SHANTARAM POTDUKHE COLLEGE OF LAW, NATIONAL MOOT COURT COMPETITION

SHANTARAM POTDUKHE COLLEGE OF LAW, CHANDRAPUR

NATIONAL MOOT COURT COMPETITION

BEFORE THE HON’BLE SUPREME COURT OF INDISTAN

WRIT PETITION NO.-_______/2019

IN THE MATTER OF- Commented [WU1]:

EQUALITY FOR ALL

V.
UNION OF INDISTAN

PETITION INVOKED UNDER ART. 32 OF

THE CONSTITUTION OF INDISTAN

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S COMPANION
JUSTICES OF THE HON’BLE SUPREME COURT OF INDISTAN

MEMORANDUM OF ARGUMENTS FOR THE PETITONER

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TABLE OF CONTENTS

CONTENTS
LIST OF ABBREVIATIONS .......................................................................................................................................... 3
INDEX OF AUTHORITIES ............................................................................................................................................ 4
STATEMENT OF JURISDICTION .................................................................................................................................. 5
STATEMENT OF FACTS .............................................................................................................................................. 6
STATEMENT OF ISSUES ............................................................................................................................................. 7
I. WHETHER THE PRESENT PETITION FILED UNDER ARTICLE 32 IS MAINTAINABLE BEFORE THE HON’BLE
SUPREME COURT? ................................................................................................................................................. 7
II. WHETHER PROVIDING RESERVATION TO ECONOMICALLY WEAKER SECTION IS VIOLATIVE OF THE
“RIGHT TO EQUALITY” GUARANTEED UNDER ARTICLE 14 OF THE CONSTITUTION OF INDISTAN? ................... 7
III. WHETHER THE ACTION TAKEN BY GOVERNMENT ARBITRARY AND VIOLATIVE OF THE BASIC
STRUCTURE OF THE CONSTITUTION? ................................................................................................................... 7
SUMMARY OF ARGUMENTS ...................................................................................................................................... 8
ARGUMENTS ADVANCED .......................................................................................................................................... 9
I.WHETHER THE PRESENT WRIT PETITION FILED UNDER ART. 32 OF THE CONSTITUTION OF INDISTAN IS
MAINTAINABLE? ................................................................................................................................................... 9
1. THAT THE PETITIONERS HAVE LOCUS STANDI? ........................................................................................... 9
2. THE RIGHT UNDER ART. 32 IS NOT SUBJECT TO THE EXHAUSTION OF LOCAL REMEDIES ....................... 10
3. THIS HON'BLE COURT HAS A CONSTITUTIONAL DUTY TO ENTERTAIN THE INSTANT PETITION .................. 10
II. WHETHER PROVIDING RESERVATION TO ECONOMICALLY WEAKER SECTION IS VIOLATIVE OF THE
BASIC STRUCTURE OF THE CONSTITUTION OF INDISTAN? ................................................................................ 11
1. ECONOMIC CRITERIA CANNOT BE THE SOLE BASIS FOR RESERVATION ....................................................... 11
2. VIOLATION OF ARTICLE 14 OF THE CONSTITUTION .................................................................................. 13
III.
WHETHER THE ACTION TAKEN BY THE GOVERNMENT ARBITRARY AND IS AGAINST THE BASIC
STRUCTURE OF THE CONSTITUTION? ................................................................................................................. 15
1. EXCEEDING THE CAP OF 50% RESERVATION ............................................................................................. 15
2. IMPOSING RESERVATIONS ON UNAIDED INSTITUTIONS IS MANIFESTLY ARBITRARY ............................... 15
PRAYER ................................................................................................................................................................... 18

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SHANTARAM POTDUKHE COLLEGE OF LAW, NATIONAL MOOT COURT COMPETITION

LIST OF ABBREVIATIONS

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SHANTARAM POTDUKHE COLLEGE OF LAW, NATIONAL MOOT COURT COMPETITION

INDEX OF AUTHORITIES

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STATEMENT OF JURISDICTION

It is most humbly submitted that the Petitioner has approached this Hon’ble Supreme Court
Under Article 321of the Constitution of Indistan for the violation of Fundamental Rights
Guaranteed under the Constitution of Indistan.

