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Challenging the Constitutionality
of Reservation Laws and
Amendments in Indica
Maintainability of the Present Petition
The Petitioners' Submissions
The petition filed by Dr. R.M. Swain has been transferred to the Hon'ble Supreme Court under Article 139A of the Constitution of Indica.
The petitions filed by Mrs. Fatima Ghansari and Wrongrace Party have been clubbed by the Hon'ble Supreme Court.
The Petitioners submit that the 33% reservation law is discriminatory in nature and violative of the basic structure of the Constitution.
The Petitioners further submit that the laws in question are anti-secular and violate the Fundamental Rights enshrined under the Constitution.
Whether the Law Providing for 33%
Reservation to Women in the Parliament and
the Amendment to Article 19(2) are Arbitrary
and Violative of the Concept of Equality?
Reservation of Seats for Women is Arbitrary in Nature
The 33% reservation law for women in the Parliament is arbitrary as it does not have any reasonable classification or nexus with the object sought to be achieved.
The reservation law creates an unreasonable classification between men and women, which is violative of the principle of equality under Article 14 of the Constitution.
The law fails to address the real issues faced by women in the country and instead provides reservation benefits to the elite class of women, thereby defeating the purpose of achieving substantive equality.
The Amendment to Article 19(2) is Arbitrary and Violative
of Article 14
The amendment to Article 19(2) empowering women to express themselves freely is arbitrary as it creates an unreasonable classification between men and women.
The amendment is violative of Article 14 as it does not have any reasonable nexus with the object sought to be achieved, i.e., empowering women.
The amendment grants a disproportionate and unreasonable restriction on the fundamental right to freedom of speech and expression under Article 19(1)(a).
Whether the Constitutional Amendment to
Article 19(2) Violates the Basic Structure of
the Constitution?
The power to amend the Constitution under Article 368 does not extend to the basic structure of the Constitution.
The amendment to Article 19(2) alters the basic feature of the Constitution, i.e., the fundamental right to freedom of speech and expression, and therefore, violates the basic structure.
The amendment creates an unreasonable classification between men and women, which is antithetical to the principle of equality, a basic feature of the Constitution.
Whether Legislating the Law Providing 33%
Reservation to Women in Parliament and the
Amendment to Article 19(2) Smacks of Some
Ulterior Religious Motives, and if so, Do They
Violate Secular Principles and Can They be
Challenged on this Ground?
The Law and Amending Power Smacks of Anti-Secular
Motive through Hate Speeches
The 33% reservation law and the amendment to Article 19(2) have been used as a tool to propagate hate speeches against the minority community, thereby violating the secular principles enshrined in the Constitution.
The laws have been enacted with the ulterior motive of making Indica a Hindu state, which is antithetical to the secular character of the Constitution.
Sting Operation Proves the Propagation of Hindu Agenda
The sting operation "Zebra Post" reveals the collusion between the ruling party and the media houses to run a Hindu agenda under the garb of the 33% reservation law and the amendment to Article 19(2).
Whether the Arrest of the Three Ladies was
Legally Valid?
The Arrest of the Three Ladies was Legally Valid
The Petitioners submit that the arrest of the three ladies, i.e., Mrs. Garima Dhall, Mrs. Yamini Paul, and Mrs. Mannat Raichandani, by the Intelligence Agency of Indica on the grounds of spying for and providing vital state secrets to the enemy country is legally valid.
The Petitioners contend that the arrest was made based on credible evidence, and therefore, it does not violate the constitutional rights of the ladies.
The Right under Article 21 of the Ladies are not Infringed
The Petitioners submit that the arrest of the three ladies does not infringe their right to life and personal liberty under Article 21 of the Constitution, as the arrest was made in accordance with the due process of law.
The Petitioners argue that the ladies' right under Article 21 has not been violated, as the arrest was made based on valid grounds and the ladies have been provided with all the necessary legal safeguards.
Arguments Advanced
I. Whether the Present Case is Maintainable Before the
Hon'ble Court?
The PIL filed by R.M. Swain is maintainable : Dr. R.M. Swain is a bona-fide public-spirited citizen who has filed a PIL, praying for declaring the law on reservation to be unconstitutional. The jurisdiction of the court can be invoked by the petitioner, a public- spirited citizen, for the enforcement of the interest of the aggrieved class of men, as the interest of the males in the society is compromised by the introduction of these laws. The laws are discriminatory in nature, wherein the discrimination is solely based on sex, thereby violating the right to equality of the men in the society. Such discrimination is against the rule of law, which comprises equality of law and is a basic feature that permeates the whole of the constitutional fabric.
