HSNC University, Mumbai

D.M. Harish School of Law

Subject: Moot Court Clinical

Topic: Constitutional Law Moot

Submitted by: Disha.G.Bafna, Dhruvi.K.Joshi, Shreya

Kawade.

Program: BA.LLB.

Roll No.: 1, 10, 12.

Semester: II

Submitted to: Prof. Shahiza Irani.

Signature of the Faculty

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WRIT PETITION NO. 40 OF 2022

IN THE HONOURABLE SUPREME COURT OF INDIANA

IN THE MATTER OF:

X, Y and Z………….Petitioners

VERSUS

Union of Indiana…………Respondent

UNDER ARTICLE 32 OF
THE CONSTITUTION
OF INDIANA

___________________________________________________________________________

ON SUBMISSION TO THE HONORABLE SUPREME COURT JUDGES

MOST RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS............................................................................................................................1

LIST OF REFERENCES AND CASES/ INDEX OF AUTHORITIES ...........................................................2

I. ACTS/ STATUTES/ CONSTITUTIONS REFERRED.................................................................................2

II. TABLE OF CASES.......................................................................................................................................2

SYNOPOSIS......................................................................................................................................................3

STATEMENT OF FACTS …………................................................................................................................4

STATEMENT OF JURISDICTION .................................................................................................................7

SUMMARY OF ISSUES/ ISSUES RAISED....................................................................................................8

SUMMARY OF ARGUMENTS ......................................................................................................................9

PLEADINGS / ARGUMENTS ADVANCED ...............................................................................................11

1. THE 103RD CONSTITUTIONAL AMENDMENT ACT, 2019 DOES NOT VIOLATES THE BASIC
STRUCTURE OF THE CONSTITUTION OF INDIANA ………......………………………….…….....11

2. THE ADDITIONAL 10% RESERVATION FOR MEMBERS OF THE ECONOMICALLY WEAKER

SECTIONS IN EDUCATIONAL INSTITUTIONS AND PUBLIC EMPLOYMENT IS NOT
UNCONSTITUTIONAL AND IT DOES NOT BREACHES THE 50% THRESHOLD SET OUT BY
THE SUPREME COURT OF INDIANA IN THE CASE OF MANDIRA SHAWNEY Vs. UNION OF
INDIANA……………………………...……………..…………………………………………………13

PRAYER........................................................................................................................................................ 15
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LIST OF ABBREVIATIONS

1. AIR: All India Reporters.

2. Art. : Article
3. Const : Constitution.
4. Cl : Clause
5. Hon’ble: Honorable.
6. Id : Ibid
7. MANU: Manupatra.
8. Pg. : Page
9. Para: Paragraph.
10. SC: Supreme Court.
11. SCC: Supreme Court Cases.
12. Vs : Versus.

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LIST OF REFERENCES AND CASES/ INDEX OF AUTHORITIES

I. ACTS/ STATUTES/ CONSTITUTIONS REFERRED

1. Constitution of India, 1950.

2. The Constitution (One Hundred And Third Amendment) Act, 2019.

II. TABLE OF CASES

1. Indra Sawhney vs. Union of India, AIR 1993 SC 477.

2. Kesavananda Bharati Sripadagalvaru vs. State of Kerala, MANU/SC/0445/1973.
3. Voice (Consumer Care) Council vs. State of Tamil Nadu, (1996) 11 SCC 740.

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SYNOPSIS

This writ petition in the Supreme Court is with regard to the validity of 103rd Amendment Act, 2019 which
gave rise to Article 15 (6) and Article 16 (6) under this amendment which provides reservation for
economically weaker sections of the society from the unreserved category to jobs in government and
governmental educational institutions. It has been drafted to mandate and translate Article 46 (a Directive
Principle of State Policy) of the Constitution of Indiana into a reality that urges the State to protect the
educational and economic interests of the weaker sections of society. Its validity has been questioned on the
grounds that violates the basic structure of the Constitution of Indiana and that the additional 10% reservation
for members of the economically weaker sections in educational institutions and public employment is
unconstitutional, as it breaches the 50% threshold set out by the Supreme Court of Indiana in the case
of Mandira Shawney vs. Union of Indiana. X, Y and Z are public spirited persons who have filed a petition in
the Supreme Court of Indiana under article 32 of the Constitution of Indiana.