11Article 32 in The Constitution Of India, 1950-

32. Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part
is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of
the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the
Supreme Court under clause ( 2 ).
(4) The right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution.

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STATEMENT OF FACTS

Indistan is a Sovereign, Socialist, Secular, Democratic and Republic country which is governed by its
written Constitution. The very spirit of the Constitution lies in its promise to all it’s citizen the equality
of both status and opportunity and to protect this promise the “Right to Equality” is a fundamental right
guaranteed to its citizen.

The Constitution grants permission to the State to make special provisions for weaker section of
the society which includes socially and educationally backward Classes of the society. Accordingly
the State has made special provisions in favor of certain classes of people by giving them reservations in
education and public employment.

The caste has been considered relevant criteria of backwardness in providing these reservations. The
Supreme Court of Indistan while exercising its authority of interpreting Constitutional provisions laid
down that the upper limit of the reservations so given is 50 % and no reservation beyond this limit can
be given by the State.

Recently, Parliament of Indistan passed a Constitutional (103rdAmendment) Act, 2019 thereby

providing reservation to economically weaker sections of the general classes of people, who were not
covered under the earlier scheme of reservation.

After this amendment the extent of reservation goes beyond the specified limit of 50%.

The petition therefore is filed by the NGO called “Equality for All” before the Supreme Court of
Indistan challenging the Constitutional validity of the said amendment.

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STATEMENT OF ISSUES

I. WHETHER THE PRESENT PETITION FILED UNDER ARTICLE 32 IS MAINTAINABLE BEFORE

THE HON’BLE SUPREME COURT?

II. WHETHER PROVIDING RESERVATION TO ECONOMICALLY WEAKER SECTION IS VIOLATIVE

OF THE “RIGHT TO EQUALITY” GUARANTEED UNDER ARTICLE 14 OF THE CONSTITUTION
OF INDISTAN?

III. WHETHER THE ACTION TAKEN BY GOVERNMENT ARBITRARY AND VIOLATIVE OF THE
BASIC STRUCTURE OF THE CONSTITUTION?

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SUMMARY OF ARGUMENTS

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ARGUMENTS ADVANCED

I. WHETHER THE PRESENT WRIT PETITION FILED UNDER ART. 32 OF THE CONSTITUTION OF INDISTAN

IS MAINTAINABLE?

The petitioner most respectfully submits that, the instant petition is maintainable under Art. 32 of the
Constitution of Indistan. This argument is two-fold. Firstly the petitioner has a bona fide interest and
hence they have a locus standi. Secondly, the Fundamental Rights of the citizens have been
violated. Art.32 itself is a Fundamental Right and the Supreme Court, as guardian of the Fundamental
Rights, has the powers for enforcement of those rights through issue of Writs.

1. THAT THE PETITIONER HAVE LOCUS STANDI?

¶“Locus Standi” is the right of a party to be appeared and be heard on the question before any tribunal.
It means the legal capacity to invoke the jurisdiction at the Court.

In landmark cases2 the SC has evolved a new rule viz., any member of the public, acting bona fide and
having sufficient interest can maintain an action for redressal of public wrong or public injury. In the
case of S.P Gupta v. Union Of India AIR 19823 the Court observed that,

“any member of the public having sufficient interest can maintain an action for judicial redress for
public injury arising from breach of public duty or from violation of some provisions of the constitution
or the law and seek enforcement of such public duty and observance of such constitutional or legal
provision”.

