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Recently, the Parliament passed a reservation law for the benefit Economically Weaker Sections in the Upper Castes of the Society. The 103rd Constitutional Amendment has been challenged as unconstitutional and void as the economic status of an individual cannot be a sole criterion for reservation. The Petitioner argued that the very purpose of reservation is to uplift communities belonging to the historically oppressed and discriminated classes such as OBCs, SC and STs. The petition comprised the following words:
“Naturally [owing to caste-based discrimination]…over the centuries, people belonging to these ‘lower castes’ were segregated from the academic circles, were not permitted to be employed where ‘higher’ castes worked and as a result, their entire families rotted in poverty and exclusion, while the ‘upper’ castes educated and enriched themselves.
The effect of this systemic discrimination was not just economic. It was social and psychological as well. Even if one person from the ‘lower’ caste became rich, he was not permitted to enter the social circles of the ‘upper’ castes. If an ‘upper’ caste member came into contact with a ‘lower’ caste person, he had to undergo a ‘purification’ ritual. In some cases, the ‘lower’ caste person was beaten to death for ‘daring’ to touch the ‘upper’ caste person or even his property…
…a parallel nation of ‘untouchables’ was created. All the jobs and seats in educational institutions were made the sole preserve or ‘birthright’ of the ‘upper’ castes…“
In this case, the petitioner argued that the reservation was meant for socially oppressed and discriminated classes which account for a large number in India. The petitioner also submitted that the framers of the constitution had contrary intention. In support of his contention, the petitioner brought in Indira Sawhney vs Union of India wherein the judicial institution said that the reservation schemes are not poverty alleviation schemes, rather they are meant for the upliftment of the people in the lower strata or in other words, those who belong to the historically oppressed communities. People of such communities in the lower strata must have access to higher education and employment as they did not have such access in the past. Insofar as the economic criterion is concerned, there is already creamy layer which excludes the economically advanced backward classes from enjoying the benefits of reservation.
Further, the petitioner stated that the percentage of reservation prevailing in Tamil Nadu is 69%, which would extend to 79% due to this constitutional amendment. This contravenes the Supreme Court Judgement in M Nagaraj Vs. Union of India wherein the court capped the reservation percentage to 50 Percentage. The petitioner also contended that almost 97% of the people in India would fall in the Economically Weaker Section if the section is construed to be consisting of people with income lower than Rs. 8 Lakhs P.A.
No study has been carried out by the State to draw out the figures on the number of economically weak people in the Upper Strata. The Constitutional amendment violates not only the basic structure of the constitution but also the law laid down in the IR Coelho and Ashok Thakur case. The Petitioner submitted that the bill was hurriedly passed in both the houses and the subject-matter challenged before this court was not discussed in the Parliament. The Hon’ble Members of the Parliament were not given copies of the bill for the purpose of scrutiny, and the session of the Rajya Sabha was extended to pass this bill on the very same day the Lok Sabha passed this Bill.
The hearing of this case is likely to happen on Monday before the Hon’ble bench of the Madras High Court comprising Justice S Manikumar and Subramonium Prasad. It is pertinent to note that an NGO named “youth for equality” has challenged the constitutional amendment even the Bill received the President's assent.
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