The All India Backward Classes Federation has filed a review petition against a majority judgment of the Supreme Court which upheld the 10% reservation in government jobs and institutions for economically weaker sections (EWS), including forward castes, of the society.
The review petition, settled by Professor G. Mohan Gopal, said EWS reservation was for a social- and educational class, the forward class amongst them, with a creamy layer cut-off.
As a result, the majority opinions of three judges on the Bench only considered the issue whether reservation structured solely on economic grounds violated the Basic Structure of the Constitution.
"Whereas the fact is that an economically weaker section eligible for EWS is formed by two criteria: a) family income and other indicators of economic disadvantage and b) it shall not be Other Backward Classes (OBC), Scheduled Castes (SC) or Scheduled Tribes (ST)," the petition said.
The three opinions which formed the majority on the Bench in November were by Justices Dinesh Maheshwari, J. B. Pardiwala and Bela Trivedi. The then Chief Justice U. U. Lalit and Justice S. Ravindra Bhat had formed the minority on the Bench.
The petition said the judgment had upheld the "division of the population of India for purposes of reservation into mutually exclusive compartments, which is fundamentally destructive of the basic structure principle of fraternity".
The majority opinions had erroneously made a distinction between weaker sections and backward classes. The petition pointed out that the majority decisions had failed to consider the contention of the petitioner that affirmative action for forward castes/classes was a violation of the basic structure of the Constitution.
It argued that the judgment did not address its contention that reservation could be only used narrowly as a tool for representation, to enhance equality by breaking social monopolies and oligarchies in State institutions, and that its use for any other purpose (such as as an employment/education scheme) would violate the Basic Structure and Equality and Social Justice Codes of the Constitution.
The petition said the majority decisions rest on the erroneous assumption that OBC, SC, ST reservation was caste-based reservation.
"This is a fatal error. The fact is that OBC, SC, ST reservation is not caste reservation. It is open to and inclusive of all castes, religions and communities (including caste-less communities such as the transgender community) that meet over 15 stipulated multi-dimensional deprivation criteria on social, economic, educational and political representation. OBC, SC, ST reservation is also, like EWS, for a social and educational class (the ‘backward’ class amongst them), with a creamy layer cut-off," the petition argued.
The DMK party, represented by senior advocate P. Wilson, has also filed a review petition against the EWS judgment.
The petition contended that the majority opinions had relied on the erroneous assumption that EWS reservation was for sections of the population that had not received benefit of reservation in public employment and education.
"The fact is that EWS reservation is open to those who qualify for a variety of reservations (such as women’s reservation, sportspersons reservation, domiciliary reservation, etc," it said.