In the present case the present law providing for 10% reservation for the economically weaker section
of the society and amendment to the constitution (103rd) Act, 2019 of the Constitution of Indistan is
against the concept of equality. Therefore on the pretext of complying with all of the requisites, the
petition does come under the purview of Article 32. Hence, the petition is maintainable before the
Supreme Court in prima facie.

2
Daryao v. The State Of Uttar Pradesh, AIR 1457, (SC 1961)
3
S.P Gupta v. Union Of India, AIR 1982 SC 149

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2. THE RIGHT UNDER ART. 32 IS NOT SUBJECT TO THE EXHAUSTION OF LOCAL REMEDIES

The right to approach this Hon'ble Court in case of violation of fundamental rights is itself a
fundamental right enshrined in Art. 32.4 Further, this court has held that this right is absolute and may
not be impaired on any ground 5 . Further, unlike in Art. 226, the remedy provided by Art. 32 is a
fundamental right and not merely a discretionary power of the Court.(foot)

3. THIS HON'BLE COURT HAS A CONSTITUTIONAL DUTY TO ENTERTAIN THE INSTANT PETITION

The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has been
interpreted broadly[12] and as one that exists independent of any other remedy that may be available. [13]
This is particularly true in cases of grave public importance, such as environmental litigation where
relief may not be denied on mere technical grounds. Consequently, it is submitted that a refusal to
entertain the instant petition would be inconsistent with the aforesaid obligation.[14]

4
Wharton’s Law Lexicon, 1019 (15th Ed., 2009)
5
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490

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II. WHETHER PROVIDING RESERVATION TO ECONOMICALLY WEAKER SECTION IS VIOLATIVE OF THE

BASIC STRUCTURE OF THE CONSTITUTION OF INDISTAN?

¶ The counsel on behalf of Petitioner most humbly submits that the Constitution (103rd Amendment)
Act, 2019 which was passed through both the Houses of Parliament is the subject matter of the present
petition on the ground that it violates several basic features of the Constitution.

The above mentioned Amendment essentially inserts Art. 15(6) and Art. 16(6) in the Constitution of
Indistan which permit the following:

a. The State to provide for special provisions / reservations for any economically weaker sections of
citizens.
b. These economically weaker sections to be of those other than the other backward classes (OBC)’s or
SCs/STs.
c. These measures to be to a maximum of 10% of seats/posts in addition to the existing reservations.
d. The reservations in Article 15(6) to be for unaided institutions as well, notwithstanding the provisions
of Articles 19(1)(g) & 29(2).

Each of the above 4 aspects violate one or other of the basic features of the Constitution, and hence such
a manifest and obvious violation of the Constitution ought to be prevented.

1. ECONOMIC CRITERIA CANNOT BE THE SOLE BASIS FOR RESERVATION

¶ The counsel on behalf of Petitioner most humbly submits that this Court in Indira Sawhney Vs. Union
of India6, they specifically stated that the economic criteria cannot be the sole basis for reservations
under the Constitution. The majority holds as follows:

6
Indira Sawhney v. Union of India, 1992 Supp. 3 SCC 217

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“It follows from the discussion ... that a backward class cannot be determined only and exclusively with
reference to economic criterion. It may be a consideration or basis along with and in addition to social
backwardness, but it can never be the sole criterion. This is the view uniformly taken by this Court and
we respectfully agree with the same.”

Concurring with the above view, Justice Sawant states that:

“Thus, 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. 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). While those entitled to
benefits under Article 16(4) may also be entitled to avail of the measures taken under Article 46, the
converse is not true. If this is borne in mind, the reasons why mere poverty or economic consideration
cannot be a criterion for identifying backward classes of citizens under Article 16(4) would be more
clear.”

