st lex-omnia moot court competition...1st lex-omnia moot court competition (2013) in the hon’ble...

1ST

LEX-OMNIA MOOT COURT COMPETITION (2013)

IN THE HON’BLE SUPREME COURT

OF INDIA

Case concerning Constitutional Validity of The Constitution (One Hundredth

Amendment) Act, 2012

SOCIETY FOR EQUALITY (PETITIONER)

V.

UNION OF INDIA (RESPONDENT)

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

AT NEW DELHI

MEMORIAL ON BEHALF THE PETITIONER

SOCIETY FOR EQUALITY

Team Code: W6

MEMORIAL FOR THE PETITIONER

ii

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................................. v

INDEX OF AUTHORITIES ............................................................................................................ vii

Cases .................................................................................................................................... vii

Statutes .................................................................................................................................. xi

Other Authorities .................................................................................................................. xi

International Documents ...................................................................................................... xi

Books ..................................................................................................................................... xi

Articles ................................................................................................................................. xii

STATEMENT OF JURISDICTION ................................................................................................. xiii

STATEMENT OF FACTS ............................................................................................................. xiv

QUESTIONS PRESENTED ............................................................................................................ xv

SUMMARY OF ARGUMENTS ...................................................................................................... xvi

WRITTEN PLEADINGS ................................................................................................................ 1

ON MAINTAINABILITY

[I.] THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT OF INDIA. .................................................................................................. 1

[I.A.] ARTICLE 32 OF THE CONSTITUTION OF INDIA GIVES POWER TO THE SUPREME

COURT OF INDIA TO ENTERTAIN THE WRIT PETITION. ...................................................... 1

[I.B.] SOCIETY FOR EQUALITY HAS LITIGATIONAL COMPETENCE TO SUBMIT THE WRIT

PETITION BEFORE SUPREME COURT OF INDIA. ................................................................. 1

ON MERITS

[II.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 VIOLATES THE

BASIC STRUCTURE OF THE CONSTITUTION. ........................................................................ 2

[II.A.] RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) RESULTS IN

REVERSE DISCRIMINATION AND HENCE VIOLATES EQUALITY CLAUSE OF THE

CONSTITUTION. ............................................................................................................... 2


iii

1. RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) RESULTS

IN REVERSE DISCRIMINATION. ............................................................................ 2

2. THE IMPUGNED AMENDMENT VIOLATES ARTICLE 14 OF THE CONSTITUTION.

............................................................................................................................ 4

a. The 100th

Constitutional Amendment Act, 2012 has no rational basis. ....... 5

i. Classification Lacks Intelligible Differentia .............................................. 5

ii. There is no reasonable nexus present between the rationale and the

object ............................................................................................................. 6

[II.B.] THE AMENDMENT AFFECTS THE PRINCIPLES OF EFFICIENCY, MERIT AND MORALE

OF PUBLIC SERVICES AND THE FOUNDATION OF GOOD GOVERNANCE AND HENCE IT IS

AGAINST THE INTEREST OF THE NATION. ......................................................................... 6

[II.C.] THE PARLIAMENT CANNOT DO AWAY WITH THE REQUIREMENT OF ‘INADEQUACY

OF REPRESENTATION AND OVERALL EFFICIENCY’ SINCE 16(4A) IS CARVED OUT FROM

16(4). .............................................................................................................................. 8

[II.D.] THE STATE CANNOT EXERCISE UNFETTERED, UNTRAMMELED AND

UNCONSTITUTIONAL POWER TO PROVIDE RESERVATION UNDER ARTICLE 16(4A) [AS

AMENDED BY THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012] AS IT IS

AGAINST THE TENETS OF CONSTITUTIONALISM. ............................................................. 10

[III.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 VIOLATES THE

PRINCIPLES OF EQUALITY ENSHRINED IN THE PREAMBLE OF THE CONSTITUTION. ......... 12

[III.A.] THE PREAMBLE IS A KEY TO GAUGE THE INTENTION OF THE CONSTITUTIONAL

FRAMERS. ...................................................................................................................... 12

[III.B.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 VIOLATES THE

PRINCIPLE OF EQUALITY ENSHRINED IN THE PREAMBLE. ............................................... 13

[IV.] THE IMPUGNED AMENDMENT VIOLATES THE CONCEPT OF JUDICIAL REVIEW. ...... 14

[IV.A]. THERE IS IMPLIED LIMITATION ON THE POWER OF AMENDMENT IN

ACCORDANCE WITH ARTICLE 368. ............................................................................... 14

1. AMENDMENT TO PART III IS PROHIBITED. .................................................... 14

2. OTHER IMPLIED LIMITATIONS ON THE POWER OF “AMENDMENT” AS USED

IN ARTICLE 368. ................................................................................................ 15


iv

3. CONSTITUTIONALISM AS AN IMPLIED LIMITATION ....................................... 15

[IV.B.] JUDICIAL REVIEW AS A BASIC FEATURE OF THE CONSTITUTION CANNOT BE

UNDERMINED BY LEGISLATIVE ACTION. ........................................................................ 16

[IV.C.] JUDICIAL REVIEW ENDORSES THE CONCEPT OF CHECKS AND BALANCES OVER

THE LEGISLATURE. ........................................................................................................ 17

1. THE AMENDMENT CONFERS WIDE DISCRETIONARY POWERS ON THE

GOVERNMENT ................................................................................................... 17

[IV.D.] THE AMENDMENT IS A PIECE OF COLOURABLE LEGISLATION. ........................... 18

1. THE PARLIAMENT DOES NOT HAVE COMPETENCY TO PASS THE AMENDMENT

ACT. .................................................................................................................. 18

[V.] RETROSPECTIVE EFFECT IS AGAINST THE SPIRIT OF THE CONSTITUTION. ................ 20

PRAYER FOR RELIEF................................................................................................................. xxi


v

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

Doesn’t Does not

Ed Edition

Guj Gujarat

Hon’ble Honourable

HP Himachal Pradesh

Hyd Hyderabad

i.e. Therefore

Id Ibidium

ILR Indian Law Reports

Kar Karnataka

Ker Kerala

KLT Kerala Law Times

LR Law Reports

Mad Madras

MP Madhya Pradesh

NCT National Capital Territory

No. Number

Ori Orissa


vi

Ors Others

P&H Punjab & Haryana

Pat Patna

PC Privy Council

Punj Punjab

Raj Rajasthan

SC Supreme Court

SCALE Supreme Court Almanac

SCC Supreme Court Cases

SCR Supreme Court Reporter

UOI Union of India

U.P. Uttar Pradesh

U.N.T.S. United Nation Treaty Series

U/A Under Article

V Versus


vii

INDEX OF AUTHORITIES

Cases

A.P Agarwal v. Govt. of NCT of Delhi, 2000 SC 205 ............................................................ 13

AIIMS Students Union v. AIIMS, AIR 2001SC 3262. ........................................................... 14

Ajit Singh I v. State Of Punjab, (1996) 2 SCC 715 ............................................................. 7, 11

Ajit Singh II v. State Of Punjab , AIR 1999 SC 3471. ............................................................ 11

Akhil Bharatiya Soshit Karmachari Sangh (Rly) v. Union Of India, (1981) 1 SCC 246 ..... 7,8,

10, 11

Arati Ray Choudhury v. Union of India, (1974) 1 SCC 87. ...................................................... 4

Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201....................................................... 3,8

Ashok Kumar v. Union of India, AIR 1991 SC 1972 .............................................................. 19

Ashok Pandey v State of UP, AIR 1996 All 24. ...................................................................... 10

B.B. Rajwanshi v. State of U.P., (1988) 2 SCC 415 ................................................................ 20

Baburao v. State of Bombay, Housing Board, 1954 SCR 572 .................................................. 6

Bachan Singh v. State of Punjab, AIR 1982 SC 1325 ............................................................. 13

BALCO Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350 .................... 2

Bandhua Mukti Morcha v. Union of India & Ors., AIR 1984 SC 802 ...................................... 1

Bangalore Medical Trust v. B.S. Mudappa, AIR 1991 SC 1902. .............................................. 1

Basheshar Nath v. Commissioner of Income Tax, Rajasthan, [1959] Supp 1 SCR 528. ........ 12

Bhairebendra Narayan v. State of Assam, AIR 1956 SC 503. ................................................ 19

Board of Trustees, Ayurvedic and Unani Tibia College v. State of Delhi, AIR 1962 SC 458 18

Chattar Singh v. State of Rajasthan, AIR 1997 SC 303............................................................. 8

Chiranjit Lal v. UOI, AIR 1951 SC 41 ...................................................................................... 4

