JLU – SCHOOL OF LAW INTRA MOOT COURT COMPETITION 2020

T - 18
JLU – SCHOOL OF LAW INTRA MOOT COURT

COMPETITION 2020

BEFORE THE HON’BLE SUPREME COURT OF

MARVEL LAND

W.P. No. _____/2020

PETITION INVOKED UNDER ART. 32 OF THE

CONSTITUTION OF MARVEL LAND

YUVA FOR EQUALITY AND OTHS......................PETITIONER

Vs.

UNION OF MARVEL LAND..................................RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF MARVEL
LAND.

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS .......................................................................... 3

INDEX OF AUTHORITIES ........................................................................... 4

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

STATEMENT OF FACTS .............................................................................. 9

STATEMENT OF ISSUES ........................................................................... 10

SUMMARY OF ARGUMENTS ................................................................... 11

ARGUMENTS ADVANCED ........................................................................ 12

ON MAINTAINABILITY .......................................................................... 12
[I.] THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE BEFORE
THE HON’BLE SUPREME COURT OF INDIA. ......................................................... 12
ON MERIT ................................................................................................. 13
[II.] RESERVATION CANNOT BE BASED SOLELY ON ECONOMIC CRITERIA ...... 13
[III.] SCS/STS AND OBCS CAN’T BE EXCLUDED FROM ECONOMIC
RESERVATIONS ......................................................................................................... 16
[IV.] THE IMPUGNED AMENDMENT VIOLATES THE CONCEPT OF JUDICIAL
REVIEW ...................................................................................................................... 19
[V] IMPOSING RESERVATIONS ON EDUCATIONAL INSTITUTIONS THAT DO NOT
RECEIVE STATE AID VIOLATES THE FUNDAMENTAL RIGHT TO EQUALITY ..... 22

PRAYER ........................................................................................................ 24

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LIST OF ABBREVIATIONS

ABBREVIATION EXPLANATION

& And

AIR All India Reports

Del Delhi

Ed Edition

SC Supreme Court

SCC Supreme Court Cases

Vol Volume

CPC Code of Civil Procedure

Anr. Another

Ors Others

PC Privy Council

SC Supreme Court

SCALE Supreme Court Almanac

SCC Supreme Court Cases

SCR Supreme Court Reporter

UOI Union of India

U/A Under Article

V Versus

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INDEX OF AUTHORITIES

CASES
A.P Agarwal v. Govt. of NCT of Delhi, 2000 SC 205 -------------------------------------------- 26
ABSK Sangh v. UOI, AIR 1981 SC 298 ----------------------------------------------------------- 20
AIIMS Students Union v. AIIMS, AIR 2001SC 3262 -------------------------------------------- 26
Ajit Singh I v. State Of Punjab, (1996) 2 SCC 715 ------------------------------------------------ 25
Akhil Bhartiya Soshit Karamchari Sangh (Rly.) v. Union of India , AIR 1981 SC 298 ------ 24
Asheesh Sharma v. Himachal Pradesh University, LQ 1989 HC 5690 ------------------------- 16
Ashok Kumar v. Union of India, AIR 1991 SC 1972 --------------------------------------------- 23
Ashok Pandey v State of UP, AIR 1996 All 24 ---------------------------------------------------- 25
B. Harsha v. The Registrar Anna University & Others, LQ 2003 HC 7694 -------------------- 16
Bachan Singh v. State of Punjab, AIR 1982 SC 1325 --------------------------------------------- 26
BALCO Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350 ------------- 15
Bandhua Mukti Morcha v. Union of India & Ors., AIR 1984 SC 802 -------------------------- 14
Bangalore Medical Trust v. B.S. Mudappa, AIR 1991 SC 1902 --------------------------------- 15
Basheshar Nath v. Commissioner of Income Tax, Rajasthan, [1959] Supp 1 SCR 528 ------- 25
Bhairebendra Narayan v. State of Assam, AIR 1956 SC 503 ------------------------------------ 24
Bhim Singhji v. Union of India, (1981) 1 SCC 166 ----------------------------------------------- 16
Board of Trustees, Ayurvedic and Unani Tibia College v. State of Delhi, AIR 1962 SC 458 23
C.D. Chauhan v. Reserve Bank of India, (1991) 2 GLR 1192 ----------------------------------- 16
Chattar Singh v. State of Rajasthan, AIR 1997 SC 303 ------------------------------------------- 20
CST v. Pine Chemicals Ltd., (1995) 1 SCC 58 ---------------------------------------------------- 24
Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104 --------------------------- 19
Dayanand v. Nagaraj, AIR 1976 SC 2183 ---------------------------------------------------------- 24
Devi Das Gopal krishnan v. State of Punjab, AIR 1967 SC 1895 ------------------------------- 23
Devidayal Rolling Mills v. Prakash Chimanlal Parikh, AIR 1993 SC 1982 -------------------- 24
Dr D.C. Wadhwa & Ors. v. State of Bihar & Ors., AIR 1987 SC 579 -------------------------- 15
General Manager v. Rangachari, AIR 1962 SC 36 ------------------------------------------------ 19
Guruvayur Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors., AIR 2004 SC 561
-------------------------------------------------------------------------------------------------------- 15
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 -------------------------------------- 23
Harakchand R. Banthia v. Union of India, AIR 1970 SC 1453 ---------------------------------- 23
Hari Shanker Bagla v. State of Madhya Pradesh, (1955) 1 SCR 380---------------------------- 21
I. C. Golaknath & Ors v. State Of Punjab & Anrs., AIR 1967 SC 1643. ----------------------- 18
I. N. Saksena v. State of M. P., AIR 1976 SC 2250 ----------------------------------------------- 23
I.R. Coelho vs. State of Tamil Nadu, (2007) 2 SCC 1--------------------------------------------- 18
In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 ---------------------------- 21
In re, The Delhi Laws Act, AIR 1951 SC 332 ----------------------------------------------------- 21
Indra Sawney v. Union of India, AIR 1993 SC 47 ------------------------------------------------ 16
Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 ---------------------- 20
Jagannath Baksh Singh v. State of U.P., AIR 1962 SC 1563 ------------------------------------- 23

