BEFORE THE HON’BLE HIGH COURT OF INDIGO

MS KIRTI …..PETITIONER

V.

GOVERNMENT OF NCT OF DERBY …RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONERS 1|Page

 TABLE OF CONTENT

Sr. No. Topic Page No.

1. Abbreviations 3

2. Table of cases 4

3. Statement of Jurisdiction 5-6

4. Summary of Facts 7

5. Issues Raised 8

6. Arguments Advanced 9-17

7. Prayer 18

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 ABBREVATIONS

Sr. Abbreviation Word

No.
1. Art Article
2. Dept Department
3. HC High Court
4. SC Supreme Court
5. V Versus

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 TABLE OF CASES

1. Kharak Singh V State of Uttar Pradesh.

2. K.S. PuttuSwami V Union Of India.
3. Menaka Gandhi V Union Of India.
4. Narendra Kumar V Union Of India.
5. Olga Telis V Bombay Municipal Corporation.
6. State of Tamil Nadu V Sanjeetha Training Company.

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 STATEMENT OF JURISDICTION

The petitioner has filed the case under Article 14, Article 19(1)(d), Article 21 in The Constitution
Of India 1949, which states as follows:-
Article 14 in The Constitution Of India
14. Equality before law The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth

Article 19 in The Constitution Of India

19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practice any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the
State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and
integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the
said sub clause
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and
integrity of India or public order or morality, reasonable restrictions on the exercise of the right
conferred by the said sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the
exercise of any of the rights conferred by the said sub clauses either in the interests of the general
public or for the protection of the interests of any Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular,
nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to,
MEMORIAL ON BEHALF OF PETITIONERS 5|Page
(i) the professional or technical qualifications necessary for practicing any profession or carrying on
any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade,
business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

Article 21 in The Constitution Of India

21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty
except according to procedure established by law

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 SUMMARY OF FACTS

 Derby (Metropolitan City) is the national capital of Indigo.

 That due to urbanization and industrialization it became highly populated.
 That increasing use of public and private automobiles and burning of rocks has led to
increase in the pollution level of the city.
 That due to this the Derby government gave a seven point Pollution Control Action Plan.
 That the plan implemented and odd even scheme wherein odd and even numbered
vehicles ply on alternate days.
 That a petition was filed in the Honorable High Court raising a plea that the basis of
scheme was an unscientific study conducted by a foreign agency and the same is not
verified by the National Pollution Control Board.
 That a petition is filed in the Supreme Court of Indigo on the ground that the national
report submitted to the Environmental Tribunal have suggested that the odd even scheme
has no impact on decrease in vehicular pollution.
 That the fluctuations in air quality is due to weather and change in wind patterns.

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 ISSUES RAISED
I. WHETHER THE ODD EVEN SCHEME VIOLATED THE RIGHT TO MOVE
FREELY THROUGHOUT THE TERRITORY OF INDIGO.
II. WHETHER THE ODD EVEN SCHEME VIOLATED THE RIGHT TO LIFE AND
PERSONAL LIBERTY.
III. WHETHER THE ODD EVEN SCHEME VIOLATED RIGHT TO PRACTICE ANY
PROFESSION, OR TO CARRY ON ANY OCCUPATION, TRADE OR
BUSINESS.

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 ARGUMENTS ADVANCED

I. WHETHER THE ODD EVEN SCHEME VIOLATED THE RIGHT TO MOVE

FREELY THROUGHOUT THE TERRITORY OF INDIGO

The Counsel on behalf of the Petitioner in the case of Ms. Shivani v. Government of NCT of
Derby, most humbly submits before this Hon’ble Supreme Court of Indigo that the odd even
scheme by the Government of Derby restrict a right of a person of shifting or moving from one
part of Indigo to another. In the present case, the major cause of pollution is burning of crop
stubble around the city. The national reports submitted by Government of Derby in 2017 to the
Environmental Tribunal have suggested that odd even scheme has no impact on decrease in
pollution and the fluctuations in air quality is due to weather and changes in wind patterns. In the
city of Derby, most of people celebrate festival of Diwali by burning of crackers, which is a
significant contributor to the pollution. The season is also marked by the harvesting of the Kharif
crop in neighboring states of Derby. The farmers in neighboring areas burn crop stubble, which
has direct effect on the air quality of the city of Derby. As the city of Derby lies in the Northern
hemisphere, there is change of season at the time of October to November in the region. With the
change in season, there is change in wind patterns, which contributed to the air pollution. As
pollution caused by vehicles is not a major contributor to the pollution in the city of Derby. The
scheme violated the right to move freely as enshrined in the Article 19 of Part III of the
Constitution of Indigo.
A. DISCRIMINATORY BARRIERS BETWEEN ONE STATE AND ANOTHER OR
BETWEEN DIFFERENT PARTS OF THE SAME STATE
The words ‘throughout the territory of India’ explain the meaning of the words ‘freedom of
movement’ in sub-clause (d) of Article 19(1). The freedom guaranteed by this relates not to
general rights of locomotion but to the particular right of shifting or moving from one part of
Indian territory to another without any sort of discriminatory barriers between one state and
another or between different parts of the same state. The discriminatory barriers are made in the
sense that public transport system in the city of Derby is not well developed. Most of people in
the city of Derby belong to lower income group. As the city is highly populated and the ill
equipped public transport system, Citizens have no option to move out from one part of same
state or to a different state. This also stop other citizens to enter into the state as it cannot be

