TEAM NAME: KABINI

NATIONAL MOOT COURT COMPETITION- 2023.

DIRECTORATE OF LEGAL STUDIES &
GOVERNMENT LAW COLLEGE COIMBATORE

BEFORE THE HON’BLE SUPREME COURT OF DHARMASTRA

UNDER ART.32 IN THE MATTER OF

WRIT PETITION NO. OF 2023

PETITIONER 1 AND ……………………………………………. PETITIONER

ORS

VERSUS

UNION OF DHARMASTRA ……………………………………………. RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND OTHER HON’BLE JUSTICES
OF THE SUPREME COURT OF DHARMASTRA
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………… II-III

INDEX OF AUTHORITIES………………………………………………….…… IV-V

STATEMENT OF JURISDICTION………………………………………….…… VI

STATEMENT OF FACTS………………………………………………………… VII

ISSUES RAISED…………………………………………………..……….……… VIII

SUMMARY OF ARGUMENTS…………………………………………………… IX-X

ARGUMENTS ADVANCED……………………………………………………… 1-22

1 WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO

BREACH THE BASIC STRUCTURE OF THE CONSTITUTION BY
PERMITTING THE STATE TO MAKE SPECIAL PROVISIONS,
1-9
INCLUDING RESERVATION, BASED ON GENDER CRITERIA?

2 WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO

BREACH THE BASIC STRUCTURE OF THE CONSTITUTION BY
PERMITTING THE STATE TO MAKE SPECIAL PROVISIONS IN
RELATION TO ADMISSION TO PRIVATE UNAIDED INSTITUTIONS?
10-13
3 WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO
BREACH THE BASIC STRUCTURE OF THE CONSTITUTION IN
EXCLUDING THE OBCS/SCS/STS FROM THE SCOPE OF WOMEN
14-17
RESERVATION?
4 WHETHER THE CAP OF 50% REFERRED TO IN EARLIER
DECISIONS OF THE SUPREME COURT CAN BE CONSIDERED TO BE
A PART OF THE BASIC STRUCTURE OF THE CONSTITUTION? IF
SO, THE CONSTITUTION AMENDMENT BE SAID TO BREACH THE
BASIC STRUCTURE OF THE CONSTITUTION? 18-22

PRAYER…………………………………………………………… XI

I
 LIST OF ABBREVIATION

AIR All India Reporter

PIL Public Interest Litigation

Hon’ble Honorable

SCR Supreme Court Reports

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

SC Scheduled Caste

NCRB National Crime Record Bureau

ST Scheduled Tribe

SLP Special Leave Petition

OBC Other Backward Class

EWS Economically Weaker Section

AP Andhra Pradesh

PWDVA Protection of Women from Domestic Violence Act

NHRC National Human Right Commission

OECD Organisation for Economic and Development

NCW National Commission for Women

OSC One Stop Centre

WHL Women Help Line

II
NGO Non-Governmental Organisation

ILO International Labour Organisation

LSA Legal Services Authority

DPSP Directive Principles of State Policy

UT Union Territory

RTI Right To Information

PLFS Period Labour Force Survey

WPR Worker Population Ratio

MSI Monster Salary Index

RTE Right To Education

SEBC Socially and Educationally Backward Class

G.O Government Order

BSD Basic Structure Doctrine

III
 INDEX OF AUTHORITIES
TABLE OF CASES

1. Ajay Kumar Singh vs State Of Bihar: 1994 SCC (4) 401, JT 1994 (2) 662
2. Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981) 1 SCC 246
3. Ambika Jute Mill Limited vs. The Jute Commissioner and others sept 25 2012
4. Asha Sharma Vs Chandigarh Administration & Ors, 2011
5. Ashok Kumar Gupta: Vidyasagar Gupta v. State of Uttar Pradesh 1997 (5) SCC 201
6. Ashoka Kumar Thakur Vs. Union of India 2008 (6) SCC 1
7. B.K. Sharma & Anr. Vs. State of Rajasthan & Ors. [WLC (Raj.) 1998 (2) 583]
8. Bhim Singh v. State of Jammu and Kashmir Citation : AIR 1986 SC 494
9. Bhim Singhji v. Union of India and Ors.: (1981) 1 SCC 16620
10. Chitralekha v. State of Mysore 1964 6 SCR 368
11. Consortium Of Self Financing ... vs The State Of Tamil Nadu on 2 July, 2007
12. D. N. Chanchala vs State Of Mysore And Ors. Etc1971 AIR 1762, 1971 SCR 608
13. Dr Neelima Vs Dean Of P.G. Studies A.P. Agriculture University 1993 0 AIR (AP) 229
14. Dr. Preeti Srivastava Vs. State of M.P. [(1999) 7 SCC 120]
15. Dr. Jaishri Laxmanrao Patil vs. The Chief Minister and Ors. 3123 of 2020
16. E.P. Royappa V State of Tamil Nadu AIR 1974 SCC 555
17. E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394
18. G.Vijayaraghavan vs The State Of Tamil Nadu on 23 July 2009
19. G.Vijayaraghavan vs The State Of Tamil Nadu on 23 July, 2009
20. General Manager Southern Railway v. Rangachari AIR 1962 SC 36,
State of Punjab v. Hiralal 1970(3) SCC 567
21. Golak Nath case (1967) by Justice Mudholkar.)
22. Govt. of A.P. v. P.B. Vijayakumar, (1995) 4 SCC 520
23. Griffin v. Illionois 351 US (12)
24. Harper v. Virginia Board of Education 383 US 663 [1966]
25. Coelho (deceased) by LRS. v. State of Tamil Nadu 2007 (2) SCC 1: 2007 AIR(SC) 861
26. I.R. Coelho (Dead) by LRs. v. State of T.N. [(2007) 2 SCC 1]
27. Indira Nehru Gandhi v. Raj Narain and Anr.: 1975 Supp SCC 1
28. Indra Sawhney v. Union of India and Ors.AIR 1993 SC 477
29. Islamic Academy of Education & Anr. v. State of Karnataka & Ors. [(2003) 6 SCC 697
30. Janhit Abhiyan vs Union Of India Writ Petition (Civil) No(S). 55 OF 2019
31. K. S. Venkataraman & Co vs State Of Madras: 1966 AIR 1089, 1966 SCR (2) 229
32. K.C. Vasanth Kumar And Anr. vs State Of Karnataka: JT 1988 (4) SC 773
33. K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.: (2017) 10 SCC 1
34. Kerala Education Bill [1959 SCR 995]
35. Kesavananda Bharati v. State of Kerala (case citation: AIR 1973 SC 1461
36. M. G. Badappanavar v. State of Karnataka 2001 (2) SCC 66
37. M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212
38. M. Nagraj & Others v. Union of India and Others.AIR 2007 SC 71
IV
39. M. R. Balaji v. State of Mysore AIR 1963 SC 649
40. M.G. Badappanavar And Another vs State Of Karnataka And Others 2001 (1) KarLJ 23
41. M.R.Balaji and others vs. State of Mysore 1963 AIR 649
42. M.Satheesh Kumar vs State Of Tamil Nadu
43. M/s Shantistar Builders v. Narayan K. Totame and Ors.: (1990) 1 SCC 520
44. Minerva Mills Ltd. and Ors. v. Union Of India and Ors (Civil) 356 of 1977
45. Minerva Mills Ltd. and Ors. v. Union Of India and Ors AIR 1980 SC 1789
46. Mohini Jain v. State of Karnataka; Court: Supreme Court of India: 1992 AIR 1858
47. Mukesh Kumar vs The State Of Uttarakhand: Citation (2020) 3 SCC 1
48. Jaishri Laxmanrao Patil Vs. Chief Minister. 2020 Latest Caselaw 503 Sc: 2020
49. Neil Aurelio Nunes and ors. vs. Union of India and or
50. Society for Unaided Private Schools of Rajasthan v Union of India & Anr (2012) 6 SCC 1
51. P. A. Inamdar v. State of Maharashtra 2005 AIR(SC) 3226
52. P. Ramu vs The Secretary on 20 April, 2016
53. Post-Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association
AIR 1998 SC 1767
54. Pramati Educational and Cultural Trust (Registered) and Ors. v. Union of India and Ors.: (2014) 8
SCC 1
55. Preeti Srivastava (Dr) v. State of M.P., (1999) 7 SCC 120
56. R. K. Sabharwal v. State of Punjab AIR 1995 SC 1371 : (1995) 2 SCC 745
57. Raghunathrao Ganpatrao v. Union of India: 1994 Supp (1) SCC 19121
58. Rajesh Kumar Gupta V. State Of Uttar Pradesh, Air 2005 Sc 2540
59. Rashmi Education Trust Vidyaniketan School & Others v. State of Karnataka & Others(Writ
Petition No. 6313 of 2017)
60. S. Vinodkumar v. Union of India 1996 6 SCC 580
61. Smt. Vidya Verma v. Dr. Shiv Narain Verma (AIR 1956 SC 108)
62. Society for Unaided Private Schools of Rajasthan v Union of India & Another (2012) 6 SCC 1
63. St. Stephen's College v. University of Delhi, 1992 (1) SCC 558
64. State of Kerala vs NM Thomas (1976)
65. State of Madras v. Champakam Dorairajan (AIR 1951 SC 226)
66. Subhashini K. And Ors. vs State Of Mysore And Anr. on 9 December, 1964 Equivalent citations:
AIR 1966 Kant 40
67. Suraj Bhan Meena v. State of Rajasthan (2011) 1 SCC 467
68. Syndicate Bank SC & ST Employees Association & Others v. Union of India & Others
1990 SCR(3) 713; 1990 SCC Supl. 350
69. T.M.A. Pai Foundation vs State Of Karnataka: 1994 AIR 2372, 1994 SCC (2) 734
70. Union of India v. Varpal Singh AIR 1996 SC 448
71. Ajitsingh Januja & Others v. State of Punjab AIR 1996 SC 1189
72. Union of India v. Varpal Singh AIR 1996 SC 448
73. Unni Krishnan case [(1993) 4 SCC 111]
74. Vijay Lakshmi Vs. Punjab University and Ors., reported in 2003 (8) SCC 440
75. Youth for Equality v Union of India 2019
76. Yusuf Abdul Aziz vs State AIR 1951 Bom 470, (1951) 53 BOMLR 736, ILR 1952 Bom 449

