DMK has moved review petition in the Supreme Court against the top court judgement upholding the Centre’s decision on Economically Weaker Section (EWS) issues and sought an open-court hearing of the petition seeking review of top court’s earlier order.

Earlier Five-judge Constitution bench by a majority of 3:2 had upheld the validity of the Constitution’s 103rd Amendment Act which provides 10 per cent EWS reservation in educational institutions and government jobs. Amendment granting 10 per cent reservations to EWS was upheld on November 7. In the petition, the petitioner DMK has sought to review the Supreme Court’s order dated November 7. DMK has stated that since the impugned judgement affects 133 crore population has sought for “open court hearing.”

DMK, in the petition, said the top court has committed an error apparent on the face of the record by holding that abolition of reservations will abolish the caste system and lead to an egalitarian society and stressed that “such a finding is not correct.”

The caste system is not in existence because of reservations but vice versa.

The caste system is the most abhorrent, inhuman form of discrimination that classifies human being because of the circumstances of their birth. In order to create a casteless society, one must abolish 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, among other legal grounds seeking review of order of EWS Judgement, the DMK has stated the impugned judgement affects 133 crore population and has sought for “open court hearing.”

The DMK President and Chief Minister of Tamil Nadu MK Stalin had convened all party meetings and took the decision to file the review petition before Supreme Court against EWS judgment.

Consequently today DMK has filed the review petition settled by P. Wilson Senior Advocate before Supreme Court.

In the Review petition, DMK has raised various issues including that the Supreme Court has not considered or even referring to the law laid down by a larger Bench of the Supreme Court in Indra Sawhney case and in fact some portions of the impugned majority opinions overrules/ rewrites the judgement in Indra Sawhney as well disregards the Judgement in NM Thomas case, and coequal bench judgment rendered in Nagaraj, Asoka Kumar Thakur cases.

“The 103rd Constitutional Amendment Act, 2019 has made a large section of advanced classes viz upper caste of population eligible for easy 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 nor discriminated from the society or kept away from jobs or from the main stream. The constitutional amendment does not define the term “economically weaker sections”,” the party said in the review petition.

According to the petition, the word “economically” appearing in the 103rd Constitutional Amendment cannot be disjunctively read in isolation without the word “weaker sections” to exclude reservations for SC/ST/OBC’s (which is in conflict with Art 46) who are constitutionally recognised weaker sections.

The constitutional amendment does not justify as to why economic criteria alone considered for providing such reservations. Neither Art 46 nor the constitution defines who are weaker sections. Art 46 aims to promote education and economic interest of Schedule caste, Schedule Tribe and other weaker sections who are similar to them, the petition said.

“The weaker section appearing in Art 46 is clearly explained in State of Kerala v. N.M. Thomas, that “not every backward class” but those dismally depressed categories comparable economically and educationally to Scheduled Castes and Scheduled tribes. Thus, the law laid down by 7 judge bench in N.M.

Thomas’ case has been impliedly overruled by the Supreme Court under the impugned judgment by approving that upper caste who are the ultimate beneficiaries under Art 15(6),16(6) need not be educationally weaker nor dismally depressed categories comparable to SC/ST,” DMK said in the review petition.

The Supreme Court never examined as to how “forward castes” benefitted under the impugned constitutional amendment can be called as “weaker sections” merely because they are economically not sound when they have already enjoyed the government jobs and acquired enough qualifications, generations after generations and their families are bestowed with “cultural capital” (communication skills, accent, books, social networks or academic accomplishments) that they inherit from their families. Thus the impugned judgment runs against the dictum laid down by Indra Sawhney and NM Thomas case in as much as approving forward castes as “weaker sections”.

Such conclusion flies against the basic structure of Constitution as the Supreme Court has classified upper caste as weaker sections once they are economically unsound, said the review petition.

According to the petition, the impugned judgement lays down a law that by a constitutional amendment the parliament can bring any type of reservations for any category even to an extent of 100% ignoring open competition and there shall be no bar in the Constitution for that.

The Sinho Commission Report relied by the Union for 103rd Constitutional Amendment itself claimed that there is no authenticated data available to support the data of below poverty line in Economically backward class who are outside the reservation net and therefore relied upon the NSSO report of 2004-2005 which is untenable for the purpose of granting reservations, the petition said.