TEAM NO : 6

VR KRISHNAN EZHUTHACHAN LAW COLLEGE

ELAVANCHERRY 9TH SEMESTER INTRA- CLASS MOOT
COURT

BEFORE THE HONOURABLE SUPREME COURT OF VR.

KRISHNAN EZHUTHZACHAN LAW COLLEGE
ELAVANCHERY

WRIT PETITION FILED UNDER ARTICLE 32 OF INDIAN

CONSTITUTION
Writ petition(C) :85 of 2019
AKASH MENON ( Petitioner)
V.
UNION OF INDIA ( Respondent)

Submitted by,
Akhila Baburaj
Roll No: 08 , BBA.LLB (HONS)
Sumaya Kurshid K.K
Roll No:51 , BBA. LLB (HONS)

MEMORIAL ON BEHALF OF THE RESPONDENT

1
 CONTENTS

Sl.NO CONTENTS PAGE

NO
1 LIST OF ABBREVIATIONS 3

2 INDEX OF AUTHORITIES 4-5

3 STATEMENT OF JURISDICTION 6

4 STATEMENT OF FACTS 7

5 ISSUES RAISED 8

6 SUMMARY OF ARGUMENTS 9

7 ARGUMENTS ADVANCED 10-19

8 PRAYER 20

2
 LIST OF ABBREVIATIONS

AIR All India Report

AP Andhra Pradesh
ALD Andhra legal Decision
Anr Another
Art Article
Const Constitution
EWS Economically weaker section
FR Fundamental right
HYD Hyderbad
ILLJ Indian legal journals
Hon’ble Honourable
MCI Medical Council of India
MP Madhya Pradesh
SC Supreme Court
SC Scheduled caste
SCC Supreme Court cases
SCR Supreme court Report
SCW Supreme court Weekly
SEBC Socially economically backward
classes
ST Scheduled Tribe
WP Writ Petition
UOI Union of India

3
 INDEX OF AUTHORITIES

CASES REFERRED
1. Academy of nutrition improvement v. UOI, WP (C) 80 OF 2006
2. All political parties TN v. UOI AIR 1995 SC 124
3. Association of drugs and pharmaceutical , manufacture AP v. Health ,
medical , housing and development corpn and anr, 2002 (2) ALD 609
4. Asst Collector of central Excise v. Jainson Hosier AIR 1979 SC 1889
5. AV Venkateshwaran v. RS Wadhwani,AIR 1961 SC 1906
6. Balcon Employeee v. UOI 2001 AIR SCW 5135
7. Cooper v. UOI , 1970 3 SCR 530
8. Dharyo Rao v. State of Karnataka, 1987 AIR SC 748
9. EP Royappa v. state of Tamil Nadu , 1974 AIR 555, 1974 SCR (2) 348
10.Fedration of Bar Association in Karnataka v. UOI, AIR 2000 SC 2544
:(2000) 6 SCC 715
11.Indira Sawhney v. UOI , AIR 1993 SC 477
12. Janahit Abhiyan v. UOI, WP(C) no: 128 of 2009
13.L. Chandrakumar v. UOI, AIR 1997 SC 1125
14. Maggan lal Chaggan lal v. Muncipal corportipon of greater Bombay , 1974
AIR 2009 175 SCR (1) 1974 SCC (2) 402
15.MR Balaji v. State of Mysore , 1963 AIR 649
16.Mukesh Kumar v. State of Uttarkhand, 2013 (2) NC.C 176
17. NM Thomas v. state of Kerala , 1976 AIR 490, 1976 SCR (1) 906
18. Ram Krishna Dalima v. Justice Tendolkar , AIR 1958 SC 538
19. SR Bommai case, (1994) 2 SCR 644: AIR 1994 SC 1980 :1994 3 SCR
20. Sushila Devi v. Ram Nandhan Prasad, AIR 1976 SC 177
21.State of MP and ors v. Nandhalal Jaiswal and ors, 1986, 4 SCC 566
STATUTES
1. Indian constitution 1950
JOURNALS
 All India Reports
 Supreme Court Cases
 World bank journal

4
BOOKS REFERRED
 VG Ramachandran , law of writ 6th edition 2006
 Sandra Fredman , Substaintive equality revisited vol. 14
 Amrthya Sen on economic inequality, 10th edition 2015
 Joao Pedro Acevedo, economy and world bank , 9th edition 2017
SITES REFERRED
 www.indiankanoon.com
 www.ipleaders.com
 www.legalservice.com
 www.legalindia.com
 www.lawbhoomi.com
 www.lawctopus.com

5
 STATEMENT OF JURISDICTION

The petitioner humbly submitted this memorandum for the petition filed before this
hon’ble supreme court. The petition invokes its writ jurisdiction under art 32 1of
the constitution of India. It sets for the facts and the laws on which the claims are
based.

