Quota for upper caste poor violates Mandal ruling, DMK tells SC

Tamil Nadu's ruling Dravida Munnetra Kazhagam on Monday sought a review of the November 7 verdict of the Supreme Court which upheld 10 per cent reservation for the economically weaker sections (EWS) in educational institutions and government jobs that excluded the poor among the SC/ST/OBC categories, contending that it "legitimises discrimination".

It said there is an apparent error in the judgment as it directly overrules the landmark 1992 nine-judge Constitution bench verdict in the Indra Sawhney versus Union of India case, popularly referred to as the ’Mandal verdict'.

The DMK said all five judges on the Constitution bench which pronounced its verdict on November 7 upholding the EWS quota introduced in 2019, have answered that the 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution and therefore it overruled the 1992 judgment, which authoritatively pronounced that reservation cannot be granted on the basis of economic criteria.

The review plea said, "It is respectfully stated that this is error apparent on the face of the record since it directly overrules the judgment passed by the nine-judge Constitution bench in Indra Sawhney versus Union of India 1992, which has authoritatively pronounced that reservations cannot be on the basis of economic criteria and such interpretation was on the basis of Articles 14,15(1) and 16(1), not Articles 15(4) and 16(4) alone."

The party said similarly, the majority opinions have committed an error apparent on the face of the record by answering issue 3 (whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation) in favour of the respondent-state.

It said, "The majority opinion is contradictory -- after going in depth into how poverty prevents access to education and employment, and the importance of alleviating the same, the majority judges have not given any justification for excluding ST, SC & OBCs from the EWS reservation other than to say that they have already been given reservations under Art 15(4) and 16(4).”

It said this view of majority judges is ”error apparent on the face of the record” since the reservations under Article 15(4) and 16(4) are on the basis of social backwardness and historic oppression.

If the majority accepts that there can be a separate classification on economic criteria, social backwardness cannot be used as exclusion for the poor among ST, SC and OBCs merely because they suffer "both backwardness”, it said.

The review plea said the November 7 judgment, if allowed to stand, conveys a strong message that the SC, ST & OBC's historic oppression of more than several hundred years, who have been prevented from having jobs and education and who have been kept away from the mainstream, suffers from disqualification from getting economic reservation.

”It is respectfully stated that none of the three opinions that constitute the majority judgment have considered the ’identity', ’width of power' and ’unguided power' tests that have been laid down by this court to test constitutional amendments despite it being argued before this court,” it said.

The party, which also sought an open court hearing, said the impugned judgment ”legitimises discrimination” by opining that exclusion is vital for achieving the desired results for a particular target group. 

”It fails to consider the fact that the intended target group, ie, the economically weaker sections were created by excluding the similarly placed economically weaker sections of the SC/ST/OBC community who have remained to be economically weaker due to rampant, systemic discrimination and oppression over the years," it said.

The review plea said the opinions of Justices Dinesh Maheshwari and JB Pardiwala have committed an error apparent on the face of the record by holding that the 50 per cent cap laid down in the Indra Sawhney 1992 verdict and followed in M Nagaraj (2006 verdict) and other cases applies only to reservations under Articles 15(4) and 16(4) and the cap will not apply to EWS reservations. 

”It is humbly submitted that this is error apparent on the face of the record since it amounts to rewriting the judgment of a larger Bench. The cap was placed in view of the Articles 14, 15 (1) and 16 (1) to ensure that there is a balance between reservation and open competition,” it said, adding that therefore, the impugned judgment is liable to be reviewed.

On November 23, Congress leader Jaya Thakur had also sought a review of the November 7 verdict, saying there was "error apparent" in the judgment. 

In its landmark judgment, a five-judge Constitution bench had said on November 7 that the use of basic structure doctrine as a "sword" to "stultify" the State's effort to do economic justice cannot be countenanced.

It had delivered a 3:2 majority decision in favour of the 103rd Constitution Amendment.

Treating the EWS as a separate category is a reasonable classification and the 50 per cent ceiling on the total reservation under the Mandal judgment is "not inflexible", the judges had said while dismissing the petitions challenging the validity of the law.

The bench headed by then Chief Justice U U Lalit had delivered four judgments on 40 petitions against the amendment that was passed after the Modi government decided to grant quota to the economically weaker sections ahead of the 2019 Lok Sabha elections.

Justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala had upheld the EWS quota. The then CJI was in minority with Justice S Ravindra Bhat when they ruled against it, holding that due to exclusion of the poor of classes like SCs, STs, and OBCs from its ambit, the Amendment ''practices constitutionally prohibited forms of discrimination”.