EWS reservation: DMK files review petition against Supreme Court judgment; seeks open court hearing

Dravida Munnetra Kazhagam (DMK) has moved the Supreme Court by way of a review petition against the top court's November 7 judgment which had upheld the Constitutional validity of 103rd Constitutional Amendment which grants 10 percent reservation to Economically Weaker Section (EWS) among the forward castes [Janhit Abhiyan vs Union of India and ors]..Besides seeking a review of the judgment, the plea has also sought open court hearing in the matter on the ground that it affects 133 crore Indians..A Constitution Bench of the Supreme Court had, on November 7, upheld the Constitutional validity of EWS reservation.The judgment was delivered by a bench comprising then Chief Justice of India (CJI) UU Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala.There were four separate judgments delivered by the bench with then CJI UU Lalit and Justice Ravindra Bhat dissenting from the majority opinion.The dissenting judges had said that while reservation on economic basis is permissible, excluding SC/STs and Other Backward classes from EWS cannot be permitted and amounts to discrimination against them..The review plea against the same has contended that the top court did not consider or even refer to the law laid down by its larger bench in Indra Sawhney case."In fact some portions of the impugned majority opinions overrules/ rewrites the judgement in Indra Sawhney as well disregards the Judgement in NM Thomas case, and coequal bench judgment rendered in Nagaraj , Asoka Kumar Thakur cases," the plea states..The petitioner has further submitted that the word “economically” cannot be read in isolation without the word “weaker sections” to exclude reservations for SC/ST/OBC’s (which is in conflict with Art 46) who are constitutionally recognised weaker sections. "Thus, the law laid down by 7 judge bench in N.M. Thomas’ case has been impliedly overruled by the Hon’ble Supreme Court under the impugned judgment by approving that upper caste who are the ultimate beneficiaries under Art 15(6),16(6) need not be educationally weaker nor dismally depressed categories comparable to SC/ST.".The plea argues that the top court never examined as to how “forward castes” benefitted under the impugned constitutional amendment can be called as “weaker sections” merely because they are economically not sound.The Supreme Court committed an error apparent on the face of the record by holding that abolition of reservations will abolish the caste system and lead to an egalitarian society, it has been submitted. Further, none of the three opinions that constitute the majority judgement have considered the ‘identity’, ‘width of power’ and ‘unguided power’ tests that have been laid by top court to test constitutional amendments, it has been contended. .The Sinho Commission Report relied upon by the Central government for 103rd constitutional amendment itself claimed that there is no authentic data available to support the data of below poverty line in economically backward class who are outside the reservation net, the plea states."Court in the impugned judgement has not considered that the only data available to the Union before the 103rd Amendment was the Sinho Commission Report, and the Sinho Commission data is not empirical data for the purposes of reservation." .By granting reservations to forward castes, the State is undoing the equality brought about by Articles 15(4) & 16(4) and destroys Art 15(1) and 16(1) and therefore, the 103rd Amendment fails the identity test as well against basic structure of constitution, adds the plea.The plea has been drawn by advocates Richardson Wilson and Apoorv Malhotra settled by Senior Advocate P Wilson. It has been filed through advocate R Nedumaran.