EWS Reservation: DMK Moves Review Petition in Apex Court Against EWS Judgement
(Judicial Quest News Network)
Dravida Munnetra Kazhagam (DMK), has moved a review petition in the Apex Court against the top Court’s judgement delivered on 7th Novemeber, 2022, in which it upheld the 103rd Constitutional Amendemnt which grants 10 percent reservations to Economically Weaker Section (EWS), among the other castes.
The plea further sought open court hearing in the matter on the ground that it affects 133 cror Indians.
On November 7th a Constitution bench of the Supreme Court had upheld the Constitutional Validity of EWS reservation.
A five Judges bench comprising of Chief Justice of India (CJI), UU Lalit, Justices Dinesh Maheshwari, S.ravindra Bhatt, Bela M. Trevedi and JB pardivala.
Apart from this there were four more judgements delivered by Justice UU lalit and Justice Ravindra Bhatt dissenting from the majority opinion.
Today’s DMK Review Petition against the judgment rendered in EWS case.Out of 5 judge bench of Supreme Court by a majority opinion of 3 judges, the constitutional Amendment granting 10% reservations to EWS was upheld on 7.11.2022.
The DMK President and Chief Minister of Tamilnadu Mr MK Stalin convened all party meeting and took decision to file review petition before Supreme Court against EWS judgment.
Consequently today DMK has filed the review petition settled by P. Wilson Senior Advocate before Supreme Court.
In the Review petition DMK has raised the following important points
1. That Supreme Court has not considered or even referring to the law laid down by a larger Bench of the Supreme Court in Indra Sawhney case and in fact some portions of the impugned majority opinions overrules/ rewrites the judgement in Indra Sawhney as well disregards the Judgement in NM Thomas case, and coequal bench judgment rendered in Nagaraj, Asoka Kumar Thakur cases.
2. The 103rd Constitutional Amendment Act, 2019 has made a large section of advanced classes’ viz upper caste of population eligible for easy exclusive luxurious reservations. The Constitution has given them a mask to hide behind the misleading term “Economically Weaker Sections”. It’s a fact that they have not suffered social stigma nor discriminated from the society or kept away from jobs or from the main stream.
The constitutional amendment does not define the term “Economically Weaker Sections”. The word “economically” appearing in the 103rd Constitutional Amendment cannot be disjunctively read in isolation without the word “weaker sections” to exclude reservations for SC/ST/OBC’s (which is in conflict with Art 46) who are constitutionally recognised weaker sections.
The constitutional amendment does not justify as to why economic criteria alone considered for providing such reservations. Neither Art 46 nor the constitution defines who weaker sections are.
Art 46 aims to promote education and economic interest of Schedule caste, Schedule Tribe and other weaker sections that are similar to them. The weaker section appearing in Art 46 is clearly explained in State of Kerala v. N.M. Thomas that “not every backward class” but those dismally depressed categories comparable economically and educationally to Scheduled Castes and Scheduled tribes.
Thus, the law laid down by 7 judge bench in N.M. Thomas’ case has been impliedly overruled by the Supreme Court under the impugned judgment by approving that upper caste who are the ultimate beneficiaries under Art 15(6),16(6) need not be educationally weaker nor dismally depressed categories comparable to SC/ST.
3. The Supreme Court never examined as to how “forward castes” benefitted under the impugned constitutional amendment can be called as “weaker sections” merely because they are economically not sound when they have already enjoyed the government jobs and acquired enough qualifications, generations after generations and their families are bestowed with “cultural capital” (communication skills, accent, books, social networks or academic accomplishments) that they inherit from their families.
Thus the impugned judgment runs against the dictum laid down by Indra Sawhney and NM Thomas case in as much as approving forward castes as “weaker sections”. Such conclusion flies against the basic structure of Constitution as the Supreme Court has classified upper caste as weaker sections once they are economically unsound.
4. The impugned judgement lays down a law that by a constitutional amendment the parliament can bring any type of reservations for any category even to an extent of 100% ignoring open competition and there shall be no bar in the Constitution for that.
5. The Sinho Commission Report relied by the Union for 103rd Constitutional Amendment itself claimed that there is no authenticated data available to support the data of below poverty line in economically backward class who are outside the reservation net and therefore relied upon the NSSO report of 2004-2005 which is untenable for the purpose of granting reservations.
6. That this Court in the impugned judgement has not considered that the only data available to the Union before the 103rd Amendment was the Sinho Commission Report, and the Sinho Commission data is not empirical data for the purposes of reservation
7. That the impugned judgement has totally not considered the historical & social advantage existing in favour of the forward castes. The forward class are not restricted in access to schooling and jobs by virtue of their social networks and cultural capital (communication skills, accent, books or academic accomplishments) that they inherit from their family.
The cultural capital ensures that a child is trained consciously by the familial environment to take up higher educations or high posts commensurate with their family standing. Social networks based on community linkages advance in their career even if their immediate family does not have the necessary exposure.
Reservations as a concept have to construe to something which is sacrosanct and a step to be taken in extreme caution to offset centuries of oppression. The classes covered under Articles 15(4), (5), 16(4), (5) were oppressed, discriminated and prevented to be a part of the mainstream, due to which large communities had restricted opportunities for employment and education.
8. The impugned judgement approves exclusion and discrimination as it permits the poor from ST, SC & OBC to be excluded from the 10% reservation, when they too are economically backward and therefore it violates equality code.
9. None of the four opinions have considered the binding precedents that giving reservations to forward castes violate the equality code under Articles 14, 15(1) & 16(1) and thus violates the basic feature of the Constitution
10. the majority judgement has not appreciated that the net effect of the entire exclusionary principle is Orwellian, which is that all the poorest are entitled to be considered, regardless of their caste or class, yet only those who belong to forward classes or castes, would be considered, and those from socially disadvantaged classes for SC/STs would be ineligible. This strikes at the essence of the non-discriminatory rule. Therefore, the total and absolute exclusion of constitutionally recognised backward classes of citizens – and more acutely, SC and ST communities, is nothing but discrimination which reaches to the level of undermining, and destroying the equality code, and particularly the principle of non-discrimination i.e., enumerated in the Basic Structure Doctrine.
11. By granting reservations to forward castes, the State is undoing the equality brought about by Articles 15(4) & 16(4) and destroys Art 15(1) and 16(1). Therefore, the 103rd Amendment fails the identity test as well against basic structure of constitution.
12. The Court has committed an error apparent on the face of the record in para 28 by holding that reservations must come to an end. With great respect not only was this not an issue before the Court, but is directly contradictory to the findings of the Court in approving EWS reservations (which too have no end date)
13. The Hon’ble Court has committed an error apparent on the face of the record in para 29 by holding that abolition of reservations will abolish the caste system and lead to an egalitarian society. Such a finding is not correct. The caste system is not in existence because of reservations but vice versa. The caste system is the most abhorrent, inhuman form of discrimination that classifies human being because of the circumstances of their birth. In order to create a casteless society, one must abolish caste system in toto, including caste names, caste identification and caste practices. When a human being is not permitted inside a temple because of their caste, reservation is not to blame. When a person is murdered in the name of ‘honour kills’ for marrying outside his caste, it is not the fault of reservation. Thus, to create a casteless society, one must battle caste itself, not affirmative action.
Among other legal grounds seeking review of order of EWS Judgement, the DMK has stated that since the impugned judgement affects 133 crore populations has sought for open court hearing.
