BEFORE THE HON'BLE SUPREME COURT OF INDIA
IN
WRIT PETITON NO._______________OF 2021
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
PETITIONER
Versus
RESPONDENT
Appeal on behalf of the Petitioner
Counsel for Petitioner
MEMORIAL ON BEHALF OF : PETITIONER
TABLE OF CONTENTS
S.N Particulars Page No.
o
1. Index of Authorities
2. Statement of Jurisdiction.
3. Statement of Facts
4. Question of Law
5. Summary of Arguments
6. Arguments Advanced / Pleadings
7. ISSUE I :Whether 103rd Constitutional (Amendment) Act, 2013 violates any
of the basic structures of the Constitution of India.
8. ISSUE II :Whether the additional 10% reservations for Economically
Weaker Sections in educational institutions and public employment is
unconstitutional, as it breaches and exceeds the 50% limit for reservations as
laid down in Indra Sawhney vs Union of India (AIR 1993 SC 477) in 1993 ?
9. ISSUE III :Whether reservations under the Constitutional scheme can be
prescribed only is based on economic criteria and not on social and
educational backwardness also?
Final Submission / Prayer
MEMORIAL ON BEHALF OF : PETITIONER
INDEX OF AUTHORITIES
Article 19 ( 1 ) ( g ) of the constitution.
Article 15(6) of the constitution
Article 16(6) of the constitution
Article 46 of the constitution
Article 15 & 16 of the constitution
Article 32 of the constitution
STATUTES
Constitution of India, 1950
JUDICIAL PRECEDENTS
Indra Sawhney & Ors. V. Union of India
M. Nagaraj & Ors. V. Union of India & Ors.
I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu
Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.
Maneka Gandhi v. Union of India
Shayara Bano v. Union of India and Ors. (2017) 9 SCC 1
Ashok Thakur vs. Union of India
T.M.A.Pai Foundation, (2002) 8 SCC 481
P.A.Inamdar, (2005) 6 SCC 537
M. R. Balaji v. State of Mysore AIR 1963 SC 649
Ram Krishna Singh v. State of Mysore, AIR 1960 Mysore 338
STATEMENT OF JURISDICTION
The petitioner herein is Mr. X who challenged the constitutional validity of the 103rd
Constitutional (Amendment) Act, 2019 before the Hon'ble Supreme Court of India under
Article 32 of the Indian Constitution claiming that, it violates the basic structure of the
Constitution.
THE PROVISION UNDER WHICH THE PETITIONER HAS APPROACHED
THE HONORABLE SUPREME COURT IS READ HEREIN AS :
Article 32 in The Constitution Of India 1949
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
MEMORIAL ON BEHALF OF : PETITIONER
STATEMENT OF FACTS
Both Houses of the Parliament passed the 124th Constitutional Amendment Bill to
provide 10 % reservation in government jobs and educational institutions in favour of
economically weaker sections on 09th January 2019 and enacted as Constitution (One
Hundred and Third Amendment) Act, 2019 to enable the State to make reservations
based on the economic criterion alone.
The Act received the assent of the Hon'ble President on 12th January 2019 and was
published in the Gazette on the same day. Through this Constitution (One Hundred and
Third Amendment) Act, 2019; a new clause (6) was inserted in Article 15 and 16 of the
Constitution
103rd Constitutional (Amendment) Act
Clause (6) as inserted in the Article 15 reads as follows: "
(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2)
of article 29 shall prevent the State from making,
(a) any special provision for the advancement of any economically weaker
sections of citizens, other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker
sections of citizens, other than the classes mentioned in clauses (4) and (5) in so
far as such special provisions relate to their admission to educational Institutions,
including private educational institutions, whether aided or unaided by the State,
other than the minority educational institutions referred to in clause (1) of article
30, which in the case of reservation would be in addition to the existing
reservations and subject to a maximum of ten per cent of the total seats in each
category."