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 expected from each citizen that he had two vehicles (provided the poverty in the city of Derby),

one ending with odd number and other ending with even number.

In the landmark case of Kharak Singh v. State of U.P1., this Hon’ble court has said that the right
to move freely throughtout the territory of india means the “right to locomotion” which connotes
the right to move wherever one likes, whenever one likes, and however one likes.

In another case of N.B. Khare v. State of Delhi2, this court has held that the right to move freely
guarantees not merely right to move from one state to other state, but also from one place to
another within the same state.
B. NOT A REASONABLE RESTRICTION IN INTERESTS OF THE GENERAL PUBLIC
The clause 5 of Article 19 enables the state to impose reasonable restrictions on the freedom on
the following grounds-

1. in the interest of general public: or

2. for the protection of the interests of any scheduled Tribe.

It is very evident from the report submitted by the Government of Derby itself in the
Environment Tribunal that the odd even scheme has no impact on the decrease in vehicular
pollution. It is also clear that rampant increase in the pollution in the city of derby is due to the
weather and wind change, along with the stubble burning and season of cracker buring in the
city. Vehicular pollution is not a significant polluter. The Government of Derby scheme of odd
even is for publicity as elections in the city of Derby are approaching and no general interest of
public is involved. Even Environment Tribunal has scolded the Government of Derby for not
implementing the other measures suggested by this Hon’ble court form time to time. The
government just wants to implement Odd Even scheme to gain advantage in the election and has
no motive of the public good.

In the Narendra Kumar v Union of India3, the Court laid down. "In applying the test of
reasonableness, the Court has to consider the question in the background of the facts and
circumstances under which the order was made, taking into account the nature of the evil sought
to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed
remedy to the beneficial effect reasonably expected to result to the general public. It will be

1
1963 AIR 1295, 1964 SCR (1) 332
2
1950 AIR 211, 1950 SCR 519
3
1960 AIR 430, 1960 SCR (2) 375
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necessary to consider... whether the restraint caused by the law is more than necessary in the
interest of the general public".

It is evident from the reports submitted to the Environmental tribunal that the scheme is
unreasonable and arbitrary as it does not protect any of the public interest and is quite contrary to
it.

Thus it is clear that scheme violated the part III of the Constitution of Indigo and according to
Article 13 sub clause 2, it must be held null and void.

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 II. WHETHER THE ODD EVEN SCHEME VIOLATED THE
RIGHT TO LIFE AND PERSONAL LIBERTY
The Right to life and Personal Liberty does not mean mere physical existence or being medically alive,
but it includes the right to essential means and facilities which make life worth living with comfort and
dignity. An atmosphere where a person can grow physically as well mentally without fear and
restrictions. Right to life and Personal Liberty does not means mere animal existence, but a healthy life
with dignity and honour. It means more than mere animal existence.

Article 21 of the constitution states that ‘No person shall be deprived of his life or personal
liberty except according to procedure established by law’. It was clearly known to the
government that most of people are poor or middle class and public transport is not adequate.
Any scheme which put extra pressure on the current underserved public transport system, posed
a great risk to the ordinary life of people. Right to life, enshrined in Art, 21 means something
more than survival or animal existence. It would mean the right to live with human dignity.
Article 21 of the Constitution envisages a right to life and personal liberty of a person. The word
“Life” under Article 21 means a quality of life, which includes right of livelihood, right to
locomotion and the right to a privacy.

Further in order to establish violation of Article 21, the act should be subjected to the equality test of
Article 14 and test of reasonableness under Article 19. Article 14 strikes at arbitrariness because it
negates equality and permeates the entire fabric of Rule of Law. Therefore, every action of the State
must be guided by reason for public good and not by whim, caprice, and abuse of power. Article 19
provides that a restriction can be characterized to be reasonable if it strikes a balance between the
fundamental right and restriction imposed thereon.

