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T HE 8TH R LC LC SAQUIB R IZVI I ZVI MEMORIAL NATIONAL MOOT COURT COMPETITION 2016-2017

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TEAM CODE:

IN THE HON’BLE SUPREME COURT OF HADEN

WRIT PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF HADEN W RIT PETITION NO. ________/ ____ ____/2016 2016 ORIGINAL W RIT J URISDICTION PUBLIC INTEREST LITIGATION

IN THE MATTERS OF:

KELA TATUIA

... PETITIONER V.

THE UNION OF HADEN

... RESPONDENT

CASE CONCERNING CONSTITUTIONAL VALIDITY OF THE CONSTITUTION (O NE HUNDREDTH A ND FIRST A MENDMENT) ACT , 2016

O N SUBMISSION TO THE HON ’BLE CHIEF J USTICE A ND HIS COMPANION JUSTICES OF THE SUPREME COURT OF HADEN

MEMORIAL ON BEHALF THE PETITIONER P AGE 0 MEMORIAL FOR T HE PETITIONER


TABLE OF CONTENTS

NDE X O F AUTHORITIES.............................. THE I NDEX .............................................. ................................ ............................... ............................5-9 .............5-9

THE STATEMENT OF J URISDICTION............................. ........................................... ............................. ............................ ........................1 ...........10 0 THE STATEMENT OF FACTS.............................. .......................................... ............................... .................................... ...........................10-11 ..........10-11 THE STATEMENT OF ISSUES......................... ............................................... ....................................... .............................. ........................13-14 ...........13-14 THE SUMMARY OF ARGUMENTS........................ .............................................. ..................................... ........................... ....................15-16 ........15-16 WRITTEN PLEADINGS.............................................. .................................................................... ............................................ ...........................................17 .....................17 AINTAINABILITY O N M

P ETI TION IN THE PRESENT CASE CASE IS MAINTAINABLE BE FORE THE H H ON ’ ’B LE [I SSUE.1.] T H E W R I T P OURT OF H .................................................................. ............................................ ..................................17 ............17 ADE A DE N ............................................ SUPREME C OURT

[1.1.] A RTICLE 32 OF THE CONSTITUTION OF HADEN GIVES POWER TO THE SUPREME COURT OF HADEN TO ENTERTAIN T HE WRIT PETITION...........................17 [1.2.] PETITIONER HAS L OCUS S TANDI TO SUBMIT THE WRIT PETITION BEFORE

........................................................18 ..........18 SUPREME COURT OF HADEN. .............................................. [1.3.] T HE PETITIONER IS NOT REQUIRED TO EXHAUST ALTERNATIVE REMEDY

ERIT S O N M ERITS

[I SSUE.2.] T H E C ONSTITUTION O NSTITUTION (ON E H UNDREDTH & F I R S T A ME N D ME N T A C T ) 2016 2016 I OLATES T H E P ROVISIONS OF T H E C ONSTITUTION O NSTITUTION OF H AD A D E N V IOLATES E SERVATION PROMOTES POSITIVE DISCRIMINATION ...........................21-22 [2.1.] R ESERVATION

[2.2.] T HE

CONSTITUTION ONE

HUNDREDTH & FIRST AMENDMENT ACT , 2016

VIOLATES ARTICLE 14 OF THE CONSTITUTION. [2.2.1.] ARTICLE 14 IS EQUALITY AMONG EQUALS.

P AGE 1 MEMORIAL FOR T HE PETITIONER


[2.3.] THE IMPUGNED AMENDMENT AFFECTS THE TWIN PRINCIPLES OF MORALE OF PUBLIC SERVICES AND THE FOUNDATION OF GOOD GOVERNANCE AND HENCE IS NOT AGAINST THE INTEREST OF THE NATION. ......................................... 25-26 [2.4.] T HE CONSTITUTION (ONE HUNDREDTH AND FIRST AMENDMENT) ACT , 2016 IS AGAINST T HE PRINCIPLE OF S OCIAL JUSTICE ENSHRINED IN T HE PREAMBLE AND OTHER PROVISIONS OF THE CONSTITUTION. .........................................26 .........................................26 [2.4.1.] THE CONSTITUTION (O NE HUNDREDTH AMENDMENT) ACT , 2016 IS

AGAINST THE PHILOSOPHY OF SOCIAL JUSTICE EMBODIED I N THE PREAMBLE. [2.4.2.] T HE CONSTITUTION (ONE HUNDREDTH AND O NE AMENDMENT ACT ),

2016 IS

AGAINST

JUSTICE?

ULE R ULE

OF

LAW

CONSTITUTION ONE

AND AGAINST THE

HUNDREDTH

AND

PRINCIPLES

OF N ATURAL

O NE AMENDMENT ACT

IS

AGAINST THE SPIRIT OF CONSTITUTION OF HADEN.

[2.5.]

CONSTITUTION

(ONE HUNDREDTH

AND

ONE AMENDMENT ACT),

2016

FORBIDS REASONABLE CLASSIFICATION.

[2.5.1.] T HE 101 TH CONSTITUTIONAL A MENDMENT ACT , 2016

LACKS

NTE LLIG IBLE DIFFERENTIA I NTELLIG

[I SSUE.3.] W H E T H E R T H E

O NSTITUTIONAL A ME M E N D ME N T I S S M AN A N I F E ST L Y 101 ST C ONSTITUTIONAL

P E R V E R S E A N D A R B I T R A R Y ? [3.1.] THE PROVISIONS

IN FAVOUR OF

LC’S AND LG’S

ARE NOT PRIVILEGES BUT

NECESSI NECE SSITY TY.

[3.2.] THE

IMPLEMENTATION

OF

101 ST CONSTITUTIONAL

AMENDMENT

AS

AN

IMPULSIVE REACTION TO PUBLIC UPROAR IS U NJUSTIFIABLE.

THE PRAYER ................................ ............................................ ........................... .......................... ....................... ..................................... .................................30 ........30



INDEX OF AUTHORITIES

C ase Law L awss 1. ABSK Sangh v. Sangh v. Union of India, India , AIR 1981 SC 298. 2. Air India Statutory Corporation v. Corporation v. United Labour Union, Union , AIR 1997 SC 645. 3. Air India v. India v. Nargesh Nargesh Meerza, Meerza, AIR 1981 SC 1829. 4. Ajay Hasia v. Hasia v. Khalid Khalid Mujib, Mujib, (1981) 1 SCC 722. 5. Ajit Singh (II ) v. State of Punjab, Punjab, (1999) 7 SCC 209 : AIR 1999 SC 3471. 6. Akhil Bharatiya Soshit Karmachari Karmachari Sangh (Rly.) v. (Rly.) v. Union of India, India, AIR 1981 SC 298. 7. Ameeroonisa v. Ameeroonisa v. Mahboob Mahboob,, AIR 1953 SC 91. 91 . 8. Andhra Industrial Works v. Chief Controller of Imports and Ors, AIR 1974 SC 1539 ¶ 10. 9. Ashok Kumar Gupta v. Gupta v. State of U.P ., ., (1997) 5 SCC 201. 10. Atam 10. Atam Prakash v. Prakash v. State of Haryana, Haryana, AIR 1986 SC 859 (864). 11. Baburao 11. Baburao v. v. State of Bombay, Housing Board , 1954 SCR 572. 12. Bachan 12. Bachan Singh v. Singh v. State of Punjab, AIR Punjab, AIR 1982 SC 1325. 13. BALCO 13. BALCO Employees Union (Regd.) v. Union of India (2002) India (2002) 2 SCC 333 : AIR 2002 SC 350. 14. Bandhua 14. Bandhua Mukti Mukti Morcha v. Morcha v. Union of India and Ors., Ors., (1984)3 SCC 161. 15. Basheshar 15. Basheshar Nath v. Nath v. Commissioner of Income Tax Rajasthan, Rajasthan , [1959] Supp 1 SCR 528. 16. Budhan 16. Budhan Chaudhary Chaudhary v. State of Bihar, 1995 (1) SCR 1045. 17. C.A Rajendran v. Rajendran v. Union of India, India, AIR 1965 SC 507. 18. Charan La lSahu v. Union of India, India, AIR 1990 SC 1480, ¶ 35. 19. Chattar Singh v. Singh v. State of Rajasthan, Rajasthan, AIR 1997 SC 303. 20. Chiranjit Lal v. v. Union of India , AIR 1951 SC 41. 21. Consumer Education and Research Center v. v. Union of India, India , AIR 1995 SC 922. 22. D.T.C. 22. D.T.C. v. v. Mazdoor Mazdoor Union D.T.C D.T.C ., ., AIR 1991 SC 101. 23. Dalmia 23. Dalmia Cement (Bharat) Ltd . v. UOI , (1996) 10 SCC 104. 24. Dr. 24. Dr. D.C. Wadhwa Wadhwa & Ors. v. Ors. v. State of Bihar &Ors., &Ors., AIR 1987 SC 579. 25. Dwarka 25. Dwarka Prasad v. v. Union of India, (2003) India, (2003) 6 SCC 535. 26. E.V 26. E.V Chinnaiah v. State v. State of AP, AIR 2005 SC 162 : (2004) 4 L.R.I. 705. 27. Excel 27. Excel Wear v. v. Union of India, India , AIR 1979 SC 25 (Para 24). P AGE 3 MEMORIAL FOR T HE PETITIONER


