The Tamil Nadu government on Monday filed a review petition in the Supreme Court on the court’s verdict upholding the 10% quota for Economically Weaker Sections (EWS).
On November 7, a five-judge Constitution Bench had delivered a 3:2 verdict in favour of the 103rd Constitutional Amendment Act, 2019, that provides 10% reservation in jobs and admissions to EWS — people other than Scheduled Castes, Scheduled Tribes and Other Backward Classes and whose annual family income is below ₹8 lakh.
The petition states that the November 7 judgment neither considered, nor referred to the law laid down by a larger bench of the top court in the Indra Sawhney case — also known as the ‘Mandal’ verdict.
“The Hon’ble 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,” the petition contended.
“It’s a fact that they have not suffered social stigma nor discriminated from society or kept away from jobs or from the mainstream,” the plea said.
In a crucial judgement a day before then Chief Justice India Uday Umesh Lalit retired, the constitution bench on November 7 held that: “The EWS quota law doesn’t violate basic structure or equality code for taking into account economic criterion.”
“It doesn’t also cause damage to any essential feature by exceeding 50 per cent ceiling for quota since the ceiling is itself flexible,” Justice Dinesh Maheshwari had said.
Justice S Ravindra Bhat was among the judges to dissent, calling the law “discriminatory and violative of basic structure”.
Monday’s plea added that some portions of the observations in the November 7 judgment overruled the ‘Mandal’ verdict. “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,” the plea stated.
“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,” it added.
The petition states that the amendment has made a large section of advanced classes “viz upper caste of population eligible for easy exclusive luxurious reservations” and that the Constitution has given them “a mask to hide behind the misleading term “Economically weaker sections”.
The petition argued that the top court has “committed an error” by holding that abolition of reservations will abolish the caste system leading to an egalitarian society.
“Such a finding is not correct,” it said, adding that reservations exist because of the caste system raising caste atrocities.
“In order to create a casteless society, one must abolish the caste system in toto, including caste names, caste identification and caste practices,” the petition said.
“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 killing’ 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,” it contended.
Among other legal grounds for seeking a review of the order, the DMK has sought for an open court hearing stating the judgment affects the entire country’s population.
The DMK has filed a petition running 579 pages seeking review of the order. This comes after Tamil Nadu chief minister and DMK President M K Stalin convened an all-party meeting which concluded that they would file a review petition before the Supreme Court.