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Jagdish Negi, President Uttarakhand Jan Morcha v. State Of Uttar Pradesh, AIR 1997 SC
3505 -------------------------------------------------------------------------------------------------- 21
Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Sabha Union, AIR 1967 SC 691 (701) --------- 24
Jaora Sugar Mills Pvt. Ltd. v. State of M.P., AIR 1966 SC 416 --------------------------------- 24
Javed v. State of Haryana, (2003) 8 SCC 369 ------------------------------------------------------ 20
John Vallamettom v. Union of India, AIR 2003 SC 2902 ---------------------------------------- 26
Joshi D.D. v. Union of India, AIR 1983 SC 420 --------------------------------------------------- 19
Justice K.S Puttaswamy (Retd.) v. Union of India, 2018 SC ------------------------------------- 17
K.C. Gajapati Narayana Deo v. State of Orissa AIR 1954 SC 375 (379) ----------------------- 23
Karabasappa v. State of Karnataka, (2001) 4 KCCR (SN) 379 ---------------------------------- 17
Kesavananda Bharati v. State of Kerala &Anr., AIR 1973 SC 1461. --------------------------- 18
Khunnathat Thathunni Moopil Nair v. State of Kerala AIR 1961 SC 552 ---------------------- 23
Krishna A.S. v. State of Madras, AIR 1957 SC 297 ----------------------------------------------- 24
Kunhikaman v. State of Kerala AIR 1962 SC 723 ------------------------------------------------ 23
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 ---------------------------------------- 23
M Nagaraj v Union of India, (2006) 8 SCC 212. -------------------------------------------------- 17
M.R Balaji v. State of Mysore, 1963 AIR 649 ----------------------------------------------------- 16
Maneka Gandhi v. Union of India. AIR 1978 SC 597 -------------------------------------------- 26
Mangal Singh v. Union of India,(1967) 2 SCR 109 at 112 --------------------------------------- 26
Minerva Mills Ltd. & Ors. v. Union Of India & Ors., AIR 1980 SC 1789 --------------------- 18
Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1 ------------------------------------ 20
Morey v. Doud, (1956) 118 U.S. 356 --------------------------------------------------------------- 26
Mriga Ravi Swamy v. State Of Gujrat, (2017) 2 GLH 431 --------------------------------------- 17
Munund Gram Panchayat v. State Munund Gram Panchayat (1992) 1 GLH 19 --------------- 16
Naraindas v. State of M. P., AIR 1974 SC 1232. -------------------------------------------------- 23
Narian Singh v. Patna Administration, (1955) 1 SCR 290---------------------------------------- 21
Panama Sugar Refining Co. v. Ryan, 293 U. S. 388, at p. 400 ----------------------------------- 23
Patricin Mukhim v. State Of Meghalaya, LQ 1997 HC 11775 ----------------------------------- 16
Peoples’ Union for Democratic Rights v. Union of India & Ors., AIR 1982 SC 1473 -------- 14
Pradeep Jain v. Union of India, AIR 1984 SC 1420 ----------------------------------------------- 19
R.K. Jain v. Union of India, AIR 1993 SC 1769 --------------------------------------------------- 22
R.M.D.C (Mysore) Pvt. Ltd. v. State of Mysore, AIR 1962 SC 594 ---------------------------- 23
Raghunath Rao, Ganapath Rao v. Union of India, AIR 1993 SC 1267 ------------------------- 26
Raj Pal Sharma v. State of Haryana, AIR 1985 SC 1263 ----------------------------------------- 20
Rajendran v. Union of India , AIR 1968 SC 507 -------------------------------------------------- 16
Romesh Thappar v. State of Madras, AIR 1950 SC 124 ------------------------------------------ 22
S. Nagaraj & Ors. v. State of Karnataka &Anr., 1993 (3) SCALE 548 ------------------------- 22
S.B.Dayal v. State of U.P (1972) 4 SCC 485------------------------------------------------------- 23
S.P. Gupta v. President of India & Ors., AIR 1982 SC 149 -------------------------------------- 14
S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 --------------------------------------- 22
S.S Bola v. B.D Sardana, (1997) 8 SCC 522 ------------------------------------------------------- 16
Sajjan Singh v. State of Rajasthan AIR 1965 SC 845 --------------------------------------------- 19
Sakhawant Ali v. State of Orissa, AIR 1955 SC 166 ---------------------------------------------- 20
Shankara Narayana, B.R. v. State of Mysore, AIR 1966 SC 1571------------------------------- 23
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Sonapur Tea Co. v. Mazirunnesa, AIR 1962 SC 137 (140) -------------------------------------- 24

St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558 -------------------------------- 19
State of Victoria v. The Commonwealth, 45 ALJ 251 -------------------------------------------- 25
State of Bombay v. Anwar Ali Sarkar, AIR 1952 SC 75 ----------------------------------------- 20
State of Bombay v. S.N. Balsara, AIR 1951 SC 318 ---------------------------------------------- 19
State of Kerala v. N. M. Thomas, AIR 1976 SC 490 ---------------------------------------------- 20
State of M.P. v. Mahalaxmi Fabric Mills Ltd., 1995 Supp (1) SCC 642 ------------------------ 23
State of Madras v. V.G. Row. Union of India & Ors., AIR 1952 SC 196 ---------------------- 22
State of Mysore v. P. Narasinga Rao, AIR 1968 SC 349 ----------------------------------------- 20
State of U.P. v. Dr. Dina Nath Shukla, (1997) 9 SCC 662 ---------------------------------------- 17
Subhesh Sharma v. Union of India, AIR 1991 SC 631 -------------------------------------------- 22
T .Devadasan v. Union of India, AIR 1964 SC 179 ----------------------------------------------- 24
Than Singh and others etc v. State of Madhya Pradesh, AIR 2005 MP 170 -------------------- 16
Trilok Nath Triku v. State of J & K , AIR 1967 SC 1283----------------------------------------- 16
Truax v. Corrigan, (1921) 257 U.S. 312 ------------------------------------------------------------ 26
Union of India & Another v. National Commission For Scheduled Castes & Another, 2014
LABIC 3453----------------------------------------------------------------------------------------- 17
Vajravelu Mudaliar P. v. Sp.Dy. Collector of Land Acquisition, Madras, AIR 1965 SC 1017
-------------------------------------------------------------------------------------------------------- 24
Waman Rao v. Union of India (1981) 2 SCC 362 ------------------------------------------------- 16
William Marbury v. James Madison, Secretary of State of the United States, 5 U.S. 137
(1803) ------------------------------------------------------------------------------------------------ 22

STATUTES

Article 137, The Constitution of India, 1950 ------------------------------------------------------- 26

Article 334, the Constitution of India, 1950 -------------------------------------------------------- 18
Article 46, the Constitution of India, 1950 --------------------------------------------------------- 17

OTHER AUTHORITIES

David Deener, Judicial Review in Modern Constitutional Systems, 46 (4) Am. Pol. Sc. Rev.
1079 (1952). ----------------------------------------------------------------------------------------- 26
Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 AM. POL. SC REV. 853
(1962) ------------------------------------------------------------------------------------------------ 25
S.P. Sathe, Judicial Review in India: Limit and Policy, 35 Ohio St. L.J. 870 (1974 ----------- 26
Statement of Objects and Reasons, The Constitution (117th Amendment) Bill (2012) -------- 25

BOOK

B. Shiva Rao, Framing of the Indian Constitution,(1967) ---------------------------------------- 29

Burdick, Law of the American Constitution 605 (1922) ------------------------------------------ 31

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Commentaries on The Constitution Of The United States 444(1883) --------------------------- 29

