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TC12

N.J.Y. NATIONAL MOOT COURT COMPETITION 2021

BEFORE THE HON’BLE SUPREME COURT

Ms. MOUMITA SAHA v. UOI

CLUBBED WITH
SHUBHAM ANAND v. UOI

(PETITIONER)
.

v.

UNION OF INDIA
(RESPONDENT)

Memorandum Filed On Behalf of The Respondent

Drawn and Filed by The Counsel Appearing on Behalf Of The Respondent

TABLE OF CONTENTS
LIST OF ABBREVATIONS ……………………………………………………………… iii

INDEX OF AUTHORITES ……………………………………………………………… iv

STATEMENT OF JURISDICTION………………………………………………………. v

STATEMENT OF FACTS…………………………………………………………………vi

ISSUES RAISED ………………………………………………………………………… viii

SUMMARY OF ARGUMENTS …………………………………………………………. ix

ARGUMENTS ADVANCED …………………………………………………………… 1

PRAYER
LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another
Ed. Edition
i.e. That is
IPC Indian Penal Code
Ltd. Limited Company
No. Number
Ors. Others
Rs. Rupees
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter

BOMLR Bombay Law Reporter

Sec./S. Section
v. Versus
Art. Article
& And
 INDEX OF AUTHORITIES

TABLE OF CASES:

Sundarjas Kanyalal Bhathija vs. The Collector, Thane, Maharashtra, AIR 1990 SC 261.

State of UP Vs. Ajay Kumar Sharma, 2016 (92) ACC 985 (SC).

Bharat Petroleum Corporation Ltd. Vs. Mumbai Shramik Sangha, (2001) 4 SCC 448

Shashi Kala Vs. Ganga Lakshmamma, (2015) 9 SCC 150

State of Punjab vs. Nestle India Ltd., (2004) 6 SCC 465

Lily Thomas vs. Union of India, (2000) 6 SCC 224

State of Haryana vs. Maruti Udyog Ltd., (2000) 7 SCC 348.

Ashok Kumar Pandey v. The State of West Bengal, AIR 2004 SC 280.

M/s. Ujagar Prints vs. Union of India, AIR 1987 SC 874.

Commissioner of Income Tax, Bihar vs. Trilok Nath Mehrotra, (1998) 2 SCC 289.

Punjab Engg. College v. Sanjay Gulati. (1983) 3 SCC 517

A.K. Roy v. Union of India, (1982) 1 SCC 271

State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312

Ahmedabad Municipal Corpn. v. Nawab Khan, (1997) 11 SCC 121

State of T.N. v. L. Abu Kavur Bai, (1984) 1 SCC 515, AIR 1984 SC 326

India Statutory Corpn. v. United Labour Union, (1997) 9 SCC 377

WEBSITES:

1. https://www.legitquest.com/
2. http://www.judis.nic.in
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com
 STATEMENT OF JURISDICTION

It is humbly submitted that; the Respondent has appeared before this Hon’ble Court in
response to the notice sent to the Respondent with regard to the write petition filed by the
Petitioner under Article 321 of the Constitution of Indiana.

