DMK first party to challenge 10% quota in court: Criteria wrong

The Indian Express: 18.1.19

Stating that reservation is not a “poverty alleviation programme” but more in the nature of a “social justice programme to uplift communities which have not had access to education or employment and consequently do not have representation in the services of the state or in upper echelons of society”, Tamil Nadu’s main Opposition party DMK moved a petition in the Madras High Court Friday, challenging the 10 per cent quota for the general category poor.
The petition, filed by DMK organising secretary R S Bharathi, said Article 15(5) was for reservation based on community. “It had never been the intention of the framers of the Constitution to make reservation based on the economic status of an individual,” he said.
The intention of the impugned amendments to Articles 15 and 16, the petition stated, was to include economically weaker sections (EWS) as one of the “classes” of citizens in favour of whom reservation can be made in educational institutions and matters of employment, and for making special provisions for advancement of the said EWS class.
According to the petition, such a reservation, in addition to the existing reservation, will force Tamil Nadu, which already has 69 per cent reservation, to provide for total reservation of 79 per cent.
“I state that the impugned amendments are unconstitutional and violate the basic feature of the Constitution,” the petitioner said, pointing out that the concept of reservation, being an exception to the equality clause, is only justified when it is used for the purpose of uplifting communities which have suffered discrimination and oppression like the OBCs, SCs and STs.
“Economic criteria alone cannot be the basis of reservation since reservation is not a poverty alleviation scheme,” the petition stated.
Invoking the Kesavananda Bharati vs State of Kerala ruling, the petition stated that the power to amend the Constitution, though vast, is subject to the basic structure doctrine as propounded by the Supreme Court. “The impugned amendment Act tampers with the fundamental rights and changes the basic structure of the Constitution,” it stated.
Stating that the “impugned amendments are liable to be struck down as manifestly arbitrary, fraud on the Constitution and colourable exercise of power,” the petition underlined that the power to amend the Constitution has been given to Parliament as a social contract by the people, with an obligation on Parliament to engage in some meaningful deliberation before exercising this power.
According to the petition, it was a Cabinet meeting on January 7 that took the decision to provide 10 per cent reservation for the EWS in the general category, and The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019 was introduced in Lok Sabha the very next day even when it was not part of the agenda of the Lower House.
“Hence, it is not an exaggeration to say that the Bill was foisted on Lok Sabha. It is on the records of the House that the copies of the Bill were not even furnished to the Hon’ble Members sufficiently in advance so as to enable the Hon’ble Members to go through it, have a meaningful deliberation and consult with their constituents. The said Bill was ‘rushed through’ Lok Sabha and subsequently sent to Rajya Sabha on January 9. In fact, it is pertinent to note that originally, there was no sitting of the House on January 9. However, the Parliamentary session was extended by one day to enable Rajya Sabha to pass the Bill the same day,” the petition stated.
The plea demanding that the court pass an interim injunction is likely to come up for hearing Monday.

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