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Memorial Respondant on reservation

Bachelor of Business Administration & Bachelor of Legislative Law (Chandigarh

University)

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TEAM CODE:-13

BEFORE THE HON’BLE

SUPREME COURT OF ARYAVART

(UNDER ARTICLE 32 OF THE CONSTITUTION OF ARYAVART)

Ms. Ginny Potter……………………………..PETITIONER

Mr. Ron Weasley…………………………PETITIONER
VERSUS

UNION OF ARYAVART………………………RESPONDANT

MEMORANDUM ON THE BEHALF OF THE RESPONDANT

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TABLE OF CONTENT

LIST OF ABBREVIATIONS…………………………………………...3
INDEX OF AUTHORITIES…………………………………………….4
STATEMENT OF JURISDICTION…………………………………….5
STATEMENT OF FACTS……………………………………………….6-7
STATEMENT OF ISSUES………………………………………………8
SUMMARY OF ARGUMENTS…………………………………………9
ARGUMENTS ADVANCE…………………………………………… 10-15
PRAYER………………………………………………………………….16

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LIST OF ABBREVIATIONS

& And

A.I.R All Aryavart Report

DR. Doctor

GOVT. Government

HC High Court

SC Supreme Court

HON’BLE Honourable

J. Justice

MANU Manupatra

NO. Number

LR LAW REPORTER

ART ARTICLE

SCC SUPREME COURT CASES

DEL DELHI

APP NO APPLICATION NUMBER

REP REPORT

ORS OTHERS

CL CLAUSE

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INDEX OF AUTHORITIES

CASES
SR NO. Name of the Cases with Case Citation
1 Kesavananda Bharati V. State of Kerala (1973) 4 SCC 225
2 M.G Badappanavar V. State of Karnataka 2001 AIR 260; 2000 SCC (6) 225
3 M. Nagaraj V. Union of Aryavart 2007 (1) scc; AIR 2007 SC 71

STATUES
1 CONSTITUTION OF ARYAVART

WEBSITES
1 www.manupatra.com
2 www.ssconline.com
3 www.legalsearch.com
4 www.livelaw.com
5 www.lawoctopus.com
6 www.Aryavartkanoon.com

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STATEMENT OF JURISDICTION

The Petitioner has approached this hon’ble Supreme Court of Aryavart Under Art. 32
of Constitution of Aryavart 19501.

1Article 32 – Jurisdiction.-

(1) Article 32 of the Aryavart constitution outlines the procedure for amending the
constitution. However ,it also lays down that any amendment to the constitution that
alters or affects the basic structure of constitution is subject to judicial review by the
supreme court

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STATEMENT OF FACTS

1. The Republic of Aryavart is an independent ‘Union of States'. It consists of 28 states

and 9 Union Territories.Reservation in Aryavart is about reserving access to seats in
the government jobs, educational institutions, and even legislatures to certain sections
of the population. Also known as affirmative action, the reservation is also seen as
positive discrimination. The two main aims to provide reservation as per the
Constitution of Aryavart are: a. Advancement of Scheduled Castes (SC) and the
Scheduled Tribes (ST) OR any socially and educationally backward classes of
citizens (Eg: OBC) – Article 15 (4), Article 15 (5). b. Adequate representation of any
backward class of citizens in the services under the State. – Article 16 (4).

2. Extending the policy of Reservation, in January 2019 the Government brought 103rd
Amendment of the Constitution. The bill was passed in Lok Sabha by 323 members
voting in favor and 3 members against the bill. It was subsequently passed by Rajya
Sabha with 165 members in the favor and only 7 members against the bill. It provides
reservation of jobs in central government as well as government educational
institutions. It applies to citizens belonging to the economically weaker sections from
the unreserved category. This reservation is over and above the existing reservation
scheme and subject to a maximum of ten per cent. The Statement of Objects and
Reasons of the Bill states that people from economically weaker sections of the
society have largely remained excluded from attending the higher educational
institutions and public employment on account of their financial incapacity to
compete with the persons who are economically more privileged.