1
Article 32 in The Constitution of India, 1950-
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.
(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 clause ( 1 ) and ( 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
 STATEMENT OF FACTS
I. The Republic of Indiana, a self-governing ‘Union of States’, with 28 states and 9
Union Territories, got its Independence in 1947. And the constituent Assembly
drafted its constitution.
II. The constitution of the largest democracies core values are democracy, equality and
secularism. And the scope is expanded by various judgments of Supreme Court of
Indiana.
III. The Constitution also talks about reservation for certain section of the population, which
is also known as affirmative action, and also deemed as positive discrimination.
IV. According to Indiana’s constitution, there are two basic goals for providing reservation:
(a) Upliftment of Schedule Castes (SC) and the Scheduled Tribes (ST) OR any
socially and educationally backward classes of citizens. – Article 15(4),
Article 15(5).
(b) To ensure adequate representation of any backward class of citizens in the
services under the state. – Article 16(4).
V. With 229 votes in favour and 10 votes against in Lok Sabha, the government introduces
104th amendment, which explains the extension of reservation policy, and it was passed in
Rajya Sabha.
VI. It applies to citizens from the unreserved category who are economically disadvantaged.
This reservation is in addition to the existing reservation scheme and is limited to a (10%)
ten percent reservation.
VII. People from economically weaker sections of the society generally could not have the
same opportunity and barred from higher educational institutions and pubic jobs due to
their financial inability to compete with those who are economically more affluent.
VIII. The following are the amended article;
(a) Article 15(6) is inserted to offer reservation to economically weaker section
for admission in educational institutions, including private educational
institutions, whether sponsored or unaided by the state other than the minority
educational institution mentioned in clause (1) of the Article 30. The
amendment attempts to give those who do not come under Article 15(5) or
15(4) a reservation (effectively, SC’s, ST’s and OBC’s).
IX. Ms. Moumita Saha, a legal activist, petitioned the Supreme Court to declare the 104th
Constitutional Amendment Unconstitutional.
X. Following the Judgment of Jarnail Singh case, regarding ‘creamy layer exclusion theory’,
the court ordered the government to bring in appropriate guidelines, which the
 government failed to do so. Mr. Shubham Anand filed a suit over the government’s
failure to follow the order.
XI. The government claims that this 5-judge bench decision violated the Anindita Sawhney
decision of a 9 judge Constitutional bench from 1993 by extending it to SC/ST reservation.
 ISSUES RAISED

ISSUE 1:

WHETHER THE PRESENT SUIT IS MAINTAINABLE IN SUPREME COURT OR NOT?

ISSUE 2:

WHETHER THE CREAMY LAYER NORM CAN BE EXTENDED TO SCHEDULED

CASTES(SC)/SCHEDULED TRIBES(ST)?

ISSUE 3:

WHETHER THE DIVISION BENCH CAN OVERRULE THE JUDGEMENT OF THE

CONSTITUTIONAL BENCH?

ISSUE 4:

WHETHER ECONOMIC CRITERIA CAN BE SOLE GROUND FOR RESERVATION AS

PER ARTICLE 16(6)?
 SUMMARY OF ARGUMENTS
ISSUE I:

WHETHER THE PRESENT SUIT IS MAINTAINABLE IN SUPREME COURT?

It is humbly submitted that only a person acting in good faith and with a sufficient interest in
the Public Interest Litigation proceedings will have locus standi Only a person acting in good
faith and with a sufficient interest in the Public Interest Litigation proceedings will have locus
standi and will be able to approach the court under Article 32 to have a violation of
Fundamental Rights and a genuine infraction of statutory provisions removed, but not for
personal gain, private profit, political motives, or any other oblique consideration. There was
no violation of Article 15(6), which is inserted to provide reservation to the weaker section
for admission to educational institutions, including private educational institutions, whether
sponsored or unaided by the state, other than minority educational institutions mentioned in
Article 30 clause (1).

ISSUE 2:

WHETHER THE CREAMY LAYER NORM CAN BE EXTENDED TO SCHEDULED

CASTES(SC)/SCHEDULED TRIBES(ST)?

It is humbly submitted to this Hon'ble Court that the creamy layer norm cannot be
extended to SC/STs because doing so would violate the decision of a 9-judge
Constitutional bench in the case of Indira Sawhney vs UOI. It was unmistakably stated
that the concept of a creamy layer would not be applied to SC/ST. It was held that the
Scheduled Castes and Scheduled Tribes are the most backward among backward
classes, and it is therefore assumed that once they are included in the Presidential List
under Articles 341 and 342 of the Indian Constitution, there will be no need to
demonstrate their backwardness again.

ISSUE 3:

WHETHER THE DIVISION BENCH CAN OVERRULE THE JUDGEMENT OF THE

CONSTITUTIONAL BENCH?

The judgement of a larger bench is humbly submitted to this hon'ble court. A decision made
by a larger bench will take precedence over a decision made by a smaller bench. "We hold that
the judgement of the Full Bench is a valid precedent binding on the Division Benches and
single Judges of this Court as well as subordinate courts," it was said in the case of Philip
Jeyasingh v. The Joint Registrar of Co-operative Society.

