A Sample of Moot Court Memo from Animesh Tripathi.

IN

THE

HONBLE SUPREME COURT

UNDER

OF

INDIA
OF INDIA

WRIT PETITION FILED

ARTICLE 32

OF THE

CONSTITUTION

WRIT PETITION NO____2009

RAJASHRI INSTITUTE OF NURSING

Petitioner

v.

STATE OF PEPSU AND

UNION

OF INDIA

Respondents

MEMORANDUM

FOR THE

RESPONDENTS

Table of Contents A Sample of Moot Court Memo from NUJS Kolkata......................................i Index Of Authorities.........................................................................................iv Statutes Referred.........................................................................................iv Constitutions Used.......................................................................................iv LIST OF ABBREVIATIONS...................................................................................v STATEMENT OF JURISDICTION.........................................................................vii Statement of Introduction................................................................................8 Statement of Facts...........................................................................................9 STATEMENT OF ISSUES...................................................................................11 SUMMARY OF PLEADINGS...............................................................................12 Pleadings & Authorities..................................................................................15 1: THE CONSTITUTION (NINETY-THIRD AMENDMENT) 2005 IS NOT UNCONSTITUTIONAL OF THE BASIC STRUCTURE DOCTRINE.......................16 1.1.: Art. 15(5) is not violative of the basic structure of the Constitution. ................................................................................................................. 16 1.2: RESERVATION IN A PRIVATE UNAIDED INSTITUTION IS NOT VIOLATIVE OF THE PROVISIONS OF THE CONSTITUTIONS.........................................25 2: THE PEPSU ACT IS NOT UNCONSTITUTIONAL..........................................26 2.1:REGULATION AND DETERMINATION OF SEATS IN PRIVATE UNAIDED EDUCATIONAL INSTITUTIONS IS NOT UNCONSTITUTIONAL......................27 2.2: Government Seats in a private professional unaided educational institution is not violative of the provisions of the constitution................29 PRAYER...........................................................................................................31

INDEX OF AUTHORITIES
STATUTES REFERRED. 93rd Amendment Act- 2005 CONSTITUTIONS USED Constitution of India-1950.

Cases
; Om Prakash v State of UP, (2004) 3 SCC 402..............................................20 Ajay Hasai v. Khalid Mujib Sehravardi, AIR 1981 SC 487 (499)......................21 Ashok Kumar Thakur v. Union of India 2008 6 SCC 1.....................................17 Hinsa Virodhi Sangh v Mirzapur Moti Kuresh Jamat, (2008) 2 SCC 1..............20 I R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1.........................................16 Indra Swahney v. Union of India, 1992 Supp (3) SCC 217..............................26 Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461...........................15 Krishnan Kakkanath v. Govt. Of Kerala AIR 1997 Sc 128...............................19 M Nagaraj v Union of India, (2006) 8 SCC 212...............................................16 Minerva Mills v. Union of India AIR 1980 SC 1789..........................................16 Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.....................................21 MR Balaji v. State of Mysore, AIR 1963 SC 179..............................................26 Municipal Corpn of the City of Ahmedabad v. Jan Mohd Usmanbhai..............19 Municipal Corporation v Jan Mohmad Usmanbha...........................................20 Narendra Kumar v Union of India, AIR 1960 SC 430.......................................20 P.A. Inamdar v. State of Maharashtra AIR 2005 SC 3226...............................18

PA Inamdar v. State of Maharashtra AIR 2005 SC 3226.................................23 Samir v. State, AIR 1982 SC 66......................................................................21 St. Stephens College v. University of Delhi, (1992) 1 SCC 558,....................26 State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.......................21 TMA Pai Foundation v State of Karnataka AIR 2003 SC 355...........................23 TMA Pai Foundation v. State of Karnataka AIR 2002 8 SC 481.......................18 Union of India v. Hindustan Development Corporation, AIR 1994 SC 988......20

LIST OF ABBREVIATIONS

1. AIR 2. S. 3. Art. 4. SC 5. SCC 6. SCJ 7. Honble 8. Ed. 9. FR 10.DPSP Policy. 11.UOI 12.UP 13.Corpn. 14.Vol 15.p. 16.n.

