Table of ContentsLIST OF AUTHORITIES..............................................................................................ii

Cases..........................................................................................................................iiBooks.........................................................................................................................ii

SATEMENT OF JURISDICTION................................................................................iiSTATEMENT OF FACTS...........................................................................................iiiQUESTIONS PRESENTED.........................................................................................ivSUMMARY OF ARGUMENTS...................................................................................v

Issue 1. The present petition is maintainable in this Hon’ble Court..........................vIssue 2. The notification passed by the Government making reservation upto 10% in educational institutions and public employment is unconstitutional.....................v

ARGUMENTS ADVANCED.......................................................................................1Issue 1. The present petition is maintainable in this Hon’ble Court..........................1Issue 2. The notification passed by the Government making reservation upto 10% in educational institutions and public employment is unconstitutional.....................2

PRAYER........................................................................................................................9

1

LIST OF AUTHORITIES

Cases

Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802.......................................2

Budhan v. State of Bihar AIR 1955 SC 191...................................................................5

Devdasan v. Union of India AIR 1964 SC 179..............................................................7

E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555..............................................5

In re: Arundhati Roy AIR 2002 SC 1375.......................................................................1

Indira Sawhney v. Union of India AIR

1993 SC 477...................................................................................................................3

Jagdish Negi v. State of U.P. AIR 1997 SC 3505..........................................................4

Janki Prasad Parimoo v. State of J & K AIR 1973 SC 930.........................................7

K C Vasanth v. State of Karnatka AIR 1985 SC 1495...................................................3

K. C. Vasanth Kumar v. State of Karnatka AIR 1985 SC 1495....................................7

K. S. Jaishri v. State of Kerala.AIR 1976 SC 2381.......................................................7

Kedarnath Bajoria v. State of West Bengal AIR 1953 SC 404......................................5

M/s Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Ors. AIR 2008 SC

913(19).......................................................................................................................1

Sheela Barse v. UOI AIR 1988 SC 2211.......................................................................1

State of Andhra Pradesh v. U.S.V. Balram AIR 1972 SC 1375....................................7

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

State Of Uttaranchal v. Balwant Singh Chaufal & Ors. 2010 AIR(SCW) 1029...........1

State of U.P. v. Dr. Deenanath Shukla 1997 9 SCC 662...............................................4

State of U.P. v. Pradeep Tandon AIR 1975 SC 563......................................................8

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

BooksJ.C. Johari, The Consitution of India A Politico-legal Study, 4th Ed., Sterling

Publishers, New Delhi................................................................................................1

Professor MP Jain, Indian Constitutional Law, 6th Ed., Lexisnexis Butterworths

Wadhwa, Nagpur, 2010..............................................................................................1

2

SATEMENT OF JURISDICTION

The Petitioner through a Writ Petition has invoked the jurisdiction of the Hon’ble

Supreme court of Hindia under article 32 of the constitution of Hindia

ARTICLE 32 OF THE CONSTITUTION OF HINDIA

32. Remedies for enforcement of rights conferred by this Part – (1) The right to move

the Supreme Court by appropriate proceedings of the enforcement of the rights

conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs,

including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto

and certiorari, whichever may be appropriate, for the enforcement of any of the rights

conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) &

(2), Parliament may by law empower any other court to exercise within the local

limits of its jurisdiction all or any of the powers exercisable by the Supreme Court

under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise

provided for by this Constitution.

3

STATEMENT OF FACTS

The state of Hindia was born in the year 1947 and gave themselves Constitution, in the year 1950. The constitution contains a detailed list of Fundamental Rights.

The Fundamental Rights is based on societal pattern of the Hindian Society which is highly divisive on the lines of caste, religion and class. As differences in the society were deep seated in the caste, this resulted in social and economic backwardness of sub-castes.

The Fundamental Rights contains a provision which mandates the state to make special provision for advancement of the class on the ground of social and economic backwardness, in order to ameliorate the conditions of deprived and denied class.

The state made reservations for Hindus in admission in educational institutions and employment in public employment for the benefit of a particular caste that were deprived of opportunities on the account of membership of that caste.

A demand rose in the 21st century on behalf of the economically weak members of the upper echelons of the Hindus to provide reservation in their favour. The economic condition had caused illiteracy which resulted in insignificant presence in public employment.

