TEAM CODE- 35

BEFORE THE HON’BLE SUPREME COURT

OF BHARAT

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

Mr. Kakashi -(PETITIONER)

Mrs. Tsunade Jiraya -(PETITIONER)

V.

UNION OF INDIA -(RESPONDENT)

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

S. NO. CONTENTS PAGE NO.

1. List of Abbreviations 3

2. Index of Authorities 4
3. Statement of Jurisdiction 5

4. Statement of Facts 6-7

5. Issues to be considered 8

6. Summary of Arguments 9-10

7. Written Arguments 11-16

8. Prayer 17
 LIST OF ABBREVIATIONS

S. NO. ABBREVIATION EXPANSION

1. A. I. R. All India Reporter

2. Anr. Another
3. Art. Article

4. Edn. Edition
5. C.J. Chief Justice

6. Const. Constitution of India

7. DPSP Directive Principles of State Policy

8. EWS Economically Weaker Section

9. Govt. Government

10. OBCs Other Backward Classes

11. OBC-NCL Other Backward Classes - Non-Creamy Layer
12. Ors. Others

13. SC Supreme Court

14. SCC Supreme Court Cases

15. SCs Scheduled Castes

16. STs Scheduled Tribes

17. UoI Union of India

18. V. Versus

19. & And

 INDEX OF AUTHORITIES

➢ Legislations-
1. The Constitution of India, 1950

➢ Table of cases-
1. Janhit Abhiyan v. Union of India; AIR 2022 SC 922
2. Jarnail Singh v. Lacchmi Narain Gupta; AIR 2018 SC 396
3. K. C. Vasanth Kumar & Anr. v. State of Karnataka; AIR 1985 SC 134
4. Kesavanand Bharti v. State of Kerela; AIR 1973 SCC 225
5. Kumari K. C. Jayasree v. State of Kerela & Anr.; AIR 1976 SCR 194
6. M. Nagraj & Ors. v. Union of India & Ors.; AIR 2006 SC 71
7. M. R. Balaji v. State of Mysore; AIR 1963 SC 649
8. R. Chitralekha v. State of Mysore; AIR 1964 SC 1823
9. Ram Krishna Dalmia v. Justice Tendolkar; AIR 1958 SC 538

➢ Books and Commentaries-

1. M.P Jain, ‘Indian Constitutional Law’, (Lexis Nexis Publication, New
Delhi, Eighth edn., 2018)
2. Shukla VN, Constitution of India (Eastern Book Company, Lucknow,
13th edn., 2016)
3. Seervai H.M, Constitutional law (4th Edn., 2013)

➢ Websites-
1. www.scconline.com
2. www.livelaw.com
3. www.lawoctopus.com
4. www.scribd.com
5. www.indiankanoon.com
 STATEMENT OF JURISDICTION

The Counsel for the Petitioners most humbly and respectfully invokes the
jurisdiction of this Hon’ble Court under Article 32 of The Constitution of India,
1950

ARTICLE 32

Remedies for the 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.

The present memorial sets forth the facts, issues raised, and arguments
advanced in the present case
 STATEMENT OF FACTS

1. The Republic of Bharat, a diverse 'Union of States,' celebrates its cultural

richness and gained independence in 1947 through a non-violent revolution. The
Constitution, embodying principles of democracy, equality, and secularism,
guarantees fundamental rights with a unique feature of reservation.

2. Reservation framework in Bharat, termed as affirmative action or positive

discrimination, aims to provide access to government jobs, educational
institutions, and legislatures for specific population segments. The Constitution
outlines two primary goals for reservation:
1) Advancement of Scheduled Castes (SC), Scheduled Tribes (ST), or other
socially and educationally backward classes (Article 15 (4), Article 15
(5)).
2) Adequate representation of backward classes in services under the State
(Article 16 (4)).

3. In January 2019, the government enacted the Constitution (One Hundred and
Third Amendment) Act, 2019, introducing reservations for economically weaker
sections in educational institutions and for jobs in central government. This new
provision, under Article 15 (6) and Article 16 (6), is distinct from existing
schemes and is subject to a 10% cap.

