8TH RLC SAQUIB RIZVI NATIONAL MEMORIAL MOOT COURT COMPETITION, 2016

IN THE HONBLE SUPREME COURT OF HADEN

Writ Petition (Civil) No. _________/ 2016

(Filed under Article 32 of the Constitution of Haden)

IN THE MATTER CONCERNING THE CONSTITUTIONAL VALIDITY OF THE 101ST

CONSTITUTIONAL AMENDMENT, 2016

PETITIONER: KELA TATUIA

-VERSUS-

RESPONDENT: GOVERNMENT OF HADEN

-MEMORIAL ON BEHALF OF THE PETITIONER-

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 Table of Contents
LIST OF ABBREVIATIONS.............................................................................................. 3
INDEX OF AUTHORITIES............................................................................................... 5
CASES...................................................................................................................... 5
STATUTES................................................................................................................. 5
OTHER AUTHORITIES................................................................................................ 5
INTERNATIONAL DOCUMENTS...................................................................................5
BOOKS..................................................................................................................... 5
ARTICLES................................................................................................................. 5
STATEMENT OF JURISDICTION...................................................................................... 6
FACTSHEET.................................................................................................................. 7
ISSUES......................................................................................................................... 9
SUMMARY OF ARGUMENTS........................................................................................ 10
ARGUMENTS ADVANCED............................................................................................ 11
1. THE PUBLIC INTEREST LITIGATION IN THE PRESENT CASE IS MAINTAINABLE BEFORE
THE HONBLE SUPREME COURT OF HADEN..............................................................11
1.1. THE CONSTITUTION OF HADEN GIVES POWERS TO THIS HONBLE COURT TO
ENTERTAIN THE WRIT PETITION...........................................................................11
1.2. THE PETITIONER HAS LITIGATIONAL COMPETENCE TO INVOKE PUBLIC INTEREST
BY SUBMITTING THE WRIT PETITION BEFORE THIS HONBLE COURT......................12
2. THE 101ST CONSTITUTIONAL AMENDMENT IS ULTRA-VIRES TO THE FUNDAMENTAL
RIGHTS OF THE LC AND LG COMMUNITY..................................................................13
2.1. THE AMENDMENT VIOLATES ARTICLE 14 OF THE CONSTITUTION...................13
2.1.1. IT IS AN ASSUMPTION THAT LEVEL PLAYING FIELD HAS BEEN ACHIEVED
........................................................................................................................... 13
2.1.2. THE IMPUGNED AMENDMENT IS A RESULT OF ARBITRARY ACTION OF THE
GOVERNMENT..................................................................................................... 14
2.2. THE AMENDMENT VIOLATES ARTICLE 15 & ARTICLE 16 OF THE CONSTITUTION OF
HADEN................................................................................................................ 14
2.3. THE AMENDMENT VIOLATES ARTICLE 21 OF THE CONSTITUTION OF HADEN.....21
2.3.1. The Constitutional Amendment endangers the Right to live with human dignity...............22
2.3.2. The Constitutional Amendment deprives the Right to livelihood...................................24
2.3.3. The Constitutional Amendment endangers the Right to Social Security..........................26

2
 2.3.4. The Procedure adopted (101st Constitutional Amendment) is not just and fair...................28
PRAYER..................................................................................................................... 37

LIST OF ABBREVIATIONS

& And
A.P. Andhra Pradesh
AC Appeal Cases
AIR All India Reporter
All Allahabad
All ER All England Reporter
App Appeal
Art Article
Bom Bombay
Cas Case
cl. Clause
Const Constitution
DB Divisional Bench
Del Delhi
Doc Document
ECHR European Convention on Human Rights
Ed Edition
Guj Gujarat
Honble Honourable
HP Himachal Pradesh
Hyd Hyderabad

ICCPR International Covenant on Civil and Political

Rights
i.e. That is
Id Ibidium
ILR Indian Law Reports
Kar Karnataka
KLT Kerala Law Times
LR Law Reports

LQR Law Quarterly Review (UK)

Mad Madras
MP Madhya Pradesh
NCT National Capital Territory

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No. Number
Ori Orissa
Ors Others
P&H Punjab & Haryana
Pat Patna
PC Privy Council
Punj Punjab
Raj Rajasthan
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
TN Tamil Nadu
UDHR Universal Declaration on Human Rights
UN United Nations
UOI Union of India
U.P. Uttar Pradesh
U/A Under Article
U.S. United States

V Versus
Vol. Volume

4
 INDEX OF AUTHORITIES

CASES

STATUTES

OTHER AUTHORITIES

INTERNATIONAL DOCUMENTS

BOOKS

ARTICLES

5
 STATEMENT OF JURISDICTION

The Petitioner has approached the Hon'ble Supreme Court of India under Art. 32 of Constitution
of Haden.

6
 FACTSHEET

I Haden is a huge country in South Central Asia with a glorious and rich heritage with lots
of different religions, cultures, traditions, customs and languages. While 7% follow
atheism, 93% of the citizens associate themselves to a religion with the denominations of
Binarism, Lariasm, Bhuvanism and Charisman. The religion of Binarism is further
divided into four castes namely Zarakiminn, who were the epoch of this code and were to
serve as preachers of God; Ashtriyas who were to serve as warriors and conquer
kingdoms; Kishayas, who were traders and Golos, who were the last of the four castes,
were discriminated as untouchables to an extent where they were not allowed to drink
water from the village level and forced to beg for a living in addition to restricting their
access to public places like educational institutions and temples, and were compelled to
perform derogatory functions in social life. The bigotry reached a point where the
members of the community were completely ostracized from the time of birth.
II Haden was invaded by a foreign power in 1800 owing to the sheer lack of unity among
the citizens on account of their religion and caste. Haden subsequently gained
independence in 1947 with the Haden Liberation Front leading from the front and uniting
people regardless of their caste and creed. While the written constitution was being
drafted, the Chairman of the committee made it the top priority to include provisions for
the upliftment of the Libellus Cult and the Libellus Genss in order to elevate them to the
same status of other castes.
III In order to achieve true equality and make it lucrative for the community to have higher
education and representation in the Government sector, the Parliament passed a bill in
1954 which reserved 5% and 8% of the educational seats for LGs and LCs respectively
with the intention of abolishing the same by 1975. The same were extended over time
citing various socio-economic reasons. The following year, in a bold move towards
establishing inter-caste equality, the Protection of Civil Rights Act was passed in an
attempt to achieve equal rights for the LC and LG community and made discrimination
against backward classes a punishable offence. Though there was stiff resistance in
accepting the community in society, commendable progress was made in years to come.

7
 IV In 2011, it was observed that most of the LC and LG community were receiving higher
education and were well represented in the Government departments, with discrimination
being seemingly abolished in the cities. However, the contempt was covertly prevalent in
the rural areas. In the year 2015, the reservation stood at 7.5% for the LGs, 15% for the
LGs and 27% for the TBCs.
V Several citizens believed that reservation was no longer necessary and had become a
mere policy for securing votes. Haden maintained its status as a developing country
where the status of LC and LG community had improved substantially as they faced no
economic disability but were on the receiving end of social discrimination.
VI In the year 2015, as a result of the reservation policy, thousand of meritorious students
were denied admission in a highly educational atmosphere which led to several students
committing suicide on account of shortage of seats for the general community/category.
This led to an uproar against reservation for the LCs and LGs as a result of which the
Parliament abolished the concept of LC and LG and repealed every other provision
through the 101st Constitutional amendment yet continuing the privileges extended to the
members of the TBC community.
VII The amendment was followed by a 2% drop in the members of the LC and LG
community at the graduation and post graduation level and the same was justified by the
leaders of the ruling party stating the new regime in the academic structure which was
one based on merit and went on to say that they continue to maintain a strong position
against caste based discrimination and penalized the same.
VIII Ms.Kela Tatuia, a leading advocate who represented the LC and LG community in
several landmark cases criticized the decision of the Parliament saying that it was a black
day in the history of Haden and filed a PIL before the Honble Supreme Court of Haden
for the violation of the Fundamental Rights of the LC and LG community stating that the
amendment was ultra vires to the same.

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 ISSUES

-I-

1. The Public Interest Litigation in the present case is maintainable before the
Honble Supreme Court of Haden.

-II-

2. The 101st Constitutional Amendment is ultra-vires to the Fundamental rights of

the LC and LG community.

-III-

9
 SUMMARY OF ARGUMENTS

THE PUBLIC INTEREST LITIGATION IN THE PRESENT CASE IS MAINTAINABLE BEFORE

THE HONBLE SUPREME COURT OF HADEN.