Through a notification the government introduced a 10% reservation in educational institutions and public employment for the members of economically weak class.

A Chennai based NGO, Society for Equality, challenged the notification before the Supreme Court of Hindia on the grounds of being against the constitutional provisions.

Another NGO, Swarn Jati Uttahhan Samiti also filed an application as intervener before the Supreme Court in order to present a viewpoint on behalf of members of economically weak class.

The petition is placed before 11- judge bench for final argument on April 10, 2012.

4

QUESTIONS PRESENTED

1) Whether the petition is maintainable?

2) Whether the notification passed by the Government making reservation upto 10% in educational institutions and public employment is unconstitutional?

5

SUMMARY OF ARGUMENTS

Issue 1. The present petition is maintainable in this Hon’ble Court.

It is submitted that the preset petition is maintainable as the Society for equality has the locus standi to file the writ petition as the reservation provided for the educationally and economically backward among the upper echelons of Hindus violates the constitutional rights of, among others, the economically challenged non-Hindu section of the society. This specific community doesn’t have the wherewithal and the resources to contest litigation. Hence, the nature of the issue makes the present writ petition to redress the violation of Article 14, a Public Interest Litigation. It is further submitted that the Hon’ble Supreme Court has jurisdiction under Article 32 of the Constitution to adjudicate the matter.

Issue 2. The notification passed by the Government making reservation upto 10% in educational institutions and public employment is unconstitutional.

The notification passed by the Government making reservation upto 10 % in

educational institutions and public employment is violative of Article 14 of the

Constitution: Reservation of 10% on the basis of economic status means among the

higher echelons means exclusions of those who are above the demarcating line from

those 10% seats. The petitioner humbly submits that the classification made by the

state with regard to the 10% reservation does not pass the tests of intelligible

differentia and differentia having rational nexus to the object . The classification has

been made by the state only on the basis of economic backwardness. Such reservation

in educational institutions and public employment shall enable the members of the

upper echelons of the Hindu caste only to attain admissions into such educational

institutions. Moreover, the object of the state of a classless society stands defeated by

the fact that more and more reservations are being added which are widening the

differences between the already existing divisions amongst the different classes of the

Hindus, rather than improving the status of the economically backward people, the

notification is only amplifying the differences.

It is further stated that the notification passed by the Government making reservation

upto 10 % in educational institutions and public employment does not conform to the

requirements of Article 15(4) & Article 16(4) of the Constitution of Hindia. As per

the constitutional mandate no reservation can be made only on the basis of economic

6

criteria. It has been held by the Apex Court in a plethora of judgments that economic

backwardness cannot be the sole basis for identification of backward classes. In the

present case the only ground on which the 10% reservation is granted to the weaker

members of the upper echelons has been economic in nature.

7

ARGUMENTS ADVANCED

Issue 1. The present petition is maintainable in this Hon’ble Court.

The present matter filed by the Society for Equality is maintainable in this Hon’ble

Court because of the following reasons:

i) Society for Equality has the locus standi.

It is humbly submitted that there are certain accepted thresholds have been

considerably relaxed by the Supreme Court.1 The Court now follows a concept

different from the traditional equation which means that only the person whose

legal rights are being violated can approach the Court for redress.

The technique of public interest litigation serves to provide an effective remedy

to enforce group rights and interests. Every citizen possesses a broader right to

criticize the systemic inadequacies in the larger public interest.2

The grievance in a public interest action, generally speaking, “is about the

content and conduct of governmental action in relation to the constitutional or

statutory rights of segments of society and in certain circumstances the conduct

of governmental policies.”3

In the facts presented in the present proposition, the society is bifurcated along

the lines of castes and religion. As such, the reservation provided for the

educationally and economically backward among the upper echelons of Hindus

violates the constitutional rights of, among others, the economically challenged

non-Hindu section of the society. This specific community doesn’t have the

wherewithal and the resources to contest litigation. Various Supreme Court

cases provide mandate for PILs on behalf of the economically challenged.4

Henceforth, the petitioner humbly submits that it has the locus standi to stand

for the rights of the economically challenged.