Any law that is against the rule of law can be challenged by a member of the public by filing a writ petition, and it is the constitutional duty of the court to adjudicate upon the validity of such laws.
The PIL of Mrs. Fatima Ghansari is maintainable :
Mrs. Fatima Ghansari, an independent member of the Parliament, has filed the PIL before this Hon'ble Court, praying for the declaration of the law on reservation and amendment to Art.19(2) as unconstitutional, as well as for protection as a Whistle Blower. Though the petition also seeks the redressal of her personal grievances, the Court, in furtherance of Public Interest, shall treat it as a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. The laws are anti-secular in nature, as they lead to communal disharmony and have pushed the State towards religious extremism, thereby violating the principles of Democracy and Secularism, as well as the Fundamental Right of the minorities under Art.25.
Mrs. Ghansari, being a representative of the minority community, has the locus standi to represent the disadvantaged section, as it is the duty of the State to preserve communal harmony, and the actions of the State have infringed the freedom of religion under Art.25.
The PIL filed by Wrongrace Party is maintainable :
The "Wrongrace Party" constitutes the Opposition Party and has approached the court under Art.32 of the Constitution by filing a PIL. A political party is a legal person and can file a petition representing the aggrieved disadvantaged communities for public interest, on violation of their fundamental rights. In the present matter, the security and sovereignty of the nation is also endangered, as the laws are passed under foreign influence, which is against the sovereignty of the nation. Sovereignty constitutes the Basic Structure, and when any law is violative of the Basic Structure, the locus standi of the petitioner arises.
Therefore, it is humbly submitted that the PILs filed by the three petitioners shall be held maintainable, as the laws passed by the State violate the Fundamental Rights of the citizens, along with the violation of the Basic Structure of the Constitution.
II. Whether the Law Providing for 33% Reservation to
Women in the Parliament and the Amendment to Article
19(2) are Arbitrary and Violative of the Concept of
Equality?
Reservation of Seats for Women is Arbitrary in Nature : Art.15(3) provides a special power to the State to make special laws for women and children, and even though the law may be discriminatory and based on sex, violating Art.15(1), such law shall be intra-vires to the Constitution.
However, in the case of reservation for women, the reservation which is protected under Art.15(3) should be Horizontal in nature within the quota.
A Parliamentary Committee Report stated that the quota will only help elite women who are proxy of powerful men, and therefore, there is no need for reservation for women in the Legislatures.
During the Constituent Assembly deliberations, it was submitted that reservation of seats for women would lead to questioning of the competencies of the women parliamentarians, and there are already women members in the parliament through their merit and capability, so there is no requirement of reservation of seats particularly for women.
Therefore, any law making separate reservation for women should be declared arbitrary and violative of Article 14, and such an arbitrary law should be struck down on the grounds of arbitrariness.
Amendment to Article 19(2)
The Amendment to Article 19(2) introduced a proviso providing only a few reasonable restrictions to the freedom of speech and expression for women.
The special proviso in the form of an amendment is discriminatory in nature as it provides excessive rights to the women, which are against the right to equality of men, as they are subjected to more grounds of reasonable restrictions on freedom of speech and expression.
Such discrimination in favor of women is not required because freedom of speech is allowed to all citizens without any discrimination.
In Minerva Mills Ltd. v. UOI, it was held that fundamental rights are subject to reasonable restrictions to protect the rights of the citizens. The proviso should not be allowed to encroach upon the right to equality of the other citizens of the country.
Chandrachud J. had enlisted "equality of opportunity and status" as one of the fundamental elements of the basic structure. The Hon'ble Apex Court held that a constitutional amendment would be liable to be declared invalid to the extent to which it damages or destroys the basic structure of the Constitution by according protection against violation of any particular fundamental right.
The amendment providing special provision to women is unreasonable and violative of fundamental rights of the citizens and has no nexus with the object of Article 15(3). Thus, the law is discriminatory in nature, as it provides undue advantage to the women, and on the grounds of arbitrariness, it should be held unconstitutional.
Violation of the Basic Structure of the Constitution
The Constitutional Amendment to Article 19(2) violates the Basic Structure of the Constitution, and therefore, it should be declared unconstitutional and struck down.
The amending power does not extend to the Basic Structure. The amendment strikes at the fundamental rights of other citizens, and it is impermissible to destroy Article 14 and 15 or abrogate or en bloc eliminate these Fundamental Rights.
The amendment is anti-secular in nature and is against the concept of secularism, which is a part of the basic structure of the Constitution. The State has no religion and must treat all religions and religious people equally and with equal respect. However, the amendment has led to the misuse for establishing the agenda of the political party by delivering anti-secular and venomous hate-speeches against the minority communities.
