SARAYU

SARAYU
NATIONAL MOOT COURT COMPETITION, 2023

BEFORE THE HON'BLE SUPREME

COURT OF DHARMASTRA

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

UNDER ARTICLE 32
OF
THE CONSTITUTION OF DHARMASTRA

IN THE MATTER OF

WRIT PETITION (CIVIL) NO. ____ / 2022

XYZ AND ORS …………………………………………………………….PETITIONERS

VS

UNION OF DHARMASTRA…….………………………………………RESPONDENTS

WITH

W. P. (C) No. __ / 2022, W. P. (C) No. __ / 2022, W. P. (C) No. __ / 2022,

W. P. (C) No. __ / 2022, W. P. (C) No. __ / 2022, W. P. (C) No. __ / 2022,
W. P. (C) No. __ / 2022

MEMORANDUM ON BEHALF OF THE RESPONDENTS

 TABLE OF CONTENTS

INDEX OF AUTHORITIES ……………………………………………………………… 2

STATEMENT OF JURISDICTION ………………………………………………………. 5

STATEMENT OF FACTS ………………………………………………………………… 6

ISSUES RAISED …………………………………………………………………………… 7

SUMMARY OF PLEADINGS ……………………………………………………………. 8

WRITTEN PLEADINGS ………………………………………………………………… 10

1. Whether the Constitution Amendment can be said to breach the basic structure of the
Constitution by permitting the State to make special provisions, including reservation,
based on gender criteria ? ……………………………………………………………10
2. Whether the Constitution Amendment can be said to breach the basic structure of the
Constitution by permitting the State to make special provisions in relation to admission
to private unaided institutions ? ………………………………………………………16
3. Whether the Constitution Amendment can be said to breach the basic structure of the
Constitution in excluding the OBCs/SCs/STs from the scope of women reservation?21
4. Whether the cap of 50% referred to in earlier decisions of the Supreme Court can be
considered to be a part of the basic structure of the Constitution? If so, can the
Constitution Amendment be said to breach the basic structure of the Constitution?...28

PRAYER ……………………………………………………………………………………32

Memorial for Respondents Page No. 1

 INDEX OF AUTHORITIES

– STATUTES –

1. The Constitution of Dharmastra, 1950.

2. International Convention on Civil and Political Rights, 1966.
3. International Covenant on Economic, Social and Cultural rights, 1967.

– TABLE OF CASES –

S.No Case Citation Page No.

AP Public Service Commission

1 v. Balaji Badhavath (2009) 5 SCC 1 12
2 Ashok kumar thakur v. UOI 1972 (1) SCC 660 17, 18
Chiranjit Lal Chowdhuri
3 v. The Union of India and Ors. 1951 AIR 41 25
4 Deepak Sibal v. Punjab University AIR 1989 SC 903 12
5 D.D. Joshi v. Union of India 1983 AIR 420 12
Ewanlangki-E-Rymbai
6 v. Jaintia Hills District Council 2006 AIR SCC 1589 21
7 Gauri Shanker v. Union of India 1995 AIR 55 21
Government of Andhra Pradesh
8 v. P B Vijayakumar AIR 1995 SC 1648 13, 25
9 Independent Thought v. Union of India (2017) 10 SCC 800 29
11, 21,
10 Indhra Sawhney v. UOI AIR 1993 SCC 477 28, 29, 30
11 Jagannath Prasad v. State of Uttar Pradesh AIR 1961 SC 1245 12, 24
12 John Vallamattom v. UOI AIR 2003 SC 2902 11, 21
13 Joseph Shine v. Union of India 2018 SC 1676 23
K.C. Vasanth Kumar & Anr.
14 v. State of Karnataka 1985 AIR 1495 30
15 Kesavanandha Bharati v. State of Kerala (1973) 4 SCC 225 17
Kumari K.S. Jayasree & Anr v. The State of
16 Kerala & Anr 1976 AIR 2381 14
17 M.R. Balaji v. State of Mysore AIR 1963 SC 649 14, 17, 28
18 MG Badappanavar v. State of Karnataka AIR 2001 SC 260 12
19 Madhu Kishwar v. State of Bihar 1996 AIR 1864 22

Memorial for Respondents Page No. 2

 S.No Case Citation Page No.

Minerva Mills Ltd. and Ors. AIR 1980 SC 1789

20 v. Union of India and Ors. 26
21 Minor P. Rajendran v. State of Madras & Ors 1968 AIR 1012, 24
Modern Dental College and Research Centre AIR 2012 SCW 3899
22 v. State of Madhya Pradesh 19
Mukesh Kumar and Anr. (2020) 3 SCC 1
23 v. State of Uttarakhand & Ors 13
24 P. Sagar v. State of Andhra Pradesh AIR 1968 SC1379 14
25 Pramati Educational and Cultural Trust v. UOI (2008) 6 SCC 1 18
Ratnagiri Gas and Power Private Limited AIR 2013 SC 200
26 v. RDS Project Limited 12
27 Raval company v. K. G. Ramachandra AIR 1974 SC 818 28
Saurav Yadav and Ors (2021) 4 SCC 542
28 v. State of Uttar Pradesh & Ors. 25
Shri Ram Krishna Dalmia v. Shri Justice S. R.
29 Tendolkar & Ors 1958 AIR 538 11
Society for unaided private schools of
30 Rajasthan v. UOI (2012) 6 SCC102 16, 18
31 St. Stephen’s College v. University of Delhi AIR 1992 SC 1630 23
32 State of Bombay and Anr. v. F.N. Balsara 1951 AIR 318 12
33 State of Kerala & Anr v. N. M. Thomas & Ors 1976 AIR 490 29
34 State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 24
35 Suneel Jaitley Etc v. State of Haryana Etc 1984 AIR 1534 24
Toguru Sudhakar Reddy and Anr v. The AIR 1994 SC 544
36 Government of Andhra Pradesh 29
Transport and dock workers union
37 v. Mumbai port trust 2011 2 SCC 575 25
38 Union of India v. K S Subramanian AIR1976 SC 2433 22
(2015) 11 SCC 708
39 Vikram cement v. State of MP 1954 AIR 321 11, 17

40 Yusuf Abdul Aziz v. The State of Bombay 1954 AIR 321 24

41 Zee Telefilms Ltd & Anr v. UOI and Ors AIR 2005 SC 2677 20

Memorial for Respondents Page No. 3

 – BOOKS –

1. Indian Constitutional Law, M. P. Jain (8th Edition)

2. Law and Social Transformation in India, Malik and Raval
3. Justice of women, Chief Justice A.S. Anand (3rd Edition)
4. Constitutional Law of India, Dr.J.N. Pandey) 58th Edition

– LEGAL DATABASES –

1. Indiankanoon.org
2. Casemine.com
3. Legalservicesindia.com
4. Indianbarassociation.org
5. Manupatrafast.com
6. Scconline.com

– REPORTS –

1. Constituent Assembly Debate.

2. Inequalities Reinforced? Social Groups, Gender andEmployment, Neetha N.
3. Intersecting Identities, Livelihoods and Affirmative Action: How Social Identity
Affects Economic Opportunity for Women in Dharmastra, IWWAGE.
4. Domestic Violence in Dharmastra a Summary Report of Three Studies, ICRW.
5. Caste-Gender-Report, ICRW.