The Constitution of Haden [1] gives powers to this Honble Court to entertain the
writ petition. Also, the petitioner Ms. Kela Tatuia has [2] litigational competence to
invoke public interest by submitting the writ petition before the honble Supreme
Court of Haden.

THE 101ST CONSTITUTIONAL AMENDMENT IS ULTRA-VIRES TO THE FUNDAMENTAL

RIGHTS OF THE LC AND LG COMMUNITY.

The 101st Constitutional Amendment is an Act to amend the Constitution of Haden

and give effect to the abolishment of caste system in pursuance of the principles
set out in Article 14, 15(4) and 16(4) of the Constitution of Haden. The amendment
violates the bill of fundamental rights and isultra vires to the constitution as it
violates [1] Right to Equality under Art.14, [2] Art. 15, [3] Art. 16 and [4] Article 21
under Part III of the Constitution.

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 ARGUMENTS ADVANCED
(ON MAINTAINABILITY)

1. THE PUBLIC INTEREST LITIGATION IN THE PRESENT CASE IS

MAINTAINABLE BEFORE THE HONBLE SUPREME COURT OF HADEN.

1.1. THE CONSTITUTION OF HADEN GIVES POWERS TO THIS HONBLE

COURT TO ENTERTAIN THE WRIT PETITION.
Rights which are either fundamental or legal or any issue of public concern or interest infringed
by state action can be enforced under Articles 32 or 226 of the constitution. The enforceability
under Article 32 gives Supreme Court such power.

1.1.1 JURISDICTION OF THE COURT

Judicial control of state action in case of infringement of individual rights is guided by the
nature of the rights, the reasonable restrictions that stand imposed upon it, the policy concerns of
the state, the desirability of the grant of a relief etc1. All these aspects get molded by larger
concerns of promotion of the rights and interests of the needy and deprived classes of the
community, when the courts are called upon to handle interests other than private rights.2 The
Amendment in question affects the rights of such concerns of LG and LC community.3

1.1.2 THERE HAS BEEN A PUBLIC INJURY

The concept of Public Injury transcends concerns of individuals and is identified with injuries or
affectations that have social or human life implications. The constitution has identified sections
of the community which deserve special and preferential treatments. Actions, which infringe the
concerns and expectations of such classes would be one set of public injury4; certain fundamental

1: Rameshwar Prasad [VI] v Union of India, (2006) 2 SCC 1 at 165

2 Salal Hydro Electric Project v State of Jammu and Kashmir, (1983) 2 SCC 181

3 Factsheet, 13, pg.5

4 Articles 15 (3), (4); 16 (4), (4A); 39(e), (f);41,43 and 46, Constitution of India, 1950

11
freedoms concern all the citizens and also interrelationships and community order.5 In the case at
hand, the preferential treatment given to LGs and LCs is being taken away by the Amendment in
question thus constituting a public injury.6 Moreover, that the state and its instrumentalities will
act within constitutional limitations is a rule of law principle and the democratic expectation of
the people and disregard of this principle is also another public injury of gravest implications.7,
thus, the assumption of the remedial role by the court is only by way of acting in resolution of
the consequences of such public injuries,8 which is done by exercising power under Article 32.
Also, every citizen can become a torchbearer of rights corresponding to such an injury.9

1.2. THE PETITIONER HAS LITIGATIONAL COMPETENCE TO INVOKE PUBLIC

INTEREST BY SUBMITTING THE WRIT PETITION BEFORE THIS HONBLE
COURT.
The requirement of locus standi of a party to any litigation is mandatory10. The concept of
standing and aggrieved persons have their origin in certain jurisdictions which granted persons
access to courts to challenge decisions or orders infringing some legal right11. In case of PIL,
aggrieved person stands substituted by the principle of litigational competence as it is more
appropriate to PIL.12

5 Articles 14, 15, 19 and 21, Constitution of India, 1950

6Factsheet, 12, pg.4

7 Minerva Mills v. Union of India, (1980) 3 SCC 625

8 K.K. Kochunni v State of Madras, 1959 Supp (2) SCR 316

9 PUCL v Union of India, (2003) 4 SCC 399

10 79, 91, 92, Order 1 and Order XXVII of the Code of Civil Procedure, 1908 (India). See Janata Dal v
H.S. Chowdhary, (1992) 4 SCC 305

11See Supreme Court Project Committee on Restatement of Indian Law, Restatement of Indian Law
Public Interest Litigation, Universal Law Publishing, New Delhi, 2011

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An appropriate issue or concern which can be articulated with reference to any constitutional or
legal right, obligation, duty13, or with reference to persuasive constitutional provisions, the
desirability of judicial scrutiny, and an appropriate person or persons who can be entrusted the
responsibility of bona fide pursuit of resolution of such issues and concerns constitute the twin
element of public interest action.14 The person mentioned here may be a person or persons
engaged in rendering assistance, aid or support to the disadvantaged or disabled section of the
community or generally in espousing issues or causes of public concern or welfare.15 As Ms.
Tatuia has been an active conductor of several awareness programs focusing the welfare of LCs
and LGs and as she has espoused the welfare of LCs and LGs in several landmark cases, 16 thus
her actions in the past and her present concern are evidence of bona fide pursuit and therefore
she can be asserted to be possessing the litigational competence to submit the writ petition to the
Supreme Court.

Also, the appropriate issue required as is mentioned above is articulated to the introduction of
the 101st Amendment which affects the rights of LCs and LGs adversely.17

(ON MERIT)

12 See R. Vennkataramani & S.C. Raina, Public Interest Litigation, 53 1st ed., Lexis Nexis, 2012, ; See
Bangalore Medical Trust v. B.S. Mudappa, AIR 1991 SC 1902.

13 HLA Hart, The Concept of Law, 82 Oxford, 2nd Ed. 1994

14 Union Carbide Corporation v Union of India, AIR 1990 SC 273

15 N. Parthasarathy v. Controller of Capital, JT 1991 (2) SC 218

16 Factsheet 14, pg.5

17 Factsheet, 13, pg.5

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2. THE 101ST CONSTITUTIONAL AMENDMENT IS ULTRA-VIRES TO THE
FUNDAMENTAL RIGHTS OF THE LC AND LG COMMUNITY.

2.1. THE AMENDMENT VIOLATES ARTICLE 14 OF THE

CONSTITUTION
2.1.1. IT IS AN ASSUMPTION THAT LEVEL PLAYING FIELD HAS BEEN
ACHIEVED
It is humbly submitted that the Preamble to the Constitution emphasizes on the principle of
equality as basic to the constitution. This means that even a constitutional amendment offending
the right to equality will be declared invalid. Neither the Parliament nor the State Legislature can
18
transgress the principle of equality. Art. 14 provides equality before law. But the fact remains
that all the persons are not equal by nature, attainment or circumstances, and, therefore, a
mechanical equality before law may result in injustice. Thus the guarantee against the denial of
equal protection of the law does not mean that identically the same rules of law should be made
applicable to all persons in spite of difference in circumstances or conditions 19. Article 14 means
that equals should be treated alike; it does not mean that unequals ought to be treated
equally.20 Persons who are in the like circumstances should be treated equally. On the other
hand, where persons or groups of persons are not situated equally, to treat them as equals would
itself be violative of Art.14 as this would itself result in inequality.21 Though there has been an
improvement in the situation of LGs and LCs in the form of economic stability, there still
remains an assumption that an overall improvement in their social condition has been reached22.

18 Kesavananda Bharti v State of Kerala, AIR 1973 SC 1461

19 Chiranjit Lal v Union of India, AIR 1951 SC 41

20 M Jagdish Vyas v Union of India, AIR 2010 SC 1596 (1603)

21 See M.P.Jain, Indian Constitutional law, p. 880, 7th edition, LexisNexis, New Delhi

22 Factsheet, 10, pg.4

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2.1.2. THE IMPUGNED AMENDMENT IS A RESULT OF ARBITRARY ACTION OF
THE GOVERNMENT
It is now established that non-compliance with the rules of natural justice amounts to
arbitrariness violating Art.14.23 The principles of natural justice ensure fairness. It means that a
result or process should be just. It is a harmless, though it may be a high-sounding expression; in
so far as it attempts to reflect the old jus naturale, it is a confused and unwarranted transfer into
the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for
other purposes, it is vacuous24. The purpose of principles of natural justice is prevention of
miscarriage of justice and hence the observance thereof is the pragmatic requirement of fair play
in action25. According to the Second principle of justice of Rawls 26, social and economic
inequalities are to be arranged so that they are both to the greatest benefit of the least
advantaged, and attached to the offices and positions open to all under conditions of fair and
equal opportunity. Thus, the Government, by taking away all the privileges given to LC and LG
community is violating the rules of justice as it is depriving the LCs and LGs of the much needed
privileges because there is still not achieved a level playing field.27

