DMK's legal battle against economic reservation
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The DMK on Monday moved the Supreme Court seeking a review of the apex court's verdict upholding the 10 percent reservation for Economically Weaker Sections (EWS) among the upper castes. Even as the law was passed, the Tamil Nadu government had decided against implementing it in the state. Alongside, one of the forty petitions that challenged the law was filed by the Tamil Nadu government. The latest move follows an all-party meet called by chief minister M K Stalin, brokering almost a consensus on the matter. Meanwhile, the discussions happening alongside suggest the parties including the Congress, CPI and CPM that backed passing the law in the parliament now have second thoughts.
The 10 per cent EWS reservation, nevertheless introduced at the central level as per the law passed by Parliament in 2019, is optional for the states. Remember, Kerala has earned the reputation of being the state to immediately implement the law. The rules came into effect after the President signed on January 12, 2019 an acft that the Parliament introduced the same day, by making amendments to Articles 15 and 16 of the Constitution authorising the state to provide 10 per cent reservation to the poor among the upper castes in government jobs and seats in educational institutions. Immediately afterwards, several petitions came before the apex court but none of them was considered on priority; moreover the court rejected the demand for staying the reservation for the time being. Constitutional and legal vulnerabilities of the law have already been pointed out. First, reservation was envisaged in the Constitution as a remedy for social and educational backwardness and lack of representation in governance. The new law is deemed to undercut that aspect. On the other hand, the new law violates the directions by nine-judge Constitution Bench in the 1992 Indra Sawhney case that said reservation should not be based on economic criteria alone and also the order that made reservation not to exceed fifty percent. In the counter petitions in 2019, the argument seeking referring it to a larger Constitution bench was considered. Finally, the case was referred to a five-member Constitution bench. The said bench snail paced without considering with urgency, before finally hearing the matter in September this year for six and a half days, and then issuing its verdict on November 7. The issues considered by the court include: whether economic criteria can be used for reservation, whether those belonging to Scheduled Castes/Tribes, OBCs etc. who are currently enjoying reservation can be excluded from it, and whether reservation can be made compulsory in private educational institutions that do not receive government assistance.
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While the three-judge bench ruled in favor of the law, Justice S.R. Bhatt writing a dissenting judgement for himself and on behalf of the Chief Justice Lalit, upheld the EWS reservation, but held that the exclusion of the currently reserved classes from it was not valid. However, the verdict went in favor of the law by a majority of 3:2. Thus the generally well off upper castes have benefited from reservation under the title of 'financial reservation'. Tamil Nadu offers more than 50 percent reservation for backward classes. Ever since the 103rd Amendment of the Constitution, the backward communities have been clamoring over inadequate representation and empowerment in the government and educational institutions, but none of it has been properly examined before the court.
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The DMK had an early realization of economic reservation as a partial reversal of reservation, which is a Magna Carta of sorts for India's backward classes provided by the Mandal Commission recommendations of 1992; but the truth dawned on others quite belatedly. It remains to be seen what will happen if the Supreme Court is ready to hear the review petitions including those filed by the Congress leader Dr. Jaya Thakur and others. The fundamental issues involved in the matter require to be re-examined by the Court. Let's hope that the petitions on hand will offer an opportunity for it.