Commr. Of Commercial Taxes v. G Sethumadhava Roa, AIR 1996 SC 1915. ........................ 8

CST v. Pine Chemicals Ltd., (1995) 1 SCC 58 ....................................................................... 19

Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104 ....................................... 5

Dayanand v. Nagaraj, AIR 1976 SC 2183 ............................................................................... 19

Devi Das Gopalkrishnan v. State of Punjab, AIR 1967 SC 1895 ............................................ 18

Devidayal Rolling Mills v. Prakash Chimanlal Parikh, AIR 1993 SC 1982 ........................... 19

Dr D.C. Wadhwa & Ors. v. State of Bihar & Ors., AIR 1987 SC 579 ...................................... 2

E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555. ......................................................... 4


viii

Express Newspaper P. Ltd. v. Union of India, AIR 1958 SC 578 ............................................. 5

Federation of All India Customs and Central Excise Stenographers v. Union of India, AIR

1988 SC 1291 ......................................................................................................................... 5

General Manager v. Rangachari, AIR 1962 SC 36 .................................................................... 3

Guruvayur Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors., AIR 2004 SC 561

................................................................................................................................................ 2

Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 ................................................... 18

Harakchand R. Banthia v. Union of India, AIR 1970 SC 1453 ......................................... 15, 18

I. N. Saksena v. State of M. P., AIR 1976 SC 2250 ................................................................ 18

In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 ...................................... 14

In re, Article 143, The constitution of India, AIR 1951 SC 332 ............................................. 17

In re, The Delhi Laws Act, AIR 1951 SC 332 ........................................................................ 15

Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. ........................................................ 20

Indra Swahney v. Union of India, AIR 1993 SC 477. ............................................................... 2

Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 ................................ 3

ITO v. Murlidhar Bhagwan Das, AIR 1965 SC 342.................................................................. 6

Jagannath Baksh Singh v. State of U.P., AIR 1962 SC 1563 .................................................. 19

Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245 ............................................... 5

Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 .................................................................. 3

Jagdish Negi, President Uttarakhand Jan Morcha v. State Of Uttar Pradesh, AIR 1997 SC

3505........................................................................................................................................ 9

Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Sabha Union, AIR 1967 SC 691 ...................... 19

Jaora Sugar Mills Pvt. Ltd. v. State of M.P., AIR 1966 SC 416.............................................. 19

Javed v. State of Haryana, (2003) 8 SCC 369, 380 ................................................................... 5

John Vallamettom v. Union of India, AIR 2003 SC 2902 ....................................................... 14

Joshi D.D. v. Union of India, AIR 1983 SC 420 ....................................................................... 5

K.C. Gajapati Narayana Deo v. State of Orissa, AIR 1953 SC 375 .................................. 18, 19

Kasturi v. State of Jammu and Kashmir, AIR 1980 SC 1992.................................................... 4

Kathi Ranging Rawat v. State of Saurashtra, AIR 1952 SC 123 ............................................... 5

Kesavananda Bharati v. State of Kerala & Anr., AIR 1973 SC 1461. .................................... 15

Khunnathat Thathunni Moopil Nair v. State of Kerala AIR 1961 SC 552 .............................. 19

Krishna A.S. v. State of Madras, AIR 1957 SC 297 ................................................................ 19

Kunhikaman v. State of Kerala AIR 1962 SC 723 ............................................................ 18, 19

L. Chanda Kumar v. Union of India, AIR 1997 SC 1125. ...................................................... 17


ix

LIC of India v. Consumer Education and Research Centre, AIR 1995 SC 1811 ...................... 6

Lingappa Pochanna Appelwar v. State of Maharashtra (1985) 1 SCC 479............................... 3

M Nagaraj v. Union of India, (2006) 8 SCC 212................................................................... 3, 5

M.R.Balaji v. State of Karnataka, AIR 1963 SC 649 ................................................................ 4

Maneka Gandhi v. Union of India, AIR 1978 SC 597....................................................... 13, 20

Mangal Singh v. Union of India,(1967) 2 SCR 109 ................................................................ 12

Minerva Mills Ltd. & Ors. v. Union Of India & Ors., AIR 1980 SC 1789 ....................... 16, 20

Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1 .................................................... 5

Mohd. Shaheb Mahboob v. Dy. Custodian, AIR 1961 SC 1657. .............................................. 5

Morey v. Doud, (1956) 118 U.S. 356. ..................................................................................... 14

Naraindas v. State of M. P., AIR 1974 SC 1232 ............................................................... 17, 18

Neera Gupta v. University of Delhi, AIR 1997 Del 175. .......................................................... 4

Panama Sugar Refining Co. v. Ryan, 293 U. S. 388 ............................................................... 18

Paradise Printers v. Union Territory, Chandigarh, AIR 1985 SC 354 ....................................... 5

Peoples’ Union for Democratic Rights v. Union of India & Ors., AIR 1982 SC 1473. ............ 1

Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty

Association, (1998) 4 SCC 1 ................................................................................................. 7

Pradeep Jain v. Union of India, AIR 1984 SC 1420. ................................................................. 3

Punjab Higher Qualified Teachers Union v. State of Punjab, (1988) 2 SCC 407 ..................... 6

R.C. Tobacco v. Union of India, (2005) 7 SCC 725. ............................................................... 20

R.K. Jain v. Union of India, AIR 1993 SC 1769 ..................................................................... 16

R.M.D.C (Mysore) Pvt. Ltd. v. State of Mysore, AIR 1962 SC 594 ....................................... 19

Raghunath Rao, Ganapath Rao v. Union of India, AIR 1993 SC 1267 ................................... 13

Railway Board v. Pitchumani, AIR 1972 SC 508 ..................................................................... 9

Raj Narian Singh v. Patna Administration, (1955) 1 SCR 290 ............................................... 15

Raj Pal Sharma v. State of Haryana, AIR 1985 SC 1263 .......................................................... 5

Rajendran v. Union of India, AIR 1968 SC 507 .................................................................... 6, 7

Ramana v. I.A.A., AIR 1979 SC 1628....................................................................................... 4

Ratnapoorva Devi v. State of Orissa, AIR 1964 SC 1195. ........................................................ 5

Romesh Thappar v. State of Madras, AIR 1950 SC 124 ......................................................... 16

S. Nagaraj & Ors. v. State of Karnataka & Anr., 1993 (3) SCALE 548. ................................ 17

S.B.Dayal v. State of U.P (1972) 4 SCC 485 .......................................................................... 18

S.P. Gupta v. President of India & Ors., AIR 1982 SC 149 ...................................................... 1

S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 ............................................... 16, 17


x

S.S. Bola v. B.D. Sardana, (1997) 8 SCC 522. ............................................................ 14, 16, 18

Sajjan Singh v. State of Rajasthan,(1965) 1 SCR 933 at 968. ................................................. 12

Sakhawant Ali v. State of Orissa, AIR 1955 SC 166, 169......................................................... 5

Shankara Narayana, B.R. v. State of Mysore, AIR 1966 SC 1571 .................................... 18, 19

Sonapur Tea Co. v. Mazirunnesa, AIR 1962 SC 137 .............................................................. 19

St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558 .............................................. 3

State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296 ........................................................ 6, 7

State of Bombay v. Anwar Ali Sarkar, AIR 1952 SC 75 .......................................................... 5

State of Bombay v. S.N. Balsara, AIR 1951 SC 318 ................................................................. 5

State of Karnataka v. C Lalitha (2006) 2 SCC 747.................................................................... 4

State of Kerala v. N. M. Thomas, AIR 1976 SC 490. ........................................................... 7, 8

State of M.P. v. Mahalaxmi Fabric Mills Ltd., 1995 Supp (1) SCC 642................................. 18

State of Madras v. V.G. Row. Union of India & Ors., AIR 1952 SC 196 ............................... 17

State of Mysore v. M.H. Krishnamurthy, AIR 1973 SC 1146................................................... 9

State of Mysore v. P. Narasinga Rao, AIR 1968 SC 349 .......................................................... 5

State of Punjab v. Balkaran Singh, (2006) 8 SCC 481, 655 ...................................................... 5

State of U.P. v. Dr. Dina Nath Shukla, (1997) 9 SCC 662. ....................................................... 3

State of Victoria v. The Commonwealth, 45 ALJ 251 ............................................................ 12

Subhesh Sharma v. Union of India, AIR 1991 SC 631 ..................................................... 16, 17

Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467. ................................................... 5

Suraj Mall v. Biswanath, AIR 1953 SC 545 .............................................................................. 6

T .Devadasan v. Union of India, AIR 1964 SC 179. .......................................................... 4, 10