A. RIGHT TO LOCOMOTION

What is sought to be protected by sub-clause (d) of Article 19(1) is only a specific and limited aspect
of the right of free movement viz. the right of free movement throughout the territory of India
regarded as an independent and additional right of locomotion emanating from the freedom of person,
which is dealt with in Article 21. It relates to the right to physical movement and would not apply to
mental restraint.

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 In the case of Menaka Gandhi v Union of India4, this Hon’able Court has held that locomotion is, in
some situations, necessarily involved in the exercise of the specified fundamental rights as an
associated or integrated right. Travel word is given a wider significance by Blackstone to the term
“personal liberty”, which may include the right to locomotion. It is held that the expression “personal
liberty” in Article 21 takes in the right of locomotion and travel abroad and under Article 21.

There is physical restraint in not allowing citizen to use his personal vehicle and public transport in
the city of Derby is also not so well equipped to serve the 1.67 crore population of the city of Derby,
plus the city is national capital of Indigo and there is large number of people visiting the city for
various purposes. The scheme will put the restraint on the individual physically to move around the
city.

B. RIGHT TO PRIVACY

What is sought to be protected This Hon’ble Court said in the judgment of K.S. Puttuswamy v.
Union of India5, that right to privacy is the fundamental right and does not need to be separately
articulated but can be derived from Articles 14, 19 and 21 of the Constitution of India. It is a
natural right that subsists as an integral part to the right to life and liberty. It is a fundamental and
inalienable right and attaches to the person covering all information about that person and the
choices that he/ she makes. It protects an individual from the scrutiny of the State in their home, of
their movements and over their reproductive choices, choice of partners, food habits, etc.
Therefore, any action by the State that results in an infringement of the right to privacy is subject
to judicial review.
The privacy of individual is affected when she is forced to travel in the public transport instead of
her having the right to travel in her own vehicle privately. There is also a issue of safety involved
as according to NCRB data(2016), it is not safe for women and children to travel in public
transport in the city of Derby. There is grave mistake on the part of government to not upgrade the
police system before coming up with such scheme for the citizens. Protection of citizens from
crime is the top most duty of the government and it is sad that government is running from this
duty.

4
1978 AIR 597, 1978 SCR (2) 621
5
WRIT PETITION (CIVIL) NO 494 OF 2012(www.sci.gov.in)
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 C. RIGHT TO LIVELIHOOD

This right is very much important for the 148000 cab drivers and other people who engaged in the
in the transport business, It cannot expected from the small taxi driver or cab driver to own
multiple cars with both ending with odd and even numbers. The economy of the Indigo is not
doing well and there is lack of business. Further imposition of this scheme will reduce the business
of the rivers and infringe their right to earn a livelihood.
This Court in Olga Tellis v. Bombay Municipal Corporation6, popularly known as the “Pavement
Dwellers Case” a five-judge bench of the Court now implied that ‘right to livelihood’ is borne out
of the ‘right to life’, as no person can live without the means of living, that is, the means of
Livelihood. That the court, in this case, observed that:
“The sweep of the right to life conferred by Art.21 is wide and far-reaching. It does not mean,
merely that life cannot be extinguished or taken away as, for example, by the imposition and
execution of death sentence, except according to procedure established by law. That is but one
aspect if the right to life. An equally important facet of the right to life is the right to livelihood
because no person can live without the means of livelihood.”
There are large number of small traders and businessmen in the city of Derby, who are dependent
on the very vital inter and intra city logistics for the operation of their business, this scheme will
put halt to their business. The city is bubbling with the service sector. Time is money in the service
sector, this scheme increase the average time a person spends in the commute. And effecting his
productivity and work. Thus eventually result in loss of livelihood for a number of people.

D. UNRREASONABLE RESTRAINT TO PERSONAL LIBERTY

Reasonable restriction on the freedom of personal liberty can be imposed. But it is not reasonable to
exhaust the right to individual of locomotion, privacy, safety and livelihood in the name of a scheme
which is a publicity stunt of the incumbent government to gather votes and not a concrete measure to
reduce the pollution. In the case of Menaka Gandhi, this Hon’ble Court has held that restriction on the
personal liberty must be the reasonable one. Arbitrary restrictions violated the fundamental rights and
are null and void.

