Congress Leader Files Review Petition Before Supreme Court Against Judgment Which Upheld EWS Reservation

On November 7, four separate judgments were authored with different reasoning by Judges of the Constitutional Bench. Three judgments by Justices Dinesh Maheshwari, Bela Trivedi and Justice JB Pardiwala upheld the 103rd Amendment but one Judgement passed by the Justice Ravindra Bhatt along with the then Chief Justice of India UU Lalit held that the Amendment violates the basic structure of the Constitution on the ground of equality, especially due to the exclusion of the OBC/SC/ST from the EWS quota.

The Review petition states that in Madhya Pradesh, the OBC population is more than 50% but OBC reservation in M.P. State Service & Educational institution is only 13%. The Schedule Caste community is 16% of the total population and they have got proportionate reservation of 16%, similarly Schedule Tribe are 20% of total population and they have got proportionate reservation of 20%. However, the OBC community is getting only 14% reservation despite their total population being way beyond.

The plea asserts that the even though the forward caste population is only 6%, post the amendment, 10% reservation for the EWS will be provided to the 'poor of the forward caste'.

"The numbers clearly shows that this reservation of 10% is disproportionate and there is no grounds or justification whatsoever for arriving at this figure of 6%. The 10% reservation provided to the EWS of only forward caste, is breach of equality code amounting to discrimination."

The plea further argues that neither the Parliamentary debate while passing the impugned Amendment nor the majority judgments give insights as to what was the rational that was adopted to come to this figure of 10%. The only ad-hoc commission which was established in this regard was Sinho Commission, which too was unable to justify the provisioning of 10% reservation for EWS category.

Under the Amendment in question, the OBC/SC/ST are not entitled to take the benefits of the reservation which is a clear violation of Articles 14 and 16 of the Constitution of India.

Drawing statistics from Government responses, the plea says that when the Mandal Commission report was challenged before the Top Court, then Union of India, in their affidavit had stated that

• 12.55 % OBC were working in Central Government Service and
• 18.72% SC/ST category were working in Central Government Service.
• Rest of the 69% were working were from the beneficiary group of the 103rd Amendment.
• The total population of OBC category was 52%.

These figures point out towards the fact that SC/ST/OBC are not adequately represented in the Government Services, the plea apprised.

Citing an example in Madhya Pradesh, the plea points out that SC/ST/OBC population in toto is 86% but only 49% only in the Government Services including PSU. It is quite clear that 51% of the people who are working in the State are beneficiaries of the impugned 103rd amendment, the plea states.

"SC/ST reservation is in proportion to their population. OBC reservation is approx.50% of their population. While EWS reservation is dis-proportionally far above the need".

As per information provided by the 78 ministry of the Central Government and their Department & PSU, total percentage of the SCs, STs and OBC are only 47.46% in Central Government services, despite reservation for so long.

Further the plea contends that,

"Because this Hon'ble Court of majority view ignored the earlier 81st Constitutional Amendment which by which the Govt. cannot fill-up the vacancies more than 50% in the year on the basis of reservation."

The Apex Court had already fixed the maximum limit of Reservation up to 50% in the case of "Indra Sawhney & Ors. V. Union of India & Ors." which was passed by the 9 judges' bench and same is binding on the 5 judges' bench. "The Article 141 of the Constitution of India is the basic structure of the Constitution and hence upholding the 103rd Amendment is error of the face of records".

Justice Maheshwari, the plea argues, gave a contrary finding that 103rd amendment is not violating the limit of 50%, which is in fact a complete violation of the law settled in the Indira Sawhney case. Also, Justice Maheshwari's finding that the exclusion of SC/ST/OBC from the 103rd Amendment does not violate equality, is completely problematic because the yardstick for the same is one's economic basis only.

Justice Trivedi, while upholding the 103rd amendment stated that a re-visit into the reservation policy is necessary, which is contrary to her own findings in the judgement, the plea states.

Referring to Justice Pardiwala's judgement upholding the Amendment, the plea submits that the judge had noted that Baba Saheb Ambedkar wanted to bring social harmony by introducing reservation for only ten years. This, the plea says, is incorrect in facts.

"15(4) and 16(4) sole motive is to give adequate representation to all classes of the society. So that preamble of the Welfare State will be achieved but above data shows there is no adequate representation and thereafter Government has also not reviewed why adequate representation is not achieved through reservation…."

Case Title: Dr. Jaya Thakur Versus Union Of India & Ors. | Writ Petition (C) No. 55 Of 2019