T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481. ........................................... 5

Trilok Nath Triku v. State of J & K , AIR 1967 SC 1283. .................................................. 9, 11

Truax v. Corrigan, (1921) 257 U.S. 312. ................................................................................. 14

U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7 SCC 1. ..................................................... 6

Union of India v. Indian Charge Chrome, (1999) 7 SCC 314 ................................................... 5

Vajravelu Mudaliar P. v. Sp.Dy. Collector of Land Acquisition, Madras, AIR 1965 SC 1017

.............................................................................................................................................. 19

William Marbury v. James Madison, Secretary of State of the United States, 5 U.S. 137

(1803). .................................................................................................................................. 16


xi

Statutes

The Constitution of India (1950). ............................................................................................ 17

Other Authorities

Objective Resolution, adopted on January 22,19..................................................................... 13

International Documents

European Convention on Human Rights, 213 UNTS 221. ...................................................... 13

United Nation Covenant on Civil and Political Rights, 6 ILM 368 (1967) ............................. 13

United Nations Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810

at 71 (1948) .......................................................................................................................... 13

Books

1 V.G. Ramachandran, Law of Writs (6th

ed. 2006). ................................................................. 1

1 Subhash C Kashyap, Constitutional Law Of India (2008). .................................................. 11

2 Durga Das Basu, Commentary on the Constitution of India, (8th

ed. 2008) ................... 2, 3, 6

Arvind P. Datar, Commentary on Constitution of India (2nd

ed. 2007). ................................... 5

III, Constitutional Assembly Debates ........................................................................................ 6

B. Shiva Rao, Framing of the Indian Constitution ............................................................ 12, 13

Burdick, Law of the American Constitution (1922). .............................................................. 14

Commentaries On The Constitution Of The United States (1883) Vol.I at 444 ...................... 12

DR. L.M. SINGHVI, CONSTITUTION OF INDIA( 2nd

ed.) Vol I, p. 24........................................... 15

H.M. Seervai , Constitutional Law of India (4th

ed. 1993). ....................................................... 3

John W. Johnson and Robert P. Green, Affirmative Action: Historical Guides to

Controversial issues in America (1st ed., 2009). .................................................................... 3

Justice B. P. Banerjee, Writ Remedies (4th

ed. Rep. 2008). ...................................................... 2

Lord Thring, Practical legistation ............................................................................................ 12

M.P. Jain, Indian Constitution Law, (6th

ed. 2010) ............................................................ 16, 17

R. Vennkataramani & S.C. Raina, Public Interest Litigation (1st ed. Rep. 2012) ..................... 1

Ronald Dworkin, A Matter of Principle, ................................................................................... 3

Russell Hardin, Constitutionalism, THE OXFORD HANDBOOK OF POLITICAL ECONOMY ......... 15

T.K. Tope, Constitutional Law of India (3rd

ed. 2010). ............................................................. 3


xii

Articles

David Deener, Judicial Review in Modern Constitutional Systems, 46 (4) Am. Pol. Sc. Rev.

1079 (1952). ......................................................................................................................... 17

Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 AM. POL. SC REV.

853(1962) ............................................................................................................................. 15

S.P. Sathe, Judicial Review in India: Limit and Policy, 35 Ohio St. L.J. 870 (1974). ............ 16


xiii

STATEMENT OF JURISDICTION

THE WRIT PETITION HAS BEEN FILED BEFORE THE HON’BLE SUPREME COURT OF INDIA UNDER

ARTICLE 32 OF THE CONSTITUTION OF INDIA FOR DETERMINING THE CONSTITUTIONAL

VALIDITY OF THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012.


xiv

STATEMENT OF FACTS

1. Uttarsthan is a State in Union of India. It has 30% of forest in India. Uttarsthan is

ranked 25th in terms of economic growth at national level. 73.5% of its population was

estimated to be backward by the census of 2010. 40% of the population is below poverty line

according to Central Government assessment which is the highest in the Nation.

2. In 2001, Shivrao Bugadi, established a regional party Uttarsthan Vichar

Manch(UVM) and promised for 70% reservations for the backward class both in educational

institutes and public employment. In 2005, UVM won general elections in Uttarsthan State

and formed the government. Mr. Shivrao, reserved 70% of seats in educational institutions

and in public employment for backward class which was struck down by the Supreme Court

of India as unconstitutional, on the bases of the precedent of Indra Sawhney case. Mr.

Shivrao introduced a Bill titled Uttarsthan Protection (of Schedule Case, Schedule Tribe and

Backward Class) Bill in 2009 to provide the same amount of reservations which was passed

by Uttarsthan Legislative Assembly in January 2010. A request was made to Central Gov. to

put it in IX Sch. of Constitution to get immunity from judicial review.

3. In 2012, State of Uttarsthan issued a G.O. No 231/2012 providing reservations in

promotions to SCs and STs in public employment under the State. This was challenged by a

voluntary organization called Society for Equality through a PIL before the High Court of

Uttarsthan. The Court declared the G.O 231/2012 as unconstitutional considering M. Nagaraj

case. An appeal was filed in Supreme Court by Uttarsthan State which was dismissed by the

Supreme Court as there is no quantifiable data to show backwardness and inadequacy of

representation of that class in public employment.

4. Meanwhile, RJS with the support of UVM establish the central government. UVM

secured 40 M.P seats and being the biggest regional party and a key ally for RJS government,

it insisted RJS to amend the Constitution to validate its G.O. 231/ 2012. 117th Constitutional

Amendment Bill was thus introduced and the same was passed by Rajya Sabha, later by Lok

Sabha and President of India also consented.

5. Society for Equality has filed a PIL before Supreme Court challenging 100th

Amendment Act as violation of Basic Structure and being blatant violation of judicial

pronouncements as it has an impact of undermining the concept of Judicial Review.


xv

QUESTIONS PRESENTED

ON MAINTAINABILITY

I. THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT OF INDIA.

ON MERITS

II. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 VIOLATES THE

BASIC STRUCTURE OF THE CONSTITUTION.

III. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 VIOLATES THE

PRINCIPLES OF EQUALITY ENSHRINED IN THE PREAMBLE OF THE CONSTITUTION.

IV. THE IMPUGNED AMENDMENT VIOLATES THE CONCEPT OF JUDICIAL REVIEW.

V. RETROSPECTIVE EFFECT IS AGAINST THE SPIRIT OF THE CONSTITUTION.


xvi

SUMMARY OF ARGUMENTS

ON MAINTAINABILITY

I. THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE BEFORE THE HON’BLE


The petitioner, Society for Equality has litigational competence to submit the writ petition

before Supreme Court of India. Further, Article 32 of the Constitution of India gives power to

the Supreme Court of India to entertain the writ petition.

ON MERITS

II. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 VIOLATES THE


Reservation in promotion (with consequential seniority) results in reverse discrimination and

hence violates the equality clause of the constitution. This results in affecting the principles

of efficiency, merit and morale of public services and the foundation of good governance and

hence hampers the national interest. The impugned amendment tries to do away with the

requirement of ‘inadequacy of representation and overall efficiency’ even though 16(4A) is

carved out from 16(4) thus, providing the state with unfettered, untrammelled and

unconstitutional power to provide reservation under Article 16 (4A) [as amended by the

Constitution (One Hundredth Amendment) Act, 2012] which is against the tenets of

constitutionalism.

III. THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 VIOLATES THE


The Preamble is a key to gauge the intention of the constitutional framers. As it stands, the

Constitution (One Hundredth Amendment) Act, 2012 violates the principle of equality

enshrined in the Preamble as it increases the gap of opportunity between the scheduled castes/

scheduled tribes and the general population of the country. The Act aims to give excessive

reservation without any rational basis, which is against the fundamental tenets of democracy

and equality as foreseen and engraved in the Preamble of the Constitution.


xvii

IV. THE IMPUGNED AMENDMENT VIOLATES THE CONCEPT OF JUDICIAL REVIEW.

There is implied limitation on the Power of Amendment in accordance with Article 368.

Further, Judicial Review as a basic feature of the constitution cannot be undermined by

legislative action as it endorses the concept of checks and balances over the legislature. The

Amendment by conferring wide discretionary powers on the government is a piece of

colourable legislation. Thus, the parliament does not have competency to pass the amendment

act.

V. RETROSPECTIVE EFFECT IS AGAINST THE SPIRIT OF THE CONSTITUTION.

A retrospective effect from the very initiation of a particular provision is bound to cause

oppression and other difficulty. Thus in the present case the court should not allow the

retrospective effect given to the impugned amendment relying on the aforesaid reasons.