The law established by the higher court will be binding. In the case of Central Board of
Dawoodi Bohra Community v. State of Maharashtra, the court stated, "The law laid down by
this court in a decision delivered by a bench of greater strength is binding on any subsequent
Bench of lesser or co-equal strength."

ISSUE 4:

WHETHER ECONOMIC CRITERIA CAN BE SOLE GROUND FOR

RESERVATION AS PER ARTICLE 16(6)?

It is humbly submitted to this august court that economic considerations cannot be the sole
basis for reservation. Articles 15, 29, 46, and 341 of the Constitution recognise the existence
of backward classes in our country and make a sincere effort to promote the welfare of the
weaker sections. This Act is a sincere attempt in this direction to alleviate the hardships of
those who have been left behind due to economic conditions.
 ARGUMENTS ADVANCED

ISSUE I

WHETHER THE PRESENT SUIT IS MAINTAINABLE IN SUPREME COURT?

I.1. THAT THERE WAS NO INFRINGMENT OF FUNDAMENTAL RIGHTS AND

SUCH INFRINGMENETS WERE NOT IMMINENT

It is humbly submitted that only a person acting in good faith and with a sufficient interest in
the proceedings of the Public Interest Litigation will have a locus standi and will be able to
approach the court under Article 32 to have a violation of Fundamental Rights and a genuine
infraction of statutory provisions removed, but not for personal gain, private profit, political
motives, or any other oblique consideration.

‘When a person acquires a locus standi, he has to have a personal or individual right which
was violated or threatened to be violated’.2 In the present case there was no violation of
Article 15(6) which is inserted to offer reservation to weaker section for admission in
educational institutions, including private educational institutions, whether sponsored or
unaided by the state, other than the minority educational institutions mentioned in clause (1)
of Article 30.3

It is further submitted that the directive given by the court for inducting creamy layer norm in
SC/ST reservation is in due process and any loss caused by this same cannot be traced to have
caused the loss, as the same was contended by the petitioner in his submission.

Further, arguing arguendo even if such a right is protected, the same is not interfered with, as,
interference is in accordance with law and it is to pursue a legitimate aim, also, it is
necessary in a democratic society. Hence It is most humbly submitted for the kind
consideration of this Hon’ble court that there was no infringement of fundamental right nor
such violations are imminent.

1.2. THAT THERE IS ABUSE OF PROCESS BY THE PETITIONER

2
Calcutta Gas Co. Ltd. V. State of West Bengal, AIR 1962 SC 1044.
3
Article 30 of Indian Constitution, right of minorities to establish and administer educational institutions
(1) All minorities, whether based on religion or language, shall have the right to establish and administer
educational institutions of their choice
It is humbly submitted before the Hon’ble Court that, per curiam Sachidanand Pandey v.
State of West Bengal4, courts must restrict the free flow of case under the name of Public
Interest Litigation, otherwise it will pose grave threat to courts and public as they would be
imminently suffering from the courts entertaining frivolous petitions, the courts and the public
will suffer and the court of law instead of dispensing justice will have to take upon the
administrative and executive function.

The PIL questioning the efficiency and credibility of working of government in enforcing the
directive given by the courts, and the petitioners contending on the grounds of violation of
fundamental rights and several others are solely fabricated and based on frivolous and
hypothetical assumptions.

The association by the way of the PIL is also trying to settle their own private tussle with the
politicians who were further involved in the delay of implementation of the directive issued
under the suit filed by Ms. Moumita Saha.

1.2.1. Public interest litigation should not be "publicity interest litigation" or "private interest
litigation" or "politics interest litigation"; if not properly regulated and abuse averted it
becomes a tool in unscrupulous hands to release vendetta and wreck vengeance, as well.5

The petition in this case does not intend to advance any public right; rather, it invokes the
Supreme Court's authority as a public interest litigation while keeping political enmity in
mind; as a result, the allegations made in the petition and in the setting of the case were totally
unwarranted. Litigation in the public interest does not imply the resolution of private
problems.6

Hence, it is humbly pleaded that, the petitioner has no locus standi to file the petition and thus
such petition filed before court on ground of political enmity is liable to be rejected by court
and is not maintainable.7

