Memorandum for Respondent,

DLSA / FOL JAMIA MILLIA ISLAMIA Moot Court Competition

BEFORE T HE H ON’BLE SUPREME COURT O F INDISTAN

IN THE MATTER OF –

PUBLIC INTEREST LITIGATION No _________/2021

(Under Article 32 of the Constitution of INDISTAN)

Ned Stark .............................................................. PETITIONER

v.

UNION OF Indistan .................................................................... RESPONDENTS

MEMORANDUM FOR THE Respondent

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TABLE OF CONTENTS
................................................................................................................................
II

INDEX OF AUTHORITIES
................................................................................................................................
V

INDEX OF ABBREVIATIONS
................................................................................................................................
XVI

STATEMENT OF JURISDICTION
................................................................................................................................
XVIII

STATEMENT OF FACTS
................................................................................................................................
XIX

ISSUES RAISED
................................................................................................................................
XXI

SUMMARY OF ARGUMENTS
................................................................................................................................
XXII

ARGUMENTS ADVANCED
................................................................................................................................
1

ISSUE (1):Whether the reservation in excess of 50 percent is violative of the

right to equality?
…………………………………………………………………………….

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A. As Constitution of India is a living document views of framer cannot

remain frozen for time immemorial………………

B. The amendment is not violative of article 14 of the

constitution………………………

C. The amendment is not in violation of article 15 & article 16 of the

constitution of Indistan……………..

D. The 103rd amendment is not against the equality principle of the court in
Indira Sawhney case.\

ISSUE (2): Whether it is constitutionally permissible to give reservation on the

basis of economic status?........................................................3

A. Reservation on economic basis is violative of basic structure of the

constitution….

1. EWS reservation fails the width test

2. EWS reservation fails the identity test.

B. Reservation on economic criteria is violative of article 14, 15 and 16 of the

constitution.

C. The government has failed to provide any data supporting the need for
reservation on economic criteria………………………………..

PRAYER……………………………………………………………………...XXIV

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INDEX OF AUTHORITIES.

SUPREME COURT CASES

• Budhan Choudhry And Ors v The State of Bihar, AIR 1955 SC 191;
• Chiranjit Lal Chowdhuri v The Union of India, AIR 1951 SC 41
• Indira Sawhney etc vs. Union of India AIR 1993 SC 477
• K.S. Puttaswamy and another vs. Union of India and others,1 2017(10)SCC 1
• Ramana Dayaram Shetty v Int’l Airport Auth. of India & Ors, (1979) 3 SCC 489.
• Rangachari [(1962) 2 SCR 586] w
• Supreme Court Advocates-on-Record Association and others vs. Union of India, 1
1993(4) SCC 441
• T.Devadasan vs The Union Of India And Another 1964 AIR 179
• The State of Bombay v F. N. Balsara, AIR 1951 SC 318
• The State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75.
• Thomas vs State of Kerela AIR 1969 Ker 81

CONSTITUENT ASSEMBLY DEBATES

• Constituent Assembly Debates, Vol. 7

COMMISSIONS & REPORORTS

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LIST OF ABBREVATIONS

ABBREVIAT EXPANSION
ION
¶ Paragraph
& and
A.I.R All India Reporter
A.P. Andhra Pradesh
All E.R. All England Report
Adm’r Administrator
Anr. Another
Art. Article
Ass’n Association
Auth. Authority
Bom. Bombay
Cal. Calcutta
Co. Company
Constr. Construction
Corpn. Corporation
Dec. December
Del. Delhi
Edn. Edition
Educ. Education
H.P. Himachal Pradesh
Hon’ble Honourable
Ibid Ibidem
EWS Economically weaker section
Gov. Government

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Guj. Gujarat
H.C. High Court

H.P. Himachal Pradesh

Hon’ble Honourable
Ibid Ibidem
Int’l International
IPC Indian Penal Code
J&K Jammu and Kashmir
Kar. Karnataka
Ltd. Limited
M.P. Madhya Pradesh
Mar March
n Supra
NGO Non-Governmental Organisation
No. Number
Ors. Others
PIL Pubic Interest Litigation
Pvt. Private
Raj. Rajasthan
s. Section
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Reporter
UK United Kingdom
US United States
v. Versus

w.r.t. With Reference to

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court has jurisdiction to hear this case under Article 32

of the Constitution of Diana which reads as follows:

“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”

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The present memorandum sets forth the facts, contentions and arguments in the

instant case.