1

WRITTEN PLEADINGS

The following submissions have been made before the Hon’ble Chief Justice of India and the

other companion judges of the Hon’ble Supreme Court. The present case is regarding the

constitutionality of The Constitution (One Hundredth Amendment) Act, 2012. It is humbly

submitted before this Hon’ble Court that [I.] The writ petition is maintainable; [II.] the

impugned amendment violates the basic structure of the constitution; [III.] it violates the

principles of equality enshrined in the Preamble of the Constitution; [IV.] it further violates

the concept of Judicial Review and finally, [V.] retrospective effect is against the spirit of the

Constitution.

ON MAINTAINABILITY

[I.] THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE BEFORE THE HON’BLE


[I.A.] ARTICLE 32 OF THE CONSTITUTION OF INDIA GIVES POWER TO THE SUPREME

COURT OF INDIA TO ENTERTAIN THE WRIT PETITION.

Article 32 provides right to any member of the public, acting in a bona fide manner, to

approach the Supreme Court in case of violation of fundamental right,1 for the benefit of the

society at large.2 The Amendment Act in question is violative of the basic structure of the

constitution and the right to equality ensured as a fundamental right under Articles 14 to16 of

the constitution.3 Thus in the present case, by virtue of power conferred under Article 32 of

the constitution Supreme Court has jurisdiction to entertain the Public Interest Litigation.

[I.B.] SOCIETY FOR EQUALITY HAS LITIGATIONAL COMPETENCE TO SUBMIT THE

WRIT PETITION BEFORE SUPREME COURT OF INDIA.

The concept of aggrieved person stands substituted by the principle of litigational

competence as it is more appropriate to PIL.4 Society for Equality in the present case has the

litigational competence of a public interest litigant as it has justified the prerequisites, i.e.

1 Bandhua Mukti Morcha v. Union of India & Ors., AIR 1984 SC 802; See S.P. Gupta v. President of India &

Ors., AIR 1982 SC 149; See also Peoples’ Union for Democratic Rights v. Union of India & Ors., AIR 1982 SC

1473.

2 1 V.G. Ramachandran, Law of Writs, 964 (6

th ed. 2006).

3 Statement of Facts.

4 R. Vennkataramani & S.C. Raina, Public Interest Litigation, 53 (1

st ed. Rep. 2012); See Bangalore Medical

Trust v. B.S. Mudappa, AIR 1991 SC 1902.


2

firstly, an appropriate issue or concerns with reference to a constitutional right5 and secondly

an appropriate person who can be entrusted with the bona fide responsibility to pursue such

issues or concern.6

Society for Equality being a voluntary organization concerned with right to equality has

challenged such legislation and ordinances which were violative of right to equality.7 The

past action and the present concern of Society for Equality are evident of the organization’s

bona fide interest in the matter. Hence in the present case Society for Equality has litigational

competence to approach the Supreme Court.

Furthermore, excessive reservation is an issue of public importance and many people who are

affected by such reservation do not have the resources to approach the court individually.

Thus as per the principles laid down by Supreme Court in Guruvayur Devaswom Managing

Committee v. C.K. Rajan8 the common rule of locus standi should be relaxed and raising

question on the maintainability of the petition should be barred for the better interest of the

people.

ON MERITS

[II.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 VIOLATES THE


[II.A.] RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY)

RESULTS IN REVERSE DISCRIMINATION AND HENCE VIOLATES EQUALITY CLAUSE

OF THE CONSTITUTION.

1. RESERVATION IN PROMOTION (WITH CONSEQUENTIAL SENIORITY) RESULTS IN

REVERSE DISCRIMINATION.

The doctrine of affirmative action has been deduced from the ‘equal protection’ clause of

Article 14.9 Though Article 16(4) does not confer any fundamental right upon any individual,

5 Justice B. P. Banerjee, Writ Remedies, 1303 (4

th ed. Rep. 2008).

6 Vennkataramani, Supra note 4, 57; See 3, Durga Das Basu, Commentary on the Constitution of India, 3838 (8

th

ed. 2008).


8 Guruvayur Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors., AIR 2004 SC 561; see BALCO

Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350; see also Dr D.C. Wadhwa & Ors. v.

State of Bihar & Ors., AIR 1987 SC 579.

9 Indra Swahney v. Union of India, AIR 1993 SC 477.


3

it enjoins the State to take positive action to alleviate inequality or, in other words, it confers

power coupled with duty.10

Thus, State is empowered for positive discrimination.11

Article 14

enjoins the State to take affirmative action by way of giving preference to the socially and

economically disadvantaged persons in order to bring about real equality.12

The Court would

uphold reservations to a reasonable extent to protect and further the aspirations13

of backward

classes.14

The result of an intended affirmative action by the legislature may or may not result

in positive discrimination of the masses.15

An affirmative action may be constitutionally valid per se, but the Court cannot ignore the

constitutional morality which embraces in itself the doctrine of equality.16

It would be

constitutionally immoral to perpetuate inequality among majority people of the country in the

guise of protecting the constitutional rights of backward and downtrodden.17

If the affirmative

action results in reverse discrimination18

the whole purpose of the action is defeated as it will

result in obliterating the fundamental right of equality in being considered for promotions.19

Neither classification nor affirmative action can obliterate the individual right to equal

opportunity.20

If the extent of reservation goes beyond cut-off point then it results in reverse

discrimination.21

As per the facts of the case, the Government decided to move the constitutional amendment

to substitute clause (4A) of Article 16, with a view to provide impediment-free reservation in

promotion to the Scheduled Castes and the Scheduled Tribe.22

In the present case, such

impediment-free reservation in promotion extends the reservation policy of State indefinitely

10

General Manager v. Rangachari, AIR 1962 SC 36; See also, Supra note 9.

11 Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201; Jagdish Lal v. State of Haryana, (1997) 6 SCC 538;

State of U.P. v. Dr. Dina Nath Shukla, (1997) 9 SCC 662.

12 St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558.

13 Lingappa Pochanna Appelwar v. State of Maharashtra (1985) 1 SCC 479.

14 Pradeep Jain v. Union of India, AIR 1984 SC 1420.

15 John W. Johnson and Robert P. Green, Affirmative Action: Historical Guides to Controversial issues in

America (1st ed., 2009).

16 2, Durga Das Basu, Commentary on the Constitution of India, 3838 (8

th ed. 2008)

17 Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697.

18 Ronald Dworkin, A Matter of Principle,302.

19 T.K. Tope, Constitutional Law of India, 731 (3

rd ed. 2010).

20 H.M. Seervai , Constitutional Law of India (4

th ed. 1993).

21 M Nagaraj v. Union of India, (2006) 8 SCC 212.

22 Statement Of Objects And Reasons For The Constitution (One Hundred Seventeenth Amendment) Bill, 2012,

Statement of Facts.


4

and is a clear case of reverse discrimination. If the structural balance of equality in the light

of the efficiency is disturbed and if the individual right is encroached upon by excessive

support for group expectations by providing for impediment-free reservation in promotions as

well, it would amount to reverse discrimination23

as it would lead to very few seats/vacancies

remaining for the “non-backward classes”.

The Supreme Court observed in the M.R. Balaji24

case that while making adequate

reservation under art 16(4), care would be taken not to provide for unreasonable, excessive or

extravagant reservation, for that would eliminate general competition in a large field and

create widespread dissatisfaction amongst the employees, materially affecting efficiency. 25

It

may also be noted that during the debates in the Constituent Assembly, no one referred to

reservation in promotions; it does not appear to have been within their contemplation.26

Excessive and impediment-free27

reservation must not be made in the name of advancement

of backward classes because if this is done fundamental rights of other communities would be

annihilated.28

In construing 16(4A), Article 16(1) must also be kept in mind as Article 16(4)

is a kind of proviso to Article 16(1) and hence, excessive reservation in favour of backward

classes will in effect deny the right under Article 16(1) to others and such reservation cannot

be constitutional.29

2. THE IMPUGNED AMENDMENT VIOLATES ARTICLE 14 OF THE CONSTITUTION.

The principle guiding Article 14 is that there should not be discrimination between one

person and another,30

if as regards the subject matter of the legislation their position is the

same,31

or in other words, action must not be arbitrary but must be based on some valid

principle which itself must not be irrational or discriminatory.32

23

Supra note 21.

