PART A

Question- 1

IN THE SUPREME COURT OF INDIA

( BEFORE….. CJ, INDU MALHOTRA and DY CHANDRACHUD, JJ)

The Friends of Equality............ PETITIONER

Versus

State Of Janstan............. RESPONDENT

DECIDED ON : 23 rd MAY 2022

JUDGMENT:

The Judgment of this Court was delivered by:

…………, CJ.-

1. This petition/ complaint seeks a declaration against the State of Janstan. In

order to appreciate the contentions of counsels appearing for both the parties,
the court must first dive into the facts of the case in hand.

2. The State government of Janstan appointed a committee in order to

determine backwardness of community and the committee submitted it’s
report as a result of which coastal fisherman community were granted
Backward class status and were provided reservations.

3. This led to a large scale protest in the State. The Friends of Equality a society
leading the protest challenged Mr Karan Kumar's appointment in a University
as lecturer based on EWS category when he had over 2 crores amounting in
his bank. A Public Interest Litigation was filed under Article 32 by TFOE
against the State Government and the University.

4. After understanding the background of the case in question, the Court would
now proceed to discuss the major issues which are evident from the case of
The Friends of Equality V/S State of Janstan .It is necessary to adjudicate
upon whether The Public Interest petition filed by the petitioners under
 Article 32 is maintainable or not. The second condition pertains to the fact
Whether classification of coastal fishermen community as backward
class is valid or not?. The third issue in hand is to check the constitutional
validity of 103rd Constitutional Amendment granting 10% reservation to
Econaomically Weaker Sections of the Society. To decide upon the issues
the Articles of the Constitution of India pertaining to reservations and filing of
PIL needs to be discussed.

5. Article 32- This Article deals with the Right to Constitutional Remedies and
affirms the right to approach Supreme Court for enforcement of Fundamental
Rights conferred in Part III of the Constitution.

6. Article 15- Prohibits discrimination on grounds of religion, race, caste, sex or

place of birth.

7. Article 15(4) provides that '' Nothing in this Article or in clause (2) of Article
29 shall prevent the State from making any special laws for advancement of
any socially and educationally backward classes of citizens or for the
Schedule castes and the Scheduled Tribes"

8. Article 16 provides for equality of opportunity in matters of public employment

Article 16(4) states that "Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favor of any backward class of
citizens which, in the opinion of the State, is not adequately represented in the services
under the State"

9. It is now imperative to decide whether the PIL is maintainable or not ? We

know that the Supreme Court has the power to issue directions or writs or
orders to enforce citizens fundamental rights against the State conferred by
Part III of the Constitution
10. The court in 1Bandhua Mukti Morcha V/S Union of India & Ors held
that the letter addressed to Court can be treated as writ petition if the Public
interest is violated at large. Similarly the State of Janstan granting
reservations to the Fishermen community solely based on obsolete data and
on the basis of their caste violates the citizens right to Equality as enshrined
under Article 14 and 15 of the Indian Constitution. Equality between citizens
is the most important feature of the constitution of India. The Constitution
provides various Articles that guarantee a citizen’s right to equality. The apex

1
Bandhua Mukti Morcha v. Union of India & Ors. (1997) 10 SCC 549
 court in Balaji v/s State of Mysore case held that government order reserving
seats solely on the basis of caste, religion and race is void and violative of
Article 15 which states that State can not discriminate against citizens on the
grounds of religion, race, caste, sex or place of birth. The DPSPs cannot
contravene or override Fundamental Rights. Thus the PIL filed by the
petitioner under Article 32 of the Indian Constitution against the order
passed by the State and the University is maintainable

11. Furthermore the court has to adjudicate upon2 Whether the

notification set out by the Union government that set out for an
inclusion of fishermen community in the Central List of Backward
classes is constitutional.

12. The committee’s recommendation was adequately supported by ‘’ acceptable

and good reasons’’. But the court thinks that something more is required in order to
bypass the advice tendered by the commission which would be binding on the Union
Government in ordinary course and a possibility of a different opinion of TFOE wouldn’t
detract from the binding nature of the advice tendered by NCBC

13. This now brings the question of what backwardness as per Article 16(4)
is to the notice of the court and whether the fishermen community can be said
to fall under this category. In order to answer this question we must
understand that

‘’ The Backwardness contemplated by Article 16(4) is social backwardness.