STATEMENT OF FACTS

BACKGROUND

1. The Free Republic of Indistan is a Union of States resembling the Union of India. The

government model followed in this country is westminister model where prime minister

is responsible for running the union government and President is its titular head.

2. After independence in 1947, the country witnessed rapid economic growth however the

socio-economic growth had largely remained within the grasp of the few powerful

elites. 60 % of their population still lived far below the poverty line where professions

like bonded labour, manual scavenging, immoral trafficking and prostitution were

rampant.

3. The recent international surveys and Human Rights Reports had observed that the

Republic of Indistan is still poor with 80 % of the nation’s wealth being concentrated

in the hands of merely 20% of their population.

The 103RD Constitutional Amendment

4. In order to minimize the gap between rich and poor the 103 rd constitutional

Amendment was brought by the government in 2019. The bill was passed in Lok Sabha

by 323 members voting in favour and 3 members against the bill. It was subsequently

passed by Rajya Sabha with 165 members in the favour and only 7 members against

the bill.

5. The bill provides reservation of jobs in central government as well as government

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educational institutions. It also applies to citizens belonging to the ‘economically

weaker sections’ from the unreserved category. This reservation is over and above the

existing reservation scheme and subject to a maximum of ten per cent. The objective of

the bill is to provide equal opportunity to those who have previously suffered due to

poverty.

PIL FILED BEFORE THE HON’BLE SUPREME COURT

6. The aforesaid amendment made an activist by the name of Ned Stark concerned with the

manner in which the additional reservation shall have an impact on the Indian demography.

The economic indicators of government are too vague and even go against the constitutional

design. Ned Stark files a writ petition in the Supreme Court challenging the validity of the 103rd

Amendment . The union government of Indistan submitted that providing reservation for

economically weaker section is within its power under the constitution of Indistan

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ISSUES RAISED

The following issues have been placed before the Hon’ble Supreme Court to
adjudicate upon:

ISSUE -1 Whether the reservation in excess of 50 percent is violative of the right to

equality?

ISSUE-2 Whether it is constitutionally permissible to give reservation on the basis of

economic status?

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SUMMARY OF ARGUMENTS

ISSUE-1

Whether the reservation in excess of 50 percent is violative of the right to equality?

The Constitution (103rd Amendment) Act, 2019 (hereinafter referred to as the amendment)

provides for the insertion of Articles 15(6) and 16(6) in the Constitution . The 10% reservation

of seats is not violative of right to equality guaranteed under the constitution of Indistan. The

amendment must be declared valid , because, the constitution is a living document and needs

to adapt with the changing times. The view of the framers cannot be frozen for time

immemorial.. The amendment is not violative of article 14 of the constitution of Indistan.

Further the amendment is in line with the equality principles enshrined under violation of

article 15(1) and article 16(1) of the constitution of Indistan and the 50% ceiling limit is not

applicable in this case.

ISSUE-2

ii) Whether it is constitutionally permissible to give reservation on the basis of economic

status?

The 103th constitutional amendment gave reservation solely on the basis of economic status.

This classification is ultra vires to the constitution of Indistan. It is not constitutionally

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permissible to give reservation on economic basis as is violative of basic structure of the

constitution. The reservation on economic criteria is violative of article 14, 15 and 16 of the

constitution. Further the government has failed to provide any data supporting the need for

reservation on economic criteria. The reservation solely on economic basis is against the

dictum of this honorable court in some landmark judgments.

ARGUMENTS ADVANCED

Issue-1 Whether the reservation in excess of 50 percent is violative of the right to

equality?

It is humbly submitted before this honorable court that the Constitution (103rd Amendment)

Act, 2019 (hereinafter referred to as the amendment) provides for the insertion of Articles

15(6) and 16(6) in the Constitution is constitutionally valid. Therefore it must be declared as

such because [A] firstly, As Constitution of India is a living document views of framers cannot

remain frozen for time immemorial; [B] secondly, the amendment is not violative of right to

equality under article 14 of the constitution 1; [C] Thirdly, the amendment is not violative of

equality principles laid down in Article 15 and 16 of the constitution of Indistan and the 50%

ceiling limit is not applicable in this case.

