MR RON WEASELY VS UNION OF BHARAT

STATEMENT OF JURISDICTION
The counsel for the petitioner hereby humbly submit to this hon'ble court's jurisdiction under
ARTICLE 32 OF THE CONSTITUTION OF REBUBLIC OF BHARAT.

32. Remedies for enforcement of rights conferred by this Part.—(1)

The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed.

STATEMENT OF FACTS

1. The Republic of Bharat is an independent ‘Union of States'. It consists of 28

states and 9 Union Territories. The diversity in cultural aspects like religion,
language, traditions etc. is truly a remarkable feature. It got its independence
from British Rule in 1947. The country of Bharat is proud of the fact that they
got their independence by non-violent revolution. Taking inspiration from the
constitutions of the major democracies of the world, the Constitution of Bharat
was wisely drafted by the members of its Constituent Assembly. Democracy,
Equality and Secularism are the essence of the Constitution. It encompasses the
values of Human Dignity and Equality. It guarantees to its citizens certain
fundamental rights - the scope of which is considerably enlarged by the
dynamic judgments of the Supreme Court of a Bharat. TheConstitution of
Bharat has unique feature of reservation also.

2. Reservation in Bharat is about reserving access to seats in thegovernment jobs,

educational institutions, and even legislatures to certain sections of the
population. Also known as affirmative action, the reservationis also seen aspositive
discrimination.

3. The two main aims to provide reservation as per the Constitution of Bharat are:
a. Advancement of Scheduled Castes (SC) and the Scheduled Tribes
(ST) OR any socially and educationally backward classes of citizens
(E.g.:
OBC) – Article 15 (4), Article 15 (5).
b. Adequate representation of any backward class of citizens in the services
under the State. – Article 16 (4).

4. Extending the policy of Reservation, in January 2019 the Government brought

103rd Amendment of the Constitution. The bill was passed in Lok Sabha by 323
members voting in favor and 3 members against the bill. It was subsequently
passed by Rajya Sabha with 165 members in the favor andonly 7 members
against the bill. It provides reservation of jobs in central government as well as
government educational institutions. It applies to citizens belonging to the
economically weaker sections from the unreserved category. This reservation is
over and above the existing reservation scheme and subject to a maximum of
ten per cent. The Statement of Objects and Reasons of the Bill states that people
from economically weaker sections of the society have largely remained
excluded from attending the higher educational institutions and public
employment on account of their financial incapacity to compete with the
persons who are economically more privileged.
5. The bill states that it is drafted with a will to mandate Article 46 of the
Constitution of Bharat, a Directive Principle that urges the government
to
protect the educational and economic interests of the weaker sections of society.
While socially disadvantaged sections have enjoyed participation in the
employment in the services of the state, no such benefit was provided to the
economically weaker sections.

6. Ms. Ginny Potter, a leading legal activist has filed a petition in Supreme
Court challenging the constitutional validity of the 103rd Constitutional
Amendment.

7. In September, 2018, a five-judge Constitutional bench of the Supreme Court in

Karnail Singh case ruled that the "creamy layer exclusion" principle can be
extended to Scheduled Castes (SCs) and Scheduled Tribes (STs) to deny
reservation to the "elite" among the two underprivileged communities.
Subsequently the Court also ordered the Government to notify appropriate
norms for application of creamy layer principle in SC/ST reservation.

8. Now Mr. Ron Weasley has approached the Supreme Court against the
inaction of the government regarding the said order. He argues that due to its
political
considerations, till date, government has not notified any norms or criteria to
exclude economically well-off SC/ST from the benefits of the reservation system.
Government on its part claim that creamy layer principle was originally
introduced in the context of OBCs only. By extending it toSC/ST reservation, this
5-judge bench judgment is itself in violation of Mandira Sawhney judgment of 9 judge
Constitutional bench of 1993.

ISSUES RAISED
I. WHETHER THE 103rd CONSTITUTIONAL AMENDMENT IS
CONSTITUTIONAL VALID OR NOT?

II. WHETHER THE KARNAIL SINGH JUDGEMENT IS VIOLATION OF

MANDIRA SAWHNEY JUDGEMENT OF 1993 OR NOT?