4. The amendment aims to address the exclusion of economically weaker sections

from higher education and public employment due to financial incapacity. The
government's commitment to implementing constitutional directives is evident,
particularly in light of Article 46, promoting the protection of the educational
and economic interests of weaker sections.
5. Legal activist Mr. Kakashi files a petition in the Hon’ble Supreme Court
challenging the constitutional validity of the 103rd Amendment raising
questions about its alignment with the spirit of the Constitution and the
implementation of directive principles.

6. In September 2018, the Supreme Court in Santa Singh’s case extended the
"creamy layer exclusion" principle to SCs and STs, ordering the government to
notify norms for its application.
7. Mrs. Tsunade Jiraya challenges the government's inaction, alleging a violation
of the Banta Singh’s judgment of 1992, which originally introduced the creamy
layer principle in the context of OBCs.

8. CJ has decided to set up an 11-judge Constitutional bench to analyze various

legal issues involved in this matter.
This complex legal scenario presents a significant challenge to the constitutional
fabric of Bharat, requiring the Supreme Court's careful examination and
determination.
 ISSUES TO BE CONSIDERED

I) Whether the 103rd Constitutional Amendment is constitutionally valid or

not?

II) Whether the Santa Singh’s Judgment is in violation of earlier judgment of

1992 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

ISSUE I- WHETHER THE 103rd CONSTITUTIONAL AMENDMENT IS

CONSTITUTIONALLY VALID OR NOT?

It is humbly submitted that the 103 rd Constitutional Amendment is

constitutionally valid. It is in line with the spirit of the Constitution as it aims to
address economic inequalities and uplift the economically weaker sections,
aligning with directive principles. Thus, it strengthens the roots of objects
specified in the Constitution. The said amendment reflects a legitimate exercise
of government’s authority to promote economic equality.

The amendment complements existing provisions of reservation and contributes

to overall harmony as it extend the benefits to a broader section of the society.

ISSUE II- WHETHER THE SANTA SINGH’S JUDGEMENT IS IN

VIOLATION OF EARLIER JUDGEMENT OF 1992 OR NOT?

It is humbly submitted that the 2018 Santa Singh judgement is not in violation
of the earlier Banta Singh’s judgement. The legal context and issues addressed
in Banta Singh’s judgement were specific to the OBCs, while in Santa Singh’s
case, it involved extension of the creamy layer exclusion principle to the SCs
and STs. Therefore, there is no direct violation of principles of legal precedent
as the legal principles involved in both the cases were applied to different
marginalized communities.
ISSUE III- WHETHER THE ‘CREAMY LAYER EXCLUSION’
PRINCIPLE SHOULD BE EXTENDED TO SCHEDULED CASTES
(SCs) AND SCHEDULED TRIBES (STs) RESERVATION OR NOT?

It is humbly submitted that the extension of the creamy layer principle to SCs
and STs ensures uniformity in the application of policies of reservation across
different marginalized communities. Excluding those individuals from SCs and
STs who are economically well-off ensures that benefits of reservation are
directed towards those who are in the genuine need and are socially and
economically disadvantaged within these communities.
 WRITTEN ARGUMENTS

ISSUE 1: WHETHER THE 103rd CONSTITUTIONAL AMENDMENT IS

CONSTITUTIONALLY VALID OR NOT?

It is most respectfully submitted on behalf of the respondent that the 103 rd

Constitutional Amendment providing for EWS reservation is constitutionally
valid and justified.

The amendment was passed by both houses of the Parliament and received the
assent of the President on January 12, 2019 and came into effect from 14
January, 2019. Providing reservation to these economically marginalized classes
is an affirmative action towards improving social and economic status of these
groups. As equality is the essence of the Constitution of India, it becomes the
duty of the government to uplift those who are economically weaker and
provide them with equal opportunities just as given to other marginalized
sections of the society. The right to equality is considered as a part of the basic
structure in the case of M. G. Badappanawar v. State of Karnataka 1

The Supreme Court also, in a recent judgement in the case of Janhit Abhiyan
v. Union of India 2 upheld the legality of 103 rd Amendment.