3. The bill states that it is drafted with a will to mandate Article 46 of the Constitution of
Aryavart, a Directive Principle that urges the government to protect the educational
and economic interests of the weaker sections of society. While socially
disadvantaged sections have enjoyed participation in the employment in the services
of the tate, no such benefit was provided to the economically weaker sections.
AMENDED ARTICLES
a) Article 15 (6) is added to provide reservations to economically weaker sections for
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. The amendment aims to provide
reservation to those who do not fall in 15 (5) and 15(4) (effectively, SCs, STs and
OBCs).
b) Article 16 (6) is added to provide reservations to people from economically
weaker sections in govt. posts.
c) An explanation states that "economic weakness" shall be decided on the basis of
"family income" and other "indicators of economic disadvantage."

4. Ms. Ginny Potter, a leading legal activist has filed a petition in Supreme Court
challenging the constitutional validity of the 103rd Constitutional Amendment.

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5. In September, 2018, a five-judge Constitutional bench of the Supreme Court in

Karnail Singh case1 ruled that the "creamy layer exclusion" principle can be extended
to Scheduled Castes (SCs) and Scheduled Tribes (STs) to deny reservation to the
"elite" among the two underprivileged communities. Subsequently the Court also
ordered the Government to notify appropriate norms for application of creamy layer
principle in SC/ST reservation.

6. Now Mr. Ron Weasley has approached the Supreme Court against the inaction of the
government regarding the said order. He argues that due to its political considerations,
till date, government has not notified any norms or criteria to exclude economically
well off SC/ST from the benefits of reservation system. Government on its part claim
that creamy layer principle was originally introduced in context of OBCs only. By
extending it to SC/ST reservation, this 5 judge bench judgment is itself in violation of
Mandira Sawhney2 judgment of 9 judge Constitutional bench of 1993.

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STATEMENT OF ISSUES

A) Whether the 103rd Constitutional Amendment is Constitutionally valid or not?

B) Whether the Karnail Singh Judgment is in violation of Mandira Sawhney

Judgment of 1993 or not?

C) Whether the “creamy layer exclusion" principle should be extended to Scheduled

Castes (SCs) and Scheduled Tribes (STs) reservation or not?

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SUMMARY OF ARGUMENTS

Issue 1. Whether the 103rd Constitutional Amendment is Constitutionally valid or not?

The 103rd amendment of the Aryavartn Constitution introduced a quota system for
economically weaker sections in government jobs and educational institutions. However,
some argue that this amendment is not constitutionally valid because it violates the basic
structure of the Constitution by introducing economic criteria for reservations, which is
against the spirit of social justice. Additionally, the amendment does not address the problem
of creamy layer exclusion, where affluent individuals within reserved categories are able to
take advantage of the system at the expense of the truly disadvantaged. Some also argue that
the amendment violates the right to equality by providing reservation based on economic
status, rather than social or educational backwardness.
Issue 2. Whether the Karnail Singh Judgment is in violation of Mandira Sawhney
Judgment of 1993 or not?
The Karnail Singh judgment of 2018 dealt with the issue of the "creamy layer" exclusion in
the application of reservations for Scheduled Castes and Scheduled Tribes in Aryavart. While
some argue that the Karnail Singh judgment violates the Mandira Sawhney judgment of
1993, which laid down guidelines for reservations in Aryavart and addressed the issue of the
creamy layer, others argue that it is not in violation.
Proponents of the Karnail Singh judgment argue that it does not violate the Mandira Sawhney
judgment, as it only provides a limited relaxation of the creamy layer exclusion in certain
circumstances. They argue that the Mandira Sawhney judgment did not provide a
comprehensive framework for addressing the creamy layer exclusion and that the Karnail
Singh judgment's allowance for states to use their discretion in implementing the creamy
layer exclusion is necessary to ensure that reservations are effective and inclusive.

Issue 3. Whether the “creamy layer exclusion" principle should be extended to

Scheduled Castes (SCs) and Scheduled Tribes (STs) reservation or not?
The principle of "creamy layer" exclusion refers to the exclusion of affluent or economically
well-off individuals from the benefits of reservation policies intended for disadvantaged
groups such as Scheduled Castes and Scheduled Tribes. While some argue that this principle
should be extended to SC/ST reservation, others contend that it should not.
Opponents of extending the creamy layer exclusion principle to SC/ST reservation argue that
it is not a practical or feasible solution to address the issue of social inequality. They argue
that this approach would undermine the principles of social justice and equality enshrined in
the Aryavartn Constitution, as it would create further disparities and deny opportunities to
deserving candidates from disadvantaged communities. They argue that the focus should be
on expanding opportunities for the marginalized communities and ensuring that the benefits
of reservation reach those whoneed it the most, rather than excluding certain individuals
based on their economic status.0

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ARGUMENTS ADVANCED

Issue 1. Whether the 103rd Constitutional Amendment is Constitutionally valid or not?

