W6 R - Union of India

Team Code: W6
1ST LEX-OMNIA MOOT COURT COMPETITION (2013)
IN THE HON’BLE SUPREME COURT
OF INDIA
Case concerning Constitutional Validity of The Constitution (One Hundredth

Amendment) Act, 2012
SOCIETY FOR EQUALITY (PETITIONER)
V.
UNION OF INDIA (RESPONDENT)
ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA
AT NEW DELHI
MEMORIAL ON BEHALF THE RESPONDENT
UNION OF INDIA
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ...................................................................................................... III
INDEX OF AUTHORITIES ......................................................................................................... V

Case Laws ..........................................................................................................................v
Statutes ..............................................................................................................................ix
Books Referred ..................................................................................................................ix
Articles ...............................................................................................................................x
International Documents ...................................................................................................x
STATEMENT OF JURISDICTION .............................................................................................. XI
STATEMENT OF FACTS ......................................................................................................... XII
QUESTIONS PRESENTED ......................................................................................................XIII
SUMMARY OF ARGUMENTS ................................................................................................. XIV
WRITTEN PLEADINGS .............................................................................................................1

ON MAINTENANCE
[I.] THE WRIT PETITION IN THE PRESENT CASE IS NOT MAINTAINABLE BEFORE THE HON’BLE
SUPREME COURT OF INDIA. .........................................................................................................1
ON MERITS
[II.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 DOES NOT VIOLATE
THE BASIC STRUCTURE OF THE CONSTITUTION. ........................................................................2
[II.A.] RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) DOES NOT
NECESSARILY RESULT IN REVERSE DISCRIMINATION AND HENCE DOES NOT VIOLATE
EQUALITY CLAUSE OF THE CONSTITUTION. ............................................................................................2
1. RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) DOES NOT
NECESSARILY RESULT IN REVERSE DISCRIMINATION. .........................................................................2
2. THE 100TH CONSTITUTIONAL AMENDMENT ACT, 2012 DOES NOT VIOLATE ARTICLE 14
OF THE CONSTITUTION. .................................................................................................................................4
a. Article 14 is subject to reasonable restrictions. ..........................................................4
[II.B.] THE IMPUGNED AMENDMENT DOES NOT AFFECT THE TWIN PRINCIPLES OF
EFFICIENCY, MERIT AND MORALE OF PUBLIC SERVICES AND THE FOUNDATION OF GOOD
GOVERNANCE AND HENCE IS NOT AGAINST THE INTEREST OF THE NATION . .............................6
i
MEMORIAL FOR THE RESPONDENT
[II.C.] THE PARLIAMENT HAS NOT TAMPERED WITH THE REQUIREMENT OF
‘INADEQUACY OF REPRESENTATION AND OVERALL EFFICIENCY’ SINCE 16(4A) IS CARVED

OUT FROM 16(4). .................................................................................................................................................7
[II.D.] IN ARGUENDO, THE STATE HAS NOT EXERCISED UNREGULATED AND
UNTRAMMELLED POWER TO PROVIDE RESERVATION UNDER ARTICLE 16 (4A) AND HENCE

THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 IS NOT AGAINST THE
TENETS OF CONSTITUTIONALISM. ...............................................................................................................9
[III.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 UPHOLDS THE
PRINCIPLE OF SOCIAL JUSTICE ENSHRINED IN THE PREAMBLE OF THE CONSTITUTION. ........... 11
[III.A.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 UPHOLDS THE
PHILOSOPHY OF SOCIAL JUSTICE EMBODIED IN THE PREAMBLE . ............................................... 11
[III.B.] IN ARGUENDO, THE PREAMBLE CANNOT BE THE SOURCE OF ANY SUBSTANTIVE

POWER OR LIMITATION. ............................................................................................................................... 12
[IV.] ENACTMENT OF THE 100TH CONSTITUTIONAL AMENDMENT ACT DOES NOT UNDERMINE
THE DOCTRINE OF JUDICIAL REVIEW. ........................................................................................................... 13
[IV.A.] PARLIAMENT HAS SUFFICIENT LEGISLATIVE POWER UNDER ARTICLE 368 TO

AMEND ARTICLE 16(4A)................................................................................................................................ 13
1. ARTICLE 368 CONTAINS POWER AS WELL AS PROCEDURE TO AMEND. ...............................13
[IV.B.] THE IMPUGNED AMENDMENT IN NO WAY ATTEMPTS TO UNDERMINE THE
DOCTRINE OF JUDICIAL REVIEW. .............................................................................................................. 14
1. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 CLEARLY RESTRICTS

THE AMBIT OF EXERCISE OF POWER OF THE GOVERNMENT............................................................ 15
a. No modern welfare State can work without exercising discretionary powers. ........16
b. In Arguendo, the discretionary power granted is subject to limits and controls......16
[IV.C.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 IS NOT A PIECE
OF COLOURABLE LEGISLATION. ................................................................................................................ 17
1. THE LEGISLATURE IS EMPOWERED TO PASS THE AMENDMENT ACT. ..................................18
[V.] THE PARLIAMENT BY GIVING RETROSPECTIVE EFFECT TO THE IMPUGNED AMENDMENT

DOES NOT UNDERMINES THE FUNDAMENTAL VALUES OF THE CONSTITUTION AND HENCE IS
NOT AGAINST THE SPIRIT OF THE CONSTITUTION. ..................................................................................... 19
PRAYER FOR RELIEF .......................................................................................................... XXI
ii
LIST OF ABBREVIATIONS
& And
A.P. Andhra Pradesh
AC Appeal Cases
AIR All India Reporter
All Allahabad
All ER All England Reporter
App Appeal
Art Article
Bom Bombay
Cas Case
cl. Clause
Const Constitution
DB Divisional Bench
Del Delhi
Doesn’t Does not
Ed Edition
Guj Gujarat
Hon’ble Honourable
HP Himachal Pradesh
Hyd Hyderabad
i.e. Therefore
Id Ibidium
ILR Indian Law Reports
Kar Karnataka
Ker Kerala
KLT Kerala Law Times
LR Law Reports
Mad Madras
MP Madhya Pradesh
NCT National Capital Territory
No. Number
iii
Ori Orissa
Ors Others
P&H Punjab & Haryana
Pat Patna
PC Privy Council
Punj Punjab
Raj Rajasthan
SC Supreme Court
SCALE Supreme Court Almanac
SCC Supreme Court Cases
SCR Supreme Court Reporter
UOI Union of India
U.P. Uttar Pradesh
U.N.T.S. United Nation Treaty Series
U/A Under Article
V Versus
iv
INDEX OF AUTHORITIES
Case Laws
A.K Gopalan v. State of Madras, AIR 1950 SC 27 ............................................................................. 13
Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645 ............................. 12
Air India v. Nargesh Meerza, AIR 1981 SC 1829 ................................................................................. 5
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722 ..................................................................................... 5
Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209......................................................................... 3,6
Ameeroonisa v. Mahboob, AIR 1953 SC 91 ........................................................................................... 5
Anant Mills v. State of Gujarat, AIR 1975 SC 1234 ........................................................................... 18
Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 ................................................................2, 7
Ashok Kumar v. Union of India, AIR 1991 SC 1972 ......................................................................... 18
Asst. Director of Inspection & Investigation v. A.B.Shanthi, (2002) 6 SCC 259 ...................... 18
Attorney-General for Alberta v. Attorney-General for Canada, 1939 AC 11 .............................. 12
Avinder Singh v. State of Punjab, AIR 1979 SC 321 ......................................................................... 18
B. Banerjee v. Anita Pan, AIR 1975 SC 1146 ....................................................................................... 15
B. Prabhakar Rao v. State of Andhra Pradesh, AIR 1986 SC 210 .................................................. 20
Bachan Singh v. State of Punjab, AIR 1982 SC 1325 .......................................................................... 4
Bakhtawar Trust and Ors. Vs. M.D. Narayan and Ors., AIR 2003 SC 2236 ............................... 19
BALCO Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350 ....................... 1
Basheshar Nath v. Commissioner Income Tax, Rajasthan, [1959] Supp 1 SCR 528 ......... 11, 15
Bhairebendra Narayan v. State of Assam, AIR 1956 SC 503........................................................... 17
Bhim Singhji v. Union of India, AIR 1981 SC 234 ............................................................................. 12
Bhupendra Kumar Bhaumik v. Union of India, (2003) 259 ITR 58 (Del).................................... 18
Board of Trustees, Ayurvedic & Unani Tibia College v. State of Delhi, AIR 1962 SC 458 .. 17
Brown v. Stott, [2001] 2 All ER 97 .......................................................................................................... 16
C Rajendran v. Union of India, AIR 1968 SC 507 ................................................................................ 8
Chiranjit Lal v. Union of India , AIR 1951 SC 41 ................................................................................. 4
Consumer Education and Research Center v. Union of India, AIR 1995 SC 922 ...................... 12
D.S. Nakara v. Union of India, AIR 1983 SC 130 ............................................................................... 20
D.T.C. v. Mazdoor Union D.T.C., AIR 1991 SC 101 .................................................................... 2, 12
Dalmia Cement (Bharat) Ltd. v. UOI, (1996) 10 SCC 104 ............................................................... 12
Dantuluri Ram Raju v. State of A.P., (1972) 1 SCC 421 ................................................................... 18
Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors., AIR 1987 SC 579 ........................................... 1
v
Dwarka Prasad v. Union of India, (2003) 6 SCC 535 ............................................................... 7