V
 STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of Dharmastra has the jurisdiction in this matter under Art.
32 of the Constitution of Dharmastra which reads as follows:

Article 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.

VI
 STATEMENT OF FACTS
1. Republic of Dharmastra is a secular country which has thousands of religions and language and
traditional beliefs. About 1500 years ago a Dharma ruler Indhuja streamlined labour by introducing
caste system. This separated people into forward and backward caste. Untouchables is the derogatory
name used for lower cate people.
2. After colonial rulers took then entire control of country, they used caste system to suppress people.
They made education as a preserve of upper class.
3. In year 1947 after getting independence the main focus was to abolish untouchables and so
constitution was framed to access seats in government jobs, educational institutions and legislatures
by socially backward population.
4. Initially reservation for provided only for SC & ST.
5. In 1960 president appointed a backward class commission to determine criteria for defining “SEBC”
and to recommend steps for their advancement. The committee said more than 50% of the total
population are “OBC”. They should also be given reservation same as SC & ST. Based on that
“OBC” also given reservation vide constitutional amendment.
6. There was major uproar in country. Many petitions were filed in SC challenging constitutional
amendment. A 9 Judge bench upheld the constitutional amendment and said reservation more than
50% is unconstitutional.
7. At present reservation in case of direct recruitment by open competition is 49.5%( 15% for SC, 7.5%
for ST , 27% for OBC) and direct recruitment other than open competition is 50%( 16.66% for SC,
7.5% for ST, 25.84% for OBC).
8. Though Dharmastra is a country with different beliefs a tradition one trait common throughout the
country is inequality of gender. Being a highly patriarchal society women in most parts of the country
were not allowed to work or be educated. In last 10 years the situation has gotten worse as murders
committed by abusive husband / partners increased by 40% and crime against women have increased
by 60%. This had an adverse effect in candidates enrolling into educational institutions or in job
opportunities.
9. A recent study by UN women revealed gender-based discrimination is more- prevalent in NGI since
they propitiate capitalism which is fueled by patriarchy. Several videos showing hundreds of women
being beaten up and killed as they enter into school, colleges or workplace and these videos went
viral.
10. One video in particular portraying Hostel warden denying food to female students in private
university clearly demonstrated how these institutions are denying female students to access
education and Opportunity.
11. The international reputation of country suffered causing substantial monetary setback as foreign
companies and governments back-out of their deals and didn’t want to operate inside the country
since the safety of their female employees is in question.
12. The government increased penalty and laid harsh imprisonment for all crimes against women. The
govt also directed private institutions to setup committee to find out how to better integrate female
workforce and students’ safety in their institutions and steps that can be taken to encourage their
participation.
13. In year 2023 a murder took place in private school where a young girl died due to several years of
physical abuse by her professor who believed she wasn’t worthy of her seat. 15-day protest took
place in-front of parliament and SC.
14. This was when parliament introduce its constitutional amendment to extend reservation for women
in all sectors. Extract of the amendment as follows “the State has been empowered, inter alia, to
provide five per cent. reservation for female citizens other than the Scheduled Castes”, the
Scheduled Tribes” and the Other Backward Classes” in both government and private sectors”.
This amendment was passed by both houses and became part of the constitution. Several writ
petitions were filed before the SC praying to declare the amendment invalid. All the matters have
been grouped and will be heard simultaneously before a constitution bench of SC.
VII
 ISSUES RAISED

ISSUE I

1. WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO BREACH

THE BASIC STRUCTURE OF THE CONSTITUTION BY PERMITTING THE
STATE TO MAKE SPECIAL PROVISIONS, INCLUDING RESERVATION, BASED
ON GENDER CRITERIA?

ISSUE II

2. WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO BREACH

THE BASIC STRUCTURE OF THE CONSTITUTION BY PERMITTING THE
STATE TO MAKE SPECIAL PROVISIONS IN RELATION TO ADMISSION TO
PRIVATE UNAIDED INSTITUTIONS?

ISSUE III

3. WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO BREACH

THE BASIC STRUCTURE OF THE CONSTITUTION IN EXCLUDING THE
OBCS/SCS/STS FROM THE SCOPE OF WOMEN RESERVATION?

ISSUE IV

4. WHETHER THE CAP OF 50% REFERRED TO IN EARLIER DECISIONS OF THE

SUPREME COURT CAN BE CONSIDERED TO BE A PART OF THE BASIC
STRUCTURE OF THE CONSTITUTION? IF SO, THE CONSTITUTION
AMENDMENT BE SAID TO BREACH THE BASIC STRUCTURE OF THE
CONSTITUTION?

VIII
 SUMMARY OF ARGUMENTS

1. WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO BREACH

THE BASIC STRUCTURE OF THE CONSTITUTION BY PERMITTING THE STATE
TO MAKE SPECIAL PROVISIONS, INCLUDING RESERVATION, BASED ON
GENDER CRITERIA?