28. Express 28. Express Newspaper P. Ltd. v. Ltd. v. Union of India, India, AIR 1958 SC 578. 29. Federation 29. Federation of All India Customs and Central Excise Stenographers v. Union of India, India , AIR 1988 SC 1291. 30. G.B Paul University of Agriculture Agric ulture and Technology v. State of U.P., U.P., AIR 2000 SC 2695. 31. Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. (2003) Ors. (2003) 7 SCC 546 ¶ 50. 32. In Re In Re Special Courts Bill , AIR 1979 SC 478. 33. In re: Arundhati Roy, AIR Roy, AIR 2002 SC 1375. 34. Indira 34. Indira Sawhney v. Sawhney v. Union of India and Ors., Ors. , AIR 2000 SC 498, Para 7. 35. Indra 35. Indra Sawhney v. Union of India, AIR India, AIR 1993 SC 477. 36. ITO 36. ITO v. v. Murlidhar Murlidhar Bhagwan Das, Das, AIR 1965 SC 342. 37. Jagannath 37. Jagannath Prasad v. v. State of Uttar Pradesh, Pradesh, AIR 1961 SC 1245. 38. Jagdish 38. Jagdish Lal v. State of Haryana, Haryana, (1997) 6 SCC 538 : AIR 1997 SC 2366. 39. Jagdish 39. Jagdish Saran v. Saran v. Union of India, India , AIR 1980 SC 820. 40. Javed 40. Javed v. v. State of Haryana, Haryana, (2003) 8 SCC 369, 380. 41. Joshi 41. Joshi D.D. v. D.D. v. Union of India, India, AIR 1983 SC 420. 42. K. 42. K. Thimmappa v. Thimmappa v. Chairman Central Board of Directors SBI , SBI , AIR 2001 SC 467. 43. K.C 43. K.C Vasant & Anothers Anothers v. v. State of Karnataka ,1985 Karnataka ,1985 AIR 1495. 44. Kailash 44. Kailash Chand Sharma Sharma v. State of Rajasthan, AIR 2002 SC 735 : (2002)6SCC 522. 45. Kasturi 45. Kasturi Lal Lakshmi Reddy v Reddy v.. State of J&K, (1980) J&K, (1980) 4 SCC 1 : AIR 1980 SC 1992.. 46. Kathi 46. Kathi Ranging Rawat Rawat v. v. State of Saurashtra, Saurashtra , AIR 1952 SC 123, 131. 47. Kedar 47. Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404. 48. Kharak 48. Kharak Singh v. Singh v. State of U.P., U.P., AIR 1963 SC 1295. 49. KK 49. KK Kochunni v. Kochunni v. State of Madras, Madras , AIR 1959 SC 725. 50. L.I.C 50. L.I.C of India v. India v. Consumer Education Research centre, (1995) centre, (1995) 5 SCC 108 : AIR 1995 SC 1811. 51. Lingappa 51. Lingappa Pochanna Appelwar v. State of Maharashtra, Maharashtra , (1985) 1 SCC 479 : AIR 1985 SC 389. 52. M. 52. M. Nagaraj & Ors v. Ors v. Union of India & Ors ., AIR 2007 SC 71. 53. Manchegowda 53. Manchegowda v. State of Karnataka, AIR 1984 SC 1151 (Para 22). 54. Maneka 54. Maneka Gandhi v. Gandhi v. Union of India, India, (1978) 1 SCC 248. 55. Mangal 55. Mangal Singh v. Singh v. Union of India, India , (1967) 2 SCR 109 at 112. 56. Minerva 56. Minerva Mills v. Mills v. Union of India, India , AIR 1980 SC 1789 (Para 62, 111).



57. Mohan 57. Mohan Kumar Singhania Singhania v. v. Union of India, India, AIR 1992 SC 1. 58. Mohd. 58. Mohd. Shaheb Mahboob v. Mahboob v. Dy. Dy. Custodian, Custodian, AIR 1961 SC 1657. 59. Morey 59. Morey v. v. Doud, Doud, (1956) (1956) 118 U.S. 356. 60. Nakara 60. Nakara D.S. v. D.S. v. Union of India, AIR India, AIR 1983 SC 130 (Para 33-34). 61. Neera 61. Neera Gupta v. Gupta v. University of Delhi, Delhi, AIR 1997 Del 175. 62. P. 62. P. Rajendran v Rajendran v.. State of Madras, Madras, AIR 1968 SC 1012. 63. P.B. 63. P.B. Roy v. Union v. Union of India, India , AIR 1972 SC 908. 64. P.G.I. 64. P.G.I. of Medical Education & Research, Chandigarh v. K.L. v. K.L. Narasimhan, Narasimhan, (1997) 6 SCC 283. 65. Paradise 65. Paradise Printers v. Printers v. Union Territory, Chandigarh, AIR Chandigarh, AIR 1985 SC 354. 66. Post 66. Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association, Association, (1998) 4 SCC 1. 67. Pradeep 67. Pradeep Jain v. Jain v. Union of India, India, AIR 1984 SC 1420. 68. Punjab 68. Punjab Higher Qualified Qualified Teachers Union v. Union v. State of Punjab, Punjab, (1988) 2 SCC 407. 69. R.C. 69. R.C. Cooper v. v. Union of India, India , AIR 1970 SC 564. 70. R.K.Garg 70. R.K.Garg v. v. Union of India, India, AIR 1981 SC 2138. 71. Raj 71. Raj Pal Sharma v. Sharma v. State of Haryana, Haryana, AIR 1985 SC 1263. 72. Raja 72. Raja Ram Pal v. v. Speaker, Lok Sabha & Ors., Ors ., (2007) 3 S.C.C. 184. 73. Ramana 73. Ramana Dayaram Dayaram Shetty v. Shetty v. International International Airport Authority, Authority, (1979) 3 SCC 498 : AIR 1979 SC 1628. 74. Ramchandra 74. Ramchandra Shankar Shankar Deodhar v. v. State of Maharashtra, (1974) Maharashtra, (1974) 1 SCC 317. 75. Ratnapoorva 75. Ratnapoorva Devi v. Devi v. State of Orissa, Orissa, AIR 1964 SC 1195. 76. S.P. Gupta v. Gupta v. Union of India, India , AIR 1982 SC 149 : 1981 Supp SCC 87. 77. Sadhuram Bansal v. Pulin v. Pulin Behari Sarkar , AIR 1984 SC 1471. 78. Sajjan Singh v. Singh v. State of Rajasthan, Rajasthan, (1965) 1 SCR 933 at 968. 79. Sakhawant Ali v. Ali v. State of Orissa, Orissa, AIR 1955 SC 166, 169. 80. Sheela Barse v. Barse v. UOI UOI AIR AIR 1988 SC 2211. 81. St. Stephen’s College v. College v. University of Delhi, (1992) Delhi, (1992) 1 SCC 558. 82. State of Bombay v. Bombay v. Anwar Anwar Ali Sarkar , AIR 1952 SC 75. 83. State of Bombay v. Bombay v. S.N. Balsara, Balsara, AIR 1951 SC 318. 84. State of Kerala v. Kerala v. N.M N.M Thomas, AIR Thomas, AIR 1976 SC 490. 85. State of Mysore v. Mysore v. P. P. Narasinga Rao, Rao, AIR 1968 SC 349. 86. State of U.P. v. U.P. v. Dr. Dr. Dina Nath Shukla, Shukla, (1997) 9 SCC 662.



87. State of Victoria v. Victoria v. The Commonwealth, Commonwealth , 45 ALJ 251. 88. Suraj Bhan Meena v. Meena v. State of Rajasthan, Rajasthan, (2011) 1 SCC 467. 89. Suraj Mall v. Biswanath v. Biswanath,, AIR 1953 SC 545. 90. Truax v. Truax v. Corrigan, Corrigan, (1921) 257 U.S. 312. 91. U.P. Power Corpn. Ltd . v. Rajesh v. Rajesh Kumar , (2012) 7 SCC 1. 92. Union of India v India v.. Indian Charge Chrome, Chrome , (1999) 7 SCC 314. 93. Yusuf v. State of Bombay, Bombay , AIR.1954 SC 321.

Sta Statute utes The Constitution of India (1950)

I nter nter nati nati onal D ocume cuments 1. European Convention on Human Rights, 213 UNTS 221 2. United Nation Covenant on Civil and Political Rights, 6 ILM 368 (1967) 3. United Nations Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71 (1948)

Books Referred 1. 1 Arvind P Datar, Commentary on the Constitution of India , (2nd ed. 2010). 2. 1 Dr. Subhash C. Kashyap, Constitutional Law of India, India , (1st ed. 2008). 3. 1 H.M. Seervai, Constitutional Law of India, India , (4th ed. rep. 2013). 4. 2 Durga Das Basu, Commentary on Constitution of India, India , (8th ed. 2008). 5. 3 D.J. De, The Constitution of India, India , (3rd ed. 2008). 6. 3 H M Seervai, Constitutional Law of India, India , (4th ed. rep. 2013). 7. 5 Durga Das Basu, Commentary on the Constitution of India , (8th ed. 2008). 8. Anirudh Krishnan & Harini Sudersan, Law Sudersan, Law of Reservation & Anti-Discrimination, Anti-Discrimination, (1st ed., 2008). 9. B Shiva Rao, Framing Rao, Framing of the Indian Constitution Constitution,, (1967). 10. Charles K. Burdick, The Law of the American Constitution, Constitution , (1st ed. 1922). 11. James P. Sterba, Affirmative Sterba, Affirmative Action for the Future, Future, (1st ed. 2009). 12. Jody Feder, Affirmative Feder, Affirmative Action in Employment: A Legal Overview, Overview, in Pamela L. Medina and Jimmy E. Patel, Affirmative Patel, Affirmative Action and Preferential Treatment: Laws and Development , (1st ed. 2012). P AGE 6 MEMORIAL FOR T HE PETITIONER


13. John Alder, Constitutional and Administrative Law, Law , (7th ed., 2009). 14. Justice B. P. Banerjee, Writ Remedies, Remedies, (4th Ed. Rep. 2008). 15. M.P Jain and S.N Jain, Principles Jain, Principles Of Administrative Law, Law, (5th ed., 2008). 16. M.V. Pylee, Constitutional Amendments in India, India , (3rd ed. 2010). 17. Maurice Joly, Dialogue in Hell Between Machiavelli and Montesquieu, Montesquieu, (1st ed. 2003). 18. MP Jain, Indian Jain, Indian Constitutional Law, Law, (5th Ed., 2010). 19. Richard F. Tomasson, Faye J. Crosby and Sharon D. Herzberger, Affirmative Herzberger, Affirmative Action: The Pros and Cons of Policy and and Practice, Practice, (1st ed., 2001). 20. Sir Ivor Jennings, Law Jennings, Law of the Constitution, Constitution, (3rd ed., 1963). 21. T.K. Tope, Constitutional Law of India, (3rd ed. 2010). 22. V.N. Shukla, Constitution of India, (11th ed., 2010). 23. VII Constitutional Assembly Debate.

