RESPONDENT TEAM CODE- CDJMCC 21

TEAM CODE- CDJMCC 21

COL. DR. JEPPIAAR 4TH
ALL INDIA MOOT COURT COMPETITION 2023

BEFORE THE HON’BLE

SUPREME COURT OF ADINI

REVIEW PETITION ____ OF 2023

YOUNGSTERS FOR EQUALITY APPELLANT
VS
UNION OF ADINI RESPONDENT
AND
SLP NO.____ OF 2023
DINESH PETITIONER
VS
STATE OF MILTA RESPONDENT

PETITION INVOKED UNDER ARTICLES 137 & 136 OF THE

CONSTITUTION ON ADINI

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUSTICES OF THE SUPREME COURT OF
ADINI

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS .......................................................................................3

INDEX OF AUTHORITIES..........................................................................................5

STATEMENT OF JURISDICTION..............................................................................7

STATEMENT OF FACTS ............................................................................................8

STATEMENT OF ISSUES............................................................................................9

SUMMARY OF ARGUMENTS.................................................................................. 10

ARGUMENTS ADVANCED.......................................................................................12

PRAYER………………………………………………………………………………31

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LIST OF ABBREVIATIONS

% Percent

& And

¶ Paragraph

AIHC All India High Court Cases

AIR All India Reporter

Art. Article

EWS Economic Weaker Section

Govt. Government

Hon’ble Honourable

No. Number

OBC Other Backward Classes

Ors. Others

PIL Public Interest Litigation

SC Supreme Court

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SC Schedule Caste

SCC Supreme Court Cases

SCR Supreme Court Reports

SEBC Socially and Economically Backward classes

ST Schedule Tribe

Supp Supplementary

UOI Union of India

v. Versus

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INDEX OF AUTHORITIES

The Constitution of India, 1950

CASES

Maharao Sahib Shri Bhim Singhji vs Union of India on 13 November 1980

M. Nagaraj vs. Union of India

Indira Nehru Gandhi VS Raj Narain

Ashok Kumar Thakur v. Union of India

Jagdish Negi v. State of Uttar Pradesh

K.C. Vasanth Kumar & Another vs State of Karnataka 8 May 1985, 1985, AIR 1495, 1985
SCR Supl. (1) 352

Indra Sawhney Etc. Etc vs Union of India and Others

R. Chitralekha v. State of Mysore

Janki Prasad Parimoo and Others Etc v/s State of Jammu and Kashmir and Others

The State of Madras vs Srimathi Champakam 9 April 1951

Jaishri Laxmanrao Patil vs The Chief Minister and Ors. on 5 May 2021

Janhit Abhiyan vs Union of India

Mohammad Sadique Vs Darbara Singh Guru

S. Paul Raj vs The Tahsildar, Mettur Thaluk & Anr

Y. Mohan Rao vs The Principal, Guntur Medical 22 August 1974 AIR 1975 AP 82

S. Anbalagan v. B. Devarajan

Kailash Sonkar vs Smt. Maya Devi 16 December 1983, 1984, AIR 600, 1984 SCR (2) 176

K.P.Manu vs Chairman, Scrutiny Committee for Verification of Community Certificate

G. Michael V. S. Venkateswaran

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S. Anbalagan v. B. Devarajan

Jibim C. Baby Vs The Commissioner for entrance examinations government of Kerala

S. Rajagolpal vs C.M. Armugam.

ONLINE SERCH ENGINES

SCC Online
Manupatra
Live law

BOOKS
V.N. Shukla's Constitution of India
Constitutional Law of India (Author: Dr.J.N. Pandey)
M P Jain Indian Constitutional Law

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STATEMENT OF JURISDICTION

I. REVIEW PETITION _____2023

The respondent has approached this Hon’ble Court under Art. 137 of the Constitution of Adini.

Remedies for enforcement of rights conferred by this Part-

Review of judgments or orders by the Supreme Court Subject to the provisions of any
law made by Parliament or any rules made under Article 145, the Supreme Court shall
have the power to review any judgment pronounced or order made by it.

II. SLP NO.____ OF 2023

The respondent has approached this Hon’ble Court under Art. 136 of the Constitution of Adini.

Remedies for enforcement of rights conferred by this Part-

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces

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STATEMENT OF FACTS

WRIT PETITION AND REVIEW PETITION

The Union Legislature amended the Constitution to make it easier for people from forward
communities to be classified as members of the Economically Weaker Section and to receive
an exclusive 10% of reservation in employment in services and education in both public and
private educational institutions. Due to this overall reservation ceiling increased to 59.5%.
Youngsters For Equality, a registered political party in Adini, filed a Writ Petition with the
Supreme Court challenging the constitutional validity of the Amendment contending that it
violates the Constitution because the idea of the reservation was fundamentally based on
empowering the socially and educationally underprivileged classes of people rather than a plan
to reduce poverty. The Supreme Court of Adini's Constitutional Bench upheld the Amendment,
shocking the whole nation. Before the Supreme Court, YEE submitted a Review Petition,
which was accepted.