24 M.R.Balaji v. State of Karnataka, AIR 1963 SC 649.

25 State of Karnataka v. C Lalitha (2006) 2 SCC 747.

26 Supra note 9.


28 Arati Ray Choudhury v. Union of India, (1974) 1 SCC 87.

29 T. Devadasan v. Union of India, AIR 1964 SC 179.

30 E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

31 Chiranjit Lal v. UOI, AIR 1951 SC 41; Neera Gupta v. University of Delhi, AIR 1997 Del 175.

32 Ramana v. I.A.A., AIR 1979 SC 1628; Kasturi v. State of Jammu and Kashmir, AIR 1980 SC 1992.


5

a. The 100th

Constitutional Amendment Act, 2012 has no rational basis.

The concept of equality and equal protection of laws guaranteed by Article 14 in its spectrum

encompasses social and economic justice in a political democracy.33

Implicit in the concept

of equality is the concept that persons who are in fact unequally circumstanced34

cannot be

treated on a par35

and equals cannot be treated as unequals.36

i. Classification Lacks Intelligible Differentia

Article 14 forbids class legislation but does not forbid reasonable classification for the

purpose of legislation.37

The correct position will be that class legislation is permissible if the

classification on which it is based is rational and has a nexus with the object sought to be

achieved.38

Mere classification is not enough to get over the inhibition of this Article.39

The

classification must be rational.40

The differentia which is the basis of classification and the

object of the Act are distinct things and what is necessary is that there must be a nexus

between them.41

The legislation is given the utmost latitude in making the classification and it

is only when there is a palpable abuse of power and the differences made have no rational

relation to the objectives that judicial interference becomes necessary.42

Every State action

must be informed by reason and it follows that an act uninformed by reason is per se

arbitrary.43

In Suraj Bhan Meena v. State of Rajasthan44

the Supreme Court first struck down

an attempt by a State government to provide quotas in promotions on the ground that it had

33

Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104.

34 Supra note 21 at 270.

35 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.

36 State of Punjab v. Balkaran Singh, (2006) 8 SCC 481, 655.

37 Sakhawant Ali v. State of Orissa, AIR 1955 SC 166, 169; See also Union of India v. Indian Charge Chrome,

(1999) 7 SCC 314; Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1; Federation of All India

Customs and Central Excise Stenographers v. Union of India, AIR 1988 SC 1291; Paradise Printers v. Union

Territory, Chandigarh, AIR 1985 SC 354; Raj Pal Sharma v. State of Haryana, AIR 1985 SC 1263; State of

Mysore v. P. Narasinga Rao, AIR 1968 SC 349; Express Newspaper P. Ltd. v. Union of India, AIR 1958 SC

578; State of Bombay v. S.N. Balsara, AIR 1951 SC 318; State of Bombay v. Anwar Ali Sarkar, AIR 1952 SC

75; Javed v. State of Haryana, (2003) 8 SCC 369, 380; Joshi D.D. v. Union of India, AIR 1983 SC 420.

38 Ratnapoorva Devi v. State of Orissa, AIR 1964 SC 1195.

39 Arvind P. Datar, Commentary on Constitution of India 99 (2

nd ed. 2007).

40 Id.

41 Id.

42 Kathi Ranging Rawat v. State of Saurashtra, AIR 1952 SC 123, 131.

43 Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245; See also Mohd. Shaheb Mahboob v. Dy.

Custodian, AIR 1961 SC 1657.

44 Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467.


6

not undertaken such a specific exercise to establish the inadequacy of representation of the

SC/STs.45

ii. There is no reasonable nexus present between the rationale and the object

The difference which will warrant a reasonable classification need not be great.46

What is

required is that it must be real and substantial and must bear some just and reasonable relation

to the object of the legislation.47

There can be classes in a particular class. But law prohibits

creation of class without a rational basis.48

Where there is a real difference between two

categories of classes, there is a reasonable basis for sub-classification.49

The Act in question here is unconstitutional in that it has no nexus with the objective of

Article 16. By providing reservation in promotions without any rational basis of

classification, the objective of Article 16 is defeated. A cadre-based determination of

inadequacy of representation of the SC/STs would not result in an accurate picture of

representation of the SC/STs in public employment as a whole. The Constituent Assembly

rejected the demand to do away with the requirement of ‘inadequacy of representation’

because it believed it would give the state unacceptable power in terms of determining the

beneficiaries in the context of the general equality protection within the Constitution.50

[II.B.] THE AMENDMENT AFFECTS THE PRINCIPLES OF EFFICIENCY, MERIT AND

MORALE OF PUBLIC SERVICES AND THE FOUNDATION OF GOOD GOVERNANCE AND

HENCE IT IS AGAINST THE INTEREST OF THE NATION.

Article 16(4) has to be interpreted in the background of Article 33551

and maintenance of

efficiency is to be considered in administration while making appointments to services.52

In

the landmark judgment of Indra Sawhney v. Union of India,53

it was held that mandate of

Article 335 is to take the claims of members into consideration, consistent with the

maintenance of efficiency of administration as the relevance and significance of merit cannot

be ignored.

45

U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7 SCC 1.

46 Supra note 16.

47 Baburao v. State of Bombay, Housing Board, 1954 SCR 572; See also Suraj Mall v. Biswanath, AIR 1953 SC

545; See also LIC of India v. Consumer Education and Research Centre, AIR 1995 SC 1811.

48 Punjab Higher Qualified Teachers Union v. State of Punjab, (1988) 2 SCC 407.

49 ITO v. Murlidhar Bhagwan Das, AIR 1965 SC 342.

50 III, Constitutional Assembly Debates, 399-436.

51 Rajendran v. Union of India, AIR 1968 SC 507.

52 State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296.

53 Supra note 9.


7

Article 16(4) and Article 16(4A) must be applied in such a manner that balance is struck in

the matter of appointments by creating reasonable opportunities for the reserved classes and

also for the other members of the community who do not belong to such classes.54

Article

16(4) has to be interpreted in the background of Article 33555

and maintenance of efficiency

is to be considered in administration while making appointments to services.56

For fructifying the scheme under Article 16(4) and Article 16(4A), Article 335 has to be kept

in view and is to be given full play.57

Efficiency being a compelling State interest, it must

strictly guide affirmative action. The principle as stated in the Article 335 must guide all

affirmative action programmes for backward and other disadvantaged persons.58

The Supreme Court of India has laid down many decisions considering that Article 335 is

safely guarding the requirement of ensuring efficiency in the administration.59

But now, the

new Article 16(4A) starts with the words: “Notwithstanding anything contained elsewhere in

the Constitution”60

This implies that now State does not have to consider the requirement of Article 335 while

providing for reservation in promotion to the Scheduled Castes and the Scheduled Tribes

notified under article 341 and article 342, respectively, as they shall now be deemed to be

backward.61

Reservation should not be made at the cost of efficiency.62

The positive accent of

Article 335 is that the claims of SC and ST to equalisation of representation in service63

under

the State having regard to their sunken social system and importance in the power system,

shall be taken into consideration. The negative element of Article 335 is that the measures

taken by the State pursuant to mandate of Articles 16(4), 46 and 335 shall be consistent with

and not subversive of the maintenance of efficiency of the administration.64

54

Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association, (1998) 4 SCC

1.

55 Rajendran v. Union of India, AIR 1968 SC 507.

56 State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296.

57 Id.

58 Supra note 16.

59 Ajit Singh I v. State Of Punjab, (1996) 2 SCC 715; See also, Supra note 9; Supra note 21



62 State of Kerala v. N. M. Thomas, AIR 1976 SC 490.

63 Supra note 9.

64 Akhil Bharatiya Soshit Karmachari Sangh (Rly.) v. Union of India, AIR 1981 SC 298.


8

Not only has the legislature tried to undermine the Supreme Court’s landmark judgments and

their outcomes but it is also removing aspect of maintaining efficiency in the administration

which is against social justice and leads to bad governance. It is submitted that the State has

faulted for not sufficiently engaging in evidence-based policy making and the impugned

amendment is not based on strong normative foundations or empirical evidence as far as issue

maintaining the efficiency in administration is concerned and thus the impugned amendment

should be struck down.

[II.C.] THE PARLIAMENT CANNOT DO AWAY WITH THE REQUIREMENT OF

‘INADEQUACY OF REPRESENTATION AND OVERALL EFFICIENCY’ SINCE 16(4A) IS

CARVED OUT FROM 16(4).