Article A rticless 1. E.C.S. Wade, “The Courts and the Administrative Process,” Process, ” LQR 63, LQR 63, 164 (1947). 2. G.C.V. Subbarao, “Fundamental Rights in India Versus Power To Amend The Constitution,” Constitution,” 4 Tex. Int’l L.F. 291 L.F. 291 (1968). 3. Giovanni Sartori, “Constitutionalism: A Preliminary Discussion,” Discussion, ” 56 Am. 56 Am. Pol. SC Rev. 853 (1962). 4. Josheph Raz, “The Rule of Law and its Virtue,” Virtue, ” (1977) 93 LQR 195.



THE STATEMENT OF JURISDICTION

THE RESPONDENT HAS BEEN BROUGHT BEFORE THE HON’BLE SUPREME COURT OF I NDIA BY A WRIT PETITION FILED UNDER

ARTICLE 321 OF THE CONSTITUTION OF I NDIA FOR DETERMINING

THE CONSTITUTIONAL VALIDITY OF

THE CONSTITUTION (O NE HUNDREDTH & FIRST

AMENDMENT) ACT, 2016.

1

“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.” P AGE 8 MEMORIAL FOR T HE PETITIONER


THE STATEMENT OF FACTS

Background and religious denomination of the state of Haden .

Haden is positioned on the Portumese subcontinent in south-central Asia. Lots of different religions, cultures, traditions, customs and languages stand alongside. The religious denominations of Binarism, of Binarism, Lariasm Lariasm,, Bhuvanism and Bhuvanism and Charisman occupy Charisman occupy Haden for the most part. 93% of the citizens of Haden associate themselves with a religion while 7% are following atheism.

Role of caste and History of Golos

80% of the citizens of Haden follow Binarism, which religion is divided into four castes viz., Zarakiminn, Zarakiminn, Ashatriyas, Ashatriyas, Kishayas and the Golos Golos The Golos were on the last rung of the society were discriminated to the extent, that they were not even allowed to drink water from the village well and were forced to beg to gain a living, were not allowed to enter the hotels, restaurants, public gardens, temples, bathing ghats, holy rivers, hospitals, educational institutions etc. The bigotry reached a point where the members of the Golos community were completely ostracized out of routine and ordinary life from the very time of their birth.

Post-Independence impact on Golos

Haden was invaded by a foreign power in the year 1800 who capitalized on the sheer lack of unity among the citizens of Haden on account of their religion and caste. Haden gained independence in the year 1947. The Chairman of the drafting committee made it the top priority to elevate the Golos people to the same status as the other castes castes and with the aforementioned agenda on mind included provisions for the upliftment of the Libellus Cult and Libellus Genss ( Hereinafter referred Hereinafter referred to as LC and LG) LG ) who were being subjected to the worst kind of discrimination in society.

In the year 1954 the Parliament passed a bill whereby 8% of the educational seats were reserved in favor of the LC and 5% were reserved in favour of LG. It was the legislative intent of the Parliament from the very beginning that reservations should be abolished by 1975. Over time citing various socio-economic reasons the Hadenian Government extended the reservations time and again.



In an exemplary attempt to achieve equal rights for the LC and LG community the Protection of Civil Rights Act, 1955 was passed whereby discriminating against the so-called backward class was made a punishable offence. In the year 2011 that was observed at most of the LC and LG were receiving receivin g higher education and that they were well represented in the Government departments. Discrimination was seemingly abolished from the cities of Haden however it was believed that contempt was still prevalent in the rural areas covertly. covertly. As late as the year 2015 it was observed that reservation in Government of Haden was prevalent in as much as: Libellus Genss 7.5%, Libellus Cult 15%, 15%, TBC 27%.

Resentment against reservations

It was believed by many citizens of Haden that the maintenance of reservation system was no longer a necessity and that the same has been continued by the Government of Haden as an appeasement policy to secure their vote bank. Haden had maintained its status as a developing country wherein the LC’s and LG’s were facing so cial discrimination. It was true that the condition of the backward classes including LC and LG had improved substantially and they were not facing any pa par ticular ticular econo conom mi c disabi disabi liti li tie es on account of their castes. The year 2015, saw a plethora of suicides committed by students of the general category on account of lack of opportunity due to the presence of reservation policy. In November, 2015 there was a public uproar against reservation followed which the Parliament abolished reservation for LC and LG. The Parliament however, maintained the privileges for the members of the TBC community who were entitled to the same on an as it is where it is basis. In the months following the amendment it was observed that there was a 2% drop in the presence members of the LC and LG community at the graduation and post graduation level however the same was justified by several leaders of the ruling party stating that the academic structure of the new regime was one based on merit and that the Government of Haden strongly maintains its position against caste based discrimination and the same would be severely punished. Ms. Kela Tatuia, filed a PIL before the Supreme Court of Haden stating that the amendment was ultra vires to vires to the Fundamental Rights of the LC & LG community.



THE STATEMENT OF ISSUES

AINTAINABILITY O N M

[I SSUE.1.] THE WRIT PETITION

IN THE PRESENT CASE IS MAINTAINABLE BEFORE THE

HON’BLE SUPREME COURT OF HADEN.

ERIT S O N M ERITS

[I SSUE.2.] THE CONSTITUTION (O NE H UNDREDTH & FIRST AMENDMENT ACT ) 2016 VIOLATES THE PROVISIONS OF THE CONSTITUTION OF HADEN [I SSUE.3.] WHETHER THE 101 ST CONSTITUTIONAL AMENDMENT IS MANIFESTLY PERVERSE AND ARBITRARY?



THE SUMMARY OF ARGUMENTS

O N MAINTAINABILITY ISSUE – ISSUE – 1: 1:

Whether the Writ Petition In the Present Case Is Maintainable before The Hon’ble Supreme Court of Haden in the present case? That it is most humbly submitted before this Hon’ble Supreme Court of Haden that [I.] the writ Petition in the present case is maintainable. [I.A.] Article 32 Of The Constitution Of India Gives Power To The Supreme Court Of India To Entertain The Writ Petition. [I.B.] That the Petitioner has Litigation Competence to Submit the Writ Petition before Supreme Court of Haden. [I.C.] The petitioner is not required to exhaust alternative remedy. A. Remedies available to the petitioner under article 32 is not subject to exhaustion of remedies. B. The Hon'ble court has a constitutional responsibility to see the fundamental rights of the

petitioner are not harassed by Not entertaining the instant petition O N MERITS ISSUE – ISSUE – II: II:

Whether The Constitution (One Hundredth & First Amendment) Act, 2016 violates the provisions Of the Constitution of Haden? Haden? That it is most humbly submitted before this Hon’ble Supreme Court of Haden that [II.] The Constitution (One Hundredth & First Amendment) Act, 2016 violates the provisions Of the Constitution of Haden. That [II.] the Constitution One Hundredth & First Amendment Act, 2016 Violates the provisions of The Constitution Of Haden. That [II.A.] reservation promotes positive discrimination. That [II.B.] the constitution one hundredth & first amendment act, 2016 violate article 14 of the constitution. That A. article 14 is equality among equals. That [II.C.] the impugned amendment affects the twin principles of morale of public services and the foundation of good governance and hence is not against the interest of the nation. That [II.D] the Constitution (One Hundredth and First Amendment) Act, 2016 is against the Principle of Social Justice Enshrined in the Preamble of the Constitution. That a. The Constitution (One Hundredth Amendment) Act, 2016 Is Against The Philosophy Of Social Justice Embodied In The Preamble. A. The Constitution (One Hundredth Amendment) Act, 2016 Is Against The Philosophy Of Social Justice Embodied In The Preamble. B.



Whether constitution one Hundredth and One Amendment Act is against Rule of Law and against the Principles of Natural Justice? Constitution one Hundredth and First Amendment Act is against the spirit of constitution of Haden. [II.E.] Whether constitution one Hundredth and First Amendment Act makes Unreasonable classification. And Further The Impugned Amendment is Without and Study or Reports.



WRITTEN PLEADINGS

The following submissions have been made before the Hon’ble Chief Justice of Haden and the other companion judges of the Hon’ble Supreme Court. The present case is regarding the constitutionality of The Constitution (One Hundredth & First Amendment) Act, 2016. It is humbly submitted before this Hon’ble Court that [1.] The writ petition is maintainable; [2.] the impugned amendment violates the provisions of the constitution. ; [3.] The 101st Constitutional Amendment Is Manifestly Perverse And Arbitrary

O N M AINTAINABILITY

[ISSUE 1.] THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT OF HADEN.

It is humbly submitted that maintainability of writ petition for enforcement of fundamental rights can be questioned only on the grounds of laches, where disputed questions of facts are involved or enforcement of private or contractual rights is sought to be enforced. None of the exceptions mentioned above exists in the present case. The petition has been filed in time, questions of facts are not involved and fundamental rights are sought to be enforced. [1.1.] A RTICLE 32 OF THE CONSTITUTION OF HADEN GIVES POWER TO THE SUPREME COURT OF HADEN TO ENTERTAIN T HE WRIT PETITION.