1Professor MP Jain, Indian Constitutional Law, 6th Ed., Lexisnexis Butterworths Wadhwa, Nagpur, 2010 2 Sheela Barse v. UOI AIR 1988 SC 2211; In re: Arundhati Roy AIR 2002 SC 13753 J.C. Johari, The Consitution of India A Politico-legal Study, 4th Ed., Sterling Publishers, New Delhi.4 M/s Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Ors. AIR 2008 SC 913(19); State Of Uttaranchal v. Balwant Singh Chaufal & Ors. 2010 AIR(SCW) 1029

1

ii) There is prima facie infringement of fundamental rights.

There has been great injustice caused to the Society for Equality, Petitioner and

society at large. The fundamental right guaranteed under Art. 14 of the Hindian

Constitution has been infringed. Hence a Public Interest Litigation has been

filed under Art.32.

iii) The Hon’ble Supreme Court has jurisdiction under Section 32 to

entertain the present matter

In the case of Bandhua Mukti Morcha v. Union of India,5 it has been held, it is

clear on the plain language of clause (1) of Art. 32 that “whenever there is a

violation of a Fundamental Right anyone can move the Supreme Court for

enforcement of such Fundamental Right.”

The petitioners have instituted this petition to ensure safeguards against the violation

of their Fundamental Rights. The present petition qualifies the grounds laid down by

various judgements for maintainability under Article 32 of the Constitution.

Issue 2. The notification passed by the Government making reservation upto 10% in educational institutions and public employment is unconstitutional.

The Petitioner humbly submits that the Caste system in India is a system of social

gratification, social restriction and a basis for affirmative action in India. Historically,

the caste system in India defined communities into thousands endogamous hereditary

groups called Jatis.6 The Jatis were grouped by the Brahminical texts under the four

well known caste categories, viz Brahmins, Kshatriyas, Vaishyas and Shudras.7

Certain people were excluded altogether, ostracized by all other castes and treated as

lower caste.8

5 Bandhua Mukti Morcha v. Union of India AIR 1984 SC 8026 The People of India by Risley, Herbert Hope, Sir, 1851-1911; Crooke, William, 1848-1923, Chapter II Social Types.

7  Manu (Lawgiver)); Manu; Patrick Olivelle (2004). The law code of Manu. Oxford University Press. pp. 185–.ISBN 978-0-19-280271-2. Retrieved 6 January 2012; Also see, Braja Dulal Mookherjee (2002). 

2

The Lower caste was shunned and ostracized by the community they lived in. They

lived on the outskirts of a village. Segregated from the rest, bound down to a code of

behavior, they lived a life appropriate to a servile state. According to this code, they

were not allowed to do anything, which raised them from their appointed station in

life. The evils attributable to the caste system were that it isolated people, infused a

sense of inferiority and divided humanity. Caste system was not merely a social

problem, it traumatized Hindia's people, its economy, the discourse between its

people, preventing Hindia from developing and sharing knowledge, its ability to

create and enjoy the fruits of freedom. Such deep rooted differences in caste resulted

into entrenched discrimination amongst different sub castes, leading to social and

economic backwardness of these sub castes resulting into a creation of a deprived and

denied class.

These caste have been subdued by the upper castes for ages and they have been

deprived of a life of dignity and opportunity for over two millennia, which divested

them of a social standing.

It is submitted that in order to ameliorate the conditions of this deprived and denied

class, the government, in furtherance of the provisions of the constitution has made

provisions for reservations for Hindus in admission in educational institutions under

Article 15(4) and employment in public employment under article 16(4). This move

on the part of the government has led to the upliftment of these subdued castes.

The Constitution of Hindia makes special provisions for the people of the backward

class. The term backward class can be understood to be socially-economically and

educationally backward. The social backwardness is determined primarily on the

point whether the class is considered to be socially backward by others.9 These three

were considered to be indicators to determine as to who can be categorised as

belonging to a backward class in the state.10

i.The Objective of the Reservation:

8 Christophe Jaffrelot (2006). "The Impact of Affirmative Action in India: More Political than Socioeconomic". India Review 5 (2): 173–189.doi:10.1080/147364806008245169 Indira Sawhney v. Union of India AIR 1993 SC 47710 Indira Sawhney v. Union of India AIR 1993 SC 477; K C Vasanth v. State of Karnatka AIR 1985 SC 1495

3

Every citizen is born equal but gets chained with impregnable walls of social,

sectional and religious barriers and is made victim of discrimination and

denuded of human rights. Articles 14, 15(1) and 16(1) banish all barriers of

discrimination on grounds of religion, race, sex, sect, caste, place of birth or any

of them.