This weapon (public interest lawsuit) as a protection, it is further maintained, must be used
and summoned by the court with utmost delicacy and circumspection. If it looks to be nothing

4
(1987) 2 SCC 295: AIR 1987 SC1109: 1987 (1) Supreme 492.
5
Ashok Kumar Pandey v. The State of West Bengal, AIR 2004 SC 280.
6
Ramsharan Autyanuprasi v. Union of India, 1989 Supp (1) SCC 251: AIR 1989 SC 549: JT 1988 (4)
SC 577.
7
Chintamani rao v.State Of M.P, AIR 1951 SC 118.
more than a cloak to cover up any old hostility or grudge, it must not only be refused, but
actively discouraged.

While the Supreme Court has the responsibility to enforce fundamental rights, it also has the
responsibility to ensure that this weapon under Article 32 is not misused or allowed to be
misused by creating a bottleneck in the Superior Court, preventing the court from considering
other genuine violations of fundamental rights. That would be an act or behaviour that would
undermine the goal of preserving fundamental rights.8

It is therefore, the duty of the Supreme Court to discourage such petitions and to ensure that
the course of justice is not obstructed or polluted by unscrupulous litigants by invoking
extraordinary jurisdiction of the Supreme Court for personal matter in the garb of the Public
Interest Litigation.9 Thus, a person acting for personal gain or private profit or political
motive or any oblique considerations has no locus standi. Thus, the instant PIL filed by the
petitioner cannot be maintainable.

8
Chhetriya Pardushan Mukti Sangharsh Samiti v. State of Uttar Pradesh, (1990) 4 SCC 449: AIR 1990
SC 2060: JT 1990 (3) SC 685
9
Subhash Kumar v. State of Bihar, (1991) 1 SCC 598: AIR 1991 SC 420: (1991) 1 SCR 5.
 ISSUE II

WHETHER THE CREAMY LAYER NORM CAN BE EXTENDED TO SCHEDULED

CASTES(SC)/SCHEDULED TRIBES(ST)?

It is humbly submitted before this Hon’ble court that; the creamy layer norm cannot be
extended to SC’s/ST’s because it will violate the judgement given by a 9 judge Constitutional
bench in the case of Indira Sawhney vs UOI10 it was clearly held that concept of creamy
layer will not be applied to SC/ST. It was held that the Scheduled Castes and the Scheduled
Tribes are the most backward among backward classes and it is, therefore, presumed that
once they are contained in the Presidential List under Articles 341 and 342 of the
Constitution of India, there is no question of showing backwardness of the Scheduled Castes
and the Scheduled Tribes all over again.

In addition to the above judgement, in E.V. Chinnaiah v. State of A.P.,11 it was held further
sub-classification within Scheduled Castes and Scheduled Tribes is impermissible, as has
been held in In Indra Sawhney case the Court had permitted sub classification of Other
Backward Communities, as backward and more backward based on their comparative
underdevelopment, therefore, the similar classification amongst the class enumerated in the
Presidential List of Scheduled Castes is permissible in law. But the principles laid down in
Indra Sawhney case (supra) for sub classification of Other Backward classes can’t be applied
as a precedent law for subclassification or subgrouping Scheduled Castes in the Presidential
List because that very judgment itself has specifically held that subdivision of Other
Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes. This we think
is for the obvious reason i.e., the Constitution itself has kept the Scheduled Castes and
Scheduled Tribes List out of interference by the State Governments.

Classification whether permissible or not must be judged on the touchstone of the object
sought to be achieved. If the object of reservation is to take affirmative action in favour of a
class which is socially, educationally and economically backward, the State’s jurisdiction
while exercising its executive or legislative function is to decide as to what extent reservation
should be made for them either in public service or for obtaining admission in educational
institutions. The counsel on behalf of the respondent humbly contends that such a class

10
Indra Sawhney v. Union of India, AIR 1993 SC 477, 1992 Supp 2 SCR 454
11
E.V. Chinnaiah v. State of A.P, AIR 2005 1 SCC 394
cannot be subdivided so as to give more preference to a minuscule proportion of the
Scheduled Castes in preference to other members of the same class.