It is humbly submitted before the Hon’ H on’ ble ble Court that present PIL is maintainable against Union of Haden. The present petition is maintainable under Article 32 of the Constitution since there has been violation of Fundamental Rights. A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement of Fundamental Rights, 2 as guaranteed by part III of the Constitution. 3 The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha v. Abdul Thai2 AIR 1976 SC 1455 and was 2

Art. 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of rights as guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III. 3 Andhra Industrial Works v. v. Chief Controller of Imports and Ors, AIR 1974 SC 1539 ¶ 10; Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. Ors. (2003) 7 SCC 546 ¶ 50; BALCO Employees Union (Regd.) v. (Regd.) v. Union of India (2002) India (2002) 2 SCC 333. P AGE 14 MEMORIAL FOR T HE PETITIONER


initiated in Akhil in Akhil Bharatiya Sosail Karmchari Sangh 4, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redressal of common grievances. As has been established in the facts of the case, the people of the LC & LG community were not allowed to enter hotels, gardens, restaurants etc. and were forced to beg for a living. The bigotry was ‘seemingly’ abolished and covertly present in the rural areas. Reservation areas. Reservation were made in their favour to uplift them to the extent where they would be considered as equals in the society. Repealing such provisions has resulted in violation of equality which ultimately violates their Fundamental Right. State under constitutional obligation to ensure that there is no violation of fundamental rights of any person particularly weaker sections of society. 5 Article 32 provides right to any member of the public, acting in a bona fide manner, to approach the Supreme Court in case of violation of fundamental rights, for the benefit of the societ y at large. The Amendment Act in question is violative of right to equality ensured as a fundamental right under Articles 14, 15, 16 of the constitution. Thus in the present case, by virtue of power conferred under Article 32 of the constitution Supreme Court has jurisdiction to entertain the Public Interest Litigation. Supreme Court in Guruvayur Devaswom Managing Committee v. C.K. Rajan, Rajan ,6 has observed that any member of public having sufficient interest may maintain writ petition by way of Public Interest Litigation provided there is an injury to a disadvantaged section of the population for whom access to legal justice system is difficult.7 [1.2.] PETITIONER HAS LOCUS STANDI TO SUBMIT THE WRIT PETITION BEFORE SUPREME COURT OF HADEN.

Every citizen possesses a broader right to criticize the systematic inadequacies in the larger public interest.8 Furthermore, whenever there is a public wrong or public injury caused by an

4

Akhil Bharatiya Soshit Karmachari Sangh (Rly.) v. (Rly.) v. Union of India, India, AIR 1981 SC 298. Bandhua Mukti Morcha v. Morcha v. Union of India and Ors., Ors., (1984)3 SCC 161. 6 Guruvayur Devaswom Managing Committee &Anr. v. v. C.K. Rajan & Ors., Ors. , AIR 2004 SC 561; see 561; see also Justice also Justice th B. P. Banerjee, Writ Remedies, (4 ed. rep. 2008). 7 See also BALCO Employees Union (Regd.) v. Union of India &Ors., &Ors ., AIR 2002 SC 350; Dr. D.C. Wadhwa & Ors. v. Ors. v. State of Bihar &Ors., &Ors., AIR 1987 SC 579. 8 Sheela Barse v. Barse v. UOI UOI AIR AIR 1988 SC 2211; In re: Arundhati Roy, AIR Roy, AIR 2002 SC 1375. 5



act or omission of the State or a public authority which is contrary to the Constitution or the law any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such wrong or public injury. 9 In the present case, the enactment of the 101 st Constitutional Amendment has gone against the interests of the people of the LC * LG community, thus the petition has been filed with the view of safeguarding the interests of the LC’s * LG’s at large and ventilating their grievances regarding the issue of public importance that goes against their social gratification and basis for affirmative action. Also, under the well-established doctrine of Parens of Parens Patriae, Patriae, it is the obligation of the State to protect and take into custody the rights and the privileges of its citizens for discharging its obligations.10 In the case of S.P .Gupta v. .Gupta v. Union of India and Others. 7 J. Bhagwati, quoted: “ Any member me mber of the public having sufficient interest can maintain an action for judicial redress for public inquiry arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision .” Again in the same case of S .P. Gupta v. Gupta v. President President of India and Others. 8, for the first time an issue was raised regarding “ locus standi of lawyers to file fil e a writ petition by the way of Public Interest Litigation” Bhagwati, further observed on the need of PIL: “ If public duties are to be enforced and social collective “diffused” rights and interest are to be protected, we have to utilize the initi ative and zeal of public minded persons and organizations by allowing them to move the court and act for a general or group interest, even though, they may not be directly injured in their own rights.” Again in case of M/s J. Mohapartra & Co. v. Orissa, that to-day “the law with respect to locus standi has considerably advanced ” advanced ” and “in “in the case of public interest litigation it is not necessary that a petitioner should himself have a personal interest in the matter .” .” Petitioner being a responsible advocate concerned with social welfare and right to equality of 9

S.P. Gupta v. Gupta v. Union of India, India , AIR 1982 SC 149 : 1981 Supp SCC 87. CharanLalSahu v. Union of India, India , AIR 1990 SC 1480, ¶ 35.

10



the people of LC * LG community has challenged such legislation which is violative of right to equality. The past action and the present concern of petitioner are evident of his bona fide interest in the matter. Hence in the present case, Petitioner has locus standi to approach the Supreme Court. Therefore, the common rule of locus standi should be relaxed and raising question on the maintainability of the petition should be barred for the better interest of the people. In the case of Bandhua Mukti Morcha v. Union of India, 11 it has been clearly held in plain language of Clause (1) of Article 32 that “whenever there is a violation of a fundamental right anyone can can move to the Supreme Court for enforcement of such Fundamental Right.” Furthermore, Justice Krishna Iyer has eloquently enumerated the following reasons for liberalization of the rule of Locus Standi:1. Exercise of State of power to eradicate corruption may result in unrelated interference with individuals’ right. 2. Social justice wants liberal judicial reviews administrative action. 3. Restrictive rules of standings are antithesis to a healthy system of administrative action. 4. Activism is essential for participative public justice. The framers of the constitution had made the upliftment of Golos as their top priority for their equality in the society. Removing the provisions made in the favor of LC and LG community amounts to aberration of equality, hence going against the entire framework of the constitution. ORDER XXXVIII •• •• APPLICATIONS FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS (ARTICLE 32 OFTHE CONSTITUTION) 12. (I) A Public Interest Litigation Petition may commence in an y of the following manners: (c) by an order of the Court to treat a petition as a Public Interest Litigation Petition. (d) by presentation of a petition in the Court. (3) The Court may impose exemplary costs on the petitioner(s) if it finds that the petition was frivolous or instituted with oblique or mala fide motive or lacks bona fides. [1.3.] T HE PETITIONER IS NOT REQUIRED TO EXHAUST AN ALTERNATIVE REMEDY

11

Bandhua Mukti Morcha v. Morcha v. Union of India, India, AIR 1984 SC 802. P AGE 17 MEMORIAL FOR T HE PETITIONER


This is because, if petitioners were first made to approach the High Court under Art 226 in case of a violation of Fundamental Rights, they cannot further file another petition under Art 32 as the principle of Res of Res Judicata applies. Judicata applies. The rule of exhaustion of remedies is not binding on this Hon'ble court When a breach of fundamental right is made in the petition there the provisions of other remedies do not stand in the way of exercising power under Art. 32 of the Constitution of Haden. It was held in the case of Coffee Board v. Jt. v. Jt. Commercial Tax Officer,12 It is wholly erroneous to assume that before the jurisdiction of the Supreme Court could be invoked the applicant must either establish that he has no other remedy adequate or otherwise or that he has exhausted such remedies as the law affords and has yet not obtained proper redress, for when once it is proved to the satisfaction of the Supreme Court that by state action the fundamental right of a petitioner under Art. 32 has been infringed, it is not only the right but also the duty of the Supreme Court to afford him by passing appropriate order in that behalf.13 The mere existence of an adequate alternative legal remedy cannot per se be a good and sufficient ground for throwing out a petition under Art.32 if the existence of a fundamental right and breach, actual or threatened, of such right and and is alleged prima prima facie established on the petition.14 The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has been interpreted broadly and as one that exists exis ts independent of any other remedy that may ma y be available. Such instant litigation where the right to equality was infringed without any rhyme and reasons, thus, relief may not be denied on mere te chnical grounds even if available. “justice should not only be done but it should be manifested and undoubtedly seen to be done”

12

7AIR 1971 SC 870 at p. 877, ¶ 16. Kharak Singh v. Singh v. State of U.P., U.P., AIR 1963 SC 1295. 14 KK Kochunni v. Kochunni v. State of Madras, Madras, AIR 1959 SC 725. 13



O N M ERITS ERIT S [ISSUE.2.] THE CONSTITUTION ONE HUNDREDTH & FIRST AMENDMENT ACT , 2016 VIOLATES THE PROVISIONS OF THE CONSTITUTION OF HADEN

It is contended before contended before this Hon’ble Court that Reservation is Reservation is a means of ensuring education to the socially and educationally backward castes. The system of reservation in Haden is a form of positive positive discrimination. Repealing discrimination. Repealing the system of reservations has resulted violations made under Articles 14. 15 & 16 which provide for certain provisions which have been made to ensure equality in the state of Haden. Pandit Jawaharlal Nehru, who presided over the Congress Expert Committee emphasized before the Constituent Assembly that the removal of socio-economic inequalities was the highest priority. He believed that only this could make India a casteless and classless society, without which the Constitution will become useless and purposeless. 15 Regarding equality, Dr. Ambedkar stated in the Constituent Assembly 16 : “…We must begin by acknowledging the fact th at there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against against many who live in abject poverty.” Reservation is one of the many tools that are used to preserve and promote the essence of equality, so that disadvantaged groups can be brought to the forefront of civil life. It was only to ensure equality in the state of Haden that these provisions of reservations were made for the people of the LC * LG community. The sole purpose behind this was to bring them to the forefront of civil life and salvage them from the glitches glitches of discrimination. It is also the duty of the State to promote positive measures to remove barriers of inequality and enable diverse communities to enjoy the freedoms and share the benefits guaranteed by the Constitution.. To cope with the modern world and its complexities and turbulent problems, education is a must and it cannot remain cloistered cloist ered for the benefit of a privileged few. fe w. 15

II Constituent Assembly Debates 317 (Wednesday, January 22, 1947) XI Constituent Assembly Debates 979 (Friday, November 25, 1949)