Dr. L.M. Singhvi, Constitution of India 24 (2nded.) ----------------------------------------------- 25
Durga Das Basu, Commentary on the Constitution of India, 3838 (8th ed. 2008) ------------- 16
H.M. Seervai , Constitutional Law of India (4th ed. 1993) --------------------------------------- 22
John W. Johnson and Robert P. Green, Affirmative Action: Historical Guides to
Controversial issues in America (1st ed., 2009) ------------------------------------------------- 22
Justice B. P. Banerjee, Writ Remedies, 1303 (4th ed. Rep. 2008) ------------------------------- 16
Lord Thring, Practical Legislation, Chapter IV (2nd ed. 1902) ----------------------------------- 30
M.P. Jain, Indian Constitution Law, 289 (6th ed. 2010) ------------------------------------------- 26
R. Vennkataramani & S.C. Raina, Public Interest Litigation, 53 (1st ed. Rep. 2012) --------- 16
Russell Hardin, Constitutionalism, in The Oxford Handbook of Political Economy 289 ----- 25
T.K. Tope, Constitutional Law of India, 731 (3rd ed. 2010) ------------------------------------- 22
V.G. Ramachandran, Law of Writs, 964 (6th ed. 2006) ------------------------------------------ 15

REFERENCE

Article 14, European Convention on Human Rights, 213 UNTS 221 --------------------------- 30
Article 14, United Nation Covenant on Civil and Political Rights, 6 ILM 368 (1967) -------- 30
Article 7, United Nations Universal Declaration of Human Rights, GA res. 217A (III), UN
Doc A/810 at 71 (1948); --------------------------------------------------------------------------- 30
First Backward Classes Commission Report, 1955------------------------------------------------ 17

WEBSITES

1) http://www.findlaw.com
2) http://www.judis.nic.in
3) http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4) http://www.scconline.com
5) http://www.supreme-today.com
6) http://www.indialawlibrary.com
7) https://www.airinfotech.in

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STATEMENT OF JURISDICTION

THE WRIT PETITION HAS BEEN FILED BEFORE THE HON’BLE SUPREME COURT
OF MARVEL LAND UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA FOR
DETERMINING THE CONSTITUTIONAL VALIDITY OF THE CONSTITUTION (ONE
HUNDREDTH AND THIRD AMENDMENT) ACT, 2019.

THE PROVISION UNDER WHICH THE PETITIONER HAS APPROACHED THE

HON’BLE COURT IS READ HEREIN UNDER AS:

Article 32 in the Constitution of India, 1949:

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
2. The Supreme Court shall have 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
3. Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and (
2 ), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
4. The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution

All of which is respectfully submitted.

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STATEMENT OF FACTS

Description of Parties:-Yuva for equality, Backward Class upliftment organisation and

many other organizations are petitioners in the instant matter and have filed a petition in
Supreme Court of Marvel Land.

Background:-Marvel land republic was formed in 1950 with a fourfold objective of securing
to its citizen justice, liberty, equality and fraternity. Further, the citizens were guaranteed so
many fundamental rights, through the Constitution, for a better standard of life. Land is still
concentrated in the few hands, only 5% of Marvel land’s farmers control 32% land.

Timeline of Events

 In 1980, the 2nd Backward class Commission Report, followed one of the landmark
case supreme court judgment in 1992, which allowed not more than 50 per cent of
seats in the educational and service matter for the ST (Scheduled Tribes), SC
(Scheduled Castes) and OBC (Other Backward Classes) who constituted around 70
per cent of the total population of Marvel land.
 This lead to a considerable progress in their status; according to the data released by
governmental authorities between 2004-2005 and 2011-2012, more people among the
deprived social classes — SCs, STs and OBCs — were brought above the poverty
line, compared to other segments of society. Further before the election of 2018
various communities got united and strongly demanded abolishment of affirmative
actions on the basis of caste, per se. Therefore, legislature thought to frame policies
for the upliftment of the economically weaker sections of the people who belonged to
“other category” or “general category”.
 Keeping this in mind the legislature passed the Constitution (103rd Amendment) Act,
2019 to provide for 10 per cent reservation in the jobs and educational institutions to
economically backward section in the general category.

Present Case:-Yuva for equality, Backward Class upliftment organisation and many other
organizations have filed petition in the Hon’ble Supreme Court of Marvel Land challenging
the constitutional validity of the 103rd Amendment. They argue that the Amendment violates
the basic features of the Constitution and violates the fundamental right to equality under
Article 14.

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STATEMENT OF ISSUES

ON MAINTAINABILITY

I. WHETHER THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE

BEFORE THE HON’BLE SUPREME COURT OF MARVEL LAND OR NOT?

ON MERITS

II. WHETHER THE RESERVATION CAN BE BASED SOLELY ON ECONOMIC

CRITERIA OR NOT?

----------------

III. WHETHER THE SC’S/ST’S AND OBC’S CAN BE EXCLUDED FROM ECONOMIC
RESERVATIONS OR NOT?

----------------

IV. WHETHER THE IMPUGNED AMENDMENT VIOLATES THE CONCEPT OF

JUDICIAL REVIEW OR NOT?

----------------

V. WHETHER IMPOSING RESERVATIONS ON EDUCATIONAL INSTITUTIONS

THAT DO NOT RECEIVE STATE AID VIOLATES THE FUNDAMENTAL RIGHT TO
EQUALITY OR NOT?

----------------

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SUMMARY OF ARGUMENTS

ON MAINTAINABILITY

I. THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE BEFORE

THE HON’BLE SUPREME COURT OF INDIA.
The petitioner, Society for Equality has litigational competence to submit the writ petition
before Supreme Court of India. Further, Article 32 of the Constitution of India gives power to
the Supreme Court of India to entertain the writ petition.

ON MERITS

II. THAT THE RESERVATIONS CANNOT BE BASED SOLELY ON ECONOMIC

CRITERIA
It is most respectfully submitted before the Hon’ble court that reservations cannot be solely
based on economic criteria because it is not an absolute measurement of backwardness,
furthermore backward tier has not been classified yet. There has also been a wrongful
attainment of legitimacy from Art. 46.

III. SCs/STs AND OBCs CANNOT BE EXCLUDED FROM ECONOMIC

RESERVATIONS
It is most respectfully contended that SCs/STs and OBCs cannot be excluded from economic
reservations because it would lead to violation of basic structure doctrine, and the principle of
equality. It would also lead to reserve discrimination and creation of class without rational
basis.

IV. THE IMPUGNED AMENDMENT VIOLATES THE CONCEPT OF JUDICIAL

REVIEW.
It is humbly contended before the Hon’ble Court the impugned judgement is a clear violation
of the concept of judicial review as it undermines an earlier judgement passed by the
judiciary, when there is an implied limitation on the power of amendment with Art. 368.

V. IMPOSING RESERVATIONS ON EDUCATIONAL INSTITUTIONS THAT

DONOT RECEIVE STATE AID VIOLATES THE FUNDAMENTAL RIGHT TO
EQUALITY
It is humbly contended before the Hon’ble Supreme Court that the state cannot exercise
untrammelled and unconstitutional power as it is against the tenets of constitutionalism. The
new amendment act violates the principle of equality enshrined in the Constitution.