1
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

6
 STATEMENT OF FACTS

On 2019 January, the Parliament of India passed a Bill to provide extra 10% reservation to
economically backward classes by inserting clause 6 to the Article 15 and 16 of the Constitution,
to provide government jobs and seats in educational institutions for economically weaker
sections.
The Parliament enacted Constitution (One Hundred and Third Amendment) Act, 2019 to make
reservations based on the economic criterion alone. Through this Constitution Act, 2019, a new
clause (6) was inserted to Article 15 and 16 of the Constitution.
Mr. Akash Menon filed a case under Article 32 before the Hon'ble Supreme Court of India
stating that the Amendment Act of 2019 provides inequality and violates the fundamental rights

7
 ISSUES RAISED

ISSUE 1
Whether the writ petition filed under Article 32 of the constitution is maintainable or not?

ISSUE II
Whether the extra 10% reservations for economically weaker sections in educational
institutions and public employment is unconstitutional or not ?

8
 SUMMARY OF ARUGMENTS

1. Whether the writ petition filed under Article 32 of the constitution is maintainable or
not?
It is humbly submitted before the hon'ble court that the writ petition filed under Article is not
maintainable .Article 32 of the Constitution says that it is a fundamental right, which states
that individuals have the right to approach the Supreme Court (SC) seeking enforcement of
other fundamental rights recognized by the Constitution. It has ruled that nobody can claim
right to reservation as a fundamental right there is no fundamental right to claim reservation
in public jobs and no court can order a state government to provide for reservation. Hence a
petition filed under article 32 is not maintainable.

2. Whether the extra 10% reservations for economically weaker sections in educational
institutions and public employment is unconstitutional or not ?
It is humbly submitted before the hon'ble court that the extra 10% reservations provided for
economically weaker sections in educational institutions and public employment is
constitutional. It doesn't breaches the ceiling of 50% of reservation. The reservation is for all
economically weaker sections. Caste and religion is not used in reservation. 103rd
amendment act promote economic welfare of the society. And also it ensures the economic
growth by providing equal opportunity to economically weaker sections of the society. The
limit of 50% is only applicable to reservation made under Art 15(4),15(5) and 16(4) and does
not apply to Article 15(6). Hence 10% reservations provided for EWS in educational
institutions and public employment is constitutional.

9
 ARUGMENTS ADVANCED

1. Whether the writ petition filed under Article 32 of the constitution is maintainable
or not?
It is humbly submitted before this court that the writ petition filed under Article 32 2of the Indian
Constitution is not maintainable. Article 32 of the Indian Constitution gives the right to
individuals to move to the Supreme Court to seek justice when they feel that their right has been
“unduly deprived’. The apex court is given the authority to issue directions or orders for the
execution of any of the rights bestowed by the Constitution as it is considered ‘the protector and
guarantor of Fundamental Rights’.

1.1 Petitioner the has no Locus Standi.

Locus Standi is a Latin phrase that means “the proper place to stand.” It’s a legal concept that
refers to the right of an individual or group to bring a lawsuit in court. In other words, locus
standi refers to who has the right or ability (locus) to bring an issue before the court for
resolution. The purpose for which Article 32 can be invoked is to enforce F.R .Violation of a F.R
is sine qua non of the exercise of the right conferred by Art. 323 . The respondent submits that
the Court has held that only if there is a violation of Fundamental Rights can it step in under the
Jurisdiction of Art. 32. The petitioner is raising a mere scholarly objection, without any unless
locus standi.
In the instant case the contention made by the petitioner that fundamental right of the petitioner
is violated but it is not mentioned that which right of the petitioner violated . So the petitioner
has no locus standi.