16



As is evident from the facts, there was a 2% drop in the presence of people from the LC * LG community at the graduation and post graduation level. This pushed to them back to the dark times they were already into. Judge Lauterpacht of the International Court of Justice, writing in 1945, described the importance of the principle of equality in the following words:“The claim to equality before the law is in substantial sense the most fundamental of the rights of man. It occupies the first place in most written constitutions. It is the starting point of all other liberties.”17 Dr. Rajendra Prasad, at the concluding address of the Constituent Assembly, stated in the following words:“…To all we give the assurance that it will be our endeavour to end poverty and squalor and its companions, hunger and disease; to abolish distinction and exploitation and to ensure decent conditions of living. We are embarking on a great task. We hope that in this we shall have the unstinted service and co-operation of all our people and the sympathy and support of all the communities...” 18 Article 14 permits classification but prohibits class legislation. The varying needs of individual often require separate treatment.19 Article 14 applies where equals and unequal’s are treated differently without any reasonable basis. Repealing provisions of reservations has clearly gone against the aforementioned article as it treats unequal individuals as equals. E SERVATION PROMOTES POSITIVE DISCRIMINATION [2.1.] R ESERVATION

It is most humbly submitted before this Hon’ble Court of Haden that equality is a positive concept. Widening the concept of fairness inherent in the guarantee of equality under Article 14, the Supreme Court has come to hold that the Court would not only strike down a law on the

17

Lauterpacht, An Lauterpacht, An International Bill of the Rights of the Man (New Man (New York, Columbia University Press, 1945) V Constituent Assembly Debates 2 (Thursday, the 14th August 1947) 19 Chitranjit Lal v. v. Union of India, India, AIR 1951 SC 41. 18



ground of absence of reasonableness of the classification made by it, but would conversely, uphold a law which makes a ‘protective discrimination’. 20 The doctrine of positive or affirmative action has been deduced from the ‘equal protection’ clause of Article 14.21 State is empowered for positive discrimination.22 Protective Discrimination in favour of SCs and STs is a part of constitutional scheme of social and economic justice to integrate them into the national mainstream so as to establish an integrated social order with equal dignity of person. 23 Article 14 enjoins the State to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, in order to bring about real equality. 24 Such affirmative action though apparently discriminatory in nature is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality 25 with more powerful sections so that each member of the community may enjoy equal opportunity of using to the full his natural endowments. 26 The result of an intended affirmative action by the legislature may or may not result in positive discrimination of the masses.27 Court would uphold the reservation to a reasonable extent to protect and further the aspirations 28 of backward classes. 29 The State in the present case, by strucking off reservation has created a fear in the minds of the people of the LC * LG community. To treat unequals differently according to their

20

D.T.C. v. D.T.C. v. Mazdoor Mazdoor Union D.T.C ., ., AIR 1991 SC 101. Indra Sawhney v. Union of India, AIR India, AIR 1993 SC 477. 22 Ashok Kumar Gupta v. State of U.P., U.P. , (1997) 5 SCC 201; Jagdish 201; Jagdish Lal v. State of Haryana, Haryana , (1997) 6 SCC 538; State of U.P. v. U.P. v. Dr. Dr. Dina Nath Shukla, Shukla, (1997) 9 SCC 662. 23 P.G.I. of Medical Education & Research, Chandigarh v. Chandigarh v. K.L. K.L. Narasimhan, Narasimhan, (1997) 6 SCC 283. 24 St. Stephen’s College v. College v. University of Delhi, (1992) Delhi, (1992) 1 SCC 558. 25 Supra note 21 26 Pradeep Jain v. Jain v. Union of India, India , AIR 1984 SC 1420; Jagdish Saran v. Saran v. Union of India, India, AIR 1980 SC 820. 27 Richard F. Tomasson, Faye J. Crosby and Sharon D. Herzberger, Affirmative Action: The Pros and Cons of Policy and Practice, (1st ed. 2001). 28 Lingappa Pochanna Appelwar v. v. State of Maharashtra, Maharashtra, (1985) 1 SCC 479. 29 Pradeep Jain v. Jain v. Union of India, India , AIR 1984 SC 1420. 21



inequality is not only permitted but required. 30 Affirmative action is inevitable in a society deeply driven by social inequalities created over hundreds of years by the caste system. 31 While interpreting Article 16(4) and Article 16(4A), the Court should keep in mind that there are other provisions, namely, Article 14, 16(1) and 335 which are also important so that there is no reverse discrimination.32 Article 16(4) and Article 16(4A), in the present case, are construed by the Parliament in such a manner that balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to such classes. 33 The impugned constitutional amendment hag ignored all the aforementioned considerations while repealing the provisions of reservations in the present case. In the words of India’s National Commission for Scheduled Castes and Scheduled Tribes, “All the measures taken were not found to t o be effective enough in curbing the incidents i ncidents of atrocities on Scheduled Castes Castes and Scheduled Tribes.” 34

[2.2.] T HE

CONSTITUTION

(ONE HUNDREDTH & FIRST AMENDMENT ACT ), 2016

VIOLATES ARTICLE 14 OF THE CONSTITUTION.

Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights.35 Article 14 embodies within it the Dicean concept of the ‘Rule of Law’36, which means inter alia an alia an equal subjection of all classes to the ordinary law of the land.37 This also exemplifies the concept of equal protection of the law. 38 Equal protection means the absence of any arbitrary discrimination by the laws themselves or in their administration.39

None should be favoured 40 and none should be placed under any

30

Supra note 24 Jody Feder, Affirmative Action in Employment: A Legal Overview, in Pamela L. Medina and Jimmy E. Patel, Affirmative Action and Preferential Treatment: Laws and Development, 57 (1st ed. 2012). 32 Ajit Singh (II ) v. State of Punjab, Punjab, (1999) 7 SCC 209. 33 Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty v. Faculty Association, Association , (1998) 4 SCC 1. 34 Report of the National Commission for Scheduled Castes and Scheduled Tribes, Fourth Report: 1996-1997 and 1997-1998, Volume I, 232. 35 Yusuf v. State of Bombay, Bombay, AIR.1954 SC 321. 36 Josheph Raz, The Rule of Law and its Virtue, (1977) 93 LQR 195. 37 Bachan Singh v. Singh v. State of Punjab, AIR Punjab, AIR 1982 SC 1325. 38 Article 7, United Nations Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71 (1948); Article 14, United Nation Covenant on Civil and Political Rights, 6 ILM 368 (1967); Article 14, European Convention on Human Rights, 213 UNTS 221. 39 Charles K. Burdick, The Law of the American Constitution, 605 (1st ed. 1922). 31



disadvantage in circumstances that do not admit of any reasonable justification for a different treatment.41 The principle guiding Article 14 is that there should not be discrimination between one person and another, if as regards the subject matter of the legislation their position is the same, 42 or in other words, its action must not be arbitrary but must be based on some valid principle which itself must not be irrational or discriminatory. 43 If the State leaves the existing inequalities, untouched by the laws, it fails in its duty of providing equal protection of the law to all persons.44 [2.2.1.] ARTICLE 14 IS E QUALITY AMONG EQUALS.

Our Constitution is wedded to the concept of equality and equality is a basic feature. 45 Equality before law means that among equals the law should be equal and equally administered, that like should be treated alike. 46 Therefore, equal laws can be applied only to those in similar circumstances.47 Article 14 does not prohibit reasonable classification. The Supreme Court has laid down the test to check if a classification is reasonable or not. It has been held in a number of cases that for a classification cl assification to be reasonable,48 it should firstly, be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and secondly, the differentia must have a rational relation to the object sought to be achieved by the Act. Also in the case, Maneka case, Maneka Gandhi v Gandhi v.. Union of India, India ,49 the Supreme Court held that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. This principle was reiterated in Ramana Dayaram Shetty v. v. International Airport Authority Authority,,50 Kasturi Lal Lakshmi Reddy v. State of J&K 51 and Ajay and Ajay Hasia v. Khalid Mujib. Mujib.52

40

Morey v. Morey v. Doud, Doud, (1956) (1956) 118 U.S. 356. Truax v. Truax v. Corrigan, Corrigan, (1921) 257 U.S. 312. 42 Chiranjit Lal v. v. Union of India , AIR 1951 SC 41; Neera 41; Neera Gupta v. Gupta v. University of Delhi, Delhi, AIR 1997 Del 175. 43 Ramana v. I.A.A. v. I.A.A.,, AIR 1979 SC 1628; Kasturi 1628; Kasturi v. v. State of Jammu and Kashmir , AIR 1980 SC 1992. 44 Supra note 24 45 Supra note 21. 21 . 46 Sir Ivor Jennings, Law of the Constitution, 49 (3rd ed. 1963). 47 V.N. Shukla, Constitution of India, 46 (11th ed. 2010). 48 R.K.Garg v. R.K.Garg v. Union of India, India , AIR 1981 SC 2138; In Re Special Courts Bill , AIR 1979 SC 478; Air India v. Nargesh Meerza, Meerza, AIR 1981 SC 1829; R.C. Cooper v. Union of India, India, AIR 1970 SC 564; Ameeroonisa v. Mahboob, Mahboob, AIR 1953 SC 91; 91 ; K. Thimmappa v. Thimmappa v. Chairman Central Board of Directors SBI , SBI , AIR 2001 SC 467. 49 Maneka Gandhi v. Gandhi v. Union of India, India, (1978) 1 SCC 248. 50 Ramana Dayaram Shetty v. Shetty v. International International Airport Authority, Authority, (1979) 3 SCC 498. 51 Kasturi Lal Lakshmi Reddy v Reddy v.. State of J&K, (1980) J&K, (1980) 4 SCC 1. 52 Ajay Hasia v. Hasia v. Khalid Khalid Mujib, Mujib, (1981) 1 SCC 722. 41