It is humbly contended that. Article 15(3) shall not prevent the state from making any special
provision for women. Hence, it can stand the test of constitutionality. Article 16(4) and (4A) do not
confer fundamental rights or constitutional duties, but invest discretion in the state to consider
providing reservation. Further these are exceptions to the equality of opportunity in government jobs,
which state can exercise in order to provide social mobility to vulnerable classes. Moreover,
Backwardness and inadequacy of representation are the compelling reason for providing reservation
keeping in mind the overall efficiencies of state administration. Further Article 15 (3) saves the laws
that benefit the women with a view to remedying historical and structural discrimination and hence
is like levelling field for equality enshrined under Article 14. This amendment for the reservation for
women takes place is known as Intelligible Differentia. These advantages do not count as biasness
but rather this type of discrimination is known as ‘Protective Discrimination. Since in order to obtain
the adequate representation of women in public employment and in order to uplift them in socially
and educationally, the Government came up with the amendment providing 5% reservation for
Women is constitutional and valid

2. WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO BREACH

THE BASIC STRUCTURE OF THE CONSTITUTION BY PERMITTING THE STATE
TO MAKE SPECIAL PROVISIONS IN RELATION TO ADMISSION TO PRIVATE
UNAIDED INSTITUTIONS?

1. It is humbly submitted that Article 15(5) states that nothing in this Article and 19(1)(g) shall
prevent the state from making special provisions for the advancement of SEBC’s or for SC’s or
for ST’s related to the admission to educational institution both private aided and unaided. Further
Article 46 states that promotion of educational and economic interest of SC’s, ST’s and other
weaker sections of the people to protect them from social injustice and all form of exploitations.
It is evident from Indra Sawney Judgment Article 16(4) do includes women in the weaker
section. Article 21A additionally empowering the State to impose admissions on private unaided
schools by law and is for the purpose of providing free and compulsory education to the children
of the age of 6 to 14 years of a small percentage of the seats in private educational institutions to
achieve the constitutional goals of equality of opportunity and social justice set out in the
Preamble of the Constitution, such a law would not be destructive of the right of the private
unaided educational institutions under Article 19(1)(g) of the Constitution.

IX
 3. WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO BREACH
THE BASIC STRUCTURE OF THE CONSTITUTION IN EXCLUDING THE
OBCS/SCS/STS FROM THE SCOPE OF WOMEN RESERVATION?

It is humbly submitted before this Hon’ble court that the constitution amendment in no-way breaches
the basic structure of the constitution in excluding OBC/SC/ST from the scope of women reservation
instead it strengthens the basic structure. It is also stated that exclusion of SCs, STs and OBCs
perfectly fits the constitutional scheme so as to avoid double benefit to them; and thus, exclusion is a
part of reasonable classification. It is also stated that treating the SC, ST and OBC as a distinct class
from those who are not covered under Article 15(4) and 16(4) is a reasonable classification,
necessitates further scrutiny.

4. WHETHER THE CAP OF 50% REFERRED TO IN EARLIER DECISIONS OF THE

SUPREME COURT CAN BE CONSIDERED TO BE A PART OF THE BASIC
STRUCTURE OF THE CONSTITUTION? IF SO, THE CONSTITUTION
AMENDMENT BE SAID TO BREACH THE BASIC STRUCTURE OF THE
CONSTITUTION?

It is humbly submitted before this Hon’ble court that the fifty per cent limit is not a sacrosanct rule.
It is humbly contended before this Hon’ble Court that as regards the breach of fifty per cent.
ceiling of reservations, the contention is that the said ceiling is not inflexible or inviolable and in the
context of the object sought to be achieved, five per cent. has been provided as the maximum by way
of the enabling provision. It is also further contended that Although the limit of 50% is not set by any
statute but it is laid down by the apex court and hence was binding to all the authorities.However, the
judgement itself said that in exceptional circumstances, the percentage can be increased. It is humbly
submitted that reservation is a special treatment given to the unlikes till they come on the equal footing
with the likes in the society. Reservation is a concept developed with a view to provide special help
to the weak so that they can overcome their weakness and can compete with the strong.

X
1. WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO
BREACH THE BASIC STRUCTURE OF THE CONSTITUTION BY
PERMITTING THE STATE TO MAKE SPECIAL PROVISIONS, INCLUDING
RESERVATION, BASED ON GENDER CRITERIA?

1. It is humbly submitted before this Hon’ble Supreme Court of Dharmastra that the Writ
petitions filed by the Petitioners regarding the amendment made in the Constitution of
Dharmastra empowering the State to make special Provisions which extended the
reservation for women has not violated the basic structure of the Constitution.
2. It is clearly observed and submitted that Clause 3 of Article 15 of Indian Constitution states
that, “Nothing in this article shall prevent the State from making any special provision for
women and children”. [1]
3. It is evident from Article 16(4) that the weaker sections of the people do include the
backward class of citizens and Women are considered as weaker section held in Indra
Sawney judgment.[2]
4. It is be noted here is that this classification is a positive discrimination in society which will
help them to uplift their quality of living.
5. It is submitted that Article 46 of Indian Constitution, a directive principle of state policy,
calls upon the state in unequivocal terms to nurture the interests of the Weaker Section and
SCs and STs: “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”.[3]

6. It is submitted that Article 37 [4] declares that the directive principles are not enforceable by
any court, but they are nevertheless fundamental in the governance of the country and it
shall be the duty of the State to apply these principles in making laws.

7. In the Minerva Mills judgment[5], this Hon’ble Court held that balance between directive
principles and fundamental rights is an essential feature of the basic structure of the

1
Article 15 of Indian Constitution 1949
2
Article 16 of Indian Constitution 1949
3
Article 46 of Indian Constitution 1949
4
Article 37 of Indian Constitution 1949
5
Minerva Mills Ltd. and Ors. v. Union Of India and Ors AIR 1980 SC 1789

1
 constitution. In case of any inconsistency between them, both should be harmoniously
construed. Therefore, reading the preamble and Articles 13, 14, 16, 38(2) and 46 together,
it is evident that state is bound to take appropriate steps to balance the social representation
in public services.

8. It is further submitted that the present reservation, introduced through this Constitution
Amendment, is provided through adequate amendments in Articles 15 of the Constitution,
which allow for making “special provision for the Women and Children”. Hence, it can
stand the test of constitutionality in the Hon’ble Supreme Court.

9. It is observed from M.G.Badappanavar v. State of Karnataka [6]ruled that Article 16(4) and
(4A) do not confer fundamental rights or constitutional duties, but invest discretion in the
state to consider providing reservation.

10. It is well settled in M Nagaraj v Union of India[7], the Constitution Bench observed that
Article 16(4) reflected the principle of ‘egalitarian equality’ which essentially required the
State to undertake affirmative action in favour of disadvantaged section of the society
within in the democratic set up.

11. It had been inferred from Article 16(4) and 16(4A), that these are exceptions to the
equality of opportunity in government jobs, which state can exercise in order to provide
social mobility to vulnerable classes.

12. It is further submitted that D.N. ChanchalaI v. State of Mysore[8], did not find it
unreasonable to extend the principle of preferential treatment, of socially and
educationally backward in Article 15(4), to children of political sufferers as 'it would not
in any way be improper if that principle were to be applied to those who are handicapped
but do not fall under Article 15(4).

13. It is further observed from the supra judgment that merely affecting or impinging upon an
article embodying a feature that is part of the basic structure is not sufficient to declare an
amendment unconstitutional. To sustain a challenge against a constitutional amendment, it
must be shown that the very identity of the constitution has been altered.

6
M.G. Badappanavar And Another vs State Of Karnataka And Others 2001 (1) KarLJ 236
7
M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212
8
D. N. Chanchala vs State Of Mysore And Ors. Etc1971 AIR 1762, 1971 SCR 608

2
14. It is further submitted that in M.Nagaraj supra case it is held that Article 16(4A) and 16(4B)
flow from Article 16(4) and do not alter the structure of Article 16(4). Further
Backwardness and inadequacy of representation are the compelling reason for providing
reservation keeping in mind the overall efficiencies of state administration.

[9]
15. It is submitted that Article 331 of the Constitution which empowers the President to
nominate not more than two members of the Anglo-Indian community to the House of
People, irrespective of their population if they are not adequately represented. Same is the
theme of Dr. Ambedkar's speech, in Constituent Assembly, extracted earlier.