SPECIAL LEAVE PETITION

Dinesh is 29 years old male OBC Duhni. A few acres of agricultural land were given to Ramesh
(Dinesh’s father) by the owner of the farm as a sign of appreciation and this improved the social
standing of his entire family, multiplying his fortune enormously. Dinesh drawn to Slimum
scriptures converted to it and changed his name to "Diney". Upon his conversion, Diney's
family disowned him. After a while, he yearned for his family to be around. Diney's financial
position deteriorated, and he began working as a data entry operator to make ends meet. In an
effort to mend fences with his family, Diney officially changed his name back to Dinesh and
reconverted to Duhni. Ramesh was unwilling to welcome him into the family. Shortly after,
Ramesh died away and donated his wealth to an Organisation that supports underprivileged
and disadvantaged children. Dinesh then applied for a position at the Union-owned Adini
Cyber Institute as a data entry operator and submitted an EWS Certificate. He was provisionally
given the job. An anonymous complaint was filed stating that Dines should not be considered
for the EWS quota because he is an OBC by birth. Dinesh received notification of the reversal
of the appointment along with the grounds for it in an official letter dated November. Aggrieved
by the same he filed a Writ Petition before the High Court of Milta. The Court upheld the
decision made by ACI and dismissed the petition. Dinesh filed a Special Leave Petition to the
Supreme Court of Adini to permit an appeal. This was permitted by the court.

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STATEMENT OF ISSUES

ISSUE 1.

Whether the Constitutional Amendment providing for EWS reservation on a purely economic
basis ultra vires the Constitution?

ISSUE 2.

Whether excluding SC, ST and OBC from the reservation under the EWS category is violative
of the established Constitutional Principles?

ISSUE 3.

Can EWS reservation be granted on top of the existing 50% ceiling on the reservation?

ISSUE 4.

Whether a person can carry their community of birth after their conversion to another religion?

ISSUE 5.

Whether a person’s birth community remains under eclipse on conversion to another religion
and re-eclipses when the person re-converts back to their birth religion?

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SUMMARY OF ARGUMENTS

ISSUE 1. Whether the Constitutional Amendment providing for EWS reservation on a

purely economic basis ultra vires the Constitution?

The counsel submits before this Hon’ble Court that the state is empowered to make special
provisions for the economically weaker sections in order to achieve the Preambular goal of
‘JUSTICE, social, economic and political’ in the real sense. The counsel argues that poverty
or economic deprivation results in social and educational backwardness, therefore the state has
the duty to uplift them and ensure that they are not side-lined. The same has been stated in
many court cases.

ISSUE 2. Whether excluding SC, ST and OBC from the reservation under the EWS
category is violative of the established Constitutional Principles?

The counsel humbly submits that there is no discrimination in relation to the classes that are
excluded from the EWS for the simple reason that the existing special provisions in their
relation continue to remain in operation. The exclusion of already covered classes does not
violate Equality Code as the SC, ST, and OBC communities are already enjoying the benefit
of affirmative action in their favour by way of reservations in educational institutions and
public employment, seats in Legislature, etc., to attain an equal status - socially and
educationally. Therefore, the exclusion of SCs, STs, and OBCs from the EWS quota fit the
constitutional scheme so as to avoid "double benefit" to them, thus, such exclusion was a part
of reasonable classification.

ISSUE 3. Can EWS reservation be granted on top of the existing 50% ceiling on the
reservation?

It is argued before this Hon’ble Court that the 50 percent ceiling of reservations is not inflexible
or inviolable. This limit can be breached or crossed under special circumstances, for being
neither a fundamental tenet of the Constitution nor a part of its basic structure. This ceiling
limit is clearly mentioned in the case Indra Sawhney VS Union of India. The fifty percent cap
as laid down in Indra Sawhney is for the classes covered under Articles 15(4), 15(5), and 16(4)
of the Constitution of Milta.

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ISSUE 4. Whether a person can carry their community of birth after their conversion to
another religion?

It is submitted before the Hon’ble Supreme Court that a person can change his religion and
faith but not the caste to which he belongs, as it is determined on the basis of birth. Therefore,
it can be said that a person can carry their community of birth even after their conversion to
another religion. The High Court of Milta upheld the same stating that “when a person converts
into another religion, they lose their birth caste and it remains under eclipse and when the
person reconverts, the eclipse disappears, and the birth caste automatically revives.” Therefore,
the decision of Adini Cyber Institute to dismiss Dinesh’s provisional acceptance letter is
reasonable.

ISSUE 5. Whether a person’s birth community remains under eclipse on conversion to

another religion and re-eclipses when the person re-converts back to their birth religion?

It is humbly submitted before the Hon’ble Supreme Court that the judgment of the High Court
of Milta stating “when a person converts into another religion, they lose their birth caste and it
remains under eclipse and when the person reconverts, the eclipse disappears, and the birth
caste automatically revives” was logical. Therefore, it is prayed before this Hon’ble court to
uphold the decision of the High Court and Adini Cyber Institute. Also, Dinesh will continue to
be an OBS Duhni which is his community by birth even after conversion.

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ARGUMENT ADVANCED

ISSUE 1. Whether the Constitutional Amendment providing for EWS reservation on a

purely economic basis ultra vires the Constitution?

The counsel submits before this Hon’ble Court that the state is empowered to make special
provisions for the economically weaker sections in order to achieve the Preambular goal of
‘JUSTICE, social, economic and political’1 in real sense.

1. As held in the case of Bhim Singhji2 mere violation of Article 14 does not violate the
basic structure of the constitution unless ‘the violation is shocking, unconscionable or
unscrupulous travesty of the quintessence of equal justice’. Further, the counsel relying
on the M. Nagaraj case submits that a constitutional amendment can only be struck
down when it changes that identity of the constitution. The counsel while placing
reliance on the decision of this Court in M. Nagaraj3 case states that the constitution
should be interpreted dynamically in order to strengthen its Preambular vision; and that
Article 38 and 46 along with the Preamble of the constitution enjoins a duty on the state
to eliminate social, economic and political inequalities and to promote justice.