E.I. Tobacco v. State of A.P., AIR 1962 SC 1733 ................................................................... 18
G.B Paul University of Agriculture and Technology v. State of U.P., AIR 2000 SC 2695 .... 11
Ganga Sugar Corp. v. State of U.P., AIR 1980SC 286............................................................ 18
General Manager Sothern Railways v Rangachari , AIR 1993 SC 477 .................................... 9
Guruvayur Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors., AIR 2004 SC 561
................................................................................................................................................
1 Gwalior Rayon Mills Mfg. (Wing.) Co Ltd. v. Asstt. Commissioner of Sales Tax, AIR 1974
SC 1660 ................................................................................................................................ 16
Harrow LBC v. Qazi, [2004] 1 AC 983 ................................................................................... 16
I.C. Golaknath & Ors. v. State of Punjab & Anr., AIR 1967 SC 1643 ................................... 13
In re Alberta Statutes, 1938 SCR 100 (Canada) ...................................................................... 12
In re Berubari Union, AIR 1960 SC 845 ............................................................................ 12,13
In re Special Courts Bill, AIR 1979 SC 478 .............................................................................. 5
In the matter of Cauvery Water Disputes Tribunal, AIR 1992 SC 522 ................................... 19
Indra Sawhney v. Union of India, AIR 1993 SC 477 ...................................................... 2, 9, 12
Invercargill City Council v. Hamlin, [1996] AC 624 .............................................................. 16
J.R.G. Manufacturing Association v. Union of India, AIR 1970 SC 1589 ............................. 15
Jagan Nath v. Union of India AIR 1962 SC 148 ..................................................................... 18
Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 .............................................................. 2, 6
Jagdish Negi, President Uttarakhand Jan Morcha v. State of Uttar Pradesh, AIR 1997 SC
3505........................................................................................................................................ 8
Jagdish Saran v. Union of India, AIR 1980 SC 820 .................................................................. 3
Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Sabha Union , AIR 1967 SC 691 ..................... 18
Janata Dal v. H. S. Chowdhary, AIR 1993 SC 892 ................................................................... 1
Jaora Sugar Mills Pvt. Ltd. v. State of M.P., AIR 1966 SC 416.............................................. 18
John Switzman v. Freda Elbling and Attorney General of the Province of Quebec, 1957
Canada LR 285 .................................................................................................................... 12
K. Thimmappa v. Chairman Central Board of Directors SBI, AIR 2001 SC 467 ..................... 5
K.C.Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375 ..................................... 17, 18
Kasturi Lal Lakshmi Reddy v. State of J&K, (1980) 4 SCC 1 .............................................. 4, 5
Khanadige Sham Bhat v. Agriculture I.T.O., AIR 1963 SC 591 ............................................. 18
Krishna A.S. v. State of Madras, AIR 1957 SC 297 ................................................................ 18
Kunhikaman v. State of Kerala, AIR 1962 SC 723 ................................................................. 17
vi
Lingappa Pochanna Appelwar v. State of Maharashtra, (1985) 1 SCC 479 ........................... 3, 12

M v. Home Office, [1993] 3 All ER 537 ................................................................................................ 17
M. Nagaraj & Ors v. Union of India & Ors., AIR 2007 SC 71 ..................................... 5, 6, 8, 9, 11
MacFarlane v. Tayside Health Board, [2000] 2 AC 59 ...................................................................... 16
Makhan Singh Tarsikko v. State of Punjab, AIR 1964 SC 381 ....................................................... 18
Malone v. Metropolitan Police Commissioner, [1979] Ch 344 ....................................................... 16
Malwa Bus Service v. State of Punjab, AIR 1983 SC 634 ................................................................ 18
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 .................................................................. 5, 19
Middleton v. Texas Power & L. Co., (1919) 249 U.S. 152 ............................................................... 14
Minerva Mills Ltd. & Ors. v. Union Of India & Ors., AIR 1980 SC 1789 .................................. 14
Morey v. Doud, (1956) 118 U.S. 356 ........................................................................................................ 4
Naga Peoples Movement for Human Rights v. Union of India, AIR 1998 SC 431 ................... 19
Nageswar Rao Gullapalli v. A.P. Transport Corp., AIR 1959 SC 308 .......................................... 18
Nazeeria Motor Service v. State of Andhra Pradesh AIR 1970 SC 1864 ..................................... 18
Neera Gupta v. University of Delhi, AIR 1997 Del 175 ...................................................................... 4
P. Rajendran Vs. State of Madras, AIR 1968 SC 1012 ........................................................................ 6
P.G.I. of Medical Education & Research, Chandigarh v. K.L. Narasimhan, (1997) 6 SCC 283
2
Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty
Association, (1998) 4 SCC 1 ................................................................................................................... 3
Powell v. Kempton Park Racecourse Co Ltd, [1897] 2 QB 242 ...................................................... 13
Pradeep Jain v. Union of India, AIR 1984 SC 1420 .............................................................................. 3
R (Anderson) v. Secretary of State, [2002] 4 All ER 1089 ............................................................... 17
R (Corner House Research) v. Director of the Serious Fraud Office, 2 [2008] UKHL 60 ...... 16
R v. Secretary of State for the Home Dept ex parte Simms, [1999] 2 AC 115 ........................... 17
R.C.Cooper v. Union of India, AIR 1970 SC 564 .................................................................................. 5
R.K.Garg v. Union of India, AIR 1981 SC 2138 ................................................................................... 5
R.S.Joshi v. Ajit Mills, Ahmedabad, AIR 1977 SC 2279 .................................................................. 18
Ram Krishna Dalmia v. Justice Tendulkar, AIR 1958 SC 538 ........................................................ 14
Ramana Dayaram Shetty v. International Airport Authority, (1979) 3 SCC 498 ......................... 5
Ramana v. I.A.A., AIR 1979 SC 1628 ...................................................................................................... 4
Ramchandra Shankar Deodhar v. State of Maharashtra, (1974) 1 SCC 317 .................................. 7
Rantzen v. Mirror Group of Newspapers, [1994] QB 670 ................................................................ 16
S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 .............................................................. 14
vii
S.S. Bola v. B.D. Sardana, AIR 1997 SC 3183..................................................................................... 17

Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109 .................................................. 1
Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471 .................................................. 11, 12
Sajjan Singh v. State of Rajasthan; AIR 1965 SC 845 ....................................................................... 13
Satish Chandra Khandelwal vs. Union of India & Ors., AIR 1983 Del 1 ..................................... 17
Shankara Narayana, B.R. v. State of Mysore, AIR 1966 SC 1571 ................................................. 17
Shillong v. N.T.R.Rymbai, AIR 1976 SC 670 ...................................................................................... 18
Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, AIR 1951 SC 458 ... 13, 14
St. Stephen College v. University of Delhi, AIR 1992 SC 1630 ...................................................2, 4
State of A.P. v. Maradhwaj Singh, AIR 1960 SC 796 ........................................................................ 18
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh, AIR 1952 SC 252 .............................. 18
State of Bihar v. P.P.Sharma, AIR 1991 SC 1260 ............................................................................... 16
State of Bihar v. S.K.Sinha, AIR 1995 SC 885..................................................................................... 18
State of Karnataka v. D.P.Sharma, AIR 1975 SC 594 ........................................................................ 18
State of Karnataka v. Hansa Corp., AIR 1981 SC 463 ....................................................................... 18
State of Kerala & Anr. v. N.M. Thomas, AIR 1976 SC 490............................................................... 9
State of M.P. v. Mahalaxmi Fabric Mills Ltd., 1995 Supp (1) SCC 642 ...................................... 17
State of Maharashtra v. M.B.Badiya, AIR 1988 SC 2062 ................................................................. 18
State of U.P. v. Dr. Dina Nath Shukla, (1997) 9 SCC 662 .................................................................. 2
State of Victoria v. The Commonwealth, 45 ALJ 251 ........................................................................ 11
Subhash Kumar v. State of Bihar, AIR 1991 SC 420 ........................................................................... 1
Subhesh Sharma v. Union of India, AIR 1991 SC 631 ...................................................................... 14
T. Devdasan v. Union of India, AIR 1964 SC 179 ................................................................................ 8
The Municipal Corporation of The City of Ahmedabad and Anr., etc. etc. v. The New Shrock
Spg. and Wvg. Co. Ltd. etc. etc., AIR 1970 SC 1292 .................................................................... 19
The State of Himachal Pradesh & Ors. etc. v.Yash Pal Garg (dead) by LRs & Ors. etc.,
(2003) 9 SCC 92 ........................................................................................................................................ 17
Toronto Corporation v. Toronto Railway Co., (1916) 53 SCR 222................................................ 14
Trilokinath v. State of J & K, AIR 1967 SC 1283 ............................................................................... 11
Truax v. Corrigan, (1921) 257 U.S. 312 ................................................................................................... 4
Ujagar Prints v. Union of India, AIR 1989 SC 516 ............................................................................. 18
Union of India v. Elphinstone. & Wvg. Co. Ltd., (2001) 4 SCC 139 ............................................ 15
Union of India v. Prakash P. Hinduja, AIR 2003 SC 2612 ............................................................... 14
Virendra Singh Hoods v. State of Harayana, (2004) 12 SCC 588 .................................................. 19
viii
Vivian Joseph Ferriera v. Municipal Corpn., (1972) 1 SCC 70 .............................................. 18