Memorial for Respondents Page No. 4

 STATEMENT OF JURISDICTION

The Counsel for the Petitioners have endorsed their pleadings before the Honourable Supreme
Court of Dharmastra under Article 32 of the Constitution of Dharmastra. The Petitioners further
submit that the Hon'ble Supreme Court has the jurisdiction to deal with the subject matter of
the writ petition. The Respondents humbly submits to the Jurisdiction of this Honourable
Supreme Court.

Memorial for Respondents Page No. 5

 STATEMENT OF FACTS

¶1. The Republic of Dharmastra is a secular country with a diverse history. The caste system,
a grave social evil prevalent in Dharmastra, introduced 1500 years ago bifurcated the citizens
into forward/higher and backward/lower castes. The backward caste people, referred to as
“untouchables” were subjected to seclusion, oppression and harassment. After Independence
in 1947, The Constitution of Dharmastra provided reservation for their advancement.
¶2. In the 1960s, A Commission was appointed by the President to determine socially and
educationally backward classes and steps for their advancement. Subsequently, OBCs were
also given reservation through a Constitutional Amendment. A 9-Judge Bench in the Hon’ble
Supreme Court upheld its Constitutional validity and held that it is impossible to accept the
theory of proportionate representation and not accept that of adequate reservation, further
reservation over 50% will be held unconstitutional.
¶3. In Dharmastra, reservation in case of direct recruitment on all basis by open competition
for SCs, STs and OBCs is 15%, 7.5%, 27% (49.5%) respectively. Reservation for SCs, STs
and OBCs other than by open competition is 16.66%, 7.5% and 25.84% respectively (50%).
¶4. Gender inequality in Dharmastra gave rise to crimes against women. A study by UN women
revealed that gender-based discrimination is more prevalent in non-governmental institutions
of Dharmastra due to its propitiate capitalism fueled by patriarchy.
¶5. Women are subjected to discrimination and physical abuse in schools, colleges and
workplaces especially in private institutions. Moreover, International reputation of Dharmastra
was also adversely affected due to which there is a substantial monetarily setback as foreign
companies and Governments back out of their deals, fearing about the safety of their female
staff and civic unrest. In 2021, a young girl died due to years of physical abuse by her professor
at a private school. This incident incited riots and protests in front of the Parliament and
Supreme Court.
¶6. Subsequently the Parliament introduced a Constitutional Amendment to extend reservation
for women in all sectors. Extract of the amendment as follows, “The State has been empowered,
inter alia, to provide five per cent reservation for female citizens other than “the Scheduled
Castes”, “the Scheduled Tribes” and “the Other Backward Classes” in both government and
private sectors”.
¶7. Several Writ petitions were filed before the Hon’ble Supreme Court of Dharmastra praying
to declare the amendment unconstitutional.

Memorial for Respondents Page No. 6

 ISSUES RAISED

Whether the Constitution Amendment can be said to breach the basic structure of the
Constitution by permitting the State to make special provisions, including reservation,
based on gender criteria ?

II

Whether the Constitution Amendment can be said to breach the basic structure of the
Constitution by permitting the State to make special provisions in relation to admission
to private unaided institutions ?

III

Whether the Constitution Amendment can be said to breach the basic structure of the
Constitution in excluding the OBCs/SCs/STs from the scope of women reservation ?

IV

Whether the cap of 50% referred to in earlier decisions of the Supreme Court can be
considered to be a part of the basic structure of the Constitution? If so, can the
Constitution Amendment be said to breach the basic structure of the Constitution ?

Memorial for Respondents Page No. 7

 SUMMARY OF PLEADINGS

1. Whether the Constitution Amendment can be said to breach the basic structure
of the Constitution by permitting the State to make special provisions, including
reservation, based on gender criteria?

No, It is humbly submitted that the constitutional amendment is not violating the basic
structure of the Constitution. The State is not restrained from taking any kind of
measures for the advancement of women. The State can make special provisions for
upliftment of women of all categories. This constitutional amendment is made in order
to equate the social position of women in all communities. The State had exercised the
power to take such affirmative action according to the said constitutional amendment
which is within the ambit of Article 15(3) without violating the basic structure of the
Constitution.

2. Whether the Constitution Amendment can be said to breach the basic structure
of the Constitution by permitting the State to make special provisions in relation
to admission to private unaided institutions ?

No, It is humbly submitted that, with regard to admission to private unaided institutions,
there can validly be a certain degree of state control over the private unaided
professional institutions for the reason that the recognition has to be granted by the State
authorities according to Article 15(5). Private unaided institutions play a crucial role in
development of our Nation. The State can direct reservation in private unaided
institutions to promote educational interests among socially, educationally and
economically weaker sections. The attainment of equality is paramount for the State.
Thus the said amendment cannot be said to breach the basic structure of the
Constitution.

Memorial for Respondents Page No. 8

 3. Whether the Constitution Amendment can be said to breach the basic structure
of the Constitution in excluding the OBCs/SCs/STs from the scope of women
reservation ?

No, The Counsel submits before this Hon’ble Supreme Court of Dharmastra that the
Constitution Amendment does not breach the basic structure of the Constitution in
excluding the OBCs, SCs and STs from the scope of women reservation as it is based
on the principle of equality and satisfies the twin test of reasonable classification
thereby providing equality among equals and will vitalize gender equality in
Dharmastra.

4. Whether the cap of 50% referred to in earlier decisions of the Supreme Court can
be considered to be a part of the basic structure of the Constitution? If so, can the
Constitution Amendment be said to breach the basic structure of the
Constitution?

No, The Counsel humbly submits that the cap of 50% referred to in earlier decisions of
the Supreme Court cannot be considered to be a part of the Basic Structure of the
Constitution rather it's only a rule of caution. Such rule could be relaxed in the interest
of Nation’s growth and welfare of our Citizen”

Memorial for Respondents Page No. 9

 WRITTEN PLEADINGS

ISSUE 1
Whether the Constitution Amendment can be said to breach the basic structure of the
Constitution by permitting the State to make special provisions, including reservation,
based on gender criteria?