2.2. THE AMENDMENT VIOLATES ARTICLE 15 & ARTICLE 16 OF THE

CONSTITUTION OF HADEN

23 See Rajasthan State Road Transport Corporation v Balmukund Bairwa, (2), 2009 4 SCC 299, See also
Satyavir Singh & ors. vs. Union of India & ors. [(1985) 4 SCC 252], Delhi Transport Corporation vs.
D.T.C. Mazdoor Congress & ors. [1991 Supp (1) SCC 600], Union of India & Anr. vs. Tulsiram Patel
[(1985) 3 SCC 398], Central Inland Water Transport Corporation Limited & Anr. vs. Brojo Nath Ganguly
& Anr. [(1986) 3 SCC 156]

24 Local Government Board v. Arlidge, [1915] AC 120 at p. 138 (HL)

25 See Sawai Singh vs. State of Rajasthan [(1986) 3 SCC 454], See also Narinder Mohan Arya vs.
United India Insurance Co. Ltd. & ors. [(2006) 4 SCC 713]

26 See John Rawls, Political Liberalism, pp. xvi-xvii, Columbia University Press, New York, 1993

27 Factsheet 12, pg.4

15
2.2.1. THE AMENDMENT VIOLATES ARTICLE 15 OF THE CONSTITUTION OF HADEN
Article 14, 15 and 16, the three articles form part of the same constitutional code of guarantee of
equality and supplement each other.28 Article 14 is genus while Arts. 15, 16 are species although
all of them occupy same field and the doctrine of equality embodied in these Articles has many
facts.29 While Article 14 guarantees the general right of equality, Article 15 and 16 are instances
of the same right in favor of citizens in some special circumstances. Article 15 is more general in
terms of Article 16, the latter being confined to matters relating to employment or appointment to
any office under the State.30 The 101st Constitutional Amendment violates Article 15 as it takes
away all provisions being extended as to LCs and LGs as a community and yet, the members of
the LC and LG community qualify as socially and economically backward [1]; Even if the
members of the LC and LG community do not qualify as SEBC, they are entitled to reservation
[2]; and the academic regime cannot move toward Merit status quo.

2.2.1.1 THE MEMBERS OF THE LC AND LG COMMUNITY QUALIFY AS SEBC.

The discrimination which is forbidden by this Article is only such discrimination as is based
solely on the ground that a person belongs to a particular race or caste or professes a particular
religion or was born at a particular place or is of a particular sex, and no other ground. A
discrimination which is based on one or more of these grounds and also on other grounds is not
hit by the Article.31 Discrimination in favor of a particular sex or caste will be permissible if the
classification is the result of other considerations besides the fact that the person belongs that sex
or caste.32 A classification of socially and educationally backward cannot be done on the basis of
caste only, for, that will be violative of Article 15(1). However, caste can be considered and it
can be a starting point to consider backwardness along with poverty, social backwardness,

28 Govt. Branch Press v. D.B. Belliapa, (1979) 1 SCC 477

29 M.C.Sharma v. The Punjab University, Chandigarh, AIR 1997 P&H 87(FB)

30 DD Basu, Commentary on Constitution. of India, pg. 2686, Vol. 3, LexisNexis, New Delhi

31 Chitra v. Union of India, AIR 1970 SC 35(38)

32 ibid

16
economic backwardness which are all relevant to consider backwardness. Caste plays an
important role in determining backwardness of the individual and if the real backwardness is
found in caste, it can be considered as backward. 33 Caste is, of course, one of the relevant
circumstances in determining backwardness,34 but if a group has been classified as backward on
other relevant considerations, that classification cannot be challenged as invalid on the ground of
omission to take caste into consideration.35

The Supreme Court of India has observed in Indra Sawhney v. Union of India, 36 in connection
with caste criteria in identifying social and educational backwardness, Caste can neither be the
sole criterion nor it can be equated with class for the purpose of Art.16(4) for ascertaining the
social and educational backwardness of any sections or group of people so as to bring them
within the wider connotation of backward class. Nevertheless, caste in Hindu society
becomes a dominant factor or primary criterion in determining the backwardness of a class of
citizens. The court has also observed that neither the Constitution nor the law prescribes the
procedure for identification of backward classes. One can start with the process of identification
with caste where available and see if it meets the other criteria for backwardness. Similar
process can be adopted with other occupational groups, communities and classes. Since caste
represents an existing identifiable social group or class encompassing an overwhelming minority
of the countrys population, one can well begin with it and then go to the other groups, sections
and classes.

Conversely, when an entire caste is found, on the application of relevant tests, to be socially and
educationally backward, such classification cannot be challenged on the ground that it is solely

33 Ashok Kumar Thakur v. UOI, (2008) 6 SCC 1. See also Indra Sawhney v. UOI, AIR 1993 SC 477;
M.R.Balaji v. State of Mysore, AIR 1963 SC 649; R.Chitralekha v. State of Mysore, AIR 1964 SC 1823;
State of Kerala v. N.M.Thomas, (1976) 2 SCC 310

34 Supra note 31

35 Chitralekha v.State of Mysore, AIR 1964 SC 1823.

36 AIR 1993 SC 477

17
based on caste;37 even though the reservation has been specified by caste, 38 such classification
will not be hit by Art.15(1).39 If a caste as a whole is found to be socially and economically
backward the mere fact that few of them are above the Social and Educational backwardness
the inclusion of the caste as socially and economically backward will not be violative of
Art.15(4).40 A Scheduled Caste is not a caste within the meaning of that word in Arts.15(1) and
16(2).41 It has a special meaning, namely, a Caste as notified by the President under
Art.366(24),42 having regard to their abysmal backwardness.43

As observed above, caste cannot be the sole basis for extending reservations to a community and
any such reservations will be prohibited by the Constitution itself by virtue of Art.15(1).
However, caste may be considered as a starting point to extend reservations when it is considered
with other factors. Caste represents an existing social group or hierarchy where the communities
falling under such communities have been oppressed by the structure of such hierarchies for ages
to come. The reservations being extended to the LC and LG community were extended to them
as there was specific mention of reservations being made to them in addition to the fact the
would not be affected by Art.15(1) as they are not considered caste within the meaning of the
word caste in Art.15(1). In addition, the LC and LG community were socially backward 44

37 State of A.P. v. Balaram, AIR 1972 SC 1375; See also Periakaruppan v. State of Tamil Nadu, AIR
1971 SC 2303

38 See also State of Kerala v. R.Jacob, AIR 1964 Ker 316; State of Kerala v. Rafra Rahim, AIR 1978 Ker
199 (FB); Rajendran v. State of Madras, (1968) 2 SCR 786 (791) : AIR 1968 SC 1012

39 ibid

40 Supra note 37

41 State of Kerala v. Thomas, AIR 1976 SC 490

42 Bhaiyalal v. Harikishan, AIR 1965 SC 1557

43 A.B.S.K.Sangh v. Union of India, AIR 1981 SC 298

44 Fact sheet, 10, pg.4

18
which would qualify them as socially backward and hence an amendment which would take
away such provisions which would help them advance in society is detrimental to their interests
and is liable to struck down as unconstitutional.

2.2.1.1 EVEN IF THE MEMBERS OF THE LC AND LG COMMUNITY DO NOT

QUALIFY AS SEBC, THEY ARE ENTITLED TO RESERVATIONS

To bring about equality among unequals it is necessary to adopt positive measures to abolish
inequality.45 Equality contemplated by Article 14 and other cognate Articles including Art.15(1),
16(1), 29(2) and 38(2) of the Constitution is secured not only when equals are treated equally,
but also when unequals are treated unequally.46 The above provisions empower to make positive
discrimination in favor of disadvantaged, particularly in the case of Scheduled Castes and
Scheduled Tribes.47 To bring about equality among unequals, it is necessary to adopt positive
measures to abolish inequality. The equalizing measure will have to same tools by which
inequality was introduced and perpetuated. Otherwise, equalization will not be of the unequals. 48
The historically disadvantaged groups must be given special protection and help, so that they can
uplifted from their poverty and low social status. It is for this reason that special provisions have
been made in our Constitution.49

In this connection, reference must be made to Article 46 which imposes a duty on the State to
promote with special care the educational and economic interests of the weaker sections of the
community. Even though Article 46, as such, cannot be enforced in a Court, the Court must give
effect to Art.15(4), where its conditions are fulfilled, because the State has been charged with the
duty of assisting the weaker sections of the community50 and in giving effect to Art.15(4), the

45 Supra note 30 at 2687

46 Indra Sawhney v. UOI, 1992 Supp (3) SCC 215.

47 State of U.P. v. Dina Nabi Sukhla, AIR 1997 SC 1095

48 Supra note 46

49 Kailas v. State of Maharashtra, AIR 2011 SC 598.

19
action taken by the State must be based on an objective approach- free from extraneous
pressures, so as to establish social and economic justice as directed by Art.46.51

Compensatory discrimination policies entail systematic departures from the norms of equality
(such as merit, evenhandedness and indifference to ascriptive characteristics). These departures
are justified in several ways-(1) preferential treatment may be viewed as needed assurance of
personal fairness a guarantee against the persistence of discrimination in subtle and indirect
norms; (2) such policies are justified in terms of beneficial results that they will be presumably
promote integration, use of neglected talented more equitable distribution, etc. With these two-
the anti-discrimination theme and general welfare theme-is entwined a notion of historical
restitution or reparation to offset the systematic and cumulative deprivations suffered by lower
castes in the past. These multiple justification points to the complexities of pursuits such a policy
and of assessing its performance.52

In State of Kerala v. N.M.Thomas,53 it was held that Art.15(4) and 16(4) is not an exception but
were emphatic assertions and directions to the State to take effective affirmative measures to
enforce the concept of equality as laid down Arts.14, 15 and 16. It was held that they are means
of achieving the right to equality enshrined in those Articles.

