TEAM CODE:- 104

3rd DME NATIONAL MOOT COURT COMPETITION

IN THE HON’BLE SUPREME COURT OF PISACHU

[SUO MOTU WRIT PETITION NO. Xx of 2019]
RE: Reservation for EBC in Public Employment and Education

Court on its own Motion

Petitioner

VERSUS

Union of Pishachu &Ors.

Respondent

Memorial for The Appellant

 Table of Contents

List of Abbreviations .......................................................................................................... iii

Statement of Jurisdiction ................................................................................................ iv

Summary of Arguments..................................................................................................... v

Written Pleadings............................................................................................................... 1

CONTENTION1: The impugned amendment approving 15% reservation for

EBC be set aside/quashed being unconstitutional
CONTENTION2: Restrictions imposed are voilative of citizen’s rights
CONTENTION3: State cannot be held liable as on complete performance of
duties.
CONTENTION4: Criminal charges and arrest of the professor and students is
unjustified.

PRAYER ………………………………………………………………………………… 20

Memorial for The Appellant

 LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

VS., V. VERSUS
HON’BLE HONOURABLE
I.E THAT IS
SCC SUPREME COURT CASES
U/S UNDER SECTION
S. NO. SERIAL NUMBER
LD. LEARNED
U/A UNDER ARTICLE
C.J CHIEF JUSTICE
ST. STATE
ART. ARTICLE
UOI UNION OF INDIA
& AND

Memorial for The Appellant

 Statement of Jurisdiction

The Honourable Supreme Court has taken suo-motu cognizance to deal with present matter
concerning larger public interest and to confirm the constitutionality of the impugned
amendment. The action is taken Under Article 32 of the Constitution of India

Memorial for The Appellant

 SUMMARY OFARGUMENTS

ISSUE I. Implementation of 15% reservation for Economically Backward

Classes (EBC) by the Central Government is unconstitutional.

It is ultra-vires to the basic structure of the constitution and in violation to the

precedence set in Indra Sawhney’s (13 Judge Bench) Judgment by this Hon’ble
Court. No empirical study/data to set approach to the basis of decision and
hence clear implication of it to be arbitrary and unconstitutional.

ISSUE II. Restrictions imposed are voilative of citizen’s rights

Kalikrati University is a Central University and thus covered under the definition of the state
as per article 12 of the Constitution of Pishachu. Further, the restrictions could not be
imposed by the University as it curb the rights of free speech and expression.

ISSUE III: State performed its duty rightly

The situation of dissatisfaction amongst citizens of Pishachu was seen, the distress was
created due to the unconstitutional movement made by the central government. It was
arbitrary abuse of power to make a constitutional amendment which extended the upper limit
of reservation. This amendment is ultravires it crosses the basic limit of reservation i.e not
more than 50% by giving Economically weaker section (EWS) 15%. The citizens of Pishachu
protested against it as whole in different parts of the country. The mere protesting against
some policy/law/amendment is a way in democracy of keeping the things transparent and
putting though the view of the citizens for the law made for them by their representatives. In
ALOKAM the students protested as being the group which is most affected by this move or
amendment in the law as in such an atmosphere while every citizen is entitled to enjoy the
rights and interest bestowed under the constitutional and statutory law, he is also obligated to
remain obeisant to the command of law.

ISSUE IV. Criminal charge and Arrest Unjustified.

The arrest and the abetment of suicide charge brought against the individual student was not
justified as the act of Rahu did not amount to abetment of suicide as he did not instigate any
person to commit suicide, instead threatened the authorities to commit suicide himself.
The arrest and criminal charges of abetment, sedition and criminal conspiracy for being a

Memorial for The Appellant

member of the same party to which some of the student protesters belonged, against the
professor, Dr. Bijuye were not justified as:
• He did not did not amount to abetment of suicide as he did not instigate any person to
commit suicide, instead just gave a media bite supporting the demands of the students.
• He did not attempt to bring into hatred or contempt, or excite or attempt to excite
disaffection towards, the Government established by law in India.
• He did not, along with anyone else, do, or cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy

Memorial for The Appellant

 WRITTEN PLEADINGS

ISSUE-1: Whether the implementation of 15% reservation for Economically Backward

Classes (EBC) by the Central Government is unconstitutional?

The issues raised in terms of present factual matrix are:-The Central Government has floated
a poll gimmick to have a 15% quota for the economically weaker sections (EWS) from
among forward castes and faiths. Issues arisen and dealt with : (i) Can reservation be
provided for EWS from among forward classes? (ii) Can the threshold of 50% be increased to
60%? (iii) Are EWS a homogenous group? Why do we have reservation quotas at all i.e.
Subjected to Art. 14?