The members of the Scheduled Castes are most backward amongst the backward classes and
the impugned legislation having already proceeded on the basis that they are not adequately
represented both in terms of clause (4) of Article 1512 and clause (4) of Article 1613 of the
Constitution, a further classification by way of micro- classification is not permissible. Such
classification of the members of different classes of people based on their respective castes
would also be violative of the doctrine of reasonableness. Article 34114 provides that
exclusion even of a part or a group of castes from the Presidential List can be done only by
Parliament. The logical corollary thereof would be that the State Legislatures are forbidden
from doing that. A uniform yardstick must be adopted for giving benefits to the members of
the Scheduled Castes for the purpose of the Constitution.

Dalit Indian Chamber of Commerce and Industry (DICCI) prepared a report commissioned
by the Union Ministry of Social Justice and Empowerment on the progress of Scheduled
Castes and Scheduled Tribes (SCs & STs) in seven decades since Independence. The report
also dismissed the ‘creamy layer’ concept, saying their number is “insignificant” in a
population of over 200 million.

Rebutting the concept of a ‘creamy layer’ referring to socially and economically affluent
members of these communities, the report said there is no such thing. “The total Scheduled
Caste “Group A” and “Group B” employment in the public sector is about 3,38,606. Their
political representation in the Legislatures is about a thousand individuals. This is the Creamy
Layer of Scheduled Castes. In a 200 million plus population this is an insignificant number,”
the report said.15

12
Indian Constitution, Art 15(4).
13
Indian Constitution, Art 16(4).
14
Indian Constitution, Art 341.
15
The Print, https://theprint-in.cdn.ampproject.org/v/s/theprint.in/india/sc-st-creamy-layer-is-
insignificant-inequalities-still-glaring-dalit-chamber-of-
commerce/639027/?amp_js_v=a6&amp_gsa=1&amp&usqp=mq331AQKKAFQArABIIACAw%3D%3
D#aoh=16396558665164&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%2
4s&ampshare=https%3A%2F%2Ftheprint.in%2Findia%2Fsc-st-creamy-layer-is-insignificant-
inequalities-still-glaring-dalit-chamber-of-commerce%2F639027%2F , (last visited on 12th
December2021).
Reservation in politics, services and institutions is given to SCs particularly because they
were denied the right to property, education and industries for nearly 2,000 years. Besides
they were treated as untouchables. Discrimination continues even today in society. The
argument was that to provide them the safeguard [against discrimination] and compensate
them to some extent for past exclusions, they should be given representation as per their
population share. Because otherwise, due to persisting discrimination in services, enterprises
and agriculture, they won’t get their due share.

While both OBCs and SCs get reservation, the social reality under which Dalits live and the
situation under which OBCs live are very different. The ‘creamy layer’ exclusion from within
the OBCs is valid because for them a lot of it is economic backwardness and if you are rich
enough to cross a certain threshold, there isn’t the kind of social discrimination that happens
towards Dalits.

In fact, there is an argument in the U.S. that richer Blacks face greater discrimination because
the Whites resent their entry into areas that are considered privileged for the Whites. So, in a
way, there is some evidence to show that discrimination actually increases with a rise in
economic position. Even after Dalits get entry into jobs or higher education, there are little
micro-aggressions that they face.

The reservation policy type of affirmative action is against discrimination; it is not based on
economic consideration because the discrimination is independent of your economic
standing. For instance, while reserving seats for women our law doesn’t discriminate between
rich women and poor women because women are discriminated based on gender, irrespective
of their economic status. Therefore, economic criteria cannot be a basis to judge
backwardness of a class.
 ISSUE III

WHETHER THE CONSTITUTIONAL BENCH CAN OVERRULE THE

JUDGEMENT OF LARGER CONSTITUTIONAL BENCH?

It is humbly submitted to this hon’ble court that the judgment by a larger bench prevails. A
decision by a larger bench will have precedence over a smaller bench. In the case of Philip
Jeyasingh v. The Joint Registrar of Co-operative society16 , it was held that, “We hold that the
judgment of the Full Bench is a valid precedent binding on the Division Benches and single
Judges of this Court as well as subordinate courts.”