The amendment vitalizes the basic structure of the constitution rather than
breaking it. Moreover, an amendment to the constitution may be struck down
only when it is capable of changing the identity of the constitution 3.

Articles 38 and 46 in the DPSPs of the Constitution of India renders a duty on

the State to eliminate social, political and economic differences and to promote
justice. The 103 rd amendment provides for 10% of reservation to the EWS

1 M. G. Badappanawar v. State of Karnataka

2 Janhit Abhiyan v. Union of India AIR 2022 SC 922
3 Kesavananda BHarti v. State of Kerela & Anr. AIR 1973 SCC 225
category as economic inequalities themselves lead to social and educational
backwardness in the society.

In the judgement of State of Madras v. Champakam Dorairajan 4 the Court

ruled that caste-based reservations as per Communal Awards5 violate the Article
15(1) of the Constitution.

In M. R. Balaji & Ors. v. State of Mysore6 the court said that though caste is a
relevant factor, it cannot be the sole basis to determine whether a class is
backward or not. There re other factors too which need to be considered such as
poverty, occupation, etc. The backwardness of classes with respect to Article
15(4) cannot be either social or educational, but it has to be both social as well
as educational.

The amendment aligns with the DPSPs, particularly Article 46, which seeks the
state to promote the educational and economic interests of the weaker sections.
By introducing reservations for economically weaker sections (EWS), the
amendment translates this directive principle into an actual mechanism for
socio-economic upliftment.

As said in the facts itself, reservation is a positive discrimination for the

upliftment of some backward sections of the society. In K. S. Jayasree v. State
of Kerela 7, the bench clarified that in ascertaining social backwardness of a
class of citizens, the caste of a citizen cannot be the sole or dominant test.

In R. Chitralekha v. State of Mysore8, the order of government making a

classification of socially and educationally backward classes based on economic
conditions was held to be justified.

4 State of Madras v. Champakam Dorairajan AIR 1951 SC 226

5 Series of elections that were awarded to depressed classes and minorities; introduced by Ramsay MacDonald
6 M. R. Balaji & Ors. v. State of Mysore AIR 1963 SC 649
7 Kumari K. S. Jayasree & Anr. v. State of Kerela & Anr. AIR 1976 SCR 194
8 R. Chitralekha v. State of Mysore AIR 1964 SC 1823
Also, in K. C. Vasanth Kumar v. Karnataka9 the Court opined that the test of
economic backwardness was the only criterion that can be realistically devised
to determine social and economic backwardness.

Poverty or economic standard is a relevant factor in determining backwardness.

Neither caste nor poverty alone could be the sole determinant while considering
backwardness.

ISSUE 2: WHETHER THE SANTA SINGH’S JUDGEMENT IS IN

VIOLATION OF EARLIER JUDGEMENT OF 1992 OR NOT?

The counsel for the respondent respectfully submits before this Hon’ble court
that Santa Singh’s judgement is not in violation of the earlier Banta Singh’s
judgement of 1992. In the case of Banta Singh, the concept of a creamy layer
was laid down and it was directed that such a creamy layer be excluded while
identifying backward classes.

The case of Banta Singh primarily dealt with the ‘creamy layer exclusion’
principle in the context of the Other Backward Classes, whereas Santa Singh’s
case extends this principle to Scheduled Castes and Scheduled Tribes,
acknowledging unique challenges faced by these communities. This extension
does not undermine Banta Singh’s case but rather adapts its principle to a
different socio-legal context.

The court concluded that a seven-Judge bench review for the Nagraj case10
wasn’t necessary. It found the requirement for states to collect data on the
backwardness of Scheduled Castes and Scheduled Tribes, as per the nine-judge
bench in the Banta Singh’s case as invalid. It was also seen in the case of Banta
Singh that any discussion on the ‘creamy layer’ has no relevance in the context
of Scheduled castes and Scheduled tribes. Further, t he Supreme Court
9 K.C. Vasanth Kumar & Anr. v. State of Karnataka AIR 1985 SC 134
10 M. Nagraj & Ors. v. Union of India & Ors. AIR 2007 SC 71
confirmed the application of creamy layer to promotions for Scheduled castes
and Scheduled tribes as held in the Nagraj Judgement. Unfortunately, it resulted
in many of employees being denied their due promotions. The court viewed the
principle of the creamy layer as a principle of identification and not of equality.