The Central government’s decision would appear to face two insurmountable obstacles laid
down by the Supreme Court itself in its landmark 1993 judgment in Indra Sawhney vs Union
of India. These are:

1. that the total number of reserved seats/places/positions cannot exceed 50% of what is
available, and

2. that under the constitutional scheme of reservation, economic backwardness alone

could not be a criterion.

To redress discrimination, disadvantages from backwardness and atrocities against targeted

groups. The Constitution allowed reservation for socially and educationally backward classes
(SEBC) from 1951; and for backward classes (BC) in public employment (Article 16) from
1950. BCs include Scheduled Castes (SCs), Scheduled Tribes (STs) and OBCs. From 1995-
2002 there were four constitutional amendments. This is the fifth, apart from the first in 1951.

In book Reserved1 (2007) it is shown that such amendments are not discussed properly. In
1995 Parliament’s sentiment was “Aap Bill pass kar dijiye”, of which another version was,
“Pass it. Pass it. Put it to vote.” Is this the way to pass constitutional amendments?

In Indra Sawhney case2 (1992), a nine-judge bench majority ruled that economic criteria
cannot be exclusively used (six judges). Three dissenting judges wanted reservation only on
economic criteria and no other kind. They said: “In a country of 850 million people – 74% of

1
Rajeev Dhavan (2008). Reserved!: How Parliament Debated Reservations 1995-2007. Rupa & Company.
p. 319. ISBN 8129113694.
2
AIR 1993 SC 477; MANU/SC/0104/1993: Indra Sawhney and Ors. vs. Union of India (UOI) and Ors.

Memorial for The Appellant

which is backward – job reservation can hardly be the source of reducing social and
economic disparities. Even the Mandal Report (called these) ... palliatives job reservations
(a)... vote-catching platter.”

The Constitution uses the word “class”, a homogenous group sharing socio-economic
affinities. Quarter or half a country cannot be a class. Reservation for a non-homogenous
floating EBC is clearly unconstitutional. Further, the court treated the 50% cap as part of the
basic structure in 2006, to be only relaxed for unattended tribal areas. The amendment would
fail on all counts.

This is a sop for the next elections. Constitution amendment requires two-thirds members of
each House, with at least one half voting, pass the Bill. Mathematical calculation will
encourage non-attendance to lower the two-thirds needed. The real catch is that if the
amendment is defeated by the Opposition, Central Government’s election campaign will
assert they rejected a Bill for the poor; trying to make this unconstitutionality politically win-
win.

The recent statistics show tax returns of above Rs 5 lakh were filed by only 7.6 million
people. Seventy per cent of farmers own less than one hectare. A conservative estimate of
190 million earn less than Rs 5 lakh.

Earlier In September 1991, an Office Memorandum3 issued by the then P.V. Narasimha Rao
government reserved 10% of posts for ‘other economically backward sections…not covered
by any of the existing schemes of reservations’. This decision was struck down by the
Supreme Court’s nine-judge constitution bench in Indra Sawhney vs Union of India. The
primary purpose of Article 16 of the constitution, the court held, is to ensure participatory
justice, and not redistribution.

In paragraph 91 of Indra Sawhney4, the majority of the judges made it clear that
backwardness cannot be determined exclusively with reference to economic criteria. Under
Article 16(4), an OBC must primarily be ‘socially’ backward, with educational and economic
backwardness being used as a tool to determine social backwardness. The other criterion is
that the group should be inadequately represented in public employment.

3
DO. No. NCBC/MS/1/2015
4
Supra note 2

Memorial for The Appellant

In Indra Sawhney, the Supreme Court held that vertical reservations should not ordinarily
exceed 50% (paragraph 94A). This limit may appear arbitrary, but it makes sense if we
understand that equality of opportunity is for every citizen, including those who do not
belong to a backward class. Dr B.R. Ambedkar’s famous warning5 against “reservation…of
such magnitude that the rule regarding equality of opportunity has been destroyed” should
remind us of the dangers of excessive reservation.

In Indra Sawhney, paragraph 799, the court held that a backward class cannot be determined
only and exclusively with reference to economic criteria. It may be a consideration or the
basis along with and in addition to social backwardness, but it can never be the sole criterion.
Eight out of the nine judges on the bench concurred with this view. In paragraph 809 and
810, the bench held that reservation contemplated under clause (4) of Article 16 should not
exceed 50%.

In paragraph 810, the bench held, “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.”

The Supreme Court made it clear that Article 16(4) is exhaustive of any reservations
made in favour of backward castes.

Dismissing the state government’s contentions, the Gujarat High Court held that “its
ordinance aimed at reservation and not classification. Apart from 15(4) and 16(4), there is
no other power conferred on the state for effecting reservation in favour of any other
category, more particularly the economically weaker sections of unreserved category, it
held. In the absence of any specific provision which empowers the state to make such
special provisions, under the guise of classification the state cannot put in place 10%
reservation.”