6
1985 SCC (3) 545
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 III. WHETHER THE ODD EVEN SCHEME VIOLATED RIGHT TO
PRACTICE ANY PROFESSION, OR TO CARRY ON ANY
OCCUPATION, TRADE OR BUSINESS

A. Restraint on individual to carry occupation, trade or business

Engaging oneself into any sort of business or adopting a particular profession serves as a helping
hand to an individual to attain prestige and dignity in the eyes of the society. When he indulges
himself into any kind of a profession or takes up an occupation, it provides an assistance to him
in acquiring reputation and status in the public realm. As we are all well conversant with the
quote “Survival of the fittest”, we can conclude that today any individual in order to make a
living and cater to the needs of himself as well as his family members , it has become crucial for
him to keep himself employed in some or the other kind of occupation, start a business, or else
endeavour to be a professional in fields like medicine, law, teaching, advertising, etc.
This scheme of the Derby government put restraint on the taxi drivers, cab drivers and othr
logistic companies to carry on their trade and business. This right is enshrined in the 19(1)(g) 7 of
the Constitution of Derby. This scheme also effect the movement of goods in the economy that is
going through bad phase. This has very harmful effect on the small and medium size trade or
businesses. The service sector is also effected as the time in commutation will increase to a large
extent in the city due to lack of proper public transport in the city of Derby for everyone.
In Chintamanrao .v State of M.P8, an Act of Madhya Pradesh Government empowered the
Deputy Commissioner to prohibit the manufacture of bidis during the agricultural season in such
villages as he might specify in his order. The Supreme Court held that such a provision is void ,
as it violates Art 19(1)(g) , since a total prohibition of the manufacture imposes an unreasonable
and excessive restriction on the lawful profession of manufacturing bidis.
In this case also, the restriction is excessive and without any public interest. Vehicular pollution
is not the main reason for the excessive levels of pollution in the city of Derby. As per the
Environmeental reports submitte by the government off Derby in 2017, it is very much clear that
odd even scheme is ineffective in combating pollution and on the contrary there is increase in the
7
Article 19(1)(g) in The Constitution Of India
(g) to practise any profession, or to carry on any occupation, trade or business
8
1951 AIR 118, 1950 SCR 759.
pollution.

B. Restraint on Inter State Trade

Art. 301 aims at preventing restrictions on the volume of trade flowing and, therefore, the effect
of a law on individuals is irrelevant. Under this view, if ample provision is made for carrying on
trade, and

the volume of the trade remains as before, the mere fact that certain individuals have been
prohibited from taking part therein would not contravene Art. 301.

Again in the matter of Bapubhai v. State of Maharashtra9, there was a view that the difference
between Art. 19(1)(g) and Art. 301 is that Art. 301 could be invoked only when an individual is
prevented from sending his goods across the State, or from one point to another in the same state,
while Art. 19(1)(g) can be invoked only when the complaint is with regard to the right of an
individual to carry on business unrelated to, or irrespective of, the movement of goods, i.e. while
Art 301 contemplates the right of trade in motion, Art 19(1)(g) secures the right at rest.

To differentiate, Art. 19(1)(g) can be taken advantage by a citizen, while Art. 301 can be invoked
by a citizen as well as a non-citizen. Also, while Art. 19(1)(g) is not available to a corporate
person, Art. 301 may be invoked by a corporation and even by a State on complaints of
discrimination or preference which are outlawed by Art. 303.

In the matter of Madras v. Nataraja Mudaliar10, the court stated that-

“All restrictions which directly and immediately affect the movement of trade are declared by
Article 301 to be ineffective.”
In the matter of the State of Tamil Nadu v. Sanjeetha Tarding Co11., the Supreme Court
observed: “According to us, the expression ‘free trade’ cannot be interpreted in an unqualified
manner. Any prohibition on movement of any article from one State to another has to be

9
AIR 1956 Bom 21
10
1969 AIR 147
11
AIR 1993 SC 237
examined with reference to the facts and circumstances of that particular case- whether it
amounts to regulation only, taking into consideration the local conditions prevailing, the
necessity for such prohibition and what public interest is sought to be served by imposition
thereof.”
The odd even scheme effect the inter state trade as it is not possible for logistic companies to
have such a large number of fleet of vehicles with both odd or even number ending. Therefore,
the restriction on the inter state trade is arbitrary in nature and scheme is without any substance.
 PRAYER

WHEREOF IN THE LIGHT OF FACTS OF THE INSTANT CASE, WRITTEN PLEADINGS

AND AUTHORITIES CITED, IT IS HUMBLY PRAYED BEFORE THIS HON'BLE HIGH
COURT THAT IT MAY BE PLEASED TO HOLD, ADJUDGE AND DECLARE:

1) The Odd Even scheme violated the right to move freely throughout the territory of Indigo.

2) The Odd Even scheme violated the tight to life and personal liberty.
3) The Odd Even scheme violated the right to practice any profession or to carry on any
occupation , trade or business.
and pass any other order it may deem fit in the interest of justice, equity and good conscience.

All of which is humbly prayed

,
Counsel for the Petitioner.