In our view it is the duty of the government to uphold constitutional principles.

Santa Singh’s case is a manifestation of this duty, ensuring that the benefits of
affirmative action reach those who face economic disadvantage within
Scheduled Castes and Scheduled Tribes. Rather than violating Banta Singh’s
judgement, Santa Singh’s case harmonizes with its principles by recognizing
that economic criteria can deepen social backwardness.

In context of Equality, the equality rights are intended to ensure that everyone is
treated with same respect and without discrimination based on personal
characteristics such as race, origin, colour, religion, sex, etc.

In the case of Ram Krishna Dalmia v. Justice Tendolkar11, the Supreme

Court describes the jurisprudence of equality before the law. The very famous
“classification test” had been given in this case. Simply put, it permits the State
to make differential classification of subjects (which would otherwise be
prohibited by Article 14) provided that the classification is founded on
intelligible differentia (i.e. objects within the class are clearly distinguishable
from those that are outside) and has a rational nexus with the objective sought
to be achieved by the classification.

ISSUE 3: Whether the “creamy layer exclusion" principle should be

extended to Scheduled Castes (SCs) and Scheduled Tribes (STs)
reservation or not?

11 Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 SC 538

It is humbly submitted on behalf of the respondent that the extension of the
‘creamy layer exclusion’ principle to Scheduled Castes and Scheduled Tribes is
a constitutionally sound and socially just measure. This extension is in
accordance with the evolving needs of affirmative action and is in alignment
with the principles laid down by the Supreme Court.

The learned counsel on respondent’s behalf contends that the extension of

creamy layer exclusion is in line with the constitutional intent of providing
representation to socially and economically disadvantaged groups.

Application of creamy layer exclusion principle to Scheduled Castes and

Scheduled Tribes will help address economic disparities within these
communities.

In M. Nagraj v. Union of India 12, a five-judge bench provided that the quota
benefits should go to the weakest of weak and not be snatched away by the
members of the class who are in the ‘top creamy layer’.

In Jarnail Singh’s case13 also, a five-judge bench held put forth a view that
creamy layer ensures that only deserving among the Scheduled Castes and
Scheduled Tribes get the benefits of reservation.

Legal precedents, such as the Nagraj case, support the idea that the creamy layer
exclusion principle can be adapted to changing social and economic conditions.
The constantly evolving landscape, the law needs to be flexible to effectively
address the dynamic requirements of affirmative actions. Extending of the
creamy layer exclusion to Scheduled Castes and Scheduled Tribes is seen as a
measure that promotes both social justice and administrative efficiency. By
preventing the concentration of benefits among the economically privileged,
this extension ensures a fair distribution of opportunities and resources,
contributing to a more equitable society.

12 M. Nagraj & Ors. v. Union of India & Ors. AIR 2007 SC 71

13 Jarnail Singh v. Lacchmi Narain Gupta AIR 2018 SCC 396
In conclusion, the counsel for respondent humbly submits that the extension of
the creamy layer exclusion to SCs and STs is a constitutional imperative aligned
with the principles of social justice. This measure addresses economic
disparities, upholds constitutional intent, and ensures a balanced and effective
implementation of affirmative action.
 PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced
and authorities cited, it is most humbly and respectfully prayed before this
Hon’ble Court that it may be graciously pleased to adjudge and declare that: -

1. The 103 rd Constitutional Amendment is constitutional and it does not

violate the basic structure of the Constitution of India ;
2. The judgement given in the case of Santa Singh is not violative of the
judgement given in the case of Banta Singh and is not opposed to the
legal principle of precedents;
3. Creamy layer exclusion be extended to SCs and STs;

And / or pass any order which this Hon’ble Court may deem fit in the best
interest of justice, equity and good conscience for which the Appellant will
forever remain obliged.

Counsel for the Petitioner.