It is humbly submitted that the constitutional amendment is not violating the basic
structure of the Constitution. The State is not restrained from taking any kind of measures for
the advancement of women. The State can make special provisions for upliftment of women
of all categories. This constitutional amendment is made in order to equate the social position
of women in all communities.

[ 1.1 ] GENDER EQUALITY

(⁋ 1) It is humbly submitted that reservation is about reserving access to seats in government

jobs, educational institutions, and even Legislatures to certain sections of the population can
be regarded as positive discrimination. Being an affirmative action, reservation is provided in
order to advance and represent the socially and educationally backward classes. The full and
equal participation for women in political, civil, economic and cultural life at the national,
regional and international levels, and the eradication of all forms of discrimination on grounds
of sex are priority objectives of the international community1.

(⁋ 2) The principle of gender equality is enshrined in the Constitution of Dharmastra in its

Preamble, Fundamental Rights, Directive Principles of State Policy and Fundamental Duties2.
The motive of goals enunciated by the Constitution and the Government is to uplift the status
of the women and achieve social, economic and political justice3. Considering various criteria
in determining backwardness, there are people who are socially, educationally, and
economically backward in all castes, sex, and religion.

1
World Conference on Human Rights at Vienna (1993)
2
Law and social transformation in India - Malik and Raval
3
Preamble of the Constitution of Dharmastra

Memorial for Respondents Page No. 10

(⁋ 3) The State is obliged to uplift the disadvantaged sections of the country where an
individual belonging to particular caste, race, religion, sex4 is immaterial. The social and
educational backwardness is considered as women are vulnerable sections of the society
whatever strata to which they belong to5. Moreover, The Convention on the Elimination of All
forms of Discrimination Against Women (CEDAW) recognises that discrimination against
women in areas of family, society and economy hampers the economic growth and prosperity
and detrimentally affects the society in general6. On the perusal of CEDAW, right to work is
inalienable so it is the duty of the State to frame policies for both men and women to have
adequate means of livelihood7. Women being socially and educationally backward irrespective
of their communal background, form a separate class of people under Article 15(4) in addition
to Article 15(3) who need protection and promotion.

[ 1.2 ] RIGHT TO EQUALITY

[1.2.1] Article 14

(⁋ 4) It is humbly submitted that Arts. 14, 15 and 16 of the Constitution empowers the State
to adopt measures of affirmative discrimination in favor of women, which is not a violation of
the right to equality in any manner. The underlying purpose of Article 14 is to treat all the
persons similarly circumstanced alike, both in privileges conferred and liabilities imposed.
Article 14 states that, “The State shall not deny to any person equality before the Law or the
equal protection of the Laws within the territory of India”

(⁋ 5) Classification must be reasonable where there should be a rational relation between the
qualities and characteristics and the object of the Legislation8. Permissible Classification must
satisfy two conditions. It must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group and the differentia
must have a rational relation to the object sought to be achieved 9. All persons in similar
circumstances shall be treated alike both in privileges and liabilities imposed10.

4
Article 15 of the Constitution
5
Indhra Sawhney v. UOI [AIR 1993 SCC 477]
6
Justice for women- Chief Justice A.S. Anand
7
Article 39 of the Constitution
8
Vikram Cement v. State of Madhya Pradesh [(2015) 11 SCC 708]
9
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors [1958 AIR 538]
10
John Vallamattom v. UOI [AIR 2003 SC 2902]

Memorial for Respondents Page No. 11

(⁋ 6) Article 14 forbids class legislation but not classification11. In the permissible
classification, mathematical nicety and perfect equality are not required12.Equality is a basic
feature of the Constitution and any treatment of equals unequally or unequals as equals will be
a violation of basic structure of the Constitution13. Absolute equality between different classes
of citizens cannot be achieved in a modern society owing to conflicting claims of other
overriding public interests, due to which certain exceptions to the rule of equality are
acknowledged. Such exceptions can be founded on the comity of the nations or when on
different public interests, requiring special Laws to govern special situations. Further, no Law
implementing any enabling provisions in the Constitution could be declared as unconstitutional
on the grounds that it violated any of the Fundamental rights. In the instant case, the State with
the said amendment does not violate the principles of equality.

(⁋ 7) Equal protection of Laws14 is a positive concept which postulates the application of the
same Laws to all individuals and without discrimination to all the persons situated15. Treating
people equally should be in equal circumstances. Mere differentiation does not per se amount
to discrimination within the inhibition of the equal protection clause16. The circumstances must
be such as to justify the discriminatory treatment or the classification subserving the object
sought to be achieved17.

[1.2.2] Article 15(3)

(⁋ 8) It is humbly submitted that Article 15 and 16 are enabling provisions. Reservation

cannot be claimed as a matter of right18 but it is the duty of the State to perform such affirmative
action for the people. The State can take measures in order to attain equality in the way of the
reservation system. According to Article 15(3), The State is not prevented from making special
provisions for women and children. By virtue of Article 15(3), the State can make provisions,
even special treatment for women for advancement.

11
D.D. Joshi v. Union of India [1983 AIR 420]
12
State of Bombay and Anr. v. F.N. Balsara [1951 AIR 318]
13
MG Badappanavar v. State of Karnataka [AIR 2001 SC 260]
14
Article 14 of the Constitution
15
Jagannath Prasad v. State of Uttar Pradesh [AIR 1961 SC 1245]
16
Ratnagiri Gas and Power Private Limited v. RDS Project Limited [AIR 2013 SC 200]
17
Deepak Sibal v. Punjab University [AIR 1989 SC 903]
18
AP Public Service Commission v. Balaji Badhavath [(2009) 5 SCC 1]

Memorial for Respondents Page No. 12

(⁋ 9) Article 15(3) recognises that women have been socially, educationally, economically
handicapped for centuries and the purpose for instituting this provision is to eliminate
backwardness of women, empowering them to attain equality in all bases. The scope of the
said provision is wider, which includes employment also within its ambit, the State may fix a
quota for appointment of women in government services.19

(⁋ 10) The State has the power in making special provisions in respect of employment for
women. The special provision for women in Article 15(3) paves way for the State to take
measures to improve participation of women in all activities either in the way of affirmative
action or reservation for women. Since, Article 16 is silent with regard to special provision
made for the women by the State, it cannot derogate the powers of the State under the said
provision. The scope of Article 15(3) is not only constrained with reservation but to all aspects
of affirmative actions.