To test whether the 101th Constitutional Amendment Act, 2016 is in violation of right to equality, the test of reasonable classification and arbitrariness have to be applied. When applied, it is evident that the impugned section is a violation of Article 14. Reservation has historically been a necessity in the Haden society which has the malady of being caste-ridden. In such a situation, the Act has erroneously struck down every section in the constitution for the welfare of the LC and LG community without providing any alternative remedy. The impugned amendment boast of striking down the caste deeply penetrated in the society of Haden In M. In M. Nagaraj v. Union of India, India ,53 the Supreme Court required the State to demonstrate the backwardness of SC/ST beneficiaries every time quotas in promotions were provided for under Article 16(4A). To appreciate the error of the Supreme Court in Nagaraj, Nagaraj, it is important to understand the difference in the constitutional status of the SCs/STs and Other Backward Classes (OBCs). After the judgment in Indra Sawhney v. Union of India, India ,54 individuals in the ‘creamy layer’ of OBCs could not be the beneficiaries of the reservation policy. However, the Supreme Court in Indra Sawhney55 explicitly held that no such exclusion would be applicable to the SCs/STs. Such difference in treatment is due to the composition of groups and the nature of marginalisation they suffer from. The basis on which these two groups, SC/STs and OBCS, were created is normatively different and it would not make any sense to apply the same test of exclusion to both groups. 56 In the report published, the Government of India’s National Commission for Scheduled Castes and Scheduled Tribes states that “...even after 50 years of Inde pendence Inde pendence Untouchability has not been abolished as provided in Article 17 of the Constitution & incidents continued to be reported." 57 Therefore, the Supreme Court’s suggestion in M. Nagaraj,58 that the SC/ST beneficiaries of quotas in promotions must be ‘backward’ is without constitutional merit. The constitutional position is that all SCs/STs are deemed to be backward and there cannot be a further

53

M. Nagaraj & Ors v. Ors v. Union of India & Ors., Ors ., AIR 2007 SC 71. Supra note 21. 21 . 55 Supra note 21 56 2 Durga Das Basu, Commentary on Constitution of India, 1402 (8th ed. 2 008). 57 National Commission for Scheduled Castes and Scheduled Tribes, Fourth Report: 1996-97 and 1997-98, New Delhi, 1998, 232. 58 Supra note 53 54



determination of ‘backwardness’ among them. 59 The 117th Constitution Amendment Bill rightly seeks to do away with the confusion created by the judgment in M. Nagaraj,60 by clarifying that all SCs/STs are deemed to be backward. [2.3.] THE IMPUGNED AMENDMENT AFFECTS THE TWIN PRINCIPLES OF MORALE OF PUBLIC SERVICES AND THE FOUNDATION OF GOOD GOVERNANCE AND HENCE IS NOT AGAINST THE INTEREST OF THE NATION.

The programme of reservation may sacrifice merit, but does not in any way sacrifice competence because the beneficiaries under Article 16(4) have to possess the requisite qualification and eligibility and have to compete among themselves though not with the mainstream of candidates.61 The rule of adequate representation is Article 16(4) for backward classes and rule of adequate representation in promotions for SC/STs under Article 16(4A) do not adversely affect the efficiency in administration.62 The maintenance of efficiency in administration is implicit in Article 14 and 16 even in regard to the claim of backward classes and even for backward classes, reservation can be made only if it does not undermine efficiency in a dministration.63 In the matter of due representation in service for Backward Classes, maintenance of efficiency of administration is of paramount importance. 64 It is just and reasonable procedure prescribed to achieve the constitutional objectives of equality of status and opportunity and dignity of person to integrate them in the mainstream of national life as per the arch of the Constitution, 65 i.e., the Preamble, Articles 14, 15, 16 and 46 and all other related articles of the Constitution consistent with the efficiency of the administration envisaged under article 335 of the Constitution. 66

59

P. Rajendran v Rajendran v.. State of Madras, Madras , AIR 1968 SC 1012. Supra note 53 61 2 Durga Das Basu, Commentary on Constitution of India, 1402 (8th ed. 2 008). 62 Ajit Singh II v. v. State of Punjab, Punjab , AIR 1999 SC 3471. 63 2 Durga Das Basu, Commentary on Constitution of India, 1402 (8th ed. 2 008). 64 Supra note 62 65 1 Dr. Subhash C. Kashyap, Constitutional Law of India, (1st ed. 2008). 66 Jagdish Lal v. v. State of Haryana, Haryana , AIR 1997 SC 2366. 60



It would be necessary to take into account de facto inequality which exists in the society and to take affirmative action by giving preferences and making reservations in promotions in order to bring about equality. equalit y.67 Protective Discrimination envisaged in articles 16(4) and 16(4A) is the amount to establish the equilibrium between equality in law and equality in results as a fact to the disadvantaged.68 The principle of reservation provides equality in results. 69 Representation of the various socially and economically backward communities is essential in a public service. 70 This is because if the backward communities are not adequately represented then the voices of thei r concerns are unlikely to reach the ears of o f the State.71 Moreover, reservation is not permissible where high level of skill, intelligence and excellence required, like defence services, technical posts, specialities in medicine, atomic energy, space research etc.72 This is good governance on part of the State and is within the national interest as the State is providing support to these communities in the time of need as not only that their chances of promotion now increase, the chances of promotion cannot still be claimed as a right in the light of Dwarka Prasad v. Union of India. 73 Once, representation is ensured of these communities via new Article 16(4A), their upliftment becomes a lot more probable. [2.4.] T HE CONSTITUTION (ONE HUNDREDTH AND FIRST AMENDMENT) ACT , 2016 IS AGAINST T HE PRINCIPLE OF S OCIAL JUSTICE ENSHRINED IN T HE PREAMBLE AND OTHER PROVISIONS OF THE CONSTITUTION.

That it is most humble submitted that social justice is fundamental right. 74 The Preamble delineates the contours in accordance with which our Constitutional machinery has to function. 75 It enlists the goals which our Constitution intends to achieve. This fact can

67

James P. Sterba, Affirmative Action for the Future, (1st ed. 2009). 1 H.M. Seervai, Constitutional Law of India, (4th ed. rep. 2013). 69 Supra note 22 70 1 Dr. Subhash C. Kashyap, Constitutional Law of India, (1st ed. 2008). 71 T.K. Tope, Constitutional Law of India, (3rd ed. 2010). 72 Supra note 21 73 Dwarka Prasad v. Union of India, (2003) India, (2003) 6 SCC 535; relying on Ramchandra Shankar Deodhar v. v. State of Maharashtra, (1974) Maharashtra, (1974) 1 SCC 317. 74 Supra note 22 (para26). 22 (para26). 75 State of Victoria v. Victoria v. The Commonwealth, Commonwealth , 45 ALJ 251. 68



be appreciated only by looking into the history of the framing of our Preamble. 76 Not only was the Constitution framed in light of the Preamble 77 but the Preamble was finally adjusted so as to bring it in conformity with the Constitution. 78 The draft Preamble was considered by the Constituent Assembly on October 17, 1949. 79 Shiva Rao observes that “The object of putting the Preamble last was to see that it was in conformity with the constitution as accepted.”80 In the end, the words “give to ourselves this Constitution” 81 was added so as to clearly show that the people are who have given a charter for their governance, in the Constitution, and the goals of which have been clearly mentioned in the Preamble to the Constitution.82 The grand vision and the objective behind making of the constitution are reflected in the Preamble.83 It lays down the ideas that our forefathers after years of struggle for freedom wanted to achieve.84 The desires, the hopes and the aspiration of the people of this country are materialized in the form of the Preamble by the constitutional framers. 85 The Indian Constitution was not only looked to be an alliance between democracies and dynasties, but a real union of Indian people, built on the basic concept of Sovereignty. 86 The constitution and the Preamble were drafted in light and direction of the Objective resolution where the Constitutional Assembly declared India as an Independent Sovereign republic. 87 Therefore the basic tenants of the constitution were made in light of this idea of the preamble which in turn was drafted after the Constitution. [2.4.1.] THE CONSTITUTION (O NE HUNDREDTH AMENDMENT) ACT , 2016 IS

AGAINST THE PHILOSOPHY OF SOCIAL JUSTICE EMBODIED I N THE PREAMBLE.

76

Basheshar Nath v. Nath v. Commissioner of Income Tax Rajasthan, Rajasthan , [1959] Supp 1 SCR 528. Atam Prakash v. Prakash v. State of Haryana, Haryana , AIR 1986 SC 859 (864). See also Excel Wear v. v. Union of India, India , AIR 1979 SC 25 (Para 24). 78 B. Shiva Rao, “Framing of the Indian Constitution” , (1967). 79 Supra note 78 p.127. 80 Supra note 78 p.131. 81 Supra note 78 p.132. 82 1, Story, Commentaries On The Constitution Of The United States 444 (1883). 83 Sajjan Singh v. Singh v. State of Rajasthan, Rajasthan, (1965) 1 SCR 933 at 968. 84 Lord Thring, Practical Legislation, Chapter IV (2nd ed. 1902). 85 Mangal Singh v. Singh v. Union of India, India , (1967) 2 SCR 109 at 112. 86 B. Shiva Rao, Framing of the Indian Constitution, (1967) at 130. 87 III, Constitutional Assembly Debates, 399-436. 77



Our Constitution is a social document. It is based on Social Philosophy and every social philosophy has two main features i.e., basic and circumstantial. The former remains constant and the latter is subject to change according to the needs of the society. Social justice is the recognition of greater good to a larger number without deprivation of the legal rights of anybody. 88 According to this concept, the court leans in favour of the weaker sections of the society. 89 The constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps with which the backward sections are languishing and secure dignity of their person. 90 Social justice aims to remove social imbalance by law, harmonizing the rival interests of different sections in the social structure, in order to build a Welfare State.91 The meaning of the expression is also brought out by Article 46 92 which aims at protecting the weaker sections from social injustice.93 The words of the Preamble enjoin the State to enact positive measures for the protection of weaker sections of the community. 94 Social justice is a fundamental right. 95 Therefore, the doctrine of equality as embodied in Articles 14 to 18 has to be understood in light of the social justice assured by Articles 38, 39, 39A, 41, and 46 of Part IV of the Constitution. 96 Preamble read with Art. 14 strike down a statute which failed to achieve the socialist goal to the fullest extent.97 The impugned Amendment Act in this case is against the directive of social justice as enshrined in the Preamble and Part III read with Part IV of the Constitution. Therefore, it is a constitutionally ultravires.

