DMK says EWS reservation is ‘discrimination to the level of undermining’, seeks review

The Dravida Munnetra Kazhagam (DMK) has filed a review petition against the Supreme Court judgement granting 10% reservation to Economically Weaker Sections (EWS) of the society, days after the party president and Tamil Nadu Chief Minister MK Stalin adopted a resolution against the same at an all-party meeting on November 12. It was on November 7 that a five-judge Supreme Court Constitution bench upheld the validity of the 103rd Constitution Amendment, providing 10% reservation to EWS persons in education and government jobs.

In its petition, the DMK has raised concern that the apex court may have been at fault with respect to the judgement, pointing out that the judgement directly overrules the landmark 1992 nine-judge Constitution bench verdict in the Indra Sawhney v Union of India case. According to the petition, the 103rd Constitutional Amendment Act, 2019 had made a large section of the upper caste of the population eligible for “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, been discriminated against by society, or kept away from jobs or the mainstream,” the petition says, adding that the Amendment also does not define the term ‘EWS’. It further states that the Amendment also does not justify why economic criteria alone was considered for providing such reservations. 

DMK’s petition also raises the concern that the judgement has paved way for the Parliament to introduce any type of reservations for any category, even to the extent of 100%, ignoring open competition. There shall be no bar in the Constitution for that owing to this Amendment, it said. It also recalled that the Sinho Commission Report, which was relied upon for the Amendment, had said that there was “no authenticated data available to support the data of below poverty line in economically backward class who are outside the reservation net”. After the report stated this, the Union government relied upon the National Sample Survey Organisation (NSSO) report of 2004-2005, which is untenable for the purpose of granting reservations, the petition said.

The petition also alleged that the judgement has not considered the historical and 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 education or high posts commensurate with their family standing,” the petition said. It added that reservations as a concept has to be construed as something sacrosanct and “a step to be taken in extreme caution to offset centuries of oppression”. 

“The impugned judgement approves exclusion and discrimination as it permits the poor from ST [Scheduled Tribe], SC [Scheduled Caste], and OBC [Other Backward Class] to be excluded from the 10% reservation, when they too are economically backward. It therefore violates the equality code,” the petition said.

The DMK also said that the total and absolute exclusion of constitutionally recognised backward classes of citizens is nothing but discrimination to the level of undermining. This destroys the principle of non-discrimination enumerated in the Basic Structure Doctrine of the Indian Constitution, it further said, adding that this kind of reservation undoes equality.

Referring to the apex court observation that the abolition of reservations will abolish the caste system and lead to an egalitarian society, the Dravidian party underscored in its review petition that the caste system was not in existence because of reservations but vice versa. “The caste system is the most abhorrent, inhuman form of discrimination that classifies human being based on the circumstances of their birth. In order to create a casteless society, one must abolish the 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 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,” the DMK said.

The party has also sought an open court hearing in the regard.