(⁋ 11) It was decided in the case of Mukesh Kumar and Anr. v. State of Uttarakhand & Ors20,
there is no fundamental right to reservation or promotion under Article 16(4) of the
Constitution rather they are enabling provisions for providing reservation, if the circumstances
warrant. These pronouncements in no way understate the constitutional directive under Article
46 that mandates that the state shall promote with special care the educational and economic
interests of the weaker sections of the people. The impact of reservations, as an enabling
provision of the Constitution, has thus been diluted and left at the discretion of the State.
Women for centuries had no independent status and they were treated as mere subjects of Men
as Dharmastra is a highly Patriarchal Society. Moreover, the provisions in the part21 are
fundamental in the governance of the country, where the State has the duty to apply these
principles in making Laws22.

19
Government of Andhra Pradesh v. PB Vijayakumar [AIR 1995 SC 1648]
20
Mukesh Kumar and Anr. v. State of Uttarakhand & Ors [(2020) 3 SCC 1]
21
Part IV of the Constitution
22
Article 37 of the Constitution

Memorial for Respondents Page No. 13

[1.2.3] Article 15(4)

(⁋ 12) It is humbly submitted that the scope of this provision cannot be narrowed only within
the communities. The factors governing backwardness are not constrained by caste and
community which is not permissible under this provision. Classes are homogenous section of
people grouped together because of common attributes such as rank, status, occupation, race,
religion, residence in a locality and a like23.

Article 15(4) reads as “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”

(⁋ 13) The classification which is made to determine backwardness, Article 15(4) applies to
class of citizens and not castes of citizens. The caste cannot be considered to be the sole and
dominant criterion in order to determine backwardness among people.24 If the classification is
based on income limit, such classification will be held valid as it is based on social and
educational backwardness and not on income. Article 15(4) speaks about making provisions
for the advancement of backward classes of citizens, where the socially and educationally
backward class is wider in nature and includes individuals who are not constrained only to their
respective caste. Social backwardness is the result of poverty to a very large extent and
economic conditions like poverty can be considered as the factor for the classification of
backwardness among the classes25.

23
P. Sagar v. State of Andhra Pradesh [AIR 1968 SC1379]
24
Balaji v. State of Mysore [AIR 1963 SC 649]
25
Kumari K.S. Jayasree & Anr v. The State of Kerala & Anr [1976 AIR 2381]

Memorial for Respondents Page No. 14

Ergo, it is humbly submitted that the State had exercised its power to take such affirmative
action for women as it is within the ambit of Article 15(3) without violating the basic structure
of the Constitution. The amendment was made by adhering to the principles of equality to all
the sections of the Citizens of Dharmastra . Even while everyone in the democratic system of
Dharmastra has the right to equality, there are measures in place to provide particular protection
and reservations to women for their upliftment in attaining social justice.

Memorial for Respondents Page No. 15

 ISSUE 2

Whether the Constitution Amendment can be said to breach the basic structure of the
Constitution by permitting the State to make special provisions in relation to admission
to private unaided institutions ?

It is humbly submitted that, with regard to admission to private unaided institutions, there can
validly be a certain degree of state control over the private unaided professional institutions for
the reason that the recognition has to be granted by the State authorities according to Article
15(5). The power to regulate and monitor such institutions is vested in the hands of the State
and thus the said amendment cannot be said to breach the basic structure of the Constitution.

[2.1] ADMISSION TO UNAIDED PRIVATE INSTITUTIONS

(⁋ 1) It is humbly submitted that reservation in educational institutions can be made for

women26 , socially and educationally backward classes and Schedule Castes, Scheduled
Tribes27 and other groups not falling under the purview of the above categories28. The State is
guaranteed with the authority to make special provisions with regard to admission in
educational institutions either aided or unaided.

(⁋ 2) Even though there is a distinction between the unaided institutions whether such
institution is minority unaided institution or non minority unaided institution. But, as
appropriation of quota by the State and enforcement of its reservation policy is concerned, there
is not much of a difference between non-minority and minority unaided educational
institutions29. The State can and rather must, in national interest, take effective steps in order
to fulfill excellence in education and maintenance of high standards.

26
Article 15(3) of the Constitution
27
Article 15(4) and 15(5) of the Constitution
28
Article 15(1) of the Constitution
29
Society for unaided private schools of Rajasthan v. UOI [(2012) 6 SCC102]

Memorial for Respondents Page No. 16

(⁋ 3) The National and State level Commissions consider different criteria for identifying
backwardness in the society such as social, education, economic factors to analyze the
measures for improvement of such classes. In order to determine educational backwardness,
the State average of Student population in all last three high school classes of all high school
classes was taken and listed all the communities as educationally backward whose average fell
even marginally below the State average30. Moreover, caste, poverty, occupation, place of
habitation are held to be some of the relevant factors for social backwardness. For enhancing
all the sections of people, the State can make any special provisions for advancement.The
principles of equality cannot be infringed when there is a rational nexus and proper
classification. Classification made under this provision has to be rational based on the qualities
and characteristics having reasonable relation to the object of the Legislation.31

(⁋ 4) It was decided in the case of Ashoka Kumar Thakur v. Union of India (UOI) and Ors32
that as far as the basic structure of the Constitution is concerned, every provision in the
Constitution can be amended as far as the result of the amendment does not affect it and the
amendment should remain the same without affecting it33.

[2.2] ARTICLE 15(5)

(⁋ 5) It is modestly submitted that the phrase “Socially and Educationally backward” include
women34 within its ambit. Article 15(5) of the Constitution included by the way of
Constitutional amendment, 200535, speaks about admission to educational institutions. The
notion of such amendment is to increase the access to quality education for students from SCs,
STs as well as socially and educationally backward classes in order to develop with special
consideration for the educational and economic interests of the disadvantaged groups of the
population and safeguard them from social inequality36.

30
Naganna Gowda Committee Report
31
Vikram cement v. State of MP [(2015) 11 SCC 708]
32
Ashok kumar thakur v. UOI [1972 (1) SCC 660]
33
Kesavanandha Bharati v. State of Kerala [(1973) 4 SCC 225]
34
M.R. Balaji v. State of Mysore [AIR 1963 SC 649]
35
93rd Constitutional Amendment Act, 2005.
36
Article 46 of the Constitution of Dharmastra.

Memorial for Respondents Page No. 17

“We must not for a moment forget, it is a birthright of every individual to receive at least the
basic education without which he cannot fully discharge his duties as a citizen…37”

(⁋ 6) Article 15(5) of the Constitution is an empowering clause that will provide the fairness
and equality guaranteed in the Preamble of our Constitution38. In the provision, the Legislatures
of the State and the Centre are provided with the power to enact Legislation relating to
reservation. This provides wider scope for both the Legislatures. This led to the enactment of
Central Educational Institutions (reservation in admission) Act39.As compared to private
unaided universities, the proportion of seats available in aided or government regulated
institutions was low, especially in professional education40.