88

G.B Paul University of Agriculture and Technology v. State of U.P., U.P. , AIR 2000 SC 2695. Sadhuram Bansal v. Pulin v. Pulin Behari Sarkar , AIR 1984 SC 1471. 90 Consumer Education and Research Center v. v. Union of India, India , AIR 1995 SC 922. 91 Dalmia Cement (Bharat) Ltd . Ltd . v. UOI , (1996) 10 SCC 104; Air 104; Air India Statutory Corporation v. Corporation v. United Labour Union, Union, AIR 1997 SC 645. 92 Provisions in this regard are also made in Articles 15(4), 16(4), 19 (1)(d)-(e), 275, 330, 335, The Constitution of India (1950). 93 Sadhuram Bansal v. Pulin v. Pulin Behari Sarkar , AIR 1984 SC 1471. 94 Lingappa Pochanna Appelwar v. v. State of Maharastra, Maharastra, AIR 1985 SC 389; Indra Sawhney v. Sawhney v. Union of India, India , AIR 1993 SC 477. 95 Ashok Kumar Gupta v. Gupta v. State of U.P ., ., (1997) 5 SCC 201. 96 Supra note 21. 21 . 97 Nakara D.S. v. D.S. v. Union of India, AIR India, AIR 1983 SC 130 (Para 33-34); see also Minerva Mills v. Mills v. Union of India, India , AIR 1980 SC 1789 (Para 62, 111). 89



It is submitted that the Preamble indicates that the Constitution comes from the People of India. It contains an enacting clause which brings into force the Constitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all citizens and the basic type of government government and polity which was to be established. established. It is brought to the notice of this Court that the Constitution-makers after making immense sacrifices for achieving certain ideals have inserted Part III and IV so, they cannot provide for provisions taking away those ideals. 98

[2.4.2.] WHETHER CONSTITUTION ONE HUNDREDTH AND O NE AMENDMENT ACT IS AGAINST

ULE OF LAW AND AGAINST THE PRINCIPLES OF N ATURAL J USTICE? R ULE

CONSTITUTION ONE

HUNDREDTH

AND

O NE AMENDMENT ACT

IS AGAINST THE

SPIRIT OF CONSTITUTION OF H ADEN.

The doctrine of classification is subsidiary rule to give effect to the doctrine of equality, overemphasis on this doctrine or anxious or sustained attempt to discover some basis of for classification may gradually and imperceptibly erode the profound potency of the glorious content of equality

99

.But here in vide reference to this case the amendment is envisaging the

fear among backward classes and thereby which put a question mark in the basic spirit of Constitution which is uprooted on the hallmark principles of justice ,equality and liberty . Thereby the amendment is against spirit of Constitution of Haden. That the basis behind the laws of equality is that they serve a better purpose than what they are actually meant to do. The better purpose is called “Justice”. After all, justice is one thing that is common for all before the government. [2.5.] W HETHER MAKES

CONSTITUTION ONE

UNREASONABLE

HUNDREDTH

CLASSIFICATION.

AND

AND

FIRST AMENDMENT ACT

FURTHER

T HE

IMPUGNED

E PORTS. AMENDMENT IS WITHOUT AND STUDY OR R EPORTS

It is most Humbly submiited before this Hon’ble court that the classification was based on intelligible differentia, and the differentia was differentia was based on a rational relation to achieve equality in this society. The differential must have a rational relational to the object sought to be achieved by the statute in question. 100 The 101 Amendment is arbitrary and is based on no

98

Supra note 21 L.I.C of India v. India v. Consumer Education Research centre, (1995) centre, (1995) 5 SCC 108. 100 Budhan Chaudhary v. State of Bihar, 1995 (1) SCR 1045.

99



reasoning whatsoever it on one hand struck down the articles for the welfare of the LC and LG community but has upheld reservation for TBC community. When therefore, a law is challenged as offending against the guarantee in Art. 14, the first duty of the court is to examine the purpose and policy of the Act and then to discover whether the classification made by the law has a reasonable relation to the object which the legislature seeks to obtain.101 The purpose or object of the Act is to be ascertained from an examination of its ‘title, preamble and provisions’. 102 Further classification should be based upon empirical study or survey conducted by the state. It should be based on scientific study and collection of relevant data.103 In the view of the provisions in Art. 15(4), 16(4) and 46, Scheduled caste and scheduled Tribes must be considered to constitute a separate class, so that legislative measures for their benefit must be upheld as valid.104 It is most humbly submitted before this Honble SUPREME COURT that the amendment one hundred one lacks reasonable classification..Reasonable classification depends on the object of legislation in view and whatever has a reasonable relation to that object .Classification should be based on empirical study or survey conducted by the state

105

. It should be based on scientific

study and collection of relevant data.

the State is not competent to to make an order under Art. 15(4) unless a Commission has been appointed under Art. 340(1) and a copy of the report of the said Commission is laid before the House of Parliament under Art. 340(3). It was held in M. Nagaraj & Others vs. Union of India106 “Since the representation of the scheduled castes and the scheduled tribes in services in the States have not reached the required level, it is necessary to continue the existing dispensation of providing reservation in promotion in the case of the t he scheduled castes and the scheduled tribes.” tribes.”107

[2.5.1.] CLASSIFICATION LACKS I NTE LLIG IBLE DIFFERENTIA

101

Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404; P.B. 404; P.B. Roy v. Union v. Union of India, India , AIR 1972 SC 908. Supra note 101 103 Kailash Chand Sharma v. State of Rajasthan, AIR 2002 SC 735. 104 Manchegowda v. State of Karnataka, AIR 1984 SC 1151 (Para 22). 105 Supra note 103 106 Supra note 39. 107 M.V. Pylee, Constitutional Amendments Amendments in India, (3rd ed. 2010). 102



Article 14 forbids class legislation but does not forbid reasonable classification for the purpose of legislation.108 The correct position will be that class legislation is permissible if the classification on which it is based is rational and has a nexus with the object sought to be achieved.109 Mere classification is not enough to get over the inhibition of this Article. 110 The classification must be rational.111 The differentia which is the basis of classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. 112 The legislation is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences made have no rational relation to the objectives that judicial interference becomes necessary.113 Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.114 In Suraj Bhan Meena v. State of Rajasthan 115 the Supreme Court first struck down an attempt by a State government to provide quotas in promotions on the ground that it had not undertaken such a specific exercise to establish the inadequacy of representation of the SC/STs.116 [2.5.2.] THERE IS NO REASONABLE NEXUS PRESENT BETWEEN THE RATIONALE AND THE OBJECT

The difference which will warrant a reasonable classification need not be great .117 What is required is that it must be real and substantial and must bear some just j ust and reasonable relation to the object of the legislation.118 There can be classes in a particular class. But law prohibits

108

Sakhawant Ali v. Ali v. State of Orissa, Orissa, AIR 1955 SC 166, 169; See also Union of India v India v.. Indian Charge Chrome, Chrome , (1999) 7 SCC 314; Mohan Kumar Singhania v. Union of India, India, AIR 1992 SC 1; Federation of All India Customs and Central Excise Stenographers v. Union of India, India, AIR 1988 SC 1291; Paradise Printers v. Printers v. Union Territory, Chandigarh, AIR Chandigarh, AIR 1985 SC 354; Raj Pal Sharma v. State of Haryana, Haryana , AIR 1985 SC 1263; State of Mysore v. P. v. P. Narasinga Rao, Rao, AIR 1968 SC 349; Express Newspaper P. Ltd. v. Union of India, India , AIR 1958 SC 578; State of Bombay v. Bombay v. S.N. Balsara, Balsara, AIR 1951 SC 318; State of Bombay v. Bombay v. Anwar Ali Sarkar , AIR 1952 SC 75; Javed 75; Javed v. v. State of Haryana, Haryana , (2003) 8 SCC 369, 380; Joshi 380; Joshi D.D. v. D.D. v. Union of India, India , AIR 1983 SC 420. 109 Ratnapoorva Devi v. Devi v. State of Orissa, Orissa, AIR 1964 SC 1195. 110 Arvind P. Datar, Commentary on Constitution of India 99 (2nd ed. 2007). 111 Supra note 110 112 Supra note 110. 113 v. State of Saurashtra, Kathi Ranging Rawat v. Saurashtra , AIR 1952 SC 123, 131. 114 Jagannath Pr asad v. State of Uttar Pradesh, Pradesh , AIR 1961 SC 1245; See also Mohd. Shaheb Mahboob v. Dy. v. Dy. Custodian, Custodian, AIR 1961 SC 1657. 115 Suraj Bhan Meena v. Meena v. State of Rajasthan, Rajasthan , (2011) 1 SCC 467. 116 U.P. Power Corpn. Ltd . v. Rajesh v. Rajesh Kumar , (2012) 7 SCC 1. 117 2, Durga Das Basu, Commentary on the Constitution of I ndia, 3838 (8th ed. 2008) 118 Baburao v. Baburao v. State of Bombay, Housing Board , 1954 SCR 572; See also Suraj Mall v. Biswanath v. Biswanath,, AIR 1953 SC 545; See also LIC of India v. India v. Consumer Education and Research Centre, Centre , AIR 1995 SC 1811. P AGE 31 MEMORIAL FOR T HE PETITIONER


creation of class without a rational basis.119 Where there is a real difference between two categories of classes, there is a reasonable basis for sub-classification.120 The Constituent Assembly rejected the demand to do away with the requirement of ‘inadequacy of representation’ because it believed it would give the state unacceptable power in terms of determining the beneficiaries in the context of the general equality protection within the Constitution.121 Thus in the case of SC and ST’s who suffer from socio -economic backwardness, the fundamental right to equality of opportunity justifies separate categorization for the purpose of ‘adequate representation in the state services.’122 Although OBC may be socially or educationally handicapped, they do not suffer the same social handicap inflicted upon SC/ST. The object of reservation for SC/ST is to bring them into the main stream of national life, while the objective for backward class reservation is to remove their social and educational handicap. Thus, backward classes cannot form an integrated class with dalits and tribes for Art 16 (4) or 15 (4). 123 [ISSUE.3.] W HETHER THE 101 ST CONSTITUTIONAL AMENDMENT IS MANIFESTLY PERVERSE AND ARBITRARY?