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

disadvantaged.11 The objective of the state in making reservation is bringing

about and maintaining social justice. This objective must be achieved

reasonably taking into consideration interest of all irrational and unreasonable

moves by the state will slowly but tear apart the fabric of the society. It is

primarily the duty and the function of the state to inject moderations into the

decisions taken by them.12

Socio economic empowerment secures them dignity of person and equality of

status. Appointment to an office or post gives opportunity to have equality of

status and dignity of person.13

Backwardness cannot continue indefinitely. There is no rule that once a

backward class of citizens, always a backward class. The state is trying to

review the situation from time to time. The policy of reservation has to be

operated year wise and that there can be no such policy in perpetuity.14 This

clearly indicates that the state aspires for a classless society where all sections of

people stand at an equal pedestal.

i. The notification passed by the Government making reservation upto 10

% in educational institutions and public employment is violative of

Article 14 of the Constitution:

Article 14 runs as follows, “the state shall not deny to any person equality

before the law the equal protection of the laws within the territory of Hindia.

Art 14 bars discrimination and prohibits discriminatory laws.

11 State of U.P. v. Dr. Deenanath Shukla 1997 9 SCC 662

12 Indira Sawhney v. Union of India AIR 1993 SC 477

13 State of U.P. v. Dr. Deenanath Shukla 1997 9 SCC 662

14 Jagdish Negi v. State of U.P. AIR 1997 SC 3505

4

“From a positivist point of view equality is antithetic to arbitrariness. In fact,

equality and arbitrariness are sworn enemies. One belongs to the rule of law in

a republic while the other to the whim and caprice of an absolute monarchy.

Where an Act is arbitrary, it is implicit in it that it is unequal, both, according

to political logic, and, constitutional law, and is, therefore, violative of Article

14.”15

Reservation of 10% on the basis of economic status means among the higher

echelons means exclusions of those who are above the demarcating line from

those 10% seats. For such classification to be constitutional, the dual test

mentioned in the E.P. Royappa Case has to stand justified.

The equal protection of laws guaranteed by Article 14 doesn’t mean that all

the laws must be general in character and universal in application. It forbids

class legislation but does not forbid classification or differentiation which rest

upon reasonable grounds of distinction.16 In order to pass the test for

permissible classification two conditions must be fulfilled, namely-

That differentia must have a rational nexus to the object sought to be

achieved by the statute in question.

The classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from others left

out of the group.17

In the present case, the object of the state in making reservation is to bring

about social justice as has been previously discussed. However, the Petitioner

humbly submits that the classification made by the state with regard to the

10% reservation does not pass the acid test. The classification has been made

by the state only on the basis of economic backwardness. Such reservation in

educational institutions and public employment shall enable the members of

the upper echelons of the Hindu caste to only attain admissions into such

educational institutions.

15 Propounded by Bhagwati, J., Chandrachud and Krishna Iyer, JJ. in E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555

16 Kedarnath Bajoria v. State of West Bengal AIR 1953 SC 404

17 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75; Budhan v. State of Bihar AIR 1955 SC 191

5

However, due to their languished economic status they shall not be in a

position to complete their education, hence defeating the purpose of the

notification. The notification does not talk of any kind of subsidy that shall be

provided to these members in order to enable them to reap the benefits of

admissions so acquired. It is humbly submitted that in such circumstances the

object of the state to bring about socio economic equality is not satisfied.

Moreover, the object of the state of a classless society stands defeated by the

fact that more and more reservations are being added which are widening the

differences between the already existing divisions amongst the different

classes of the Hindus, rather than improving the status of the economically

backward people, the notification is only amplifying the differences.

In the light of the above submissions, the Petitioner submits that the

Government notification to for reservation upto 10% in educational

institutions and public employment is violative of Article 14 of the

Constitution of Hindia.

ii. The notification passed by the Government making reservation upto 10 % in

educational institutions and public employment does not conform to the

requirements of Article 15(4) & Article 16(4) of the Constitution of Hindia:

Article 15(4) runs as follows, “Notwithstanding in this article or in clause (2) of

article 29 shall prevent the state from making any special provision for the

advancement of any socially and educationally backward classes of citizens or

the Scheduled Castes and the Scheduled Tribes.”