As in Art.14, as well in Art.15(1) if it demonstrated that special treatment is meted out to a class
of citizens not only on the ground of religion, race, caste, sex, place of birth or any of them, but
due to some special reasons and circumstances, the enquiry would be the duty of court to
examine whether such classification fulfills the two conditions, namely, it must be founded on
intelligible differentia which distinguishes persons or things that are groups together from others

50 Supra note 37

51 Balaji v. State of Mysore, (1963) 1 SCR 439 (437)

52 See Marc Galanter, Competing Equalities- Law and the Backward Classes in India, The Modern Law
Review, Vol.49, No.3 ,1986

53 AIR 1976 SC 490

20
left out of the group and that the differentia must have a rational relation to the object sought to
be achieved.54

As noted above, the State is duty bound by the Directive Principles of the State Policy to
promote the interests of the weaker section of the society. The provisions recognize the factual
existence of backward classes in our country brought about by historical reasons and make a
sincere attempt to promote the welfare of weaker section thereof. They shall be so considered as
to effectuate the said policy, but not give weightage to progressive section of our society under
the false color of caste to which they happen to belong.55 As we have earlier seen, the
reservations have been extended owing to the social backwardness and the amendment is against
the principles enshrined in the Preamble in addition to swaying away from the DPSPs and hence
is liable to be held unconstitutional.

2.2.3. The Academic regime cannot move toward Merit status quo.

The object of reservation for SC/ST is to bring them into the mainstream of national life, while
the object in respect of Backward community is to remove their social and educational
backwardness.56 It was held that reservation is anathema to merit in the matter of admission to
course of studies in which there is still competition as that alone satisfies the requirement of
Article 14. But just as inequality among equals results in denial of equal opportunities, so also,
equality among unequals results in denial of equal opportunity and equal protection of law
becomes a mere concept of philosophy with no practical significance. Reservation therefore has
to be accepted as a necessary factor, be it on caste basis, or religious basis or regional basis or
any other rational basis.57

54 Supra note 30 at 2698

55 Supra note 35

56 Chattar Singh v. State of Rajasthan, AIR 1997 SC 303; NTR University Health Services v. G.Babu
Rajendra Prasad, AIR 2003 SC 1947

57 Dr.Sudhakar v. Union of India, AIR 1995 AP 88 (FB)

21
The drop of students from the LC and LG community in the academic community has been
justified with the change in academic regime and it is humbly submitted that such a sudden
change would affect the members of the community as there is no rule under Art.15(4) that a
student cannot be given the benefit of reservation of more than one stage during the course of his
education career.58 It is humbly submitted that the LC and LG community will be at a
disadvantageous position with such an adverse change and without the ends of the reservation
policy being achieved, will only worsen their condition in society rather than improving it.

2.2.2. THE AMENDMENT VIOLATES ARTICLE 16 OF THE CONSTITUTION OF

HADEN
a. The impugned amendment deprives the LCs and LGs of not only rights but also other ancillary
provisions.

Public employment in a sovereign socialist secular democratic republic, has to be set down by
the constitution and the laws made thereunder. Our constitutional scheme envisages employment
by the government and by its instrumentalities, on the basis of a procedure established in that
behalf. Equality of opportunity is the hallmark, and the constitution has provided also for
affirmative action to ensure that unequals are not treated as equals. Thus, any public employment
has to be in terms of the constitutional scheme.59 Art 16 does not debar a reasonable classification
of the employees in the matter of appointment and promotion 60, provided the classification is
made with reference to the objective to be achieved61 as equality of opportunity means equality
as between the members of the same class of employees and not between that of separate
independent classes. 62

58 Ritesh R.Shah v. Y.L.Yamul, AIR 1996 SC 1378

59 Secretary, State of Karnataka v Uma Devi (3) 2006, 4 SCC 1, 21,22 (. 11)

60 Jaisinghani S. G. v Union of India, AIR 1967 SC 1427

61 Union of India v Kohli, AIR 1973 SC 811

62 Union of India v No. 664950 IM Hawildar/Clerk, 1999 3 SCC 709 (. 15)

22
An affirmative action in terms of Art. 16 (4) is meant for providing a representation to a class of
citizenry who are socially and economically backward.63 The words any provision are wide
enough to include not only reservation but other supplemental and ancillary provisions such as
exemptions, concessions, which are necessary for the upliftment of the backward classes, of
course, consistently with Art. 335.64 In the present case, the government, by way of bringing up
the amendment in question is not only depriving the LGs and LCs of their fundamental right, but
also of the probable exemptions and concessions flowing out of Article 335 of the constitution of
Haden.

b. Even if a right is not conferred, it is the duty of the State to provide privileges under Art. 16(4)

Though Art 16(4) does not confer any fundamental right upon any individual, it enjoins the State
to take positive action to alleviate inequality or, in other words, it confers power coupled with
duty.65

The object of reservation is to provide socio-economic equality to the disadvantaged. 66

Reservation in appointment is the part of constitutional scheme as a positive facility and
opportunity to backwards to improve excellence on a service or post.67 The whole basis of the
reservation under Art. 16(4) of the constitution is to provide additional protection to the members
of SCs and STs as a class of persons who have been suffering since a considerable length of time
due to social and educational backwardness. 68 The backward class which may be given the
benefit of Art. 16(4) of the constitution must consist of a homogenous group- the element of
homogeneity being the backwardness characterizing the class. Similarly, the history of Haden

63 Bimlesh Tanwar v State of hryana, (2003) 5 SCC 604, 617 (. 40)

64 Indra Sawhney v Union of India, AIR 1993 SC 477 (.55,56)

65 ibid at (.57,58, 94A, 292,396,399-400)

66 State of UP v Dr.Dinanath Shukla, (1997) 9 SCC 662 ( 7)

67 ibid ( 7 and 8)

68 E V Chennaiah v State of AP (2005) 1 SCC 394, 419-20 ( 50)

23
exhibits several evidences to prove that LCs and LGs have been suffering since a considerable
length of time.69 Based on the castes in which they were born, LCS and LGs were discriminated
against as untouchables and subsequently were completely ostracized out of ordinary life from
the time of their birth. Ambedkar70, draws a similar picture of India where caste system was as
prevalent as in Haden. According to him, division of labour based on the caste in which an
individual is born is actually a division of labourers i.e., birth based discrimination defeats social
and individual efficiency to develop the capacity of an individual to the point of competency to
choose and make his own career.71 Hence, compensation for historical exclusion can be done
only in the form of compensation for contemporary exclusion 72 by way of continuing the
privileges provided to LCs and LGs under the constitution and it is the duty of the State to
perform the same.

2.3. THE AMENDMENT VIOLATES ARTICLE 21 OF THE CONSTITUTION OF

HADEN
Right to life is the most fundamental of all human rights, and any decision affecting human life,
or which may put an individuals life at risk, must call for the most anxious scrutiny. 73 The
sanctity of human life is probably the most fundamental of the human social values. It is
recognized in all civilized societies and their legal system and by the internationally recognized
statements of human rights.74 Right to life is also guaranteed by Article 3 of Universal
Declaration of Human Rights, which says: Everyone has the right to life, liberty and security of
persons and Article 6 of Covenant on Civil and Political Rights, which reads Every human

69 Factsheet

70 See Valerian Rodrigues, The Essential Writings of B R Ambedkar: Annihilation of caste, p.263, Oxford
University press, London

71ibid at 264

72 See, Ashwini Deshpande, Affirmative Action in India: The Rationale for Affirmative Action, p. 40,
Edward Elgar Publishing Inc., Northampton, 2012

73 Bugdaycay v. Secretary of State, (1987) 1 All ER 940.

74 R(Pretty) v. DPP, (2002) 1 All ER 1.

24
being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life. Article 21 reads as: No person shall be deprived of his life or
personal liberty except according to a procedure established by law.75 The object of Article 21
is to prevent encroachment upon personal liberty by the Executive, save in accordance with
law.76 The 101st Constitutional Amendment endangers to Right to live with human dignity [1];
Right to livelihood [2] and the Right to Social Security [3] and, the Procedure was not just and
fair [4].