1.2.Whether this honourable court would be justified in interfering with a

policy decision
The respondent most humbly submits that the Supreme Court has long held that interference into policy
actions is not within the its jurisdiction as reiterated in the recent Iodine Salt Case4 .It has been held that a
writ petition cannot be maintainable if its sole purpose is to question a policy decision of the
Government5. The position of law on the matter of policy decisions is quite clear, from decisions such as
BALCO Employees Union6 , and a host of other cases. The list is truly extensive 7 , as the underlying
principle is sound in law. there is prima facie evidence to prove that exercise of discretion has been

2
INDIA CONST.art.32
3
Federation of Bar Association in Karnataka v. UOI AIR 2000SC 2544
4
. Academy of Nutrition Improvement v. Union of India, WP(C) 80 of 2006, 4 July 2011
5
Association of Drugs and Pharmaceuticals, Manufacturers, A.P. v.A.P. Health, Medical, Housing and Infrastructure
Development Corporation, Hyd. and Anr., 2002 (2) ALD 609
6
BALCO Employees Union (Regd.) v. Union of India, 2001 AIR SCW 5135
7
4SC. Cooper v. Union of India, [1970] 3 SCR 530.

10
arbitrary, unreasonable or mala fide, the Court cannot step into the shoes of the Government to
decide the validity of a policy8. It is a matter of public policy that the Court not permit litigations
on the same issue be raised in perpetuity9, as no public undertaking will ever succeed if such a
practice is encouraged. Thus, the policy decision of the Government regarding the uranium
project cannot be questioned before the court of law. Mukesh Kumar v. State of Uttarakhand10 In
this case an appeal was filed before the supreme court of India regarding the reservation in
promotion to the scheduled castes and scheduled Tribes in public services. It was held by the
court that there is no Fundamental right to the reservation in the promotion to claim by the
people.
1.3.Alternative remedy has not been exhausted
The tribunals are competent enough to hear this particular case by the virtue of L. Chandrakumar
V. Union of India11 . Alternative remedy is a bar unless there was complete lack of jurisdiction in
the officer or authority to take action impugned12, however, the existence of a competent body13
to hear this particular case questions the maintainability of the writ petition filed. It was held this
Hon’ble apex court in Asstt. Collector of Central Excise v. Jainson Hosiery 14 where there is
alternative statutory remedy court should not interfere unless the alternative remedy is too
dilatory or cannot grant quick relief. Thus, the respondents humbly submit that the present writ
petition is not maintainable on the ground that alternative remedy has not been exhausted. Thus,
the respondents submit that the present writ petition in not maintainable for the aforesaid
reasons.
In All Political parties from the state of Tamil Nadu v. Union of India15 filed a writ petition under
Article 32 regarding the non-implement of reservation of medical seats for other backward
Classes candidate contributed by the state of Tamil Nadu to the All India Quota. The Supreme
Court bench laid by Justice Nageswara Rao held that there is no fundamental right to reservation.
Hence a petition filed under article 32 is not maintainable and directed them to file the petition
on the High court of Madras. It is reiterated that the impugned action of the government and MCI
is manifestly arbitrary and contrary to the fundamental right to equality, and deserves to be
declared void on the grounds already stated
The Writ Petition filed before the Hon’ble Supreme Court is not maintainable as the act done by
the petitioner was violate of the Rules of the procedure of the House and there was no
infringement of Fundamental Right. Moreover, instead of approaching this Court, the petitioner
should have approached High Court to challenge the Constitutionality of such Rules.

8
State of M.P. and Others vs. Nandlal Jaiswal and Other, (1986) 4 SCC 566
9
Sushila Devi v. Ramnandan Prasad, AIR 1976 SC 177
10
.Mukesh Kumar v state of Uttarakhand, 2013(2) NC.C 176
11
L .Chandrakumar v UOI. AIR 1997SC1125
12
A.V. Venkateshwaran v. R.S.Wadhwani AIR 1961 SC 1906
13
National Green Tribunal Act 2010
14
Asstt. Collector of Central Excise v. Jainson Hosiery AIR 1979 SC 1889
15
All political parties from Tamil nadu v. Union of India AIR 1999 SC 124

11
In the instant cases the petitioner stated that his fundamental rights have been violated by 103rd
amendment of 2019, but here it is not mentioned that which fundamental right is violated, so
write petition cannot be maintainable under art 32 where there is not violation of fundamental
right.