5
Constitutional Assembly Debates(CAD)/Volume 8/13th June 1949- The Constituent Assembly of India met in
the Constitution Hall, New Delhi, at Eight of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in
the Chair.

Memorial for The Appellant

The Gujarat high court held that as it did not find any such extraordinary circumstance
for making a departure from the 50% rule, the ordinance could not be sustained. The
unreserved category itself is a class, and it is not open for the state to effect reservations on
the grounds that a part of this section is economically weak, the high court reasoned.

The court also held that when equality is the rule of law under Article 14, a group cannot be
created for the purpose of providing reservations unless a detailed scientific and technical
study is carried out. Except by referring to representations on the reservation, there is no
other scientific data collected, it pointed out while quashing the ordinance.

In Atyant Pichhara Barg Chhatra Sangh vs Jharkhand State Vaishya Federation and
Others6 (2006), while dealing with affirmative action under Articles 15(4) and 16(4) of the
constitution, the Supreme Court held in paras 22 and 23:

“The State has failed to show any new circumstances except for a bald statement that the
same was done after careful application of mind and due deliberation by the highest
policy-making body, that is, the council of ministers. There are no materials or empirical
data to indicate that the circumstances had been changed and the State has not undertaken
any study, research or work. In such circumstances to merely suggest that the council of
ministers had applied their minds and had reached a decision is arbitrary and
unreasonable.”

The parallel with the Centre’s decision to introduce a similar reservation for the economically
backward without the results of an empirical study in the public domain cannot be missed.

It specifically amends Article 15 (which prohibits discrimination on the basis of religion,

race, caste, sex, place of birth) and Article 16 (equality of opportunity) to insert new
clauses that allow the government to make “special provision for the advancement of
any economically weaker sections of citizens” other than SC/STs and OBCs.

It undermines a basic feature of the constitution – the right to equality of all the citizens.

Petitioners seeks to attribute legal malice to the decision making process resultantly vitiating
the decision taken by the Union Government. The manner in which the decision was taken
commencing before elections has been mentioned to contend that the impugned notification

6
AIR 2006 SC 2814; MANU/SC/3837/2006 Atyant Pichhara Barg Chhatra Sangh and Ors. vs. Jharkhand State
Vaishya Federation and Ors. (08.08.2006 - SC)

Memorial for The Appellant

is based on wholly extraneous considerations and is actuated by political motives, namely, to
gain electoral advantages.

It is contended that the impugned order of amendment has been issued in derogation of the
provisions of Section 9(2) of the Act7 which provides that "advice of the Commission shall
ordinarily be binding upon the Central Government". Even in a situation contemplated by
Section 11 of the Act the views of the NCBC would be equally compulsive and binding and
should commend for acceptance of the Central Government except in situations where there
are strong compelling and overwhelming reasons not to do so. None of the aforesaid
situations do exist in the present case,

The decisions in Barium Chemicals Ltd. v. Co. Law Board MANU/SC/0037/1966 : 1966
Supp SCR 311; Rohtas Industries Ltd. v. S.D. Agarwal and Ors. MANU/SC/0020/1968 :
(1969) 1 SCC 325;S hri Sitaram Sugar Co. Ltd. and Anr. v. Union of India and Ors.
MANU/SC/0249/1990 : (1990) 3 SCC 223 and Gazi Saduddin v. State of Maharashtra and
Anr. MANU/SC/0619/2003 : (2003) 7 SCC 330 have been relied upon to contend that the
satisfaction of the Central Government is open to challenge and within the reach of the
judicial scrutiny both on grounds of its legal fragility and ex facie unreasonableness.

No relevant empirical study report or data to support the statistics of the Respondent.
All the reports as well as the literature on the subject would be at least a decade old. The
necessary data on which the exercise has to be made, as already observed by us, has to be
contemporaneous. Outdated statistics cannot provide accurate parameters for measuring
backwardness for the purpose of inclusion in the list of Other Backward Classes. This is
because one may legitimately presume progressive advancement of all citizens on every
front i.e. social, economic and education. Any other view would amount to retrograde
governance.

