V.R.

KRISHNAN EZHUTHACHAN LAW COLLEGE

,NENMARA 9TH SEMESTER CLASS MOOT COURT, 2023

IN THE HON’BLE COURT OF V.R.KRISHNAN

EZHUTHACHAN LAW COLLEGE , ELEVANCHERRY

WRIT PETTITION(C): 73/2019

MR AYUSH PANDEY....................................PETTITIONER
V.
UNION OF INDIA…...................RESPONDENT

BY
DIVYA V
AMAL T NIRMAL

MEMMORIAL ON BEHALF OF THE PETITIONER

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 TABLE OF CONTENTS

CONTENTS PAGE NO.

LIST OF ABBREVATIONS 3
INDEX OF AUTHORITIES 4-5
STATEMENT OF JURISDICTION 6
STATEMENT OF FACTS 7
ISSUES RAISED 8
SUMMARY OF ARGUMENTS 9
ARGUMENTS ADVANCED 10-19
PRAYER 20

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 TABLE OF ABBREVIATION
% Percentage

AIR All India Report

SC Supreme Court

Art Article

Hon’ble Honourable

OBC Other backward classes

STs Scheduled tribes

SCs Scheduled castes

Vs. Versus

SCC Supreme Court cases

UOI Union of India

Sq. Feet Square feet

EWS Economic weaker sections

& And

Anr. Another

ed. Edition

Vol Volume

Ors. Others

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 INDEX OF AUTHORITIES

CASES:
1. HDFC bank Ltd v UOI SPECIAL LEAVE PETITION
(CIVIL) NO.14343 OF 2022
2. Naresh Shridhar Mirajkar and others vs. State of Maharashtra and
Anr., (1966) 3 SCR 744
3. State of Kerala v N.M. Thomas, (1976) 2 SCC 310; 1976 (1)
SCR 906.
4. Indra Sawhney v Union of India, AIR 1993 SC 477.
5. S.P.Gupta v President of India& Ors., 1982 SC 149
6.M.R.Balaji And Ors v State of Mysore, 1963 AIR
649.
7. M.Nagaraj v Union of India.

BOOKS REFERRED:
1) V.G. Ramachandran, Law of Writs (6th edition, 2006)
2) Sandra Fredman, Substantive Equality Revisited, Vol.14, OXFORD
ICON, 732-733, (2016)
3) Sandra Fredman, Discrimination Law (2nd edition, 2011).
ARTICLES:
1. Parliament of India, Constituent Assembly Debates, Vol. 7, 30 November
1948.
2) Constituent Assembly Debates, Constituent Assembly Debates

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STATUTES:

The Constitution of India, 1950

WEBSITES:
1. https://blog.ipleaders.in/constitutional-validity-103rd-constitutional-
amendment-act-2019/amp/ (last visited on Jan 16).
2. https://www.barandbench.com/news/litigation/ews-reservation-challenge-
referred-to-constitution-bench-supreme-court
3. 3.https://libertatem.in/articles/what-is-the-challenge-to-
constitution-103rdamendm ent act/2019.
4. http://parliamentofindia.nic.in/ls/debates/vol7p

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 STATEMENT OF JURISDICTION

The petitioner had filed a writ petition before the hon'ble

Supreme Court under Article 32 of the Indian
Constitution'.

1. Article 32 dealt with the "Right to Constitutional Remedies” or affirms the right to move to
Supreme Court by appropriate proceedings for the enforcement of rights conferred under Part Ill of
the Indian Constitution. It states that the Supreme Court "shall have power to issue directions or
orders or writs, including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition

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and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by
this Part

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 STATEMENT OF FACTS

• On 2019 January, the Parliament of India passed a Bill to provide extra 10%
reservation to economically backward classes by inserting clause 6 to the
Article 15 and 16 of the Constitution, to provide government jobs and seats in
educational institutions for economically weaker sections.

• The Parliament enacted Constitution (One Hundred and Third Amendment)

Act, 2019 to make reservations based on the economic criterion alone.
Through this Constitution Act, 2019, a new clause (6) was inserted to
Article 15 and 16 of the Constitution.

• Mr. Ayush Pandey filed a case under Article 32 before the Hon'ble Supreme
Court of India stating that the Amendment Act of 2019 provides inequality
and violates the fundamental rights.

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 ISSUES RAISED

ISSUE 1
Whether the writ petition filed under Article 32 of the constitution is
maintainable or not?

ISSUE II
Whether the extra 10% reservations for
economically weaker sections in educational
institutions and public employment is
unconstitutional or not?

