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BHARATI VIDYAPEETH’S

NEW LAW COLLEGE, KOLHAPUR

Accredited by NACC with “A” Grade

(Estd. 1982)

(Affiliated to Shivaji University)

Near Chitra Nagari, Kolhapur

SUBMISSION FOR INTERNAL ASSESSMENT IN THE

PARTIAL FULFILLMENT OF LLB III YEARS

MOOT COURT, TRIAL PREPARATIONS

AND

PARTICIPATION IN TRIAL PROCEEDINGS

NAME OF THE STUDENT : KULDEEP SURENDRA KULKARNI

CLASS : LLB – III

ROLL NO. : 43

YEAR : 2022-23

EXAM SEAT NO. :

MEMORIAL ON BEHALF OF THE PETITIONER

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BHARATI VIDYAPEETH’S

NEW LAW COLLEGE, KOLHAPUR

MOOT COURT NO. 1

ON THE TOPIC OF - “RESERVATION BASED ON CASTE”

SUBMITTED TO - HON.’BLE PRINCIPAL,

NEW LAW COLLEGE,

KOLHAPUR

SUBMITETD BY - KULDEEP SURENDRA KULKARNI

LLB 3RD YEAR

STUDENT ADVOCATE

DATED - 11/03/2023

EXAM SEAT NO. -

MEMORIAL ON BEHALF OF THE PETITIONER

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BEFORE THE HON’BLE

SUPREME COURT OF INDIA

WRIT PETITION NO.: 90 OF 1962

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

M. R. BALAJI & OTHERS ……… PETITIONERS

VERSUS

STATE OF MYSORE ……… RESPONDENT NO.1

MEDICAL SELECTION COMMITTEE ……… RESPONDENT NO.2

ENGINEERING SELECTION COMMITTEE RESPONDENT NO. 3

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF

INDIA CHALLENGING RESERVATION ORDER ISSUED BY STATE OF
MYSORE

MEMORIAL FOR THE PETITIONER

BY COUNSEL OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

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BHARATI VIDYAPEETH’S

NEW LAW COLLEGE, KOLHAPUR

MOOT COURT NO. 1

INDEX

Sr. No. Content Page Signature /

No. remark
1 List of abbreviations 5
2 Index of authorities 6
3 Statement of jurisdiction 7
4 Statement of facts 8-9
5 Issues raised 10
6 Summary of arguments 11
7 Arguments advanced 12-16
8 Prayer 17

MEMORIAL ON BEHALF OF THE PETITIONER

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List of abbreviations

1. & : And
2. AIR : All India Reporter
3. Hon’ble: Honourable
4. HC : High Court
5. Ors: Others
6. SC: Supreme Court
7. SCC: Supreme Court Cases
8. Sec.: Section
9. u/s : Under Section
10.v: Versus

MEMORIAL ON BEHALF OF THE PETITIONER

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Index of authorities
I. Statutes referred

1. Constitution of India 1949

II. Cases referred

1. Ramakrishna Singh Ram Singh v. State of Mysore (A.I.R. 1960

Mysore 338),
2. S. A. Partha v. The State of Mysore (A.I.R. 1961 Mysore 220)
3. The State Of Madras Vs. Srimathi Champakam Dorairajan
SC 1951 AIR 226, 1951

III. Books referred

1. University Education Commission Report

MEMORIAL ON BEHALF OF THE PETITIONER

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Statement of jurisdiction

THE COUNSEL FOR THE PETITIONERS, M. R. BALAJI

AND OTHERS, HEREBY HUMBLY SUBMIT TO THIS
HON’BLE COURT’S JURISDICTION UNDER ARTICLE 32
OF THE CONSTITUTION OF UNION OF INDIA 1949
WHICH READS AS FOLLOWS:

32. Remedies for enforcement of rights conferred by this

Part

(1) The right to move the Supreme Court by appropriate

proceedings for the enforcement of the rights conferred by this
Part is guaranteed

(2) The Supreme Court shall have power to issue directions or

orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights
conferred by this Part

MEMORIAL ON BEHALF OF THE PETITIONER

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Statement of facts:

1. On 26 July 1958, the State Government of Mysore passed

an order which placed all the communities, except the
Brahmin community, in the category of educationally and
socially backward classes, Scheduled Castes and Scheduled
Tribes. The said order reserved 75% of the total seats in
educational institutions for these communities. Thereafter,
various other orders with similar schemes but varying
percentages of reservation were passed in the following
years.