Explanation: For the purpose of this Article and Article 16,"economically
weaker sections" shall be such as may be notified by the State from time to time
on the basis of family income and other indicators of economic disadvantage."
Similarly,
Clause (6) was inserted into the Article 16, and it reads as follows: "(6) Nothing
in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favor of any economically weaker sections
of citizens other than the classes mentioned in clause (4), in addition to the
existing reservation and subject to a maximum of ten per cent of the posts in each
category."
Mr. X challenged the constitutional validity of the 103rd Constitutional (Amendment)
Act, 2019 before the Hon'ble Supreme Court of India under Article32 of the Indian
Constitution claiming that, it violates the basic structure of the Constitution.
QUESTION OF LAW
Whether 103rd Constitutional (Amendment) Act, 2013 violates any of the basic
structures of the Constitution of India.
Whether the additional 10% reservations for Economically Weaker Sections in
educational institutions and public employment is unconstitutional, as it breaches
and exceeds the 50% limit for reservations as laid down in Indra Sawhney vs
Union of India (AIR 1993 SC 477) in 1993 ?
Whether reservations under the Constitutional scheme can be prescribed only is
based on economic criteria and not on social and educational backwardness also?
SUMMARY OF ARGUMENTS
__________________________________________________________________
ISSUE I
Whether 103rd Constitutional (Amendment) Act, 2013 violates any of the
basic structures of the Constitution of India.
__________________________________________________________________
The above said impugned constitutional amendments is questioned in this batch of cases
mainly on the ground that the impugned amendments is ultra vires as they alter the basic
structure of the Constitution of India. Also, the impugned amendments run contrary to the
dictum in the majority judgment, in the case of Indra Sawhney & Ors. V. Union of
India^1
A backward class cannot be determined only and exclusively with reference to economic
criterion. Also that the reservation of ten per cent of vacancies, in available
vacancies/posts, in open competition on the basis of economic criterion will exclude all
other classes of those above the demarcating line of such ten per cent seats. It is further
pleaded that reservation in unaided institutions violates the fundamental right under under
Article 19(1)(g) of the Constitution. It is their case that the State cannot insist on private
educational institutions which receive no aid from the State to implement the State policy
on reservation for granting admission on lesser percentage of marks, i.e., on any criterion
except merit.
A law passed in haste :
This law was passed in haste. It was a legislation by stealth. The Constitution (One
Hundred and Twenty-fourth Amendment) Bill, 2019 was introduced in Parliament
unannounced on 8 January 2019, as if some national security matter was involved. It was
passed in both the houses within 48 hours, and got presidential approval the next day.
Ideally, such bills with far-reaching implications should be sent to department-related
committees for wider discussion and consultation. It’s not illegal to introduce and pass a
bill in haste, but this is certainly against constitutional morality and propriety .
The bill didn’t have a chance to go through proper scrutiny of Parliament.
__________________________________________________________________
ISSUE II
Whether the additional 10% reservations for Economically Weaker Sections
in educational institutions and public employment is unconstitutional, as it
breaches and exceeds the 50% limit for reservations as laid down in Indra
Sawhney vs Union of India (AIR 1993 SC 477) in 1993 ?
__________________________________________________________________
A) Court in the case of M. Nagaraj & Ors. V. Union of India & Ors.
Court in the case of M. Nagaraj3 which is approved in the case of I.R. Coelho (Dead)
by LRs. v. State of Tamil Nadu4 and Jarnail Singh & Ors. v. Lachhmi Narain
Gupta & Ors.5 , the impugned amendments affect the ‘width’ and ‘identify’ of equality
provisions, as such same is fit to be declared as unconstitutional. It is submitted that by
applying the above said tests, if the impugned amendments are examined, the impugned
Articles are in violation of the basic structure of the Constitution. Further, it is submitted
that the impugned Amendment Act violates the rule of 50% quota for affirmative action
and reservation as enunciated by this Court in the case of Indra Sawnhey1 . Further, it is
submitted by learned senior counsel that the two-fold test for testing the validity of
fundamental right under the basic structure doctrine is to consider whether (a) identity
and (b) width of fundamental right is affected or not. It is submitted that if identity of the
right is distorted or taken away, such action will be in violation of basic structure.