The perception of a self-proclaimed socially backward class of citizens or even the perception
of the "advanced classes" as to the social status of the "less fortunates" cannot continue to be
a constitutionally permissible yardstick for determination of backwardness, both in the
context of Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness
be a matter of determination on the basis of mathematical formulae evolved by taking into
account social, economic and educational indicators. Determination of backwardness must
also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions

7
National Commission for Backward Classes Act, 1993 (27 of 1993)

Memorial for The Appellant

but the gates would be opened only to permit entry of the most distressed. Any other
inclusion would be a serious abdication of the constitutional duty of the State. Judged by the
aforesaid standards we must hold that inclusion of the politically organized classes in the list
of backward classes mainly, if not solely, on the basis that on same parameters other groups
who have fared better have been so included cannot be affirmed.8

I. Economic criteria cannot be the sole basis for reservation

Concurring with the above view, Justice Sawant says at Para 481 9: “Thus, not only the
concept of “weaker sections” under Article 46 is different from that of the “backward class”
of citizens in Article 16(4), but the purpose of the two is also different. One is for the limited
purpose of the reservation and hence suffers from limitations, while the other is for all
purposes under Article 46, which purposes are other than reservation under Article 16(4).
While those entitled to benefits under Article 16(4) may also be entitled to avail of the
measures taken under Article 46, the converse is not true. If this is borne in mind, the reasons
why mere poverty or economic consideration cannot be a criterion for identifying backward
classes of citizens under Article 16(4) would be more clear.”

In addition, Justice Sahai records at Para 627: “But any reservation or affirmative action on
economic criteria or wealth discrimination cannot be upheld under doctrine of reasonable
classification. Reservation for backward class seeks to achieve the social purpose of sharing
in services which had been monopolised by few of the forward classes. To bridge the gap,
thus created, the affirmative actions have been upheld as the social and educational difference
between the two classes furnished reasonable basis for classification. Same cannot be said for
rich and poor. Indigence cannot be a rational basis for classification for public employment.”

The above Constitution Amendment completely violates the Constitutional norm that
economic criterion cannot be the only basis of reservation as has been laid down by the 9
judges in Indira Sawhney, without removing the basis of the judgement. Such an Amendment
is hence, vulnerable and ought to be struck down as it merely negates a binding judgement.

II. The economic reservation cannot be limited to the general categories

8
Ram Singh v/s UOI; MANU/SC/0283/2015
9
Supra Note 2

Memorial for The Appellant

Repeatedly, this Hon’ble Court has upheld the equality code as one of the foremost basic
features of the Constitution. From Maneka Gandhi10, and I.R.Coelho11, to Shayara Bano12 the
value of equality has been repeatedly emphasized to ensure that equals are not treated
unequally. By way of the present amendments, the exclusion of the OBCs and the SCs/STs
from the scope of the economic reservation essentially implies that only those who are poor
from the general categories would avail the benefits of the quotas. This is an overwhelming
violation of the basic feature of equality enshrined in Article 14 of the Constitution and
elsewhere.

III. The 50% ceiling limit cannot be breached

Since the 1993 ruling was by a nine-judge constitution bench, the bar on quotas beyond 50%
would need to be overturned by a larger one.

Appended below are key extracts from the Supreme Court’s judgment in Indra Sawhney:

94A. […] Clause (4) [of Article 16 of the constitution] speaks of adequate representation and
not proportionate representation. Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is accepted only in Articles 330 and
332 of the Constitution and that too for a limited period. These articles speak of reservation
of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled
Castes proportionate to their population, but they are only temporary and special provisions.
It is therefore not possible to accept the theory of proportionate representation though the
proportion of population of backward classes to the total population would certainly be
relevant.

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.13
Reservation on economic backwardness alone not allowed.

10
(1978) 1 SCC 248
11
(2007) 2 SCC 1
12
(2017) 9 SCC 1
13
Narayan Rao v. State 1987 A.P. 53

Memorial for The Appellant

This Hon’ble Court, speaking through the Constitution Bench in the case of M.Nagaraj Vs.
Union of India &Ors.14, upheld the Constitutional validity of Article 16(4A) and the proviso
to Article 335 in the following words:

“We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling
reasons, namely, backwardness, inadequacy of representation and overall administrative
efficiency are all constitutional requirements without which the structure of equality of
opportunity in Article 16 would collapse.”

In Para 104, the Court specifically states that “As stated above, be it reservation or
evaluation, excessiveness in either would result in violation of the constitutional mandate.”

Thus, the 50% ceiling limit of reservations has been engrafted as a part of the basic structure
of the Constitution’s equality code. This has in fact been reiterated by the Constitution Bench
recently in Jarnail SinghVs. Lachhmi Narain Gupta15, which declined to refer the correctness
of the dicta laid down in Nagaraj to a larger bench.

The respondent’s plea that the 50% ceiling was for caste-based reservation and herein
the government is proposing reservation for economically poor is denied in toto. The
economically backward are not victims.