Therefore, the amendment to Article 19(2) should be held ultra vires to the Constitution, on the ground of violation of the Basic Structure of the Constitution.
Ulterior Religious Motives and Violation of Secular
Principles
The law providing 33% reservation to women in parliament and the amendment to Article 19(2) smack of some ulterior religious motives and violate the secular principles.
The petitioners submit that these measures are anti-secular in nature and should be declared void and ultra vires on the ground of being anti- secular.
The Law and Amending Power: Anti-Secular
Motives through Hate Speeches
Misuse of the Law for Reservation and Amendment to
Article 19(2)
The law for reservation and the amendment to Article 19(2) of the Indian Constitution have been misused by the ruling party under the guise of benefiting women, but with the ulterior motive of propagating a Hindu agenda against minorities. The right to freedom of conscience and propagation is subject to the interest of public order, so as to not authorize the outrage of the religious feelings of another class with a deliberate intent. The state has indulged in anti-secular practices through hate speeches, which are antithetical to secularism and the process of secularization of religious matters or practices. In Ziyauddin Burhammuddin Bukhari v. Brijmohan Ramdas Mehra, it was held that a secular state must have nothing to do with religious affairs except when their management involves crime, fraud, or becomes a threat to the unity and integrity of the state. The hate speeches delivered by the ruling party have exposed minorities to hatred, delegitimizing group members in the eyes of the
The term "secular" is not defined in the Constitution, presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. Anything that is pernicious and exploitative cannot be allowed to remain outside the control of law simply because it is paraded under the garb of religion. In State of Gujarat v. The I.R.C.G., the Supreme Court held that as a secular state, no policy can be enacted on grounds of taxation that violate the secular principles of the state. In Md. Ismail Faruqui v. Union of India, the Acquisition of Certain Area at Ayodhya Act, 1993 was struck down as being unconstitutional for being against the spirit of secularism.
Protection of Whistle Blowers
Mrs. Fatima Ghansari, an independent member of the Lok Sabha, is a whistle blower in the present matter. She has filed the instant petition in the Supreme Court, asking to strike down the reservation law and the constitutional amendment as they are prima facie unconstitutional, as they are disrupting the communal harmony of the country and functioning against the constitutional provisions. Mrs. Ghansari, being a Member of Parliament, is also a public servant and is thus subject to the Whistle Blowers Protection Act, 2014.
Whistle Blower Protection and Arrest of
Civilians
Whistle Blower Protection
One of the basic requirements for a person to be accepted as a "whistle blower" is that their primary motive should be in furtherance of public good. Criticism of government policies is also not prohibited. A whistle blower is a person who raises a concern about wrongdoing occurring in an organization or body of people, usually from within that same organization. The revealed misconduct may be a violation of a law, rule, regulation, or a direct threat to public interest, such as fraud, health/safety violations, and corruption.
Mrs. Fatima Ghansari is entitled to be protected under the Whistle Blower Protection Act as she had made disclosures for the public good and made people aware of the corruption in the higher government. The Act provides protection to whistle blowers, and Section 11 states that the Central Government will ensure that no person who has made a public disclosure for the welfare of the public is subjected to any kind of victimization.
On May 1, 2018, Mrs. Ghansari was threatened with dire consequences over an anonymous phone call, but she continues to insist on the revocation of the laws in question. A whistle blower who makes any disclosure in the public interest to a competent authority deserves to be protected by the Court, as Mrs. Ghansari had made bona fide disclosures based on public
interest. Good faith whistle blowers represent the highest ideals of public service and challenge abuses of power, and no action can be taken against them, which would be an act of victimization.
Arrest of Civilians
On February 28, 2018, three social activists, Mrs. Garima Dhall, Mrs. Yamini Paul, and Mrs. Mannat Raichandani, who were instrumental in the passing of the law providing 33% reservation for women in the Parliament, were arrested by the intelligence agency of Indica on the grounds of spying for and providing vital state secrets to the enemy country.
The arrest of the three ladies was legally valid. The intelligence agency had credible evidence for the arrest, and the reason for the arrest was disclosed to the arrestees. The rights inherent in Article 22(1) of the Constitution, which require the reason for arrest to be disclosed to the arrestee, were recognized and protected.
The arrest was in compliance with judicial precedents, which state that a person can be arrested only if there is credible evidence that the arresting authority has. The procedure established by law, as laid down in the Code of Criminal Procedure and Article 22 of the Constitution, was followed. The civilians were arrested legally, and there was no infringement of their rights under Article 21 of the Constitution.