The council on behalf of respondent, most humbly submit to the hon'ble supreme court that
103rd amendment of 2019 is constitutionally valid and justified after The vires of a
Constitutional Amendment is tested against the touchstone of the Basic Structure of the
Constitution.
1.1- The amendment was passed by both houses of the Parliament and received presidential
assent on January 12, 2019. It came into effect on January 14, 2019.
1.1.2. Reservation for these economically marginalized class is a form of affirmative action
designed to improve the social and economic status of these groups.
1.1.3. Refering to the paragraph 1st of facts, it is mentioned that equality is the essence of the
Constitution of Aryavart. It become the duty of the government to uplift the economically
weaker section of society and provide them equal opportunities in government jobs and
educational institutions.
1.1.4.The supreme court held that the 103rd amendment did not violate the basic structure of
the constitution and was in line with the principles of equality and equal opportunity.
1.1.5.The court also held that the amendment was a valid exercise of the Parliament’s power
under Article 15(6) and Article 16(6) of the constitution.
1.1.6. Moreover, the Supreme Court of Aryavart upheld the constitutionally of the
amendment in a recent judgement.
1.2- Strengthen the basic structure of Constitution.
1.2.1. The respondent argues that amendment vitalizes the basic structure of the constitution
rather than breaking it. An amendment to the constitution may be struck down only when it is
capable of changing the identity of the constitution.
1.2.2. The respondents argue that one must dynamically interpret the constitution in order to
strengthen the preambular vision of the constitution. One must look into Articles 38 and 46 of
the DPSPs which renders a duty on the state to eliminate social, political and economic
differences and to promote justice.
1.2.3. The 103rd amendment provide for 10% reservation for EWS and it is argued that 103rd
amendment try to cure these disparities with reservation, as it is poverty that lead to social
and educational backwardness of backward classes due to economic inequalities faced by
them in societies.
1.2.4. The judgement of State of madras v. champakam dorairajan resulted in the 1st
Amendment to the Aryavartn Constitution, which addressed the country’s reservation
programme. Clause 4 was added to Article 15 as part of the revision.
1.2.5. In M.R. Balaji and Ors. v. State of Mysore. The court said that though caste is a
relevant factor, it cannot be the sole basis to determine whether a class is backward or not and

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that there are other factors too which are needed to be considered like poverty, occupation,
place of habitation, etc. The backwardness of classes with respect to Article 15(4) cannot be
either social or educational, but it has to be both social as well as educational.
1.2.6. The right to equality is considered as a part of basic structure doctrine in M.G
Badappanawar Vs State of karnataka. Amendment tries to cure such a discrepancy by
creating a class of people which are in fact social ‘and’ educationally backward due to the
economic inequality faced by them in the society, therefore, the Parliament is in the right to
create such an enabling provision which minimises the economic inequality in the society.
Thus strengthening the basic structure and preambular goal of the constitution.
1.3-Mandira Sawhney Judgement.
1.3.1. In Mandira Sawhney v. Union of Aryavart, Under Article 16(4), backward classes of
citizens can be identified on the basis of caste and not just on an economic basis. Economic
criteria cannot be the sole identifying factor for backwardness under article 16(4). Also, in
order to prevent the abuse of power, the identifying examination to determine backwardness
should be an objective one and not a subjective one.
1.3.2. Above mention case also mention that Reservations shall not exceed 50 percent and
even for the purpose of application of the carry forward rule (by which unfulfilled vacancies
are filled in the upcoming year), the 50 percent ceiling should not be breached.
1.3.3. Regarding the issue of breach of 50% limit and violation of Equality Code, the
respondents argue that such a limit is not inextricable and can be breached in special case Or
extraordinary circumstances, and only with the application of extreme caution.
1.4- Economic criteria for reservation.
1.4.1. The paragraph 2nd of the facts itself states that reservation is seem as positive
discrimination for the upliftment of some backward section of society.
1.4.2. In providing equality in the truest sense, the court must look forward to cover all the
backward classes of the society, including those that are struggling with economic restraints
and must need the help of the state in order to break the shackles and disabilities caused due
to economic factors.
1.4.3. Moreover, the reservation cannot be availed solely on economic criteria under Articles
15(4), 15(5), 16(4), but it must not restrict the state to make special provision for the
economically backward classes which furthers the preambular goal of the constitution.
1.4.4. In R Chitralekha v State of Mysore, The order of Govt making a classification of
socially and educationally backward classes based on economic condition only was held to be
justified.
1.4.5. K. C. Vasant Kumar v. Karnataka, in this ruling, the Court opines that the test of
economic backwardness was the only criterion that can be realistically devised to determine
social and educational backwardness.
1.4.6. In K.S.Jayasree Vs. State of Kerala, the bench clarify that In ascertaining social
backwardness of a class of citizens, the caste of a citizen cannot be the sole or dominant test.