IV. Imposing reservations on unaided institutions is manifestly arbitrary

Both the Constitution Bench judgements in T.M.A.Pai Foundation16, and P.A.Inamdar17,

make it clear that the State’s reservation policy cannot be imposed on unaided educational
institutions, and as they are not receiving any aid from the State, they can have their own
admissions provided they are fair, transparent, non-exploitative and based on merit.

Instead of exploring other alternatives as directed by this Hon’ble Court, the Respondents
have taken to amending the Constitution repeatedly so that a populist measure can be
permitted to flourish with a clear eye on the vote bank. It is necessary and incumbent on the
Respondents to explain as to what other measures have been even remotely explored by them
to obtain the social objectives outlined in the Constitution. There has been absolutely no such
attempt made to arrive at the ad-hoc 15% figure that is now introduced in the Constitution
and this is manifestly arbitrary and violative of the basic feature of non-arbitrariness.

14
(2006) 8 SCC 212
15
(2018) 10 SCC 396
16
(2002) 8 SCC 481
17
(2005) 6 SCC 537

Memorial for The Appellant

ISSUE 2. WHETHER RESTRICTIONS IMPOSED BY UNIVERSITY CURB THE
RIGHT OF FREEDOM OF SPEECH AND EXPRESSION

Under Article 12, "the State" has been defined to include the Government and the Parliament
of Pishachu and the Government and the Legislature of each of the States and all local and
other authorities within the territory of Pishachu or under the control of the Government of
Pishachu. The expression "other authorities" in Art. 12 will include all constitutional or
statutory authorities on whom powers are conferred by law.

Kalikrati University is a Central University set up under the ‘Central Universities Act, 2009’
and can be stated to be a statutory authority. Thus, Kalikrati University is state as per Article
12 of the Constitution of Pishachu.

• UjjamBai vs. State of Uttar Pradesh18:

200. ….Under Article 12, "the State" has been defined to include the Government and the
Parliament of Pishachu and the Government and the Legislature of each of the States and all
local and other authorities within the territory of Pishachu or under the control of the
Government of Pishachu. A Division Bench of the Madras High Court in University of
Madras v. ShantaBai(AIR1954Mad67) construed the words "local or other authorities" under
Article 12 of the Constitution thus : "These words must be construed as ejusdem generis with
Government of Legislature and so construed can only means authorities exercising
governmental functions. They would not include persons natural or juristic who cannot be
regarded a instrumentalities of the Government."

Rajasthan State Electricity Board, Jaipur vs. Mohan Lal and Ors.19
These decisions of the Court support our view that the expression "other authorities" in Art.
12 will include all constitutional or statutory authorities on whom powers are conferred by
law. It is not at all material that some of the powers conferred may be for the purpose of
carrying on commercial activities.

Under the Constitution, the State is itself envisaged as having the right to carry on trade or
business as mentioned in Art, 19(1)(g). In Part IV, the State has been given the same meaning
as in Art. 12 and one of the Directive Principles lid down in Art. 46 is that the State shall

18
AIR1962SC1621

19
AIR1967SC1857

Memorial for The Appellant

 promote with special care the educational and economic interests of the weaker sections of
the people.

Article 19(1) of the Constitution of Pishachu guarantees the right to freedom of speech and
expression as a Fundamental Right, which can not be violated by the state, except in case
of imposing reasonable restrictions. The restrictions Imposed by the University are not at
all reasonable and were arbitrary and thus violative of the rights guaranteed by Article
19(1).

Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful
agitations are the basic features of a democratic system. The people of a democratic country
like ours have a right to raise their voice against the decisions and actions of the Government
or even to express their resentment over the actions of the Government on any subject of
social or national importance. The Government has to respect and, in fact, encourage exercise
of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of
speech as understood in its comprehensive sense and not to throttle or frustrate exercise of
such rights by exercising its executive or legislative powers and passing orders or taking
action in that direction in the name of reasonable restrictions

• KedarNath Singh vs. State of Bihar20:

38. …It is well settled that if certain provisions of law construed in one way would make
them consistent with the Constitution, and another interpretation would render them
unconstitutional, the Court would lean in favour of the former construction.

The provisions of the sections read as a whole, along with the explanations, make it
reasonably clear that the sections aim at rendering penal only such activities as would be
intended, or have a tendency, to create disorder or disturbance of public peace by resort to
violence. As already pointed out, the explanations appended to the main body of the section
make it clear that criticism of public measures or comment on Government action,
however strongly worded, would be within reasonable limits and would be consistent with
the fundamental right of freedom of speech and expression. It is only when the words,
written or spoken, etc. which have the pernicious tendency or intention of creating public
disorder or disturbance of law and order that the law steps in to prevent such activities in
the interest of public order. So construed, the section, in our opinion, strikes the correct

20
AIR1962SC955

Memorial for The Appellant

 balance between individual fundamental rights and the interest of public order. It is also well
settled that in interpreting an enactment the Court should have regard not merely to the literal
meaning of the words used, but also take into consideration the antecedent history of the
legislation, its purpose and the mischief it seeks to suppress (vide (1)).