2. All these orders were, however, challenged before Hon.’ble

Mysore High Court under Article 226 and set aside by the
Hon.’ble H.C. in the following cases :

• Ramakrishna Singh Ram Singh v. State of Mysore

(A.I.R. 1960 Mysore 338)
• S. A. Partha v. The State of Mysore (A.I.R. 1961
Mysore 220)
•

3. The Mysore Government once again issued an order in

1962, which supplanted all the previous orders relating to
the reservation of seats that were issued by the Mysore
Government under Article 15(4). By the said order, the
State of Mysore classified the backward classes into two

MEMORIAL ON BEHALF OF THE PETITIONER

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categories, namely, backward classes and more backward

classes. Following reservations are made as per this order :

Backward classes : 28%

More backward classes : 22%
Schedules Classes : 15%
Scheduled Tribes : 3%
Total reservation : 68%

Thus. Merely 32% quota is left for the merit pool.

4. Out of these 23 petitioners, 6 are the applicants for

admission in Medical Colleges affiliated either to the
Mysore University or to the Karnataka University for the
pre-professional class in Medicine, while the remaining 17
have applied in the University of Mysore for the five-year
integrated course of B. E. Their admission is denied.

5. According to the petitioners, but for the reservation made by

the impugned order, they would have been entitled to the
admission in the respective colleges for which they had
applied. As a result of the reservation made by the said
order, students who have secured less percentage of marks
have been admitted, but not the petitioners.

6. Being aggrieved by the impugned order, the petitioners are

before the Hon.’ble Supreme Court.

MEMORIAL ON BEHALF OF THE PETITIONER

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Issues raised:

1. Whether a reservation order can be passed without appointment

of commission under Article 340?

2. Whether the reservation under Article 15 (4) can be given by

executive order instead of a Legislation?

3. Whether caste can be the only basis to determine social and

educational backwardness of a “class” of citizens under Article
15 (4) ?

4. Whether the sub classification of backward class into backward

class and more backward class is authorized by Article 15 (4) ?

5. Whether the impugned order is a fraud on Article 15 (4) as the

reservation percentage of 68% is unreasonably high?

MEMORIAL ON BEHALF OF THE PETITIONER

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Summary of arguments:
1. Appointment of commission under Article 340 is not done.

2. Order must have been passed by the Legislature, not merely an

executive order.

3. “Caste” cannot be the sole basis to determine backward “class”

as contemplated under Article 15 (4).

4. Sub classification into backward class and more backward class

is not permissible under Article 15 (4).

5. Unreasonableness - Denial of rights of the rest of the society.

MEMORIAL ON BEHALF OF THE PETITIONER

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Arguments advanced:
1. Appointment of commission under Article 340 is not done :

1.1Article 340 of the Constitution requires that for allowing

reservation to backward classes, a commission shall be
appointed by the President. The commission shall
investigate the status of classes of citizens and then submit
the report to the President. The President shall cause the
report to be laid before each house of the Parliament. This
procedure is not followed while passing the impugned
order.

1.2It is a settled legal principle that when something is

mandated to be done in a particular way, it must be done in
that manner only or should not be done at all. Since the
procedure of appointment of commission, its report and
approval by the Parliament is not followed for the issue of
the impugned order, the same is void ab initio.

2. Order must be passed by the Legislature :

2.1Since the power under Article 15(4) vests with the State, the
power can be exercised only through a Law passed by the
Legislature and not merely by passing an executive order.

2.2The impugned order has not been passed by the Legislative

assembly, it is merely an executive order. This order has

MEMORIAL ON BEHALF OF THE PETITIONER

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impact over entire population of the state of Mysore. It lacks

authority and therefore, is liable to be set aside on this
ground alone.

3. “Caste” cannot be the sole basis to determine backward

“class” as contemplated under Article 15 (4):

3.1Article 15(4) allows provision for backward “class”. Caste

can be an indicator to define backward class, but it cannot
be the sole basis for making reservation.

3.2In this connection, it is, however, necessary to bear in mind

that the special provision is contemplated for classes of
citizens and not for individual citizens as such, and so,
though the caste of the group of citizens may be relevant, its
importance should not be exaggerated. If the classification
of backward classes of citizens was based solely on the
caste of the citizen, it may not always be logical and may
perhaps contain the vice of perpetuating the caste system
itself.

3.3What about other groups like Muslims, Jains, Christians

etc? - If the caste of the group of citizens was made the sole
basis for determining the social backwardness of the said
group, that test would inevitably break down in relation to
many sections of Indian society which do not recognise
castes. How is one going to decide whether Muslims,
Christians or jains, or even Lingayats are socially backward

MEMORIAL ON BEHALF OF THE PETITIONER

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or not ? The test of castes would be inapplicable to those

groups, but that would hardly justify the exclusion of these
groups in toto from the operation of Art. 15(4). It possible
that in some States some Muslims or Christians or jains
forming groups may be socially backward. That is why we
submit that though castes in relation to Hindus may be a
relevant factor to consider in determining the social
backwardness of groups or classes of citizens, it cannot be
made the sole or the dominant test in that behalf.