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ARGUMENTS ADVANCED

[1] The following submissions have been made before the Hon’ble Chief Justice of Marvel
Land and the other companion judges of the Hon’ble Supreme Court. The present case is
regarding the constitutionality of The Constitution (One Hundredth and Third Amendment)
Act, 2019. It is humbly submitted before this Hon’ble Court that [I.] The writ petition is
maintainable; [II.] Reservations cannot be based solely on economic criteria; [III.] SCs/STs
and OBCs cannot be excluded from economic reservations; [IV.] The impugned amendment
violates the concept of judicial review; [V.] Imposing reservations on educational institutions
that do not receive State aid violates the fundamental right to equality.

ON MAINTAINABILITY

[I.] THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE BEFORE

THE HON’BLE SUPREME COURT OF INDIA.

[2] It is respectfully contended before the Hon’ble Court that the petition filed by Yuva for
Equality is maintainable. The Council on behalf of the Petitioner most humbly rests the
contentions on following sub-issues.

[I.A.] ARTICLE 32 OF THE CONSTITUTION OF INDIA GIVES POWER TO THE

SUPREME COURT OF INDIA TO ENTERTAIN THE WRIT PETITION.
[3] Article 32 provides right to any member of the public, acting in a bona fide manner, to
approach the Supreme Court in case of violation of fundamental right 1, for the benefit of the
society at large2. The Amendment Act in question is violative of the basic structure of the
constitution and the right to equality ensured as a fundamental right under Articles 14, 15 and
16 of the constitution3. Thus in the present case, by virtue of power conferred under Article
32 of the constitution Supreme Court has jurisdiction to entertain the Public Interest
Litigation.

1
Bandhua Mukti Morcha v. Union of India & Ors., AIR 1984 SC 802; S.P. Gupta v. President of India & Ors.,
AIR 1982 SC 149; Peoples’ Union for Democratic Rights v. Union of India & Ors., AIR 1982 SC 1473.
2
V.G. Ramachandran, Law of Writs, 964 (6th ed. 2006).
3
Statement of Facts.
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[I.B.] YUVA FOR EQUALITY HAS LITIGATIONAL COMPETENCE TO SUBMIT

THE WRIT PETITION BEFORE SUPREME COURT OF INDIA.
[4] The concept of aggrieved person stands substituted by the principle of litigational
competence as it is more appropriate to PIL4. Yuva for Equality in the present case has the
litigational competence of a public interest litigant as it has justified the prerequisites, i.e.
firstly, an appropriate issue or concerns with reference to a constitutional right5 and secondly
an appropriate person who can be entrusted with the bona fide responsibility to pursue such
issues or concern6. Yuva for Equality being a voluntary organization concerned with right to
equality has challenged such legislation and ordinances which were violative of right to
equality7. Furthermore, excessive reservation is an issue of public importance and many
people who are affected by such reservation do not have the resources to approach the court
individually. Thus as per the principles laid down by Supreme Court in Guruvayur
Devaswom Managing Committee v. C.K. Rajan8 the common rule of locus standi should be
relaxed and raising question on the maintainability of the petition should be barred for the
better interest of the people.

ON MERIT

[II.] RESERVATION CANNOT BE BASED SOLELY ON ECONOMIC CRITERIA

[5] It is respectfully contended before the Hon’ble Court that the reservation cannot be based
solely on economic criteria. The Council on behalf of the Petitioner most humbly rests the
contentions on following sub-issues.

[II.A.] ECONOMIC CRITERIA IS NOT A MEASUREMENT OF BACKWARDNESS

[6] The Constitution states that “The State shall promote with special care the educational and
economic interests of the weaker sections of the people, and in particular, the Scheduled
Castes and Scheduled Tribes and shall protect them from social injustice and all forms of
exploitation9.” It is to be noted that when the constitution declared provisions for the

4
R. Vennkataramani & S.C. Raina, Public Interest Litigation, 53 (1st ed. Rep. 2012); Bangalore Medical Trust
v. B.S. Mudappa, AIR 1991 SC 1902.
5
Justice B. P. Banerjee, Writ Remedies, 1303 (4th ed. Rep. 2008).
6
Supra note 4; Durga Das Basu, Commentary on the Constitution of India, 3838 (8th ed. 2008).
7
Statement of Facts.
8
Guruvayur Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors., AIR 2004 SC 561; BALCO
Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350; Dr D.C. Wadhwa & Ors. v. State of
Bihar & Ors., AIR 1987 SC 579.
9
Article 46, the Constitution of India, 1950.
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upliftment of backward classes10, the indicators of backwardness11 was ‘social’ and

‘educational’. The economic criterion did not feature anywhere as a measure of
backwardness12.
[7] In 1953, Kala Kalelkar Commission’s report interpreted the term “socially and
educationally backward classes as relating primarily to social hierarchy based on caste”. It
identified 2,399 such communities13. The term ‘other’ was added to distinguish them from
the SCs, STs and Dalits. After much chaos and conflict 14, the Supreme Court upheld the 27
per cent reservation of the OBCs subject to the fact that those who had advanced socially,
educationally and economically from among them would be excluded from such a
provision15. For the court, ‘social backwardness’ meant extreme marginalisation in terms
of social status – primarily in the form of caste. Justice P. Sawant made it clear that a
purely economic criterion would allow the higher ups in the hierarchy of social status to
monopolise state power something that the reservation scheme was meant to counter 16.

[II.B.] RESERVATION IS NOT A REITERATION OF SCHEMES

[8] A nuanced distinction exists between reservation and policies for the other weaker
sections17. The difference exists in the condition that these sects of the society are subjected
to18 and therefore economic marginalisation and quotas that aimed to address the exclusion
of socially and educationally backwards groups from State power are two different
aspects19 and actions serve two different purpose20. For the economically weaker sections,
there are prevalent welfare policies21, as redistributive strategies22, aimed to mitigate
poverty23. On the other hand, reservations were special policies 24 aimed to include groups
which suffered from socio-political marginalisation25 in the state machinery. This is a
distinction that has lent constitutional coherence to India’s affirmative action regime 26.

10
M.R Balaji v. State of Mysore, 1963 AIR 649.
11
Asheesh Sharma v. Himachal Pradesh University, LQ 1989 HC 5690.
12
Bhim Singhji v. Union of India, (1981) 1 SCC 166.
13
First Backward Classes Commission Report, 1955.
14
Waman Rao v. Union of India (1981) 2 SCC 362.
15
Indra Sawney v. Union of India, AIR 1993 SC 47.
16
S.S Bola v. B.D Sardana, (1997) 8 SCC 522.
17
Rajendran v. Union of India , AIR 1968 SC 507.
18
T.Devadasan v. Union of India, AIR 1964 SC 179.
19
Subhesh Sharma v. Union of India, AIR 1991 SC 631.
20
Trilok Nath Triku v. State of J & K , AIR 1967 SC 1283.
21
Than Singh and others etc v. State of Madhya Pradesh, AIR 2005 MP 170.
22
Munund Gram Panchayat v. State Munund Gram Panchayat (1992) 1 GLH 19.
23
C.D. Chauhan v. Reserve Bank of India, (1991) 2 GLR 1192.
24
B. Harsha v. The Registrar Anna University & Others, LQ 2003 HC 7694.
25
Patricin Mukhim v. State Of Meghalaya, LQ 1997 HC 11775.
26
Justice K.S Puttaswamy (Retd.) v. Union of India, 2018 SC .
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Reservations, under the Indian constitution27, do not refer to the sharing of state power by all
social groups, but the inclusion of subordinated and marginalised groups28.

