legal news update:Before the Madras High Court,Economic Reservation challenged by Dravida Munnetra Kazhagam

The Constitution (One Hundred and Third Amendment) Act, 2019 (‘Economic Reservation Act’), which introduces the 10% reservation for those belonging to economically weaker sections of society, has been challenged before the Madras High Court by the Dravida Munnetra Kazhagam (DMK).

This is the second such challenge being faced by the Economic Reservation Act. A similar petition by the NGO Youth For Equality is currently pending before the Supreme Court.

The crux of DMK’s challenge is that introducing reservation on economic criteria alone is not permitted by the Constitution. The DMK goes on to point out that the new scheme of an economic reservation was introduced while disregarding the social context in which reservation for historically oppressed communities was introduced in the first place. As stated in the petition,

“The concept of reservation, being an exception to the equality clause, is only justified when it is used for the purpose of upliftment of communities which have suffered discrimination and oppression like the OBC, SCs and STs. Economic criteria alone cannot be the basis of reservation since reservation is not a poverty alleviation scheme.”

The petition goes on to elaborate,

“Naturally [owing to caste-based discrimination]…over the centuries, people belonging to these ‘lower castes’ were segregated from the academic circles, were not permitted to be employed where ‘higher’ castes worked and as a result, their entire families rotted in poverty and exclusion, while the ‘upper’ castes educated and enriched themselves.

The effect of this systemic discrimination was not just economic. It was social and psychological as well. Even if one person from the ‘lower’ caste became rich, he was not permitted to enter the social circles of the ‘upper’ castes. If an ‘upper’ caste member came into contact with a ‘lower’ caste person, he had to undergo a ‘purification’ ritual. In some cases, the ‘lower’ caste person was beaten to death for ‘daring’ to touch the ‘upper’ caste person or even his property…

…a parallel nation of ‘untouchables’ was created. All the jobs and seats in educational institutions were made the sole preserve or ‘birth right’ of the ‘upper’ castes…“

In this backdrop, the petition points out that caste-based reservation for historically oppressed communities was introduced by the Constitution makers in view of the fact that a vast section of Indians were subject to centuries of injustice. On the other hand, reservation was never intended to benefit persons merely on economic criteria alone.

“…It has never been the intention of the framers of the constitution to make reservations based on economic status of an individual.“

This aspect also finds mention in the case of Indira Sawhney v. Union of India, in which it was held that economic status cannot be the sole criterion for reservation.

“It is judicially recognized that reservations are not poverty alleviation programmes but rather are more in the nature of social justice programmes to uplift communities which have not had access to education or employment and consequently do not have representation in the services of the State or in upper echelons of society.

Therefore, essentially, the exception to the equality clause is only available to those communities which were ostracized for centuries in matters of education and employment. Economic criteria has been however used as a filter to exclude the ‘creamy layer’ i.e. persons belong to the backward classes but who are economically advanced.“

It is also pointed out that the state of Tamil Nadu in particular already has reservation amounting to 69%, due to the operation of the Tamil Nadu Backward Classes, Schedules Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993. This is also recognised in Entry 257A of Schedule XI of the Constitution.

In addition to the above, a further 10% reservation for ‘Economically Weaker Sections’ (EWS) would lead to reservation in the state rising to 79%. This, in turn, would also violate the law laid down in M Nagaraj v Union of India, which caps the maximum reservation limit at 50% of the available seats or posts at a given point in time.

The absence of a precise definition to limit the number of persons belonging to the EWS category is another concern that has been flagged.

“It can be seen from reports that the 1st Respondent is attempting to define economically weaker sections as those families with income of less than Rs.8 lakhs per annum. Such a definition would encompass about 97% of the total population of the country, and therefore, is arbitrary.

No study has been carried out by the 1st Respondent to identify economically weaker sections in general category and there is no scientific data or analysis as to whether this reservation would indeed benefit the economically weaker sections category. Hence, conferring such wide, unfettered and unguided discretion to the States, that too, by way of Constitution amendments, offends the basic structure, as it would lead to different States adopting different standards…”

Such economic reservation would also violate the law laid down in the cases of IR Coelho v. State of Tamil Nadu and Ashok Thakur v. Union of India, the petition argues.

Over and above these concerns, the DMK has also registered concern about the hurried manner in which the Economic Reservation scheme was passed in Parliament.

“It is to be noted that the introduction of the Bill was not part of the agenda of the Lower House of Parliament. Hence, it is not an exaggeration to say that the Bill was foist on the Lok Sabha. It is on the records of the House that the copies of the Bill were not even furnished to the Hon’ble Members sufficiently in advance so as to enable the Hon’ble Members to go through it, have a meaningful deliberation and consult with their constituents.

The said Bill was “rushed through” the Lok Sabha and subsequently sent to the Rajya Sabha on 09.01.2019. In fact, it is pertinent to note that originally, there was no sitting of the House on the 9th of January. However, the Parliamentary session was extended by one day to enable the Rajya Sabha to pass the Bill on the same day. It can be seen from the records of the House that barely any time was allocated for discussion on the Bill by the Hon’ble Members opposing it. Even on 09.01.2019 the Business of the House doesn’t include the constitution 124th Amendment bill.“

In view of these grounds, the DMK has prayed that the Constitution (103rd) Amendment Act, 2019 be declared unconstitutional and void.

The matter was mentioned today by Senior Advocate P Wilson before a Bench of Justices S Manikumar and Subramonium Prasad. It is likely to be taken up on Monday.

The Economic Reservation Bill was passed by both Houses of Parliament within a span of two days. Three days after it was approved by the Parliament, the President accorded his assent for the same. However, even as Presidential assent was pending, the NGO Youth for Equality moved the Supreme Court challenging the legislation.

Two days after it was assented to, on January 14, the Economic Reservation Act came into force.

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