In addition, Justice Sahai states that:

“But any reservation or affirmative action on economic criteria or wealth discrimination cannot be
upheld under doctrine of reasonable classification. Reservation for backward class seeks to achieve the
social purpose of sharing in services which had been monopolized by few of the forward classes. To
bridge the gap, thus created, the affirmative actions have been upheld as the social and educational
difference between the two classes furnished reasonable basis for classification. Same cannot be said
for rich and poor. Indigence cannot be a rational basis for classification for public employment.”
The above Constitution Amendment completely violates the Constitutional norm that economic criterion
cannot be the only basis of reservation as has been laid down by the 9 judges in Indira Sawhney,
without removing the basis of the judgment. Such an Amendment is hence, vulnerable and ought to be
struck down as it merely negates a binding judgment.

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2. VIOLATION OF ARTICLE 14 OF THE CONSTITUTION

¶ The counsel on behalf of Petitioner most respectfully submits that time and again, this Hon’ble Court
has upheld the equality before law as one of the foremost basic features of the Constitution. The Part III
in the Constitution that defines Fundamental Right was included in the Constitution to ensure the
inviolability of certain essentials rights from political vicissitudes. 7 The present reservation passed by
the Respondents is just an attempt to woo the major part of the population of Indistan which form a
large part of the voting population of the country

The Counsel further submits that, Article 14 of the Indian Constitution explains about the Right to
Equality as follows.

“The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.”

Article 14 of the Constitution ensures equality among equals, and aims to protect persons similarly
placed against discriminatory treatment. In the present case, the law providing reservation to the economically
weaker section of the society but it does not rest on any sufficient ground and is unreasonable in nature. Every
action taken by the Government must be in public interest; Any State action whether executive, legislative or
judicial is void if it contravenes Art 148.

The Petitioners submit that, Article 13(2)9 of the Constitution of Indistan, clearly prohibits the passing
of any laws by the State which takes away or abridges rights, conferred by part III of the Constitution.
In the event of such a law being made the same shall be void to the extent of contravention.10

From Maneka Gandhi v. Union of India11 to I.R.Coelho v. State of Tamil Nadu12, and then to the
latest judgment of Shayara Bano v. Union of India, 13 the value of equality has been repeatedly
emphasized to ensure that equals are not treated unequally. By way of the present amendments, the

7
Siddharam Satlingappa Mhetre v. State of Maharashtra , Criminal Appeal No. 2271 of 2010 (Supreme Court, 2/12/2010)
8
Budhan v. State of Bihar, AIR 1995 SC 191
9
Art 13(2), the Constitution of Indica: “The State shall not make any law which takes away or abridges the rights conferred
by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
10
State of Punjab v. Dalbir Singh, AIR 2012 SC 1040 (1047);
11
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
12
I.R Coelho v. State of Tamilnadu, (2007) 2 SCC 1
13
Shayara Bano v. Union of India, (2017) 9 SCC 1

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exclusion of the OBCs and the SCs/STs from the scope of the economic reservation essentially implies
that only those who are poor from the general categories would avail the benefits of the quotas. Taken
together with the fact that the high creamy layer limit of Rs.8 laks per annum which comes at about Rs.
2191 per day which is almost 45 times the present poverty line goes on to define a new poverty line and
what this means is that either the poverty line is falsely defined or the definition of economically weaker
sections is erred and also ensures that the elite in the OBCs and SCs/STs capture the reservation benefits
repeatedly, the poor sections of these categories remain completely deprived. This is an overwhelming
violation of the basic feature of equality enshrined in Article 14 of the Constitution and elsewhere.

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III. WHETHER THE ACTION TAKEN BY THE GOVERNMENT ARBITRARY AND IS AGAINST THE BASIC

STRUCTURE OF THE CONSTITUTION?

1. EXCEEDING THE CAP OF 50% RESERVATION

¶The counsel on behalf of petitioners most humbly submits that the Hon’ble Court, speaking through
the Constitution Bench in the case of M. Nagaraj Vs. Union of India &Ors.14, upheld the Constitutional
validity of Article 16(4A) and the proviso to Article 335 in the following words:

“We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons,
namely, backwardness, inadequacy of representation and overall administrative efficiency are all
constitutional requirements without which the structure of equality of opportunity in Article 16 would
collapse.”