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STATEMENT OF FACTS

1. Indiana is one of the largest democratic countries in the world. The Constitution of Indiana was
adopted on 26 November 1949. The Constitution and laws of Indiana are pari materia to the laws of
India.
2. The fundamental rights are covered under Part III of the Constitution of Indiana uphold human
dignity and offers protection against violation of indispensable, inherent rights.
3. Another feature of the Constitution of Indiana is a provision on “affirmative action” or “positive
discrimination” which is undertaken for the protection of vulnerable populations such as Scheduled
Castes and/or Scheduled Tribes through provisions on ‘reservation’ in government services,
educational institutions, and in legislatures. Reservation aims at securing seats for certain sections of
population aforementioned.
4. The main provisions on reservation in the Constitution of Indiana are as follows: -

(a) Article 15(4)1- Special provisions for the advancement of socially and educationally backward
classes or for the Scheduled Castes and Scheduled Tribes
(b) Article 15(5)2 - Special provisions for the advancement of socially and educationally backward
classes or for the Scheduled Castes and Scheduled Tribes relating to their admission in educational
institutions including private educational institutions, whether aided or unaided by the State,
excluding minority educational institutions referred to in Article 30(1).
(c) Article 16(4) 3 - Special provisions for reservation of appointment or posts in favour of any
backward class of citizens, which in opinion of the State, is not adequately represented in the
services under State.
5. In January 2019, the Government of Indiana brought about the 103rd Amendment Act which provides
reservation for economically weaker sections of the society from the unreserved category to jobs in
government and in governmental educational institutions.
6. The reservation happens to be over the existing reservation scheme and limits i.e. maximum of 10%
which is identified by the Supreme Court of Indiana. The Statement of Objects and Reasons states that
economically weaker sections have largely remained excluded from attending higher educational
institutions and public employment on account of their financial incapacity to compete with the
persons who are economically more privileged.

1 INDIA CONST. art. 15, cl. (4)
2 INDIA CONST. art. 15, cl. (5)
3 INDIA CONST. art. 16, cl. (4)
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7. A bill to that effect was introduced in the House of People where 323 members voted for the 103rd
amendment act and 3 members were against it. In the Council of States where 165 members voted for
the amendment and 7 members were against it.
8. This amendment act is drafted to mandate and translate article 46 which is mentioned in the directive
principle of state policy into a reality. This article reads as under:
9. Article 46: “The State shall promote with special care the educational and economic interests of the
weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes,
and shall protect them from social injustice and all forms of exploitation.” 4 (emphasis added)
10. While socially disadvantaged sections have enjoyed participation in the employment in the services of
the State, no such benefit was provided to the economically weaker sections.
This Amendment Act makes the following insertions to the Constitution of Indiana:
Article 15 of the Constitution of Indiana: Prohibition of Discrimination on grounds of religion, race,
caste, sex or place of birth: -
[(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall
prevent the State from making,—
(a) any special provision for the advancement of any economically weaker sections of citizens other
than the classes mentioned in clauses (4) and (5); and

(b)any special provision for the advancement of any

economically weaker sections of citizens other than the classes
mentioned in clauses (4) and (5) in so far as such special provisions
relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other
than the minority educational institutions referred to in clause (1) of
article 30, which in the case of reservation would be in addition to the
existing reservations and subject to a maximum of ten per cent. of the
total seats in each category.

Explanation.—For the purposes of this article and article 16,

"economically weaker sections" shall be such as may be notified by the State
from time to time on the basis of family income and other indicators of
economic disadvantage.]

