THE TAMIL NADU NATIONAL LAW SCHOOL,

TIRUCHHIRAPALLI

2015-2016
Final Draft
of

CONSTITUTION

Under Supervision of:

Submitted by:

PROF. KANIKA GAUBA

MOHIT AGARWAL

PROFFESSOR CONSTITUUTION

BC0140037

IN THE SUPREME COURT OF INDIA

WRIT PETITION (CIVIL) No. 280 of 2015

MOHIT AGARWAL .. Petitioner

v.
Union of India and Others . Respondents

Written Submissions of MOHIT AGARWAL, Advocate, Counsel for the defendant

Reservations provisions as provided by the India Constitution

now after a decade need to be amended or need a change as it
started to violate the fundamental ?
Issue :1 Whether the provision of reservation in violates fundamental rights ?
a) Provision under article 14 :Reservation is policy designed to redress past discrimination
against the lower classes and minority groups through measures to improve their economic
and educational opportunities. reservation is an attempt to promote equality. It is often
institute that in government are included in all programs . The justification for reservation is
to compensate for past discrimination ,persecution or exploitation by ruling class of culture
or to address existing discrimination . Moreover the basic aim of reservation is to create
social equality .Social equality is social state of affairs in which all people within a specific
society or isolated group have equal status in certain respect. At the very least social equality
includes equal rights under the law , such as security voting rights freedom of speech and
assembly and extent of property rights .However it also includes excess to education
,healthcare and other social security's it also includes equal opportunity and obligation and so
involves the whole society. Social equality social refers to social rather than economic and
income equality. All person in similar circumstances shall be treated alike both in privileges
and liabilities imposed. 1

1 john vallamattam v union of india (2003) 6 SCC 611 : AIR 2003 SC 2562
2

The underlying object of article 14 is to secure to all persons, citizen or non-citizen, the
equality of status and opportunity referred to in Preamble to our constitution . Article 14
outlaws discrimination in a general way and guarantee equality before law to all persons
Ambedkar view on reservation and its need in India :
1) He believes that caste system is but another name of division of labour and if division of
labour is a necessary feature of every civilised society then it is argued that there is nothing
wrong in the caste system . He believed that caste system is not the division of labourers . It
is also a division of labourers. No civilised society is division of labour accompanied by the
unnatural division of labourers into waterlight compartments. in no other country is the
division of labour accompanied by this gradation of labourers.
2)This principle is violated in the caste system in so far as it involves an attempt to appoint
tasks to individuals in advance, selected not on the basis of trained original capacities but on
that of the social status of parents. Individual sentiments, individual preference has no place
in it. It is based on the dogma of predestination
3)He believed that caste does not result in economy efficiency . caste cannot has not
improved the race. caste however done one thing. it completely disorganised and demoralized
the Hindus.
It is clearly stated that article 14 provide positive and not negative equality2.It implies that
among equals the law should be equals the law should be equal and equally administered, that
the like should be treated alike without distinction of race ,religion, wealth, social status or
political influence.3 Article 14 prescribes equality before law but the facts remain that all the
person are not equal by nature, attain mentor circumstances and therefore, a mechanical
equality before the law may result injustice .Thus, the guarantee against the denial of equal
protection of the law doesn't mean that identically the same rule of law should be made
applicable to all the person inspite of difference in circumstances or conditions.
The varying needs of different classes or section of people require differential classes or
section of people require differential And separate treatment . The legislature is required to
deal with diverse problem arising out of an infinite variety of human relation. Therefore
necessarily have the power of making laws to attain particular objects, for the purpose, of
distinguishing, selecting and classifying persons and things upon which its law are to operate
Thus, Principal of equality law that means not the same law should apply to everyone but that
a law should deal alike with all in one class : there should be an equality of treatment under
equal circumstances.4
2 j.srinivas Raju v stae of orrisa 113(2012) Cut LT 13(22) (Ori)
3 Jagnnath prasad v. state of uttar pradesh AIR 1961 SC 1245
4 Chiranjeet lal v. UOI , AIR 1951 SC 41
3

That the Two expression ' equality before law ' and equal protection of law' do not mean the
same thing even if there may be much in common between them. " equality before law " is a
dynamic concept having many facets. One facets is that there shall be no privileged person or
class and none shall be above law. Another facet is "the oblivion upon the state to bring
about, through the machinery of law , amore equal society .... For, equality before law can be
predicated meaningfully only in an equal society .........."5.That equal should be treated unlike
and unlikes shouldn't be treated alike . like should treated alike6. In Laxmi Khandsari's case
SC gives classification test
i)It should not be arbitrary, artificial or evasive . it should be based on an intelligible
differentia, some real and substantial distinction which distinguishes persons or things
grouped together in the class from other left out of it
ii)the differentia adopted as the basis of evaluation must have a rational or reasonable nexus
with the object sought to be achieved by statute in question.7
Differential treatment doesn't per se amount to violation of article 14 and it violates article 14
only when there is no reasonable basis and there are several test to decide whether a
classification is reasonable basis and there are test decide whether a classification is
reasonable or not and one of the test will be as to whether it conductive to the functioning of
modern society 8
When a law is challenged to be discriminatory essentially on the ground off that it dines equal
treatment or protection , the question for determination by the court is not whether it has
resulted in equality but whether there is some difference which bears a just and reasonable
relation to the object of legislation .Mere differentiation does not per se amount to
discrimination within the habitation of equal protection clause. To attract the operation of the
clause it is necessary to show that the selection or discrimination is unreasonable or
arbitrary , that it does not rest on any rational basis having regard to the object which the
legislature has in view .9The SC has observed it is settled law that differentiation is not
5 IN GAURISHANKAR VS. UNION OF INDIA AIR 1992 SCC 999: (1992) 2 SCC 643