The N.M Thomas case65

held that equality of opportunity guaranteed under Article 16(1)

refers to equality between members of the same class of employees and not equality between

members of separate and independent classes. Thus in the case of SC and ST’s who suffer

from socio-economic backwardness, the fundamental right to equality of opportunity justifies

separate categorization for the purpose of ‘adequate representation in the state services.’66

Although OBC may be socially or educationally handicapped, they do not suffer the same

social handicap inflicted upon SC/ST. The object of reservation for SC/ST is to bring them

into the main stream of national life, while the objective for backward class reservation is to

remove their social and educational handicap. Thus, backward classes cannot form an

integrated class with dalits and tribes for Art 16 (4) or 15 (4). 67

After the decision in the Mandal case,68

the 77th

amendment to the constitution inserted

Article 16(4A) permitting reservation even in matters of promotion.69

But this was restricted

to promotions in favor of SC/ST, provided they were not adequately represented in the

services under the state.70

In view of the Amendment, the rule of reservation can apply not

only to initial appointment but also to promotion.71

Article 16(4A) is only enabling and the

limitation or parameters of a clause 4 are still retained in Article 16(4A). In such cases Article

16(4) speaks of “adequate representation. Therefore, before providing for reservation two

65

State of Kerala v. N. M. Thomas, AIR 1976 SC 490.

66 ABSK Sangh v. UOI, AIR 1981 SC 298.

67 Chattar Singh v. State of Rajasthan, AIR 1997 SC 303.

68 Supra note 9.

69 Supra note 39.

70 Ashok Kumar Gupta v. State Of Uttar Pradesh, (1997) 5 SCC 201.

71 Commr. Of Commercial Taxes v. G Sethumadhava Roa, AIR 1996 SC 1915.


9

circumstances must exist: backwardness and inadequacy of representation, and these

limitations are reminded by the amendment.72

The formation of the opinion that any

backward class is not properly represented in the service of the state is left to the subjective

satisfaction of the government and cannot be challenged on the ground of propriety or

reasonableness. But in formation of such opinion, the government must take into

consideration all relevant circumstances, so that the determination may be challenged on the

ground of firstly, non application of mind and secondly, acting upon collateral or extraneous

material or considerations.73

The fact that SC/ST is a part of backward class has already been made clear by this court.

This could only conclude with the fact that the state by adding the terms ‘deemed to be

backward’ is only circumventing the law so as not provide with the only requirement Article

16(4A) directly. The State wants to undo the only essential it has to fulfill before providing

reservation in promotion so that it can exercise delegation of power in an arbitrary manner.

Such excessive delegation is highly unappreciated.

When promotions are made to a higher grade, no discrimination can be made between those

who came to the existing grade by direct recruitment or promotions.74

However, not even

considering members of one class for promotion would violate Articles 14 and 16(1)75

for it

could be deduced that Article 16(4) refers only to the backward class of citizens and not to

Schedule Caste/ Schedule Tribes. On the other hand, Article 15(4) refers to both the

categories. However, SC/ST is also included in the expression backward class of citizens.76

The logic beyond such an interpretation is that if SC/ST and other backward classes (OBC)

are lumped together, the OBC would take away all the vacancies leaving SC/ST with

nothing.77

No class is to be given reservation unless they qualify the criteria given in Trilok Nath Triku

v. State of J & K case.78

The government can certainly conduct periodical reviews and no

community or backward class can claim benefits to reservation in perpetuity.79

For the case

72

Supra note 21.

73 Supra note 9.

74 Railway Board v. Pitchumani, AIR 1972 SC 508.

75 State of Mysore v. M.H. Krishnamurthy, AIR 1973 SC 1146.

76 Supra note 21.

77Supra note 39.

78 Trilok Nath Triku v. State of J & K , AIR 1967 SC 1283.

79 Jagdish Negi, President Uttarakhand Jan Morcha v. State Of Uttar Pradesh, AIR 1997 SC 3505.


10

of SC/ST this is a chance for eternity and the state wishes to do away with any liability on it

to calculate the lack of representation.

[II.D.] THE STATE CANNOT EXERCISE UNFETTERED, UNTRAMMELED AND

UNCONSTITUTIONAL POWER TO PROVIDE RESERVATION UNDER ARTICLE 16(4A) [AS

AMENDED BY THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012] AS

IT IS AGAINST THE TENETS OF CONSTITUTIONALISM.

Reservation should not be excessive and cannot be taken to the extent of affecting the

guarantee contained in art 16(1).80

This was indeed followed in Akhil Bhartiya Soshit

Karamchari Sangh (Rly.) v. Union of India,81

where the Supreme Court laid down that “in

the interest of efficient administration, and at least half of the total number of posts should be

kept open to attract the best of nation’s talent. If it is otherwise, an excess of reserved quotas

would convert the state service into a collective membership predominantly of backward

class.”

In Indra Sawhney v. Union of India,82

it was declared that “under Article 16(4) care should

be taken not to provide for unreasonable, excessive or extravagant reservation and

reservation under Article 16(4) should be within permissible and legitimate limits and any

excess is liable to be challenged ‘as a fraud on the constitution’”. The state has already

nullified the effect of this judgment with regard to reservation in promotion but it agreed to

the fact that the provision is only an enabling one and the limitations or parameters of clause

(4) are still retained in clause (4A).83

The principle that reservation shall not exceed 50%

applies only to reservation in respect of backward classes made under article 16(4).84

With

the 100th

Amendment, Article 16 (4A) is now enshrined with the term ‘deemed to be

backward’, thus necessarily exceeding the 50% cap of reservation in promotion by deductive

logic.

Thus, in the present case, it is contended that a cap of 50% as found in Indra Sawhney v.

Union of India, 85

for Article 15(4) and Article 16(4) should be applied in for Article 16(4A)

as amended by the 100th

Amendment Act.86

The interest of weaker sections of the society has

80

T .Devadasan v. Union of India, AIR 1964 SC 179.

81 Akhil Bhartiya Soshit Karamchari Sangh (Rly.) v. Union of India , AIR 1981 SC 298

82 Supra note 9.

83 Supra note 21.

84 Ashok Pandey v State of UP, AIR 1996 All 24.

85 Supra note 9.



11

to be adjusted with the interests of the community at large. The adjustment of these

competing claims is undoubtedly a difficult matter, but if under the guise of making a special

provision, the State reserves practically all the seats available in all the colleges, it would

clearly subvert the objects of Article 15(4).87

This would eliminate general competition in a

large field and create widespread dissatisfaction amongst the employees, materially affecting

efficiency. Special provision should be less than 50%, but how much lesser would depend

upon the relevant prevailing circumstances in each case.88

The irresistible conclusion that

follows is that the reservation contemplated in clause 4 of article 16 should not exceed 50%.

Article 16(4A) falls in the pattern of 16(4) and thus if the parameters mentioned in the Article

are complied with, the provision of reservation cannot be faulted.89

In the case of Ajit Singh,90

it was held that “for attracting meritorious and talented persons to

the public services, a balance has to be struck, while making provision for reservation in

respect of a section of the society.” A similar observation was made in Akhil Bharatiya Soshit

Karmachari Sangh (Rly) v. Union of India,91

where, it was held that “care must be taken to

see that classification is not pushed to such an extreme point as to make the fundamental

rights to equality cave in and collapse.” This indicates that an affirmative action stops where

reverse discrimination begins.92

There is no doubt that the court will interfere where the

percentage of reservation is not reasonable, having regard to the strength of the different

communities, the population of the entire state and the extent of their backwardness.93

Thus it

is humbly put forth that as a need for caution, the reservation under Article 16(4) should not,

as a rule exceed 50%.94

Article 16(4) speaks of “adequate representation” and not “proportional representation” and

thus, power must be exercised reasonably and fairly. A cap of 50% on reservation is

advisable as a rule of caution and so it can be extended in special circumstances like on the

basis of proportional equality; which need to be proven by the government in the court. The

100th

Amendment Act may result in legislations where the determination of the government

87

Supra note 9.

88 Supra note 24.

89 1, Subhash C Kashyap, Constitutional Law Of India (2008).

90 Ajit Singh I v. State Of Punjab, (1996) 2 SCC 715.

91 Akhil Bharatiya Soshit Karmachari Sangh (Rly) v. Union Of India, (1981) 1 SCC 246

92 Ajit Singh II v. State Of Punjab , AIR 1999 SC 3471.

93 Trilokinath v. State of J & K, AIR 1967 SC 1283

94 Supra note 9.


12

is arbitrary or unreasonable or motivated by extraneous considerations, which form a ground

for invalidity of the Act.95

[III.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 VIOLATES THE


The Preamble delineates the contours in accordance with which our Constitutional machinery

has to function.96

It enlists the goals which our Constitution intends to achieve.97

This fact

can be appreciated only by looking into the history of the framing of our Preamble.98

Not

only was the Constitution framed in light of the Preamble but the Preamble was finally

adjusted so as to bring it in conformity with the Constitution.99

The draft Preamble was

considered by the Constituent Assembly on October 17, 1949. 100

Shiva Rao observes that

“The object of putting the Preamble last was to see that it was in conformity with the

constitution as accepted.”101

In the end, the words “give to ourselves this Constitution”102

was added so as to clearly show that the people are who have given a charter for their

governance, in the Constitution, and the goals of which have been clearly mentioned in the

Preamble to the Constitution. 103

[III.A.] THE PREAMBLE IS A KEY TO GAUGE THE INTENTION OF THE

CONSTITUTIONAL FRAMERS.