4 INDIA CONST. art. 46
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Article 16 of the Constitution of Indiana: Equality of opportunity in matters of public employment: -

[(6) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any
economically weaker sections of citizens other than the classes mentioned in
clause (4), in addition to the existing reservation and subject to a maximum of
ten per cent. of the posts in each category.]

11. X, Y and Z are public spirited persons who have filed a petition in the Supreme Court of Indiana under
Article 32 of the Constitution of Indiana challenging the constitutional validity of the 103rd
Constitutional Amendment Act on the following grounds that: -

(a) It violates the basic structure of the Constitution of Indiana; and

(b) The additional 10% reservation for members of the Economically Weaker Sections in educational
institutions and public employment is unconstitutional, as it breaches the 50% threshold set out by
the Supreme Court of Indiana in the case of Mandira Shawney vs. Union of Indiana5 that is pari
materia to the case of Indra Sawhney vs. Union of India 6.

5 This Judgment is pari materia to the decision in the case of Indra Sawhney vs. Union of India, AIR 1993 SC 477.
6 Indra Sawhney vs. Union of India, AIR 1993 SC 477.
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STATEMENT OF JURISDICTION

The counsel for the respondent submits to the jurisdiction of this Hon’ble Court in response to a writ petition
filed by the petitioners under Article 32 of the Constitution of India which confers upon this Court the
jurisdiction to issue any directions, orders of writs for the enforcement of any of the rights conferred by Part
III of the Constitution.

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STATEMENT OF ISSUES/ISSUES RAISED

1. X, Y AND Z ARE PUBLIC SPIRITED PERSONS WHO HAVE FILED A PETITION IN THE
SUPREME COURT OF INDIANA UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDIANA CHALLENGING THE CONSTITUTIONAL VALIDITY OF THE 103RD
CONSTITUTIONAL AMENDMENT ACT, 2019 ON THE FOLLOWING GROUNDS THAT: -

• THE 103RD CONSTITUTIONAL AMENDMENT ACT, 2019 VIOLATES THE BASIC

STRUCTURE OF THE CONSTITUTION OF INDIANA?

2. AN 11-MEMBER BENCH OF THE SUPREME COURT OF INDIANA HAS BEEN

CONSTITUTED TO HEAR THIS MATTER AND ADDRESS THE FOLLOWING ISSUES:
• THE ADDITIONAL 10% RESERVATION FOR MEMBERS OF THE ECONOMICALLY
WEAKER SECTIONS IN EDUCATIONAL INSTITUTIONS AND PUBLIC EMPLOYMENT IS
UNCONSTITUTIONAL, AS IT BREACHES THE 50% THRESHOLD SET OUT BY THE
SUPREME COURT OF INDIANA IN THE CASE OF MANDIRA SHAWNEY vs. UNION OF
INDIANA.7

7 Id. at 6.

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SUMMARY OF ARGUMENTS

1. X, Y AND Z ARE PUBLIC SPIRITED PERSONS WHO HAVE FILED A PETITION IN THE
SUPREME COURT OF INDIANA UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDIANA CHALLENGING THE CONSTITUTIONAL VALIDITY OF THE 103RD
CONSTITUTIONAL AMENDMENT ACT, 2019 ON THE FOLLOWING GROUNDS THAT: -

• THE 103RD CONSTITUTIONAL AMENDMENT ACT, 2019 VIOLATES THE BASIC

STRUCTURE OF THE CONSTITUTION OF INDIANA?

The counsel would like to humbly submit that as the 103rd Constitutional Amendment Act, 2019 does
not violate the basic structure of the Constitution of Indiana as the amendment is in conformity with
the principle of affirmative action of the Constitution of Indiana. The amendment does not change the
identity of the Constitution or it does not demolish the edifice of the Constitution of Indiana rather, it
is in conformity with Constitution and promotes equality of opportunity which is a fundamental right
of the citizens.