: All India Reporter. : Section. : Article. : Supreme Court. : Supreme Court Cases. : Supreme Court Journal. : Honourable. : Edition. : Fundamental Rights. : Directive Principles of State : Union of India. : Uttar Pradesh. :Corporation. : Volume :Page : Note.

STATEMENT OF JURISDICTION

THE COUNSEL

FOR THE

RESPONDENTS INDIA

APPEARING ON BEHALF OF THE HONOUR TO

THE STATE OF PEPSU AND

THIS MEMORANDUM FILED UNDER BEFORE THE OF

THE UNION OF INDIA

HONOURABLE THE

HAVE

SUBMIT

SUPREME COURT
OF

OF

IN REPLY TO THE

WRIT PETITION

ARTICLE 32

CONSTITUTION

INDIA,

THUS INVOKING THE ORIGINAL JURISDICTION OF THIS HONOURABLE

COURT. IT

LAYS DOWN THE GROUNDS OF FACT AND THE LAW ON WHICH THIS PETITION MAY BE EXAMINED.

STATEMENT

OF

INTRODUCTION

THE RESPONDENTS HAVE THE HONOUR TO SUBMIT TO THE HONOURABLE SUPREME COURT OF INDIA THIS MEMORANDUM OF RAJASHRI INSTITUTE OF NURSING V. STATE OF PEPSU AND UNION OF INDIA, UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA. IT RESPONDS TO THE GROUNDS OF FACT AND THE LAW, ON THE BASIS OF WHICH THE CLAIMS ARE MADE FOR THE PETITION.

STATEMENT

OF

FACTS

I The State of Pepsu ( a State in the Union of India) notified the Pepsu Unaided Private Professional Educational Institution ( Regulation of Admission and Fixation of fee) Act notified and passed it on the 24th of September, 2006. It aimed at regulating fees and admissions in private unaided professional institutions provided for reservations for persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. II The Pepsu Act provided that seats in such educational institutions would be divided into Reserved seats, Government seats and Management Seats. The quantum of reservation and method of counselling was decided to be fixed according to a consensus reached between the State and the Association of Institutions.

III In 2007, the percentage of seats under various categories was decided through consensus. The quantum of Government, Management and Reserved seats was 34%, 33% and 33% respectively. Further, the Common Entrance Exam was to be conducted by the State. The state government was to forward the names of the eligible students to the University and then University would in turn pass it to the affiliated college so that it makes admissions in accordance with the list. IV

10 In the admission process for 2008 09 , a dispute arose between a private engineering college St. Luke and State Government that the former had flouted merit norms and admitted people from outside the list forwarded to it. St. Luke approached the High Court of Pepsu challenging the act (mentioned above) pertaining to seat sharing and reservation. The High Court of Pepsu disposed of the appeal by rejecting the contention put up by the college that the statute ran contrary to the ruling in P.A. Inamdar case. However, it was upheld by the Supreme Court. V Aggrieved by the unreasonable provisions of the Pepsu Act, Rajashri Institute of Nursing filed a writ petition under Article 32 contending that the Pepsu Act is unconstitutional. The prime issue of the writ petition was the conflict between P.A. Inamdar and Ashok Kumar Thakur with respect to the issue of consensus for arriving at a seat sharing quota. Further, the petitioner challenged the constitutionality of the Constitution (Ninety Third Amendment) Act, 2005.

11

STATEMENT OF ISSUES

1- WHETHER THE CONSTITUTION (NINETY-THIRD AMENDMENT) 2005 IS VIOLATIVE OF THE BASIC STRUCTURE DOCTRINE?

2- WHETHER RESERVATIONS IN PRIVATE UNAIDED EDUCATIONAL INSTITUTIONS AND ART. 15(5) IS VIOLATIVE OF THE PROVISIONS OF THE CONSTITUTION?