16. The case of M. Nagraj & others Vs. Union of India classifies equality into two parts -
“Formal equality” and “Proportional equality”. Proportional equality is equality “in fact”,
whereas Formal equality is equality “in law”. Formal equality exists in the rule of law. In
the case of Proportional equality, the State is expected to take affirmative steps in favor of
disadvantaged sections of society within the framework of liberal democracy. Egalitarian
equality is proportional equality.

17. It was stated in the supra case that “the constitutional principle of equality is inherent in the
rule of law. However, its reach is limited because its primary concern is not with the content
of the law but with its enforcement and application. The rule of law is satisfied when laws
are applied or enforced equally, that is, even handedly, free of bias and without irrational
distinction. The concept of equality allows differential treatment but it prevents distinctions
that are not properly justified.”

18. In Preeti Srivastava (Dr) v. State of M.P [10], it was observed in Para 12, “The wording of
Article 15(4) is similar to that of Article 15(3). Article 15(3) was there from the inception.
It enables special provisions being made for women and children notwithstanding Article
15(1) which imposes the mandate of non-discrimination on the ground (among others) of
sex. This was envisaged as a method of protective discrimination…. As a result of the
combined operation of these articles, an array of programmes of compensatory or protective
discrimination have been pursued by the various States and the Union Government…”

9
Article 331 of the Indian Constitution
10
Preeti Srivastava (Dr) v. State of M.P., (1999) 7 SCC 120

3
19. In Chitralekha v. State of Mysore[11], the majority speaking through Subba Rao, J., held the
identification or classification of backward classes on the basis of occupation-cum-income,
without reference to caste, is not bad and does not offend Article 15(4)

20. It is submitted that Janhit Abhiyan vs Union Of India this Hon’ble Court upheld the
[12]

103rd Amendment which introduced 10% reservation for economically weaker Section
(EWS) in education and public employment.

21. Article 15 and Article 15(3) are not contradictory rather Article 15 (3) is enabling clause
for Article 14, as Supreme Court stated that Article 15 (3) saves those laws that benefit
women with a view to remedying historical and structural discrimination and hence is like
leveling field for equality enshrined under Article 14.

22. It is submitted that the incorporation of this Article15(3), anchored under the unique
concept of 'protective discrimination', symbolizes constitutional recognition of deeply
entrenched discrimination of women prevailing in Indian society.

23. It is submitted that the objective of providing reservations to the Scheduled Castes,
Scheduled Tribes in services is not only to give jobs to some persons belonging to these
communities. It basically aims at empowering them and ensuring their participation in the
decision-making process of the State. It is further submitted that there is no concept of
‘creamy layer’ with respect to SC/ST reservation. This means that irrespective of the
income status or the government posts held by the parents, children of SC/ST parents will
get SC/ST Reservation.[13]

24. It is stated that this amendment for the reservation for women takes place is known as
Intelligible Differentia. These advantages do not count as biasness but rather this type of
discrimination is known as ‘Protective Discrimination’ (or Positive Discrimination).[14]

25. It is observed that the Court in the Yusuf Abdul Aziz Vs. The State of
Bombay judgment[15], made it very clear that the State can make special legislations for
women under Article 15(3) of the Constitution and that it is not violative of Article
14 which talks of Equality. The Court held that the situation of women in this country is

11
Chitralekha v. State of Mysore 1964 6 SCR 368
12
Janhit Abhiyan vs Union Of India | 2022 LiveLaw (SC) 922
13
https://persmin.gov.in/DOPT/Brochure_Reservation_SCSTBackward/Ch-01_2014.pdf
14
https://bnwjournal.com/2021/10/10/critical-analysis-of-article-153-of-the-indian-constitution/
15
Yusuf Abdul Aziz vs State AIR 1951 Bom 470, (1951) 53 BOMLR 736, ILR 1952 Bom 449

4
 such that special legislation is required in order to protect them and hence, did the act of
positive discrimination.

26. It is well settled in the case of Vijay Lakshmi Vs. Punjab University and Ors [16], that women
can be provided reservation in reference to Article 15(3) of the Constitution of India and in
doing so Article 16(2) is not offended.

27. In the case Ajay Kumar v. The State of Bihar[17], the issue was regarding the reservation
policy under Article 15 (4) in the post-graduate medical courses. The appeal was rejected
by the court stating special provisions also include reservation and not just preferences and
concessions.

28. It has been held, in Govt. of A.P. v. P.B. Vijayakumar, (1995) 4 SCC 520[]18, stated in Para
8 that: “8. What then is meant by “any special provision for women” in Article 15(3)? This
“special provision”, which the State may make to improve women's participation in all
activities under the supervision and control of the State can be in the form of either
affirmative action or reservation.”

29. In M.Satheesh Kumar vs State Of Tamil Nadu referring to the Apex Court judgment in the
case of Saurav Yadav and others v. State of Uttar Pradesh and others, (2021) 4 SCC 542
this Hon’ble Court has referred to horizontal reservation under Articles 16(1) and 15(3) of
the Constitution of India. Therefore, the special pro reservation for women in public
employment being under Article 15(3) of the Constitution of India, it would save Section
26 of the Act of 2016 under challenge. [19]

30. It is submitted humbly that while making the Indian Constitution, Dr. B.R.
Ambedkar recognized the need for making certain provisions especially for the backward
classes and weaker sections and thus, allowed the concept of “positive discrimination”.

31. Article 14 talks about two things, that is, Equality before Law and Equal Protection of Law.
While Equality before Law means that everyone is equal before law, be it a Prime Minister
or a normal citizen, laws will apply equally and in the same manner to everyone, Equal

16
Vijay Lakshmi Vs. Punjab University and Ors., reported in 2003 (8) SCC 440
17
Ajay Kumar Singh vs State Of Bihar: 1994 SCC (4) 401, JT 1994 (2) 662
18
Govt. of A.P. v. P.B. Vijayakumar, (1995) 4 SCC 520
19
M.Satheesh Kumar vs State Of Tamil Nadu

5
 Protection of Law means that equals should be treated equally. The latter allows for positive
discrimination. [20]

32. It is submitted that as per the data published by NCRB (National Crime Record Bureau)
Ministry of Women and Child Development implements several schemes to protect
Women against Crime, and Domestic Violence. Since in order to obtain the adequate
representation of women in public employment and in order to uplift them in socially and
educationally, the Government came up with the amendment providing 5% reservation for
[21]
Women is constitutional and valid.

FACTS AND FIGURES:

33. As per data published by NCRB, total number of crime against women during 2020 is
371503, out of which the number of cases registered under the Protection of Women from
Domestic Violence Act, 2005 (PWDVA) during the year is 496.

34. As per the statistics published by Organisation for Economic Co-operation and
Development (OECD) (an intergovernmental organisation) in 2020 on the gender
differences in employment had classified in to three categories as Below upper secondary,
Upper secondary and Tertiary Education. It is observed from the statistics that in India the
gender gap between male and female is 65.4, 68.7 and 55.9 respectively. [22]

35. It is humbly submitted that Sexual harassment or assaults are a clear picture of a violation
of the fundamental rights of a woman under Article 14(2) and Article 15(3). It is submitted
by the data collected by the National Crime Records Bureau (NCRB) regarding the
registration of cases of sexual harassment at workplace under the category of insult to the
modesty at office premises, had increased to 142 in 2016 from 57 cases registered in 2014.

