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On Monday, the High Court of Madras issued a notice to the Centre and the State Governments in a petition challenging the validity of 103rd Constitution (Amendment) Act, 2019 that lays down provision for reservation of up to 10% for people belonging to economically weaker sections. This 10% quota is introduced by the Union Government by way of Constitutional (103rd Amendment) Act 2019. RS Bharathi who plays the role of Organizing Secretary of Dravida Munnetra Kazhakam (DMK) filed the said petition on Friday, arguing that the amendment violated the "basic structure" of the Constitution of India.
The petition takes into account Dr. B.R. Ambedkar’s words who is better known as the "Father of the Constitution of India". To quote Dr. Ambedkar, the petition states "concept of reservation itself is not with reference to the economic status of a person but rather with reference to the community to which he belongs, with an idea to integrate that community into the mainstream system of education and employment." The broad areas of conflict are: The concept of reservation, which is an exception to the equality clause, is justified only when it is used for the purpose of uplifting the communities that have suffered discrimination, domination and subjugation, such as the OBC, SC and ST. Economic criteria alone cannot form the basis of the reservation since the quota system is not a poverty reduction scheme.
The Apex Court in M. Nagaraj case held that the maximum limit of 50% in the reservation is also part of the basic structure of the Constitution of India. In another landmark judgment, in the case of R Case Coelho, the Supreme Court has categorically held that Article 15 of the Constitution, together with articles 14, 19 and 21, constitute the fundamental values that cannot be repealed. The state of Tamil Nadu already has 69% reservation due to the operation of the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 which was inserted in the IXth Schedule of the Constitution. Tamil Nadu’s reservation will rise to 79% by the proposed amendment.
The petition further states that the Bill was imposed on the Lok Sabha and copies of the bill were not even been delivered to Members sufficiently well in advance to allow them to have a meaningful resolution. An NGO, "Youth for Equality" filed a similar petition before the Hon’ble Supreme Court of India.
The proposed amendment Bill was passed by the Lok Sabha on January 8 and approved by the Rajya Sabha on the very next day. The amendment received Presidential approval on January 12 and was notified by the Union Government on January 14.
It is proposed that the economic reservation in jobs and education sectors be provided by inserting clause (6) in Articles 15 and 16 of the Constitution. Clause (6) of Article 15 has been recently inserted and it allows the State to adopt special provisions for the advancement of any section of economically weaker citizens, including reservations in educational institutions.
Such reservation can be made in any educational institution, including private institutions, regardless of whether it receives financial assistance or not, with the exception of the minority educational institutions mentioned in Article 30 (1). In addition to the prevailing reservations, the upper limit of the reservation will be ten percent.
In the present scenario, India witnesses a total reservation of 49.5%, with 15%, 7.5% and 27% quotas respectively provided for the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). The term "economically weaker sections" for the purposes of articles 15 and 16, denotes those sections notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. This reservation will provide a new category of a class which is different from the already prevailing set of specified classes such as SCs, STs and socially and educationally backward classes.
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