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 SUMMARY OF ARGUMENTS
I. WHETHER THE WRIT PETITION FILED UNDER ARTICLE 32 OF
THE INDIAN CONSTITUTION IS MAINTAINABLE OR NOT?
It is humbly submitted before the hon'ble court that the writ petition filed
under Article 32 is maintainable. Here there is a clear cut violation of
fundamental rights those are mentioned in the constitution. Fundamental
rights guaranteed under Article 32 is not qualified in any other alternate
remedy. there is a constitutional obligation on the part of this court to
protect the fundamental rights.

II. WHETHER THE EXTRA 10% RESERVATIONS FOR

ECONOMICALLY WEAKER SECTIONS IN EDUCATIONAL
INSTITUTIONS AND PUBLIC EMPLOYMENT IS
UNCONSTITUTIONAL?
It is humbly submitted before the hon'ble court that the extra 10%
reservations provided for economically weaker sections in educational
institutions and public employment is unconstitutional.It clearly breaches
the ceiling of 50% laid down in the Mandal Commission and Indira
Sawnhey case. The amendment may lead to clear arbitrariness in the
reservation principles already prevailing. It leads to the conflict between
communities as the system of reservation based on caste is prevailing in
the country. The increase in reservation gives only 40.5% of seats allotted
based on the merit of the candidate creating inequality in a nation where
equality is a fundamental rights

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 ARGUMENTS ADVANCED
I. WHETHER THE WRIT PETITION FILLED UNDER ARTICLE
32 OF THE INDIAN CONSTITUTION IS MAINTAINABLE OR
NOT?

It is humbly submitted before this court that whenever a question of law of

general public importance arises, then the jurisdiction can be invoked. Under
Article 32 of the Indian constitution, every citizen of India has been given the
right to seek constitutional remedy from the Supreme Court if they have been
deprived of their fundamental rights. The jurisdiction conferred under Article
32 on the SC are corrective one and not a restrictive one. Article 32 provides
right to any member of the public to approach the supreme court in case of
violation of fundamental Rights.1

Furthermore, excessive reservation is an issue of public importance and

many people who are affected by such reservation do not have the resources
to approach the court individually. The right to approach this Hon'ble Court
in case of violation of fundamental rights is itself a fundamental right
enshrined in Art. 32.2 In Prem Chand Garg, it was held that this right is
absolute and may not be impaired on any ground.3

1.Banbhu Mukthi Morcha V Union Of India & Ors.,AIR 1984 SC 802; See S.P Gupta V President Of India & Ors.,
2.Constitution of India, Article 32 (1950).
3. "Prem Chand Garg v Excise Commissioner, AIR 1963 SC 996.

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Further, unlike in Art. 226, the remedy provided by Art. 32 is a
fundamental right and not merely a discretionary power of the Court 4.
The Indian Constitution in Part III (Article 12 to 35) contains the
Fundamental Rights. It is the charter of freedom of the citizens of India.
It is the Magna Carta. it contains the essential freedoms of the people of
India. Article 32 is a constitutional safeguard for these rights. Dr B.R
Ambedkar had referred to it as “the very soul of the Constitution and
the very heart of it” during the Constituent Assembly debates.

The Constitutional obligation of this hon'ble court, as the guarantor of

fundamental rights, has been interpreted broadly.5 and as one that
exists independent of any other remedy that may be available. This is
particularly true in cases of grave public importance. Consequently, it is
submitted that a refusal to entertain the instant petition would be
inconsistent with the aforesaid obligation.

HDFC bank Ltd v UOI6

present case, the Hon’ble Supreme Court observed that the Writ under
Article 32 would be maintainable as after the Apex Court, no litigant
has any opportunity of approaching any higher forum to question its
decision. The only remedy available to the petitioners would be to
approach this Court by way of writ petition under Article 32 of the
Constitution of India for protection of the fundamental rights (Right to
Privacy in this case) of citizens of India.

4. Daryao V The State of U.P, AIR 1961 SC 1457.

5. M.C. Mehta v Union of India, AIR 1987 SC 1086.
6.SPECIAL LEAVE PETITION (CIVIL) NO.14343 OF
2022

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Naresh Shridhar Mirajkar and others vs. State of Maharashtra and
Anr., (1966) 3 SCR 744, 7
wherein it was observed that a judicial decision cannot be corrected
by this Court in exercise of its jurisdiction under Article 32 of the
Constitution of India. He also relied on the judgment of a Seven Judge
Bench of this Court in the case