Welfare Assn. A.R.P. Maharashtra v. Ranjit P. Gohil, (2003) 9 SCC 358 .............................. 18
Statutes
The Constitution of India (1950) ............................................................................................. 12
The States Reorganisation Act (1956) ..................................................................................... 10
Books Referred
nd
1 Arvind P Datar, Commentary on the Constitution of India, (2 ed. 2010) ............................ 8
st
1 Dr. Subhash C. Kashyap, Constitutional Law of India, (1 ed. 2008).................................... 6
th
1 H.M. Seervai, Constitutional Law of India, (4 ed. rep. 2013) .............................................. 7
th
2 Durga Das Basu, Commentary on Constitution of India, (8 ed. 2008) ................................. 5
rd
3 D.J. De, The Constitution of India, (3 ed. 2008) ................................................................ 17
th
3 H M Seervai, Constitutional Law of India, (4 ed. rep. 2013) ............................................. 10
th
5 Durga Das Basu, Commentary on the Constitution of India, (8 ed. 2008) ......................... 11
Anirudh Krishnan & Harini Sudersan, Law of Reservation & Anti-Discrimination, (1st ed.,
2008) ...................................................................................................................................... 8
B Shiva Rao, Framing of the Indian Constitution, (1967) ....................................................... 11
Charles K. Burdick, The Law of the American Constitution, (1st ed. 1922) ............................. 4
James P. Sterba, Affirmative Action for the Future, (1st ed. 2009) ........................................... 7
Jody Feder, Affirmative Action in Employment: A Legal Overview, in Pamela L. Medina and
Jimmy E. Patel, Affirmative Action and Preferential Treatment: Laws and Development,
(1st ed. 2012) .......................................................................................................................... 3
John Alder, Constitutional and Administrative Law, (7th ed., 2009) ....................................... 16
Justice B. P. Banerjee, Writ Remedies, (4th Ed. Rep. 2008) ...................................................... 1
M.P Jain and S.N Jain, Principles Of Administrative Law, (5th ed., 2008) ............................. 15
M.V. Pylee, Constitutional Amendments in India, (3rd ed. 2010) ............................................. 9
Maurice Joly, Dialogue in Hell Between Machiavelli and Montesquieu, (1st ed. 2003) ......... 16
MP Jain, Indian Constitutional Law, (5th Ed., 2010) .............................................................. 17
Richard F. Tomasson, Faye J. Crosby and Sharon D. Herzberger, Affirmative Action: The
Pros and Cons of Policy and Practice, (1st ed., 2001) ............................................................ 3
Sir Ivor Jennings, Law of the Constitution, (3rd ed., 1963) ....................................................... 4
T.K. Tope, Constitutional Law of India, (3 rd ed. 2010) ............................................................. 7
V.N. Shukla, Constitution of India, (11th ed., 2010) .................................................................. 4
VII Constitutional Assembly Debate ....................................................................................... 10
ix
Articles
C. H. Alexandrowicz-Alexander, Delegation of Legislative Power in India, 3 Am. J. Comp.
L. 72 (1954) ...................................................................................................................... ... 15
E.C.S. Wade, The Courts and the Administrative Process, LQR 63, 164 (1947) ................... 17
G.C.V. Subbarao, Fundamental Rights in India Versus Power To Amend The Constitution, 4
Tex. Int’l L.F. 291 (1968) ................................................................................ .................... 14
Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 Am. Pol. SC Rev. 853
(1962) ..................................................................................................................................... 9
Josheph Raz, The Rule of Law and its Virtue, (1977) 93 LQR 195 .......................................... 4
International Documents
European Convention on Human Rights, 213 UNTS 221 ......................................................... 4
United Nation Covenant on Civil and Political Rights, 6 ILM 368 (1967) ............................... 4
United Nations Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810
at 71 (1948) ............................................................................................................................ 4
x
STATEMENT OF JURISDICTION
THE RESPONDENT HAS BEEN BROUGHT BEFORE THE HON’BLE SUPREME COURT OF INDIA BY A
WRIT PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA FOR DETERMINING
THE CONSTITUTIONAL VALIDITY OF THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT,

2012.
xi
STATEMENT OF FACTS
1. Uttarsthan is a State in Union of India. It has 30% of forest in India. Uttarsthan is
ranked 25th in terms of economic growth at national level. 73.5% of its population was
estimated to be backward by the census of 2010. 40% of the population is below poverty line
according to Central Government assessment which is the highest in the Nation.
2. In 2001, Shivrao Bugadi, established a regional party Uttarsthan Vichar

Manch(UVM) and promised for 70% reservations for the backward class both in educational
institutes and public employment. In 2005, UVM won general elections in Uttarsthan State
and formed the government. Mr. Shivrao, reserved 70% of seats in educational institutions
and in public employment for backward class which was struck down by the Supreme Court
of India as unconstitutional, on the bases of the precedent of Indra Sawhney case. Mr.
Shivrao introduced a Bill titled Uttarsthan Protection (of Schedule Case, Schedule Tribe and
Backward Class) Bill in 2009 to provide the same amount of reservations which was passed
by Uttarsthan Legislative Assembly in January 2010. A request was made to Central Gov. to
put it in IX Sch. of Constitution to get immunity from judicial review.
3. In 2012, State of Uttarsthan issued a G.O. No 231/2012 providing reservations in

promotions to SCs and STs in public employment under the State. This was challenged by a
voluntary organization called Society for Equality through a PIL before the High Court of
Uttarsthan. The Court declared the G.O 231/2012 as unconstitutional considering M. Nagaraj
case. An appeal was filed in Supreme Court by Uttarsthan State which was dismissed by the
Supreme Court as there is no quantifiable data to show backwardness and inadequacy of
representation of that class in public employment.
4. Meanwhile, RJS with the support of UVM establish the central government. UVM
secured 40 M.P seats and being the biggest regional party and a key ally for RJS government,
it insisted RJS to amend the Constitution to validate its G.O. 231/ 2012. 117th Constitutional
Amendment Bill was thus introduced and the same was passed by Rajya sabha, later by Lok
Sabha and President of India also consented.
5. Society for Equality has filed a PIL before Supreme Court challenging 100th
Amendment Act as violation of Basic Structure and being blatant violation of judicial
pronouncements as it has an impact of undermining the concept of Judicial Review.
xii
QUESTIONS PRESENTED
ON MAINTAINABILITY
I. THE WRIT PETITION IN THE PRESENT CASE IS NOT MAINTAINABLE BEFORE THE
HON’BLE SUPREME COURT OF INDIA.
ON MERITS
II. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 DOES NOT VIOLATE
THE BASIC STRUCTURE OF THE CONSTITUTION.
III. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 UPHOLDS THE
PRINCIPLE OF SOCIAL JUSTICE ENSHRINED IN THE PREAMBLE OF THE CONSTITUTION.
IV. ENACTMENT OF THE 100TH CONSTITUTIONAL AMENDMENT ACT DOES NOT UNDERMINE
THE DOCTRINE OF JUDICIAL REVIEW.
V. THE PARLIAMENT BY GIVING RETROSPECTIVE EFFECT TO THE IMPUGNED AMENDMENT

DOES NOT UNDERMINES THE FUNDAMENTAL VALUES OF THE CONSTITUTION AND HENCE
IS NOT AGAINST THE SPIRIT OF THE CONSTITUTION.
xiii
SUMMARY OF ARGUMENTS
I. THE WRIT PETITION IN THE PRESENT CASE IS NOT MAINTAINABLE BEFORE THE
The petitioner in this present case does not have sufficient interest in the matter challenged
through the Public Interest Litigation. Also there is a possibility that the writ petition has
been submitted before the court with some ulterior motive. Thus the petitioner has to show a
satisfactory interest behind the said writ petition and failure to do so should result in rejection
of the writ petition.
II. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 DOES NOT VIOLATE
Affirmative action is inevitable in a society deeply driven by social inequalities created over
hundreds of years by the caste system. The State in the present case, by providing
impediment free reservation has not invited an instance of reverse discrimination because to
treat unequals differently according to their inequality is not only permitted but required. By
the impugned amendment, the State has taken a positive step to provide them impediment-
free reservation so that the ultimate aim achieved in the long run will ensure efficiency only
because implementation of policy decisions will be accurate and easy.
Reservation in promotion as introduced by the 77th amendment is very much constitutional

as per the decision of M. Nagaraj case. The contentions regarding reverse discrimination
resulting in violation of equality; and also affecting the twin principles of efficiency, merit
and morale of public services and the foundation of good governance and hence hampers the
national interest have been rejected by this court in various cases.
In the present case the impugned amendment does not attempt to do away with the
requirement of ‘inadequacy of representation and overall efficiency’ nor provide the state
with unfettered, untrammelled and unconstitutional power to provide reservation under
Article 16 (4A) going against the tenets of constitutionalism.
III. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 UPHOLDS THE
The impugned Amendment Act in this case aims to uphold the directive of social justice as
enshrined in the Preamble and Part III read with Part IV of the Constitution. Therefore, it is a
constitutionally valid effort to bring the backward sections of the society at par with the rest
of the population. In Arguendo, the preamble cannot be the source of any substantive power
or limitation. A court may look into object as recited in the Preamble when a doubt arises as
xiv
to which interpretation ought to be placed on the language used in an enabling provision of

the Constitution. However, an ambiguity cannot be created or imagined in order to bring in
the aid of the Preamble, as that would be frustrating the enactment.
IV. ENACTMENT OF THE 100TH CONSTITUTIONAL AMENDMENT ACT DOES NOT UNDERMINE
THE DOCTRINE OF JUDICIAL REVIEW.
The Parliament has sufficient legislative power under article 368 to amend article 16(4A)
since Article 368 contains power as well as procedure to amend. Further, the impugned
amendment in no way attempts to undermine the doctrine of judicial review as it clearly
restricts the ambit of exercise of power of the government. No modern welfare state can work
without exercising discretionary powers and anyway the discretionary power granted is
subject to limits and controls. Also, the impugned Act is not a piece of colourable legislation
as the Legislature is empowered to pass the Act.
V. THE PARLIAMENT BY GIVING RETROSPECTIVE EFFECT TO THE IMPUGNED AMENDMENT
DOES NOT UNDERMINES THE FUNDAMENTAL VALUES OF THE CONSTITUTION AND HENCE
IS NOT AGAINST THE SPIRIT OF THE CONSTITUTION.
It has been confirmed by a number of judicial pronouncements that the Parliament has a
limited power to give a law retrospective effect. In the present case the retrospective affect
given to the impugned constitutional amendment has acted as an endeavour to remove the
social discrimination through positive action. An amendment given retrospective effect to a
law for a greater public interest cannot be said to be against the spirit of the constitution.
Thus the retrospective effect of the impugned amendment is not against the spirit of the
constitution and good in eyes of law.
xv
WRITTEN PLEADINGS
The following submissions have been made before the Hon’ble Chief Justice of India and the
other companion judges of the Hon’ble Supreme Court. The present case is regarding the
constitutionality of The Constitution (One Hundredth Amendment) Act, 2012. It is humbly
submitted before this Hon’ble Court that [I.] The writ petition is not maintainable; [II.] the
impugned amendment does not violate the basic structure of the constitution; [III.] it upholds
the principle of social justice enshrined in the Preamble of the Constitution; [IV.] it further
does not violate the concept of judicial review and finally, [V.] the retrospective effect to the
impugned amendment does not undermines the fundamental values of the constitution and
hence is not against the spirit of the constitution.
ON MAINTAINABILITY
[I.] THE WRIT PETITION IN THE PRESENT CASE IS NOT MAINTAINABLE BEFORE THE
Supreme Court in Guruvayur Devaswom Managing Committee v. C.K. Rajan,1 has observed
that any member of public having sufficient interest may maintain writ petition by way of
Public Interest Litigation provided there is an injury to a disadvantaged section of the
population for whom access to legal justice system is difficult.2 The petitioner in the present
case has to show their sufficient interest in the present writ petition. Society for Equality is
just a voluntary organisation and does not necessarily have a genuine interest in this matter. It
is a settled principle that a PIL can only be filed by a person who has a genuine interest in the
matter.3 The Supreme Court in Janata Dal v. H. S. Chowdhary,4 has observed that the
process of PIL has been abused by persons who do not have any interest or concern with the
issue except for some oblique consideration. The Court went on saying that such suits should
not be entertained by the courts as it does not falls under the category of public interest
litigation.5
1
Guruvayur Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors., AIR 2004 SC 561; see also
Justice B. P. Banerjee, Writ Remedies, (4th ed. rep. 2008).
2
See also BALCO Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350; Dr. D.C. Wadhwa &
Ors. v. State of Bihar & Ors., AIR 1987 SC 579.
3
Subhash Kumar v. State of Bihar, AIR 1991 SC 420.
4
Janata Dal v. H. S. Chowdhary, AIR 1993 SC 892.
5
See also Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.
1
Thus in the present case if the Society for Equality fails to prove sufficient and genuine
interest of their organisation in the writ petition than the petition is not maintainable before
the court.
ON MERITS
[II.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 DOES NOT VIOLATE
[II.A.] RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) DOES NOT

