The Madras High Court on Monday issued a notice to Central and state governments to reply before February 18 on 10 per cent reservation for economically weaker section in general category.
The petition was filed on Friday by R S Bharathi, Organizing Secretary of Dravida Munnetra Kazhakam(DMK) contending that the amendment violated 'basic structure' of the Constitution.
"Therefore, essentially, the exception to the equality clause is only available to those communities which were ostracised for centuries in matters of education and employment. Economic criteria has been, however, used as a filter to exclude the creamy layer, persons belong to the backward classes but who are economically advanced," DMK organising secretary R S Bharathi said in the petition.
"Hence, application of economic criteria solely is not contemplated as an exception to the rule of equality and consequently to provide reservation solely on economic criteria offends the basic structure of the Constitution," he added.
The petitioner said, "It is well settled that the ceiling limit of 50 per cent in reservation is also part of the basic structure and has been asserted by the Supreme Court in several cases.
"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 placed in the IX Schedule," he further submitted.
Hence, reservation cannot be beyond 69 per cent in the state. However, the recent amendments enable reservation to go up to 79 per cent and the same is "unconstitutional", he said.
He contended that the power to amend the Constitution is subject to the limitation that the basic feature of the Constitution cannot be destroyed by such amendments.
The amendment bill was passed by the Lok Sabha on January 8 and cleared by the Rajya Sabha the next day. The amendment received Presidential assent on January 12 and was notified by the Centre on January 14.
The newly inserted Article 15(6) enables State to make special provisions for advancement of any economically weaker section of citizens, including reservations in educational institutions.
It states that such reservation can be made in any educational institution, including private institutions, whether aided or unaided, except minority educational institutions covered under Article 30(1).
It further states that the upper limit of reservation will be ten percent, which will be in addition to the existing reservations.
At present, reservations account for a total of 49.5%, with 15%, 7.5% and 27% quotas for Scheduled Castes, Scheduled Tribes and Other Backward Classes respectively.