2. It is pertinent to note that unless a Constitutional amendment fundamentally alters the

basic structure or the basic features of the Constitution it cannot be struck down under
judicial review. The counsel places reliance on the case of Indira Nehru Gandhi VS Raj
Narain4 to further the contention.

3. The counsel further submits t0 the Hon’ble Court that poverty or economic deprivation
results in social and educational backwardness, therefore the state has the duty to uplift
them and ensure that they are not side lined. The same has been stated in the cases
Vasant Kumar5 and Ashok Kumar Thakur6 by this Hon’ble Court.

1
The Constitution of India, 1950, Preamble
2
(1981) 1 SCC 166
3
M. Nagaraj v. Union of India, (2006) 8 SCC 212
4
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
5
K.C Vasanth Kumar v State of Karnataka, (1985) Supp SCC 714
6
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1

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4. The state had created new class in order to foster the vision of ‘Economic Justice’ 7 as
set out in the Preamble, thereby strengthening the basic structure of the Constitution.
Therefore, it is absurd to say that there has been violation of basic structure of the
Constitution.

5. Also, it is pertinent to note that the Constitutional amendment in question nowhere

violates the basic structure rather is a step further to achieve the preambular vision of
the Constitution i.e., providing economic justice and not only social and political justice
to its people.

6. The amendment in question takes into account the changing conditions of the society
as iterated in M. Nagaraj and hence purposive interpretation has been considered.

7. It is further contended that the case of Indra Sawhney vs Union of India8 revolved
around the Office Memorandum, and the Court's view that economic criteria cannot be
the sole basis contradicted its own view of excluding creamy layer from OBCs on
economic grounds. Indra Sawhney also examined the Office Memorandum exclusively
in light of Article 16's principles. The amendment in question, being a constitutional
amendment, must be tested on the threshold of fundamental structure violation to the
extent that it alters the identity of the Constitution.

8. It is argued that neither the right to a reservation nor being excluded from one is a
fundamental element of the Constitution. Reservations, on the other hand, are enabling
clauses that are temporary in nature and lack the permanence necessary to be considered
a fundamental component of the Constitution.

9. Indra Sawhney, staged 30 years ago, dealt with ‘schematic 42 interpretation’ of Articles
16(4)9 and 15(4)10. The counsel emphasize on the balance to be maintained between the
competing claims that keeps on changing with the needs of the society. We argue that
principally on the premise that economic criteria by itself can be a determinative factor

7
The Constitution of India, 1950, Preamble
8
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385
9
The Constitution of India, 1950,
10
The Constitution of India, 1950,

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for backwardness. The contention of the counsel is that in Indra Sawhney, which
mentioned R. Chitralekha (supra)11, where occupation-cum-means test was employed
to determine social backwardness.

10. There is already an affirmative action in the form of a reservation and special provisions
that are in effect in their favour with regard to the issue of SCs, STs, and OBCs being
excluded. Their "opportunity quotient," which takes into account the reserved and open
categories, is higher than 50%. Therefore, the 10% in favour of EWS does not in any
way violate the Equality Code. The exclusion of SCs, STs, and OBCs perfectly fits the
constitutional framework in order to prevent them from receiving a double benefit; as
a result, exclusion is a component of reasonable classification.

11. It is argued before the Hon’ble Court that the ‘Living Tree’ approach has to be applied
while interpreting the Constitution so as to further a more inclusive and progressive
society. The counsel has argued that right of the EWS category arises from Article 21
of the Constitution, which provides for the right of dignity and poverty affects dignity.

12. The Counsel has also emphasised various international obligations, such as the
Universal Declaration of Human Rights and the International Covenant on Economic,
Social, and Cultural Rights, which the Constitution caters to under Articles 46, 51(c),
and 25312, in order to argue that it is the duty of the State to eradicate poverty in order
to ensure economic justice; and in that context, the amendment in question becomes an
empowering measure for those who are in systemic poverty.

13. In the case of Janhit Abhiyan (supra), Justices Dinesh Maheshwari, Bela M Trivedi,
and JB Pardiwala noted that reservations based solely on economic criteria do not
contravene the Constitution's fundamental principles. Additionally, they have ruled that
the EWS reservation's violation of the 50% ceiling limit does not violate the basic
structure.

14. "Reservation is an instrument of affirmative action by State so as to ensure all-inclusive

approach. It is an instrument not only for inclusion of socially and educationally

11
R. Chitralekha and Anr. v. State of Mysore and Ors.: (1964) 6 SCR 368
12
The Constitution of India, 1950,

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backward classes...Reservations for EWS does not violate basic structure on account of
50% ceiling limit because ceiling limit is not inflexible,"13 the majority judgment by
Justice Maheshwari said. Justice Trivedi in her judgment said that the State has come
out with amendment for advancement of EWS categories. She observed, "The
impugned amendment has to be treated as an affirmative action by the Parliament for
the benefit of EWS class. It cannot be said to be unreasonable classification. Treating
EWS as separate class would be a reasonable classification. Just as equals cannot be
treated unequally, unequals cannot be treated equally. Treating unequals equally
violates equality under the Constitution...The amendment creates a separate class of
EWS. The exclusion of SEBCs cannot be said as discriminatory or violative of
Constitution."14

15. Justices Trivedi and Pardiwala also made observations in the judgment regarding the
need to have a timespan for reservations.