12

SUMMARY OF PLEADINGS.
1: THE CONSTITUIONAL (NINETY-THIRD AMENDMENT) 2005 IS NOT VIOLATIVE OF THE BASIC STRUCTURE DOCTRINE. Clause (5) of Art.15 reads: Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially or educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30 1.1.1: Art. 15(5) is not violative of the basic structure of the constitution. The counsel for the respondent contends that the basic structure limit on the power of amendment was declared in the case of Kesavananda Bharati v. State of Kerala. It has since been clarified that it is not an amendment of a particular article but an Amendment that adversely affects or destroys the wider principles of the such as democracy, secularism, equality or republicanism or the one that changes the identity of the Constitution is impermissible. In the case of Ashok Kumar Thakur v. Union of India, the honourable Supreme Court held that, if any Constitutional amendment is made which moderately abridges or alters the equality principle or the principles under Article 19(1)(g), it cannot be said that it violates the basic structure of the Constitution. If such a principle is accepted, the Constitution would not be able to adapt itself to the changing conditions of a dynamic human society

13 1.1.2: Reasonable Restrictions imposed under Art. 19(6) apply to the present amendment. Under Art 19(6) of the Constitution, the state is not prevented from making any law imposing, in the interest of the general public, reasonable restriction on the exercise of the rights provided for under Art. 19(1) (g). Restriction on a trade, occupation or business is unreasonable if it is arbitrary or drastic and has no relation to, or goes much in excess of, the objective of the law which seeks to impose it. In the context of Art. 15(5) abridging the provisions under Art. 19(1) (g), the counsel would like to content that these are reasonable restrictions imposed on Art. 19(1) (g) and they are made in the interest of the general public.

1.3: The 93rd Amendment is in furtherance of the Directive Principles of State Policy enshrined in Part IV of the Constitution. The Articles contained in the Directive Principles of State Policy contain certain directives which it shall be the duty of the States to follow both in matters of administration as well as in the making of the laws. They embody the aims and objects of the State under the republication of the Constitution. The 93rd Amendment and the subsequent Pepsu Act is in accordance with Art 37, 41, 45 and 46 of the Directive Principles of State policy and not in an arbitrary, unconstitutional manner. Thus the 93rd Amendment is valid and not unconstitutional as it is drafted keeping the spirit of the constitution in mind. 1.2.1: RESERVATION IN A PRIVATE UNAIDED INSTITUTION IS NOT VIOLATIVE OF THE PROVISIONS OF THE CONSTITUTIONS The principle of equality contained among others in Articles 14, 15(1) and 29(2) required that all admissions to educational institutions must be made only on the basis of merit.

14 In TMA Pai Foundation v State of Karnataka, the 6 judge majority bench held that unaided educational institutions could admit students free of Government interference as long as their admission process was fare, transparent and merit based. Although the State cannot control the admission procedure in aprivate unaided institution, if the State had reason to believe that merit norms were being flouted, it could regulate the admission into these institutions so as to ensure that the admission procedure is on a transparent basis and merit is taken care of. 2.1:REGULATION AND DETERMINATION OF SEATS IN PRIVATE UNAIDED EDUCATIONAL INSTITUTIONS IS NOT UNCONSTITUTIONAL. 2.1.1: The special interest of the State in professional education warrants regulation as imposed by the Pepsu Act. In the case of PA Inamdar v. State of Maharashtra, the court drew a distinction between , a unaided minority educational institution of the level of schools and undergraduate colleges on one side and the institutions of higher education, in particular, those imparting professional education on the other side. In the former, the scope for merit based selection is practically nil and hence may not call for regulation. But in the case of latter, transparency and merit have to be unavoidably taken care of and cannot be compromised. There could be regulatory measures by the State for ensuring educational standards and maintaining excellence thereof. 2.1.2: Government can interfere in the admission procedure of an unaided institution to ensure that merit norms are followed. In the Pepsu Act, 2006, a consensus was arrived at between the Association of colleges and the Government regarding seat sharing. In order to ensure that admission is given on the basis of merit, the State can interfere into the admission procedure even of a unaided private institution and conduct a Common Entrance Exam. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying

15 utmost credibility and expertise in the matter and the State Government falls under such a catagorie. This procedure would better ensure the fulfillment of twin objects of transparency and merit. 2.2: Government Seats in a private professional unaided educational institution is not violative of the provisions of the constitution. In the instant case, the 33% reservation of seats for Scheduled Castes, Scheduled Tribes and Other Backward Classes has been justified in a plethora of judicial decisions. These landmark judicial decisions read along with Article 14 of the Constitution justify the need for a private unaided educational institution to reserve seats for the backward sections of the Society. The 34% Government Seats can be justified as an affirmative action of the government to ensure that students get admission on the basis of merit and not in an arbitrary unconstitutional manner.nThe 33% Management seats come into being by virtue of it being a private unaided institution which can decide its own admission procedure according to the decision given in PA Inamdar v. Union of India which allows a private unaided institution to admit students according to their own fair method of admission.

