SYNOPSIS & LIST OF DATES
The petitioner is presenting this petition to challenging
the constitutional validity of Constitution (103rd
Amendment) Act, 2019 (hereinafter referred as “said Act”)
which violates several basic features of the Constitution and
exceeds the maximum limit of reservation as put by this
Hon’ble Court in M R Balaji v Mysore AIR 1963 SC 649 and
also upheld the same in case Indra Sawhney & Ors v. Union
of India. AIR 1993 SC 477: 1992 Supp (3) SCC 217. The
said Act passed by both Houses of Parliament in the First
week of January, 2019 and notified on 12.01.2019 in the
official gazette by the government of India.
Both Houses of the Parliament passed the 124th
constitutional amendment bill to provide 10 %
reservation in jobs and educational institutions to the
economically weaker sections on 09.01.2019 and enacted
as Constitution (One Hundred and Third Amendment)
Act, 2019 to enable the State to make reservations based
on the economic criterion alone. The Act received the
assent of the Hon’ble President on 12.01.2019 and was
published in the Gazette on the same day. Through
Constitution (One Hundred and Third Amendment) Act,
2019; clause (6) was inserted in Article 15 and 16 of the
Constitution. Clause (6) as inserted in the Article 15 of
the through The Constitution (One Hundred and Third
Amendment) Act, 2019 reads as follows:
(6) Nothing in this article or sub-clause (g) of
clause (1) of article 19 or clause (2) of article 29
shall prevent the State from making,-
(a) any special provision for the advancement
of any economically weaker sections in of citizens
other than the classes mentioned in clauses (4) and
(5); and
(b) any special provision for the advancement
of any economically weaker sections of citizens other
than the classes mentioned in clauses (4) and (5) in
so far as such special provisions relate to their
admission to educational institutions including private
educational institutions, whether aided or unaided by
the State, other than the minority educational
institutions referred to in clause (1) of article 30,
which in the case of reservation would be in addition
to the existing reservations and subject to a maximum
of ten per cent of the total seats in each category.
Explanation:- For the purpose of this article and article
16, “economically weaker sections” shall be such as
may be notified by the State from time to time on the
basis of family income and other indicators of
economic disadvantage.’
Similarly, Clause (6) was inserted into the Article 16 and it
reads as follows
(6) Nothing in this article shall prevent
the State from making any provision for the
reservation of appointments or posts in favor of
any economically weaker sections of citizens
other than the classes mentioned in clause (4),
in addition to the existing reservation and
subject to a maximum of ten per cent of the
posts in each category.
The economically weaker sections shall be such as may
be notified by the State from time to time on the basis of
family income and other indicators of economic
disadvantage.
It is submitted that the said Act violates Article 14
(equality before law) and Article 15 (prohibition of
discrimination on the basis of religion, race, caste, sex or
place of birth) of the Constitution of India. It is stated that
In Re Indra Sawhney & Ors Vs. Union of India. AIR 1993 SC
477: 1992 Supp (3) SCC 217 this Hon’ble Court ruled out:
1. That the total number of reserved seats /places /
positions shall not exceed 50% of seats as available,
and
2. That under the constitutional scheme of reservation,
economic backwardness alone could not be a criterion
to reserve seats.
It is humbly submitted that reservation under the
Constitution scheme is prescribed only on the basis of social
and educational backwardness and not economic
backwardness. The nine-judge bench of this Hon’ble Court
in 1993 while delivering judgemment observed that:
”Reservation being extreme form of protective
measure or affirmative action it should be confined to
minority of seats. Even though the Constitution does not lay
down any specific bar but the constitutional philosophy
being against proportional equality the principle of
balancing equality ordains reservation, of any manner, not
to exceed 50%”.
Thus this Hon’ble Court however rejected the idea of
reservation on the basis of economic criteria.
It is also humbly submitted that so far, 27 per cent
quota is given to OBCs and 22 per cent to SC/STs for
their social and educational backwardness. The new
quota of 10% reservation on the basis of economic takes
the total reservation to approx 60 per cent which go
against the basic structure of the Constitution of India.
It is also humbly submitted that reservation has been
approved only for social and educational backwardness
and none of them included economic criteria. This Hon’ble
court and several High Courts have strike down the
reservations which are exceeded the cap of 50% limit on
the basis of the “Indra Sawhney Judgment such as in the
Maratha and Patidar quota cases.
Further, though Article 15 (4) was added by an
amendment to the Constitution, the idea of making “special
provisions” or “reservations” in favour of ‘backward classes’
was discussed in detail in the constituent assembly debates.
Dr. B.R. Ambedkar was one of the many who fought
passionately and fervently to include Article 16 (4) in the
Constitution despite of opposed by many members who
believed that reservations offended the equality clause.
During one such debate, a question was posed as to
whether the term backward class referred to in Article 16
(4) was based on economic status or caste. Dr. Bhimrao
Ramji Ambedkar explained the intention of the drafters. Dr.