NECESSARILY RESULT IN REVERSE DISCRIMINATION AND HENCE DOES NOT VIOLATE
EQUALITY CLAUSE OF THE CONSTITUTION.
1. RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) DOES NOT

NECESSARILY RESULT IN REVERSE DISCRIMINATION.
Widening the concept of fairness inherent in the guarantee of equality under Article 14, the
Supreme Court has come to hold that the Court would not only strike down a law on the
ground of absence of reasonableness of the classification made by it, but would conversely,
uphold a law which makes a ‘protective discrimination’.6
The doctrine of positive or affirmative action has been deduced from the ‘equal protection’
clause of Article 14.7 State is empowered for positive discrimination.8 Protective
Discrimination in favour of SCs and STs is a part of constitutional scheme of social and
economic justice to integrate them into the national mainstream so as to establish an
integrated social order with equal dignity of person.9
Article 14 enjoins the State to take into account de facto inequalities which exist in the
society and to take affirmative action by way of giving preference to the socially and
economically disadvantaged persons or inflicting handicaps on those more advantageously
placed, in order to bring about real equality.10 Such affirmative action though apparently
discriminatory in nature is calculated to produce equality on a broader basis by eliminating de
6
D.T.C. v. Mazdoor Union D.T.C., AIR 1991 SC 101.
7
Indra Sawhney v. Union of India, AIR 1993 SC 477.
8
Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201; Jagdish Lal v. State of Haryana, (1997) 6 SCC 538;
State of U.P. v. Dr. Dina Nath Shukla, (1997) 9 SCC 662.
9
P.G.I. of Medical Education & Research, Chandigarh v. K.L. Narasimhan, (1997) 6 SCC 283.
10
St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558.
2
facto inequalities and placing the weaker sections of the community on a footing of
equality11 with more powerful sections so that each member of the community may enjoy
equal opportunity of using to the full his natural endowments.12
The result of an intended affirmative action by the legislature may or may not result in
positive discrimination of the masses.13 Court would uphold the reservation to a reasonable
extent to protect and further the aspirations14 of backward classes.15
As per the facts of the case, the Government decided to move the constitutional amendment
to substitute clause (4A) of article 16, with a view to provide impediment-free reservation in
promotion to the Scheduled Castes and the Scheduled Tribe16 because the prospects of
promotion of the employees belonging to the Scheduled Castes and the Scheduled Tribes are
being adversely affected. 17
The State in the present case, by providing impediment free reservation is not invited an
instance of reverse discrimination because to treat unequals differently according to their
inequality is not only permitted but required.18 Affirmative action is inevitable in a society
deeply driven by social inequalities created over hundreds of years by the caste system.19
While interpreting Article 16(4) and Article 16(4A), the Court should keep in mind that there
are other provisions, namely, Article 14, 16(1) and 335 which are also important so that there
is no reverse discrimination.20 Article 16(4) and Article 16(4A), in the present case, are
construed by the Parliament in such a manner that balance is struck in the matter of
appointments by creating reasonable opportunities for the reserved classes and also for the
other members of the community who do not belong to such classes.21
The State has tried to take into account de facto inequalities which exist in the society. By
enacting the new Article 16(4A), State has brought into existence an instance of positive
11
Supra note 7.
12
Pradeep Jain v. Union of India, AIR 1984 SC 1420; Jagdish Saran v. Union of India, AIR 1980 SC 820.
13
Richard F. Tomasson, Faye J. Crosby and Sharon D. Herzberger, Affirmative Action: The Pros and Cons of
Policy and Practice, (1st ed. 2001).
14
Lingappa Pochanna Appelwar v. State of Maharashtra, (1985) 1 SCC 479.
15
Pradeep Jain v. Union of India, AIR 1984 SC 1420.
16
Statement of Objects and Reasons, The Constitution (117th Amendment) Bill, 2012, Statement of Facts.
17
Id.
18
Supra note 10.
19
Jody Feder, Affirmative Action in Employment: A Legal Overview, in Pamela L. Medina and Jimmy E. Patel,
Affirmative Action and Preferential Treatment: Laws and Development, 57 (1st ed. 2012).
20
Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209.
21
Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association, (1998) 4 SCC
1.
3
discrimination, in order to bring about real equality, by providing reservation to socially and
economically disadvantaged employees whose prospects of promotion were being adversely
affected due to the landmark Supreme Court judgment of M. Nagaraj v. UOI in 2006.22
2. THE 100TH CONSTITUTIONAL AMENDMENT ACT, 2012 DOES NOT VIOLATE
ARTICLE 14 OF THE CONSTITUTION.
Article 14 embodies within it the Dicean concept of the ‘Rule of Law’23, which means inter-
alia an equal subjection of all classes to the ordinary law of the land.24 This also exemplifies
the concept of equal protection of the law.25 Equal protection means the absence of any
arbitrary discrimination by the laws themselves or in their administration.26 None should be
favoured27 and none should be placed under any disadvantage in circumstances that do not
admit of any reasonable justification for a different treatment.28 The principle guiding Article
14 is that there should not be discrimination between one person and another, if as regards the
subject matter of the legislation their position is the same,29 or in other words, its action must
not be arbitrary but must be based on some valid principle which itself must not be irrational
or discriminatory.30 If the State leaves the existing inequalities, untouched by the laws, it
fails in its duty of providing equal protection of the law to all persons.31
a. Article 14 is subject to reasonable restrictions.
Equality before law means that among equals the law should be equal and equally
administered, that like should be treated alike.32 Therefore, equal laws can be applied only to
those in similar circumstances.33 Article 14 does not prohibit reasonable classification. The
Supreme Court has laid down the test to check if a classification is reasonable or not. It has
22
23
Josheph Raz, The Rule of Law and its Virtue, (1977) 93 LQR 195.
24
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
25
Article 7, United Nations Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at
71 (1948); Article 14, United Nation Covenant on Civil and Political Rights, 6 ILM 368 (1967); Article 14,
European Convention on Human Rights, 213 UNTS 221.
26
Charles K. Burdick, The Law of the American Constitution, 605 (1st ed. 1922).
27
Morey v. Doud, (1956) 118 U.S. 356.
28
Truax v. Corrigan, (1921) 257 U.S. 312.
29
Chiranjit Lal v. Union of India , AIR 1951 SC 41; Neera Gupta v. University of Delhi, AIR 1997 Del 175.
30
Ramana v. I.A.A., AIR 1979 SC 1628, Kasturi v. State of Jammu and Kashmir, AIR 1980 SC 1992.
31
St. Stephen College v. University of Delhi, AIR 1992 SC 1630.
32
Sir Ivor Jennings, Law of the Constitution, 49 (3rd ed. 1963).
33
V.N. Shukla, Constitution of India, 46 (11th ed. 2010).
4
been held in a number of cases that for a classification to be reasonable,34 it should firstly, be
founded on an intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group; and secondly, the differentia must have a rational
relation to the object sought to be achieved by the Act.
Also in the case, Maneka Gandhi v. Union of India,35 the Supreme Court held that Article 14
strikes at arbitrariness in State action and ensures fairness and equality of treatment. This
principle was reiterated in Ramana Dayaram Shetty v. International Airport Authority,36
Kasturi Lal Lakshmi Reddy v. State of J&K37 and Ajay Hasia v. Khalid Mujib.38
To test whether the 100th Constitutional Amendment Act, 2012 is in violation of right to
equality, the test of reasonable classification and arbitrariness have to be applied. When
applied, it is evident that the impugned section is not a violation of Article 14. Reservation
has historically been a necessity in the Indian society which has the malady of being caste-
ridden. In such a situation, the Act has rightly classified the Scheduled Castes and Tribes as
backward in order to uplift them.
In M. Nagaraj v. Union of India,39 the Supreme Court required the State to demonstrate the
backwardness of SC/ST beneficiaries every time quotas in promotions were provided for
under Article 16(4A). To appreciate the error of the Supreme Court in Nagaraj, it is
important to understand the difference in the constitutional status of the SCs/STs and Other
Backward Classes (OBCs). After the judgment in Indra Sawhney v. Union of India,40
individuals in the ‘creamy layer’ of OBCs could not be the beneficiaries of the reservation
policy. However, the Supreme Court in Indra Sawhney41 explicitly held that no such
exclusion would be applicable to the SCs/STs. Such difference in treatment is due to the
composition of groups and the nature of marginalisation they suffer from. The basis on which
these two groups, SC/STs and OBCS, were created is normatively different and it would not
make any sense to apply the same test of exclusion to both groups.42
34
R.K.Garg v. Union of India, AIR 1981 SC 2138; In re Special Courts Bill, AIR 1979 SC 478; Air India v.
Nargesh Meerza, AIR 1981 SC 1829; R.C.Cooper v. Union of India, AIR 1970 SC 564; Ameeroonisa v.
Mahboob, AIR 1953 SC 91; K. Thimmappa v. Chairman Central Board of Directors SBI, AIR 2001 SC 467.
35
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
36
Ramana Dayaram Shetty v. International Airport Authority, (1979) 3 SCC 498.
37
Kasturi Lal Lakshmi Reddy v. State of J&K, (1980) 4 SCC 1.
38
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722.
39
M. Nagaraj & Ors v. Union of India & Ors., AIR 2007 SC 71.
40
Supra note 7.
41
Supra note 7.
42
2 Durga Das Basu, Commentary on Constitution of India, 1402 (8th ed. 2008).
5
Therefore, the Supreme Court’s suggestion in M.Nagaraj 43that the SC/ST beneficiaries of
quotas in promotions must be ‘backward’ is without constitutional merit. The constitutional
position is that all SCs/STs are deemed to be backward and there cannot be a further
determination of ‘backwardness’ among them.44 The 117th Constitution Amendment Bill
rightly seeks to do away with the confusion created by the judgment in M. Nagaraj45 by
clarifying that all SCs/STs are deemed to be backward.
[II.B.] THE IMPUGNED AMENDMENT DOES NOT AFFECT THE TWIN PRINCIPLES OF
EFFICIENCY, MERIT AND MORALE OF PUBLIC SERVICES AND THE FOUNDATION OF
GOOD GOVERNANCE AND HENCE IS NOT AGAINST THE INTEREST OF THE NATION .
The programme of reservation may sacrifice merit, but does not in any way sacrifice
competence because the beneficiaries under Article 16(4) have to possess the requisite
qualification and eligibility and have to compete among themselves though not with the
mainstream of candidates.46
The rule of adequate representation is Article 16(4) for backward classes and rule of adequate
representation in promotions for SC/STs under Article 16(4A) do not adversely affect the
efficiency in administration.47
The maintenance of efficiency in administration is implicit in Article 14 and 16 even in
regard to the claim of backward classes and even for backward classes, reservation can be
made only if it does not undermine efficiency in administration.48
In the matter of due representation in service for Backward Classes, maintenance of
efficiency of administration is of paramount importance.49
It is just and reasonable procedure prescribed to achieve the constitutional objectives of
equality of status and opportunity and dignity of person to integrate them in the mainstream
of national life as per the arch of the Constitution50, i.e., the Preamble, Articles 14, 15, 16
and 46 and all other related articles of the Constitution consistent with the efficiency of the
administration envisaged under article 335 of the Constitution.51
43
Supra note 39.
44
See also P. Rajendran v. State of Madras, AIR 1968 SC 1012.
45
Supra note 39.
46
Supra note 42.
47
Ajit Singh II v. State of Punjab, AIR 1999 SC 3471.
48
Supra note 42.
49
Supra note 47.
50
1 Dr. Subhash C. Kashyap, Constitutional Law of India, (1st ed. 2008).
51
Jagdish Lal v. State of Haryana, AIR 1997 SC 2366.
6
It would be necessary to take into account de facto inequality which exists in the society and
to take affirmative action by giving preferences and making reservations in promotions in
order to bring about equality.52
Protective Discrimination envisaged in articles 16(4) and 16(4A) is the amount to establish
the equilibrium between equality in law and equality in results as a fact to the
disadvantaged.53
The principle of reservation provides equality in results.54 Representation of the various