This is implicit in the judgment of Indra Sawhney V/S Union of India.
Educational and economic backwardness may contribute to social
backwardness. But social Backwardness is a distinct concept having its own
components”

14. The Court may therefore have a look at Nalsa Judgment to understand
a social caste as an identifiable strate of the society which may be internally
homogenous ( based on caste) or hetrogenous ( on the basis of gender or
disability). The Court in this case held that Caste can not be a sole criterion for
determining backwardness . Though caste may be distinguishing and
prominent factor in order to determine backwardness of a social group, the
identification of particular group as backward wholly on the basis of caste is
not permissible. Article 15(4) lays down the foundation for action by State to
determine the most deserving strata of the society. The Court thus holds that
new practices, yardsticks and methods must be evolved continuously that
move away from caste centric definition of backwardness.
2
Ram Singh & ors vs uoi
15. 3
The backwardness contemplated in Article 16(4) is social
backwardness as stated by Indra Sawhney. The State can not blind itself to
other forms of backwardness and judge economically Weaker Sections on the
sole basis of caste. The gates of inclusion to EWS would open to weakest
sections. The order passed by the Union Government granting EWS status to
coastal fisherman community stands quashed.

As BR Ambedkar rightly points out-

“ Equality may be a fiction but nonetheless one must accept it as a governing

principle”

16. The court reiterates that outdated statistics could not be used to
establish who the backwards are as there is a presumed notion of
advancement overtime. The fishermen community’s backwardness ought to
be judged not just on the basis of caste but other more evident factors. The
Court now comes to the conclusion that judging by aforesaid standards the
coastal fishermen community’s inclusion in the list of backward classes mainly
if not solely not on the basis of caste is violative of Article 15 of the
constitution. The Court does not agree with the view taken by the Union
Government that coastal fishermen community is entitled to inclusion in the
Central list of Economically Weaker Sections. Thus the grant of OBC status to
the community which does not qualify as backward class when the fishermen
community is in fact politically well organized in States of Mayanstal and Kaniv
is void.

17. The issue which has to be adjudicated upon now is whether the 103rd
constitutional Amendment Act is violative of the basic structure doctrine of the
constitution and affects the equality principle.

18. The Constitutional Amendment Act, 2019 made subsequent changes to

Article 15 and 16 by adding Article 15(6a) and 16(6) which states that nothing
in this Article shall prevent the State from making any provision for any
economically weaker Sections of Citizens. The act empowered the
government to provide 10% maximum reservation for “ economically weaker
sections” of the society. Thus total reservation quota was increased to
59.50%.

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19. The amendment of adding Article 16(6b) and Article 15(6) were made
with the objective of uplifting the economically weaker strata of the society,
who belong to the general category. The amendment is challenged on the
ground that it contravenes the rights bestowed by Part III. The Court thinks
that the amendment enacted by the legislature is an exercise of its power
bestowed upon by Article 368.

20. In Balaji v/s State of Mysore case the court held that Article 16(4) is an
exception to Article 16(1). The State has to manage the interest of
Economically weaker Sections along with the interest of the society as a
whole. Reservation beyond the ceiling limit of 50% is invalid and against the
constitution. In this case the reservation exceeding 68% was struck down
according to Article 15(4) to give medical students admissions and the Court
said that reservations cannot go beyond ceiling limit of 50%. However this
decision was struck down by the parliament by the 81st constitutional
amendment which brought in the carry forward rule.

21. The court in Keswananda Bharti v/s Stae of Kerala case held that no
law can be passed which violates the basic structure of the Constitution .
Hence, the court is of the view that 103rd CAA is created in light of bringing the
Economically Weaker Sections at par with the rest of the society by bringing
Article 15(6) and Article 16(6) to the Indian Constitution

22. The Court in State of Kerala V/S NM Thomas case held that Article
16(1) serves as the foundation of equality and permits classification of
individuals in a manner adjacent to Article 14.

23. The last issue to be adjudicated by the court is Whether SC, STs and
OBCs can be excluded from economic reservations and whether this
would be treated as violative of Fundamental right of equality

24. The value of equality has been emphasized to guarantee that equals
are treated equally and unequals are treated unequally. The exclusion of
OBC, SC and ST from economically weaker strata reservations was done so
that the benefit goes to the poor strata and the creamy layer does not take the
benefit.