2.3.1. The Constitutional Amendment endangers the Right to live with human dignity
The Preamble in International Covenant as Civil and Political Rights, 1966, and International
Covenant of Economic, Social and Cultural Rights, 1966 proclaims the inherent dignity and of
the equal and inalienable rights of all members of this human family is the foundation of
freedom, justice and peace in the world. And also recognizing that these rights derive from
inherent dignity of the human person and had agreed upon the rights contained in the Covenant.

The early approach to Article 21 which generates right to life and personal liberty was
circumscribed by literal interpretation.77 But in course of time, the scope of this application of the
Articles against arbitrary encroachments by the Executive has been expanded by liberal
interpretation of the components of the Article in tune with the relevant international
understanding. Thus, protection against arbitrary privation of life no longer means mere
protection from death or physical injury, but also invasion of the right to live with human
dignity and would include all aspects of life which would go to make a mans life meaningful
and worth living such as his tradition, culture and heritage.78

75 Article 21, Constitution of India, 1950.

76 G.Gurundha Reddy v. A.P. Road Transport Corporation, AIR 1999 AP 179.

77 A.K.Gopalan v. State of Madras, AIR 1950 SC 27

78 Francis Coralie Mullin v. Administrator, Union Territory of India, AIR 1981 SC 746

25
Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti
Morcha v. Union of India.79 By characterizing Art. 21 as the heart of fundamental rights, the
Court gave it an expanded interpretation. Bhagwati J. observed: It is the fundamental right of
everyone in this country to live with human dignity free from exploitation. This right to live
with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of
State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the
least, therefore, it must include protection of the health and strength of workers, men and
women, and of the tender age of children against abuse, opportunities and facilities for children
to develop in a healthy manner and in conditions of freedom and dignity, educational facilities,
just and humane conditions of work and maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with human dignity and no State neither the
Central Government nor any State Government-has the right to take any action which will
deprive a person of the enjoyment of these basic essentials.

If the right to livelihood is not treated as part and parcel of the constitutional right to life, the
easiest way of depriving a person of his right to life would be to deprive him of his means to
livelihood to the point of abrogation. Any person, who is deprived of his right to livelihood
except according to just and fair procedure established by law, can challenge the deprivation as
offending the right to life conferred by Article 21.80 It is also the duty of the State to create a
climate where members of society belonging to different faiths live together and the State has a
duty to protect the life of all and if unable to do so, it cannot escape the liability to pay
compensation.81

In Chameli Singh v. State of U.P.,82 it was held that in an organized society, right to live as a
human being is not ensured by meeting only the animal needs of man. It is secured only when he
is assured of all facilities to develop himself and is freed from restrictions which inhibit the
79 1984 AIR 802, 1984 SCR (2) 67

80 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180

81 Kehar Singh v. State of Chattisgarh, AIR 2002 Chatt 14.

82 AIR 1996 SC 1051

26
growth. All human beings are designed to achieve this object. Right to live guaranteed in any
civilized society implies the right to food, water, decent environment, education, medical care,
and shelter. These are basic human rights known to any civilized society. Shelter for human
being is not a mere protection of his life and limb. It is the house where he has opportunities to
grow physically, mentally, intellectually, and spiritually.

As seen above, the right to live with dignity encompasses the right to live beyond mere animal
existence and ensures that a citizen, regardless of his caste, status, creed, sex, place of birth is
entitled to enjoy the right to live as a human being. It is the duty of the State to create a climate
where members of society belonging to different faiths can co-exist. The special provisions made
in favor of the LC and LG community ensured that the members of the community led a
dignified life with a minimum guarantee to education and income, assuring he had minimum
access to facilities that the members of the community could use to develop themselves and
move towards social inclusion and assimilating the lesser fortunate into the main stream society.
It is important to point out the question posed by the Supreme Court of India in Khedat Mazdoor
83
Chetna Sangath v. State of M.P., where it posed to itself a question If dignity or honor
vanishes, what remains of life? This is the significance of right to life and personal liberty
guaranteed under the Constitution of India in its Part III. 84 Thus, it is humbly submitted that the
impugned amendment endangers the right to live with human dignity and thus, should be held
unconstitutional.

2.3.2. The Constitutional Amendment deprives the Right to livelihood

Life in Article 21 of the Constitution is not merely the physical act of breathing. It does not
connote mere animal existence or continued drudgery through life. It has a much wider meaning
which includes right to live with human dignity, right to livelihood, right to health, right to
pollution free air, etc. In the case of Shehla Zia v. WAPDA,85 the court held: The word life is
very significant as it covers all facets of human existence. The word life has not been defined in

83 AIR 1995 SC 31

84 Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312

85 PLD 1994 SC 693

27
the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life
or mere existence from conception to death. Life includes all such amenities and facilities which
a person born in a free country is entitled to enjoy with dignity, legally and constitutionally

Originally it was held that the question of livelihood is included only in freedoms enumerated in
Article 19 particularly clause (g) or even in Article 16 in a limited sense; but the word life in
Article 21 does not include livelihood. 86 But this view has been changed by subsequent
decisions. It has now been ruled in a series of cases that right to livelihood is included in right to
life because no person can live without the means of living, that is, the means of livelihood. 87
Right to livelihood is an integral part of right to life under Article 21 of although it has not been
incorporated by specific language in Part III by the framers of the Constitution. The framers of
the Constitution, in the Preamble to the Constitution, guaranteed to secure to its citizens justice,
social, economic and political as well as equality of status and opportunity.

In Olga Tellis v. Bombay Municipal Corporation,88 it was held that the right to livelihood is born
out of the right to life, as no person can live without the means of living, that is, means of
livelihood. It was held that if the right to livelihood is not treated as part and parcel of the
constitutional right to life, the easiest way of depriving a person of his right to life would be to
deprive him of his means of livelihood to this point of abrogation.89

As noted earlier, life under Article 21 is not restricted to a mere animal existence and has a
much wider scope, encompassing the right to livelihood. The right has moved from being
recognized in a limited sense under Article 21 to a broader purview. Special provisions for the
LC and LG community ensured that there was a means to livelihood and the right is of supreme
importance as there is no meaning to life without a means to serve to such life and such a right
furthers the principle of the Constitution envisaged in the Preamble, which was to guarantee
86 Sant Ram, In Re., AIR 1960 SC 932

87 Supra note 80

88 AIR 1986 SC 180

89 See also D.K.Yadav v. J.M.A. Industries, (1993) 3 SCC 259; Dr.Haniraj L. Chulani v. Bar Council of
Maharashtra and Goa, AIR 1996 SC 1708

28
justice: social, economic and political; equality of status and opportunity. The amendment
deprives the members of the community of their means to livelihood. According to the dictionary
deprivation means debar from enjoyment. Since deprivation of right of any persons by the
State is prohibited except in accordance with procedure established by laws, it is to be construed
strictly against the State and in favor of this person whose rights are affected. 90 But in order to
constitute deprivation, there must be some direct, overt and tangible act which threatens the
fullness of the life of a person or members of the community, as distinguished from vague or
remote acts threatening the quality of life of people or at large.91 Even if the deprivation of
livelihood is temporary or non-final, nonetheless it is a deprivation for the purposes of this
article.92 It is humbly submitted that the impugned amendment deprives the members of the LC
and LG community the right to livelihood and is henceforth liable to be held unconstitutional.

2.3.3. The Constitutional Amendment endangers the Right to Social Security

The framers of the Constitution, in the Preamble to the Constitution, guaranteed to secure to its
citizens justice, social, economic and political as well as equality of status and opportunity. The
Preamble assures dignity of the individual. The Universal Declaration of Human Rights
guarantees the bare, fundamental rights which every individual must have access to. In Maneka
Gandhi v. Union of India,93 it was observed that this fundamental right represents the basic
values cherished by the people of our country since Vedic times and they are calculated to protect
the dignity of the individual and create conditions in which every human being can develop his
personality to the fullest. Such rights are incorporated into Constitutions in order to give effect to
International Conventions and such human rights include all civil, political, economic, social and
cultural rights as enshrined in such international documents. 94 Since right to education is

90 Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

91 Supra note 30 at 4722

92 Manmatha Nath Kayal v. District Manager, FCI, AIR 1996 Cal. 316

93 AIR 1978 SC 597

94 See Khwaja Abdul Mantaquim, Protection of Human Rights, who has stated that Part III of the
Constitution represents Human Rights.