[II.C.] LACK OF CLASSIFICATION OF THE BACKWARD TIER

[9] Identification of such “economically weaker” is difficult as we do not have a system
where income of a person is known for sure. Determining the income of any person is tough.
The system of records is already warped even when it comes to land. And hence to get the
income is even more difficult. One can see that such a system will be open to gaming where
individuals may pay bribes to get this attestation. Presently, it is difficult to exclude the
higher income groups from LPG subsidy and even PDS29. With a plethora of people claiming
to be economically challenged, the benchmark has to be well-determined.

[II.D.] WRONGFUL ATTAINMENT OF LEGITIMACY FROM ARTICLE 46

[10] The statement of objects and reasons of the Amendment says that the provision for
reservation to EWS is made to fulfill the mandate of Article 46. This Article directs the “State
to promote with special care the educational and economic interests of the weaker sections of
people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect
them from social injustice and all forms of exploitation 30”. Article 46 speaks of weaker
sections that are victims of ‘social injustice and exploitation 31’ thereby qualifying weaker
sections with some degree of social backwardness.
[11] The State of Gujarat 32 attempted to introduce a similar reservation of ten per cent in
favour of EWS through an Ordinance. However, the Ordinance was struck down by
the Gujarat High Court on the ground that there is no provision in the Constitution that
empowers State to provide reservations to EWS. Under Article 16(4), State can grant
reservation in favour of BC only if it is satisfied that they are inadequately represented in the
services. In M Nagaraj v Union of India 33, it was held that inadequacy of representation is a
constitutional requirement without which the structure of equality of opportunity would
collapse.

27
Article 334, the Constitution of India, 1950.
28
State of U.P. v. Dr. Dina Nath Shukla, (1997) 9 SCC 662.
29
Karabasappa v. State of Karnataka, (2001) 4 KCCR (SN) 379.
30
Union of India & Another v. National Commission For Scheduled Castes & Another, 2014 LABIC 3453.
31
Devati Balasubrahmanyam v. District Collector, Nellore, LQ 1985 HC 1812.
32
Mriga Ravi Swamy v. State Of Gujrat, (2017) 2 GLH 431.
33
M Nagaraj v Union of India, (2006) 8 SCC 212.
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[III.] SCS/STS AND OBCS CAN’T BE EXCLUDED FROM ECONOMIC

RESERVATIONS

[12] It is respectfully contended before the Hon’ble Court that the reservation cannot be based
solely on economic criteria. The Council on behalf of the Petitioner most humbly rests the
contentions on following sub-issues.

[III.A.] VIOLATION OF DOCTRINE OF BASIC STRUCTURE

[13] A full bench was constituted in the case of Kesavananda Bharati v. State of Kerala 34
wherein the landmark "basic structure doctrine" was laid down by the Hon'ble Supreme Court
of India, overruling the 1967 judgment of Golaknath35. According to this doctrine, the
objectives specified in the Preamble, contain the basic structure of the Constitution and the
same cannot be amended in exercise of the powers conferred under Article 368 of the
Constitution36. The Parliament could not use its amending powers under Article 368 to
'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the basic structure or framework
of the Constitution. Any amendment of the Constitution which affects the basic features in
the abovementioned manner is liable to be interfered with by the Court on such a ground 37.
So far as the question lies as to what constitutes a 'basic feature', it would be determined by
the Court in each case that comes before it 38. The Supreme Court in the case of I.R. Coelho
vs. State of Tamil Nadu 39,has categorically held that Article 15 of Constitution along with
Articles 14, 19 and 21 constitute the ‘core values’ which cannot be abrogated. The impugned
amendment violates Article 14 exclusively and is beyond the ambit of the legislative powers
of the Legislation, thus overrides the doctrine of basic structure.

[III.B.] VIOLATES THE PRINCIPLE OF EQUALITY ENSHRINED IN THE

CONSTITUTION
[14] The Constitution (One Hundred Third Amendment) Act, 2019 violates the principle of
equality enshrined in the Preamble as it increases the gap of opportunity between the
scheduled castes/ scheduled tribes and the general population of the country. The concept of
equality and equal protection of laws guaranteed by Article 14 in its spectrum encompasses

34
Kesavananda Bharati v. State of Kerala &Anr., AIR 1973 SC 1461.
35
I. C. Golaknath & Ors v. State Of Punjab & Anrs., AIR 1967 SC 1643.
36
Rajendra N Shah v. Union of India & Another, 2013 (2) GLR 1698.
37
Minerva Mills Ltd. & Ors. v. Union Of India & Ors., AIR 1980 SC 1789.
38
V.G. Ramachandran, Law of Writs, 964 (6th ed. 2006).
39
I.R. Coelho vs. State of Tamil Nadu, (2007) 2 SCC 1.
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social and economic justice in a political democracy40. It impedes the balance between the
right to equality of opportunities guaranteed to every citizen and the claims of certain
groups/classes to preferential treatment 41.
[15] The doctrine of affirmative action has been deduced from the ‘equal protection’ clause
of Article 1442. Though Article 16(4) does not confer any fundamental right upon any
individual it enjoins the State to take positive action to alleviate inequality 43 or, in other
words, it confers power coupled with duty44. Thus, State is empowered for positive
discrimination45. Article 14 enjoins the State to take affirmative action by way of giving
preference to the socially and economically disadvantaged persons in order to bring about
real equality46. The Court would uphold reservations to a reasonable extent to protect and
further the aspirations47 of backward classes48.

[III.C.] LEADS TO REVERSE DISCRIMINATION

[16] The Court cannot ignore the constitutional morality which embraces in itself the doctrine
of equality49. It would be constitutionally immoral to perpetuate inequality among majority
people of the country in the guise of protecting the constitutional rights of backward and
downtrodden50. If the affirmative action results in reverse discrimination the whole purpose
of the action is defeated as it will result in obliterating the fundamental right of equality in
being considered for promotions 51. Neither classification nor affirmative action can obliterate
the individual right to equal opportunity52.
[17] The Supreme Court observed in the M.R. Balaji case53 that while making adequate
reservation under art 16(4), care would be taken not to provide for unreasonable, excessive or
extravagant reservation54, for that would eliminate general competition in a large field and
create widespread dissatisfaction amongst the employees, materially affecting efficiency 55. If
the structural balance of equality in the light of the efficiency is disturbed and if the

40
Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104.
41
Sajjan Singh v. State of Rajasthan AIR 1965 SC 845.
42
Indra Swahney v. Union of India, AIR 1993 SC 477.
43
Neera Gupta v. University of Delhi, AIR 1997 Del 175.
44
General Manager v. Rangachari, AIR 1962 SC 36 .
45
State of U.P. v. Dr. Dina Nath Shukla, (1997) 9 SCC 662.
46
St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558.
47
Lingappa Pochanna Appelwar v. State of Maharashtra (1985) 1 SCC 479.
48
Pradeep Jain v. Union of India, AIR 1984 SC 1420.
49
Durga Das Basu, Commentary on the Constitution of India, 3838 (8 th ed. 2008)
50
State of Bombay v. S.N. Balsara, AIR 1951 SC 318
51
T.K. Tope, Constitutional Law of India, 731 (3rd ed. 2010).
52
H.M. Seervai , Constitutional Law of India (4th ed. 1993).
53
M.R.Balaji v. State of Karnataka, AIR 1963 SC 649.
54
Joshi D.D. v. Union of India, AIR 1983 SC 420.
55
T. Devadasan v. Union of India, AIR 1964 SC 179.
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individual right is encroached upon by excessive support for group expectations by providing
for impediment-free reservation in promotions as well, it would amount to reverse
discrimination56 as it would lead to very few seats/vacancies remaining for the “non-
backward classes”.