Injustice anywhere is a threat to justice everywhere

25. The court is of the view that the 103rd constitutional amendment is valid
but the Court also states that the reservations for the EWS should be made
keeping in mind that the limit should not be arbitrary. Hence, the ceiling limit
has to be kept in mind.

………………..C J.

( INDU MALHOTRA)

………………….J.

( DY. CHANDRACHUD)
PART B
Ques 1
According to Article 14 of the Indian constitution, any law which is
discriminatory in nature has to have an intelligible differentia and
the differentia must have a rational nexus with the object sought
to be achieved. The classification must not a be “ arbitrary”. No
legislation can be “ manifestly arbitrary”. The Supreme Court has
been consistently focusing on the requirements under equal
protection which means no statute can be “ irrational, capricious
or without adequate determining principle.’’
After partition two waves of migration happened from West
Pakistan to India. The first wave started from 1 march 1947 in
which Hindus and Sikhs arrived to India in large numbers. The
second wave happened in 1948 in which large numbers of Muslim
migrating to Pakistan sought to return to India which caused
upheaval because their properties were used to rehabilitate
Hindus and Sikhs migrating to India.
The Indian Government introduced a permit system on 19 July
1948 to immigrants from West Pakistan to India. People who
wanted to settle in India. People who wanted to settle in India
have to take permit for resettlement which was the hardest to
obtain.
After the commencement of Citizenship Amendment Act 2019 a
person born in India after 1 July 1987 but before 3 December
2004 is a citizen of India if one parent of his is a citizen of India,
even if the other parent is an illegal migrant. However those who
are born after 3 December is a citizen if both his parents are
citizens of India. This Act signifies a shift in Indian citizenship law
to jus sanguinis ( citizenship through descent) from jus soli
( citizenship by birth).
The government passed the Citizenship Amendment Act, 2019
which said that minority communities ( Hindu, Parsis, Buddhist,
Sikhs and Christians) who were compelled to seek shelter in India
due to religious persecution and who entered the territory of India
due before 31st December 2014 could not be deported for
entering in India illegally or for overstaying in India.
The court in c case held that the 4West Bengal Special Court Act,
1950 is void on the ground that it violates Article 14 of the
constitution as the Act gives arbitrary, unguided and unlimited
power to State Government which the State could use
unreasonably and in a biased fashion.
A similar thing is happening in this Act. It brings us to the notice
that if citizenship is given on the basis of religion than what about
atheist or agnostics?
CAA is arbitrary not because it applies in favor of Hindu, Buddhist,
Jain, Sikhs but because it leaves other minority religions such as
Jews, Shias, Bahais, atheists and agnostics who may have been
facing persecution on grounds of religion in Pakistan, Bangladesh
or Afghanistan to their own fate. CAA in this respect violates the
ideal principle of Secularism which is an essential feature of
constitutional morality.
The CAA also ignores people facing persecution in other
neighboring countries like Sri Lanka, Nepal, Bhutan. There is an
arbitrary cut off date that people who entered before 31 st
December 2104 have right to citizenship under CAA. Those
facing religious persecutions in subject countries before or after
the date doesn’t have the said right.

4
The State Of West Bengal vs Anwar All Sarkarhabib ... on 11 January, 1952
CAA is arbitrary because if the aim is to grant shelter to Non-
Muslims minorities facing religious persecution In India’s
neighboring countries.
Then why does it matter if such person entered India before or
after 31 December 2014?
The CAA also ignores illegal migrants who entered India due to
non-religious persecution but persecution based on sexual
orientation, race or political views.
In the 5Shyara Bano V/S Union of India case the Court
established a doctrine of Arbitrariness which held that a law can
be declared unconstitutional under Article 14 if the basis on which
it was made is ‘ capricious or arbitrary’. Similarly the Citizenship
Amendment Bill makes an unreasonable and arbitrary
classification violating Article 14 of the Constitution.
The CAA residence requirements have been reduced for above
categories from 11 years to 5 years by naturalization. There is no
intelligible reason to believe why CAA excluded the above
categories and bears no rational nexus with the objective of such
statute. If the objective of CAA is to protect those suffering from
persecution on religious grounds then the exclusion of
persecuted jews, Shias, agnostics bear no rational nexus with the
objective that the act sought to achieve. The exclusion of Bhutan,
Myanmar, Sri Lanka also baffles us.
The Act completely ignores Transgender, orphans and dreamers (
children who were born in India) to illegal migrants or who
migrated to India as infants. These people may not have the
necessary documents to prove their birth or citizenship of their
parents and the CAA is extremely harsh upon these children born