socially and economically backward communities is essential in a public service.55 This is
because if the backward communities are not adequately represented then the voices of their
concerns are unlikely to reach the ears of the State.56 Consequently, the State fails to remedy
their concerns and it ultimately leads to reduced efficiency. By the impugned amendment, the
State has taken a positive step to provide them impediment-free reservation57 so that the
ultimate aim achieved in the long run ensuring efficiency only because implementation of
policy decisions will be accurate and easy.
Moreover, reservation is not permissible where high level of skill, intelligence and excellence
required, like defence services, technical posts, specialities in medicine, atomic energy, space
research etc.58 This is good governance on part of the State and is within the national interest
as the State is providing support to these communities in the time of need as not only that
their chances of promotion now increase, the chances of promotion cannot still be claimed as
a right in the light of Dwarka Prasad v. Union of India. 59 Once, representation is ensured of
these communities via new Article 16(4A), their upliftment becomes a lot more probable.
[II.C.] THE PARLIAMENT HAS NOT TAMPERED WITH THE REQUIREMENT OF
‘INADEQUACY OF REPRESENTATION AND OVERALL EFFICIENCY’ SINCE 16(4A) IS

CARVED OUT FROM 16(4).
Article 16 (4A) falls in the pattern of Article 16 (4) and as long as the parameters of these
Articles are complied with, provision for reservation cannot be faulted in terms of
52
James P. Sterba, Affirmative Action for the Future, (1st ed. 2009).
53
1 H.M. Seervai, Constitutional Law of India, (4 th ed. rep. 2013).
54
Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201.
55
Supra note 50.
56
T.K. Tope, Constitutional Law of India, (3rd ed. 2010).
57
Statement of Facts.
58
Supra note 7.
59
Dwarka Prasad v. Union of India, (2003) 6 SCC 535, relying on Ramchandra Shankar Deodhar v. State of
Maharashtra, (1974) 1 SCC 317.
7
backwardness and inadequacy of representation. The clause however is only an enabling

provision and no right or duty can be read into it.60
Article 16 (4) refers only to the backward class of citizens and not to SCs/STs. On the other
hand, Article 15(4) refers to both the categories. However, SCs/STs are also included in the
expression backward class of citizens.61 The logic beyond such interpretation is that if
SCs/STs and other backward classes are lumped together, the OBC would take away all the
vacancies leaving SCs/STs with nothing.62
Thus by adding ‘deemed to backward’ in Article 16 (4A) we are just clarifying the status of
SCs/STs as backward which is already interpreted by this court. The later part of the new
100th Amendment Act clearly States promotion to SCs/STs. The clarification is to only make
this clear that the term ‘backward’ in Article 16 (4) includes SCs/STs over and above OBC.
The State is aware that Article 16(4) speaks of adequate representation and not proportional
representation.63 It was held by this court that, “reservation could be made upto a reasonable
percentage which would depend upon the circumstance obtaining from time to time.”64
The inclusion of castes in the list of backward classes cannot be mechanical and done without
adequate relevant data, nor can it be done for extraneous reasons. While the State has every
right to recognize a particular community in a particular manner, the same is done for a good
reason and after application of mind to all the relevant factors. The language of the Article 16
(4) makes it clear that the question whether a backward class of citizens is not adequately
represented in the services under the State is a matter within the subjective satisfaction of the
State. This is evident from the fact that the said requirement is preceded by the words ‘in
opinion of the State’. This opinion can be formed by the State on its own i.e. on the basis of
the material it has from commission/committee, person or authority.
The govt. would certainly conduct periodical reviews and no community or backward class
can claim benefits to reservation in perpetuity.65
Although OBC may be socially or educationally handicapped, they do not suffer the same
social handicap inflicted upon SCs/STs. The object of reservation for SCs/STs is to bring
them into the main stream of the society, while object for backwards class reservation is to
remove their social and educational handicap. The very fact that the members of SCs/STs are
60
C Rajendran v. Union of India, AIR 1968 SC 507.
61
Supra note 39.
62
1 Arvind P Datar, Commentary on the Constitution of India, (2nd ed. 2010).
63
Anirudh Krishnan & Harini Sudersan, Law of Reservation & Anti-Discrimination, (1st ed. 2008).
64
T. Devdasan v. Union of India, AIR 1964 SC 179.
65
Jagdish Negi, President Uttarakhand Jan Morcha v. State of Uttar Pradesh, AIR 1997 SC 3505.
8
most backward amongst the backward classes and the impugned legislation having already
proceeded on the basis that they are not adequately represented both in terms of Article 15 (5)
and Article 16 (4) of the constitution.66 Thus, backward classes can form an integrated class
with dalits and tribes for Article 16 (4) or Article 15 (4).67
[II.D.] IN ARGUENDO, THE STATE HAS NOT EXERCISED UNREGULATED AND
UNTRAMMELLED POWER TO PROVIDE RESERVATION UNDER ARTICLE 16 (4A) AND

HENCE THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 IS NOT
AGAINST THE TENETS OF CONSTITUTIONALISM .
Constitutionalism connotes in essence limited government or a limitation on government.68