36. It is further submitted that the complaints registered with the National Commission for
Women (NCW) are concerned, there is an increase in complaints registered under category
‘Sexual Harassment includes Sexual harassment at Workplace’. According to 2019 data

20
Article 14 of Indian Constitution 1949
21
https://www.pib.gov.in/PressReleasePage.aspx?PRID=1797704
22
https://www.oecd.org/els/soc/LMF_1_6_Gender_differences_in_employment_outcomes.pdf

6
 the complaint registered was much higher compared to 2017 and is 965 and 539
respectively. [23]

37. It is humbly submitted before this Hon’ble Court is that the Government already
successfully implemented several schemes to product the victimized women such as The
Ministry of Women and Child Development implements One Stop Centre (OSC) scheme
across the country which is exclusively designed to provide integrated services such as
medical assistance, police facilitation, legal counselling, psycho-social counselling and
temporary shelter to women affected by violence under one roof. Further, the Ministry also
implements Universalisation of Women Helpline (WHL) Scheme, which provides 24-hour
toll-free telecom service through short code 181 to women seeking support and
information.
38. The Ministry also implements the Swadhar Greh Scheme which provides assistance to
women victims of unfortunate circumstances including women victims of domestic
violence, family tension or discord, who are made to leave their homes without any means
of subsistence and have no special protection from exploitation and/ or facing litigation on
account of marital disputes, who are in need of institutional support for rehabilitation so
that they could lead their life with dignity. The Scheme envisages providing shelter, food,
clothing, health, counselling, awareness generation, behavioural trainings, legal aid and
guidance etc to such women.
39. The Legal Services Authorities (LSA) Act, 1987 provides for free and competent legal
services to the weaker sections of the society to beneficiaries covered under Section 12 of
the Act, including women and children, to ensure that opportunities for securing justice are
not denied to any citizen by reason of economic or other disabilities, and to organize Lok
Adalats to secure that the operation of the legal system promotes justice on a basis of equal
opportunities.
40. As per section 8 of the Protection of Women from Domestic Violence Act, 2005, the State
Governments are authorized to appoint such number of Protection Officers in each district
as it may consider necessary. As such, the data regarding the details of such Protection
Officers under PWDVA are maintained by the respective State Governments. [24]

23
https://www.thehindu.com/news/national/national-commission-for-women-records-a-rise-in-complaints-
since-the-start-oflockdown/article31241492.
24
section 8 of the Protection of Women from Domestic Violence Act, 2005

7
41. Under Nirbhaya Fund, one time assistance of Rs. 200 crore was provided to States/ UTs as
a top-up grant under the Central Victim Compensation Fund to supplement their respective
Victim Compensations Schemes. The number of women provided compensation under the
Victim Compensation Scheme is maintained by the respective State Governments/ UT
Administrations.
42. It is submitted that as per NCRB data the registered cases of rape alone, out of a total of
36,657 registered offences of rape committed against women in 2016 and registered under
the IPC.

43. According to ILO Statistics on participation of women in the labour force till on 2013 it
is observed that in India the engagement of women is falling notably despite strong
economic growth and rising wages and incomes. The rate of female labour force
participation in South Asia was just 30.5 per cent in 2013, while the rate for men was
80.7 per cent. Whereas other countries such as Maldives , Bangladesh now has the highest
[25]
rate in the region. The rate has also increased in Pakistan.

44. It is submitted that the Hindu daily news reported on 12th June 2019 that About 71% of
Indian men are part of the workforce, when considering persons aged 15 and above.
However, only 22% of the country’s female population is at work [26]

45. It is stated that the Ministry of Statistics and Programme Implementation (MOSPI)
recently released the Period Labour Force Survey (PLFS) for 2017-18 that across all
States, both in rural and urban areas, there are fewer women in the workforce, compared
to men. Meghalaya is the only State where 50% of the female population is at work. In
[27]
Bihar, merely 4% of its women are part of the workforce.

46. Worker population ratio (WPR) indicates the number of people employed, per 1,000
people. A State-wise comparison of the gender-based difference in WPR shows that the
gap between the number of men and women at work is very severe in States like Assam
[28]
63.7% and Bihar 59.7%.

25
https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---sro-
newdelhi/documents/genericdocument/wcms_342357.pdf
26
https://www.thehindu.com/data/92pc-indian-women-take-part-in-unpaid-domestic-work-only-27pc-
men-do-so/article32729100.ece
27
https://pib.gov.in/PressReleasePage.aspx?PRID=1833855
28
https://tradingeconomics.com/india/employment-rate

8
47. The Monster Salary Index (MSI) survey found that Indian women earned 19% less than
their male counterparts. It was also found that the gap is more severe in IT/ITES and
manufacturing sectors.

****************

9
2. WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO
BREACH THE BASIC STRUCTURE OF THE CONSTITUTION BY
PERMITTING THE STATE TO MAKE SPECIAL PROVISIONS IN RELATION
TO ADMISSION TO PRIVATE UNAIDED INSTITUTIONS?

1. It is humbly submitted the in the Hon’ble Supreme Court of Dharmastra that the Petitions
filed by the Petitioners regarding the amendment made in the Constitution of Dharmastra
permitting the State to make special provisions in relation to admission to Private
Unaided Institutions has not violated the Basic Structure of Dharmastra’s Constitution.
2. It is humbly submitted that Article 15(5) of Indian Constitution was introduced by the
Constitution (93rd Amendment) Act, 2005. It states “Nothing in this article or in sub-
clause(g) of clause(1) of article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes or the Scheduled Tribes 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. [29]
3. It is submitted that Article 46 of Indian Constitution states that, “Promotion of educational
and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections
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. It is evident from Indra Sawney Judgment Article 16(4) do includes women in the weaker
section.
5. It is submitted that in Pramati case, it was held that the Constitution (93rd Amendment) Act,
2005 inserting clause (5) of Article 15 of the Constitution could not be said to have altered
the basic structure or framework of the Constitution and is constitutionally valid. [30]
6. In the recent Judgment Janhit Abhiyan v. Union of India, Justice Maheshwari held that the
103rd Constitution Amendment cannot be said to breach the basic structure of the

29
Article 15(5) Constitution (93rd Amendment) Act, 2005
30
Pramati Educational & Cultural ... vs Union Of India & Ors on 6 May, 2014

10
 Constitution by permitting the State to make special provisions in relation to admission to
private unaided institutions. (EWS) [31]
7. In E.V. Chinnaiah v. State of A.P, it was held that a legislation may not be amendable to
challenge on the ground of violation of Article 14 if its intention is to give effect to Articles
15 and 16 or when the differentiation is not unreasonable or arbitrary. [32]
8. It is submitted that the Supreme Court has upheld the RTE-mandated 25% reservation in
private Schools, in Society for Unaided Private Schools of Rajasthan v Union of India &
Another stating: -
“38. We accordingly hold that none of the rights under Articles 14, 19(1)(g) and 21 of the
Constitution have been abrogated by clause (5) of Article 15 of the Constitution…, we hold
that the Constitution (Ninety-third Amendment) Act, 2005 inserting clause (5) of Article
15 of the Constitution is valid.”
“51. …By exercising additional power vested with the state ,it can by law impose
admissions on private unaided schools and so long as the law made by the State in exercise
of this power under Article 21-A of the Constitution is for the purpose of providing free
and compulsory education to the children of the age of 6 to 14 years and so long as such
law forces admission of children of poorer, weaker and backward sections of the society to
a small percentage of the seats in private educational institutions to achieve the
constitutional goals of equality of opportunity and social justice set out in the Preamble of
the Constitution, such a law would not be destructive of the right of the private unaided
[33]
educational institutions under Article 19(1)(g) of the Constitution.”
9. It is submitted that it will be clear from paragraphs 53 and 68 of the judgment of the eleven
Judge Bench of this Court in T.M.A. Pai Foundation (supra) that reserving a small
percentage of seats in private educational institutions, aided or unaided, for weaker, poorer
and backward sections of society did not in any way affect the right of private educational
institutions under Article 19(1)(g) of the Constitution stating that the Private institutions
are seen as part of the State's endeavour to bring the educational levels of the country up,
and foster fraternity. [34]
10. It is submitted that a five-Judge Bench of this Court in Islamic Academy of Education &
Anr. v. State of Karnataka & Ors. was of the view that as per the judgment in T.M.A. Pai