7.(1966) 3 SCR 744,

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2.Whether the extra 10% reservations for economically weaker sections
in public employment and educational institutions is
unconstitutional?
HISTORY OF RESERVATION
The history of reservation started in the pre independance era.Quota
systems favouring certain castes and other communities existed before
independence in several areas of British India. Demands for various
forms of positive discrimination had been made, for example, in 1882
and 1891. Shahu, the Maharaja of the princely state of Kolhapur,
introduced reservation in favor of non-Brahmin and backward classes,
much of which came into force in 1902. He provided free education to
everyone and opened several hostels to make it easier for them to receive
it. He also tried to ensure that people thus educated were suitably
employed, and he appealed both for a class-free India and the abolition
of untouchability. His 1902 measures created 50 percent reservation for
backward communities.
In 1954, the Ministry of Education suggested that 20 percent of places
should be reserved for the SCS and STS in educational institutions with
a provision to relax minimum qualifying marks for admission by 5
percent wherever required. In 1982, it was specified that 15 percent and
7.5 percent of vacancies in public sector and government-aided
educational institutes should be reserved for the SC and ST candidates,
respectively. A significant change began in 1979 when the Mandal
Commission or the Socially and Educationally Backward Classes
Commission (SEBC) was established to assess the situation of the
socially and educationally backward classes. The commission did not
have exact population figures for the

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OBCs and so used data from the 1931 census, thus estimating the
group's population at 52 per cent.

In 1980 the commission's report recommended that a reserved quota for OBCs of
27 per cent should apply in respect of services and public sector bodies operated
by the Union Government. It called for a similar change to admissions to
institutes of higher education, except where states already had more generous
requirements. It was not until the 1990s that the recommendations were
implemented in Union Government jobs.

THE 103RD CONSTITUTIONAL AMENDMENT ACT,2019

The Constitution (103rd Amendment) Act, 2019, has amended two fundamental
rights that is Article 15 and Article 16 of the Constitution of India. By adding two
new clauses to Article 15 and 16 of Indian constitution the state is now
empowered to provide a maximum of 10 per cent reservation for "economically
weaker sections" of citizens. Article 15 of Indian Constitution, prohibits
discrimination on the grounds of race, religion, caste, sex or place of birth.
Article 16 of Indian Constitution prohibits discrimination in employment in
government office.
Amendment essentially inserts Articles 15(6) and 16(6) in the Constitution which
permit the following:
1) The State to provide for special provisions/reservations for any economically
weaker sections of citizens including private educational institutions by the
state other than minority educational institutions mentioned under Article
30(1).
2) These economically weaker sections to be of those other than the
other backward classes or SCS/STS[ who do not fall in 15(5) and 15(6)]
3) These measures to be to a maximum of 10% of seats/posts in addition to
the existing reservations.
4) The reservations in Article 15(6) to be for unaided institutions as
well, notwithstanding the provisions of Articles 19(1)(g) & 29(2).

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5) Article 16(6) is added to provide reservations to people from economically
weaker sections in government posts. An explanation states that "economic
weakness"shall be decided on the basis of "family income and other indicators
of economic disadvantage.

Above mentioned aspect which is violated the art 15 and 16 of the

fundamental rights. Which includes public employment and education.

The proposed 124th Constitutional Amendment Act defines Economically

Weaker Sections as one having:
• Annual household income below Rs. 8 lakh; land below 5 acres;
• Agriculture Residential house below 1000 sq. feet;
• Residential plot below 100 yards in notified municipality; and
• Residential plot below 200 yards in non-notified municipality area.

"The income limit of Rs. Eight lakhs and the asset limits prescribed for
determining economic backwardness are the same as the limits fixed for
determining the 'creamy layer for OBC. This essentially means that the 103rd
Amendment practically removes the difference between the OBC-NCL and the
"EWS other than SC, ST and OBC-NCL". This would lead to treating unequals
equally.

THE CREAMY LAYER PRINCIPLE

The term creamy layer was first coined in 1974 in the State of Kerala vs N. M.
Thomas 8case when a judge said that the "benefits of the reservation shall be
snatched away by the top creamy layer of the backward class, thus leaving the
weakest among the weak and leaving the fortunate layers to consume the whole
cake". Creamy layer is a term used in Indian politics to refer to some members of
a backward class who are highly advanced socially as well as economically and
educationally.

8.(1976) 2 SCC 310:1976 (1) SCR 906

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When the creamy layer principle was introduced it had a income criteria which
was the gross annual income of parents from all sources more than 100,000
rupees, later on it was revised to 2.5 lakh per annum,6 lakh per annum and
currently 8 lakh per annum. The term was introduced by the Sattanathan
Commission in 1971, which directed that the "creamy layer" should be excluded
from the reservations (quotas) of civil posts. It was also identified later by
Justice Ram Nandan Committee in 1993.

Ashok Kumar Thakur v State of Bihar9

Upheld the 93rd Amendment; found creamy layer principle applies to
OBC's and not STS and SCs. The government must set reservation
thresholds to ensure quality and merit do not suffer, and set a
deadline to reach free and compulsory education for every child.