The law Laid down by the larger bench will be binding. In the case of Central Board of
Dawoodi Bohra Community v State of Maharashtra17 has observed that, “The law laid down
by this court in a decision delivered by a bench of larger strength is binding on any
subsequent Bench of lesser or co-equal strength.” This view followed by the hon’ble Bombay
highcourt in case of Reliance General Insurance Company Ltd. V Sayeda Aleemunbee18, and
held that, ‘It is well settled judicial process demands that a judge moves within the framework
of relevant legal rules and coveted modes of those for ascertaining them. The judicial robe
has its inbuilt discipline, which mandates, for a high court to adhere in tune with the
precedent of supreme court and in particular of the larger bench. This is more so, if there are
divergent views by hon’ble court, on identical issues.’

A precedent is a statement of law found in decision of a superior court. ‘Judicial Precednt’

means a judgment of a court of law cited as an authority for deciding a similar set of facts, a
case which serves as authority for the legal principal embodied in its decision. A judicial
precedent is a decision of the Court used as a source for future decision making. It certainly
cannot be violated or overruled by the smaller bench.

The pronouncement of a Constitution Bench is unlikely to be disturbed or overruled for a

long time to come – there is a sense of finality attached to that verdict – because the only way
to get such a verdict overruled is to first convince a subsequent five-judge bench of the

16
(1994) 1 MLJ 398
17
(2005) 2 SCC 673
18
2013, decided on 03.03.2014.
Supreme Court that the view previously taken was wrong, have the matter referred to a larger
bench of seven judges, and then convince that bench of seven judges to overrule the previous
judgment of the Constitution Bench.

It's important to remember that practising law, no matter how glamorous it may be, has its
own set of constraints on the bench. The judges in a multijudge court are governed by
precedents and procedure. They could only exercise their discretion if no declared principle,
rule, or authority could be identified. When a single judge or a division bench disagrees with
the decision of a bench with coordinating jurisdiction, the matter must be referred to a bigger
bench. Failure to follow this method is a violation of the legal system. The job of judges of
superior courts and tribunals under our judicial review system, which is a part of our
constitutional architecture, is to make the law more predictable. Apologetic approaches
should not be used to address the matter of law that arises immediately in the case. 19

The doctrine of Precedent mandates that an exposition of law must be followed and applied
even by coordinate or co-equal Benches and certainly by all smaller Benches and Subordinate
Courts. That is to say that a smaller and a later bench has no freedom other than to apply the
law laid down by the earlier and larger Bench, that is the law which is said to hold the field.
Apart from Article 141, it is a policy of the Courts to stand by precedent and not to disturb a
settled point. A departure may only be made when a coordinate or co-equal Bench finds the
previous decision to be of doubtful logic or efficacy and consequentially, its judicial
conscience is to perturbed and aroused that it finds it impossible to follow the existing ratio.
The Bench must then comply with the discipline of requesting the Hon'ble Chief Justice to
constitute a larger Bench.20

Further in many leading cases such as Bharat Petroleum Corporation Ltd. Vs. Mumbai
Shramik Sangha (Five-Judge bench)21, Shashi Kala Vs. Ganga Lakshmamma22, State of
Punjab v. Nestle India Ltd.23, Lily Thomas v. UOI24, State of Haryana v. Maruti Udyog
Ltd.25,G.M., Telecom vs. A. Srinivasa Rao26, etc. it was held that in case of any conflict

19
Sundarjas Kanyalal Bhathija vs. The Collector, Thane, Maharashtra, AIR 1990 SC 261.
20
State of UP Vs. Ajay Kumar Sharma, 2016 (92) ACC 985 (SC).
21
Bharat Petroleum Corporation Ltd. Vs. Mumbai Shramik Sangha, (2001) 4 SCC 448
22
Shashi Kala Vs. Ganga Lakshmamma, (2015) 9 SCC 150
23
State of Punjab vs. Nestle India Ltd., (2004) 6 SCC 465
24
Lily Thomas vs. Union of India, (2000) 6 SCC 224
25
State of Haryana vs. Maruti Udyog Ltd., (2000) 7 SCC 348.
26
G.M., Telecom vs. A. Srinivasa Rao.
between the views expressed by a larger and smaller benches, judicial discipline requires that
the views expressed by larger bench should be preferred to those express by smaller bench.