Article 15(5) states that, “Nothing in Article 15 or Article 19(1)(g) prevents the Government
from making special legal provisions to improve the lives of socially and educationally
backward citizens as well as those from Scheduled Castes and Scheduled Tribes”

(⁋ 7) The amendment with regard to principles of equality must be within the boundaries and
cannot affect the larger purpose behind the principle. Any amendment which interferes in the
principles of equality are said to be violative. In this instant case, the amendment is made only
within the purview of principles of equality, without violating Article 14 and 15 of the
Constitution. It is modestly submitted that the special provisions with regard to admission in
private unaided institutions can be made when it is within the purview of Article 15(5).
Furthermore, the State has the power and authority to make Legislation and regulation with
regard to private institutions, and can regulate such institutions in various circumstances.

(⁋ 8) The State can make provisions under Article 15(5) as it is coherent with the features of
socialism as given in the Preamble and the directive principles of state policy. It also helps in
the advancement of the backward classes. It will ultimately result in an advanced socialist
democratic country, which will establish equality in our nation41.

37
Mr. Maulana Abdul Kalam Azad in 16 January 1948 in Constituent Assembly
38
Pramati Educational and Cultural Trust v. UOI [(2008) 6 SCC 1]
39
Central Educational Institutions (reservation in admission) Act, 2006
40
Society for Unaided Private Schools of Rajasthan v. Union of India [(2012) 6 SCC 102]
41
Ashok kumar thakur v. UOI [1972 (1) SCC 660]

Memorial for Respondents Page No. 18

(⁋ 9) Article 15(5) promotes the constitutional purposes and enhances the objectives desired
to be attained by the Constitution, and permits Parliament to adopt Legislative measures in that
regard. The provision is enhancing such circumstances instead of modifying the fundamental
characteristics of the Constitution. It was decided in the case of Modern Dental College and
Research Centre v. State of Madhya Pradesh42, even though greater autonomy must be granted
to private unaided institutions as compared to private aided institutions the reason for this is
obvious, it does not mean that the private unaided institutions have absolute autonomy without
any interference of the State in all matters.

(⁋ 10) Furthermore, there can validly be a certain degree of state control over the private
unaided professional institutions for the reason that the recognition has to be granted by the
State authorities and it is also the duty of the State to see that high standards of education are
maintained in all professional institutions even when the Unaided institutions have to generate
their own funds and hence they must be given more autonomy as compared to aided
institutions, so that they can generate these funds. The special provisions can be made by the
State within the reasonable restrictions43. It is noted that though education is now treated as an
‘occupation’ and, thus, has become a fundamental right guaranteed under Article 19(1)(g) of
the Constitution, at the same time shackles are put insofar as this particular occupation is
concerned which is termed as ‘noble’. Therefore, profiteering and commercialisation are not
permitted and no capitation fee can be charged44.

[2.3] IMPACT OF PRIVATIZATION

(⁋ 11) It is humbly submitted that in order to uplift the economic condition, several reforms45
are introduced which play a vital role in curbing backwardness. Privatization in all sectors,
particularly in the educational sector, had created a positive impact among the individuals like
increasing accessibility of education in all areas as well as increasing employment
opportunities for people.

42
Modern Dental College and Research Centre v. State of Madhya Pradesh [AIR 2012 SCW 3899]
43
Article 19(6) of the Constitution
44
Modern Dental College and Research Centre v. State of Madhya Pradesh [AIR 2012 SCR 3899]
45
“Liberalization”, “Privatisation”, “Globalization” or “Structural reform”

Memorial for Respondents Page No. 19

(⁋ 12) The State has the sovereign responsibility for advancing educational opportunities for
weaker sections46 by increasing the resources which makes people more accessible to
education. This is necessary for the State to fulfill its obligations to provide free and mandatory
education to all children under the age of 14, higher education to its citizens so that they can
live dignified lives, and equal educational opportunities to individuals and groups that are
socially and economically disadvantaged47.

(⁋ 13) It was decided in the case of Zee Telefilms Ltd & Anr v. UOI and Ors48, even though
all the functions performed by the Board of Cricket Control amount to public duties or State
functions, the Board is not discharging the State functions. The Board performs both the State
and Private functions in various circumstances. In such cases, the Board will be considered to
be under the purview of Article 12 while performing such particular functions. Complete
autonomy is a myth as most of the functions of the private institutions are within the restrictions
of the State.

Ergo, it is humbly submitted that Private unaided institutions play a crucial role in providing
education. The State can direct reservation in private unaided institutions to promote
educational interests among socially, educationally and economically weaker sections. The
attainment of equality is paramount for the State.

46
Article 46 of the Constitution of Dharmastra.
47
Article 45 of the Constitution of Dharmastra.
48
Zee Telefilms Ltd & Anr v. UOI and Ors [AIR 2005 SC 2677]

Memorial for Respondents Page No. 20

 ISSUE 3

Whether the Constitution Amendment can be said to breach the basic structure of the
Constitution in excluding the OBCs/SCs/STs from the scope of women reservation?

The counsel for the respondents humbly submits before this Hon’ble Supreme Court of
Dharmastra that the Constitution Amendment does not breach the basic structure of the
Constitution in excluding the OBCs, SCs and STs from the scope of women reservation on the
following grounds.

[ 3.1 ] POSITIVE DISCRIMINATION

(⁋ 1) The counsel humbly submits that the Constitution of Dharmastra guarantees the
Fundamental Right to Equality49 under Part III of the Constitution. The three Articles – Articles
14, 15 and 16 together form part of the same constitutional code of guarantee of equality and
supplement each other. Article 14 is the Genus while Article 15 and 16 are the species.50 Article
14 of our Constitution confers both Equality before Law and Equal Protection of Law. This
Principle of Equality has been declared by this Hon'ble Supreme Court as the basic structure
of the Constitution.51

(⁋ 2) The Essence of Equality is “Equality among equals and not among unequals.” In Gauri
Shankar v. Union of India52, it was observed that “Equality before the Law means that among
equals the Law should be equal and should be equally administered, that like should treated
alike”53. Thus Article 14 prohibits class Legislation but allows reasonable classification which
should not be arbitrary, unreasonable and it must be based on qualities and characteristics and
not any others who are left out, and those qualities and characteristics must have reasonable
relations to the object of the Legislation.54