12
2.Whether the extra 10% reservations for economically weaker sections in educational
institutions and public employment is unconstitutional or not?

2.1 History on reservation

At the outset, insertion of the ‘economic criteria’ for affirmative action in aid of the section of
population who face deprivation due to poverty, in furtherance of Article 46, does not per se stray
from the Constitutional principles, so as to alter, violate, or destroy its basic structure. As long as
the State addresses deprivation resulting from discriminatory social practices which have kept
the largest number of our populace in the margins, and continues its ameliorative policies and
laws, the introduction of such deprivation based affirmative action, is consistent with
constitutional goals.
However, needs further scrutiny, (which this opinion proposes to address 4 presently) in the
manner of implementing – i.e., the implicit exclusion of those covered under Art. 15(4) and 16(4)
[Scheduled Castes (“SC”), Scheduled Tribes (“ST”), and socially and educationally backward
classes (“SEBC”)], cumulatively referred to as ‘backward classes’] violates, or damages the
basic structure or essential features of the Constitution.
Reservation can’t go on indefinite- Reservation is not an end , but a means to secure social and
economic justice …16”
Hence the 103rd amendment doesn't against the constitution It can be traced back to the 1931
census which separately determined the “depressed classes”. The Government of India
(Scheduled Castes) Order, 193617 enlisted a large number of communities which faced the brunt
of caste stigma and other socially evil practices. Parallelly, in several princely states disparate
efforts were made to ameliorate the lot of such communities and castes that had been
discriminated against and marginalised for centuries. This history informs a large part of the
Constituent Assembly debates, during which, member after member, reiterated the fledgling
nation’s determination not only to ensure equality before law, and equal protection of the law, but
travelling beyond that, to ensuring substantive equality of opportunity and access to public
places, goods, employment, etc.
In M.R. Balaji v. State of Mysore18, where this court held that reservations cannot be solely
based on caste, and rather would have to satisfy the test of social and educational backwardness,
as per the (then) text of the Constitution. It was held that the result of poverty, to a large extent,
was that the poor class of citizens automatically became socially backward. They did not enjoy a
status in society and were therefore, forced to take a backward seat.

2.2. Poverty as an indicator

Poverty is pronounced deprivation in well-being , and comprises many dimensions.it includes
low incomes and the inability to acquire the basic goods and services necessary for survival with

16
Janahit Abhiyan v. UOI , WP (C) no 128 of 2019
17
Government of India (Scheduled Castes) Order, 1936
18
MR. balaji v. state of Mysore, 1963 AIR 649

13
dignity19. Poverty also encompasses low levels of health and education ,poor access to clean
water and sanitation, inadequate physical security, lack of voice, and insufficient capacity and
opportunity to better one’s life20.
Poverty line is estimated as monthly per capita expenditure of Rs.1407 in urban areas and Rs.972
in rural areas21.
The right of EWS category arises from Article 21 of the Constitution ,which provides for the
right of dignity ;and poverty affects dignity. And also emphasis on various international
obligations, namely , Universal Declaration of Human Rights and the International Covenant on
Economic ,Social and Cultural Rights ,which the Constitution caters under Articles 46,51(c) and
253 ,so as to submit that it is duty of the State to eradicate poverty in order to ensure economic
justice ; and in that context to amendment in question becomes an empowering measure for those
who are in systemic poverty.
“… poverty is about more than low income: its about a lack of opportunity”22
Thus the 10% quota for economically weaker sections (EWS) is a first-of-its-kind measure to
end poverty for a large chunk of people who were denied good education and employment
opportunities for being financially disadvantaged rather than on account of past discrimination23