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Also Poverty or economic standard is a relevant factor in determining backwardness. Neither

caste nor poverty alone could be the sole or dominant test.

Issue 2. Whether the Karnail Singh Judgment is in violation of Mandira Sawhney

Judgment of 1993 or not?

The council on behalf of therespondent most humbly submits to the hon'ble supreme court
that THE KARNAIL SINGH JUDGEMENT is not in violation of THE MANDIRA
SWAHNEY JUDGEMENT
1.1judgment of MANDIRA SWAHNEY
II.Backward classes under Article 16(4) cannot be identified on the basis of economic criteria
but the caste system also needs to be considered.
III.Article 16(4) is not an exception to clause 1 but an instance of classification as envisaged
by clause 1.
IV.Backward classes in article 16(4) were different from the socially and educationally
backward mentioned in Article 15(4).
V.The concept of a creamy layer was laid down and it was directed that such a creamy layer
be excluded while identifying backward classes.
VI.Article 16(4) does allow the classification of backward classes into backward and more
backward.
VII.Reservation shall not exceed 50 percent, moreover, reservation in promotions shall not be
allowed.
VIII.Any new disputes regarding criteria were to be raised in the Supreme Court only.

1.2 judgment of KARNAIL SINGH case

The court concluded that the judgment in the Nagraj case does not need to be referred to a
seven-Judge bench. Along with this, the provision that the State has to collect quantifiable
data showing the backwardness of the Scheduled Castes and the Scheduled Tribes is contrary
to the nine-Judge Bench in the Mandira Sawhney case making this provision invalid. It was
also seen in the Mandira Sawhney Case that any discussion on the ‘creamy layer’ has no
relevance in the context of Scheduled castes and Scheduled tribes. Further, the Supreme
Court confirmed the Application of creamy layer to promotions for Scheduled castes and
Scheduled tribes as held in the Nagraj Judgement. It had resulted in thousands of employees
being denied their due promotions. The court viewed the principle of the creamy layer as a
principle of identification and not of equality.

1.3 Creamy layer has no relevance with sc and st’s

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In the both case judgement it is clearly mentioned that creamy layer has no relevance with
sc`s and st`s and the court of both case judgment has said that The upheld reservations in
promotions for SC/STs in public employment. However, it extended the creamy layer
principle to SC/STs in promotions. This means that SC/STs belonging to the creamy layer are
not eligible for reservations in promotions. The objective of reservations is to ensure that
backward classes can progress on an equal basis with other citizens.
1.4 abolishing Quantifiable data showing backwardness of SC/STs
The requirement of demonstrating the backwardness of SC/STs by way of quantifiable data
under Article 16(4A) has raised serious questions. Article 16(4A) speaks of reservation in
promotions to only SC/ST and not Backward Classes. However, Article 16(4) deals with
reservation in favor of Backward Classes In MahMandira Sawhney, and the Karnail Singh
case the Supreme Court held that there is no requirement of identifying the backwardness of
SC/STs as they are admittedly included within Backward Classes

1.5 Right to equality is secured

Equality rights are intended to ensure that everyone is treated with the same respect, dignity,
and consideration without discrimination based on personal characteristics such as race,
national or ethnic origin, colour, religion, sex,
In the both case judgement it is clearly mentioned that creamy layer has no relevance with
sc`s and st`s and the court of both case judgment has said that The upheld reservations in
promotions for SC/STs in public employment. However, it extended the creamy layer
principle to SC/STs in promotions. The court believed that these wealthy and advanced
members form the ‘creamy layer’ among backward classes.