49
Articles 14, 15, 16, 17 and 18.
50
Ewanlangki-E-Rymbai v. Jaintia Hills District Council [2006 AIR SCC 1589]
51
Indra Sawhney and Ors. v. Union of India and Ors. [AIR 1993 SC 477, 1992 Supp 2 SCR 454]
52
Gauri Shanker v. Union of India [ 1995 AIR 55, 1994 SCC (6) 349]
53
Jennings’s exposition of the principle of equality before the Law.
54
John Vallamattom & Anr v. Union of India [AIR 2003 SC 2902]

Memorial for Respondents Page No. 21

(⁋ 3) Article 15(3) is in the nature of an exception to clause (1) and provides that
notwithstanding clause (1), it would be permissible for the state to make special provision for
women and children. This exception is not confined to beneficial provision only, rather any
special provisions that the State considers necessary in the interests of women, whatever its
nature may be, would be valid under this clause. Where a discrimination is made by the
Constitution itself it cannot be questioned as violating Article 14.55

Article 15(3) reads as “Nothing in this Article shall prevent the States From making any
special provisions for women and children”

(⁋ 4) Further, the intention of the State to provide reservation to women of Dharmastra in

lieu of Article 15(3) is apparent from the statement of object and reasons of The Constitution
(First Amendment) Act, 1951 which provides as “It is laid down in Article 46 as directive
principle of State Policy that the State should promote with special care the educational and
economic interests of the weaker sections of the people and protect them from social injustice.
In order that any special provision that the State may make for the educational, economic or
social advancement of any backward class of citizens may not be challenged on the ground of
being discriminatory, it is proposed that Article 15(3) should be suitably amplified.”56

(⁋ 5) Hon’ble Justice K Ramaswamy in the case of Madhu Kishwar v. State of Bihar57

reflected o n the status of women in Dharmastra as “Half of the Dharmastran population are…
women. Women have always been discriminated against and have suffered and are suffering
discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet
they have been subjected to all inequities, indignities, inequalities and discrimination”. The
sufferings of women in Dharmastra have increased in the last decade. Especially Domestic
violence by husband/intimate partner resulting in murders have increased 40% and crimes
against women have increased by 60%.58 The Government took measures to eliminate these
sufferings but the results were trivial due to the fact that Dharmastra is a highly patriarchal
society.

55
Union of India v. K S Subramanian [AIR1976 SC 2433]
56
The Constitution (First Amendment) Act, 1951
57
Madhu Kishwar v. State of Bihar [ 1996 AIR 1864, 1996 SCC (5) 125]
58
Moot Proposition ⁋ 8.

Memorial for Respondents Page No. 22

(⁋ 6) The Murder of a young girl in a private school as a result of physical abuse by her
professor and other factors led to civil unrest, subsequently lowering the International
reputation of Dharmastra. The Parliament to empower every woman of Dharmastra introduced
a Constitutional Amendment. The Extract of the Amendment reads as:

“The State has been empowered, inter alia, to provide ‘five per cent’ reservation for female
citizens other than ‘the Scheduled Castes’, The Scheduled Tribes' and ‘The Other Backward
Classes’ in both government and private sectors”

[ 3.2 ] EQUALITY AMONG EQUALS

(⁋ 7) The Counsel humbly submits that this Constitutional Amendment enables the State to
provide reservation to women other than the ‘the Scheduled Castes’, ‘The Scheduled Tribes'
and ‘The Other Backward Classes’ i.e. Unreserved Category. This Constitutional Amendment
is a ray of light to the women other than the OBCs/SCs/STs. In Dharmastra the Women in
general59 have been discriminated against, suffered and deprived of their status despite their
Caste / Class.60 Many Women in Dharmastra had no individual autonomy, desire and identity
being a highly patriarchal society.61

(⁋ 8) The Women belonging to ‘the Scheduled Castes’, ‘The Scheduled Tribes' and ‘The
Other Backward Classes’ have been positively discriminated against (Affirmative Action),
owing to their Social and Educational Backwardness. The Women of OBCs/SCs/STs can avail
benefit under Articles 15(4), 16(4) along with Artile15(3). The gender discrimination62 women
not belonging to OBCs/SCs/STs have been overlooked and untouched by the Laws only
because they were belonging to a socially and educationally forwarded class. When the State
leves the existing inequalities untouched by the Laws, it fails in its duty of providing equal
protection of Law to all persons.63 The claim is not to end inequality of women but to restore
universal justice.64

59
Domestic Violence in Dharmastra A Summary Report of Three Studies, ICRW.
60
Moot Proposition ⁋ 8.
61
Joseph Shine v. Union of India [2018 SC 1676]
62
Intersecting Identities, Livelihoods and Affirmative Action:
How Social Identity Affects Economic Opportunity for Women in Dharmastra, IWWAGE.
63
St. Stephen’s College v. University of Delhi [(1992) 1 SCC 558: AIR 1992 SC 1630]
64
Hon’ble Justice Krishna Iyer, V.R.K., Law and Life, Vikas publishing House New Delhi, 1970, p.31.

Memorial for Respondents Page No. 23

(⁋ 9) The counsel humbly submits that the Doctrine of Equality implies that among equals,
the Law shall be equal and equally administered and the like should be treated alike without
distinction of race, religion, wealth, social status or political influence.65 The women not
belonging to OBCs/SCs/STs are women of a highly patriarchal society and were treated as
mere subjects of Male. The special provision for women under Article 15(3) or for the
backward classes in Article 15(4) and 16(4) cannot be challenged on the ground that they
violate the rule of equality enunciated in Article 14.66

(⁋ 10) Moreover, excluding women belonging to OBCs/SCs/STs is a reasonable classification

and is consistent and protected under Articles 14, 15, 15(3) and 16. The Principle of Equality
under Article 14 is given life by Doctrine of reasonable classification. A Reasonable
Classification must fulfill the twin test67 as propounded by Former Chief of Dharmastra,
Hon’ble Justice S. R. Das, namely
I. The classification must be founded on an ‘intelligible differentia’ which distinguishes
persons or things based on reasonableness.68
II. There must be a nexus between the basis of classification and object of the Act.69

(⁋ 11) The Object of this Constitutional Amendment is to promote gender equality and
empower every woman irrespective of their caste/class or social, educational and economic
status. The women not belonging to OBCs/SCs/STs i.e. Unreserved Women Citizens so far
haven’t availed the affirmative action, ‘Reservation’ on the only ground that they don’t belong
to a backward class. Nevertheless, including OBCs/SCs/STs in this 5 percent would affect the
Fundamental Right to Equality of women not belonging to OBCs/SCs/STs. At present, in
Dharmastra, reservation in case of direct recruitment by open competition is 49.5%. Which is
distributed as
● Scheduled Castes – 15%
● Scheduled Tribes – 7.5%
● Other Backward Classes – 27%