31
Janhit Abhiyan v. Union of India and Others
32
E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394
33
Society for Unaided Private Schools of Rajasthan v Union of India & Another (2012) 6 SCC 1
34
T.M.A Pai Foundation v. State of Karnataka

11
 Foundation (supra) in case of non-minority professional colleges a percentage of seats
could be reserved by the Government for poorer and backward sections. [35]
11. It is well settled in Pramati Educational & Cultural ... vs Union Of India & Ors it is stated
that clause (5) of Article 15 is consistent with the right to establish and administer the
private educational institutions under Article 19(1)(g) of the Constitution as interpreted by
T.M.A. Pai Foundation (supra) and, therefore, does not violate the right under Article
19(1)(g) of the Constitution. [36]
12. It is further stated in the supra case that private educational institutions cannot have any
grievance in this regard because they are performing a function akin to the function of the
State. It submitted further that applying the functional test private educational institutions
are also State within the meaning of Article 12 of the Constitution.
13. The rule of construction is well settled that when there are in an enactment two provisions
which cannot be reconciled with each other, they should be so interpreted that, if possible,
effect could be given to both. This is what is known as the rule of harmonious construction.”
14. It is further submitted in the supra case that Article 21A is no way conflicts with the right
of private unaided schools under Article 19(1)(g) of the Constitution, but the law made
under Article 21A may affect this right under Articles 19(1)(g). The law made by the State
to provide free and compulsory education to the children of the age of 6 to 14 years should
not, therefore, be such as to abrogate the right of unaided private educational schools under
Article 19(1)(g) of the Constitution, aided or unaided.
15. T.M.A. Pai Foundation (supra), this Court has held that admission of a small percentage of
students belonging to weaker sections of the society by granting them freeships or
scholarships, if not granted by the Government and the admission to some of the seats to
take care of poorer and backward sections of the society may be permissible and would not
be inconsistent with the rights under Articles 19(1)(g) of the Constitution.
16. It is submitted that Article 21A additionally empowering the State to impose admissions
on private unaided schools by law and is for the purpose of providing free and compulsory
education to the children of the age of 6 to 14 years of a small percentage of the seats in
private educational institutions to achieve the constitutional goals of equality of opportunity
and social justice set out in the Preamble of the Constitution, such a law would not be

35
Islamic Academy of Education & Anr. v. State of Karnataka & Ors. [(2003) 6 SCC 697
36
Pramati Educational & Cultural ... vs Union Of India & Ors on 6 May, 2014).

12
 destructive of the right of the private unaided educational institutions under Article 19(1)(g)
of the Constitution.

17. It is submitted that in Mohini Jain v. State of Karnataka this Hon’ble Court ruled the
private educational institutions, collection of capitation fees violated the Right to
Education that is implied by the Rights to life, human dignity, and equal protection under
the law stating even though the Right to Education as such has not been protected by the
Constitution as a fundamental right, it is obvious from the Preamble and the Directive
Principles of the Constitution that the state was intended to provide education for its
citizens [37]

18. It is well settled in the case of Consortium Of Self Financing ... vs The State Of Tamil
Nadu that, Article 19(1)(g) circumscribed by Article 19(6), which allow reasonable
restriction over this right in the interest of the general public. The Court stated that since
“education” is recognized as a charitable activity as stated in TMA Pai Foundation vs
[38]
State of Karnataka (2002) 8 SCC 481 reasonable restriction may apply.

19. It is further stated that, the Act places a burden on the State to ensure that every child has
the right to education. Thus, the right to education “envisages a reciprocal agreement
between the State and it places an affirmative burden on all stakeholders in our civil
society.”

20. Hence it is submitted that the Amendment which empower the State to make special
provisions in relation to the admission in Private Unaided educational Institution not
violative basic structure of Dharmastra Constitution.

*******************

37
Mohini Jain v. State of Karnataka; Court: Supreme Court of India: Citation(s) 1992 AIR 1858
38
Consortium Of Self Financing ... vs The State Of Tamil Nadu on 2 July, 2007

13
3. WHETHER THE CONSTITUTIONAL AMENDMENT CAN BE SAID TO BREACH
THE BASIC STRUCTURE OF THE CONSTITUTION IN EXCLUDING THE
OBCS/SCS/STS FROM THE SCOPE OF WOMEN RESERVATION?

1. It is humbly submitted before this Hon’ble court that the constitution amendment in no-way
breaches the basic structure of the constitution in excluding OBC/SC/ST from the scope of
women reservation instead it strengthens the basic structure.
2. It is also stated before this Hon’ble court that the exclusion of those classes already covered
under Articles 15(4) and 16(4) from the proposed reservation did not breach the Equality
Code
3. It is humbly submitted by quoting from Bhim Singhji, that a mere violation of Article 14
does not violate the basic structure of the Constitution unless ‘the violation is shocking,
unconscionable or unscrupulous travesty of the quintessence of equal justice. [39]
4. It is further stated that relying on M. Nagaraj, it is submitted that a constitutional amendment
can be struck down only when it changes the identity of the Constitution. Here in no-way
exclusion of the above said classes changes the identity of the constitution. [40]
5. It is humbly submitted before this court that according to the decisions of this Court in
Raghunathrao Ganpatrao v. Union of India, Ashoka Kumar Thakur and Minerva Mills , M.
Nagaraj, as to dynamic interpretation of the Constitution to strengthen its Preambular
vision; and that Articles 38 and 46 along with Preamble to the Constitution enjoin a duty
on the State to eliminate social, economic and political inequalities and to promote justice.
[41] [42]

6. It is further contended that the exclusion of already covered classes does not violate Equality
Code as the women among the SC, ST and OBC communities are already enjoying the
benefit of affirmative action in their favor by way of reservations in educational institutions
and public employment, seats in Legislature, etc., to attain an equal status - socially and
educationally.
7. It is also stated that women among the classes not covered under any of provisions preceding
this amendment do not have any special provision made in their favor except for reservation
by way of the present amendment. Further, this five percent carved out for women is in

39
Bhim Singh v. State of Jammu and Kashmir Citation : AIR 1986 SC 494
40
M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212
41
Raghunathrao Ganpatrao v. Union of India: 1994 Supp (1) SCC 19121
42
Ashoka Kumar Thakur vs Union Of India & Ors on 10 April, 2008

14
 addition to the existing reservation in favor of SEBCs; meaning thereby that it does not in
any way affect the reservation up to fifty per cent for the SEBCs/OBCs/SCs/STs.
8. It is also contended that that the exclusion of classes already covered under Articles 15(4)
and 16(4) does not violate the Equality Code; and that from the time of the decision in
Champakam to the recent decision in Dr. Jaishri Patil, the understanding and concept of
equality and reservation have changed and evolved with time, and the reservation itself has
been treated as a part and parcel of the Equality Code that furthers substantive equality.
[43][44]

9. It is humbly submitted before this court that submitted that except for the open category, the
SCs, STs and OBCs are not permitted to migrate to the other vertical reservations; and
similarly, the Constitution has created another vertical zone for women category, which
exists outside the fold of pre-existing reservations.
10. It is also stated that treating the SC, ST and OBC as a distinct class from those who are not
covered under Article 15(4) and 16(4) is a reasonable classification, necessitates further
scrutiny. [45]
11. It is submitted that SC/ST/OBC communities who have thus far enjoyed and will continue
to enjoy special provision and reservation made in their favour (Articles 15(4) and 16(4))
constitute a homogenous class, the members of whose communities are beneficiaries of
existing reservation [which also includes the women among their group], whereas the
beneficiaries of the new women reservation, were those who did not enjoy such benefits.
12. It is humbly stated that neither the entitlement to reservation nor exclusion therefrom is part
of the basic structure of the Constitution; and that reservations are enabling provisions,
temporary in nature and do not hold within them the feature of permanence, so as to form
part of the basic structure of the Constitution.
13. It is also submitted that Indra Sawhney, staged 30 years ago, dealt with ‘schematic
interpretation ’of Articles 16(4) and 15(4). He further emphasized on the balance to be
maintained between the competing claims that keeps on changing with the needs of the
society. [46] [47]
14. It is also stated that there is already an affirmative action in the form of reservation and
special provisions operating in their favor. Their“ opportunity quotient” including the