29
indispensible in the interpretation of right to this development, as a human right, the right to
development is also considered to be a basic human right.95

There is duty cast on the State to make effective provisions for securing rights of disabled
persons and those suffering from other infirmities within the limits of economic capacity and
development.96 Economic empowerment to tribals, dalits and poor is a facet of right to life under
Article 21. Government policy to allot agricultural land to them is to render socio-economic
justice, and stipulation in the grant that prior permission is necessary for alienation or sale of
such land is only to effectuate the constitutional policy of economic empowerment of such
person being protected under Articles 14, 21, 38, 39 and 46 read with the Preamble of the
Constitution.97

Right to life covers within its ambit the right to social security and protection of family. K.
Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra
Bose98, held that right to social and economic justice is a fundamental right under Art. 21. The
learned judge explained that right to life and dignity of a person and status without means, were
cosmetic rights. Socio-economic rights were, therefore, basic aspirations for meaning right to
life and that Right to Social Security and Protection of Family were integral part of right to life.

In N.H.R.C. v. State of Arunachal Pradesh99, the Supreme Court of India said that the State is
bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and it
cannot permit anybody or group of persons to threaten other person or group of persons. No
State Government worth the name can tolerate such threats by one group of persons to another

95 Election Commission of India v. St.Marys School, (2008) 2 SCC 390.

96 Supra note 30 at 4744; Sambhavana v. University of Delhi, (2013) 14 SCC 781

97 Murlidhar Dayandeo Kesekar v. Viswanath Pandu Barde, 1995 (Supp-2) SCC 549

98 AIR (1992)573 :(1991) SCR Supl. (2) 267 (Minority Opinion)

99 AIR (1996) 1234 :(1996) SCC (1) 742

30
group of persons; it is duty bound to protect the threatened group from such assaults and if it fails
to do so, it will fail to perform its Constitutional as well as statutory obligations.

Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde100, it was held that right to economic
empowerment of poor, disadvantaged and oppressed dalits was a fundamental right to make their
right of life and dignity of person meaningful. A child who is denied right to education is not
only deprived of his right to live with dignity, but he is also deprived of his right to freedom of
speech and expression enshrined under Article 19(1)(a). 101 Right to life embodies several aspects
of life and it includes opportunity.102

The special provisions which were made in the form of reservations as a part of the States
affirmative action program ensured that the members of the LC and LG community were given
the access to opportunities which would help them improve their social and economic conditions,
which would be the final frontier in helping them cross the socially and educationally backward
barrier and enter the main stream society. The constitutional amendment endangers the right of
the members of the community to access such opportunities by removing them as a whole but
also fails in creating a level playing field which would only lead to worsen the condition of the
members of the LC and LG community which deprives and endangers the right to livelihood and
the right to human dignity. Thus, it is humbly submitted that the impugned amendment fails the
vision set out in the Preamble of the Constitution and further worsens the situation of the
members in trying to create a secular society.

2.3.4. The Procedure adopted (101st Constitutional Amendment) is not just and fair
Article 21 is the foundation of the constitutional scheme. The procedure established by law for
deprivation of rights conferred by this Article must be fair, just and reasonable. The rules of
justice and fair play require that State action should neither be unjust nor unfair, lest it attract the
vice of unreasonableness, thereby vitiating the law which prescribes that procedure and

100 (1995) Supp 2 SCC 549

101 ibid

102 Reliance Energy Ltd. v. Maharashtra State Road Transport Corporation Limited, (2007) 8 SCC 1.

31
consequently, the action taken there under. Any action taken by public authority which is
entrusted with statutory power has therefore, to be tested by the application of two standards-

1. The action must be within the scope of authority conferred by law;

2. It must be reasonable.

If any action, within the scope of authority conferred by law is found to be unreasonable, it
means that the procedure established under which the action is taken itself is unreasonable. The
law itself has to be reasonable and furthermore, action under that law has to be in accordance
with the law so established. Non-observance of either of this can vitiate the action, but if the
former is invalid, the latter cannot withstand. 103 In Maneka Gandhi v. UOI,104 the court said that
the principle of reasonableness which legally as well as philosophically, is an essential element
of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the
procedure contemplated by Article 21 must answer the test of reasonableness in order to be in
conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would
not be satisfied.105 If a law is found to direct the doing of an act which is forbidden by
Constitution or to compel the performance of an act by the adoption of a procedure which is
impermissible under the Constitution, it would have to be struck down. 106 In order that the
procedure is right, just and fair, it should conform to the principle of natural justice, i.e., fair play
in action.107

The 101st Constitutional Amendment repeals all provisions in favor of the LC and LG which are
extended to them in them being a separate community. However, such reservations are extended

103 Ramlila Maidan Incident v. Home Secretary, UOI, (2012) 5 SCC 1

104 AIR 1978 SC 597

105 District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496

106 Supra note 80

107 Supra note 90.

32
to the community in light of the historical oppression faced by the communities, with the LCs
and LGs being the lowest in the Golos community. The Constitution expressly makes provisions
to ensure a level playing field for the members of the community and the same can be seen in the
Directive Principles of State Policy viz. Article 46. The Parliament has completely disregarded
all such provisions and proceeded with the amendment even with a review so as to whether or
not the ends of affirmative action have been achieved. At the same time, the amendment violates
Article 14 as there seems to be no reasonable classification between in the act of the Parliament
and thus, the 101st Constitutional Amendment is to be held unconstitutional.

3. THE CONSTITUTION (ONE HUNDRED AND FIRST AMENDMENT) ACT, 2016

VIOLATES THE BASIC STRUCTURE OF THE CONSTITUTION OF HADEN.

The Supreme Court in the case of Kesavanandha Bharati v. State of Kerala108 recognized for the
first time, a few provisions of the constitution as sacrosanct that preserve the original ideals
envisioned by the constitution makers for the constitution. As a result, the Basic Structure
doctrine was propounded which acknowledged that a few features of the constitutional structure
are so fundamental that the Constitution cannot survive without them and together they
constitute an inviolable core called the Basic Structure of the Indian Constitution109. The 101st
Constitutional Amendment Act, 2016 introduced by the govt. of Haden encroaches upon multiple
tenets of the Basic Structure and therefore, invalid on the following grounds :

3.1 THE CONSTITUTIONAL AMENDMENT IS AGAINST THE PRINCIPLES OF

EQUALITY, AND OTHER FUNDAMENTAL ELEMENTS OF THE BASIC
STRUCTURE.

a. Derecognizing LC and LG community as a separate community and repealing all enabling

provisions providing privileges for them is against the concept of proportional equality and
other tenets of Basic Structure.

108 (1973) 4 SCC 225

109 See Satya Prateek, Todays Promise, Tomorrows Constitution: Basic Structure, Constitutional
Transformations and the Future of Political Progress in India, [2008] NUJSLawRw 28; (2008) 1(3) NUJS Law
Review 417

33
Proportional equality, as opposed to formal equality is a concept that expects the states to take
affirmative action in favour of disadvantaged section of the society within the framework of a
democracy. It takes into account the factors of historical oppression and systematic
discrimination to provide a level playing field for all while the former already assumes a level
playing field. Article 14 embodies within it the Dicean concept of the Rule of Law, which
means inter-alia an equal subjection of all classes to the ordinary law of the land.110 Article 14
apart from embodying equality before law, also includes equal protection of laws111. The
former is a negative concept prohibiting the state from discrimination on any grounds, while the
latter is positive112 in content.

Equal protection of laws ensures equal treatment among the equals113 and not a universal
application of equality irrespective of differences of circumstances114. It binds upon the state to
provide equal treatment to same class while also providing for affirmative action to the
disadvantages section to reduce de facto inequalities as the same set of laws cannot be applied
for both the classes of people. The enabling provisions that seek to achieve proportional equality
are embedded in the form of art. 15(4) and 16(4), derived from article 14 which is the genus,
while its derivatives are the species115.