[II.D.] LAW PROHIBITS CREATION OF CLASS WITHOUT A RATIONAL BASIS

[18] It is submitted that the State has faulted for not sufficiently engaging in evidence-based
policy making and the impugned amendment is not based on strong normative foundations or
empirical evidence57. The N.M Thomas case58 held that equality of opportunity guaranteed
under Article 16(1) refers to equality between members of the same class of employees and
not equality between members of separate and independent classes 59. Thus in the case of SC
and ST’s who suffer from socio-economic backwardness, the fundamental right to equality of
opportunity justifies separate categorization for the purpose of ‘adequate representation in the
state services’60. Although OBC may be socially or educationally handicapped, they do not
suffer the same social handicap inflicted upon SC/ST. The object of reservation for SC/ST is
to bring them into the main stream of national life61, while the objective for backward class
reservation is to remove their social and educational handicap 62.

[III.E.] INADEQUATE RESERVATION OF ECONOMICALLY WEAKER

SECTIONS, NOT PROVEN
[19] Article 16(4) speaks of “adequate representation, before providing for reservation two
circumstances must exist: backwardness and inadequacy of representation, and these
limitations are reminded by the amendment 63. The fact that SC/ST is a part of backward class
has already been made clear by this court64. This could only conclude with the fact that the
state by adding the terms ‘deemed to be backward’ is only circumventing the law so as not
provide with the only requirement Article 16(4A) directly 65.
[20] Thus, the State can provide reservation even under Article 16(1) to other classes
provided there are exceptional circumstances that necessitate reservation in public interest 66.

56
Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697.
57
Sakhawant Ali v. State of Orissa, AIR 1955 SC 166
58
State of Kerala v. N. M. Thomas, AIR 1976 SC 490.
59
Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1 .
60
Chattar Singh v. State of Rajasthan, AIR 1997 SC 303.
61
Raj Pal Sharma v. State of Haryana, AIR 1985 SC 1263 .
62
State of Mysore v. P. Narasinga Rao, AIR 1968 SC 349
63
ABSK Sangh v. UOI, AIR 1981 SC 298.
64
Indra Swahney v. Union of India, AIR 1993 SC 477.
65
Javed v. State of Haryana, (2003) 8 SCC 369
66
State of Bombay v. Anwar Ali Sarkar, AIR 1952 SC 75
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No class is to be given reservation unless they qualify the criteria given in Trilok Nath Triku
v. State of J & K case 67. The government can certainly conduct periodical reviews and no
community or backward class can claim benefits to reservation in perpetuity68. For the case
of SC/ST this is a chance for eternity and the state wishes to do away with any liability on it
to calculate the lack of representation. Article 16(4) speaks of “adequate representation” and
not “proportional representation” and thus, power must be exercised reasonably and fairly.

[IV.] THE IMPUGNED AMENDMENT VIOLATES THE CONCEPT OF JUDICIAL

REVIEW

[21] It is respectfully contended before the Hon’ble Court that the impugned amendment violates
the concept of judicial review. The Council on behalf of the Petitioner most humbly rests the
contentions on following sub-issues.

[IV.A.] THERE IS IMPLIED LIMITATION ON THE POWER OF AMENDMENT IN

ACCORDANCE WITH ARTICLE 368.
[22] In the case, In re Berubari Union and Exchange of Enclaves 69, inter alia, this court held
that: “The Preamble is not a part of the Constitution”. So, it cannot be amended as the
Amendment referred to in Article 368 is of this Constitution and the Preamble is not a part of
it. If an Amendment Act is passed so as to abrogate any of the Fundamental Rights then, in
consequence the Preamble is amended as the Fundamental Rights are also an essential feature
as indicated by the Preamble which in turn, is prohibited. 70 The Supreme Court has lain down
that there is an implied limitation on legislative power: the Legislature cannot delegate the
essentials of the legislative functions. 71 The same concept of implied limitation in the
Legislature, in the field of delegation, has been invoked and applied in many cases. 72
[23] Constitutionalism recognizes the need of government but insists upon limitation being
placed upon governmental powers. Limited government is the central point of
constitutionalism. It is the anti-thesis of arbitrary powers.73 Thus, the concept of

67
Trilok Nath Triku v. State of J & K , AIR 1967 SC 1283.
68
Jagdish Negi, President Uttarakhand Jan Morcha v. State Of Uttar Pradesh, AIR 1997 SC 3505.
69
In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845.
70
Kesavananda Bharati v. State of Kerala &Anr., AIR 1973 SC 1461.
71
In re, The Delhi Laws Act, AIR 1951 SC 332 .
72
See Raj Narian Singh v. Patna Administration, (1955) 1 SCR 290; Hari Shanker Bagla v. State of Madhya
Pradesh, (1955) 1 SCR 380.
73
Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 AM. POL. SC REV. 853 (1962); Dr. L.M.
Singhvi, Constitution of India 24 (2nded.).
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constitutionalism which is inherent in our constitution provides for an implied limitation on

the powers of the legislature.

[IV.B.] JUDICIAL REVIEW AS A BASIC FEATURE OF THE CONSTITUTION

CANNOT BE UNDERMINED BY LEGISLATIVE ACTION
[24] Judicial review is a basic and essential feature of the constitution. 74 Article 32, 131 to
137 and Article 143 indicates the intention of the framers of the constitution to confer the
power of judicial review to the Supreme Court of India. In Minerva Mills v. UOI,75 the court
in its majority opinion observed that it is the duty of the judges to pronounce upon the
validity of laws.76 The Supreme Court has to exercise the power of judicial review to uphold
the constitutional values and to enforce the constitutional limitations. 77
[25] The 103rd Constitutional Amendment Act has inserted an amendment in the
constitution. 78 The impugned amendment in effect nullifies the effect of the decision given
by Supreme Court in both Indra Sawhney v. Union of India and M. Nagaraj v. Union of
India.79 The Supreme Court has guarded the socio-economic rights and the fundamental
rights of the citizens80 in the best interest of the people. The Parliament by introducing the
impugned amendment has acted as an authority in judicial capacity by nullifying such
decisions, which is against the basic structure of the constitution. 81