In Para 104, the Court specifically states that “As stated above, be it reservation or evaluation,
excessiveness in either would result in violation of the constitutional mandate.”

Thus, the 50% ceiling limit of reservations has been engrafted as a part of the basic structure of the
Constitution’s equality code. This has in fact been reiterated by the Constitution Bench recently in
Jarnail Singh v. Lachhmi Narain Gupta15, which declined to refer the correctness of the dicta laid
down in M. Nagaraj and Ors. v. Union of India16 to a larger bench.

2. IMPOSING RESERVATIONS ON UNAIDED INSTITUTIONS IS MANIFESTLY ARBITRARY

¶The counsel on behalf of the Petitioner most humbly submits that both the Constitution Bench
judgments in T.M.A.Pai Foundation v. State of Karnataka17, and P.A.Inamdar & ors. v. State of
Maharashtra 18 , make it clear that the State’s reservation policy cannot be imposed on unaided
educational institutions, and as they are not receiving any aid from the State, they can have their own
admissions provided they are fair, transparent, non-exploitative and based on merit.

14
M. Nagaraj Vs. Union of India &Ors, (2006) 8 SCC 212
15
Jarnail SinghVs. Lachhmi Narain Gupta, (2018) 10 SCC 396
16
M. Nagaraj and Ors. v. Union of India, (2006) 8 SCC 212
17
T.M.A.Pai Foundation v. State of Karnataka, (2002) 8 SCC 481
18
P.A.Inamdar & ors. v. State of Maharashtra, (2005) 6 SCC 537

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While the impugned amendment attempts to overcome the applicability of Articles 19(1)(g) and 29(2),
it remains completely silent on Article 14, which right protects the citizens from manifestly arbitrary
State action. The majority in Shayara Bano, (2017) 9 SCC 1 has specifically held manifest arbitrariness
as a facet of Article 14. Hence, the effective nationalization of unaided institutions to the extent of
economic reservation is violative of Article 14 of the Constitution on plain terms and also of the basic
features of autonomy and equity.

It is further submitted that the use of the expression “economically weaker sections” remains undefined
by the amendment and is left to be notified by “the State”. Not only is it unclear whether the Central
Government and State Governments can both define the expression separately, but they both may define
it differently. This level of untrammeled vagueness makes the insertion arbitrary and unworkable.

By virtue of the non-obstante clause, the State is permitted to define “any” economically weaker
“section”, i.e. Hindu washer men earning below Rs.100 a day, Muslim weavers earning less than Rs.2
laks a month, etc., which would normally be hit by the provisions of Articles 15(1) and 16(2) as well as
the secular feature of the Constitution. It is imperative that Articles 15(1) and 16(2) be treated as part of
the basic structure of the Constitution brooking no exception at all.

Just as with women and persons with disabilities, the economic criterion ought to have been applied
horizontally as economic backwardness is found across all castes and groups. This would have ensured
that the reservation remained within the 50% limit while in fact sub serving the purpose of Article 46 of
the Constitution.

Instead of exploring other alternatives as directed by this Hon’ble Court, the Respondents have taken to
amending the Constitution repeatedly so that a populist measure can be permitted to flourish with a
clear eye on the vote bank. It is necessary and incumbent on the Respondents to explain as to what other
measures have been even remotely explored by them to obtain the social objectives outlined in the
Constitution.

As stated in Nagaraj and reiterated in several judgments of the Supreme Court and the High Courts, it is
now imperative that in order for reservations to be imposed, there be some sort of quantitative exercise
undertaken in advance. There has been absolutely no such attempt made to arrive at the ad-hoc 10%

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figure that is now introduced in the Constitution and this is manifestly arbitrary and violative of the
basic feature of non-arbitrariness.

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PRAYER

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