PLEADINGS & AUTHORITIES

16

1: THE CONSTITUTION (NINETY-THIRD AMENDMENT) 2005 IS NOT

UNCONSTITUTIONAL OF THE BASIC STRUCTURE DOCTRINE.

Clause (5) of Art.15 reads: Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially or educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.1 There are three operative parts to this amendment that attract judicial attention: 1- The part of the provision that excludes the operation of Art.19(1)(g) 2- Inclusion of Unaided, Private Educational Institutions: the part of the provision that makes it applicable to unaided, private educational institutions. 3- Exclusion of Minority Educational Institutions: The part of the provision that negates its applicability with regard to minority education institutions.

1.1.: Art. 15(5) is not violative of the basic structure of the Constitution. The counsel for the respondent submits that the Supreme Court drew the basic structure limit on the power of amendment in the case of

Added by the constitutional (Ninety- third Amendment) Act, 2005, S. 2 (w.e.f. 20-1-2006)

17 Kesavananda Bharati v. State of Kerala.2 Ever since then, it has been trying to formulate a precise test that could guide the amending body as well as the courts if an amendment is consistent with the basic structure or crosses that limit. In Nagaraj,3 the Court has tried to formulate a general test for determining whether an amendment is against the basic structure of the Constitution. The courts held that In the matter of application of the principle of basic structure, the Court held that twin tests have to be satisfied, namely, the width test and the test of identity.4 Relying upon the decision given in Kesavananda Bharti v. Union of India 5it has been clarified that it is not an amendment of a particular article but an Amendment that adversely affects or destroys the wider principles of the such as democracy, secularism, equality or republicanism or the one that changes the identity of the Constitution is impermissible. The counsel for the respondent humbly submits the judicial decisions pertaining to the abrogation of the rights guaranteed in the constitution. The Supreme Court declared in Minerva Mills v. Union of India6 The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution.7 But Justice Bhagwati in the very same judgement also held that in case a law infringes the rights guaranteed under articles 14, 19 and 21, the nature of the right infringed, the depth and extent of the infringement and the purpose for which the infringement was made has to be taken into notice.8 If the court is satisfied that it complies with the abovementioned
2

Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461. M Nagaraj v Union of India, (2006) 8 SCC 212 4 (2006) 8 SCC 212 5 AIR 1973 SC 1461. 6 Minerva Mills v. Union of India, AIR 1980 SC 1789. 7 (2007) 2 SCC 1 at 108. 8 Minerva Mills v. Union of India AIR 1980 SC 1789
3

18 conditions, it cannot be challenged on the grounds that it abridges any right under Art. 14,19 or 21. Again, in the case of I R. Coelho v. State of Tamil Nadu9 the Supreme Court further affirmed the principle laid down in Minerva Mills v. Union of India10 by stating that A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. In the case of Ashok Kumar Thakur v. Union of India11 the honourable Supreme Court held that, if any Constitutional amendment is made which moderately abridges or alters the equality principle or the principles under Article 19(1)(g), it cannot be said that it violates the basic structure of the Constitution. If such a principle is accepted, the Constitution would not be able to adapt itself to the changing conditions of a dynamic human society. As has been previously held when a constitutional provision is interpreted, the cardinal rule is to look to the Preamble to the guiding star and the Directive Principles of State Policy as the 'Book of Interpretation'. Preamble embodies the hopes and aspirations of the people and Directive Principles set out the proximate grounds in the governance of this country. In context of the present case, the counsel contends that although 15(5) as added by the 93rd Amendment abrogate the provisions of Art.19(1)(g) the courts have to consider: 1- The nature of the right infringed 2- The purpose for the infringement. 3- The nature and depth of the infringement. 4- The Directive Principles of State Policy.
9