5
Case Comment on Shayara Bano v/s Union of India (2017) 9 SCC 1
in India after July 1987 who may have known India to be their
homeland. It is arbitrary for CAA to deny citizenship by
naturalization or registration to these dreamers.
Thus we can conclude that the Citizenship Amendment Act,
2019 does not pass the constitutional test of non-
arbitrariness and reasonableness as propounded by the
Supreme Court of India. CAA is arbitrarily discriminatory on five
grounds – 1) It excludes groups like jews, Athiests, Shias facing
persecution based on religion in Subject countries.2) It has
adopted arbitrary line of 31st December 2014 3) It excludes other
neighboring countries like Nepal, Bhutan etc. 4) It relaxes
residence requirements by naturalization for some categories only
5) This Act excludes those persecuted for non-religious reasons.

QUES 2
The term ‘ STATE’ refers to the specific authorities which function
within or outside the territorial limits of India and the institutions
considered to be State as mentioned in Part III of the Constitution.
The Court in 6Pradeep Kumar Biswas V/s Indian Institute of
Chemical Biology case held that there is no exact rule that
registered societies which have a connection with the government
are to be considered as State. The court in this case held that
CSIR is an instrumentality of the State and is amenable to writ
jurisdiction under Article 12. The court reversed the Sabhajit
Tiwari case and held that the financial position of CSIR is such
that 70 percent of its funds were provided by the government .
The court held that funds owned by CSIR are in fact owned by
State. CSIR was created by Government to carry the functions of
the State in an organized manner what was originally being done
6
Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002) 5 SCC 111
by Department of Commerce of Central Government. The court
held that CSIR comes under the ambit of Article 12 of the State.
The Court in Zee Telefilms V/S UOI case also followed the
7
Pradeep Hasia judgment and said that BCCI, a society registered
through the provisions of Tamil Nadu registration of Societies Act
is not a State within the scope of Article 12 of the Constitution of
India. The Court held that BCCI is not created by a statute and
the government does not fund its functioning. BCCI enjoys
monopoly status in the field of cricket but that status is not
conferred upon the BCCI by the State. This case was decided by
a majority ratio of 3:2.
Although agreeing with the minority opinion, it was contended that
BCCI is a monopolistic entity which regulates cricket in the
country. BCCI formulates policies pertaining to cricket by
discharging the most nationalistic function of the State in the field
of cricket. Another contention in the favor of BCCI being a State is
that BCCI didn’t go on a tour to Pakistan after Mumbai terror
attacks when the minority of External Affairs put all diplomatic
interactions with the Pakistan on stay. BCCI adhered to the
foreign policies of India which let us to believe that it is a State. If
Ajay Hasia case is to be taken as a precedent it is firmly deduced
that BCCI should be a State body accountable to the State and to
follow State mandated rules and regulations.
According to my personal opinions the State should be interpreted
based on a broad definition. Then only will the true objective of
Fundamental Rights be fulfilled. The functionality test for an
organization to be held State is a very narrow definition as it
allows private bodies and corporations to just prove that the
function being carried out by them is not a public function and

7
Zee Telefilms v UOI (2005) 4 SCC 649
escape their duty and accountability. The Zee Telefilms case is a
perfect instance of how a narrow interpretation of State is used by
BCCI to its advantage despite being State according to Ajay
Hasia case guidelines. BCCI is a monopolistic and powerful
organization and hence there should be certain accountability and
credibility attached to its actions. If provided a choice to choose
between having a narrow interpretation of State which restricts
the availing of Fundamental rights or a broad definition. The latter
should be preferred. It is vital to bring big private entities under
the umbrella of State to increase their accountability or they would
roam scot free. Thus it can be interpreted that big private
corporations must be brought within the ambit of State and must
be subject to State conferred constitutional limits. This can only
be done by expanding the scope of State according to Article 12