13
2022 LiveLaw (SC) 922
14
2022 LiveLaw (SC) 922

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ISSUE 2. Whether excluding SC, ST and OBC from the reservation under the EWS
category is violative of the established Constitutional Principles?

The counsel humbly submits that there is no discrimination in relation to the classes that are
excluded from the EWS for the simple reason that the existing special provisions in their
relation continue to remain in operation.

1. According to the counsel, the majority decision held that the exclusion made sense
because reservations had already been made for the disadvantaged groups mentioned
in Articles 15(4), 15(5), and 16(4)15. According to Justice Maheshwari "no need to
extend them or any of their constituents yet another benefit in the affirmative action of
reservation carved out for other economically weaker sections,"16. Accordingly, the
majority opinion found merit in the respondents' arguments that the exclusion of SCs,
STs, and OBCs from the EWS quota fit the constitutional scheme in order to avoid
providing them with a "double benefit," and that this exclusion was therefore a part of
reasonable classification.17

2. Justice Maheshwari, in his judgement noted–

"As noticed infra, there is a definite logic in this exclusion; rather, this
exclusion is inevitable for the true operation and effect of the scheme
of EWS reservation. Obviously, for the reason that those classes are
already provided with affirmative action in terms of reservation, in the
wisdom of the Parliament, there was no need to extend them or any of
their constituents yet another benefit in the affirmative action of
reservation carved out for other economically weaker sections.
Moreover, the benefit of reservation avails to the excluded
classes/castes under the existing clauses of Articles 15 and 16; and by
the amendment in question, the quota earmarked for them is not
depleted in any manner."18

15
The Constitution of India, 1950,
16
Janhit Abhiyan V. Union of India
17
2022 LiveLaw (SC) 922
18
2022 LiveLaw (SC) 922

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3. Justice Maheshwari further noted that the amendment made a reasonable classification
between "economically weaker sections" and other weaker sections, who were already
mentioned in Articles 15(4), 15(5) and 16(4) of the Constitution. He stated that the
moment there was a vertical reservation, exclusion was vital to provide benefit to the
target group. He added–
"In fact, the affirmative action of reservation for a particular target
group, to achieve its desired results, has to be carved out by exclusion
of others. The same principle has been applied for the affirmative
action of reservation qua the groups of SEBCs, OBCs, SCs, and STs.
Each of them takes reservation in their vertical column in exclusion of
others. But for this exclusion, the purported affirmative action for a
particular class or group would be congenitally deformative and shall
fail at its inception."19

4. Justice Maheshwari stated that the classes who were already recipients of
compensatory discrimination by virtue of Articles 15(4), 15(5) and 16(4) could not
justifiably raise the grievance that in another set of compensatory discrimination for
another class, they had been excluded.
"It gets, perforce, reiterated that the compensatory discrimination, by
its very nature, would be structured as exclusionary in order to achieve
its objectives...SEBCs/OBCs/SCs/STs are having the existing
compensatory discrimination in their favour wherein the presently
supported EWS are also excluded along with all other excluded
classes/persons. As a necessary corollary, when EWS is to be given
support by way of compensatory discrimination, that could only be
given by exclusion of others, and more particularly by exclusion of
those who are availing the benefit of the existing compensatory
discrimination in exclusion of all others"20
He asserted that compensatory discrimination, wherever it was used, was exclusionary
in nature and could only acquire its value and substance by the exclusion of others. He

19
2022 LiveLaw (SC) 922
20
2022 LiveLaw (SC) 922

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compared the exclusion of SEBCs/OBCs/SCs/STs from the EWS reservation with the
exclusion of general EWS from the SEBCs/OBCs/SCs/STs reservation.

5. Justices Bela M. Trivedi and JB Pardiwala agreed with Justice Maheshwari's

conclusion. In her ruling, Justice Bela Trivdei also said it was reasonable to classify
the citizens who are economically weaker as a separate group.21 The reasoning she
provided for the same was that–
"Just as equals cannot be treated unequally, unequals also cannot be
treated equally. The Scheduled Castes/Scheduled Tribes and the
backward class for whom the special provisions have already been
provided in Articles 15(4), 15(5) and 16(4) form a separate category as
distinguished from the general or unreserved category. They cannot be
treated at par with the citizens belonging to the general or unreserved
category."22

6. The counsel submits that the exclusion of classes that are already protected by the
Equality Code is appropriate because EWS people of the SC, ST, and OBC
communities already benefit from affirmative action in their favour through
reservations in educational institutions, public employment, seats in the legislature,
etc., to achieve an equal status in both social and academic terms. However, aside from
the reservation made by way of the current amendment, there are no special provisions
made in favour of the EWS among the classes that are not covered by any of the
provisions preceding Articles 15(6) and 16(6). Furthermore, the 10% reserved for EWS
is in addition to the current SEBC reservation, meaning that it has no effect whatsoever
on the reservation of up to 50% for SEBCs, OBCs, SCs, and STs.

7. The understanding and concept of equality and reservation have changed and evolved
over time, starting with the Champakam23 decision and continuing with the most recent
Dr. Jaishri Patil24 decision. The reservation itself has been treated as an integral part of
the Equality Code that promotes substantive equality. The Constitution recognises

21
2022 LiveLaw (SC) 922
22
2022 LiveLaw (SC) 922
23
State of Madras v. Champakam Dorairajan: AIR 1951 SC 226
24
Dr. Jaishri Laxmanrao Patil v. Chief Minister and Ors.: (2021) 8 SCC 1

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various areas of affirmative action, extending reservations and special provisions in

accordance with the requirements of each segment of society. For instance, SCs and
STs have been given guaranteed representation in Parliament while all SEBCs have no
such representation.