6Gaurishankar v UOI (1994) 6 SCC 349

7 Laxmi Khandsari vs State of U.P., AIR 1981 SC 873 ; (1981) 2 SCC 600

8 IN NATIONAL COUNCIL FOR TEACHERS EDUCATION VS SHRI SHYAM SIKHA PRAKASHAN

SANSTHAN (2011) 3 SCC 238 (255): AIR 2011 SC 932

9 K. THIMPPA V CHAIRMAN , CENTRAL BOARDS OF DIRECTORS, AIR 2001 SC

467 : (2001) 2 SCC 259
4

always discriminatory. if there is a rational nexus on the basis of which differentiation has
been made with the object sought to be achieved by the particulars of article 14 of the
Constitution.10

(B) The provisions for reservation in article 15 ?

Article 15 (1) would have come in way of making favourable provisions backward sections
of society this can illustrated by referring two cases ;
The madras government issued an order allotting the seats in the state medical college
community-wise . This was declared invalid because it classified student merely on the basis
of caste and religion irrespective of merit
In another cases , a government order requesting land for reconstruction of colony for
HARIZANS was held to be discriminatory under article 15(1) because the facilities being
given to them as a community as such when the other member of the public where equally in
need of similar facility
To tide over the difficulties created by such decisions in the way of helping backward classes
by making discriminatory provisions in their favour article 15(4) was added in the
constitution in 1951.
We are afraid we may not be able to fit these provisions into the kind of compartmentalisation
in the context and scheme of our constitutional provisions. by now, it is well settled the
reservation in educational institutions and other walk of life can be provided under article 15
(4) just as reservation can be provided in service under article 16(4)b is as much as several
kinds of positive action programmes can also be evolved and implemented there under ( in
addition to reservation) to improve the conditions of SEBCs , SC and ST whereas art. 16(4)
speaks only of one type of remedial measure , namely , reservation of appointments/posts ."
it is seen that dalits and tribes suffered social and economic disabilities recognised by article
17(b) and article 15(2) . consequently they became socially , culturally and educationally
backward , the OBCs also suffered social and educationally backwardness .the object of
reservation is to remove these handicaps, disadvantages ,suffering and restricting to which the
mainstream of the nation life by providing them opportunity and facilities ... therefore when a
member is transplanted into the dalits , tribes and OBC s, he must of necessity also undergo
same handicaps, be subject to the same disability disadvantage indignities or suffering so as
to entitle the candidate to avail the facility of reservation.
10 UNION OF INDIA VS M.V. Valliappan (1999) 6 SCC 259: AIR 1999 SC 259
5

The supreme court held that the candidates of reserved category admitted to medical colleges
on the basis of merit should be treated as open category candidate for the purpose of
computing the percentage of reservation but they should be given option for admission to
graduate or post graduate course in the colleges where seats are kept reserved for reserved
category and thereafter less meritorious reserved category candidates should be consider for
admission in whichever colleges reserved seats are available and be entitled to all benefits,
concession or scholarships under the rule.11
The special provisions permissible under Art. 15 (4) are not confined to positive action
programmes for the advancement of backward classes but would include ' reservation ' in
educational institutions and other walks of life (para 116)12.Art. 15 (4)envisages the policy of
compensatory or protective discrimination but it should be reasonably and consistent with
ultimate public interest i.e. national interest and interest of community or society as a whole13.
Therefore , the government reserves a percentage of seats for members of backward classes,
such reservation will not be applicable if such members already secure the reserved numbers
by competition on their merit; it will be called in aid only to the extent of their deficiency on
the merit list. 14
Where there North Eastern Council recommended reservation of two seats each in the degree
and diploma post graduated courses in Assam medical college for which the candidates of
five states which don't have any medical colleges, it was held the candidates belonging to
these five states constituted a separate class and hence reservation is valid 15 .
Reservation is guided by consideration of ensuring allotment of a privilege or quota to, or
conferral of state largesse on, a defined class or category of limited persons or remaining
persons. beneficiary of reservation is necessarily a minor or smaller group of persons which
deservedly stand in need of protection or push up because of historical, geographical,
11 Ritesh R. shah v Y.L. Yamul (dr.) (1996) 3 SCC 253 (para 17 ) : AIR 1996 SC
1378 FOLLOWED IN yoganand vishwasaroo Patil V. state of maharashtra (2005)
12 SCC 311.
12 cf. indira V. uoi AIR 1993 SC 477: 1992 Supp. (3) SCC 217 - 9 judges ; Ajay
kumar singh V. state of bihar (1994) 4 SCC401 (para 4 ): 1994 (2) JT 662- 3
judges
13 Preet Srivastav (Dr.) v State of M.P. (1999) 7 scc 120 ( para 134, 15, and 62 ) :
air 1999 sc 2894
14 Anil v. dean Govt. Medical college, Nagpurr AIR 1985 bom. 153 (para 6);Partha
S.A. v. stae of mysore AIR 1961 Mys. 220
15 Naryan Sharma ( dr. ) V. pankaj kumar lekhare ( dr. ) ( 2000 ) 1 scc 44 ( paras
26 and 27 ); air 2000 SC 72
6