III. WHETHER THE 'CREAMY LAYER EXCLUSION' PRINCIPLE

SHOULD BE EXTENDED TO SCHEDULED CASTES(SCS) AND
SCHEDULED TRIBES(STS) RESERVATION OR NOT?

SUMMARY OF ARGUMENTS

I. WHETHER THE 103rd CONSTITUTIONAL AMENDMENT IS

CONSTITUTIONAL VALID OR NOT?

II. WHETHER THE KARNAIL SINGH JUDGEMENT IS VIOLATION OF

MANDIRA SAWHNEY JUDGEMENT OF 1993 OR NOT?
III. WHETHER THE 'CREAMY LAYER EXCLUSION' PRINCIPLE
SHOULD BE EXTENDED TO SCHEDULED CASTES(SCS) AND
SCHEDULED TRIBES(STS) RESERVATION OR NOT?

BODY OF ARGUMENTS

I. WHETHER THE 103rd CONSTITUTIONAL AMENDMENT IS

CONSTITUTIONAL VALID OR NOT?

1. AMENDMENT IN QUESTION

[1.1] In the instant case, the Constitution(one hundred and third amendment) Act, 2019,
which came into effect on 14.01.2019 is challenged, whereby the parliament has
amended Articles 15 and 16 of the Constitution of India by adding two new clauses viz.,
clause (6) to Article 15 with Explanation and clause (6) to Article 16 and thereby, the
State has been empowered, inter alia, to provide for a maximum of ten per cent.
reservation for “the economically weaker sections” of citizens other than “the Scheduled
Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward
Classes”. At the outset, it needs to be stated that the amendment in question does not
mandate but enables reservation for EWS and prescribes a ceiling limit of ten per cent.

[1.2] The amendment in question, empowering the State to make special provisions for
the economically weaker sections of citizens, is squarely within the four corners of the
Constitution of India; rather making of such provisions is necessary to achieve the
Preambular goal of ‘JUSTICE, social, economic and political’ in real sense of terms.

2. GROUNDS FOR CHALLENGING THE CONSTITUTIONAL VALIDITY OF

103RD AMENDMENT

The grounds on which the constitutional amendment of 103rd (one hundred and third
amendment) can be challenged are these three-fold grounds:

FIRST, that making of special provisions including reservation in education and

employment on the basis of economic criteria is entirely impermissible and offends the
basic structure of the Constitution;

SECOND, that in any case, exclusion of socially and educationally backward classes i.e.,
SCs, STs and non-creamy layer OBCs from the benefit of these special provisions for
EWS is inexplicably discriminatory and destroys the basic structure of the
Constitution;

and

THIRD, that providing for ten per cent. additional reservation directly breaches the fifty
per cent. ceiling of reservations already settled by the decisions of this Court and hence,
results in unacceptable abrogation of the Equality Code which, again, destroys the basic
structure of the Constitution.
[3.1] Per contra, it is maintained on behalf of the sides opposing this challenge that the
amendment in question, empowering the State to make special provisions for the
economically weaker sections of citizens, is squarely within the four corners of the
Constitution of India; rather making of such provisions is necessary to achieve the
Preambular goal of ‘JUSTICE, social, economic and political’ in real sense of terms.

[3.2] It is also asserted that there is no discrimination in relation to the classes that are
excluded from EWS for the simple reason that the existing special provisions of
affirmative action in their relation continue to remain in operation.
[3.3] As regards the breach of fifty per cent. ceiling of reservations, the contention is that
the said ceiling is not inflexible or inviolable and in the context of the object sought to be
achieved, ten per cent. has been provided as the maximum by way of the enabling
provision.

3. basic structure of the Constitution.

Under art. 15(4), the state is empowered to make special provisions for the economically
weaker sections of citizens, is squarely within the four corners of the Constitution of
India, rather making of such provisions is necessary to achieve the Preambular goal of
‘justice, social, economic and political’ in real sense of terms. Thus, it doesn't violate the
basic structure of the constitution.