110 Bachan Singh v. State of Punjab AIR 1982 SC 1325

111 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

112 J.Srinivasa Raju v. State of Orissa 113(2012) Cut LT 13(22) (Ori)

113 Gauri Shankar v. Union of India AIR 1995 SC 55, at 58 : (1994) 6 SCC 349

114 Supra note 19

115 Naz foundation v. Govt. of NCT of Delhi, 2009 (160) DLT 277 : 2009 (5) AD (Del) 429: 2009 (111)
DRJ 1 : 2009 (3) JCC 1787 : 2010 CrLJ 94 (Del-DB)

34
Right to equality has been declared by the Supreme court as the essence of democracy and a
basic feature of the constitution116. In the case of M.G.Badappanavar v. State of Karnataka117, the
Supreme court held that any treatment of equals unequally or unequals as equals will be a
violation of the Basic Structure of the constitution. In the cases of Raghunathrao Ganpathrao v.
Union of India118, I.R.Coelho v. State of T.N119, Indra Sawhney v. Union of India120, the rule of
equality has been recognized as one of the fundamental tenets of Basic Structure.

The fact that the LCs and LGs were still facing social discrimination121 and that contempt was
still prevalent in rural areas122covertly against them is sufficient to prove that equality and a level
playing field was still a far cry. Despite success, the concept of reservation did still not achieve
completely the ends it sought to. Social discrimination is equally insidious and the courts have
not disregarded the role of castes in perpetuating discrimination123, though it cannot be the sole
criteria. In such a situation, the Govt. of Haden is not justified in scrapping out privileges to the
communities of LCs and LG and grossly violates the principles of proportional equality
enshrined in articles 14, 15 and 16 as part of Fundamental Rights. As a consequence, the 101st
Constitutional Amendment Act, 2015 ultimately violates the Basis Structure of the constitution
and therefore, unconstitutional and be struck down.

116 M.Nagaraj v. Union of India AIR 2007 SC 1 : (2006) 8 SCC 212

117 AIR 2001 SC 260, at 264 : (2001) 2 SCC 666

118 AIR 1993 SC 1267 CB : 1994 Supp. (1) SCC 191 : 1993 (1) SCR 480 (s. 96, 176)

119 (2007) 2 SCC 1, 105 AIR 2007 SC 861(.129)

120 (2000) 1 SCC 168 (s.64, 65)

121 Factsheet, . 10, pg.4

122 Factsheet, . 8, pg. 3

123 P. Rajendran v. St. of Madras AIR 1968 SC 1012 : (1968) 2 SCR 786; See also A.Periakaruppan v.
State of Tamilnadu AIR 1971 SC 2303

35
Conversely, the Supreme Court upheld the validity of the 45th Amendment Act, 1978 which
sought to extend reservations for Scheduled Castes and Scheduled Tribes in the legislatures
under Article 334124. Subsequent amendments had extended the time for reservation in
legislatures to 60 years while it was originally intended to last for 20 years. Also, the insertion of
clause 5 in article 15 through the 93rd Constitutional Amendment Act, 2005 which ushered in
reservations for backward classes, SCs and STs in private educational institutions except
minority educational institutions was held to be not violative of Basic Structure of the
constitution, subject to the exclusion of creamy layer125. Also, in the case of Indian medical
association v. Union of India126, the Supreme Court held that 15(5) does not violate Basic
structure, but only strengthens it.

The 101st Constitutional Amendment Act, 2015 is not only inconsistent with the principle of
equality under the Basic Structure, but also some of the other elements. In the case of Indira
Gandhi v. Rajnarain127, the Supreme Court ruled that Preamble of the constitution which
guarantees equality of status and Rule of Law is a part of the Basic Structure of the
constitution128. The 101st Constitutional Amendment, 2015 is not in compliance with the
objectives of preamble as equality had not yet been achieved in Haden and therefore, against the
Basic Structure. Social Justice and Welfare State are other cherished values enshrined in the
preamble. Their significance is such that apart from being a part of the Preamble, they have
separately been held to be a part of Basic Structure129.

124 Vishitra Banwarilal Meena v. Union of India AIR 1982 Raj. 297

125 Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 01 (486) : (2008) 3 MLJ 1105

126 AIR 2011 SC 2365 (2417) : (2011) 7 SCC 179

127 AIR 1975 SC 229: (1975) 3 SCC 34

128 State of U.P. v. Dr. Dina Nath Shukla (1997) 9 SCC 662 : AIR 1997 SC 1095 (.6)

129 Bhim Singhji v. Union of India AIR 1981 SC 234: (1981) 1 SCC 166 (.18)

36
Social justice and welfare state form a part of the Directive Principles of State Policy and
fundamental in the governance of every country aimed at creating a welfare state130. Article 38(1)
of the constitution directs the state to strive to promote the welfare of the people by securing
social, economic and political justice. Also, article 46 enjoins upon the state to promote with
special care the educational and economic interests of the weaker section of the people and
protect them from all forms of social injustice and exploitation.

Social justice and other Directive principles of State Policy are ends131 in themselves which the
state should aspire to achieve. In the present case, the initiative taken by the govt. of Haden to
promote equality through affirmative action has still not achieved the ends which it ought to have
i.e. social justice and welfare to backward classes of people. Thus, the 101st Constitutional
Amendment, 2015 is passed at a time when the ends of social justice and welfare state have not
been achieved and violates the Basic Structure as it prevents any progress in such direction
towards achieving it.

On the whole, the Amendment violates the Trinity132 of the constitution comprising of The
Preamble, Fundamental Rights and Directive Principles of State Policy and should be struck
down as violating Basic Structure133 as it changes the constitutional identity134 without actually
achieving the constitutional ends.

b. The 101st Constitutional Amendment Act, 2015 is inconsistent with the Twin Tests laid down
in M.Nagaraj v. Union of India135

130 Supra note 19

131 Minerva Mills v. Union of India AIR 1980 SC 1789: (1980) 2 SCC 591

132 Ahmedabad mun. corp. v. Nawabkhan Gulab Khan AIR 1997 SC 152 at 163 : 1997 (11) SCC 121

133 See H.M.Seervai, Constitutional law of India, Vol.2, 4th edition, Universal law Publishing Co., New
Delhi

134 Supra note 18

135 Supra note 116

37
The Supreme Court in order to determine the constitutional validity of the 77th, 81st , 82nd and 85th
Constitutional Amendments Acts which inserted new provisions in the form of article 16(4A),
(4B) and amended article 335 in favour of the SCs and STs. The impugned amendments
introduced reservation in promotion with consequential seniority for SCs and STs in any class
of job relating to public employment and relaxed the limitations in qualifying marks or standards
of evaluation in article 335. The Court while upholding the impugned amendments laid down
twin tests comprising of the width test and the test of identity to assess if the provisions
violated the Basic Structure of the constitution.

In applying the width test, the considered the width of the power conferred under the
amendment in the sense that, whether they obliterate the constitutional limitations which reduce
the scope of its exercise which was in the form of 16(4) namely, backwardness and inadequacy
of representation. Another limitation was in the form of Article 335 where the general efficiency
of the service was to be maintained while providing affirmative action. The court came to the
conclusion that the amendments did not derogate the constitutional requirements. Applying the
test of identity, the court stated that through the impugned amendments, the constitution did not
lose its identity in the sense that there was no alteration in the existing structure of the equality
code and none of the overarching principles of the constitution like secularism, federalism,
democracy etc. have been violated136.

In the present case, the only limitation in the continuation of reservation was the time limit being
till 1975137 within which it was ought to be abolished. The assumption behind the time limit was
that equality would be achieved in the society and there would be no requirement of any further
use of reservation. However, even before passing the 101st Constitutional Amendment Act in
2015, discrimination was prevalent138, though not as viciously as it existed. In such a scenario,
applying the width test and the test of identity to determine the validity of the amendments, it
could be inferred that the amendment violates the Basic Structure as it obliterates the
136 See Justice V.Dhanapalan, Basic Structure of the Indian Constitution- An Overview, C.Sitaram &
Co.

137 Factsheet, .6 , pg.3

138 Supra notes 46

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limitations, which assumes that only on achieving generic equality139 as envisioned by the
constitution makers, reservations can be scraped out. For the same reason, once a class appears to
have reached a stage of progress, the state will do well to review such instances and suitably
revise the backward classes140. The benefit of reservation cannot be allowed to continue without
limitation and the same has to be reviewed periodically141. Thus, it is pertinent to state that the
limitation which is bound by time and a level playing field is destroyed on the implementation of
the said amendment. It fails the test of identity too as overarching principles of equality and
rule of law are compromised on as the state is no longer entitled to protect the disadvantaged
section and unequals shall be treated as equals.

Another doctrine which was used in the Nagaraj142 case to determine if the state had exceeded or
obliterated the limitation while granting reservation is the Doctrine of Guided Power.
According to it, equality is not violated on the mere conferment of power, but it is breached by
the arbitrary exercise of the power conferred. The court applied the doctrine to determine the
validity of the proviso to article 335 and found that it had a direct nexus with articles 16 (4A) and
(4B). In the present case, the power conferred to the govt. of Haden to remove affirmative action
was legitimate owing to its temporary nature, but its exercise was arbitrary. The Amendment
abolishes affirmative action at once and not even in a phased and a timely manner thereby doing
a great injustice to the backward classes.