The State argues that the principle of constitutionalism does not violate by introduction of
Article 16 (4A).
State by the 77th amendment69 introduced Article 16(4A); which empowered it to give
reservation in promotion to schedule caste and schedule tribes. The Statement of objects for
the said amendment States “this ruling of the supreme court will adversely affect the interests
of the scheduled castes and the scheduled tribes. Since the representation of the scheduled
castes and the scheduled tribes in services in the States have not reached the required level, it
is necessary to continue the existing dispensation of providing reservation in promotion in the
case of the scheduled castes and the scheduled tribes.”70 This was held valid in M. Nagaraj
& Others vs. Union of India71. Thus the State very well acts within its constitutional power
when it trends to provide reservation in promotion.
The issue in hand is a concern that the 100th amendment may have provided the State
unregulated and untrammelled power to provide reservation. It has been observed72 and
expressed73 that “that although reservation cannot be so excessive as to destroy the principle
of equality of opportunity under clause (1) of article 16, yet it should be noted that the
constitution itself does not put any bar on the power of the government under article 16(4). If
66
Supra note 50.
67
Supra note 7; see also General Manager Sothern Railways v. Rangachari , AIR 1993 SC 477.
68
Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 Am. Pol. SC Rev. 853 (1962).
69
Came as to nullify the judgment of Indra Sawhney v. Union of India, AIR 1993 SC 477.
70
M.V. Pylee, Constitutional Amendments in India, (3rd ed. 2010).
71
Supra note 39.
72
State of Kerala & Anr. v. N.M. Thomas, AIR 1976 SC 490.
73
Supra note 39.
9
a State has 80% population which is backward then it would be meaningless to say that
reservation should not cross 50%.”74
Although Article 16(4) forms a part of fundamental rights, it does not confer nor does it
impose any constitutional duty on the government to make a reservation for scheduled castes
and the scheduled tribes, either at the initial stage of recruitment or at the stage of promotion.
It only confers a discretionary power on the stage to make a reservation in favour of the
backward class of citizens which in its opinion, is not adequately represented in the services
of the State.75 This discretion of the State is however, subject to the existence of
backwardness and inadequacy of representation.76 In the present case its only addition of the
term ‘backward’ in Article 16(4A) which has to based on objective factors;77 and thus the
State power is regulated.
Furthermore Dr. Ambedhkar in constituent assembly debates contemplated reservation being
“confined to a minority of seats. Unlike Article 330 and Article 332; Article 16(1) actually
does not fix any limit on the government for providing reservation. In this regard the main
principle of Article 14 and Article 16 is to provide equality and equality of opportunity and
Article 16(4) is a way to implement so and thus with regard to Article 16 (4) excessive
reservation cannot be provided for it would be unreasonable as it ignored the rights of
citizens.”78
The State is well aware that any excessive reservation by the State would tend to be
unconstitutional and are open to be challenged in the court of record. On the other hand it is a
significant fact that India is a country of diversity. Although the State’s borders had been
organized on linguistic bases,79 the percentage of backward class, schedule caste, schedule
tribe in a particular State could not be organized. Thus, as in Thomas case80 it was said that,
“...since clause (4) is a part of Article 16 of the constitution it is manifest that the State
cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in
Article 16(1). As to what would be a suitable reservation within permissible limits will
depend upon the facts and circumstances of each case and no hard and fast rule can be laid
74
Supra note 72.
75
Supra note 47.
76
3 H M Seervai, Constitutional Law of India, (4th ed. rep. 2013).
77
Supra note 56.
78
VII Constitutional Assembly Debate, 696-697.
79
The States Reorganisation Act (1956).
80
Supra note 72.
10
down”. The provision is only an enabling provision and the limitations or parameters of a
clause (4) are still retained in clause 4A.
“Every discretionary power is not necessarily discriminatory. Equality is not violated by the
more conferment of discretionary power. It is violated by arbitrary exercise by those on
whom it is conferred.” 81 and the existence of power cannot be denied on the ground that it is
likely to be abused. Further, it is humbly accepted by the respondents the court will interfere
where the percentage of reservation is not reasonable, having regard to the strength of the
different communities, the population of the entire State, the extent of their backwardness and
the like.82
The State humbly put forth that as the language of art 16 (4A) has been fully adopted by the
100th amendment. The decision in M. Nagaraj v. Union of India,83 validating the provision
and stating that “there is no violation of basic structure and are mere enabling provisions nor
do they obliterate the constitutional requirement, namely ceiling limit of 50%” should be
upheld by this court.
[III.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 UPHOLDS THE
The Preamble delineates the contours in accordance with which our Constitutional machinery
has to function.84 It enlists the goals which our Constitution intends to achieve.85 This fact
can be appreciated only by looking into the history of the framing of our Preamble. 86 Not
only was the Constitution framed in light of the Preamble but the Preamble was finally
adjusted so as to bring it in conformity with the Constitution.87
[III.A.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 UPHOLDS
THE PHILOSOPHY OF SOCIAL JUSTICE EMBODIED IN THE PREAMBLE .
Our Constitution is a social document. It is based on Social Philosophy and every social
philosophy has two main features i.e., basic and circumstantial. The former remains constant
and the latter is subject to change according to the needs of the society.
81
5 Durga Das Basu, Commentary on the Constitution of India, (8th ed. 2008).
82
Trilokinath v. State of J & K, AIR 1967 SC 1283.
83
Supra note 39.
84
State of Victoria v. The Commonwealth, 45 ALJ 251.
85
Supra note 42 at 1402.
86
Basheshar Nath v. Commissioner Income Tax, Rajasthan, [1959] Supp 1 SCR 528.
87
B Shiva Rao, Framing of the Indian Constitution, (1967).
11
Social justice is the recognition of greater good to a larger number without deprivation of the
legal rights of anybody.88 According to this concept, the court leans in favour of the weaker
sections of the society.89 The constitutional concern of social justice as an elastic continuous
process is to accord justice to all sections of the society by providing facilities and
opportunities to remove handicaps with which the backward sections are languishing and
secure dignity of their person.90 Social justice aims to remove social imbalance by law,
harmonizing the rival interests of different sections in the social structure, in order to build a
Welfare State.91
The meaning of the expression is also brought out by Article 4692 which aims at protecting
the weaker sections from social injustice.93 The words of the Preamble enjoin the State to
enact positive measures for the protection of weaker sections of the community.94 Social
justice is a fundamental right.95 Therefore, the doctrine of equality as embodied in Articles
14 to 18 has to be understood in light of the social justice assured by Articles 38, 39, 39A, 41,
and 46 of Part IV of the Constitution.96
The impugned Amendment Act in this case aims to uphold the directive of social justice as
enshrined in the Preamble and Part III read with Part IV of the Constitution. Therefore, it is a
constitutionally valid effort to bring the backward sections of the society at par with the rest
of the population.
[III.B.] IN ARGUENDO, THE PREAMBLE CANNOT BE THE SOURCE OF ANY
SUBSTANTIVE POWER OR LIMITATION.
The Preamble has been used as an aid of construction as a general rule throughout the globe
and it has now become a practice well recognised.97 The Preamble contains the object and
88
G.B Paul University of Agriculture and Technology v. State of U.P., AIR 2000 SC 2695.
89
Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471.
90
Consumer Education and Research Center v. Union of India, AIR 1995 SC 922.
91
Dalmia Cement (Bharat) Ltd. v. UOI, (1996) 10 SCC 104; Air India Statutory Corporation v. United
Labour Union, AIR 1997 SC 645.
92
Provisions in this regard are also made in Articles 15(4), 16(4), 19 (1)(d)-(e), 275, 330, 335, The Constitution
of India (1950).
93
Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471.
94
Lingappa Pochanna Appelwar v. State of Maharastra, AIR 1985 SC 389; Indra Sawhney v. Union of
India, AIR 1993 SC 477.
95
Supra note 54.
96
Supra note 7.
97
John Switzman v. Freda Elbling and Attorney General of the Province of Quebec, 1957 Canada LR 285; In re
Alberta Statutes, 1938 SCR 100 (Canada); Attorney-General for Alberta v. Attorney-General for Canada, 1939
AC 11.
12
policy of the legislation and the evils or inconveniences it seeks to remedy.98 But, where the
language of the enacting statute is clear and unambiguous,99 the terms of the Preamble
cannot qualify or cut down that enactment. Hence, a court may look into object as recited in
the Preamble when a doubt arises as to which interpretation ought to be placed on the
language used in an enabling provision of the Constitution.100 However, an ambiguity cannot
be created or imagined in order to bring in the aid of the Preamble, as that would be
frustrating the enactment.101
In Gopalan v. State of Madras,102 it was held that the language of an Article could not be
modified with reference to the Preamble.
Therefore, it is submitted before the Court that while the Preamble of our Constitution is of
extreme importance and while the Preamble shows the general purpose behind several
provisions of the Constitution,103 nevertheless it is never regarded as the source of any
or limitation.105
substantive power104
[IV.] ENACTMENT OF THE 100TH CONSTITUTIONAL AMENDMENT ACT DOES NOT
UNDERMINE THE DOCTRINE OF JUDICIAL REVIEW.
[IV.A.] PARLIAMENT HAS SUFFICIENT LEGISLATIVE POWER UNDER ARTICLE 368 TO

AMEND ARTICLE 16(4A).
1. ARTICLE 368 CONTAINS POWER AS WELL AS PROCEDURE TO AMEND.

Article 368 provides procedure for the amendment of the constitution.106 In I.C. Golak nath
v. State of Punjab,107 Supreme Court held that existence of procedure established, creates
power. The court unanimously held that procedure to amend the constitution is in article
368.108 It was said in I.C. Golaknath v. State of Punjab,109 that power to amend the
98
In re Berubari Union, AIR 1960 SC 845; D.T.C v. D.T.C. Mazdoor, AIR 1991 SC 101.
99
Bhim Singhji v. Union of India, AIR 1981 SC 234.
100 Id.
101
Supra note 98.
102
A.K Gopalan v. State of Madras, AIR 1950 SC 27.
103
Powell v. Kempton Park Racecourse Co Ltd, [1897] 2 QB 242.
104
Supra note 98.
105
Supra note 98.
106
In re The Berubari Union, AIR 1960 SC 845.
107
I.C. Golaknath & Ors. v. State of Punjab & Anr., AIR 1967 SC 1643.
108
Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar; AIR 1951 SC 458; Sajjan Singh v. State of
Rajasthan; AIR 1965 SC 845.
109
Supra note 107.
13
constitution is in article 245, 246 and 248 of the Constitution. But, Wanchoo J., opined that
the Article, not only prescribes the procedure but also gives power of amendment.110
The title of Part XX reads Amendment of the Constitution. The whole part contains only one
Article i.e. Article 368.111 It is a settled rule that Heading is the key of interpretation112 of
the clauses ranged under it;113 it is evident that the part XX should be read in the light of
amendment of the constitution. Since, in the constitution, no other part talks about
amendment, it can be logically inferred that only Part XX is been prepared for amendment
clause in the constitution.
Since constitutional amendment falls within the exclusive power of Parliament, the fact that
the effect of such amendment is to provide reservation in matters of promotion114 does not
impugn the validity of the Act.115
[IV.B.] THE IMPUGNED AMENDMENT IN NO WAY ATTEMPTS TO UNDERMINE THE
DOCTRINE OF JUDICIAL REVIEW.
The 100th Constitutional Amendment Bill is aiming to remove the impediment posed by the
present procedure in providing reservation in job promotions.116 The impugned amendment
in no way attempts to undermine the doctrine of judicial review. The legislators are aware of
the fact that judicial review is a basic and essential feature of the constitution117 and the
drafter of the constitution themselves has given Supreme Court the power of judicial review
vide Article 32, 131 to 137 and Article 143 of the constitution.118 However the power of
judicial review comes in a later stage while checking the validity of the new law in
conformity with the Constitution. 119
The Parliament has sovereign power to enact a law and no outside power or authority can
issue a direction to the Parliament in this regard.120 In the case of Middleton v. Texas Power
110
Supra note 107.
111
Article 368, The Constitution of India (1950).
112
G.C.V. Subbarao, Fundamental Rights in India Versus Power To Amend The Constitution, 4 Tex. Int’l L.F.
291 (1968).
113
Toronto Corporation v. Toronto Railway Co., (1916) 53 SCR 222.
114
Statement of Facts.
115
Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, AIR 1951 SC 458.
116
117
S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386; see Subhesh Sharma v. Union of India, AIR 1991 SC 631.
118
Supra note 56 at 731.
119
Minerva Mills Ltd. & Ors. v. Union Of India & Ors., AIR 1980 SC 1789.
120
Union of India v. Prakash P. Hinduja, AIR 2003 SC 2612.
14
& L. Co.,121 court held that, “It must be presumed that a legislature understands and
appreciates the needs of its own people, that its laws are directed to problems made manifest
by experience.” This was reiterated by the Supreme Court in Ram Krishna Dalmia v. Justice
Tendulkar.122 Laws made wherein are manifested by experience and its discrimination is
based on adequate grounds by use of common knowledge, common reports, history etc.123
Thus while examining the constitutionality of a statute it must be assumed that the elected
representatives assembled in a legislature enact laws which they consider to be reasonable for
the purpose for which they are enacted.
The Statement of object and reasons behind the impugned amendment is a mere reflection of
the conditions prevailing in the present scenario to provide reservation in job promotion.
However the Statement does not suggest a legislative overriding of the judicial
pronouncements in this regard. In J.R.G. Manufacturing Association v. Union of India,124 the
court has observed that Statement of objects and reasons annexed to a bill usually not
considered while checking its constitutionality, rather it just helps the court in ascertaining the
conditions prevailed at the time of enactment and the remedial nature of the bill.125 Thus in
the present case it cannot be Stated that the impugned amendment undermines the concept of
judicial review.
1. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 CLEARLY
RESTRICTS THE AMBIT OF EXERCISE OF POWER OF THE GOVERNMENT.
It is submitted before this Hon’ble court that, in all democratic countries, an important
segment of administrative process is delegated legislation. The great increase in delegated
legislation in modern times is due to several factors.126 Though law-making is the primary
function of legislature, yet in no country does the legislature monopolise the entire legislative
power; it shares the same with executive. No statute has been passed today by a legislature
which does not confer some legislative power on the Administration.
121
Middleton v. Texas Power & L. Co., (1919) 249 U.S. 152.
122
Ram Krishna Dalmia v. Justice Tendulkar, AIR 1958 SC 538.
123
Union of India v. Elphinstone. & Wvg. Co. Ltd., (2001) 4 SCC 139.
124
J.R.G. Manufacturing Association v. Union of India, AIR 1970 SC 1589; B. Banerjee v. Anita Pan, AIR 1975 SC
1146.
125
Id.
126
M.P Jain and S.N Jain, Principles Of Administrative Law, (5th ed. 2008).
15
a. No modern welfare State can work without exercising