Article 16(4), “Nothing in this article shall prevent the State from making any

provision for the reservation of appointments or posts in favor of any backward

class of citizens which, in the opinion of the State, is not adequately represented

in the services under the State.”

ii.a) Social & Educational Backwardness:

The aforementioned section highlights two essentials to be satisfied for any

class to be considered to be backward class. Namely, the class must be both

‘socially backward and educationally backward’. This proposition

6

emerges from several judicial pronouncements concerning definition of

backward classes including Indira Swahney v. Union of India,18 and K. S.

Jaishri v. State of Kerala.19 The backward need not be social and

educational both under art 16(4) as opposed to Art 15(4). Backwardness as

contemplated under 16(4) is mainly social backwardness. The primary

question in this reference is therefore with regard to the understanding of

‘social backwardness’.

It was held in K. S. Jaishri v. State of Kerala that there needs to be an

integral connection in between caste, occupation, poverty and social

backwardness. It was further established in Vasanth Kumar case that caste

is the primary index of social backwardness. Moreover, it has been held in a

plethora of judgments that though caste may not be the only determinant in

deciding as to what would constitute as a backward class, it is an

indispensable element so as to determine backwardness.20 The social

backwardness is determined primarily on the point whether the class is

considered to be socially backward by others.21 Reverting back to the facts

of the present case, the Petitioner humbly submits that beneficiaries to the

reservation belong to the upper echelons of the Hindu Religion and that this

section of the society has never been looked down upon. Hence, it is

submitted that even the economically weak class of higher caste does not

qualify the standards as mentioned in Art 15(4) and Article 16(4).

ii.b) Economic Backwardness:

No reservation can be made only on the basis of economic criteria: It has

been held by the Apex Court in a plethora of judgments that economic

18 AIR 1993 SC 477

19 K. S. Jaishri v. State of Kerala.AIR 1976 SC 2381; Also see K. C. Vasanth Kumar v. State of Karnatka AIR 1985 SC 1495; State of Andhra Pradesh v. U.S.V. Balram AIR 1972 SC 1375; Janki Prasad Parimoo v. State of J & K AIR 1973 SC 930 20 Devdasan v. Union of India AIR 1964 SC 179; State of Kerala v. N M Thomas AIR 1976 SC 490; Indira Sawhney v. Union of India AIR 1993 SC 477; K C Vasanth v. State of Karnatka AIR 1985 SC 1495; Janki Prasad Parimoo v. State of J & K AIR 1973 SC 930

21 Indira Sawhney v. Union of India AIR 1993 SC 477

7

backwardness cannot be the sole basis for identification of backward

classes,22 if poverty is the exclusive test, a very large proportion of the

population has to be regarded as socially and educationally backward and if

reservations are made only on the ground of economic considerations, an

untenable situation may arise because even in sectors which are recognised

as socially and educationally advanced there are large pockets of poverty.

Therefore, when a social investigator tries to identify socially and

educationally backward classes he may do it with confidence that they are

bound to be poor. His chief concern is therefore, is to determine whether

the class or group is socially and educationally backward.23

Moreover in the Indira Sawhney v. Union of India,24 the Apex court has

already rejected the reservation of 10% posts in favour of “other

economically backward sections of the people” who are not covered by any

existing schemes of reservation. As such reservation couldnot be related to

Art. 16(4) and would be inconsistent with the guarantee of equal

opportunity held out by Art. 16(4).

It is humbly submitted that in the present case the only ground on which the 10%

reservation is granted to the weaker members of the upper echelons has been

economic in nature. No other considerations have been taken into account.

In the light of the above submissions, it is submitted that such reservation does not

conform to the standards mentioned in article 15(4) and article 16(4).

PRAYER

22 Id. Also see, State of U.P. v. Pradeep Tandon AIR 1975 SC 563

23 Janki Prasad Parimoo v. State of J & K AIR 1973 SC 930

24 AIR 1993 SC 477

8

Therefore in light of the issues raised, arguments advanced and authorities cited, it is

humbly prayed that this Supreme Court may:

1)Quash the impugned notification of the Government by issuing a proper writ

declaring it as unconstitutional.

(ii)  Pass any other order that this Hon’ble Court may deem fit in the interests of

justice, equity and good conscience

FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL EVER PRAY

Respectfully Submitted,

COUNSEL FOR PETITIONERS

9