No interim stay on amendment of Constitution for 10 per cent quota: Madras High Court
DMK senior counsel submitted that reservation is not a poverty alleviation programme but a social justice meant to uplift the communities, which had not had access to education or employment.
Published: 22nd January 2019 05:15 AM
Madras High Court (File | EPS)
By Siva Sekaran
Express News Service
CHENNAI: The third bench of the Madras High Court on Monday refused to stay the operation of the 103rd amendment effected to the Constitution, which paved the way for 10 per cent reservation to the economically weaker section under the general category.
When the PIL petition from DMK organising secretary and Rajya Sabha member R S Bharathy came up on Monday, the bench of Justices S Manikumar and Subramonium Prasad, which declined to pass any interim order, ordered notice to the governments at the Centre and the State, returnable by February 18, instead.
DMK senior counsel P Wilson submitted that reservation is not a poverty alleviation programme but a social justice meant to uplift the communities, which had not had access to education or employment for centuries.
Additional Solicitor General G Rajagopalan argued that DMK is ideologically against certain communities and only to push its personal agenda, is opposing the economic reservation. The petition is not public interest-oriented. “Bharathy, who could not oppose the amendment in one constitutional forum -- Parliament, is now trying to misuse another constitutional forum -- High Court -- to push its agenda,” he alleged.
The bench intervened to say that it could not be termed as a political interest litigation.“The Constitution talks about SC, ST, BC, MBC and other communities. Who could be persons falling under the other communities?” the bench asked. The AAG replied that the communities, which do not fall under the reservation radar, are the other communities.
On his part, Wilson pointed out to the bench that it is only the Union government, which is opposing the case politically. Essentially, the exception to the equality clause is available only to the communities, which were ostracized for centuries in the matters of education and employment. Economic criteria has been, however, used as a filter to exclude the creamy layer and the persons belonging to the backward classes, who are economically advanced. Hence, application of economic criteria is not contemplated as an exception to the rule of equality and consequently to provide reservation solely on economic criteria.
It offended the basic structure of the Constitution. “It’s well settled that the ceiling limit of 50 per cent in reservation is also part of the basic structure and the same had been asserted by the Supreme Court in several judgments. However, in Tamil Nadu, the ceiling limit is 69 per cent due to 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 is included in the IX Schedule.
Hence, the reservation cannot be beyond 69 per cent in Tamil Nadu. The recent amendment would enable the government to raise the reservation up to 79 per cent, which is unconstitutional, Wilson added.
DMK senior counsel submitted that reservation is not a poverty alleviation programme but a social justice meant to uplift the communities, which had not had access to education or employment.
Published: 22nd January 2019 05:15 AM
Madras High Court (File | EPS)
By Siva Sekaran
Express News Service
CHENNAI: The third bench of the Madras High Court on Monday refused to stay the operation of the 103rd amendment effected to the Constitution, which paved the way for 10 per cent reservation to the economically weaker section under the general category.
When the PIL petition from DMK organising secretary and Rajya Sabha member R S Bharathy came up on Monday, the bench of Justices S Manikumar and Subramonium Prasad, which declined to pass any interim order, ordered notice to the governments at the Centre and the State, returnable by February 18, instead.
DMK senior counsel P Wilson submitted that reservation is not a poverty alleviation programme but a social justice meant to uplift the communities, which had not had access to education or employment for centuries.
Additional Solicitor General G Rajagopalan argued that DMK is ideologically against certain communities and only to push its personal agenda, is opposing the economic reservation. The petition is not public interest-oriented. “Bharathy, who could not oppose the amendment in one constitutional forum -- Parliament, is now trying to misuse another constitutional forum -- High Court -- to push its agenda,” he alleged.
The bench intervened to say that it could not be termed as a political interest litigation.“The Constitution talks about SC, ST, BC, MBC and other communities. Who could be persons falling under the other communities?” the bench asked. The AAG replied that the communities, which do not fall under the reservation radar, are the other communities.
On his part, Wilson pointed out to the bench that it is only the Union government, which is opposing the case politically. Essentially, the exception to the equality clause is available only to the communities, which were ostracized for centuries in the matters of education and employment. Economic criteria has been, however, used as a filter to exclude the creamy layer and the persons belonging to the backward classes, who are economically advanced. Hence, application of economic criteria is not contemplated as an exception to the rule of equality and consequently to provide reservation solely on economic criteria.
It offended the basic structure of the Constitution. “It’s well settled that the ceiling limit of 50 per cent in reservation is also part of the basic structure and the same had been asserted by the Supreme Court in several judgments. However, in Tamil Nadu, the ceiling limit is 69 per cent due to 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 is included in the IX Schedule.
Hence, the reservation cannot be beyond 69 per cent in Tamil Nadu. The recent amendment would enable the government to raise the reservation up to 79 per cent, which is unconstitutional, Wilson added.
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