8. It is also submitted by the counsel that except for the open category, the SCs, STs and
OBCs are not permitted to migrate to the other vertical reservations similarly, the
Constitution has created another vertical zone for EWS category, which exists outside
the fold of pre-existing reservations. Further, the ten per cent. reservation in favour of
EWS would result in miniscule delimitation of the available seats in favour of SC, ST
and OBC communities (SC: reduces from 65 per cent. to 55 per cent.; ST: reduces
from 57.5 per cent. to 47.5 per cent.; and OBC: reduces from 77 per cent. to 67 per
cent.)

9. The amendment in question includes guardrails by capping the percentage of

reservations at 10%. in contrast to Articles 15(4), 15(5), and 16 (4). The concept of
reservation includes the exclusion of other classes, so leaving out the SC, ST, and OBC
communities, which are already protected by earlier provisions, does not violate the
Equality Code. As a result, the exclusion clause "other than" is a "opportunity cost"
that does not contradict the Constitution's fundamental principles.

10. Further, it is argued before the Hon'ble Court that neither the right to a reservation nor
being excluded from one does not form a basic part of the Constitution. Reservations,
on the other hand, are enabling clauses that are temporary in nature and do not possess
the quality of permanence necessary to constitute a fundamental part of the
Constitution.

11. It is argued that "intersecting disadvantages," if not "generational disadvantages," serve

as the basis for the amendment in question, and that addressing these intersecting
disadvantages is not prohibited by or in violation of the Constitution's basic structure.

12. It is submitted before the Hon’ble Court that this reservation is a new evolution, totally
independent of reservations for STs, SCs and OBCs. It doesn't erode their rights. This
is independent of the 50%. The question of it exceeding the limit of 50% and hence
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violating the basic structure of constitution doesn't arise. Unless you put forward a
ground of discrimination and violation of Article 14 on the ground that the EWS in
15(4) category is similar to EWS in the general category, the question of any special
benefit being given to EWS in general category cannot arise. They're now seeking
further reservations within the reservations already given. The question is whether this
is permissible.

13. The next question is, are they (backward classes) equal to the EWS in general category
in all respects? The issue of discrimination between two classes that are similarly
positioned will come up. Take a look at the advantages provided to SCs and STs.
According to Article 16(4a), SCs and STs receive special treatment when it comes to
promotions, and Articles 243D, 330, 332, and 330D all give them reservations in the
House of People and the Legislative Assembly. They also have reservations in
panchayats and municipalities. Would they give up on this for the sake of asserting
equality if all these benefits were provided to them as a result of the fact that they are
underdeveloped? EWS have been given for the first time. On the other hand, so far as
the SCs and STs are concerned, they've been loaded with benefits by way of affirmative
actions. They're highly unequal and in tremendous position so far as reservations are
concerned. EWS cannot be segregated from a homogeneous group. They have far
additional advantage given to them because of their status as backward classes. They're
therefore not equal to general category. They're one homogeneous group which cannot
be divided into EWS and rest.

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ISSUE 3. Can an EWS reservation be granted on top of the existing 50% ceiling on the
reservation?

It is argued before this court that the 50 percent ceiling of reservations as laid down in the case
of Indra Sawhney VS Union of India25 is not inflexible or inviolable. This Hon’ble Court in
the case has held that under special circumstances the state may exceed this 50 percent ceiling.

1. According to Indra Sawhney, the classes covered by Articles 15(4), 15(5), and 16(4) are
subject to a 50% cap . Therefore, giving these classes the benefit of 10% would go
beyond the reservation made for them by 50%, which would be against Indra Sawhney's
wishes. Counsel has further argued that this fifty percent rule is not inviolable and is
not a part of the Constitution's fundamental principles because, as held by Indra
Sawhney, it could be broken in exceptional circumstances.

2. Regarding the 50% ceiling limit, the counsel argues that it could be exceeded in
exceptional circumstances because it is neither a fundamental principle of the
Constitution nor a component of its fundamental design. Finally, it was argued that the
validity of a constitutional amendment cannot be judged based on possible reservations
or the absence of safeguards.While 50% shall be the rule, it is necessary not to put out
of consideration certain extraordinary situations inherent in the great diversity of this
country and the people. It might happen that in far flung and remote areas the population
inhabiting those areas might, on account of their being out of the mainstream of national
life and in view of conditions peculiar to and characteristical to them, need to be treated
in a different way, some relaxation in this strict rule may become imperative. In doing
so, extreme caution is to be exercised and a special case made out."

3. The majority view 26 of Justices Dinesh Maheshwari, Bela M Trivedi and JB Pardiwala
in the case of Janhit Abhiyan vs Union of India, reservation structured singularly on
economic criteria does not violate the basic structure of the Constitution. They have
also held that breach of 50% ceiling limit by EWS reservation does not violate basic
structure.