Various articles in the draft Constitution prepared by the constitutional adviser and by
referring to debates of Constituent Assembly and by placing reliance on observations
made by this Court in the judgment in the case of Indra Sawhney1 , has submitted that the
educational backwardness of backward classes is on account of their social
backwardness. It is submitted that the social backwardness is the cause and not the
consequence of either of their economic or educational backwardness. It is submitted that
the reason for providing reservation under Articles 15(4) and 16(4) by carving out an
exception to the equality clause is to confine the benefits only to persons answering the
description of backward classes. It is further notice that the economic criterion by itself
will not identify the backward class. If economically weaker sections are brought within
the purview of backward classes, it will destroy the ratio legis, very reason or foundation
of law to carve out the exceptions to the equality clause.
__________________________________________________________________
ISSUE III
Whether reservations under the Constitutional scheme can be prescribed
only based on economic criteria and not on social and educational
backwardness also?
__________________________________________________________________
That economic backwardness cannot be the sole criterion for identifying
backward class, it is pleaded that the ratio decided by this Court in the case of
Indra Sawhney cannot be applied to judge the validity of impugned
amendments. It is stated that in the case of Indra Sawhney1 memoranda issued
by the Government of India were under challenge and as much as the present
challenge relates to the constitutional amendment, said ratio decided cannot be
applied. It is also pleaded in the counter affidavit that the limit of 50% of
reservation is only applicable to reservations made under Articles 15(4), 15(5)
and 16(4) and does not apply to Article 15(6). 2 (2008) 6 SCC 1 7 W.P.
(C)No.55 of 2019 etc.
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.
ARGUMENTS ADVANCED
__________________________________________________________________
ISSUE I
Whether 103rd Constitutional (Amendment) Act, 2013 violates any of the
basic structures of the Constitution of India.
__________________________________________________________________
A) The 103rd Constitutional Amendment violates the equality code of the
Constitution and so is in breach of the basic structure of the Constitution.
B) The Supreme Court has upheld the equality code as one of the foremost basic
features of the Constitution. From Maneka Gandhi v. Union of India (1978) 1
SCC 248 and I.R.Coelho v. State of Tamil Nadu and Ors. (2007) 2 SCC 1 to
Shayara Bano v. Union of India and Ors. (2017) 9 SCC 1, the value of equality
has been repeatedly emphasized to ensure that equals are not treated unequally.
By the 103rd Constitutional Amendment, the exclusion of the OBCs and the
SCs/STs from the scope of the economic reservation essentially implies that only
people who are poor and from the general categories could avail the benefits of
the quotas. Taken together with the fact that the high creamy layer limit of Rs.8
lakh per annum 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.
C) Just as with women and people with disabilities, the economic criterion ought to
have been applied horizontally and not solely as economic backwardness can be
found across all castes and groups in the country. This would have ensured that
the reservation remained within the 50% limit while also serving the purpose of
Article 46 of the Constitution.
D) In the case of Ashok Thakur vs. Union of India, the Constitution Bench of the
Supreme Court has held that in the case of private institutions and unaided
institutions, the State cannot thrust reservation on them and such reservations
violate the basic structure by obliterating the right under Article 19(1)(g).
E) Both the Constitution Bench judgements in T.M.A.Pai Foundation, (2002) 8
SCC 481 and P.A.Inamdar, (2005) 6 SCC 537 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. 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 andequity.
__________________________________________________________________
ISSUE II
Whether the additional 10% reservations for Economically Weaker Sections
in educational institutions and public employment is unconstitutional, as it
breaches and exceeds the 50% limit for reservations as laid down in Indra
Sawhney vs Union of India (AIR 1993 SC 477) in 1993 ?