65
Jagannath Prasad Sharma v. State of Uttar Pradesh and Ors. [1961 AIR 1245, 1962 SCR (1) 151]
66
Yusuf Abdul Aziz v. The State of Bombay [1954 AIR 321, 1954 SCR 930]
67
State of West Bengal v. Anwar Ali Sarkar [AIR 1952 SC 75, 1952 CriLJ 510, 1952 1 SCR 284]
68
Suneel Jaitley Etc v. State of Haryana Etc [1984 AIR 1534, 1985 SCR (1) 272]
69
Minor P. Rajendran v. State of Madras & Ors [1968 AIR 1012, 1968 SCR (2) 786]

Memorial for Respondents Page No. 24

(⁋ 12) Furthermore, the reservation in case of direct recruitment on all Dhramastra basis
otherwise than by open competition is 50% (i.e. 16.66% for SCs, 7.5% for STs and 25.84% for
OBCs). The New Constitutional Amendment provides 5 % reservation for unreserved women
citizens. The inclusion of women belonging to OBCs/SCs/STs would place the women not
belonging to OBCs/SCs/STs in an unequal treatment as the women belonging to
OBCs/SCs/STs would avail double benefits, both from their respective class SC/ST/OBC and
in Unreserved category as a women, subsequently encroaching the reservation of women not
belonging to OBCs/SCs/STs. The norm that women of the forwarded class aren’t ought to be
benefited from affirmative action is not a practical approach. There should be a practical view
of the matter instead of relying on abstract, a priori notion of equality.70 Many States of
Dharmastra have provided horizontal reservation71 to the Women but are reluctant to provide
any form of affirmative action specifically to women of forward class. Mere differentiation or
inequality of treatment does not per se amount to discrimination unless such differentiation is
unreasonable or arbitrary and that it does not rest on any rational basis having regard to the
object which the Legislature has in view.72 The Constitutional amendment is reasonable and
non-arbitrary as it empowers women of Dharmastra irrespective of their caste/class and so
establishes a nexus between the basis of classification and object.73

(⁋ 13) The Counsel humbly relies in the case of Government of Andhra Pradesh v. P. B.
Vijay Kumar,74 where this Hon’ble Court observed that “The insertion of clause (3) of Article
15 in relation to women is a recognition of the fact that for Centuries, Women of the country
have been socially and economically handicapped.” and held that “The object Article 15(3) is
to strengthen and improve the status of women. An important limb of this concept of gender
equality is creating job opportunities for women. To say that under Article 15(3), job
opportunities for women cannot be created would be at the very root of the underlying
inspiration behind this Article. Making special provisions for women in respect of employment
or posts under the State is an integral part of Article 15(3). This power conferred under Article
15(3), is not whittled down in any manner by Article 16.”

70
Transport and dock workers union v. mumbai port trust [2011 2 SCC 575]
71
Saurav Yadav and Ors v. State of Uttar Pradesh & Ors. [(2021) 4 SCC 542]
72
Ibid.
73
Chiranjit Lal Chowdhuri v. The Union of India and Ors. [1951 AIR 41, 1950 SCR 869]
74
Government of Andhra Pradesh v. P. B. Vijay Kumar [AIR 1995 SC 1648 : (1995) 4 SCC 520]

Memorial for Respondents Page No. 25

(⁋ 14) The counsel humbly submits that the Father of Our Constitution, Bharat Ratna Ambekar
favored special provisions for women and children with a view to integrate them into society
and’ to take them out of patriarchal control’.75 Further, Article 38(2) and Article 46 directs the
State to take necessary measures to eliminate inequalities of status and opportunities and such
directive is widers and does not constrict itself to Backward Class. This Hon’ble Court in
Minerva Mills Ltd. and Ors. v. Union of India and Ors.76 has observed and held that “Parts
III and IV of the Constitution which respectively embody the fundamental rights and the
directive principles have to be balanced and harmonized.”

(⁋ 15) The Preamble of Constitution of Dharmastra which crystallized the fundamentals our
Constitution as;

“We, The People of India, … Secure To All Its Citizens:

Justice, Social, Economic andPolitical; …
Equality of Status and of Opportunity; …
Enact andGive To Ourselves This Constitution” (emphasis supplied)

(⁋ 16) The Counsel humbly submits that in Dharmastra there is a misconceived norm that
Equality is to take steps to place Backward Class citizens in equal footing to those of forward
class citizens. The Essence of Equality, ‘equal among equals’ postulates to eliminate the so
called differentiation of Backward Class and Forward Class. The Affirmative action provided
by the State to Backward Classes of Citizens was not on the basis that they were treated in cruel
manner by the forward class rather to uplift them because they are citizens of Dharmastra. The
Constitution of Dharmastra and the State are strived to ensure the welfare of its citizens
irrespective of their class/caste/gender/religion/race etc. The Constitution does not provide
affirmative action as a compensatory measure but as a principle of equality, to secure equality
among the citizens of Dharmastra.

75
Constituent Assembly Draft Making Debates on 29th November, 1948.
76
Minerva Mills Ltd. and Ors. v. Union of India and Ors. [AIR 1980 SC 1789]

Memorial for Respondents Page No. 26

The counsel for the respondents humbly submits before this Hon’ble Supreme Court of
Dharmastra that the Constitution Amendment does not breach the basic structure of the
Constitution in excluding the OBCs, SCs and STs from the scope of women reservation as it is
based on the principle of equality and satisfies the twin test of reasonable classification thereby
providing equality among equals and will vitalize gender equality in Dharmastra.

Memorial for Respondents Page No. 27

 ISSUE 4

Whether the cap of 50% referred to in earlier decisions of the Supreme Court can be
considered to be a part of the basic structure of the Constitution? If so, can the
Constitution Amendment be said to breach the basic structure of the Constitution?

The Counsel humbly submits that the cap of 50% referred to in earlier decisions of the Supreme
Court cannot be considered to be a part of the Basic Structure of the Constitution rather it's
only a rule of caution.

[ 4.1 ] 50% - A RULE OF CAUTION

(⁋ 1) The Counsel humbly submits that this Hon’ble Court in M. R. Balaji and Ors. v. State
of Mysore77, observed in general that the reservation of 50% would be reasonable and non-
arbitrary. In the words of Hon’ble Justice P Gajendragadkar “Speaking generally and in a
broad way, a special provision should be less than 50%. The actual percentage must depend
upon the relevant prevailing circumstances in each case.”