A. As Constitution of India is a living document views of framers cannot remain

frozen for time immemorial.

1. It is humbly submitted before this honorable court that as the constitution is a living

1 Constitution of Indistan
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document the view of its framers can’t be frozen for time immemorial. The time fleets,

generations grow, society changes, values and needs also change by time. There can be

no denial that law should change with the changing time and changing needs of the

society.

2. It is humbly submitted that the judgment of this Court in K.S. Puttaswamy and

another vs. Union of India and others, 2 , wherein in paragraph 476 following was laid

down:

“476. However, the learned Attorney General has argued in support of the
eight-Judge Bench and the six-Judge Bench, stating that the Framers of the
Constitution expressly rejected the right to privacy being made part of the
fundamental rights chapter of the Constitution. While he may be right,
Constituent Assembly Debates make interesting reading only to show us
what exactly the Framers had in mind when they framed the Constitution of
India. As will be pointed out later in this judgment, our judgments expressly
recognise that the Constitution governs the lives of 125 crore citizens of this
country and must be interpreted to respond to the changing needs of society
at different points in time.”3

3. In another judgment of Supreme Court Advocates-on-Record Association and others

vs. Union of India,4 , wherein in paragraph 16 following has been laid down:

16. The proposition that the provisions of the Constitution must be confined
only to the interpretation which the Framers, with the conditions and outlook
of their time would have placed upon them is not acceptable and is liable to
be rejected for more than one reason firstly, some of the current issues could
not have been foreseen; secondly, others would not have been discussed and
thirdly, still others may be left over as controversial issues, i.e. termed as
deferred issues with conflicting intentions. Beyond these reasons, it is not
easy or possible to decipher as to what were the factors that influenced the
mind of the Framers at the time of framing the Constitution when it is
juxtaposed to the present time. The inevitable truth is that law is not static
and immutable but ever increasingly dynamic and grows with the ongoing
passage of time.

4. In the light of aforementioned judicial pronouncements of this honorable court it is

2 K.S. Puttaswamy and another vs. Union of India and others,2 2017(10)SCC 1
3 Constitutional Debates
4Supreme Court Advocates-on-Record Association and others vs. Union of India,4 1993(4)
SCC 441
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humbly contented that the view of framers of the constitution can not prevent the state

form making laws with the change of time. Therefore reservation in excess of 50%

should not be in consonance with the intention of the framers of the constitution on this

issue.

B. The amendment is not violative of right to equality under article 14 of the

constitution

5. In order for legislation to be within the boundaries of Art. 14 of the Constitution of

Indistan, it is required that it is rational, non-arbitrary and adequately directed

towards a specific objective sought to be achieved. 5

6. A key principle of Art. 14 is that it does not forbid a reasonable classification for

the purposes of legislation. 6 However, the test of permissible classification has two

pre- requisites, firstly, that the classification be founded on an intelligible differentia

and secondly, that the differentia has a rational relation to the object sought to be

achieved by the statute in question. 7

7. It is humbly submitted that in the present case the objective behind the 103 rd amendment

is that people from economically weaker sections of the society have largely remained

excluded from attending the higher educational institutions and public employment on

account of their financial incapacity to compete with the persons who are economically

more privileged.8

8. The classification is done on the basis of economic status which is a reasonable

5 Ramana Dayaram Shetty v Int’l Airport Auth. of India & Ors, (1979) 3 SCC 489.
6
Chiranjit Lal Chowdhuri v The Union of India, AIR 1951 SC 41; The State of Bombay v F. N.
Balsara, AIR 1951 SC 318; The State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75.
7
Budhan Choudhry And Ors v The State of Bihar, AIR 1955 SC 191;Arvind P. Datar, Commentary
On The Constitution Of India (2nd ed. 2007).
8 Moot Preposition para iv.

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classification keeping in mind the objective which is to provide better education and

employment opportunity to the poor.

C. The amendment is not violative of equality principles laid down in Article 15 and

16 and the 50% ceiling limit is not applicable in this case.