I R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1 Minerva Mills v. Union of India AIR 1980 SC 1789 11 Ashok Kumar Thakur v. Union of India 2008 6 SCC 1.
10

19

Art. 19(1)(g) states that, All citizens shall have the right to practice any profession, or to carry on any occupation, trade or business. However, every aspect of Art. 19 is not equally important or essential for guaranteeing freedom to the citizens. This can be clearly seen from the fact that the 44th Constitutional Amendment (1978) deleted Right to Property which was originally part of Art. 19 i.e. Art. 19(1)(f)12 and made it a legal right under Art. 300A. in the case of property rights, the courts did not think that exclusion of property rights from Art. 19 was in any way vioaltive of the basic structure doctrine.

Taking into account the 93rd Amendment, the amendment does not abrogate the right to occupation or any other right in Article 19(1) (g). Nor does it remove or narrow down the newly recognized right to run educational institutions as occupation. It does not even amend the provision for restrictions that may be imposed on the right to occupation under Article 19(6). It simply clarifies or at the most removes a not essentially required interpretation given to the newly recognized right to occupation to run educational institutions under Article 19(1) (g). The clarification is in no way anything more than overruling Courts interpretation in the cases of TMA Pai Foundation v. State of Karnataka13 and P.A. Inamdar v. State of Maharashtra14 so as to bring it in harmony with the rest of the Constitution and its clearly stated provisions. In light of the abovementioned submission, the counsel humbly submits that the insertion of Art. 15(5) is in no way violative of the Basic Structure Doctrine and the Amendment cannot be challenged on this ground.

Claus (f) on to acquire, hold, dispose of property; and omitted by Constitution (Forty-fourth Amendment) Act, 1978, S.2 (w.e.f. 20-6-1979) 13 TMA Pai Foundation v. State of Karnataka AIR 2002 8 SC 481 14 P.A. Inamdar v. State of Maharashtra AIR 2005 SC 3226

12

20 1.1.1: Reasonable Restrictions imposed under Art. 19(6) apply to the present amendment. Art 19(1) (g)15 guarantees to all its citizens the right to practice any profession, or to carry on any occupation, trade or business. Under Art 19(6) however, the state is not prevented from making any law imposing, in the interest of the general public, reasonable restriction on the exercise of the above mentioned right. Nor is the state prevented from making 1- Any law relating to professional or technical qualifications necessary for practising a profession or carrying on any occupation, trade or business 2- A law relating to the carrying on by the state, or by the corporation owned or controlled by it, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. Reasonableness of a restriction has to be tested both from a procedural as well as a substantive aspect of law. Restriction on a trade, occupation or business is unreasonable if it is arbitrary or drastic and has no relation to, or goes much in excess of, the objective of the law which seeks to impose it. In the case of Krishnan Kakkanath v. Govt. Of Kerala16 the courts explained the concept of reasonableness. The learned judge stated that, The reasonableness of restriction is to be determined in an objective manner and from standpoint of the interest of the general public and not from the standpoint of the person upon whom the restriction is imposed. A restriction cannot be said to be reasonable because in a given case, it operates harshly. In determining the infringement of a right guaranteed under 19(1) (g), the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the
15 In TMA Pai Foundation v. State of Karnataka (2002) 8 SCC 481; the courts held that imparting of education could be considered as an occupation under Article 19(1)(g) 16 Krishnan Kakkanath v. Govt. Of Kerala AIR 1997 Sc 128 at 135