Bhimrao Ramji Ambedkar said that “Drafting Committee
had to produce a formula which would reconcile these
points of view, firstly, that there shall be equality of
opportunity, secondly that there shall be reservations in
favour of certain communities which have not so far had a
`proper look-in' so to say into the administration.”
Hence, it is clear that the concept of reservation itself
is not with reference to the economic status of a person but
rather with reference to the community to which he
belongs, with an idea to integrate that community into the
mainstream system of education and employment.
It is also important to mention that subsequently, due
to some decisions of the Hon’ble Supreme Court, a question
arose about the competence of the State to prescribe for
reservations in private and minority institutions in the cases
of P. A. Inamdar and T.M.A. Pai. To overcome these
difficulties, the Parliament again amended Article 15 by way
of the Constitution (Ninety-third Amendment) Act, 2005 to
add Article 15 (5) which reads as under:
“(5) Nothing in this article or in sub-clause (g) of
clause (1) of article 19 shall prevent the State from making
any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for
the Scheduled Castes or the Scheduled Tribes in so far as
such special provisions relate to their admission to
educational institutions including private educational
institutions, whether aided or unaided by the State, other
than the minority educational institutions referred to in
clause (1) of article 30.”
It is submitted that the Parliament while inserting
Article 15(5) maintained reservation based on socially
backward community which in the present amendment has
totally deviated from the Constitutional Scheme and hence
creates the jolt to the basic structure of Constitution. It has
never been the intention of the framers of the constitution
to make reservations solely based on economic status of an
individual not it is in accordance with Constitutional
Morality.
09.01.2019 The 124th constitutional amendment bill was
introduced in the parliament on 09.01.2019.
Both Houses of the Parliament passed the
124th constitutional amendment bill to
provide 10 % reservation in jobs and
educational institutions to the economically
weaker sections on 09.01.2019.
12.01.2019 The Parliament enacted the Constitution (One
Hundred and Third Amendment) Act, 2019 to
enable the State to make reservations based
on the economic criterion alone. The Act
received the assent of the Hon’ble President
on 12.01.2019 and was published in the
Gazette on the same day. Through
Constitution (One Hundred and Third
Amendment) Act, 2019; clause (6) was
inserted in Article 15 and 16 of the
Constitution. Clause (6) as inserted in the
Article 15 of the through The Constitution
(One Hundred and Third Amendment) Act,
2019. Copy of the Constitution (One Hundred
and Third Amendment) Act, 2019, is enclosed
herewith as ANNEXURE P-1 (Pages
21.01.2019 The Present Writ Petition is being filed.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO._________/2019
IN THE MATTER OF:
Reepak Kansal, Petitioner
Versus
Union of India through Secretary, Respondent
Ministry of Law & Justice, 4TH
Floor, A- Wing, Shastri Bhavan,
New Delhi-110001.
To,
Hon'ble the Chief Justice of India
and His Companion Justices of
The Supreme Court of India;
The humble petition of the Petitioner above–named
MOST RESPECTFULLY SHEWETH:
1. The Petitioner is filing this Writ Petition in public
interest under Article 32 read with Article 21 of the
Constitution of India.
2. That, the Petitioner is constrained to file this petition
before the Hon’ble Supreme Court of India as relief(s)
have been claimed to stuck down a central legislation
for which this Hon’ble Court only has the jurisdiction.
3. That, the Petitioner is constrained to file the above
writ petition before this Hon’ble Court as it has no
other efficacious remedy.
4. The Petitioner is an Advocate and member of the
SCBA The Petitioner has no personal gain, private
motive or oblique reason in filing the present writ
petition.
5. The Petitioner states that no civil, criminal or revenue
litigation involving the Petitioner or which has or could
have a legal nexus with the issue involve in the
present writ petition.
6. That, the Petitioner is citizen of India and filing the
present writ petition for the common cause and the
benefits of the society at large. The Petitioner has
been taking up public causes through various petitions
before the Courts and before authorities by way of
applications under Right to Information Act, 2002.
7. There is violation of Articles 14, 19, 21 of the
Constitution of India.
8. That the Petitioner states that he has not approached
any of the court (s) earlier for the relief sought in this
petition.
9. That the Petitioner has not filed any similar petition
previously before this Hon’ble Court or before any
High Court.
10. That this petition is preferred without prejudice to
each other inter alia on the following grounds :-
GROUNDS OF THE WRIT PETITION
A. Because Article 21 of the Indian Constitution
recognizes every individual’s right to life and
liberty, which includes right to get justice through
procedure established by law and as per the
interpretation of this Hon’ble Court any law shall be
considered to fulfill this requirement only when it is
just, fair and reasonable and not absurd.
B. The impugned Constitution (One Hundred and Third
Amendment) Act, 2019 are unconstitutional and
violate the basic feature of the Constitution.
C. B. The concept of reservation on Economic
basis alone cannot be the basis of reservation as
per the framer of the constitution and held by this
Hon’ble Court.