discretionary powers.
Delegated legislation is indispensable in the modern context.127 The power of delegation is a
constituent element of the legislative power as a whole.128 It is often convenient and
necessary to delegate subsidiary and ancillary powers to choose delegates to carry out the
policy laid down in the statute.129 The need and importance of subordinate legislation has
been underlined by the Supreme Court of India in the Gwalior Rayon Mills Mfg. (Wing.) Co
Ltd. v. Asstt. Commissioner of Sales Tax.130
It is humbly submitted that, the rule of law is invoked to mean that there is a duty to obey the
lawful government because of the importance of social considerations of a Welfare State.131
The courts do not claim that the rule of law is absolute and recognise that it might be
outweighed by important public interests.132 Most laws therefore, in practice have a widely
accepted meaning conforming to accepted standards of ‘practical reasoning’, community
standards of ‘ordinary notions of what is fit and proper’.133 Further, sometimes Dicean
equality backfires.134 It is thus arguable that a principle of equality is not sufficient to deal
with the wide- ranging powers by the modern government.135 It is humbly submitted that in
view of radical transformation in functions of a progressive State, its administration enjoys a
vast reservoir of powers136 and no modern Welfare State can work without exercising
discretionary powers.137
Therefore, the Act in question here does not in any way suffer from the infirmity of excessive
delegation which would render it against the tenets of the Constitution.
b. In Arguendo, the discretionary power granted is subject to limits
and controls.
Dicey did not rule out all discretionary power but only ‘wide arbitrary or discretionary power
of constraint. He insisted on limits to and controls over the exercise of discretion. Even when
127 Id.
128
Supra note 42.
129
C. H. Alexandrowicz-Alexander, Delegation of Legislative Power in India, 3 Am. J. Comp. L. 72 (1954).
130
Gwalior Rayon Mills Mfg. (Wing.) Co Ltd. v. Asstt. Commissioner of Sales Tax, AIR 1974 SC 1660.
131
Brown v. Stott, [2001] 2 All ER 97.
132
R (Corner House Research) v. Director of the Serious Fraud Office, 2 [2008] UKHL 60.
133
MacFarlane v. Tayside Health Board, [2000] 2 AC 59; Invercargill City Council v. Hamlin, [1996] AC 624.
134
Malone v. Metropolitan Police Commissioner, [1979] Ch 344; Harrow LBC v. Qazi, [2004] 1 AC 983.
135
John Alder, Constitutional and Administrative Law, 131 (7th ed., 2009).
136
Maurice Joly, Dialogue in Hell Between Machiavelli and Montesquieu, (1st ed. 2003).
137
Statement of Facts.
16
discretionary power seemingly appears to be uncontrolled, actually it is not. 138 The ultra-vires
doctrine served to control those who exceed the administrative discretion which an Act has given.
This is further strengthened by guidelines based on the purposes for which the power is given and
standards of reasonableness and fairness. This objective is to a large extent met by the court’s
power of judicial review of government actions.139 Even where a discretion seems unfettered, the
courts will interfere where is has been exercised in a way which thwarts or frustrates the objects
of the Act conferring the power.140 Thus, the rule of law is often used to assert the importance of
the courts- that the courts should be independent of the executive, be able to control those in
power and that fundamental rights should be respected.141
It is submitted that discretionary powers have achieved great significance in the context of
efficient and proper functioning of the modern government. Discretionary power is a
governmental tool in modern times to achieve certain desired objectives.142 In India, to
achieve the objective being mentioned here, the courts have pressed into service the
constitutionality guaranteed fundamental rights and have developed the doctrine that absolute
and unrestricted discretion cannot be conferred on the Administration.143
Therefore, in the present case, there is an adequate check over the proposed action of the Act
and it is not liable to be misused.
[IV.C.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 IS NOT A
PIECE OF COLOURABLE LEGISLATION.
The doctrine of colourable legislation is based on the maxim that what cannot be done directly
cannot also be done indirectly.144 The doctrine becomes applicable when a legislature seeks to do
something in an indirect manner what it cannot do directly. 145 The doctrine is in essence a
question vires or power of the legislature to enact the law in question.146 It does not
138
State of Bihar v. P.P.Sharma, AIR 1991 SC 1260.
139
Rantzen v. Mirror Group of Newspapers, [1994] QB 670.
140
Satish Chandra Khandelwal v. Union of India & Ors., AIR 1983 Del 1.
141
M v. Home Office, [1993] 3 All ER 537; R v. Secretary of State for the Home Dept ex parte Simms, [1999] 2 AC 115; R
(Anderson) v. Secretary of State, [2002] 4 All ER 1089.
142
E.C.S. Wade, The Courts and the Administrative Process, LQR 63, 164 (1947).
143
Supra note 126.
144
S.S. Bola v. B.D. Sardana, AIR 1997 SC 3183.
145
MP Jain, Indian Constitutional Law, 120 (5th Ed., 2010).
146
K.C.Gajapati Narayana Deo v. State of Orissa, AIR 1953 SC 375 ; Kunhikaman v. State of Kerala, AIR 1962 SC 723;
Shankara Narayana, B.R. v. State of Mysore, AIR 1966 SC 1571; State of M.P. v. Mahalaxmi Fabric Mills Ltd., 1995 Supp
(1) SCC 642; Board of Trustees, Ayurvedic and Unani Tibia College v. State of Delhi, AIR 1962 SC 458.
17
involve any question of bona fides or mala fides on the part of the legislature.147 If the
legislature is competent to pass a particular law, the motives which impelled it to act are
irrelevant.148 This doctrine was lucidly explained by Justice B.K. Mukherjee in K.C.
Gajapati Narayan Deo,149 where the court observed that the doctrine resolves itself into the
question of competency of a particular legislature to enact a particular law.150
1. THE LEGISLATURE IS EMPOWERED TO PASS THE AMENDMENT ACT.
It is only when a legislature which has no power to legislate,151 or the legislation is
camouflaged in such a way as to appear to be within its competence152 when it knows it is
not, then alone it can be said that the legislation so enacted is a colourable legislation and that
there is no legislative competence.153 Thus the court has to examine the object of the
legislation154 for the purpose of ascertaining the true character and substance of the
enactment155 and the class of subjects of legislation to which it really belongs156 and not for
finding out the motives which induced the legislature to exercise its powers.157 If the
Legislature is competent to make a particular law,158 its motive in enacting it, or the fact that
it would operate harshly on some persons,159 or that if failed to enact a connected
147
The State of Himachal Pradesh & Ors. etc. v.Yash Pal Garg (dead) by LRs & Ors. etc., (2003) 9 SCC 92.
148 rd
Bhairebendra Narayan v. State of Assam, AIR 1956 SC 503; See also 3 D.J. De, The Constitution of India, 2648 (3
ed. 2008).
149
K.C.Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375.
150
State of Maharashtra v. M.B.Badiya, AIR 1988 SC 2062; State of Karnataka v. D.P.Sharma, AIR 1975 SC 594; Anant
Mills v. State of Gujarat, AIR 1975 SC 1234; Shillong v. N.T.R.Rymbai, AIR 1976 SC 670; Ganga Sugar Corp. v. State of
U.P., AIR 1980 SC 286; State of Karnataka v. Hansa Corp., AIR 1981 SC 463; State of Bihar v. S.K.Sinha, AIR 1995 SC
885.
151
Bhupendra Kumar Bhaumik v. Union of India, (2003) 259 ITR 58 (Del).
152
Khanadige Sham Bhat v. Agriculture I.T.O., AIR 1963 SC 591; E.I. Tobacco v. State of A.P., AIR 1962 SC 1733;
Vivian Joseph Ferriera v. Municipal Corpn., (1972) 1 SCC 70; Dantuluri Ram Raju v. State of A.P., (1972) 1 SCC 421;
Avinder Singh v. State of Punjab, AIR 1979 SC 321.
153
Asst. Director of Inspection & Investigation v. A.B.Shanthi, (2002) 6 SCC 259.
154
Ujagar Prints v. Union of India, AIR 1989 SC 516.
155
Nazeeria Motor Service v. State of Andhra Pradesh AIR 1970 SC 1864; Jagan Nath v. Union of India AIR 1962 SC
148.
156
Malwa Bus Service v. State of Punjab, AIR 1983 SC 634; State of Karnataka v. Hansa Corp., AIR 1981 SC
463.
157
Jaora Sugar Mills Pvt. Ltd. v. State of M.P., AIR 1966 SC 416; Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Sabha
Union , AIR 1967 SC 691 ; Krishna A.S. v. State of Madras, AIR 1957 SC 297; Welfare Assn. A.R.P. Maharashtra v.
Ranjit P. Gohil, (2003) 9 SCC 358.
158
Makhan Singh Tarsikko v. State of Punjab, AIR 1964 SC 381.
159
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh, AIR 1952 SC 252; Nageswar Rao Gullapalli v. A.P. Transport
Corp., AIR 1959 SC 308; State of A.P. v. Maradhwaj Singh, AIR 1960 SC 796.
18
legislation160 is irrelevant. The doctrine essentially relates to legislative competence and not
legislative power.161
To the same effect the Apex Court in R.S.Joshi162 stated that, “In the jurisprudence of
power, colourable exercise of or fraud on legislative power or, more frightfully, fraud on the
constitution, are expressions which merely mean that the legislature is incompetent to enact a
particular law. It is however very important to notice that if the legislature is competent to
pass the particular law, the motives which impel it to pass the law are really irrelevant”.
If the legislature is competent to do an act directly then the mere fact that it is attempting to
do it indirectly cannot make the act invalid.163
In the present case, the Amendment was brought through proper exercise of legislative
competence. The Legislature passed the Amendment Act after following the procedure laid
down in Article 368 and gaining the assent of both the Houses via power derived legitimately
from the Constitution.164 Thus, it is clear that the legislature was competent to make such
amendments.
[V.] THE PARLIAMENT BY GIVING RETROSPECTIVE EFFECT TO THE IMPUGNED AMENDMENT