__________________________________________________________________
A) The impugned Constitution Amendments fail to consider that Articles 14
and 16 form the basic feature of equality, and that they have been violated
with the doing away of the restraints that were imposed on the reservation
policy, i.e. the 50% ceiling limit and the exclusion of economic status as a
sole criterion.
B) The Supreme Court, speaking through the Constitution Bench in the case
of M.Nagaraj Vs. Union of India & Ors., (2006) 8 SCC 212, 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 Vs.
Lachhmi Narain Gupta, (2018) 10 SCC 396, which declined to refer the
correctness of the dicta laid down in Nagaraj to a larger bench.
C) As per the ratio in Indira Sawhney vs. Union of India and the decision in
M. Nagaraj vs. Union of India & Ors., the reservation cannot be beyond
50% of the available seats or posts at a given point in time. The said Act
enable for reservation above the cap of 50% reservation therefore, violate
basic feature of the Constitution hence it is unconstitutional.
D) It is well settled that the cap of 50% in reservation is also part of the basic
structure and has been asserted by the Supreme Court in the decision in M.
Nagaraj. This view has been affirmed subsequently by several decisions of
the Hon’ble Supreme Court and by several High Courts across the
country.
E) In M. R. Balaji v. State of Mysore AIR 1963 SC 649, The government’s
68% reservation on college admissions was deemed excessive and
unreasonable, and was capped at 50%.
__________________________________________________________________
ISSUE III
Whether reservations under the Constitutional scheme can be prescribed
only based on economic criteria and not on social and educational
backwardness also?
__________________________________________________________________
Reservation can not be prescribed only based on economic criteria without
acknowledging the social and educational backwardness.
As backwardness isn’t defined in the Constitution but, under article 15(4) two things are
determined :
i. Who are socially and educationally backward class ?
ii. What is the limits of reservation ?
And, in both these cases there hasn’t been mentioned anything about economic
backwardness.
Governments may specify who are to be considered as backward class but the
Court can fully consider the classification made by the Government-
Ram Krishna Singh v. State of Mysore, AIR 1960 Mysore 338
Also,
A) In Indra Sawhney v. Union of India well known as the case of the Mandal
Commission. Endorsing N.M Thomas’s interpretation, ruled by the Supreme
Court:
“Backward classes mentioned in Article 16(4) of the Constitution can be
identified only on the basis of caste and not economic conditions. The economic
criterion laid down would cover majority of the population of India, thereby
depriving substantial minority of their right to equality and recognition of the
right to be selected on merits in open competition. Therefore, it will be against the
basic structure of the Constitution.”
“As any power shall be implemented reasonably and fairly, so shall the authority
conferred by Clause (4) of Article 16 be exercised fairly within reasonable bounds
and be much more reasonable than to say that the reservation under Clause (4)
shall not exceed 50% of appointments or posts, with the exception of some
exceptional situations as explained below. The clause created subject to Article
16(4) in the interests of certain sections of society must be evaluated against the
guarantee of equality set out in Article 16, Clause (1), which is a pledge to all
citizens and to society as a whole. It should be noted that Dr. Ambedkar himself
regarded reservation to be “limited to a minority of seats.” No other member of
the Constituent Assembly suggested otherwise. Therefore it is obvious that
perhaps the founding fathers never regarded a majority of seats reservation. The
irresistible conclusion that follows from the above discussion is that the
reservation mentioned in Article 16 Clause (4) should not exceed 50 percent was
never expected.”
B) EWS is nothing but a politically oriented concept and in reality it will just benefit
the Politicians and not the public in general.
PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to:
a) Issue a writ of mandamus or any other appropriate writ quashing the Constitution
(103rd) Amendment Act, 2019 as violative of the basic structure of the
Constitution;
b) Issue a writ of mandamus or any other appropriate writ staying the Constitution
(103rd) Amendment Act, 2019 pending the hearing and disposal of the present
Writ Petition;
c) Any other relief which this Hon’ble Court may be pleased to grant in the interests
of justice ;
All of which is humbly prayed,
Counsel for the Petitioner