D. C Because, there is already approximately
50% limit of reservation existing in the State(s)
therefore, exceeding 50% limits abrogate the basic
structure of the constitution. It is pertinent to note
that there are some states in India where the
reservation is crossing the limit and is
approximately 70% and therefore such kind of
reservation policy along with the existing norms of
reservation would actually close the doors of other
people for employment and opportunity; therefore
denied the fundamental right of equality of
opportunity. It is also significant that there is also
vertical reservation along with horizontal therefore
practically it is closure of opportunity in
employment and threat to basic structure of
Constitution.
E. D Because, power to amend the Constitution is
subjected to the ‘basic feature doctrine’ as
propounded by the Hon’ble Supreme Court in the
case of Keshavnanda Bharati vs. State of Kerala.
F. E Because, the said Act is unconstitutional, violates
the basic feature of the Constitution, and is ultra
vires of Articles 14, 15, 16, 19, 29, 30 and 368 of
the Constitution of India.
G. F Because, as per the decision of the Hon’ble
Supreme Court in the case of Indra Sawhney vs.
Union of India, economic status cannot be the sole
criterion for reservation.
H. G. Because As per the ratio in Indira Sawhney
vs. Union of India and the decision in M. Nagaraj
vs. Union of India & Ors., the reservation cannot be
beyond 50% of the available seats or posts at a
given point in time. The said Act enable for
reservation above the cap of 50% reservation
therefore, violate basic feature of the Constitution
hence it is unconstitutional.
I. H. Because, It is well settled that the cap of
50% in reservation is also part of the basic
structure and has been asserted by the Supreme
Court in the decision in M. Nagaraj. This view has
been affirmed subsequently by several decisions of
the Hon’ble Supreme Court and by several High
Courts across the country.
J. G. It is well settled that the power to amend the
Constitution is traceable to Article 368 of the
Constitution of India and as per the decision in
Keshavnanda Bharati vs. State of Kerala, (1973) 4
SCC 225 the power to amend the Constitution is
subject to the limitation that the basic feature of
the Constitution cannot be destroyed by such
amendments, which however is being done through
the present Amendment Act by exceeding the 50%
limit of reservation as prescribed by this Court.
K. Because there is already in reservation of 69% in
states like Tamil Nadu and therefore more 10%
reservation on the basis of economic status would
close the doors of other aspirants not falling in the
non reserved class. It is effectually a denial of
employment, directly affecting the Fundamental
Right guaranteed under Article 19 of the
Constitution.
L. The Supreme Court in the case of I.R. Coelho vs.
State of Tamil Nadu, (2007) 2 SCC 1 has
categorically held that Article 15 of Constitution
along with Articles 14, 19 and 21 constitute the
‘core values’ which cannot be abrogated.
M. I. In the case of Ashok Thakur vs. Union of India,
the Constitution Bench of the Supreme Court has
held that in the case of private institutions and
unaided institutions, the State cannot thrust
reservation on them and such reservations violate
the basic structure by obliterating the right under
Article 19(1)(g).
PRAYER
It is, therefore, most respectfully prayed that your
lordships may be pleased to allow this writ petition
and may further be pleased:-
(i) to issue a Writ, Order or Direction in the nature of
Writ of Mandamus declaring The Constitution (One
Hundred And Third Amendment) Act, 2019 as
unconstitutional and void; and/or
(ii) to pass such other writ(s), order(s) or direction(s) as
is deemed fit and proper in the premises of the case,
which is not specifically prayed for hereinabove.
AND FOR THIS ACT OF KINDNESS THE PETITIONER SHALL
AS IN DUTY BOUND EVER PRAY.
Drawn by: Filed by:
Dr. Ashutosh Garg &
Reepak Kansal
(DR. ASHUTOSH GARG)
Advocate for the Petitioner
Date of drafting: 18.01.2019
Date of filing: 21.01.2019
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. _________/2019
IN THE MATTER OF:
Reepak Kansal …Petitioner
Versus
Union of India …Respondent.
AFFIDAVIT
I, Reepak Kansal do hereby solemnly affirm and state as
under:
1 I am Petitioner in the aforesaid matter and I am fully
conversant with the facts and circumstances of the
case.
2 The contents of the synopsis from pages B to , writ
petition from pages 1 to , and paper -book has total
.. pages have understood by me and I say that the
facts mentioned therein are true to my personal
knowledge and record.
3 The Petitioner has no personal gain, private motive or
oblique reason in filing the present writ petition.
Deponent
Verification
Verified at Delhi on this 21ST January, 2019 that the
contents of the paragraphs in the above affidavit from para
1 to 3 are true and correct to my knowledge and belief.
Nothing is false and nothing material has been concealed
there from.
Deponent
APPENDIX
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
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO._____/ 2019
(Writ Petition Under Article 32 Of The Constitution Of India)
In the matter of:
Reepak Kansal …Petitioner
Versus
Union of India. …Respondent
Index
1. Writ Petition with affidavit 1+1 520/-
2. Vakalatnama 1 10/-
530/-
Dr. Ashutosh Garg
Advocate on Record