2.3.Exclusionary clause “other than” mentioned in Art.15 and Art.16 of Indian

Constitution is not violative
The insertion of clause (6) in Article 15 and 16, introduces a new class i.e., “economically
weaker sections” which are defined to be “other than” the classes covered in Article 15(4) [i.e.,
other than socially and educationally backward classes including Scheduled Castes and
Scheduled Tribes, which coincides with “backward class of citizens” covered in Article 16(4)].
The plain interpretation of this new expression, read along with the Statement of Objects and
Reasons brings home the idea that this allusion to “special provision” - including reservations, is
meant only for the newly created class and excludes the classes described under Article 15(4)
and 16(4).
In the manner that the phrase “other than” appearing in Articles 15(6) and 16(6), is to be read –
either on the side of the petitioners, or the respondents. That exclusion is implicit, is agreed upon
– the point of divergence is only on whether such an exclusion is permissible or not. To examine
this, it is necessary to trace the history of the provisions that constitute the Equality Code and its
content, and the cases that have interpreted them, in order to cull out the principle(s), relevant for
a basic structure assessment. For this, I will firstly trace the history of the provisions that
constitute the Equality Code, secondly discuss the content of this Code; thirdly, how this

19
Joao Pedro Acevedo, Economy and world bank, 9th edition 2017
20
Press information Bureau , www.pib.gov.in
21
NITI Aayog , www. Niti. gov.in
22
Amarthya sen ,on economic inequality , 10th edition 2015
23
Indria sawhney v. UOI, AIR 1993 SC 477

14
Equality Code is in itself, a part of the basic structure; and lastly how the impugned amendment
violates the basic structure on the ground of exclusion.
The equality code under Articles 14, 15 and 16 does not merely visualize a bland statement of
equality before law and equal protection of law but also contains specific injunctions against
state from discriminating on proscribed grounds [such as caste, race, sex, place of birth, religion,
or any of them, in Article 15; and caste, sex, religion, place of residence, descent, place of birth,
or any of them, in Article 16].
2.4.Equality code
In Ram Krishna Dalmia v. Justice Tendolkar24,the Supreme Court describes the jurisprudence of
equality before the law. The very famous “classification test” had been given in this case. Simply
put, it permits the State to make differential classification of subjects (which would otherwise be
prohibited by Article 14) provided that the classification is founded on intelligible differentia (i.e.
objects within the class are clearly distinguishable from those that are outside) and has a rational
nexus with the objective sought to be achieved by the classification.
Art. 14 in its ambit and sweep involves two facets, viz. it permits reasonable classification which
is founded on intelligible differentia and accommodates the practical needs of the society and the
differential must have a rational to the objects sought to be achieved. Further, it doesn't allow any
kind of arbitariness and ensures fairness and equality of treatment. It is the 'fon juris' of our
Constitution, the fountainhead of justice. 25
There had reasonable classification for the criteria of reservation Magan Lal Chaggan Lal v
Municipal Corporation of Greater Bombay 26 ,the case provided needed clarification to the
reasonable classification test. Here, the court made a distinction between the statute which
themselves make a classification and those which authorize the executive to make a
classification. In the first case, the statute will be invalid if it fails to meet the reasonable
classification test. In the latter case, if the statute provides guidelines, whether express or
implied, to the executive to make classification, and the executive fails to meet the test, only the
action will be invalid and not the statute itself.
The presented amendment had meet with the reasonable classification test.
Court observed in E.P. Royappa v. State of Tamil Nadu27,the second test of Article 14 referred to
as the “new doctrine” or the “arbitrariness test”, was propounded by Bhagwati, J. in this case.
The test postulates that the equality envisaged by Article 14 includes a guarantee against
arbitrariness in State action.
The legislature action was not arbitaray rather an action to promote the article 46 of the Indian
constitution.

24
Ram Krishna Dalima v. Justice Tendolkar AIR 1958 SC 538
25
Dharyo Rao v. state of Karnataka 1987 AIR SC 748
26
Magan lal chaggan lal v, Municipal corporation of greater Bombay 1974 AIR 2009 1975 SCR(1) 1 1974 SCC (2) 402
27
E P Royappa v. State of TN1974AIR 555,1974 SCR(2) 348