The grand vision and the objective behind making of the constitution are reflected in the

Preamble.104

It lays down the ideas that our forefathers after years of struggle for freedom

wanted to achieve.105

The desires, the hopes and the aspiration of the people of this country

are materialized in the form of the Preamble by the constitutional framers.106

The Indian

95

Supra note 9.

96 State of Victoria v. The Commonwealth, 45 ALJ 251.

97 Supra note 16.

98 Basheshar Nath v. Commissioner of Income Tax, Rajasthan, [1959] Supp 1 SCR 528.

99 B. Shiva Rao, Framing of the Indian Constitution,(1967).

100 Id at p.127

101 Id at p.131

102 Id at p.132

103 1, Story, Commentaries On The Constitution Of The United States 444 (1883).

104 Sajjan Singh v. State of Rajasthan,(1965) 1 SCR 933 at 968.

105 Lord Thring, Practical Legislation, Chapter IV (2

nd ed. 1902).

106 Mangal Singh v. Union of India,(1967) 2 SCR 109 at 112.


13

Constitution was not only looked to be an alliance between democracies and dynasties, but a

real union of Indian people, built on the basic concept of Sovereignty.107

The constitution and

the Preamble were drafted in light and direction of the Objective resolution where the

Constitutional Assembly declared India as an Independent Sovereign republic.108

Therefore

the basic tenants of the constitution were made in light of this idea of the preamble which in

turn was drafted after the Constitution.

From the Preamble it is clear the constitution framers had two main objectives:109

(1) To

constitute India into a sovereign Democratic Republic and (2) to secure to its citizen the

rights mentioned therein.

[III.B.] THE CONSTITUTION (ONE HUNDREDTH AMENDMENT) ACT, 2012 VIOLATES

THE PRINCIPLE OF EQUALITY ENSHRINED IN THE PREAMBLE.

It is submitted that the Preamble indicates that the Constitution comes from the People of

India. It contains an enacting clause which brings into force the Constitution. In the third

place, it declares the great rights and freedoms which the people of India intended to secure

to all citizens and the basic type of government and polity which was to be established. It is

brought to the notice of this Court that the Constitution-makers after making immense

sacrifices for achieving certain ideals have inserted Part III and IV so, they cannot provide for

provisions taking away those ideals.110

Among these is the concept of equality as envisaged in Article 14. Article 14 embodies

within it the Dicean concept of the “Rule of Law”111

, which means inter-alia an equal

subjection of all classes to the ordinary law of the land.112

As a basic feature of the

Constitution,113

this also exemplifies the concept of equal protection of the law.114

Equal

protection means the absence of any arbitrary discrimination115

by the laws themselves or in

107

Supra note 99 at 130.

108 Supra note 50 at 399-436.

109 Id.

110 Supra note 9.

111 A.P Agarwal v. Govt. of NCT of Delhi, 2000 SC 205; See also, Supra note 20.

112 Bachan Singh v. State of Punjab, AIR 1982 SC 1325.

113 Raghunath Rao, Ganapath Rao v. Union of India, AIR 1993 SC 1267.

114 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.

115 Maneka Gandhi v. Union of India. AIR 1978 SC 597.


14

their administration.116

None should be favoured117

and none should be placed under any

disadvantage in circumstances that do not admit of any reasonable justification118

for a

different treatment.119

The concept of Liberty should be coupled with social restraint such

that common happiness for the greatest number can be assured.120

Further, the aspect of

“Fraternity” can only be achieved only if the people of India as a whole were bound together

by a spirit of brotherhood.121

Reservation, unless protected by the Constitution itself, as given

to us by the founding fathers and as adopted by the people of India, is a subversion of

fraternity, unity, and integrity and the dignity of the individuals as secured by the Preamble to

the Constitution.122

In such a situation, the Amendment Act undermines the very basis of equality in that it

increases the gap of opportunity between the scheduled castes/ scheduled tribes and the

general population of the country. By providing reservations in matters of promotions while

doing away with the twin requirements of proving efficiency and inadequacy, the Act aims to

give excessive reservation without any rational basis, which is against the fundamental tenets

of democracy and equality as foreseen and engraved in the Preamble of the Constitution.

[IV.] THE IMPUGNED AMENDMENT VIOLATES THE CONCEPT OF JUDICIAL REVIEW.

[IV.A]. THERE IS IMPLIED LIMITATION ON THE POWER OF AMENDMENT IN

ACCORDANCE WITH ARTICLE 368.

1. AMENDMENT TO PART III IS PROHIBITED.

In the case, In re Berubari Union and Exchange of Enclaves123

, inter alia, this court held that:

“The Preamble is not a part of the Constitution”. So, it cannot be amended as the

Amendment referred to in Article 368 is of this Constitution and the Preamble is not a part of

it. If an Amendment Act is passed so as to abrogate any of the Fundamental Rights then, in

116

Burdick, Law of the American Constitution 605 (1922).

117 Morey v. Doud, (1956) 118 U.S. 356.

118 John Vallamettom v. Union of India, AIR 2003 SC 2902.

119 Truax v. Corrigan, (1921) 257 U.S. 312.

120 S.S. Bola v. B.D. Sardana, (1997) 8 SCC 522.

121 Supra note 9.

122 AIIMS Students Union v. AIIMS, AIR 2001SC 3262.

123 In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845.


15

consequence the Preamble is amended as the Fundamental Rights are also an essential feature

as indicated by the Preamble which in turn, is prohibited.124

2. OTHER IMPLIED LIMITATIONS ON THE POWER OF “AMENDMENT” AS USED IN

ARTICLE 368.

The principle of inherent or implied limitations on power to amend the Constitution steams

from three basic features, namely, that the ultimate legal sovereignty resides in the people,

Parliament is only a creature of the Constitution and power to amend the Constitution or

destroy the essential features of the Constitution is an application of ultimate legal

sovereignty. The Supreme Court has lain down that there is an implied limitation on

legislative power: the Legislature cannot delegate the essentials of the legislative functions.125

The same concept of implied limitation in the Legislature, in the field of delegation, has been

invoked and applied in many cases.126

In view of this, a necessary implication arises that there are implied limitations on the power

of Parliament that the expression "amendment of this Constitution" has consequently a

limited meaning.

3. CONSTITUTIONALISM AS AN IMPLIED LIMITATION

Constitutionalism recognizes the need of government but insists upon limitation being placed

upon governmental powers. Limited government is the central point of constitutionalism.127

It

is the anti-thesis of arbitrary powers.128

The underlying difference between the

‘Constitutionalism’ and ‘Constitution’ is that a Constitution ought not merely to confer

powers on the various organs of the Government but also seek to restrain those powers. A

good and virtuous constitutionalism having moral foundation protects not only fundamental

freedoms but also creates a bridge between conflicting interests and becomes a harbinger to

the social needs and produced good legislators and good citizens.129

Thus, the concept of constitutionalism which is inherent in our constitution provides for an

implied limitation on the powers of the legislature.

124

Kesavananda Bharati v. State of Kerala & Anr., AIR 1973 SC 1461.

125 In re, The Delhi Laws Act, AIR 1951 SC 332 .

126 See Raj Narian Singh v. Patna Administration, (1955) 1 SCR 290; Hari Shanker Bagla v. State of Madhya

Pradesh, (1955) 1 SCR 380.

127 Russell Hardin, Constitutionalism, in The Oxford Handbook of Political Economy 289.

128 Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 AM. POL. SC REV. 853 (1962).

129 1 Dr. L.M. Singhvi, Constitution of India 24 (2

nd ed.).


16

[IV.B.] JUDICIAL REVIEW AS A BASIC FEATURE OF THE CONSTITUTION CANNOT BE

UNDERMINED BY LEGISLATIVE ACTION.