[IV.C.] JUDICIAL REVIEW ENDORSES THE CONCEPT OF CHECKS AND

BALANCES
[26] The power of judicial review of legislation is granted to the judiciary to check its
conformity with the constitution. 82 The Supreme Court through an earlier decision in Indra
Sawhney v. Union of India, has already interpreted Article. Even if we assume that the
interpretation regarding reservation and the procedure given in the decision is impossible to
practice in reality, then also the power to review 83 and rectify such decision for the sake of
justice84 is with the Supreme Court itself and not with legislature.85 Therefore in the present

74
S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386; Subhesh Sharma v. Union of India, AIR 1991 SC
631.
75
Minerva Mills Ltd. &Ors. v. Union Of India &Ors., AIR 1980 SC 1789.
76
Id.
77
William Marbury v. James Madison, Secretary of State of the United States, 5 U.S. 137 (1803).
78
Statement of Facts.
79
Statement of Objects and Reasons, The Constitution (117th Amendment) Bill (2012), Statement of Facts.
80
S.S. Bola v. B.D. Sharma, AIR 11997 SC 3127; Romesh Thappar v. State of Madras, AIR 1950 SC 124.
81
Supra note 124. R.K. Jain v. Union of India, AIR 1993 SC 1769; S.P. Sathe, Judicial Review in India: Limit
and Policy, 35 Ohio St. L.J. 870 (1974).
82
State of Madras v. V.G. Row. Union of India & Ors., AIR 1952 SC 196.
83
Article 137, The Constitution of India, 1950.
84
S. Nagaraj & Ors. v. State of Karnataka &Anr., 1993 (3) SCALE 548.
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case the impugned amendment is against the concept of checks and balances 86 as it
essentially nullifies the effect of Supreme Court decisions.
[27] The legislature cannot delegate essential features87 or “uncanalised and uncontrolled
power”.88 The power must not be unruly horse.89 In Hamdard Dawakhana v. Union of
India,90 the court held a Central Act unconstitutional because of excessive delegation
authorized there under. In doing so the Court held that no proper guidance or standard91 was
supplied to the rule-making authority in determining what was to be brought within the ambit
of the Act.92 In the case at hand, the Parliament has by way of granting unfettered power to
the State to make provision for reservation in matters of promotion.93 Granted to the
executive, such powers, are not only beyond its ambit but also liable to misuse, 94 especially
keeping in mind the contentious issue of the subject matter of the Act. 95

[IV.D.] THE AMENDMENT IS A PIECE OF COLOURABLE LEGISLATION.

[28] The doctrine of colourable legislation is based on the maxim that what cannot be done
directly cannot also be done indirectly. 96 The doctrine is in essence a question vires or power
of the legislature to enact the law in question. 97 If the Constitution of a State distributes the
legislative spheres marked out by specific legislative entries, or if there are limitations on the
legislative authority in the shape of fundamental rights. 98 Such transgression may be patent,
manifest or direct.99 It is also called “legislative fraud” 100 in legal parlance. 101 The idea
conveyed by the expression is that although apparently a legislature is passing a statute
purporting to act within the limits of its powers, 102 yet in reality it transgressed these

85
M.P. Jain, Indian Constitution Law, 289 (6th ed. 2010).
86
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
87
Harishankar Bagla v. State of M. P., AIR 1954 SC 465, at p. 468.
88
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, at p. 568.
89
Panama Sugar Refining Co. v. Ryan, 293 U. S. 388, at p. 400.
90
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
91
Devi Das Gopal krishnan v. State of Punjab, AIR 1967 SC 1895; S.B.Dayal v. State of U.P (1972) 4 SCC 485.
92
Harakchand R. Banthia v. Union of India, AIR 1970 SC 1453.
93
Statement of Facts.
94
Naraindas v. State of M. P., AIR 1974 SC 1232.
95
I. N. Saksena v. State of M. P., AIR 1976 SC 2250.
96
S.S. Bola v. B.D. Sardana, AIR 1997 SC 3183.
97
K.C. Gajapati Narayana Deo v. State of Orissa AIR 1954 SC 375 (379); Kunhikaman v. State of Kerala AIR
1962 SC 723, Shankara Narayana, B.R. v. State of Mysore, AIR 1966 SC 1571, State of M.P. v. Mahalaxmi
Fabric Mills Ltd., 1995 Supp (1) SCC 642, Board of Trustees, Ayurvedic and Unani Tibia College v. State of
Delhi, AIR 1962 SC 458.
98
Khunnathat Thathunni Moopil Nair v. State of Kerala AIR 1961 SC 552.
99
R.M.D.C (Mysore) Pvt. Ltd. v. State of Mysore, AIR 1962 SC 594.
100
K.C. Gajapati Narayana Deo v. State of Orissa, AIR 1953 SC 375.
101
Ashok Kumar v. Union of India, AIR 1991 SC 1972.
102
Jagannath Baksh Singh v. State of U.P., AIR 1962 SC 1563.
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powers,103 the transgression being veiled by what appears, on proper examination, to be a

mere pretence or disguise.104 The validity of a statute can be challenged on the ground that it
constitutes a colourable exercise of, or a fraud upon, the legislative power. 105 Any
amendment which contravenes the principle of judicial review is beyond the constitutional
authority of the legislature.106 Such an amendment was uncalled for as it is a clear example of
a piece of colourable legislation.

[V] IMPOSING RESERVATIONS ON EDUCATIONAL INSTITUTIONS THAT DO

NOT RECEIVE STATE AID VIOLATES THE FUNDAMENTAL RIGHT TO
EQUALITY

[29] It is respectfully contended before the Hon’ble Court that imposing reservations on
educational institutions that do not receive state aid violates the fundamental right to equality.
The Council on behalf of the Petitioner most humbly rests the contentions on following sub-
issues.

[V.A.] THE STATE CANNOT EXERCISE UNFETTERED, UNTRAMMELED AND

UNCONSTITUTIONAL POWER TO PROVIDE RESERVATION AS IT IS
AGAINST THE TENETS OF CONSTITUTIONALISM.
[30]Reservation should not be excessive and cannot be taken to the extent of affecting the
guarantee contained in art 16(1).107 This was indeed followed in Akhil Bhartiya Soshit
Karamchari Sangh (Rly.) v. Union of India, 108 where the Supreme Court laid down that “in
the interest of efficient administration, and at least half of the total number of posts should be
kept open to attract the best of nation’s talent. If it is otherwise, an excess of reserved quotas
would convert the state service into a collective membership predominantly of backward
class.”
[31] In Indra Sawhney v. Union of India, it was declared that “under Article 16(4) care
should be taken not to provide for unreasonable, excessive or extravagant reservation and