15
The landmark Judgement in Indra Sawhney v UOI28, on aspects of reservation in India. The
Court interpreted the relation between Article 14 and Article 16. It was held that Article 16(1) is a
facet of Article 14. Just as Article 14 permits reasonable classification, so does Article 16(1). A
classification may involve reservation of seats or vacancies. The principle aims of Article 14 and
16 is equality and equality of opportunity and Clause (4) of Article 16 is a means of achieving
the very same objective. Both the provisions have to be harmonized keeping in mind the fact that
both are the restatements of the principle of equality enshrined in Article 14.
In NM Thomas v. State of Kerala 29 the five judge constitutional bench of SC observed justice
involves redistribution and reallocation of resources and opportunities and equitable access to all
public and social goods to fulfill the very purpose of the constitutional mandates of equal justice
to all.
Hence on the instant case the 103rd amendment is not corrosive to Art. 14 of the Constitution.
2.5 .Economically weaker section
Central Government defines EWS[8] as – “Persons who are not covered under the scheme of
reservation for SCs, STs and OBCs and whose family has gross annual income below Rs 8 lakh
are to be identified as EWSs for benefit of reservation. Income shall also include income from all
sources i.e. salary, agriculture, business, profession, etc. for the financial year prior to the year of
application. Also, persons whose family owns or possesses any of the following assets shall be
excluded from being identified as EWS, irrespective of the family income: 5 acres of agricultural
land and above; Residential flat of 1000 sq ft and above; iii. Residential plot of 100 sq yd and
above in notified municipalities; Residential plot of 200 sq yd and above in areas other than the
notified municipalities.”30
In the present situation the definition of EWS seems to be clear, comprehensive and
unambiguous, making the intention of the 103rd amendment made by the State unconstitutional.
2.6. Non -Arbitrariness:
The reservation is an instrument of affirmative action by the state for the inclusion of backward
classes.Reservation is instrumental not just for inclusion of socially and economically backward
classes into the society but also to class so disadvantaged.Reservations for EWS does not violate
basic structure on account of 50% ceiling limit fixed by Mandal Commission because ceiling
limit is not inflexible.50% rule formed by the Supreme Court in the Indira Sawhney judgment in
1992 was “not inflexible”31. Further, it had applied only to SC/ST/SEBC/OBC communities and
not the general category.
The 103rd amendment addresses Inequality ,the 10% quota is progressive and it could address
the issues of educational and income inequality in India since the economically weaker sections

28
(SUPP) 1992SCC(L&S)supp.1,cross-citation 1992 supposed. (3)SCC217
29
NM Thomas v. State of Kerala , 1976 AIR 490, 1976 SCR (1) 906
30
http://dopt. gov. in
31
AIR 1993 SC 477 ;1992 Supp2 SCR 454

16
of citizens have remained excluded from attending higher educational institutions and public
employment due to their financial incapacity.
The system of reservation is entirely based on casteism and thus divides the society leading to
discrimination and conflicts between different categories. It is the converse of a communal
living. Reforms in reservation system is the need of the hour. The reservation system has mostly
led to a conflict between the reserved and the unreserved categories of the country
Recognition of the Economic Backwardness, there are many people or classes other than
backward classes who are living under hunger and poverty-stricken conditions.The proposed
reservation through a constitutional amendment would give constitutional recognition to the poor
from the upper castes.
Reduction of Caste-Based Discrimination, it will gradually remove the stigma associated with
reservation because reservation has historically been related to caste and most often the upper
caste looks down upon those who come through the reservation.
The amendment was enacted to promote the welfare of the poor not covered by the 50%
reservation policy for Scheduled Castes (SCs), Scheduled Tribes (STs) and Socially and
Educationally Backward Classes (SEBC).

2.6. Creamy layer principle

The ' creamy layer’ first found in the Supreme Court’s landmark judgment in the Indra Sawhney
vs Union of India case of 1992 (also known as Mandal Commission case), that was delivered by
a nine-judge Bench on November 16, 1992.
The creamy layer was then described as- “some members of a backward class who are socially,
economically as well as educationally advanced as compared to the rest of the members of that
community. They constitute the forward section of that particular backward class and eat up all
the benefits of reservations meant for that class, without allowing benefits to reach the truly
backward members”.
Differentiate EWS and OBC-NCL
OBC NCL reservation is for candidates belonging to OBC category whose annual income from
all sources is less than INR 8 lakhs per annum. However, EWS reservation is for those
candidates who do not belong to SC/ST/OBC but their annual income from all sources is less
than 8 lakhs per annum. So both are different and you cannot be eligible for both at the same
time.
EWS category has stricter eligibility criteria than OBC-NCL category. Candidates should satisfy
both income and asset criteria to get Economically Weaker Section certificate.
This essentially means that the 103rd Amendment practically differentiate between the OBC-
NCL and the "EWS other than SC, ST and OBC-NCL". This would lead to treating unequals
equally