• RamlilaMaidan Incident vs. Home Secretary, Union of India (UOI) and Ors. 21
200. Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful
agitations are the basic features of a democratic system. The people of a democratic country
like ours have a right to raise their voice against the decisions and actions of the Government
or even to express their resentment over the actions of the Government on any subject of
social or national importance. The Government has to respect and, in fact, encourage exercise
of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of
speech as understood in its comprehensive sense and not to throttle or frustrate exercise of
such rights by exercising its executive or legislative powers and passing orders or taking
action in that direction in the name of reasonable restrictions. The preventive steps should be
founded on actual and prominent threat endangering public order and tranquility, as it may
disturb the social order. This delegate power vested in the State has to be exercised with great
caution and free from arbitrariness. It must serve the ends of the constitutional rights rather
than to subvert them.

• ShreyaSinghal vs. Union of India (UOI) 22

13. This leads us to a discussion of what is the content of the expression "freedom of speech
and expression". There are three concepts which are fundamental in understanding the reach
of this most basic of human rights. The first is discussion, the second is advocacy, and the
third is incitement. Mere discussion or even advocacy of a particular cause howsoever
unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy
reaches the level of incitement that Article 19(2) kicks in.3 It is at this stage that a law may be
made curtailing the speech or expression that leads inexorably to or tends to cause public
disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security
of the State, friendly relations with foreign States, etc. Why it is important to have these three
concepts in mind is because most of the arguments of both Petitioners and Respondents
tended to veer around the expression "public order".

21
(2012)5SCC1
22
AIR2015SC1523

Memorial for The Appellant

• The Superintendent, Central Prison, Fatehgarh vs. Ram ManoharLohia23
The limitation imposed in the interests of public order to be a reasonable restriction, should
be one which has a proximate connection or nexus with public order, but not one far-fetched,
hypothetical or problematical or too remote in the chain of its relation with the public order.

• Santokh Singh vs. Delhi Administration24

8. We of course agree with ShriAgarwal that the fundamental right guaranteed by Article
19(1)(a) and the interest of public protected by Article 79(2) must be property adjusted and
reasonable balance struck between the two. There can be no dispute that there is no such
thing as absolute or unrestricted freedom of speech and expression wholly free from restraint
for that would amount to uncontrolled licence which would tend to lead to disorder and
anarchy. The right to freedom of speech and expression is undoubtedly a valuable and
cherished right possessed by a citizen in our Republic. Our governmental set up being
elected, limited and responsible we need requisite freedom of animadversion, for our social
interest ordinarily demands free propagation of views. Freedom to think as one likes, and to
speak as one thinks are, as" a rule, indispensable to the discovery and spread of truth and
without free speech discussion may well be futile. But at the same time we can only ignore at
our peril the vital importance of our social interest in, inter alia, public order and security of
our State. It is for this reason that our Constitution has rightly attempted to strike a proper
balance between the various competing social in interests. It has permitted imposition of
reasonable restrictions on the citizen's right of freedom of speech and expression in the
interest of, inter alia, public order, security of State, decency or morality and impartial justice,
to serve the larger collective interest of the nation as a whole. Reasonable restriction in
respect of matters specified in Article 19(2) are essential for integrated development on
egalitarian, progressive lines of any peace-loving, civilised society. Article 19(2) thus saves
the Constitutional validity of Section 9 of the Act. The analogy between Section 124A, I.P.C.
and Section 9 of the Act is wholly misconceived and in view of the comprehensive sweep of
Article 19(2) we are unable to restrict Section 9 of the Act only to those speeches and
expressions which incite or tend to incite violence.

ISSUE 3: WHETHER STATE GOVERNMENT BE HELD LIABLE FOR THEIR

FAILURE TO DISCHARGE CONSTITUTIONAL DUTIES?

23
AIR1960SC633
24
AIR1973SC1091

Memorial for The Appellant

No individual in his own capacity or as a part of a group, which within no time assumes the
character of a mob, can take law into his/their hands and deal with a person treating him as
guilty. That is not only contrary to the paradigm of established legal principles in our legal
system but also inconceivable in a civilized society that respects the fundamental tenets of the
rule of law. And, needless to say, such ideas and conceptions not only create a dent in the
majesty of law but are also absolutely obnoxious.25

Enactment or Amendment is brought for the benefit of the society by conferring rights on the
citizens and to regulate social behaviour in many a sphere, is required to be implemented by
the law enforcing agencies and the citizens are duty bound to follow the law treating it as
sacred. Law has to be regarded as the foundation of a civilized society. The primary goal of
law is to have an orderly society where the citizenry dreams for change.26

As per the seventh schedule under the state list the state has the power to make orders and
control the situation of a mob to maintain peace and law in order in the state. But the created
scenario of the mob was controlled it all began with smooth and peaceful protest. The
peaceful protest which went wrong by the incident of several deaths that took place was the
act that was spontaneous. The amendment has been brought in conservancy of the majority
being at the majority of the party at the Central Government to take the arbitrary decision; the
true meaning of democracy based on the spiritual constitution of Pishachu has been defeated
as the basic structure of the constitution has been out passed.