2. AN 11-MEMBER BENCH OF THE SUPREME COURT OF INDIANA HAS BEEN

CONSTITUTED TO HEAR THIS MATTER AND ADDRESS THE FOLLOWING ISSUES:
• THE ADDITIONAL 10% RESERVATION FOR MEMBERS OF THE ECONOMICALLY
WEAKER SECTIONS IN EDUCATIONAL INSTITUTIONS AND PUBLIC EMPLOYMENT IS
UNCONSTITUTIONAL, AS IT BREACHES THE 50% THRESHOLD SET OUT BY THE
SUPREME COURT OF INDIANA IN THE CASE OF MANDIRA SHAWNEY Vs. UNION OF
INDIANA.8

The counsel would like to humbly submit that the additional 10% reservation for members of EWS in
educational institutions and public employment is not unconstitutional even though it exceeds the 50%
limit set in the case of Mandira Shawney vs Union of Indiana9 as this is an exceptional case. The
amendment introduces new clauses which are distinct from the clauses which have a 50%

8 Id. at 6.
9 Id. at 6.

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10 case
limit. The Mandira Shawney vs Union of Indiana is inapplicable to the present case and
exceeding the limit of 50% in the present exceptional case is not unconstitutional.

10 Id. at 6.

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PLEADINGS/ ARGUMENT ADVANCED

1. X, Y AND Z ARE PUBLIC SPIRITED PERSONS WHO HAVE FILED A PETITION IN THE
SUPREME COURT OF INDIANA UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDIANA CHALLENGING THE CONSTITUTIONAL VALIDITY OF THE 103RD
CONSTITUTIONAL AMENDMENT ACT, 2019 ON THE FOLLOWING GROUNDS THAT: -

• THE 103RD CONSTITUTIONAL AMENDMENT ACT, 2019 DOES NOT VIOLATES THE BASIC
STRUCTURE OF THE CONSTITUTION OF INDIANA

1. The counsel would like to humbly submit that as the Constitution and laws of Indiana are pari
materia to the laws of India, the 103rd Constitutional Amendment Act, 2019 doesn’t violate the basic
structure of Constitution of Indiana. The basic structure comprises significant pillars which form the
foundation of the Constitution, some of which were discussed in the Kesavananda Bharati
Sripadagalvaru Vs. State of Kerala11.
2. The significance of these pillars is that even if one of them is removed the entire edifice of the
Constitution will fall. Therefore, the question which arises here is that, whether the said amendment
would lead to a collapse of the edifice of the Constitution?
3. “The 103rd Constitutional Amendment Act merely inserts a provision of reservation for the
economically weaker sections of the unreserved category to jobs in the government sector as well as
government educational institutions. This amendment has been drafted with a will to mandate and
translate Article 4612 of Constitution of Indiana into reality.
4. Article 46 is a Directive Principle of State Policy that urges the State to protect the educational and
economic interests of the weaker sections of society. The socially disadvantaged sections have
enjoyed participation in employment in the services of the State, while no such benefit was provided
to the economically weaker sections. People from economically weaker sections of society have
largely remained excluded from attending higher educational institutions and public employment on
account of their financial incapacity to compete with the persons who are economically more
privileged.” 13

11 Kesavananda Bharati Sripadagalvaru vs. State of Kerala, MANU/SC/0445/1973.
12 INDIA CONST. art. 46.
13 Constitutional Law Moot, Para V, Pg 2.
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5. Thus it can be said that the newly inserted clauses in Article 1514 and Article 1615 of the constitution
of Indiana are in conformity with the feature of affirmative action of the Constitution of Indiana
which helps in promoting the equality of opportunity for the citizens of Indiana.

