Moving the Supreme Court against the 103rd constitutional amendment granting 10% reservation to economically weaker sections (EWS) in government jobs and education, Tamil Nadu’s ruling DMK has asserted that reservation is meant to alleviate social backwardness of people oppressed socially for centuries and that it could not be based on economic grounds.
A five-judge Constitution Bench headed by Chief Justice of India U U Lalit started hearing a batch of petitions challenging the EWS quota law from September 13.
In its submission to the apex court earlier this week, the DMK stated that bringing the upper castes within the quota ambit on the basis of economic status would be a travesty of reservation.
The DMK argued that equality is part of the basic structure of the Constitution and that all citizens must be treated equally before the law and in terms of opportunities. It said the current reservation law meant for forward castes on economic basis would undermine the Constitution’s fundamental structure because “Articles 14 & 15(1) are core to the basic feature and exception to them in the form of reservations have been permitted only on the basis of social backwardness”.
According to the DMK, social justice and economic justice are two distinct concepts and that reservation is constitutionally valid when it is intended to achieve social equality and not economic empowerment.
Senior lawyer P Wilson, the DMK’s Rajya Sabha member, who argued the case in the apex court on behalf of his party on 14 and 15 September, pointed out that the Indian society has been plagued by caste discrimination for about three millennia. He told the court that affirmative action, in the nature of reservations, was contemplated by the framers of Constitution as the Constituent Assembly was very conscious that there could not be a clean slate post Independence because a vast section of Indians had been living subjected to centuries of injustice.
The first Parliament, whose many members were also the Constituent Assembly’s members, realised that there must be a general enabling provision in Article 15 to bring out schemes in favour of the backward classes other than in matters of employment, which was already covered in Article 16. Hence, the Constitution (First Amendment) Act, 1951, was passed, and the very first amendment made to the Constitution was to insert clause (4) to Article 15, Wilson noted.
The DMK told the apex court why it chose, as a party, to challenge the EWS quota law brought by the Narendra Modi government in January 2019. “The state of Tamil Nadu has been at the forefront of affirmative action to alleviate social backwardness. Even before the adoption of the Constitution, the State issued a Government Order. No. 613, Public Department, dated 16.09.1921, making reservations for BCs. This government order was the first of its kind in India and was termed the “communal G.O”. The state issued further G.O.s to make further reservations in employment till the adoption of our Constitution,” the party stated.
The DMK maintained that granting quota to upper castes on the basis of economic status is a mockery of the concept of reservation. Recalling a previous order from the Constitution Bench (Indra Sawhney case, 1992) that backward class reservations have been meant to share services monopolised by forward classes and that social and educational differences between the two classes have justified such affirmative action, Wilson argued that the “same cannot be said for rich and poor”.
“Indigence cannot be a rational basis for classification for public employment. Therefore, the present amendments fall foul of the ratio in Indira Sawhney (case)… economic status cannot determine backwardness and that economic status is see-saw (in nature).”
Tamil Nadu has played a key role in the country in affirmative action programmes aimed at uplifting and empowering socially backward classes, becoming the first state to breach the 50% quota ceiling set by the top court.
“It is well settled that reservation cannot be poverty alleviation scheme… (but) is meant to remedy the handicap of prior discrimination impeding the access of classes of people to public administration/education. It is a remedy or a cure for the ill effects of historical discrimination,” the DMK contended, telling the court that one could improve the economic status of socially oppressed but not their social status “due to caste”.
The party stated that the State has other methods to assist the poor through grants of scholarships, free coaching classes, waivers of tuition fees, etc. and that the exclusive criterion of poverty cannot be the basis for reservation. “Articles 15(6) and 16(6) are poverty alleviation programmes under the guise of reservations and cannot be sustained,” the DMK counsel said.
Wilson noted that the Union government has also breached the 50% ceiling by amending the Constitution to ensure 10% EWS quota.
Dismissing any comparison between the economically backward classes with those in the socially backward category, Wilson argued that the EWS did not face the kind of systemic historic social discrimination that would classify them as one group. “That apart, a person may be poor now but could have been rich even one generation ago or vice versa. However, the stigma of caste does not detach itself for generations. So the State cannot equate indigence with social ostracisation,” he stated, charging that the EWS quota law is violative of the conditions for reasonable classification laid down by the apex court.
The DMK counsel also charged that the manner in which the Constitutional Amendment Bill was introduced in Parliament by the Modi government as a supplementary business, which did not provide time for the members to study it, and its subsequent passage without a debate betrayed its political motivations.