103
Jaora Sugar Mills Pvt. Ltd. v. State of M.P., AIR 1966 SC 416; Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor
Sabha Union, AIR 1967 SC 691 (701); Krishna A.S. v. State of Madras, AIR 1957 SC 297.
104
K.C. Gajapati Narayana Deo v. State of Orissa, AIR 1954 SC 375 (379); Kunhikaman v. State of Kerala, AIR
1962 SC 723; Shankara Narayana, B.R. v. State of Mysore, AIR 1966 SC 1571; Sonapur Tea Co. v.
Mazirunnesa, AIR 1962 SC 137 (140); Vajravelu Mudaliar P. v. Sp.Dy. Collector of Land Acquisition, Madras,
AIR 1965 SC 1017.
105
Jagannath Baksh Singh v. State of U.P., AIR 1962 SC 1563; CST v. Pine Chemicals Ltd., (1995) 1 SCC 58;
Devidayal Rolling Mills v. Prakash Chimanlal Parikh, AIR 1993 SC 1982; Dayanand v. Nagaraj, AIR 1976 SC
2183.
106
Bhairebendra Narayan v. State of Assam, AIR 1956 SC 503.
107
T .Devadasan v. Union of India, AIR 1964 SC 179.
108
Akhil Bhartiya Soshit Karamchari Sangh (Rly.) v. Union of India , AIR 1981 SC 298.
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reservation under Article 16(4) should be within permissible and legitimate limits and any
excess is liable to be challenged ‘as a fraud on the constitution’”. The principle that
reservation shall not exceed 50% applies only to reservation in respect of backward classes
made under article 16(4).109 With the 103rd Amendment, Article 15(6) & Article 16(6) is now
enshrined thus necessarily exceeding the 50% cap of reservation.
[32] In the case of Ajit Singh, 110 it was held that “for attracting meritorious and talented
persons to the public services, a balance has to be struck, while making provision for
reservation in respect of a section of the society.” A similar observation was made in Akhil
Bharatiya Soshit Karmachari Sangh (Rly) v. Union of India.111There is no doubt that the
court will interfere where the percentage of reservation is not reasonable, having regard to the
strength of the different communities, the population of the entire state and the extent of their
backwardness. 112 Thus it is humbly put forth that as a need for caution, the reservation under
Article 16(4) should not, as a rule exceed 50%. 9

[V.B.] THE CONSTITUTION (ONE HUNDRED AND THIRD AMENDMENT) ACT,

VIOLATES THE PRINCIPLES OF EQUALITY ENSHRINED IN THE PREAMBLE
OF THE CONSTITUTION.
[33] The Preamble delineates the contours in accordance with which our Constitutional
machinery has to function.113 It enlists the goals which our Constitution intends to achieve.
This fact can be appreciated only by looking into the history of the framing of our
Preamble.114 Shiva Rao observes that, “The object of putting the Preamble last was to see
that it was in conformity with the constitution as accepted.” 115 It was added so as to clearly
show that the people are who have given a charter for their governance, in the Constitution,
and the goals of which have been clearly mentioned in the Preamble to the Constitution.
[34] Article 14 embodies within it the Dicean concept of the “Rule of Law” 116, which means
inter-alia an equal subjection of all classes to the ordinary law of the land.117 As a basic
feature of the Constitution, 118 this also exemplifies the concept of equal protection of the

109
Ashok Pandey v State of UP, AIR 1996 All 24.
110
Ajit Singh I v. State Of Punjab, (1996) 2 SCC 715.
111
Akhil Bharatiya Soshit Karmachari Sangh (Rly) v. Union of India, (1981) 1 SCC 246.
112
Trilokinath v. State of J & K, AIR 1967 SC 1283
113
State of Victoria v. The Commonwealth, 45 ALJ 251.
114
Basheshar Nath v. Commissioner of Income Tax, Rajasthan, [1959] Supp 1 SCR 528.
115
Commentaries on The Constitution Of The United States 444(1883).
116
A.P Agarwal v. Govt. of NCT of Delhi, 2000 SC 205; See also, Supra note 20.
117
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
118
Raghunath Rao, Ganapath Rao v. Union of India, AIR 1993 SC 1267.
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law.119 Equal protection means the absence of any arbitrary discrimination 120 by the laws
themselves or in their administration. 121 None should be favoured122 and none should be
placed under any disadvantage in circumstances that do not admit of any reasonable
justification123 for a different treatment.124
[35] The concept of Liberty should be coupled with social restraint such that common
happiness for the greatest number can be assured.125 Further, the aspect of “Fraternity” can
only be achieved only if the people of India as a whole were bound together by a spirit of
brotherhood. Reservation, unless protected by the Constitution itself, as given to us by the
founding fathers and as adopted by the people of India, is a subversion of fraternity, unity,
and integrity and the dignity of the individuals as secured by the Preamble to the
Constitution. 126

[V.C.] THE PREAMBLE IS A KEY TO GAUGE THE INTENTION OF THE

CONSTITUTIONAL FRAMERS.
[36] The grand vision and the objective behind making of the constitution are reflected in the
Preamble.127 It lays down the ideas that our forefathers after years of struggle for freedom
wanted to achieve. 128 The desires, the hopes and the aspiration of the people of this country
are materialized in the form of the Preamble by the constitutional framers. 129 The constitution
and the Preamble were drafted in light and direction of the Objective resolution where the
Constitutional Assembly declared India as an Independent Sovereign republic. From the
Preamble it is clear the constitution framers had two main objectives: (1) To constitute India
into a sovereign Democratic Republic and (2) to secure to its citizen the rights mentioned
therein.

119
Article 7, United Nations Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71
(1948); Article 14, United Nation Covenant on Civil and Political Rights, 6 ILM 368 (1967); Article 14,
European Convention on Human Rights, 213 UNTS 221.
120
Maneka Gandhi v. Union of India. AIR 1978 SC 597.
121
Burdick, Law of the American Constitution 605 (1922).
122
Morey v. Doud, (1956) 118 U.S. 356.
123
John Vallamettom v. Union of India, AIR 2003 SC 2902.
124
Truax v. Corrigan, (1921) 257 U.S. 312.
125
S.S. Bola v. B.D. Sardana, (1997) 8 SCC 522.
126
AIIMS Students Union v. AIIMS, AIR 2001SC 3262.
127
Sajjan Singh v. State of Rajasthan,(1965) 1 SCR 933 at 968.
128
Lord Thring, Practical Legislation, Chapter IV (2nd ed. 1902).
129
Mangal Singh v. Union of India,(1967) 2 SCR 109 at 112.
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PRAYER

WHEREFORE, in the light of the issues raised, arguments advanced and authorities cited it is
most humbly prayed and implored to The Hon’ble Supreme Court of Marvel Land, that it
may be graciously pleased to adjudge and declare as it may please:

i. Declare that the petitions are maintainable before the Hon’ble Supreme Court.

ii. Declare that the reservations cannot be based solely on economic criteria.

iii. Declare that SCs/STs and OBCs cannot be excluded from economic reservations.

iv. Declare that the impugned amendment violates the concept of judicial review.

v. Declare that imposing reservations on educational institutions that do not receive

State aid violates the fundamental right to equality.

AND/OR

Pass and issue any other direction, order or writs as it may deem fit in the interest of justice,
equity and good conscience. And for this, the Petitioner as in duty shall humbly pray.

For this act of Kindness, the Petitioner shall duty bound forever pray.

The Petitioner
Sd/-
..............................
(Counsel for the Petitioner)

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MEMORIAL OF PETITIONER