21 imposition, the prevailing conditions at that time, enter into judicial verdict. Equality must be both formal and egalitarian. Any restriction that promotes egalitarian equality promotes is a restriction within the meaning of Art.19 (6). Art.14, 15 and 16 seek to protect and reaffirm substantial or egalitarian equality. This policy of affirmative action is in furtherance of the State's obligation to ensure equality among the masses. Taking into consideration the different provisions under Art. 19, (a) to (c) are subject to reasonable restrictions only on specified grounds, rights in sub-clauses (d) and (e) are subject to reasonable restrictions in the interests of the general public as well as for the protection of the interests of any Scheduled Tribe. Finally, the rights in sub-clause (g) are not only subject to reasonable restrictions in the interest of the general public17 but they are subject to any law that may provide for (i) the professional or technical qualifications necessary for the exercise of these rights and (ii) complete or partial monopoly in favour of the state in respect of any of the activities covered by that clause.18 Thus not only reasonable restrictions can be imposed on any of the rights in Article 19(1) (g) on the specious ground of general public interest but their exercise in private hands can also be completely denied by creating monopoly in favour of the state or any corporation owned or controlled by the state.19 A reasonable restriction under Article 19(6) also includes total prohibition of any activity guaranteed in Article 19(1) (g).20 Further, in several cases the Court has also held that rights in respect of economic activities such as business or property do not stand on the same footing as for example the right to life or freedom of speech.
17

21

A law providing for basic amenities; for the dignity of human life is said to be in the interest of the general public. Municipal Corpn of the City of Ahmedabad v. Jan Mohd Usmanbhai, (1986) 3 SCC 20,31 18 See MP Singh, VN Shukla Constitution of India, 78 (2001). 19 See e.g., State of Gujarat v Shri Ambica Mills, AIR 1974 SC 1300 and RK Garg v UOI, AIR 1981 SC 2138 20 Narendra Kumar v Union of India, AIR 1960 SC 430; Municipal Corporation v Jan Mohmad Usmanbhai; Om Prakash v State of UP, (2004) 3 SCC 402 and Hinsa Virodhi Sangh v Mirzapur Moti Kuresh Jamat, (2008) 2 SCC 1. 21 See e.g., State of Gujarat v Shri Ambica Mills, AIR 1974 SC 1300 and RK Garg v UOI, AIR 1981 SC 2138

22

In the context of Art. 15(5) abridging the provisions under Art. 19(1) (g), the counsel would like to content that these are reasonable restrictions imposed on Art. 19(1) (g) and they are made in the interest of the general public.22 This policy is the affirmative action of the legislature in furtherance of its obligations to provide education to all its citizens. It must be taken into consideration the objective of the law that seeks to impose these restrictions. In the present case, the objective of the 93rd Amendment and the corresponding Pepsu Act is to provide education to its citizens and ensure that the masses are able to attain quality education without be subject to inequality and injustice. This restriction is necessary for the State to monitor the admission procedure in unaided private educational institutions and ensure that admission is done on the basis of merit and that it is only meritorious students get admission into these educational institutions. In light of the arguments advanced with regard to the above mentioned issue, the counsel Submits that the restrictions imposed by the 93rd Amendment on Art. 19(1) (g) of the constitution in nature and are done for the interest of the general public.

1.1.2: The 93rd Amendment is in furtherance of the Directive Principles of State Policy enshrined in Part IV of the Constitution. The Articles contained in the Directive Principles of State Policy contain certain directives which it shall be the duty of the States to follow both in matters of administration as well as in the making of the laws. They embody the aims and objects of the State under the republication of the

22 A law providing for basic amenities; for the dignity of human life is said to be in the interest of the general public. Municipal Corpn of the City of Ahmedabad v. Jan Mohd Usmanbhai, (1986) 3 SCC 20,31

23 Constitution.23 They are basically guideline that the State has to follow while drafting its legislations. Art. 37 of the Constitution thus reads, The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. This article basically states that although the Directive Principles are not enforeseeable by a court of law, it is the duty of the State to apply these principles while drafting its legislations. Art. 41 of the constitution states that, The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. However, the duty of the State is not to establish educational institutions but also to effectively secure the right to education, by admitting students to the seats available at such institutions and by admitting candidates found eligible according to some rational principle.24 Even though this is not a fundamental right, once the State by legislative action, provides facilities for education, its actions must conform to a standard of equity and rationality.25 Finally, Art. 46 of the Constitution says, The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.26 The Government of Pepsu, while drafting the Pepsu Unaided Private Professional Educational Institution (Regulation of Admission and Fixation
23 24 25 26

Union of India v. Hindustan Development Corporation, AIR 1994 SC 988 Samir v. State, AIR 1982 SC 66 (para 12); Mohini Jain v. State of Karnataka, AIR 1992 SC 1858. Ajay Hasai v. Khalid Mujib Sehravardi, AIR 1981 SC 487 (499) Referred to in State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.