The 'creamy layer' categorization was meant only for the OBCs until 30
September 2018 but now are also applied to the Scheduled Castes and
Scheduled Tribes. The income limit of Rs. Eight lakhs and the asset
limits prescribed for determining economic backwardness are the same
as the limits fixed for determining the creamy layer for OBC. This
essentially means that the 103rd Amendment practically removes the
difference between the OBC-NCL and the "EWS other than SC, ST and
OBC-NCL".
This would lead to treating unequals equally.

9.1995 5 SCC 403

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THE APPLICATION OF THE ACT IN EMPLOYEMENT

Article 16(6) was added by the 103 amendment which grants reservation in
government posts. But the same is violative of the Indra Sawnhey dictum certain
case laws which dealt regarding the reservation in employement sector
include...

In General Manager Southern Railway v. Rangachari and State of Punjab

v Hiralal 10

In both these cases he court held that reservations could be made in both
promotions and appoinments But later both these were struck down by
the judgement in INDRA SAWNHEY case.

THE APPLICATION IN EDUCATIONAL INSTITUTIONS

Universities allot seats based on reservation percentage from
two different categories are
1: reservation category (SC,ST OBC,EWC and other minorities)
2:Open category (General, SC, ST, OBC, EWC and other
minorities).
The Amendment act adds the clause 15(6) which permits the resevation
even on unaided institutions which is a clear cut viloation of article 19(1)
(g) of the constitution which allows the citizen to practice
any profession,or to carry on any trade or occupation.

P. A. Inamdar v. State of Maharashtra 11

The court held that Reservations cannot be enforced on private
educational institutions which do not receive government funding
However by the 15(5) of the constitution it is evident that the state
could apply the provisions for the advancement

10. AIR 1962 SC 36

11. 2005 AIR (SC) 3226
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of the socially and educationally backward classes,but 15(6) being the
case of economic backwardness do not fall under this category and
leading to the unconstitutionality in these provisions.

Arbitrariness:
The 103rd Constitutional Amendment can be attacked upon the grounds
of arbitrariness i.e., the family income criterion has no relation with the
goal of reservation. In simple words reservation is not the remedy to the
problem of poverty (reservation is about compensating for social and
institutional barriers to representation). This makes mandating reservation
on economic disadvantage arbitrary.
The overall status after the 103 amendment was With the introduction of
10 percent of reservation for economically weaker sections in India, the
increased reservation has gone over and above to 59.5 per cent. 7.5%,
15%, and 27% quotas are reserved for Scheduled Tribes. Scheduled Castes,
and Other Backward Classes respectively." With the 103 Amendment Act,
2019 now at present only 40.5% of seats will be allocated in educational
institutions jobs based on the merit of candidates. This increase in
reservation has compromised on the merit quota which are more
deserving candidates in country. The merit quota is not reserved - not even
for the general. It is open to all candidates including Scheduled Caste,
Scheduled Tribes. Other Backward Classes, and the General category - who
qualify on merit (not on the basis of reservation). This does not do
justification to those who deserve and should be given opportunity on the
basis of their hard work and merit.

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The system of reservation is not entirely based on casteism and thus
divides the society leading to discrimination and conflicts between
different categories. It is the converse of a communal living. Reforms in
reservation system is the need of the hour. The reservation system has
mostly led to a conflict between the reserved and the unreserved
categories of the country. Observing from a neutral perspective it can be
stated that although reservation is needed for the country but at the
same time there is a need to create a system which supports affirmative
action more than appeasement politics. Any negative aspect of
reservation should not serve as a hurdle for the development of rapidly
growing economy of India.”
There are powerful legal and constitutional arguments against
103rdAmendment Act. The framers of the Constitution never intended to
make reservation solely on the basis of the economic status of an
individual. For upliftment of economically backward classes, we have
poverty alleviation programs, NREGA, scholarship programs etc. Caste
based reservation is an affirmative social action programme for ensuring
adequate representation of vulnerable and downtrodden communities
while economic reservation does not relate to the adequacy of
representation at all. Legislation or any other measure to reduce
economic inequality is not questionable but a classification based on
economic conditions exclusively for reservation is definitely a violation of
equality of opportunity. Thus, the provision for extra 10% reservation in
Public employement and education is unconstitutional in nature.

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 PRAYER

Whereof in the light of issues raised,arguments advanced and

authorities cited,it is humbly prayed that this honourable court may be
pleased to hold adjudge and declare that:

1) The writ petition is maintainable

2) Stay the operation of 103rd Amendment Act,2019 and pass

any order as may deem fit in the interest of justice, equality and
good conscience

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