economical ,social ,physical or similar such handicaps. Reservation is protective

discrimination.16 if the caste as a whole is found to be socially and educationally backward17 ,
the inclusion of such caste in the list of backward classes would not violate of art.15 (4) even
though a few individuals in that case may be socially and educationally above the average. 18
the state is entitled to do everything for the upliftment of members of these castes and tribes ,
to make reservation for their admission to educational institute and to impose scuch
conditions as would make the reservation effective 19 . it follows that the government may
make relaxation of the rules for the admission to such institutions or for selection to
government employment20 , say , by lowering the minimum qualifying marks or other
conditions; 21 or by offering them to avenues for promotion in place of one for the rest of the
people; or reservation of selection posts for them. 22 In the end I want to say that Unlike the
developed countries, where the access and quality of schooling, basic literacy and
knowledge is fairly uniform, these factors are at the opposite end of the spectrum in
India. Dalits and backward classes bear this brunt, because they are majority where
these problems exist, irrespective of their economic status.
The practice of untouchability, socio-economic-educational exclusion is prevalent in most
parts of India - leading to downward spiral of which poverty is a symptom - not a cause. It is
wrong to assume that the problem of discrimination is of class separation and not racism.

16AIIMS student's Union V. AIIMS ( 2002) 1 scc 428 , 448 (para 32) : AIR 2001 SC
3262
17 Rajendran p. V state of madras AIR 1968 SC 1012
18 state of A.P. V. balaram U.S.V., AIR 1972 Sc 1375 (1395, 1399 ); ( 1972 ) 1
SSC 660
19 state of M.P. V. Nivedita Jain AIR 1981 SC (para 25) ; (1981) 4 SCC 296
20 state of kerela v thomas N.M . , AIR 1976 SC 490 : (1976 ) 2 SCC 310 ; Sharma
S.S. V. UOI , AIR 1981 SC 588 ( paras 9,11,12) : 1981 1 SCC397
21 state of kerela v thomas n.m . , AIR 1976 SC 490 : (1976 ) 2 SCC 310 ;
Sharma S.S. V. UOI , SAIR 1981 SC 588 ( paras 9,11,12) : 1981 1 SCC 397
22 Sharma S.S V. UOI , AIR 1981 SC 588 ( Para's 9,11,12) : 1981 1 SCC 397

ISSUE NO : 2 Whether there should be reservation on the basis of economic difference

in the society ?
(A) People of some caste are poor as well:
1. Reservation should be given on the basis of caste as people from specific castes are the
most backward people of the nation.
2. In ancient times, people of backward communities were badly exploited by people of upper
caste. So, they need reservation to recoup from the traumas of their past.
3. Reservations real purpose is not to eradicate poverty but to ensure the participation of
backward classes in decision making.
4. Constitution has never advocated reservation on the basis of income level.
5. The whole reservation policy was focused on the upliftment of backward sections of the
society and not poverty eradication; for a lot of govt. schemes have been launched.
Economic condition is just one of the factors. , the problem of caste discrimination in schools
- dalit children are forced to wash toilets, wash Mid-Day-Meal vessels and forced to sit
separately and neglected by the upper-caste teaching staff.
(Refer "They Say Were Dirty" - Human Rights Watch report on Caste discrimination in
Schools)
Add to this the problem of economic exclusion giving lesser wages and not buying the
produce of dalits causes them to work harder and get paid less. This means more kids to have
to go abandon school and go to work at an early age. In order to satisfy the requirments of the
Art. 15(4) , the class must be both socially and economically backward23. social
backwardness is, in the ultimate analysis, the result of poverty24

23 partap singh v. Hardam singh, AIR 1 UJSC 82 ( para 3,6): AIR 1985 SC 1695:
(1985) 4 scc 197
24 Balaji M.R. V state of mysore, AIR 1963 SC 649 (663): 1963 Supp. (1) SCR 439
8