25
Indra Sawhney and Ors. v. Union of India and Ors.: 1992 Supp (3) SCC 217
26
2022 LiveLaw (SC) 922

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4. "Reservation is an instrument of affirmative action by State so as to ensure all inclusive

approach. It is an instrument not only for inclusion of socially and educationally
backward classes...Reservations for EWS does not violate basic structure on account of
50% ceiling limit because ceiling limit is not inflexible," the majority judgment by
Justice Maheshwari said.27

5. Just as every power must be exercised reasonably and fairly, the power conferred by
Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably
limits – and what is more reasonable than to say that reservation under Clause (4) shall
not exceed 50% of the appointments or posts, barring certain extra-ordinary situations
as explained hereinafter.28

6. Justice Ravindra Bhat and concurred with CJI UU Lalit stated that the characterisation
of including the poor among those covered under Articles 15(4) and 16(4), in the new
reservations under Articles 15(6) and 16(6), as bestowing "double benefit" was
incorrect. Justice Bhat remarked– "What is described as 'benefits' for those covered
under Articles 15(4) and 16(4) by the Union, cannot be understood to be a free pass,
but as a reparative and compensatory mechanism meant to level the field – where they
are unequal due to their social stigmatisation. This exclusion violates the non-
discrimination and the non-exclusionary facet of the equality code, which thereby
violates the basic structure of the Constitution."29

27
2022 LiveLaw (SC) 922
28
2022 LiveLaw (SC) 922
29
2022 LiveLaw (SC) 922

22
RESPONDENT TEAM CODE- CDJMCC 21

ISSUE 4. Whether a person can carry their community of birth after their conversion to
another religion?

It is submitted before the Hon’ble Supreme Court that a person can change his religion and
faith but not the caste to which he belongs, as it is determined on the basis of birth. Therefore,
it can be said that a person can carry their community of birth after their conversion to another
religion.

1. In the case Mohammad Sadique Vs Darbara Singh Guru30 it is given that “Admittedly the
appellant was born to Muslim parents. However, he has proved that his family members
though followed Islam, but they belonged to “Doom” community. It is a settled law that a
person can change his religion and faith but not the caste, to which he belongs, as caste has
a linkage to birth. It is proved on the record that the appellant was issued a caste certificate
as he was found to be a member of ‘Doom’ community by the competent authority after he
declared that he has embraced Sikhism, and he was accepted by the Sikh community. It is
not disputed that ‘Doom’ in Punjab is a Scheduled Caste under Constitution (Scheduled
Castes) Order, 1950.

2. In the case of S. Paul Raj vs The Tahsildar, Mettur Thaluk & Anr31 the Madras High Court
ruled that “Conversion from one religion to another religion will not change the caste of a
person to which he belongs to” in the case.

3. In S. Anbalagan v. B. Devarajan32, which is a case pertaining to election from Rasipuram

Parliamentary Constituency (reserved for Scheduled Castes), a three-Judge Bench of this
Court at the end of para 13 has observed as under: -
“13. Now, if such a Christian becomes a Hindu, surely, he will revert
to his original caste, if he had lost it at all. In fact, this process goes on
continuously in India and generation by generation lost sheep appear
to return to the caste-fold and are once again assimilated in that fold.
This appears to be particularly so in the case of members of the
Scheduled Castes, who embrace other religions in their quest for

30
(2015) 3 RCR(Civil) 103
31
W.P.No.15193 of 2016
32
AIR 1984 SC 411

23
RESPONDENT TEAM CODE- CDJMCC 21

liberation, but return to their old religion on finding that their

disabilities have clung to them with great tenacity. We do not think that
any different principle will apply to the case of conversion to Hinduism
of a person whose forefathers had abandoned Hinduism and embraced
another religion from the principle applicable to the case of
reconversion to Hinduism of a person who himself had abandoned
Hinduism and embraced another religion.”

4. Kailash Sonkar33 the Court further discussed regarding reconversion into Hinduism by the
members of the community whose forefathers converted to other religions. Applying the
doctrine of the eclipse, this Court observed as under: -
“34. In our opinion, when a person is converted to Christianity or some
other religion the original caste remains under eclipse and as soon as
during his/her lifetime the person is reconverted to the original religion
the eclipse disappears and the caste automatically revives. Whether or
not the revival of the caste depends on the will and discretion of the
members of the community of the caste is a question on which we
refrain from giving any opinion because in the instant case there is
overwhelming evidence to show that the respondent was accepted by
the community of her original Katia caste. Even so, if the fact of the
acceptance by the members of the community is made a condition
precedent to the revival of the caste, it would lead to grave
consequences and unnecessary exploitation, sometimes motivated by
political considerations. Of course, if apart from the oral views of the
community there is any recognised documentary proof of a custom or
code of conduct or rule of law binding on a particular caste, it may be
necessary to insist on the consent of the members of the community,
otherwise in normal circumstances the case would revive by applying
the principles of doctrine of eclipse. We might pause here to add a rider
to what we have said i.e. whether it appears that the person reconverted
to the old religion had been converted to Christianity since several

33
1984 2 SCC 91

24
RESPONDENT TEAM CODE- CDJMCC 21

generations, it may be difficult to apply the doctrine of eclipse to the

revival of caste. However, that question does not arise here.”

5. As per Article 15(6) and 16(6) of the Indian Constitution citizens who are given benefit of
reservation under Clause (4) and (5) of Article 15 and 16 shall not be granted reservation
under EWS category.

Article 15(6) of Indian constitution

“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 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 percent. of the total seats in each
category” 34

Article 16(6)

“Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour 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 percent. of the posts in each category.”
35

34
The Constitution of India, 1950
35
The Constitution of India, 1950

25
RESPONDENT TEAM CODE- CDJMCC 21

6. Dinesh is an OBC Duhni by birth therefore he will be continuing his birth caste irrespective
of his conversion. Therefore, ACI’s dismissal of the provisional acceptance letter is valid.
The High Court of Milta upheld the same stating that “when a person converts into another
religion, they lose their birth caste and it remains under eclipse and when the person
reconverts, the eclipse disappears, and the birth caste automatically revives.”