43
State of Madras v. Champakam Dorairajan (AIR 1951 SC 226)
44
Dr. Jaishri Laxmanrao Patil vs. The Chief Minister and Ors. Civil Appeal No. 3123 of 2020
45
Article 15(4) of Indian Constitution
46
Indra Sawhney v Union of India Citation: AIR 1993 SC 477, 1992 Supp 2 SCR 454
47
Article 16(4) of Indian Constitution

15
 reserved and open category exceeds fifty per cent. Hence, the five per cent. in favor of
women, in no way violates the Equality Code. [48]
15. It is also stated that exclusion of SCs, STs and OBCs perfectly fits the constitutional scheme
so as to avoid double benefit to them; and thus, exclusion is a part of reasonable
classification.
16. It is humbly submitted that Constitution does not impede the Parliament to protect a new
section of people in order to further the Preambular vision of social justice, different from
the traditional approach of caste-based affirmative action.
17. It is also contended that referring to U.P. Constables, teachers and Shiksha-Mitra
recruitments, that OBCs are already in good position now, earning seats in meritorious
category as well as in reserved category and it is the women of forward category who are
suffering and being deprived of the seats. [49]
18. It is further contended with a relevant example in this court the lawyers, straight after their
enrolment, who join the legal profession with high hopes and expectations and dedicate
their whole lives to the professions are the real deservers. Lawyers who enroll themselves
after their retirement from government services and continue to receive pension and other
terminal benefits, who basically join this field in search of greener pastures in the evening
of their lives cannot and should not be equated with those who have devoted their whole
lives to the profession. [50]
19. It is also stated that the allusion to over-classification and under classification, as the bases
for exclusion in the context of the doctrine of classification governing Article 14, cannot
be denied as a matter of law.
20. It is further submitted that the non-inclusion of SC/ST and OBC communities - though the
largest segments of the women are from amongst them, is mere reasonable under-
inclusion, cannot be accepted - especially in the context of a constitutional amendment.
21. It is further stated that In Ambica Mills, the court upheld the legislative measure, which
excluded establishment or persons, on the ground that the state's policies to cover
establishments, having regard to the objects, was not defeated, and the classification, not
fatal, because it left out some classes of establishments having regard to their size.

48
Janhit Abhiyan vs Union Of India on 7 November, 2022
49
https://www.jagranjosh.com/articles/up-police-constable-recruitment-2022-notification-check-vacancy-
updates-1641573204-1
50
P. Ramu vs The Secretary on 20 April, 2016

16
22. It is also contended that in Seshachalam, the exclusion from payment of lump sum amount,
under an Advocate’s welfare scheme, of lawyers receiving pension from their erstwhile
employers, was held to not offend Article 14.
23. It is humbly submitted that if one considers that if pension was being introduced for
professionals for the first time, who had no other means of livelihood, when they gave up
their avocation, the exclusion of those who had their full run of employment, enjoyed
pension from their erstwhile employer, and then joined the legal profession, was justifiable,
given that the State was assuming a burden for the first time, and keeping apart resources
for that purpose.
24. It is clearly held by the court in the case of Roop Chand Adlakha v. Delhi Development
Authority - "To overdo classification is to undo equality.” [51]
25. It is humbly submitted that Mathew, J. in Ambica Mills cautioned that one has to look
beyond the classification. Else, the mind boggles at the classification, resulting in its
justification. As recognised in some of the earliest decisions, the rule of classification is not
the right to equality (just as the rights are fundamental, not the restrictions) [52]
26. It is also stated that there can be no debate that Article 46 is an injunction to the State to
take all steps to ameliorate the lot of weaker sections of the society. That this injunction
was not confined to only SCs/STs has been widely accepted.
27. It is humbly submitted that the concept of "weaker sections" in Article 46 has no such
limitation. [53]
28. It is stated that even if they belong to an identifiable class but that class is represented in
the services of the State adequately, as individuals forming weaker section, they may be
entitled to the benefits of the measures taken under Article 46, but not to the reservations
under Article 16(4).
29. It is humbly submitted that not only the concept of "weaker sections" under Article 46 is
different from that of the "backward class" of citizens in Article 16(4), but the purpose of
the two is also different.
30. It is also contended that one is for the limited purpose of the reservation and hence suffers
from limitations, while the other is for all purposes under Article 46, which purposes are
other than reservation under Article 16(4).

51
ROOP CHAND ADLAKHA AND ORS. Vs. RESPONDENT: DELHI DEVELOPMENT
AUTHORITY AND ORS. DATE OF JUDGMENT26/09/1988
52
Ambika Jute Mill Limited vs. The Jute Commissioner and others sept 25 2012
53
Article 46 of Indian Constitution 1950

17
4. WHETHER THE CAP OF 50% REFERRED TO IN EARLIER DECISIONS OF THE
SUPREME COURT CAN BE CONSIDERED TO BE A PART OF THE BASIC
STRUCTURE OF THE CONSTITUTION? IF SO, THE CONSTITUTION
AMENDMENT BE SAID TO BREACH THE BASIC STRUCTURE OF THE
CONSTITUTION?

1. It is humbly submitted before this hon’ble court that 50% referred to in earlier decisions of
supreme court can’t be considered as the part of basic structure of the constitution. And
this amendment has also not violated the basic structure.
2. It is further stated that the fifty per cent limit is not a sacrosanct rule. [54]
3. It is humbly contended before this hon’ble court that as regards the breach of fifty per cent.
ceiling of reservations, the contention is that the said ceiling is not inflexible or inviolable
and in the context of the object sought to be achieved, five per cent. has been provided as
the maximum by way of the enabling provision.
4. It is stated that in the multifaceted social structure, ensuring substantive and real equality,
perforce, calls for consistent efforts to remove inequalities, wherever existing and in
whatever form existing. Hence, the State is tasked with affirmative action
5. It is humbly submitted that and, one duly recognized form of affirmative action is by way
of compensatory discrimination, which has the preliminary goal of curbing discrimination
and the ultimate goal of its eradication so as to reach the destination of real and substantive
equality. This has led to what is known as reservation and quota system in State activities.
6. It is also contended that reservation and quota system was introduced in Malta much before
it was mentioned in India. Reservation in India was introduced in the last decades of the
19th century at a time when the Indian sub- continent was broadly divided, according to
two main forms of governance, into British India and about 600 Princely States. Some of
the progressive States had modernized the society through the promotion of education and
industry.

54
https://www.msn.com/en-in/news/other/50-ceiling-of-reservation-is-not-sacrosanct-centre-to-supreme-
court/ar-
AA11wV0q#:~:text=The%2050%25%20cap%20on%20reservation%20is%20%E2%80%9Cnot%20sacr
osanct%E2%80%9D%2C,quota%20benefits%20to%20the%20economically%20weaker%20sections%2
0%28EWS%29.