24 of Fee) Act, 2006 has kept these very provisions of the constitution in mind. In accordance with the same, the abovementioned act, 1- Allows the Government to look into the admission procedure of the private unaided educational institutions thus ensuring that students get admission based on merit and the right to education of the citizens of the State is maintained. In doing so, the State conforms to a standard of equity and rationality and equity. 2- Allows the Government to provide for seats for the weaker sections of the society, in particular the SCs and the STs thus promoting their educational interest. To conclude, the counsel would like to content that that 93rd Amendment and the subsequent Legislation passed by the Government of the State of Pepsu has acted according to the provisions of the Constitution enshrined in the Directive Principles of State Policy and not in an arbitrary, unconstitutional manner. Thus the 93rd Amendment is valid and not unconstitutional as it is drafted keeping the spirit of the constitution in mind.

25

1.2: RESERVATION IN A PRIVATE UNAIDED INSTITUTION IS NOT VIOLATIVE OF THE PROVISIONS OF THE CONSTITUTIONS The principle of equality contained among others in Articles 14, 15(1) and 29(2) required that all admissions to educational institutions must be made only on the basis of merit.

In TMA Pai Foundation v State of Karnataka27. the 6 judge majority bench (reading art 29 and 30) harmoniously held that unaided educational institutions could admit students free of Government interference as long as their admission process was fare, transparent and merit based. To futher reiterate this point, the Supreme Court in PA Inamdar v. State of Maharashtra28 said that, the right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for
27 28

TMA Pai Foundation v State of Karnataka AIR 2003 SC 355 PA Inamdar v. State of Maharashtra AIR 2005 SC 3226

26 ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. Through these two landmark judgements, the Supreme Court established that the State cannot control the admission procedure in a private unaided educational institution. However, if the State had reason to believe that merit norms were being flouted, it could regulate the admission into these institutions so as to ensure that the admission procedure is on a transparent basis and merit is taken care of. In the instant case, the Pepsu Act calls for a consensus between the management of the unaided private educational institutions and the Government. In accordance to this consensus, the State Government would hold a common entrance exam and subsequently forward a list of the merit students to the colleges, in accordance to which the colleges were supposed to give admission. All that the State Government is trying to do is ensure that merit norms are not flouted and that the admission procedure is transparent. This cannot be regarded as excessive legislation as the State Government is acting according to the provisions of the Constitution as enshrined in the Directive Principles of State Policy as well as the decision of the apex court as declared in the judgements of TMA Pai29 and PA Inamdar.30

2: THE PEPSU ACT IS NOT UNCONSTITUTIONAL

The Governor of the State of Pepsu notified the Pepsu Unaided Private Professional Educational Institution (Regulation of Admission and Fixation of fee) Act, 2006 as passed by the Pepsu State legislature and assented to by the Governor. This act aimed at: 1- Regulating the admission and determining the Fee structure in professional educational institutions in the State of Pepsu.
29 30

TMA Pai Foundation v State of Karnataka AIR 2003 SC 355, PA Inamdar v. State of Maharashtra AIR 2005 SC 3226

27 2- Providing reservation of seats for persons belonging to Schedule Caste, Schedule Tribes and Other Backward Classes in the Seats in Professional Educational Institutions. 2.1:REGULATION AND DETERMINATION OF SEATS IN PRIVATE UNAIDED EDUCATIONAL INSTITUTIONS IS NOT UNCONSTITUTIONAL.

2.1.1: The special interest of the State in professional education warrants regulation as imposed by the Pepsu Act.