7. This Hon’ble court in the case of K.P.Manu vs v Chairman, Scrutiny Committee for
Verification of Community Certificate36 while mentioning G. Michael V. S.
Venkateswaran37 opined that: “It is no doubt true, and there we agree with the Madras High
Court in G. Michael case that the general rule is that conversion operates as an expulsion
from the caste, or, in other words, the convert ceases to have any caste, because caste is
predominantly a feature of Hindu society and ordinarily a person who ceases to be a Hindu
would not be regarded by the other members of the caste as belonging to their fold. But
ultimately it must depend on the structure of the caste and its rules and regulations whether
a person would cease to belong to the caste on his abjuring Hinduism. If the structure of
the caste is such that its members must necessarily belong to Hindu religion, a member,
who ceases to be a Hindu, would go out of the caste, because no non-Hindu can be in the
caste according to its rules and regulations. Where, on the other hand, having regard to its
structure, as it has evolved over the years, a caste may consist not only of persons professing
Hindu religion but also persons professing some other religion as well, conversion from
Hinduism to that other religion may not involve loss of caste, because even persons
professing such other religion can be members of the caste. This might happen where caste
is based on economic or occupational characteristics and not on religious identity or the
cohesion of the caste as a social group is so strong that conversion into another religion
does not operate to snap the bond between the convert and the social group. This is indeed
not an infrequent phenomenon in South India where, in some of the castes, even after
conversion to Christianity, a person is regarded as continuing to belong to the caste.

8. The Court in K.P.Manu (Supra) referred to number of authorities of various High Courts
and ruled that it cannot be laid down as an absolute rule uniformly applicable in all cases

36
2015 SCC OnLine SC 161
37
1952 (1) MLJ 239

26
RESPONDENT TEAM CODE- CDJMCC 21

that whenever a member of caste is converted from Hinduism to Christianity, he loses his
membership of the caste. It is true that ordinarily on conversion to Christianity, he would
cease to be a member of the caste, but that is not an invariable rule, and it would depend on
the structure of the caste and its rules and regulations. The Court referred to certain castes,
particularly in South India, where this consequence could not follow by conversion since
such castes comprise both Hindus and Christians. Eventually, the Court opined that: “There
is no reason either on principle or on authority which should compel us to disregard this
view which has prevailed for almost a century and lay down a different rule on the subject.
If a person who has embraced another religion can be reconverted to Hinduism, there is no
rational principle why he should not be able to come back to his caste if the other members
of the caste are prepared to readmit him as a member. It stands to reason that he should be
able to come back to the fold to which he once belonged, provided of course the community
is willing to take him within the fold. It is the orthodox Hindu society still dominated to a
large extent, particularly in rural areas, by a medievalistic outlook and status-oriented
approach which attaches social and economic disabilities to a person belonging to a
scheduled caste and that is why certain favoured treatment is given to him by the
Constitution. Once such a person ceases to be a Hindu and becomes a Christian, the social
and economic disabilities arising because of Hindu religion cease and hence it is no longer
necessary to give him protection and for this reason he is deemed not to belong to a
scheduled caste. But when he is reconverted to Hinduism, the social and economic
disabilities once again revive and become attached to him because these are disabilities
inflicted by Hinduism. A Mahar or a Koli or a Mala would not be recognised as anything
but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from
the same social and economic disabilities from which he suffered before he was converted
to another religion. It is, therefore, obvious that the object and purpose of the Constitution
(Scheduled Castes) Order, 1950 would be advanced rather than retarded by taking the view
that on reconversion to Hinduism, a person can once again become a member of the
scheduled caste to which he belonged prior to his conversion.”
9. Therefore, by the above-mentioned cases the counsel states that Dinesh will continue to be
an OBS Duhni which is his community by birth even after conversion. Decision of ACI to
dismiss Dinesh’s provisional acceptance letter is reasonable.

27
RESPONDENT TEAM CODE- CDJMCC 21

ISSUE 5. Whether a person’s birth community remains under eclipse on conversion to

another religion and re-eclipses when the person re-convert back to their birth religion?

It is humbly submitted before the Hon’ble Supreme Court that the judgment of Hight Court of
Milta stating “when a person converts into another religion, they lose their birth caste and it
remains under eclipse and when the person reconverts, the eclipse disappears and the birth
caste automatically revives” was logical. Therefore, it is prayed before this Hon’ble court to
uphold the decision of High Court and Adini Cyber Institute.

1. In S. Anbalagan v. B. Devarajan38, which is a case pertaining to election from Rasipuram

Parliamentary Constituency (reserved for Scheduled Castes), a three-Judge Bench of this
Court at the end of para 13 has observed as under: -
“13. Now, if such a Christian becomes a Hindu, surely, he will revert
to his original caste, if he had lost it at all. In fact, this process goes on
continuously in India and generation by generation lost sheep appear
to return to the caste-fold and are once again assimilated in that fold.
This appears to be particularly so in the case of members of the
Scheduled Castes, who embrace other religions in their quest for
liberation, but return to their old religion on finding that their
disabilities have clung to them with great tenacity. We do not think that
any different principle will apply to the case of conversion to Hinduism
of a person whose forefathers had abandoned Hinduism and embraced
another religion from the principle applicable to the case of
reconversion to Hinduism of a person who himself had abandoned
Hinduism and embraced another religion.”

