"Errors Apparent On Record" : DMK Approaches Supreme Court Seeking Review Of Judgment Upholding EWS Quota

Dravida Munnetra Kazhagam (DMK) has moved Supreme Court of India seeking a review of the Constitution Bench judgment upholding the validity of the 103rd Constitutional Amendment which introduced provisions for reservation to Economically Weaker Sections (EWS). 

The judgement dated 07.11.2022, by a 3:2 majority, had upheld the validity f the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment. While Justices Dinesh Maheshwari, Bela Trivedi, and JB Pardiwala upheld the 103rd Constitution Amendment, Justice S Ravindra Bhat wrote a dissenting judgment, which was concurred with by the then Chief Justice of India Uday Umesh Lalit.

The judgement had framed the following questions of law–

1. Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria?

2. Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?

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?

4. Whether the cap of 50% referred to in earlier decisions of the Supreme Court can be considered to be a part of the basic structure of the Constitution? if so, can the 103rd Constitution Amendment be said to breach the basic structure of the Constitution?"

Justice Dinesh Maheshwari and Justice JB Pardiwala had answered all issues in favour of the 103rd Amendment. Justice Bela M. Trivedi in her opinion answered issues 1 & 3 in favour of 103rd Amendment but did not specifically address issues 2 & 4. Per contra, Justice S. Ravindra Bhat and former CJI UU Lalit, answered questions 1 & 2 in favour of the 103rd Amendment but struck down the 103rd Amendment as unconstitutional on question 3. Question 4 was left open by the minority since it was directly in issue in a batch of petitions challenging the 76th Constitutional Amendment pending before the Supreme Court.

The review petition contends that all five judges of the bench had erred in answering issue 1 as their findings directly overruled the judgement passed by the nine Judge Constitution Bench in Indra Sawhney vs. Union of India which had pronounced that reservations could not be on the basis of economic criteria alone. Similarly, it states that the majority opinions have committed an error by answering issue 3 in favour of the Respondent-State.

As per the petition–

"If the majority accepts that there can be a separate classification on economic criteria, social backwardness cannot be used as an exclusion for the poor among ST, SC & OBCs merely because they suffer both backwardness. This judgment if allowed to stand coveys a strong message that the SC, ST & OBC's historic oppression for more than several hundred years who have been prevented from having jobs and education and who have been kept away from main stream suffers from disqualification from getting economic reservations."

It also submits that the majority opinion does not consider the tests of 'identity', 'width of power' and 'unguided power' that were laid down by the Supreme Court to test constitutional amendments.

As per the petition, the judgement legitimises discrimination by stating that exclusion is vital for achieving the desired results for a particular target group. It adds that the judgement "fails to consider the fact that the intended target group i.e. 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."

As per the petition, striking down the 50% cap on reservations, which was placed to ensured that there is a balance between reservation and open competition is erroneous as well.

While stating that the Articles 15(6) and 16(6) breach the equality code by excluding SC, ST, OBC from the advantage of EWS reservation, the petition argues that the judgement perpetuates discrimination by discriminating similarly placed groups on the basis of their caste and categorically keeping economically weaker sections belonging to SC, ST, OBC out of the intended benefit despite the majority of them being economically and socially backward. The petition argues that–

"The impugned judgement suffers from errors apparent on the face of the record, which require no great reasoning as clear expositions of law in a judgement of a larger Bench have not been followed. Therefore, the impugned judgement is liable to be reviewed."