A bench of two judges of the Supreme Court should not disregard the decision of a bench of
three judges. If the two-judge bench in inclined to disagree with the directions of the three-
judge bench, then the case should be referred to a larger bench.27

Where there is a conflict between the decisions of two benches of different strength, the
decision of the larger bench would prevail.28

The purpose of precedents is to bestow predictability of judicial decisions and it is beyond

cavil that certainty in law is an essential ingredient of rule of law. Therefore, five judge bench
decision cannot overrule the decision given by a 9 judge bench.

27
M/s. Ujagar Prints vs. Union of India, AIR 1987 SC 874.
28
Commissioner of Income Tax, Bihar vs. Trilok Nath Mehrotra, (1998) 2 SCC 289.
 ISSUE IV

WHETHER ECONOMIC CRITERIA CAN BE SOLE GROUND FOR

RESERVATION AS PER ARTICLE 16(6)?

It is humbly submitted to this hon’ble court that economic criteria cannot be a sole ground for
reservation. Various provisions of the Constitution like Articles 15, 29, 46 and 341 recognise
the factual existence of backward classes in our country and which make a sincere attempt to
promote the welfare of the weaker sections. This Act is a sincere attempt in this direction to
mitigate the hardships of the people who are left behind because of their economic
conditions.

One of the several contentions raised against the Act was that it formed reservation on the
basis of economic criteria. But if we look into the Constitutional Assembly Debates relating
to the first Amendment Act, 1951, pertaining to addition of Article 15(4) it is evident that the
description of backwardness in the clause 4 of Article 15 was considered to be similar to that
of clause (1) of Article 340. This was the reason, the word “economically” did not find a
place in clause (4) of Article 15 though many members pointed out that in the identification
of socially and educationally backward classes, economic backwardness could not be
ignored.29

In K.C. Vasanth Kumar v. State of Karnataka30 , the Supreme Court discussed about the
characteristics of backward classes. It was done on the request of Karnataka Government,
who wanted the Court to lay down the guidelines for the discharge of the task of the
Commission that was to be formed for this purpose. But all the Judges gave diverse opinion
on this complex question. Though, on a closer look at the judgment it can be seen that all the
Judges agreed upon one point that economic criteria are the most important factor for
determining backward classes. Justice Chandarchud highlighted the two tests that should be
conjunctively applied for identifying backward classes: one, they should be comparable to the
Scheduled Caste and Scheduled Tribe in the matter of their backwardness; and two, they
should satisfy the means test, that is to say, the test of economic backwardness, laid down by
the State Government in the context of the prevailing economic backwardness. Similarly,

29
1st Backward Classes Commission Report, Second Part (1955)
30
1985 AIR 1495, 1985 SCR Supl. (1) 352
Desai J., held that the only criterion which can be realistically devised is one of the economic
backwardness.

In State of Bombay v. F.N. Balsara31 , the principle that presumption was always in favour of
constitutionality of an enactment was laid down. The State is obliged to act in a fair,
reasonable and equitable manner32 , a statute cannot be declared invalid on the ground that it
contents vague or uncertain or ambiguous33 , courts presume in favour of constitutionality of
the statute because there is always a presumption that the legislature understands and
correctly appreciates the need of its own people34 , every legislation enacted by Parliament or
State Legislature carries with it a presumption of constitutionality. This is founded on the
premise that the legislature, being a representative body of the people and accountable to
them is aware of their needs and acts in their best interest within the confines of the
Constitution. In Shri Ram Krishna Dalmia v. S.R. Tendolkar35 , in the following words:

1. that it must be presumed that the legislature understands and correctly appreciates the
need of its own people, that its laws are directed to problems made manifest by experience
and that its discriminations are based on adequate grounds; and

2. that in order to sustain the presumption of constitutionality the court may take into
consideration matters of common knowledge, matters of common report, the history of the
times and may assume every state of facts which can be conceived existing at the time of
legislation.