2.3.3 Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538

In this case, 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

Mistake of fact
It is humbly submitted before the court that it is claimed by the respondent that THE
KARNAIL SINGH JUDGEMENT is not in violation of THE MANDIRA SWAHNEY
JUDGEMENT the petitioner has filed a petition on the that it is a violation which is
maintainable because the both judgments the Karnail Singh and the MahMandira Sawhney
judgments are similar and support each others judgements

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Issue 3. Whether the “creamy layer exclusion" principle should be extended to

Scheduled Castes (SCs) and Scheduled Tribes (STs) reservation or not?
The council on behalf of the RESPONDENT most humble submits to the hon'ble supreme
court that the “creamy layer exclusion" principle should NOT be extended to Scheduled
Castes (SCs) and Scheduled Tribes (STs) reservation
1.1what is the creamy layer
The creamy layer is used to refer to members of a backward class who are advanced socially,
economically as well as educationally. People falling in this category are not eligible for
government-sponsored educational and professional benefit schemes. The term ' creamy
layer' was introduced by the Sattanathan Commission in 1971.

1.2 what is reservation?

Reservation is the act of reserving a certain percentage of seats for people of discriminated
and backward classes in schools, universities, and also in government jobs.

1.3 Why the “creamy layer exclusion" principle should NOT be extended to Scheduled
Castes (SCs) and Scheduled Tribes (STs) reservation
We have to recognize that while both OBCs and SCs get a reservation, the social reality
under which Dalits live and the situation under which OBCs live are very different. So, I
would make a case for justifying the ‘creamy layer’ exclusion from within the OBCs, because
for them a lot of it is economic backwardness. And if you are rich enough to cross a certain
threshold, there isn’t the kind of social discrimination that happens toward Dalits. In fact,
there is an argument in the U.S. that richer Blacks face greater discrimination because the
Whites resent their entry into areas that are considered privileged for the Whites.

1.4 the reservation action is against discrimination

The reservation policy type of affirmative action is against discrimination; it is not based on
economic consideration because the discrimination is independent of your economic
standing. Women are asking for reservations. Have they ever raised the issue that relatively
better-off women should not get political reservations? Because they are discriminated based
on gender, poor or non-poor If there is a question of limit, the limit can be modified. If
promotion harms others, there are other ways of helping them. The Supreme Court should not
put a legal limit on it, 50% or otherwise. Find out the alternative ways of benefiting non-
SCs/STs, while retaining reservations for SCs/

Karnail Singh v Lacchmi Narain Gupta

The Court upheld reservations in promotions for SC/STs in public employment. However, it
extended the creamy layer principle to SC/STs in promotions. This means that SC/STs

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belonging to the creamy layer are not eligible for reservations in promotions. The objective of
reservations is to ensure that backward classes can progress on an equal basis with other
citizens. However, those belonging to the creamy layer in the SC/ST category were cornering
the coveted jobs in the public sector. Those who were truly backward were unable to access
the benefits of reservations.

In Mandira Sawhney v Union of Aryavart

The Court deliberated on how to define the creamy layer. It stressed that without enforcing
the creamy layer principle, the benefits of reservation would not reach the most backward in
the backward classes category. This would lead to discrimination because unequal’s cannot
be treated as equals, and result in a violation of the right to equality
Mistake of fact
It is humbly submitted before the court that it is claimed by the petionerthat the creamy layer
exclusion" principle should be extended to Scheduled Castes (SCs) and Scheduled Tribes
(STs) reservation Is not valid as have to recognize that while both OBCs and SCs get a
reservation, the social reality under which Dalits live and the situation under which OBCs
live are very different. the ‘creamy layer’ exclusion from within the OBCs, because for them
a lot of it is economic backwardness. And if you are rich enough to cross a certain threshold,
there isn’t the kind of social discrimination that happens toward Dalits.

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PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the counsels on the behalf of the Respondant humbly pray before this
Hon’ble Court that it may be pleased to adjudge and declare that:
1. The 103rd amendment is constitutional and it does not violates the basic structure
Aryavart Constitution
2. The Karnail Singh Judgment is not the violation of Mandira Sawhney Judgment of
1993
3. Creamy layer exclusion should not be extended to SC’s and ST’s

or pass any other order that the court may deem fit in the light of equity , justice and good
conscience and for this act of kindness of Your Lordship the Respondant shall as duty
bound every pray
Sd/-____________________
Counsels for the Petitioner

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