In the case of PA Inamdar v. State of Maharashtra31, the court drew a distinction between , a unaided minority educational institution of the level of schools and undergraduate colleges on one side and the institutions of higher education, in particular, those imparting professional education on the other side. In the former, the scope for merit based selection is practically nil and hence may not call for regulation. But in the case of latter, transparency and merit have to be unavoidably taken care of and cannot be compromised. There could be regulatory measures by the State for ensuring educational standards and maintaining excellence thereof. The Supreme Court went on to say that education aimed at imparting professional or technical qualifications stand on a different footing from other educational instruction and that graduate level study is a doorway to admissions in educational institutions imparting professional or technical or other higher education and, therefore, at that level, the considerations akin to those relevant for professional or technical educational institutions step in and become relevant. The counsel contends that higher education, especially graduate level technical education cannot be imparted by any institution unless recognized by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or the like.
31

PA Inamdar v. State of Maharashtra AIR 2005 SC 3226

28 Excellence in education and maintenance of high standards at this level are a must. To fulfill these objectives, the State can and rather must, in national interest, step in. 2.1.2: Government can interfere in the admission procedure of an unaided institution to ensure that merit norms are followed.

In the Pepsu Unaided Private Professional Educational Institution (Regulation of Admission and Fixation of fee) Act, 2006, a consensus was arrived at between the Association of colleges and the Government regarding seat sharing and counseling. Accordingly, it was decided that the Government would regulate the admission by conducting a common entrance test and forwarding a list of eligible students to the concerned university. This counsel humbly submits that this act of the State Government is not unconstitutional and is in accordance with the decision given in the case of P.A Inamdar v. State of Maharashatra.32 The counsel for the respondent humbly submits that, unaided professional educational institutions are entitled to autonomy in their administration as long as they do not forego or discard the principles of merit. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies. In order to ensure such a merit, the State can interfere into the admission procedure even of a unaided private institution and conduct a Common Entrance Exam. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter and the State Government falls under such a catagorie. This procedure would better ensure the fulfillment of twin objects of
32

P.A Inamdar v. State of Maharashatra AIR 2005 SC 3226

29 transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen..

2.2: Government Seats in a private professional unaided educational institution is not violative of the provisions of the constitution.

The honourable Supreme Court in the case of PA Imandar v. State of Maharashtra33 held that, In context of professional education, the number of seats available in government and government-aided colleges is very small, compared to the number of persons seeking admission to the medical and engineering colleges. all those eligible and deserving candidates who could not be accommodated in government colleges would stand deprived of professional education. This void in the field of medical and technical education has been filled by institutions that are established without the aid of the government. The object of establishing such an institution has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture. In order that this intention is meaningful, the institution must be recognized by the Government. In the instant case, the seats in an unaided educational institution are distributed as follows, Government seats - 34%, Management seats -33%, Reserved seats 33%.
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PA Imandar v. State of Maharashtra AIR 2005 SC 3226

30 The 33% reservation of seats for Scheduled Castes, Scheduled Tribes and Other Backward Classes has been justified in a plethora of judicial decisions.34 These landmark judicial decisions read along with Article 1435 of the Constitution justify the need for a private unaided educational institution to reserve seats for the backward sections of the Society. The 34% Government Seats can be justified as an affirmative action of the government to ensure that students get admission on the basis of merit and not in an arbitrary unconstitutional manner. The 33% Management seats come into being by virtue of it being a private unaided institution which can decide its own admission procedure according to the decision given in PA Inamdar v. Union of India36 which allows a private unaided institution to admit students according to their own fair method of admission. In light of the above presented arguments, the counsel for the respondent contents that the 34% Government Seats in the private unaided professional institution is neither arbitrary not unconstitutional and it is in fact necessary in order to ensure that students get admission on the basis of merit.

Indra Swahney v. Union of India, 1992 Supp (3) SCC 217, Mohini Jain v. State of Karnataka, (1992) 3 SCC 666, St. Stephens College v. University of Delhi, (1992) 1 SCC 558, MR Balaji v. State of Mysore, AIR 1963 SC 179. 35 Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 36 AIR 2005 SC 3226

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PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the respondent humbly prays that the Honble Court be pleased to adjudge, hold and declare that:
1- The 93rd Amendment is not violative of the Basic Structure of the

Constitution and hence is valid.

2- The Pepsu Act is within Constitutional vires in all its aspects

including the institution of reservations and government seats in private unaided educational institutions.

And pass any order that this Honble court may deem fit in the interest of equity, justice and good conscience

And for this act of kindness, the counsel for the respondent shall duty bound forever pray.

Sd/-

32 (counse l for the respondent)