DOES NOT UNDERMINES THE FUNDAMENTAL VALUES OF THE CONSTITUTION AND HENCE IS
NOT AGAINST THE SPIRIT OF THE CONSTITUTION.
The Parliament has the power to legislate an act with retrospective effect.165 The power to
amend the constitution carries with it the power to make a retrospective amendment.166 The
Supreme Court in ‘State of Himachal Pradesh v. Yash Pal Garg’167 has observed that the
Legislature under the constitution has within the prescribed limits powers to make laws
prospectively as well as retrospectively. The court in the same case went on stating that by
160
Ashok Kumar v. Union of India, AIR 1991 SC 1972.
161
Supra note 144.
162
R.S.Joshi v. Ajit Mills, Ahmedabad, AIR 1977 SC 2279.
163
Naga Peoples Movement for Human Rights v. Union of India, AIR 1998 SC 431.
164
Statement of Facts.
165
Supra note 35.
166
Supra note 107.
167
Supra note 147.
19
exercise of its powers, the Legislature can remove the basis of a decision rendered by a
competent Court thereby rendering that decision ineffective.168
It is needless to State that the impugned amendment is beneficial for the public at a larger scale,
keeping in mind the social structure of the country in mind. It has been settled by the court that
public interest at large is one of the relevant considerations in determining the constitutional
validity of retrospective legislations.169 Furthermore the court in ‘B. Prabhakar Rao v. State of
Andhra Pradesh’170 has confirmed that the court can validate the retrospective effect given to a
positive law to remove discrimination through positive action.171

Therefore in light of the abovementioned judicial pronouncements, the retrospective effect
given to the impugned amendment is justified in the eyes of law and in conformity with the
essence of the constitution.
168
Bakhtawar Trust and Ors. v.. M.D. Narayan and Ors., AIR 2003 SC 2236; The Municipal Corporation of The City of
Ahmedabad and Anr., etc. etc. v. The New Shrock Spg. and Wvg. Co. Ltd. etc. etc., AIR 1970 SC 1292; In the matter of
Cauvery Water Disputes Tribunal, AIR 1992 SC 522.
169
Virendra Singh Hoods v. State of Harayana, (2004) 12 SCC 588.
170
B. Prabhakar Rao v. State of Andhra Pradesh, AIR 1986 SC 210.
171
See also D.S. Nakara v. Union of India, AIR 1983 SC 130.
20
PRAYER FOR RELIEF
IN THE LIGHT OF THE ARGUMENTS ADVANCED, CASES AND AUTHORITIES CITED ABOVE, THE
RESPONDENT HUMBLY REQUESTS THE HON’BLE SUPREME COURT OF INDIA TO UPHOLD THE
CONSTITUTIONAL VALIDITY OF THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT,

2012 AND ADJUDGE AND DECLARE THAT:
I. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 DOES NOT VIOLATE
II. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 UPHOLDS THE
III. ENACTMENT OF THE 100TH CONSTITUTIONAL AMENDMENT ACT DOES NOT
UNDERMINE THE DOCTRINE OF JUDICIAL REVIEW.
IV. THE PARLIAMENT BY GIVING RETROSPECTIVE EFFECT TO THE IMPUGNED AMENDMENT

DOES NOT UNDERMINES THE FUNDAMENTAL VALUES OF THE CONSTITUTION AND
HENCE IS NOT AGAINST THE SPIRIT OF THE CONSTITUTION.
AND PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT IT MAY DEEM FIT IN THE BEST
INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE RESPONDENT SHALL DUTY BOUND FOREVER PRAY.
SD/-
COUNSELS FOR THE RESPONDENT
xxi

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1ST LEX-OMNIA MOOT COURT COMPETITION (2013)

IN THE HON’BLE SUPREME COURT

Case concerning Constitutional Validity of The Constitution (One Hundredth

SOCIETY FOR EQUALITY (PETITIONER)

UNION OF INDIA (RESPONDENT)

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF THE RESPONDENT

LIST OF ABBREVIATIONS ...................................................................................................... III

INDEX OF AUTHORITIES ......................................................................................................... V

STATEMENT OF JURISDICTION .............................................................................................. XI

STATEMENT OF FACTS ......................................................................................................... XII

QUESTIONS PRESENTED ......................................................................................................XIII

SUMMARY OF ARGUMENTS ................................................................................................. XIV

WRITTEN PLEADINGS .............................................................................................................1

[II.A.] RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) DOES NOT

NECESSARILY RESULT IN REVERSE DISCRIMINATION AND HENCE DOES NOT VIOLATE

EQUALITY CLAUSE OF THE CONSTITUTION. ............................................................................................2

1. RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) DOES NOT

NECESSARILY RESULT IN REVERSE DISCRIMINATION. .........................................................................2

a. Article 14 is subject to reasonable restrictions. ..........................................................4

[II.C.] THE PARLIAMENT HAS NOT TAMPERED WITH THE REQUIREMENT OF

‘INADEQUACY OF REPRESENTATION AND OVERALL EFFICIENCY’ SINCE 16(4A) IS CARVED

[II.D.] IN ARGUENDO, THE STATE HAS NOT EXERCISED UNREGULATED AND

UNTRAMMELLED POWER TO PROVIDE RESERVATION UNDER ARTICLE 16 (4A) AND HENCE

TENETS OF CONSTITUTIONALISM. ...............................................................................................................9

PRINCIPLE OF SOCIAL JUSTICE ENSHRINED IN THE PREAMBLE OF THE CONSTITUTION. ........... 11

[III.B.] IN ARGUENDO, THE PREAMBLE CANNOT BE THE SOURCE OF ANY SUBSTANTIVE

[IV.A.] PARLIAMENT HAS SUFFICIENT LEGISLATIVE POWER UNDER ARTICLE 368 TO

1. ARTICLE 368 CONTAINS POWER AS WELL AS PROCEDURE TO AMEND. ...............................13

[IV.B.] THE IMPUGNED AMENDMENT IN NO WAY ATTEMPTS TO UNDERMINE THE

DOCTRINE OF JUDICIAL REVIEW. .............................................................................................................. 14

1. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 CLEARLY RESTRICTS

1. THE LEGISLATURE IS EMPOWERED TO PASS THE AMENDMENT ACT. ..................................18

[V.] THE PARLIAMENT BY GIVING RETROSPECTIVE EFFECT TO THE IMPUGNED AMENDMENT

NOT AGAINST THE SPIRIT OF THE CONSTITUTION. ..................................................................................... 19

PRAYER FOR RELIEF .......................................................................................................... XXI

Dwarka Prasad v. Union of India, (2003) 6 SCC 535 ............................................................... 7

Lingappa Pochanna Appelwar v. State of Maharashtra, (1985) 1 SCC 479 ........................... 3, 12

S.S. Bola v. B.D. Sardana, AIR 1997 SC 3183..................................................................................... 17

Vivian Joseph Ferriera v. Municipal Corpn., (1972) 1 SCC 70 .............................................. 18

THE CONSTITUTIONAL VALIDITY OF THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT,

2. In 2001, Shivrao Bugadi, established a regional party Uttarsthan Vichar

3. In 2012, State of Uttarsthan issued a G.O. No 231/2012 providing reservations in

PRINCIPLE OF SOCIAL JUSTICE ENSHRINED IN THE PREAMBLE OF THE CONSTITUTION.

V. THE PARLIAMENT BY GIVING RETROSPECTIVE EFFECT TO THE IMPUGNED AMENDMENT

IS NOT AGAINST THE SPIRIT OF THE CONSTITUTION.

Reservation in promotion as introduced by the 77th amendment is very much constitutional

PRINCIPLE OF SOCIAL JUSTICE ENSHRINED IN THE PREAMBLE OF THE CONSTITUTION.

to which interpretation ought to be placed on the language used in an enabling provision of

IS NOT AGAINST THE SPIRIT OF THE CONSTITUTION.

[II.A.] RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) DOES NOT

EQUALITY CLAUSE OF THE CONSTITUTION.

1. RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) DOES NOT

The principle of reservation provides equality in results.54 Representation of the various

‘INADEQUACY OF REPRESENTATION AND OVERALL EFFICIENCY’ SINCE 16(4A) IS

backwardness and inadequacy of representation. The clause however is only an enabling

UNTRAMMELLED POWER TO PROVIDE RESERVATION UNDER ARTICLE 16 (4A) AND

AGAINST THE TENETS OF CONSTITUTIONALISM .

Constitutionalism connotes in essence limited government or a limitation on government.68

PRINCIPLE OF SOCIAL JUSTICE ENSHRINED IN THE PREAMBLE OF THE CONSTITUTION.

SUBSTANTIVE POWER OR LIMITATION.