The Supreme Court in The State of Punjab & Ors., vs. Davinder Singh & Ors36. , observed
that the fruits of reservations are not actually reaching the lowest strata in the backward
classes. While concluding the judgment, it was observed that the interpretation of Articles 14,
15, 16, 338, 341, 342 and 342A is a matter of public importance and correct interpretation of
binding precedents in Indra Sawhney and other decisions. The view of the Court was that

31
AIR 1951 SC 318
32
Punjab Engg. College v. Sanjay Gulati. (1983) 3 SCC 517
33
A.K. Roy v. Union of India, (1982) 1 SCC 271
34
State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312
35
1958 AIR 538, 1959 SCR 279
36
On 20th August 2020
poor among the backward castes is still suffering while the creamy layer is enjoying the fruits
of reservation.

Therefore, it is the need of the hour that economic backwardness becomes an important
criterion for reservations so that those who are actually suffering get the chance of changing
their lives by reservation. The object of affirmative action is to provide equal opportunity to
the disadvantaged classes of the society. Such classes can be determined on the basis of caste
or economic criterion so long it succeeds in incorporating the disadvantaged sections of the
society into the mainstream. Furthermore, a caution should be made to ensure that a balance
is struck between the proportion of seats reserved for the unreserved category and the
reserved classes. The reserved classes should not overwhelm the general category.

Articles 38 and 39 of the Indian Constitution which mandates State to secure a social order
for the promotion of welfare of the people Article 39 of the Indian Constitution which
mandates certain principles of policy to be followed by State and Article 46 of the Indian
Constitution which provides promotion of educational and economic interests of Scheduled
Castes, Schedule Tribes and other weaker sections. Articles 38, 39 and 46 mandate the State,
as its economic policy, to provide socio-economic justice to minimise inequalities in income
and in opportunities and status and further stated that State is under the obligation to work for
the welfare of the society and to make socio-economic justice a reality, meaningful and
fruitful so as to make the life worth living with dignity.37

Though the directive principles are not enforceable yet the Court should make a real attempt
at harmonising and reconciling the directive principles and the fundamental rights and any
collision between the two should be avoided as far as possible38. The concept of social
justice consists of diverse principles essential for the orderly growth and development of
personality of every citizen. The Constitution, therefore mandates, the State to accord justice
to all members of the society in all facets of human activity.39

The framers of the Indian Constitution, at the time of drafting the Constitution had kept in
mind the prevalent state of affairs that adversely affected the equality of the country. There

37
Ahmedabad Municipal Corpn. v. Nawab Khan, (1997) 11 SCC 121
38
State of T.N. v. L. Abu Kavur Bai, (1984) 1 SCC 515, AIR 1984 SC 326
39
India Statutory Corpn. v. United Labour Union, (1997) 9 SCC 377
were a large number of under-privileged sections of people who experienced social
discrimination through centuries under the garb of caste system and the members of such so-
called lower classes required an adequate representation in the society. Efforts had, thus, been
made to bring these weaker sections at par with the other sections of the society through the
policy of reservations, which is considered as a positive or protective discrimination
implemented in the Constitution. With the changing times, caste no longer can be the sole
criterion for detecting socially backward classes because some of them have achieved
economic status, thereby finding a social standing as well.

However, even today poverty still remains a barrier to attaining equality and there is a
significant discrimination between the people of a different economic status. The
Government has thus by means of economic reservations taken a step forward to eradicate
this form of discrimination as a means to achieving equality in the nation. Thus, the economic
criteria cannot be the sole basis for reservation of SC’s and ST’s.
 PRAYER

WHEREFORE, IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, MAY THIS COURT BE PLEASED TO ADJUDGE AND

(1) Dismiss the instant Public Interest Litigation.

(2) Hold that Creamy Layer Norm can’t be extended to Schedule Castes (SC)/Scheduled
Castes(ST’s).
(3) Upheld that a Constitutional bench cannot overrule the Judgement given by a larger
Constitutional bench.
(4) Hold that the Economic Criteria can’t be the sole basis of giving reservation in cases
of SC’s and ST’s.

AND/OR

PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM FIT IN
THE BEST INTEREST OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE INFORMANT SHALL FOREVER PRAY.

All of which is most humbly and respectfully submitted.

Place: S/d____________

Date: Respondents