It is humbly submitted that the 101st Constitutional Amendment is manifestly perverse and arbitrary as: [3.1.] T HE PROVISION

IN FAVOR OF

LC’S AND LG’S ARE

NOT PRIVILEGES BUT A

NECESSITY

Firstly, Firstly, The language of The Constitution (One Hundred & First Amendment) Act, 2016 clause 2 says, “….Libellus Cult Cult (LC) and Libellus Genns (LG) as a separate community, creating any “privileges” for the same are to that extent hereby repealed.” repealed.” is flawed. The word privilege legally means

119

Punjab Higher Qualified Teachers Union v. Union v. State of Punjab, Punjab , (1988) 2 SCC 407. ITO v. ITO v. Murlidhar Murlidhar Bhagwan Das, Das, AIR 1965 SC 342. 121 III, Constitutional Assembly Debates, 399-436. 122 ABSK Sangh v. Sangh v. Union of India, India, AIR 1981 SC 298. 123 Chattar Singh v. State of Rajasthan, AIR 1997 SC 303. 120



“a special right, advantage or benefit conferred on a particular person. It is a peculiar advantage or favor granted to one person as against another to do certain acts. Inherent in the term is the idea of something, apart and distinct from distinct from a common right which is enjoyed by all persons and connotes some sort of special grant special grant by the sovereign”124 whereas the affirmative action in form of reservation provided to the economically, educationally and socially backward communities-LC and LG were and still is a necessity and not in any way and means a privilege. It has been clearly establish in Chapter VI in the case of Indra of Indra Sawhney v. Sawhney v. Union of India, 125 which deals with ‘Social ‘Social Justice, Merit and Privilege’ Privilege’ that merit in an elitist society is not something inherent but is the consequence of environmental privileges enjoyed by the members of higher castes. The scope for providing provisions thus is ruled out because there was no privilege present for the LC’s and LG’s in the very first place. The affirm ative action provided to them through reservations was done in order to uplift them to an extent where they would be recognized as equals in the society. Moreover, as mentioned in the facts, only provisions in the favour of the LC and LG community were repealed. No action was taken against the TBC’s which which implies the vested political interest in the present matter of reservations. The provision of reservations for TBC was not originally present in the constitution and in order to recognize TBC as backward in mentioned in the case of State of Kerala v. N.M Thomas, Thomas,126 Justice A.P Sen observed that the predominant and only factor for making special provisions under Article Articl e 15(4) or 16(4) should be poverty and that caste should s hould be used only for the purpose of identification of groups comparable to LG’s and LC’s. This implies that Reservation must be considered from the social objective angle, having regard to the constitutional scheme, scheme, and not as a political issue and, thus, adequate representation must be given to the members of the Scheduled Castes.” Castes. ”127 The Govt. of Haden has shown double standards in the case of reservation policy by maintaining the reservations for TBC, but taking away the provisions of reservation for LC 124

Raja Ram Pal v. Speaker, Lok Sabha &Ors on 10 January, 2007 Supra note 21. 126 State of Kerala v. Kerala v. N.M N.M Thomas, AIR Thomas, AIR 1976 SC 490. 127 E.V.Chinnaiah v. State v. State of Andhra Pradesh And Ors, (2004) 4 L.R.I. 705. 125



and LG that were present in the constitution originally instituted by the Constituent Assembly under Article 335 of the Constitution which mentions the claims of reservation of LC’s and LG’s. [3.2.] T HE

PRESENT

CONSTITUTIONAL

AMENDMENT IS IGNORANT TO ALL ITS

PREVIOUS LEGISLATION MADE IN FAVOR OF LC AND

LG

Secondly, Secondly, the Amendment has, in the present case, per incuriam, smeared, ignored and gone in conflict with various previous legislations that had been enacted by the Parliament to safeguard the rights and interests of the people of the LC and LG community, which have been testimony to the intent of the Legislature in recognizing LC’s and LG’s LG’s as a socially deprived and marginalized community, some of which are Protection of Civil Rights Act 1955, Scheduled Caste and Scheduled Trib e (Prevention of Atrocities) Act’, 1989 & Rules, 1995 and The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance of 4 March 2014 passed by the Lok Sabha in the year as late as 2015 which provides for stringent actions on discriminations against the people of the LC and LG community. The enactment of 101st Constitutional Amendment and existence of legislations for safeguarding the rights of LC and LG which highlights the presence of caste discrimination in the society mentioned above present a paradoxical line of action of the Parliament and goes against the basic principle of justice that the constitution ensures for its citizens in the society. Social backwardness is a result of discrimination and the same is one of most pertinent criterion as held in Indra Sawhney v. Union of India India..128 Social upliftment for LC and LG would mean acceptance in the main stream society and elevation of social status but the various act of atrocities and discrimination prove that they are still not being accepted as unequals. The impugned legislation suffers from serious legal informities and is not in the position to withstand judicial scrutiny. The ramifications of the enactment of the 101st Constitutional Amendment is serious in nature as it goes against the very basic principle of protection of rights of individuals and justice for them in the society. As mentioned in the facts of the case, discrimination was ‘seemingly’ abolished, which puts into question the legitimacy of elimination of discrimination. Moreover, it was believably still present in the rural areas covertly. The repealing of the provisions in the favor of LC’s and LG’s resulted in

128

Supra note 21 P AGE 34 MEMORIAL FOR T HE PETITIONER


a 2% drop in their presence at the graduation and the post graduation level, which evidently pushes them back into backwardness that they were already a part of. LC’s and LG’s have been considered the backward most of the classes in the cases of K.C Vasant v. v. State of Karnataka129 and E.V Chinnaiah v. State v. State of AP 130. In the judgement in the case of Rajendran citizens and if the class is a v. Union of India, India ,131 it was observed that “caste is also a class of citizens and whole is socially and educationally backward, reservations can be made in favor of such a caste on the ground that it was socially and educationally backward of citizens within the meaning of Article 15(4).” [3.3.] T HE

IMPLEMENTATION OF

101 ST CONSTITUTIONAL

AMENDMENT AS A

IMPULSIVE REACTION TO PUBLIC UPROAR IS UNJUSTIFIABLE

Lastly, Lastly, The 101st Constitutional Amendment was a follow-up action to the public uproar. This very fact in itself makes the present amendment aribitrary. “From a positivist point of view equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies. One belongs to the rule of law in republic while the other to the whim in caprice of an absolute monarchy. Where an act is arbitrary, it is implicit in it that it is unequal. Both, according to political logic and constitutional law, and is, therefore, violative of article 14.”16 It presence of an emotional butt. It was to be recognized that justice cannot be borne out of impulsive reactions. The approach of the court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire and functional rather than formal. It thus thus becomes imperative for this Hon’ble Court to not succumb to the popular demands of a particular section to ensure prevailment of inclusivity in the society. Dr. Ambedkar after the amendment was made in Article 15 inserted a sub clause in Article 15(4) is again instructive. He said:“Then with regard to Article 16, Clause (4), my submission is this that it is really impossible to make any reservation which would not result in excluding somebody who has a caste. I think it has to be borne in mind and it is one of the fundamental principles which I believe is stated in Mulla's edition on the very ver y first page that there is no Hindu who has not a caste. Every Hindu has a caste-he is either a Brahmin or a Mahratta or a Kundby or a Kumbhar or a carpenter. There is no Hindu-that is the 129

K.C Vasant & Anothers v. Anothers v. State of Karnataka ,1985 Karnataka ,1985 AIR 1495. Supra note 127 131 C.A Rajendran v. Rajendran v. Union of India, India, AIR 1965 SC 507. 130



fundamental proposition-who has not a caste. Consequently, if you make a reservation in favour of what are called backward classes which are nothing else but a collection of certain castes, those who are excluded are persons who belong to certain castes. Therefore, in the circumstances of this country, it is impossible to avoid reservation without excluding some people who have got a caste.” In State of Andhra Pradesh v. Balram v. Balram,, a case arising from Andhra Pradesh, a Division Bench (Vaidyalingam and Mathew,JJ.) adopted the same approach and upheld the identification made by Andhra Pradesh Government on the basis of caste.



PRAYER

I N THE LIGHT OF THE ARGUMENTS ADVANCED, CASES A ND AUTHORITIES C ITED ABOVE, ESPONDENT H UMBLY R EQUESTS EQUESTS T HE H ON ’BLE SUPREME C OURT O F H ADEN TO THE R ESPONDENT

STRUCK

DOWN THE

CONSTITUTIONAL VALIDITY OF THE

CONSTITUTION (O NE

HUNDREDTH A ND FIRST AMENDMENT) ACT , 2016 A ND ADJUDGE A ND DECLARE T HAT : I.

THE CONSTITUTION (O NE HUNDREDTH A ND FIRST AMENDMENT) ACT , 2016 VIOLATE THE PROVISIONS O F T HE CONSTITUTION. SO THE IMPUNED AMENDMENT ACT SHOULD BE STRUCK DOWN .

II.

THE CONSTITUTION (O NE HUNDREDTH A ND FIRST AMENDMENT) ACT , 2016 IS AGAINST THE PRINCIPLE OF S OCIAL JUSTICE E NSHR INED I N T HE PREAMBLE OF THE CONSTITUTION. E LIEF THAT IT MAY DEEM FIT IN AND / OR PASS ANY OTHER ORDER , DIRECTION OR R ELIEF

THE BEST INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE. I NDNESS, THE PETITIONER SHALL DUTY BOUND FOREVER PRAY . FOR THIS ACT OF K INDNESS

Place: New Delhi Date: 13th January, 2017 THE PETITIONER Sd/.............................. (C OUNSEL FOR THE “P ETITIONER ’”) ’”)


Abcd

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