9. It is humbly submitted before this honorable court that the 103rd is not violative article

15 and 16 of the constitution. As observed by the apex court in Indira Sawhney’s case

We are also of the opinion that this rule of 50% applies only to reservations in favour

of backward classes made under Article 16(4). 9

10. This observation clearly shows that the 50 % ceiling is only limited to reservation under

article 16(4) of the constitution. It is submitted that for reservation under Article 15(6)

there is no maximum ceiling limit prescribed as the 50% ceiling limit is only limited to

article 16(4).

11. In Devadasan10 this rule of 50% was applied to a case arising under Article 16(4) and

on that basis the carry-forward rule was struck down. In Thomas11, however the

correctness of this principle was questioned. Fazal Ali, J. observed:

“Decided cases of this Court have no doubt laid down that the percentage of
reservation should not exceed 50%. As I read the authorities, this is however,
a rule of caution and does not exhaust all categories. Suppose for instance a
State has a large number of backward class of citizens which constitute 80%
of the population and the Government, in order to give them proper
representation, reserves 80% of the jobs for them can it be said that the
percentage of reservation is bad and violates the permissible limits of Clause
(4) of Article 16? The answer must necessarily be in the negative. The
dominant object to this provision is to take steps to make inadequate
representation adequate.”

9 Indira Sawhney etc vs. Union of India AIR 1993 SC 477

10 T.Devadasan vs The Union Of India And Another 1964 AIR 179
11 Thomas vs State of Kerela AIR 1969 Ker 81

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12. In the light of aforementioned judgment it is humbly submitted before this honorable

court that steps should be taken to make inadequate representation of a class adequate.

The government in 103rd amendment has the same objective to give adequate

representation to the poor who were previously having inadequate education and

employment opportunity. 60 % of their population still lived far below the poverty line

where professions like bonded labour, manual scavenging, immoral trafficking and

prostitution were rampant.12

13. Further, Krishna Iyer, J. agreed with the view taken by Fazal Ali, J. in the following
words:

“ I agree with my learned brother Fazal Ali, J. in the view that the arithmetical
limit of 50% in any one year set by some earlier rulings cannot perhaps be
pressed too far. Overall representation in a department does not depend on
recruitment in a particular year, but the total strength of a cadre. I agree with
his construction of Article 16(4) and his view about the carry forward' rule”. 13

14. Neither Article 16(4) nor Article 15(4) contains any percentage 14. The Court cannot

read a percentage i.e. 50 percent for effecting reservation under Article 15(4) and

Article 16(4), providing a ceiling by number is cutting down the Constitutional

provisions of Part-III and Part-IV. Indra Sawhney’s judgment has restricted the sweep

of Article 15 and Article 16 of the Constitution. The Constitutional provisions cannot

be read down which principle is applicable only with regard to statutes.

15. What precise method should be adopted for this purpose is a matter for the Government

to consider15. It is enough for us to say that while any method can be evolved by the

Government it must strike a reasonable balance between the claims of the backward

12 Moot preposition
13 T.Devadasan vs The Union Of India And Another 1964 AIR 179
14 Constitution of India
15 Rangachari [(1962) 2 SCR 586] w

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classes and claims of other employees as pointed out in Balaji case. [AIR 1963 SC 649].

16. It is humbly submitted before this honorable court that the 50% ceiling limit on

reservation is not applicable in every case. The 103rd amendment is a measure to

promote equality in the matter of education and employment and hence is not violative

of article 15 and 16 of the constitution of Indistan.

17. Neither Article 16(4) nor Article 15(4) contains any percentage 16. The Court cannot

read a percentage i.e. 50 percent for effecting reservation under Article 15(4) and

Article 16(4), providing a ceiling by number is cutting down the Constitutional

provisions of Part-III and Part-IV. Indra Sawhney’s judgment has restricted the sweep

of Article 15 and Article 16 of the Constitution. The Constitutional provisions cannot

be read down which principle is applicable only with regard to statutes.

18. What precise method should be adopted for this purpose is a matter for the Government

to consider17. It is enough for us to say that while any method can be evolved by the

Government it must strike a reasonable balance between the claims of the backward

classes and claims of other employees as pointed out in Balaji case. [AIR 1963 SC 649].

16 Constitution of India
17 Rangachari [(1962) 2 SCR 586] w
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