To preserve equality, a balance was struck in the case of Indra Sawhney143 so as to ensure that the
part of Basic Structure embodied in Articles 14, 15 and 16 remains intact and at the same time,
social upliftment, as envisaged by the Constitution stood achieved. In order to balance and
structure the equality, a ceiling limit on reservation was fixed at 50% and also, reservation was

139 Supra note 30

140 St. of U.P. v. U.S.V. Balram AIR 1972 SC 1375 : (1972) 1 SCC 660

141 Jagdish Negi v. St. of U.P. (1997) 3 SCC 203 : AIR 1997 SC 3505

142 Supra note 19

143 Supra note 120

39
subject to limitations in articles 16(4) and 335. By implementing this amendment, the govt. of
Haden is destroying the balance which was created by the Supreme Court.

3.2 THE 101ST CONSTITUTIONAL AMENDMENT ACT, 2015 VIOLATES THE

JUDICIAL DOCTRINE OF HARMONIOUS CONSTRUCTION OF FUNDAMENTAL
RIGHTS WITH DIRECTIVE PRINCIPLES OF STATE POLICY

The introduction of Directive Principles of State Policy has transformed mere states into welfare
states144 seeing to achieve socio-economic justice145. Article 37 of the Constitution clearly
stipulates that Directive principles despite not being enforceable are fundamental in the
governance of any country. In the words of Dr. Ambedkar, I am prepared to admit that
Directive principles have no legal force, but not prepared to admit that they have no sort of
binding force at all. Whoever, captures power will have to respect these instruments of
instructions called Directive Principles. What great value these Directive Principles possess will
be realized better when the forces of right contrive to capture power146.

However, in cases of a direct conflict between the two of them, the courts have called for a
harmonious construction between the both of them to give effect to both147. In the case of
Kesavananda Bharathi, it was held that , Both Part III and Part IV have to be balanced and
harmonized, they were meant to complement and supplement each other.148 Fundamental Rights
are but a means to achieve the goals indicated in Directive Principles149 and they should be
construed together. Their relationship is such that, Directive Principles are eventually assimilated

144 Paschim Banga Khet Mazdoor Samity v. St. of West Bengal (1996) 4 SCC 37 : AIR 1996 SC 2426

145 D.S. Nakara v. Union of India AIR 1983 SC 130 : (1983) 1 SCC 305

146 See Constitution Assembly Debates, Vol. VII, p. 41

147 Venkataramanna v. State of Mysore AIR 1958 SC 225 : 1958 SCR 895

148 See also Chandra Bhavan Boarding and lodging, Bangalore v. State of Mysore AIR 1970 SC 2042:
(1969) 3 SCC 84

149 Unnikrishnan v. State of Andhra Pradesh AIR 1993 SC 2178 : (1993) 1 SCC 645

40
into Fundamental Rights to expand its ambit and scope. For e.g., Right to live with human
dignity enshrined in Article 21 derives its life breath from Article 39 and 43 of the constitution
which constitute Directive Principles150. Also, Right to education which is a Directive Principle
under article 41 has merged into being a part of Fundamental Rights under Article 21A of the
constitution151 and made enforceable.

Article 38(1) directs the state to strive to promote the welfare of the people by securing and
protecting a social order in which justice, social, economical and political is achieved.

Article 38 should be read along with article 14 of the Constitution152. The concept of social
justice has been explained in Air India Statutory Corpn. v. United Labour Union153 to be, The
concept of 'social justice' which the Constitution of India engrafted, consists of diverse
principles essential for the orderly growth and development of personality of every citizen.
Social Justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and
deprived sections of the society.

Another important provision relating to upliftment of weaker sections of the society is contained
in Article 46. The article mandates the state to protect the educational and economic interests of
the weaker sections of the people, especially Scheduled Castes and Scheduled Tribes and to
protect them from all forms of exploitation. Article 46 supplements Arts. 15(2), 15(4), 16 and 17.
They exemplify the concepts of social and economic empowerment of the weaker sections
thereby guaranteeing distributive justice. The state through this article is enjoined to provide
adequate means of livelihood, and to distribute material resources of the community, to the poor,
backwards sections of the society, the Dalits and the Tribes154.

150 Supra note 79

151 See Constitution (Eighty-sixth) Amendment Act, 2002

152 Supra note 21

153 AIR 1997 SC at 669 : (1997) 9 SCC 377

154 Murlidhar Dayandeo Kesekar v. Vishwanath Pandu barde (1995) Supp (2) SCC 549: (1995) 2 SCJ
553; See also R.Chandevarappa v. State of Karnataka (1995) 6 SCC 309 : 1995 (5)

41
The courts have upheld the harmonious construction doctrine whenever there is a conflict
between Part III and Part IV negating the aspect of non enforceability of Directive Principles. In
the case of M.Nagaraj155, where when the right of an individual to equal opportunity on the one
hand had to be considered vis--vis preferential treatment to an individual belonging to a
backward class in the matter of public employment under Articles 16(4A) and 38(1), the Court
upheld the classification envisaged by such articles. The State can separately categorize SCs and
STs for the purpose of adequate representation in the services as Art.46 specifies and this would
not necessarily violate articles 14 and 16156. Also, the insertion of 15(5) in article 15 was held to
be valid as it furthers the objectives specified under article 46157. There have also been instances
where DPSPs have been given preference over Fundamental Rights. In the case of State of
Bombay v. F.N.Balsara158, the provisions of the Bombay prohibition Act, 1949 banning liquor
except for medicinal purposes were impugned on the ground, inter alia, as violating art. 19(1)(f),
the right to carry any trade or occupation. The SC upheld the Act stating, state was entitled to u/
entry 31. The challenge u/ 19(1)(f) was repelled by saying the Act imposed reasonable
restrictions in the public interest in compliance with art. 47 which directs the State to bring about
prohibition of intoxicating drinks and drugs which are injurious to health.

In the present case, the govt. of Haden by passing the 101st Constitutional Amendment Act, 2015
overrides the provisions of Directive Principles in furtherance of Fundamental Rights especially
at a time when the ends specified therein have not been achieved. At a time, when social and
economic justice was still a dream in Haden, effecting such an amendment in furtherance of the
equality clauses mentioned in articles. 14, 15(1) and 16(1) by disregarding the concept of
Directive Principles of State Policy is arbitrary and unjust.

155 Supra note 19

156 A.B.S.K. Singh (Rly) v. Union of India AIR 1981 SC 298 : (1981) 1 SCC 246; See also State of
Punjab v. Dayanand medical college and hospital (2001) 8 SCC 664 : AIR 2001 SC 3952

157 Supra note 124

158 AIR 1951 SC 318 : 1951 SCR 682

42
The balance between Part III and Part IV and their harmonious construction, in fact been
recognised as one of the elements of Basic Structure159. It was held by Chandrachud, C.J., To
give absolute primacy to one over the other is to disturb the harmony of the constitution. This
balance is an essential feature of the Basic Structure of the constitution. Anything that destroys
its balance will ipso facto destroy an essential element of Basic Structure of our Constitution.

The govt. of Haden is again encroaching upon the Basic Structure in order to change the nature
and scope of the Constitution. The Constitutional Amendment Act not only abrogates the
Fundamental Rights, but goes a step ahead in destroying the most cherished and noble values
enshrined in the constitution by the constitution framers. The amendment is therefore violating
the inviolable in the form of Basic Structure, and therefore needs to be struck down.

PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED, CASES AND AUTHORITIES CITED

ABOVE, THE PETITIONER HUMBLY REQUESTS THE HONBLE SUPREME COURT OF

HADEN, TO ADMIT THE WRIT PETITION, AND IN SO DOING, ADJUDGE AND

DECLARE THAT:

I. THE CONSTITUTION (ONE HUNDRED AND FIRST AMENDMENT) ACT, 2016 IS

UNCONSTITUTIONAL BEING VIOLATIVE OF THE FUNDAMENTAL RIGHTS

GUARANTEED TO THE LC AND LG COMMUNITY UNDER THE CONSTITUTION OF

HADEN.

II. THE CONSTITUTION (ONE HUNDRED AND FIRST AMENDMENT) ACT, 2016 IS

VIOLATIVE OF THE BASIC STRUCTURE OF THE CONSTITUTION, THE PRINCIPLES

OF EQUALITY ENSHRINED IN THE PREAMBLE OF THE CONSTITUTION.

159 Supra note 133

43
AND PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT IT MAY DEEM FIT IN

THE BEST INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL DUTY BOUND FOREVER

PRAY.

SD/-

COUNSELS FOR THE PETITIONER

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