Judicial review is a basic and essential feature of the constitution.130

Article 32, 131 to 137

and Article 143 indicates the intention of the framers of the constitution to confer the power

of judicial review to the Supreme Court of India.131

In Minerva Mills v. UOI,132

the court in

its majority opinion observed that it is the duty of the judges to pronounce upon the validity

of laws.133

The Supreme Court has to exercise the power of judicial review to uphold the

constitutional values and to enforce the constitutional limitations.134

The Supreme Court in

the landmark judgment of Kesavananda Bharti v. State of Kerala has observed that the power

of judicial review has to be exercised to see that the guarantees afforded by fundamental

rights are not contravened.135

Thus the power of judicial review conferred to the judiciary is

an integral part of the Indian Constitution.136

The 100th

Constitutional Amendment Act has inserted an amended Article 16(4A) in the

constitution.137

The impugned amendment in effect nullifies the effect of the decision given

by Supreme Court in both Indra Sawhney v. Union of India and M. Nagaraj v. Union of

India.138

The Supreme Court has guarded the socio-economic rights139

and the fundamental

rights of the citizens140

in the best interest of the people. The Parliament by introducing the

impugned amendment has acted as an authority in judicial capacity by nullifying such

decisions, which is against the basic structure of the constitution.141

Therefore the impugned

amendment undermines judicial review which is an integral part of the concept of rule of

law142

and the constitution,143

and the amendment should be struck down.

130

S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386; see Subhesh Sharma v. Union of India, AIR 1991

SC 631.


132 Minerva Mills Ltd. & Ors. v. Union Of India & Ors., AIR 1980 SC 1789.

133 Id.

134 Id.; See William Marbury v. James Madison, Secretary of State of the United States, 5 U.S. 137 (1803).

135 Supra note 124.

136 M.P. Jain, Indian Constitution Law, (6

th ed. 2010); See Supra note 124.


138 Statement of Objects and Reasons, The Constitution (117

th Amendment) Bill (2012), Statement of Facts.

139 Supra note 19.

140 S.S. Bola v. B.D. Sharma, AIR 11997 SC 3127; Romesh Thappar v. State of Madras, AIR 1950 SC 124.

141 Supra note 124.

142 R.K. Jain v. Union of India, AIR 1993 SC 1769; See S.P. Sathe, Judicial Review in India: Limit and Policy,

35 Ohio St. L.J. 870 (1974).


17

[IV.C.] JUDICIAL REVIEW ENDORSES THE CONCEPT OF CHECKS AND BALANCES

OVER THE LEGISLATURE.

The power of judicial review of legislation is granted to the judiciary to check its conformity

with the constitution.144

The power of judicial review given to the judiciary is essentially a

safeguard measure against legislative encroachment of the constitution.145

The Supreme

Court through an earlier decision in M. Nagaraj v. Union of India,146

has already interpreted

Article 16(4A). Even if we assume that the interpretation regarding reservation and the

procedure given in the decision is impossible to practice in reality, then also the power to

review147

and rectify such decision for the sake of justice148

is with the Supreme Court itself

and not with legislature.149

Therefore in the present case the impugned amendment is against

the concept of checks and balances150

as it essentially nullifies the effect of Supreme Court

decisions.

1. THE AMENDMENT CONFERS WIDE DISCRETIONARY POWERS ON THE

GOVERNMENT

The practice of the Legislature delegating to the Executive, power to make rules or

regulations, though inevitable in a modern state, nevertheless, is open to a few serious

objections. It entails, to some extent, an abandonment of its legislative function by the

legislature.151

Many a time, the legislature delegates powers without mentioning clearly the

standards subject to which those powers are to be exercised;152

sometimes standards

mentioned are too vague and, thus for all practical purposes, executive assumes uncontrolled

and unguided power.153

Consistent with their sovereign character, legislature in India have

been held to possess power of delegation.154

The legislature cannot delegate essential

143

S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386; See Subhesh Sharma v. Union of India, AIR 1991

SC 631; See also, Supra note 21.

144 State of Madras v. V.G. Row. Union of India & Ors., AIR 1952 SC 196.

145 David Deener, Judicial Review in Modern Constitutional Systems, 46 (4) Am. Pol. Sc. Rev. 1079 (1952).

146 Supra note 21.

147 Article 137, The Constitution of India (1950).

148 S. Nagaraj & Ors. v. State of Karnataka & Anr., 1993 (3) SCALE 548.

149 M.P. Jain, Indian Constitution Law, 289 (6

th ed. 2010).

150 L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.


152 Naraindas v. State of M. P., AIR 1974 SC 1232.

153Supra note 149 at 120

154See In Re, Article 143, The Constitution of India, AIR 1951 SC 332.


18

features155

or “uncanalised and uncontrolled power”.156

The power must not be unruly

horse.157

In Hamdard Dawakhana v. Union of India,158

the court held a Central Act unconstitutional

because of excessive delegation authorized thereunder. In doing so the Court held that no

proper guidance or standard159

was supplied to the rule-making authority in determining what

was to be brought within the ambit of the Act. 160

In the case at hand, the Parliament has by way of granting unfettered power to the State to

make provision for reservation in matters of promotion, with the only rider of the percentage

of such reservation provided in such cases in the States individually,161

granted to the

executive such powers which are not only beyond its ambit but also liable to misuse,162

especially keeping in mind the contentious issue of the subject matter of the Act.163

[IV.D.] THE AMENDMENT IS A PIECE OF COLOURABLE LEGISLATION.

The doctrine of colourable legislation is based on the maxim that what cannot be done

directly cannot also be done indirectly.164

The doctrine becomes applicable when a legislature

seeks to do something in an indirect manner what it cannot do directly.165

The doctrine is in

essence a question vires or power of the legislature to enact the law in question.166

1. THE PARLIAMENT DOES NOT HAVE COMPETENCY TO PASS THE AMENDMENT

ACT.

If the Constitution of a State distributes the legislative spheres marked out by specific

legislative entries, or if there are limitations on the legislative authority in the shape of

155

See Harishankar Bagla v. State of M. P., AIR 1954 SC 465, at p. 468.

156See Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, at p. 568.

157See Panama Sugar Refining Co. v. Ryan, 293 U. S. 388, at p. 400.

158 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.

159 See also, Devi Das Gopalkrishnan v. State of Punjab, AIR 1967 SC 1895; S.B.Dayal v. State of U.P (1972) 4

SCC 485.

160 Harakchand R. Banthia v. Union of India, AIR 1970 SC 1453


162 Naraindas v. State of M. P., AIR 1974 SC 1232.

163 I. N. Saksena v. State of M. P., AIR 1976 SC 2250.

164 S.S.Bola v. B.D.Sardana, AIR 1997 SC 3183.


166 K.C.Gajapati Narayana Deo v. State of Orissa AIR 1954 SC 375 (379); Kunhikaman v. State of Kerala AIR

1962 SC 723, Shankara Narayana, B.R. v. State of Mysore, AIR 1966 SC 1571, State of M.P. v. Mahalaxmi

Fabric Mills Ltd., 1995 Supp (1) SCC 642, Board of Trustees, Ayurvedic and Unani Tibia College v. State of

Delhi, AIR 1962 SC 458.


19

fundamental rights,167

questions do arise as to whether the legislature in a particular case has

not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed

the limits of its constitutional powers.168

Such transgression may be patent, manifest or

direct,169

but may also be disguised, covered and indirect and it is to this latter class of cases

that the expression “colourable legislation” has been applied in certain judicial

pronouncements.170

It is also called “legislative fraud”171

in legal parlance.172

The idea

conveyed by the expression is that although apparently a legislature is passing a statute

purporting to act within the limits of its powers,173

yet in reality it transgressed these

powers,174

the transgression being veiled by what appears, on proper examination, to be a

mere pretence or disguise.175

The validity of a statute can be challenged on the ground that it

constitutes a colourable exercise of, or a fraud upon, the legislative power.176

In the present case, the 100th

Amendment Act was made subsequent to the Supreme Court

judgment in the M. Nagaraj case.177

Hence, it can be observed that the legislature came up

with the said amendment in order to nullify the effect of the Supreme Court judgment.178

Any

amendment which contravenes the principle of judicial review is beyond the constitutional

authority of the legislature.179

Such an amendment was uncalled for as it is a clear example of

a piece of colourable legislation.

167

Khunnathat Thathunni Moopil Nair v. State of Kerala AIR 1961 SC 552.


169 R.M.D.C (Mysore) Pvt. Ltd. v. State of Mysore, AIR 1962 SC 594.

170 Supra note 16 at 1679

171 K.C. Gajapati Narayana Deo v. State of Orissa, AIR 1953 SC 375.

172 Ashok Kumar v. Union of India, AIR 1991 SC 1972.

173 Jagannath Baksh Singh v. State of U.P., AIR 1962 SC 1563.

174 Jaora Sugar Mills Pvt. Ltd. v. State of M.P., AIR 1966