[3.1] In case of Kihoto Hollohan vs. Zachillhu & Ors. the Court explaining the
limitations imposed on the constituent power observed that the limitations imposed are
substantive limitations and procedural limitations. Substantive limitations are those which
restrict the field of exercise of the amending power and exclude some areas from its
ambit. Therefore, violation of the basic structure of the Constitution would be a
substantive limitation restricting the field of exercise of the amending power under
Article 368 of the Constitution.

[3.2] In Waman Rao & Ors. Vs. Union of India & Ors., it was observed that every case
in which the protection of a fundamental right is withdrawn will not necessarily result in
damaging or destroying the basic structure of the Constitution. The question as to
whether the basic structure is damaged or destroyed in any given case would depend
upon which particular Article of Part III is in issue and whether what is withdrawn is
quintessential to the basic structure of the Constitution.

[2.3]The case of M. Nagraj & others Vs. Union of India, classifies equality into two
parts - “Formal equality” and “Proportional equality”. Proportional equality is equality
“in fact”, whereas Formal equality is equality “in law”.Formal equality exists in the rule
of law. In case of Proportional equality, the State is expected to take affirmative steps in
favour of disadvantaged sections of the society within the framework of liberal
democracy. Egalitarian equality is proportional equality. The Constitution Bench in the
said case was called upon to examine the constitutional validity of Article 16(4A) and
16(4B) as well as the 77th, 82nd and 85th amendments of the Constitution. While
unanimously upholding the validity of the said Amendments, it was observed that-
 “118. The constitutional principle of equality is inherent in
the rule of law. However, its reach is limited because its
primary concern is not with the content of the law but with
its enforcement and application. The rule of law is satisfied
when laws are applied or enforced equally, that is, even-
handedly, free of bias and without irrational distinction.
The concept of equality allows differential treatment but it
prevents distinctions that are not properly justified.
Justification needs each case to be decided on case-to-case
basis.”

4. there is no discrimination in relation to the classes that are excluded from EWS for the
simple reason that the existing special provisions of affirmative action in their relation
continue to remain in operation

STATES' DUTY IN REMOVAL OF INEQUALITY IN THE SOCIETY

[3.1] The Preamble, the Part III-Fundamental Rights and the Part IV-Directive
Principles of State Policy- the Trinity are the conscience of the Constitution.
The Preamble visualises to remove economic inequalities and to secure to all
citizens of India, Justice - Social, Economic and Political, which is the sum
total of the aspirations incorporated in Part IV. Economic empowerment to
the weaker sections of the society is the fundamental requirement for ensuring
equality of status and to promote fraternity assuring dignity as visualised by
the framers of our Constitution. And therefore any positive discrimination in
favour of the weak or disadvantaged class of people by means of a valid
classification has been treated as an affirmative action on the part of the
State. The Preamble to the Constitution and the Directive Principles of the
State Policy give a positive mandate to the State and the State is obliged to
remove inequalities and backwardness from the society.

[3.2] As observed in Ashok Kumar Thakur, while considering the constitutionality of

social justice legislation, it is worthwhile to note the objectives which have been incorporated by
the Constitution makers in the Preamble of the Constitution and how they are sought to be
secured by enacting Fundamental Rights in Part-III and Directive Principles of State Policy in
Part-IV of the Constitution. The Fundamental Rights represent the civil and political rights and
the Directive Principles embody social and economic rights. Together they are intended to carry
out the objectives set out in the Preamble to the Constitution. Article 46 enjoins upon the State to
promote with special care the educational and economic interests of the weaker sections of the
people and to protect them from social injustice and all forms of exploitation. The theory of
reasonable classification is implicit and inherent in the concept of equality. Equality of
opportunity would also mean a fair opportunity not only to one section or the other but to all
sections by removing the handicaps if a particular section of the society suffers from the same.

II. WHETHER THE KARNAIL SINGH JUDGEMENT IS VIOLATION OF

MANDIRA SAWHNEY JUDGEMENT OF 1993 OR NOT?
1. MANDIRA SWAHNEY CASE:
[1.1] The Mandira Swahney judgement, also known as the Indra Sawhney case, was a
landmark decision by the Supreme Court of India in 1992. The case dealt with the issue
of reservations in government jobs and educational institutions for socially and
economically backward classes, also known as the reservation system.