14 INDIA CONST. art. 15.
15 INDIA CONST. art. 16.
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2. AN 11-MEMBER BENCH OF THE SUPREME COURT OF INDIANA HAS BEEN
CONSTITUTED TO HEAR THIS MATTER AND ADDRESS THE FOLLOWING ISSUES:
• THE ADDITIONAL 10% RESERVATION FOR MEMBERS OF THE ECONOMICALLY
WEAKER SECTIONS IN EDUCATIONAL INSTITUTIONS AND PUBLIC EMPLOYMENT IS
NOT UNCONSTITUTIONAL AND IT DOES NOT BREACHES THE 50% THRESHOLD SET
OUT BY THE SUPREME COURT OF INDIANA IN THE CASE OF MANDIRA SHAWNEY Vs.
UNION OF INDIANA.16

6. The counsel would like to humbly submit that as the Constitution and laws of Indiana are pari
materia to the laws of India, the case of Mandira Shawney vs Union of Indiana 17 cannot be
applicable to the present case, as the said judgment was delivered while determining the
constitutional validity of certain Office Memorandums issued by the Government of India in the year
1990, which provided for reservations for the backward classes of citizens in services under the State
and the 50% limit was thus decided in relation to Article 15(4)18 , Article 15(5) 19 and Article 16(4)20 .
7. Whereas the present case introduces Article 15(6)21 and Article 16(6)22 have been inserted, which did
not exist in the Constitution when Mandira Shawney vs Union of Indiana 23 was delivered. Thus, the
Honourable Court in the Mandira Shawney vs Union of Indiana24 case did not have the opportunity
to deliberate upon the newly introduced clauses in Article 1525 and Article 1626.
8. The present case introduces reservation for economically backward classes whereas the reservation
criteria dealt with in the Mandira Shawney vs Union of Indiana27 case was in relation to socially and
educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Thus, Article 15(6)28 and Article 16(6)29 should be treated distinctly as they deal with the
economically weaker section in the unreserved category.

16 Id. at 6.
17 Constitutional Law Moot, Para 6 (b), Pg 3.
18 Id. at 4.
19 Id. at 4.
20 Id. at 4.
21 The Constitution (One Hundred And Third Amendment) Act, 2019, § 2
22 The Constitution (One Hundred And Third Amendment) Act, 2019, § 3
23 Id. at 6.
24 Id. at 6.
25 Id. at 12.
26 Id. at 12.
27 Id. at 6.
28 Id. at 13.
29 Id. at 13.
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9. It is submitted that as observed by this Court in the case of Indra Sawhney vs. Union of India30, while
50% shall be the Rule but at the same time in a situation like this, which is an extraordinary situation,
such a limit can be exceeded.
10. The counsel would like to support this argument by referring to the following case of Voice
(Consumer Care) Council vs. State of Tamil Nadu31, in which-
11. In the State of Tamil Nadu, the Tamil Nadu Backward Classes, Scheduled Castes, and Scheduled
Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services
under the State) Act, 1993 was brought into force providing 69% reservation for Other Backward
Classes, Scheduled Castes and Scheduled Tribes.
12. When the said Act was upheld by the High Court, the matter was further appealed to the Supreme
Court and this Court passed interim order to create additional seats for general category candidates to
solve their grievance of the general category candidates.
13. Thus it may be said that the 50% limit could be exceeded in certain exceptional situations in order to
promote equality of opportunity.

30 Id. at 6.
31 Voice (Consumer Care) Council vs. State of Tamil Nadu, (1996) 11 SCC 740.
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PRAYERS

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is humbly requested
that this Hon’ble Court may be pleased to:

DECLARE THAT:
1. THE 103RD AMENDMENT DOES NOT VIOLATE THE BASIC STRUCTURE OF THE
CONSTITUTION OF INDIANA
2. UPHOLD THE CONSTITUTIONAL VALIDITY OF THE 103RD AMENDMENT.

And pass any such order as it deems fit and proper, for this the respondent shall duty bound pray.

All of which is respectfully submitted

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