18
7. It is further contended that for example, the Princely States of Mysore, Baroda and
Kolhapur took considerable interest in the awakening and advancement of deprived
sections of society.
8. It is humbly submitted that Maharaj, the Ruler of Princely State of Kolhapur, is said to
have been influenced by the thoughts of egalitarian thinker Jyotirao Phule and is said to
have introduced affirmative action in 1902, reserving a part of administrative posts for
‘depressed classes’ [55]

9. It is humbly submitted that leaving the historical perspective at that, for the purpose of
questions at hand, we may, however, move on to the provisions in the Constitution of India
and take note of their operation with reference to the relevant decisions. The ‘doctrine of
equality’, as collectively enshrined in Articles 14 to 18, happens to be the principal basis
for the creation of a reasonable classification where under ‘affirmative action’, be it
legislative or executive, is authorized to be undertaken. The constitutional Courts too,
precedent by precedent, have constructively contributed to the evolution of what we may
term as ‘réservation jurisprudence’
10. It is also contended that the Constitution of India has about two dozen Articles providing
for compensatory or special treatment for disadvantaged citizens or for protecting them
against discrimination
11. It is further stated that Part III specifies the Fundamental Rights that are constitutionally
guaranteed. Article 12 defines the ‘State ’against whom these Fundamental Rights can be
enforced. Article 13 declares void all laws offending Fundamental Rights. Article 14,
apparently considered to be one of the most important of the Fundamental Rights,
guarantees the right to equality and equal protection [56]
12. It is humbly stated that it is evident that the normal process of development benefits only
that section of society which already possesses land, education, and social status/respect.
For those who have none of these, or are deprived of any of these, there was the task of
making sure that they, who had been unable to enjoy these rights due to myriad reasons,
were given special facilities, privileges and encouragement so that they could participate
as equals in the mainstream of socio-economic system, taking them to the path of Liberty
and Justice and thereby promoting Fraternity among all the citizens, assuring the dignity
of the individual.

55
https://lifestyle.livemint.com/news/talking-point/rajarshi-shahu-chhatrapati-of-kolhapur-a-reformer-
ahead-of-his-time-111645244554066.html
56
Article 12,13,14 of Indian Constitution 1949

19
13. It is also stated that given these objectives, the Indian constitutional structure, unlike the
U.S. Constitution, specifically provides for compensatory discrimination , vide Vasanth
Kumar; and, in that context, reservation is the basic gateway to tread the path of all-around
development. [57]
14. It is humbly contended that in the rule of law, In the case of proportional equality the State
is expected to take affirmative steps in favor of disadvantaged sections of the society within
the framework of liberal democracy. Egalitarian equality is proportional equality.
15. It is humbly stated that be it reservation or evaluation, excessiveness in either would result
in violation of the constitutional mandate. This exercise, however, will depend on the facts
of each case.
16. It is supported clearly that it could reasonably be summarized that for the socio- economic
structure which the law in our democracy seeks to build up, the requirements of real and
substantive equality call for affirmative actions; and reservation is recognized as one such
affirmative action, which is permissible under the Constitution; and its operation is defined
by a large number of decisions of this Court, running up to the detailed expositions in Dr.
Jaishri Patil. [58]
17. It is further contended that this fifty per cent. rule could be breached in extraordinary
situation, as held by Indra Sawhney; and is, therefore, not an inviolable rule or part of the
basic structure of the Constitution. [59]
18. It is humbly submitted to this hon’ble court that that a constitutional amendment may even
touch upon the basic structure but unless it is shown that it fundamentally alters the basic
structure or basic features of the Constitution, it cannot be struck down under judicial
review. These were said in the following cases Raghunathrao, Bhim Singhji and
Kesavananda as also on the decision in Indira Nehru Gandhi v. Raj Narain and Anr.: 1975
Supp SCC 1 [60]
19. It is also stated that amendment in question, instead of hitting or disturbing the basic
structure, rather strengthens the Preambular vision of the Constitution i.e., of providing
social justice to its people along with fraternity.
20. It is also contended that reservation is an exception to the general rule of equality and thus
cannot be regarded as basic feature of the Constitution.

57
K.C. Vasanth Kumar And Anr. vs State Of Karnataka: JT 1988 (4) SC 773
58
Dr. Jaishri Laxmanrao Patil Vs. The Chief Minister and Ors.
59
Indra Sawhney v. Union of India and Ors. Citation – AIR 1993 SC 477
60
Indira Nehru Gandhi v. Raj Narain and Anr.: 1975 Supp SCC 1

20
21. It is also stated that the provisions contained in Articles 15 and 16 of the Constitution of
India, providing for reservation by way of affirmative action, being of exception to the
general rule of equality, cannot be treated as a basic feature.
22. It is also stated that even if reservation is one of the features of the Constitution, it being in
the nature of enabling provision only, cannot be regarded as an essential feature of that
nature whose modulation for the sake of other valid affirmative action would damage the
basic structure of the Constitution.
23. It is humbly submitted that the amendment in question takes into account the changing
conditions of society as iterated in M. Nagaraj and hence, purposive interpretation of the
Constitution has to be resorted to. [61]
24. It is humbly submitted that relying to Prof. Satya Prateek that the enabling provisions,
varying enforcement mechanisms and the State opinion on backwardness, reservation,
adequate representation etc., in any circumstances cannot be recognized as the fundamental
or basic structure of the Constitution. [62]
25. It is also further contended that although the limit of 50% is not set by any statute but it is
laid down by the apex court in the Indra Sawhney case and hence was binding to all the
authorities. However, the judgement itself said that in exceptional circumstances, the
percentage can be increased. 63
26. It is humbly submitted that reservation is a special treatment given to the unlikes till they
come on the equal footing with the likes in the society. Reservation is a concept developed
with a view to provide special help to the weak so that they can overcome their weakness
and can compete with the strong.
27. While introducing the bill for Economic Reservation in 2019, Arun Jaitley (Finance
Minister) contended that the 50% cap on reservations imposed by the Supreme Court was
only for caste-based reservations, and the Economically Weaker Section (EWS)
reservation won’t be impacted by it. [64]
28. It is stated that Ceiling of 50% is applicable only for reservation for the socially and
educationally backward category, i.e., to the Scheduled Castes/Scheduled Tribes
(SCs/STs) and the Other Backward Classes (OBC) categories under Articles 15(4) and

61
M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212
62
https://www.livelaw.in/top-stories/supreme-court-reservation-enabling-provision-basic-feature-janhit-
abhiyan-vs-union-of-india-2022-livelaw-sc-922-213539
63
Ibid 61
64
https://www.insightsonindia.com/2021/05/08/insights-into-editorial-supreme-court-sets-aside-law-on-
maratha-reservation/

21
 16(4) of the Constitution. It does not apply to the present case of reservation, which has
been provided as a special provision through a constitutional amendment.
29. The reservation in favour of wards of defense personnel was upheld as a reasonable
classification in Subhashini v. State of Mysore, AIR 1966 Mysore as the reservation was
in the national interest. The result of such extensions and justification was the
multiplication of categories and withdrawal of more and more seats and posts from open
competition. It is observed from Thomas case that 50% was, a rule of caution and,
'percentage of reservation in proportion to population did not violate Article 16(4). [65]

*******************

65
Subhashini K. And Ors. vs State Of Mysore And Anr. on 9 December, 1964 Equivalent citations: AIR
1966 Kant 40

22
 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities

cited, it is humbly prayed that this Hon’ble Court may be pleased to:

1. Declare that the amendment made in the Constitution empowering the state to
make special provision including reservation based on Gender criteria is not
violative of Basic structure of Constitution and Declare the amendment
constitutional and valid.

2. Declare that the amendment made in the Constitution of Dharmastra permitting

the State to make special provision in relation to admission in private Unaided
Institutions is not violative of Basic Structure of the Constitution and declare
the amendment is constitutional and valid. .

3. Declare the amendment excluding SC/ST/OBC from the scope of women

reservation is not violative of the Basic Structure of the Constitution and
declare the amendment constitutional.

4. To declare the cap 50% in reservation is a basic structure of the Constitution

and this amendment not violates the basic structure and declare the amendment
constitutional and dismiss all the petitions.

AND PASS ANY SUCH OTHER ORDER OR DIRECTION THAT THIS HON’BLE COURT MAY
DEEM FIT AND PROPER IN THE FACTS AND CIRCUMSTANCES AND IN THE INTERESTS
OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE RESPONDENT SHALL, AS IN DUTY BOUND EVER
PRAY.

ALL OF WHICH IS HUMBLY PRAYED,

-(R)

COUNSELS FOR THE RESPONDENT

XI