section 17 of the Air (Prevention and Control of Pollution) Act, 1981 (^39) Daubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S.597 19993

It is humbly submitted that under Section 277 of the IPC 1860^40 provides for punishment for fouling the water of any public spring or reservoir. The prosecution can present scientific evidence to prove that the accused has polluted the water and caused harm to the environment. And also, under Section 268^41 (public nuisance), Section 278^42 (making the atmosphere noxious to health), and Section 427^43 (mischief causing damage to property) can also be applied to environmental offences.
In a summary it is humbly submitted that the admissibility and reliance on scientific evidence in criminal justice of environmental cases are governed by various legal provisions. The court may rely on the opinion of experts, the reports of analysts and Pollution Control Boards, and other scientific evidence to determine the guilt of the accused and the extent of harm caused to the environment. (^40) Section 277 of the IPC 1860 (^41) Section 268 of the IPC 1860 (^42) Section 278 of the IPC 1860 (^43) Section 427 of the IPC 1860

Special leave Petition, Papers of Constitutional Theory

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ARGUMENTS ADVANCED

1. WHETHER THE WATER IS A STATE SUBJECT AND UNION HAS NO POWER TO

LEGISLATEON THE SUBJECT?

4. WHETHER INADMISSIBILITY OF ELECTRONIC EVIDENCE AS A RELVANT

FACT

5. ADMISSIBILITY AND RELIANCE OF SCIENTIFIC EVIDENCES IN CRIMINAL

PROSECUTION