(⁋ 2) The 50% limit was affirmed in the Indra Sawhney and Ors. v. Union of India and
Ors.78 has held that “Reservation under Article 15(4) and 16(4) should in no case exceed 50%”.
The 50% limit was a rule of caution for reservation under Article 15(4) and 16(4) but this
Amendment which vitalizes women empowerment, to uplift the status of women is passed
under Article 15(3). Though the Hon’ble Supreme Court does usually follow its own decisions,
it may, at times, Find it necessary to defer from its own previous rulings in the interest of
development of Law and justice.79

77
M. R. Balaji and Ors. v. State of Mysore [1963 AIR 649, 1962 SCR Supl. (1) 439]
78
Indra Sawhney and Ors. v. Union of India and Ors. [AIR 1993 SC 477, 1992 Supp 2 SCR 454]
79
Raval company v. K. G. Ramachandra [AIR 1974 SC 818]

Memorial for Respondents Page No. 28

(⁋ 3) Moreover, this Hon’ble Court in Toguru Sudhakar Reddy and Anr v. The
Government of Andhra Pradesh80, has held that “the limit of 50% imposed in Balaji's case
applies only to reservation made under Article 15(4) and Article 16(4) and not to special
provisions made in favor of women under Article 15(3)”.

(⁋ 4) This Hon’ble Court in State of Kerala & Anr v. N. M. Thomas & Ors81 observed that
the 50% limit is not an absolute and could be relaxed for the welfare of the Nation. Two
Hon’ble Justices, reflected the nature of the 50% limit. Hon’ble Justice Fazal Ali observed that
“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 down, nor can this
matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases
of this Court have no doubt laid down that the percentage of reservation should not exceed
50%. As I read the authorities, this is, however, a rule of caution and does not exhaust all
categories.”

[ 4.2 ] A SOCIAL NECESSITY

(⁋ 5) The counsel humbly submits that this reservation meets with the ‘extraordinary and
exceptional case’ as specified in the Indra Sawnhney case.82 Though the Government of
Dharmastra had taken several measures for women empowerment and gender equality, The
patriarchy nature is deeply rooted. The main object of insertion of clause (3) in Article 15 is
to free women from the hands of Patriarchism. This Hon’ble Court considered the rationale of
Dr. Ambedkar83 for Article 15(3) as he favored special provisions for women and children with
a view to integrate them into society and to take them out of patriarchal control.84 Dharmastra,
being a highly patriarchal society, the women are considered as mere subjects of men and so
they are deprived of their independent status to learn or work. Moreover, patriarchal nature can
be reduced in time when women are provided educational and employment opportunities.

80
Toguru Sudhakar Reddy and Anr v. The Government of Andhra Pradesh [AIR 1994 SC 544]
81
State of Kerala & Anr v. N. M. Thomas & Ors [1976 AIR 490, 1976 SCR (1) 906]
82
Indra Sawhney and Ors. v. Union of India and Ors. [AIR 1993 SC 477, 1992 Supp 2 SCR 454]
83
Constituent Assembly Draft Making Debates on 29th November, 1948.
84
Independent Thought v. Union of India [(2017) 10 SCC 800]

Memorial for Respondents Page No. 29

(⁋ 6) The drastic rise of crimes against women in the last decade coupled with Domestic
Violence placed women in a vulnerable position resulting in murders etc. Furthermore, the
international reputation of Dharmastra had a severe backlash subsequently causing substantial
monetarily setback as foreign companies and governments backed out of their deals and did
not want to invest/ operate out of Dhramastra fearing the safety of their female staff and civic
unrest.85

(⁋ 7) Additionally, the murder of a young child in a private school due to continuous abuse
of her professor incited protest. The Parliament, in order to protect and uplift the status of
women in the society passed the amendment. Furthermore, Hon’ble Justice S. R. Pandiyan in
his dissenting opinion in the case of Indra Sawhney and Ors. v. Union of India and Ors.86
observed that “the decisions fixing the percentage of reservation only up to the maximum of
50% are unsustainable as the percentage of reservation at the maximum of 50% is neither based
on scientific data nor on any established and agreed formula.” Furthermore, Hon’ble Justice P.
Sawant in a separate Judgment87 , observed that “legally and theoretically the excess of
reservations over 50% may be justified, it would ordinarily be wise and nothing much would
be lost, if the intentions of the Framers of the Constitution and the observations of Dr
Ambedkar, on the subject in particular, are kept in mind.” Moreover, This Hon’ble Court in
K.C. Vasanth Kumar & Anr. v. State of Karnataka88 observed that “There is neither
statistical basis nor expert evidence to support the assumption that efficiency will necessarily
be impaired if reservation exceeds 50%.”

(⁋ 8) The counsel humbly submits that the 50% limit is a rule of caution to prevent arbitrary
action of the state as not to compromise on merit. A reasonable limitation not compromising
merit may be considered as a part of the basic structure of our Constitution but to follow the
50% limit absolutely and neglecting the welfare of the country would place our country in a
static state. The Constitution of Dharmastra is dynamic in nature and it changes with respect to
the welfare of its citizens. Hon’ble Jawaharlal Nehru, our first Prime Minister, opined that “If
you make anything rigid and permanent, you stop a Nation’s growth, the growth of a living,
vital organic people. Therefore it has to be flexible”89

85
Moot Proposition ⁋9.
86
Indra Sawhney and Ors. v. Union of India and Ors. [AIR 1993 SC 477, 1992 Supp 2 SCR 454]
87
Ibid.
88
K.C. Vasanth Kumar & Anr. v. State of Karnataka [1985 AIR 1495, 1985 SCR Supl. (1) 352]
89
Constituent Assembly Draft Making Debates on 8th November, 1948.

Memorial for Respondents Page No. 30

The Counsel humbly submits that the cap of 50% referred to in earlier decisions of the Supreme
Court cannot be considered to be a part of the Basic Structure of the Constitution rather it's
only a rule of caution. Such rule could be relaxed in the interest of Nation’s growth and welfare
of our Citizen”

Memorial for Respondents Page No. 31

 PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Hon’ble Supreme Court of
Dharmastra that it may be graciously pleased to adjudge and declare that the Constitutional
Amendment does not breaches the Basic Structure of the Constitution and

(i) Dismiss the Petition(s)

Also pass any other order that this Honourable Court deems fit and proper in the interests of
justice, equity and good conscience.

For this act of Kindness, the RESPONDENTS shall be duty bound forever to pray.

Place : All of which is humbly prayed,

Dated : DD.MM.YYYY Counsel appearing on behalf of the RESPONDENTS.

Memorial for Respondents Page No. 32