SITUATION OF EMERGENCY

The armed forced were deputed at the state by the Central Government to create the havoc
situation as of like emergency and to make the state government fall on which they have had
no control; it was out of political agenda to make destroy up the image of the ruling party in
ALOKAM that Central Government arbitrarily exercising its power stepping into the affairs
of the state which were duly controlled by the state itself as per the constitution. There is
nothing beyond reasonable doubt on the involvement of the CM Moran Dalwar in the
involvement of any kind of illegal act or the charges made out against him and the members
of his party are frivolous and baseless. It was a spontaneous action whose investigation has
not yet been made out by an independent body that could prove the involvement of the CM. it
was peaceful and polite protest which turned out violent spontaneously. The protest was also

25
1 (2015) 3 SCC 467
26
Tehseen S. Poonawalla v Union of India &Anr.

Memorial for The Appellant

 stopped at the initial bu as their freedom of speech and expression by protesting they were
keeping their point as that was the group which affected directly through this amendment.

ISSUE 4: WHETHER THE ARREST AND CRIMINAL CHARGES BROUGHT

AGAINST THE INDIVIDUAL STUDENT AND THE PROFESSOR IS JUSTIFIED?

Rahu’s acts did not amount to abetment of suicide because in cases of alleged abetment of
suicide there must be proof of direct or indirect acts of incitement to the commission of
suicide.

• SohanRaj Sharma vs. State of Haryana27:

10. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and
distinct offence provided in the Act as an offence. A person, abets the doing of a thing when
(1) he instigates any person to do that thing; or (2) engages with one or more other persons in
any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission,
the doing of that thing. These things are essential to complete abetment as a crime. The word
"instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any
thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the
three clauses of Section 107. Section 109 provides that if the act abetted is committed in
consequence of abetment and there is no provision for the punishment of such abetment, then
the offender is to be punished with the punishment provided for the original offence. 'Abetted'
in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of
which a person is charged with the abetment is normally linked with the proved offence

11. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of
incitement to the commission of suicide. The mere fact that the husband treated the deceased-
wife with cruelty is not enough.

The professor’s acts did not amount to abetment of suicide because in cases of alleged
abetment of suicide there must be proof of direct or indirect acts of incitement to the
commission of suicide. Also, as per section 107 of the Pishachu Penal Code which states as
follows:

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AIR2008SC2108

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 “107. Abetment of a thing

A person abets the doing of a thing, who -

First- Instigates any person to do that thing; or
Secondly- Engages with one or more other person or persons in any conspiracy for the doing
of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in
order to the doing of that thing; or
Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing.”
The arrest of professor Bijuye was not justified, as he did not attempt to bring into hatred or
contempt, or excite or attempt to excite disaffection towards, the Government established by
law in India. Thus, no act which would bring the Government established by law in India into
hatred or contempt etc.

• BrijBhushan and Ors. vs. The State of Delhi28:

19. The framers of the Constitution must have therefore found themselves face to face with
the dilemma as to whether the word "sedition" should be used in article 19(2) and if it was to
be used in what sense it was to be used. On the one hand, they must have had before their
mind the very widely accepted view supported by numerous authorities that sedition was
essentially an offence against public tranquillity and was connected in some way or other
with public disorder; and, on the other hand, there was the pronouncement of the Judicial
Committee that sedition as defined in the Indian Penal Code did not necessarily imply any
intention or tendency to incite disorder. In these circumstances, it is not surprising that they
decide not to use the word "sedition" in clause (2) but used the more general words which
cover sedition and everything else which makes sedition such a serious offence. That sedition
does undermine the security of the State is a matter which cannot admit of much doubt. That
it undermines the security of the State usually through the medium of public disorder is also a
matter on which eminent Judges and jurists are agreed. Therefore it is difficult to hold that
public disorder or disturbance of public tranquillity are not matters which undermine the
security of the State.