2. Kailash Sonkar (supra) the Court further discussed regarding reconversion into Hinduism
by the members of the community whose forefathers converted to other religions. Applying
the doctrine of the eclipse, this Court observed as under: -
“34. In our opinion, when a person is converted to Christianity or some
other religion the original caste remains under eclipse and as soon as
during his/her lifetime the person is reconverted to the original religion
the eclipse disappears and the caste automatically revives. Whether or

38
AIR 1984 SC 411

28
RESPONDENT TEAM CODE- CDJMCC 21

not the revival of the caste depends on the will and discretion of the
members of the community of the caste is a question on which we
refrain from giving any opinion because in the instant case there is
overwhelming evidence to show that the respondent was accepted by
the community of her original Katia caste. Even so, if the fact of the
acceptance by the members of the community is made a condition
precedent to the revival of the caste, it would lead to grave
consequences and unnecessary exploitation, sometimes motivated by
political considerations. Of course, if apart from the oral views of the
community there is any recognised documentary proof of a custom or
code of conduct or rule of law binding on a particular caste, it may be
necessary to insist on the consent of the members of the community,
otherwise in normal circumstances the case would revive by applying
the principles of doctrine of eclipse. We might pause here to add a rider
to what we have said i.e. whether it appears that the person reconverted
to the old religion had been converted to Christianity since several
generations, it may be difficult to apply the doctrine of eclipse to the
revival of caste. However, that question does not arise here.”
This has been cited in several sites K.P. Manu Chairman, Scrutiny Committee
for Verification of Community Certificate39, Jibim C. Baby Vs the
commissioner for entrance examinations government of Kerala40 and S.
Rajagolpal vs C.M. Armugam41.

3. The Court in K.P.Manu (Supra) referred to number of authorities of various High Courts
and ruled that it cannot be laid down as an absolute rule uniformly applicable in all cases
that whenever a member of caste is converted from Hinduism to Christianity, he loses his
membership of the caste. It is true that ordinarily on conversion to Christianity, he would
cease to be a member of the caste, but that is not an invariable rule, and it would depend on
the structure of the caste and its rules and regulations. The Court referred to certain castes,
particularly in South India, where this consequence could not follow by conversion since
such castes comprise both Hindus and Christians. Eventually, the Court opined that:

39
2015 SCC OnLine SC 161
40
WP(C).No. 22436 of 2007 (U)
41
[1959] 1 S.C.R. 254. 7-L390 SCI/76 88

29
RESPONDENT TEAM CODE- CDJMCC 21

“There is no reason either on principle or on authority which should

compel us to disregard this view which has prevailed for almost a
century and lay down a different rule on the subject. If a person who
has embraced another religion can be reconverted to Hinduism, there
is no rational principle why he should not be able to come back to his
caste if the other members of the caste are prepared to readmit him as
a member. It stands to reason that he should be able to come back to
the fold to which he once belonged, provided of course the community
is willing to take him within the fold. It is the orthodox Hindu society
still dominated to a large extent, particularly in rural areas, by a
medievalistic outlook and status-oriented approach which attaches
social and economic disabilities to a person belonging to a scheduled
caste and that is why certain favoured treatment is given to him by the
Constitution. Once such a person ceases to be a Hindu and becomes a
Christian, the social and economic disabilities arising because of Hindu
religion cease and hence it is no longer necessary to give him protection
and for this reason he is deemed not to belong to a scheduled caste. But
when he is reconverted to Hinduism, the social and economic
disabilities once again revive and become attached to him because
these are disabilities inflicted by Hinduism. A Mahar or a Koli or a
Mala would not be recognised as anything but a Mahar or a Koli or a
Mala after reconversion to Hinduism and he would suffer from the
same social and economic disabilities from which he suffered before
he was converted to another religion. It is, therefore, obvious that the
object and purpose of the Constitution (Scheduled Castes) Order, 1950
would be advanced rather than retarded by taking the view that on
reconversion to Hinduism, a person can once again become a member
of the scheduled caste to which he belonged prior to his conversion.”

4. Therefore, when a person converts into another religion, they lose their birth caste and it
remains under eclipse and when the person reconverts, the eclipse disappears, and the birth
caste automatically revives. Therefore, Dinesh will continue to be an OBS Duhni which is
his community by birth even after conversion.

30
RESPONDENT TEAM CODE- CDJMCC 21

PRAYER

Wherefore, in the light of the legal precedents and principles cited; and in light of the provisions
of the Constitution applied and arguments advanced; it is most humbly pleaded before the
Hon’ble Court that this Court adjudges and declares that:

❖ It is therefore prayed by the respondent before this Hon’ble Court that the Review
Petition and the SLP filed by the petitioner is not maintainable and does not require
interference by this Court.
❖ To uphold the constitutional validity of 103rd amendment of the Adini Constitution.
❖ Excluding SC, ST and OBC from the reservation under the EWS category is not
violative of the established Constitutional Principles.
❖ Amendment in question comes under special circumstances and reservation be granted
on top of the existing 50% ceiling.
❖ A person carries their community of birth after their conversion to another religion.
❖ To uphold the decision of cancelation of Dinesh’s provisional acceptance letter by ACI
and High Court of Milta.
❖ A person’s birth community remains under eclipse on conversion to another religion
and re-eclipses when the person re-converts back to their birth religion.

And pass any other order, direction, or relief that it may deem fit in the best interests of justice,
fairness, equity, and good conscience.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENT

31