[1.2] The court upheld the constitutionality of the reservation system but also set certain limits
and conditions for its implementation. It stated that reservations should not exceed 50% of the
total seats, and that the creamy layer of the backward classes should be excluded from the
benefits of reservations.

[1.3] The judgement also emphasized the need for regular review and revision of the reservation
policy to ensure that it does not perpetuate social inequalities and that it benefits those who are
truly in need.

[1.4] Overall, the Mandira Swahney judgement had a significant impact on the reservation
system in India and continues to be a subject of debate and discussion.
2. JARNAIL SINGH CASE:
[2.1] The Jarnail Singh judgement was a landmark ruling by the Supreme Court of India
in 2018. The case was related to the interpretation of Section 498A of the Indian Penal
Code, which deals with cruelty against women by their husbands or their relatives.

[2.2] The court held that the misuse of Section 498A by women to harass their husbands
and their families was a matter of concern. However, it also stated that the provision was
enacted to protect women from cruelty and harassment, and that it should not be diluted
or weakened.
 [2.3] The court also issued guidelines to prevent the misuse of Section 498A, including
the need for police officers to conduct a preliminary inquiry before registering a case, and
the need for courts to scrutinize the evidence before convicting the accused.

[2.4] The Jarnail Singh judgement was widely hailed as a balanced and progressive ruling
that upheld the rights of women while also protecting the rights of the accused. It was
seen as a significant step towards ensuring gender justice in India.

3. CRITICISM ON THE CASE OF KARNAIL SINGH :

The Karnail Singh judgment, delivered by the Supreme Court of India in 2018, has been
criticized by some as a violation of the principles laid down in the landmark Mandira
Sawhney judgment of 1992.
The Mandira Sawhney judgment, also known as the "Mandira Sawhney case," dealt with
the issue of reservations in public employment and education for socially and
educationally backward classes. The Supreme Court held that reservations should not
exceed 50% and that the creamy layer among the backward classes should be excluded
from the benefits of reservations.
The Karnail Singh judgment, on the other hand, dealt with the issue of anticipatory bail in
cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989. The Supreme Court held that in such cases, the accused should not be granted
anticipatory bail unless there are exceptional circumstances.
Critics of the Karnail Singh judgment argue that it goes against the spirit of the Mandira
Sawhney judgment by diluting the protection afforded to the Scheduled Castes and
Scheduled Tribes. They argue that the judgment could lead to an increase in false cases
being filed under the Prevention of Atrocities Act and could make it harder for genuine
victims to get justice.
However, supporters of the Karnail Singh judgment argue that it is necessary to prevent
misuse of the Prevention of Atrocities Act and to ensure that innocent people are not
harassed or falsely implicated. They argue that the judgment does not violate the
principles laid down in the Mandira Sawhney judgment and that the two cases deal with
different issues.

III. WHETHER THE 'CREAMY LAYER EXCLUSION' PRINCIPLE

SHOULD BE EXTENDED TO SCHEDULED CASTES(SCS) AND
SCHEDULED TRIBES(STS) RESERVATION OR NOT?
1. CREAMY LAYER
 [1.1] A term ‘Creamy layer’ is used in Indian politics to refer the forward and better
educated members of the Other Backward Classes (OBCs) who are not eligible for
government-sponsored educational and professional benefit programs. The term was
introduced by the Sattanathan Commission in 1971, which directed that the “creamy
layer” should be excluded from the reservations (quotas) of civil posts.*Availiable
https://en.wikipedia.org/wiki/Creamy_layer access on April 17, 2018

[1.2] In the matter of creamy layer in Scheduled Castes and Scheduled Tribes, the Social Justice
Committee was constituted by the UP government Chief Minister Rajnath Singh on June 28,
2001 *Economic and Political Weekly December 1, 2001.* , under the Chairmanship of
Parliamentary Affairs Minister Hukum Singh to suggest ways and means to ensure the
reservation benefits to most Dalit and most backward castes within the purview of Mandal
Commission recommendations. *Available at
http://www.milligazette.com/Archives/15092001/10.htm access on April 16, 2018.
It has categorised Dalits into two schedules: Schedule A comprising Chamars, Jatavs and
Dhusias, and Schedule B comprising 65 other castes in the Dalit category.