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AIR1950SC129

Memorial for The Appellant

• Bilal Ahmed Kaloo vs. State of Andhra Pradesh29:
6. The decisive ingredient for establishing the offence of Sedition under Section 124-A, IPC
is the doing of certain acts which would bring the Government established by law in India
into hatred or contempt etc. In this case, there is not even a suggestion that appellant did
anything as against the Government of India or any other Government of the State. The
charge framed against the appellant contains no averment that appellant did anything as
against the Government.

The professor’s acts did not amount to criminal conspiracy because he did not, along with
anyone else, do, or cause to be done, an illegal act, or an act which is not illegal by illegal
means. There was no agreement between the professor and and any other person to commit
any crime.

Also section 120A of the Indian Penal Code(Para meteria to Pisachu’s Laws ) which states as
follows:

“120A. Definition of criminal conspiracy

When two or more persons agree to do, or cause to be done-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the agreement is done by one or more parties to
such agreement in pursuance thereof.

Explanation- It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.]”

• In Halsbury's Laws of England (vide 4th Ed. Vol. 11, page 44, page 58), the English Law as
to conspiracy has been stated thus:
"Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do
a lawful act by unlawful means. It is an indication offence at common law, the punishment
for which is imprisonment or fine or both in the discretion of the Court.

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AIR1997SC3483

Memorial for The Appellant

 The essence of the offence of conspiracy is the fact of combination by agreement. The
agreement may be express or implied, or in part express and in part implied. The conspiracy
arises and the offence is committed as soon as the agreement is made; and the offence
continues to be committed so long as the combination persists, that is until the conspiratorial
agreement is terminated by completion of its performance or by abandonment or frustration
or however, it may be. The actusreus in a conspiracy is the agreement to execute the illegal
conduct, not the execution of it. It is not enough that two or more persons pursued the same
unlawful object at the same time or in the same place; it is necessary to show a meeting of
minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each
conspirator should have been in communication with every other."

• Nazir Khan and Ors. vs. State of Delhi30:

20. As noted above, the essential ingredient of the offence of criminal conspiracy is the
agreement to commit an offence. In a case where the agreement is for accomplishment of an
act which by itself constitutes an offence, then in that event no overt act is necessary to be
proved by the prosecution because in such a situation, criminal conspiracy is established by
proving such an agreement. Where the conspiracy alleged is with regard to commission of a
serious crime of the nature as contemplated in Section 120B read with the proviso to Sub-
section (2) of Section 120A, then in that event mere proof of an agreement between the
accused for commission of such a crime alone is enough to bring about a conviction under
Section 120B and the proof of any overt act by the accused or by any one of them would not
be necessary. The provisions, in such a situation, do not require that each and every person
who is a party to the conspiracy must do some overt act towards the fulfillment of the object
of conspiracy, the essential ingredient being an agreement between the conspirators to
commit the crime and if these requirementsand ingredients are established, the act would fall
within the trapping of the provisions contained in Section 120B.

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AIR2003SC4427

Memorial for The Appellant

 The professor on an individual level, without coming together with anyone else, gave a media
bite supporting the demands of the students. Such an act cannot amount to criminal
conspiracy.

• Kehar Singh and Ors. v. The State31:

Generally, a conspiracy is hatched in secrecy and it may be difficult to adduced direct
evidence of the same. The prosecution will often rely on evidence of acts of various parties to
infer that they were done in reference to their common intention. The prosecution will also
more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by
such evidence direct or circumstantial. But the court must enquire whether the two persons
are independently pursuing the same end or they have come together to the pursuit of the
unlawful object. The former does not render them conspirators, but the latter does. It is,
however, essential that the offence of conspiracy required some kind of physical
manifestation of agreement. The express agreement, however, need not be proved. Nor actual
meeting of the two persons is necessary. Nor it is necessary to prove the actual words of
communication. The evidence as to transmission of thoughts sharing the unlawful design may
be sufficient. Conspiracy can be proved by circumstances and other materials.

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AIR 1988 SC 1883

Memorial for The Appellant

 PRAYER

In the light of issues raised, Arguments Advanced and authorities cited, the
counsel for appellant humbly prays before this Hon’ble Court to kindly adjudge
and declare:

a) that Writ Petition is to be allowed and The impugned amendment

approving 15% reservation for EBC be set aside/quashed being
unconstitutional and arbitrary;

b) To issue writ/order/directions of Mandamus to Kalakriti University and

to all concerned authorities and institutions to revoke the application of
the impugned reservation scheme;

c) The state and local authorities of Alokam to increase the surveillance

facilities, and to constitute special inspection and redressal teams for the
special purpose of solving student problems;

d) That the Professor and students of University are acquitted/discharged

from the alleged charges framed against them; and be reinstated in the
University as per their prior standing;

And pass any other appropriate order as the court may deem fit.

Respectfully Submitted

Sd/-
COUNSEL FOR APPELANT

Memorial for The Appellant