3.4It is true that social backwardness which results from

poverty is likely to be aggravated by considerations of caste
to which the poor citizens may belong, but that only shows
the relevance of both caste and poverty in determining the
backwardness of citizens.

4. Sub classification into backward class and more backward

class is not permissible under Article 15 (4):

4.1The sub classification of backward class into backward

class and more backward class is not authorized by Article
15 (4). It creates a divide in the society as more advanced
class and rest of the society.

4.2the sub- classification made by the order- between

Backward Classes and More Backward Classes does not
appear to be justified under Art. 15(4). Art. 15(4) authorises
special provision being made for the really backward

MEMORIAL ON BEHALF OF THE PETITIONER

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classes. In introducing two categories of Backward Classes,

what the impugned order, in substance, purports to do is to
devise measures for the benefit- of all the classes of citizens
who are less advanced, compared to the most advanced
classes in the State, and that is not the scope of Art. 15(4).

4.3The result of the method adopted by the impugned order is

that nearly 90% of the population of the State is treated as
backward, and that illustrates how the order in fact divides
the population of the State into most advanced and the rest,
and puts the latter into two categories of Backward and
More Backward. The classification of the two categories,
therefore, is not warranted by Art. 15(4).

5. Unreasonableness - Denial of rights of the rest of the

society:

5.1While provision for advancement of backward class must be

made, it cannot be so made as to substantially deny the
rights of the rest of the society.

5.2The interests of weaker sections of society which are, a first

charge on the states and the Centre have to be adjusted with
the interests of the community as a whole. The adjustment
of these competing claims is undoubtedly a difficult matter,
but if under the guise of making a special provision, a State
reserves practically all the seats available in all the colleges

MEMORIAL ON BEHALF OF THE PETITIONER

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(68%), that clearly would be subverting the object of Art. 15

(4).

5.3A provision which is in the nature of an exception

completely excludes the rest of the society, that clearly is
outside the scope of Art. 15(4). It would be extremely
unreasonable to assume that in enacting Art. 15(4) the
Parliament intended to provide that where the advancement
of the Backward Classes or the Scheduled Castes , and
Tribes was concerned, the fundamental rights of the citizens
constituting the rest of the society were to be completely
and absolutely ignored, In this connection, it is necessary to
remember that the reservation made by the impugned order
is in regard to admission in the seats of higher education in
the State.

5.4It would be against the national interest to exclude from the

portals of our Universities qualified and competent students
on the ground that all the seats in the Universities are
reserved for weaker elements in society. As has been
observed by the University Education Commission, "he
indeed must be blind who does not see that mighty as are
the political changes, far deeper are the fundamental
questions which will be decided by what happens in the
universities" (p. 32).

5.5The classification made by this order is irrational and the

reservation of 68% made by it is a fraud on Article 15 (4).

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Prayer:

Wherefore, in light of the facts of the case, issues raised, arguments

advanced and authorities cited, this Hon’ble Court may, graciously
and emphatically be pleased to:

1. Issue writ of mandamus and/or any suitable writ or direction

should be issued against respondent No. 1, the State of Mysore
and respondent No. 2 and 3 directing that impugned order is
void and should not be enforced against the petitioners.

2. pass any other order that it may deem fit in the ends of justice,
equity, and good conscience. All of which is respectfully
submitted.

Counsel for the petitioner

(Student AOR : Kuldeep Surendra Kulkarni)

MEMORIAL ON BEHALF OF THE PETITIONER

THE CONSTITUTION OF INDIA

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and
children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special
provision for the advancement of any socially and educationally backward classes of citizens or for
the Scheduled Castes and the Scheduled Tribes.
THE CONSTITUTION OF INDIA

29. Protection of interests of minorities.—

(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct
language, script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution maintained by the State or
receiving aid out of State funds on grounds only of religion, race, caste, language or any of them
THE CONSTITUTION OF INDIA

340. Appointment of a Commission to investigate the conditions of backward classes.—

(1) The President may by order appoint a Commission consisting of such persons as he thinks fit
to investigate the conditions of socially and educationally backward classes within the
territory of India and the difficulties under which they labour and to make recommendations
as to the steps that should be taken by the Union or any State to remove such difficulties
and to improve their condition and as to the grants that should be made for the purpose by
the Union or any State and the conditions subject to which such grants should be made, and
the order appointing such Commission shall define the procedure to be followed by the
Commission.

(2) A Commission so appointed shall investigate the matters referred to them and present to
the President a report setting out the facts as found by them and making such
recommendations as they think proper.

(3) The President shall cause a copy of the report so presented together with a memorandum
explaining the action taken thereon to be laid before each House of Parliament.