17
2.7.Article 15(6) is not unconstitutional
The Article 15(6) of the Indian Constitution empowers the State to make special provisions to
help the economically weaker sections of the society in obtaining admissions in educational
institutions including private institutes, either aided or non-aided by the State.
The Article 15(6) enlists the broadest criteria of what constitutes “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 disadvantages”), upon which legislation and executive
policy can be built (and subject to subsequent challenge or scrutiny, if such a situation arises).
The indicators of economic deprivation, enacted through the explanation are income, or such
other criteria, including other traits which may be relevant. For the purpose of evolving
economic criteria as a separate or a new basis for affirmative action, the indication of the
broadest guideline of income, and other relevant criteria, are sufficient. The extent of income,
relative to income earning capacity, having regard to the state in question, or areas in states, or
extent of assets, are matters of detail which can be factored into the policies of the state or the
Union, having regard to the felt necessities of the time, or circumstances.

In S.R. Bommai32, although the validity of a Constitutional amendment was not in issue, the
nine-judge Bench made certain crucial observations, with respect to use of power, under Article
356 of the Constitution. The court stated that;
“ The Constitution is essentially a political document and provisions such as Article 356 have a
potentiality to unsettle and subvert the entire constitutional scheme. The exercise of powers vested under
such provisions needs, therefore, to be circumscribed to maintain the fundamental constitutional balance
lest the Constitution is defaced and destroyed. This can be achieved even without bending much less
breaking the normal rules of interpretation, if the interpretation is alive to the other equally important
provisions of the Constitution and its bearing on them. Democracy and federalism are the essential
features of our Constitution and are part of its basic structure. Any interpretation that we may place on
Article 356 must, therefore help to preserve and not subvert their fabric…”
In Indra Sawhney,33is an authority on this issue, i.e., that identification of creamy layer among
the OBCs is as such a duty of the State to ensure that meaningful opportunities are given to the
really backward. The corollary is therefore, the caste status of those who form part of creamy
layer becomes irrelevant; and hence, they are not entitled to reservation under 15(4) or 16(4).
Keeping all this in mind, the fact that some amongst the OBCs (creamy layer) do not enjoy the
benefit of reservation (under 15(4) and 16(4)) does not lend justification for excluding those who
are entitled to reservations under 15(4) and 16(4), due to their caste or social/educational
backwardness, for benefit under Articles 15(6) – which is a reservation based on a different
criterion, despite them being equally, or even more deprived than those who belong to the
forward caste.
In the present case, the 10% of additional reservation by 103rd amendment is not violative, as it
provides educational improvement opportunities to the EWS. Thus contended that the Art.
15(6) is not violative of any constitutional rights.

32
SR Bommai case (1994)2SCR 644:AIR 1994 SC 1918:(1994)3SC1
33
1992SCC(L&S)supp.1,cross-citation 1992 supposed. (3)SCC217

18
2.8 Article 16(6) is not unconstitutional
The Article 16(6) of the Constitution empowers the State to make provisions for reservation of
the economically weaker citizens of the society, except the classes already reserved, in
appointment in State jobs or Govt.
For providing reservation for backward classes, to ensure their empowerment and representation
who were, before the enactment of Article 16(4), absent from public employment. The entire
philosophy of Article 16 is to ensure barrier-free equal opportunity in regard to public
employment.
The impugned amendment results in treating those covered by reservations under Article 16(4)
with a standard that is more exacting and stringent than those covered by Article 16(6). For
instance, if the poorest citizens among a certain community or that entire community, is
unrepresented, and the quota set apart for the concerned group (SC) as a whole is filled, the
requirement of “representation” is deemed fulfilled, i.e., notwithstanding that the specific
community has not been represented in public employment, no citizen belonging to it, would be
entitled to claim reservation.
In the instant matter by the 103rd amendment, the reservation provides representation of
economically weaker section in the public employment, so it is not violative of art 16 (6)of the
Indian constitution.

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 PRAYER
Whereof in the light of issues raised, arguments advanced and authorities cited,it is humbly
prayed that this honourable court may be pleased to hold, adjudge and declare that;
1) The writ petition is not maintainable
2) The extra 10% reservation for economically weaker sections in educational institutions and
public employment is constitutional

COUNSEL FOR THE RESPONDENT

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