CJI: So far as (4) and (5) are concerned, you can have reservations. But so far as open category is concerned, it is open for all. By this 10% you're reducing the share of that open category.
J Bhat: There is a right to be treated as an open category. Therefore, it's a floating thing. Depending upon performance, you get into merit. In the open category, you could have from all. Once you put 10% embargo, you're excluding them on basis of caste.
CJI: The moment you make a departure and say it's not open for all, you're departing from the rule. So far as GC is concerned, keep atleast 50%. As a result of carving 10%, are you not reducing share for those who were competing on basis of merit?
Jethmalani: Indra Sawhney says that once you've got what Art 15 provides, you can't even get it from any other category.
CJI: That's not the idea. The concept of open category is not something which is for meant for someone. It's meant for everyone depending upon merit.
CJI: You're carving out a seperate area. The persons who are getting affected are not from the category that are from the better lot.
CJI: ...lots of wealth to those who are have nots. So it's distribution of wealth. Therefore, at whose expense? The haves, you're giving to have nots, from the haves. Today it is reverse.
Jethmalani: We're now talking about a constitutional amendment here as opposed to an OM.
CJI: Let's test it. The essence of the submissions is that take for eg Bhim Singh ji- where you're thinking of EWS, take ceiling law- the source is someone who is earning..
J Bhat: But with EWS you're moving around, you're crossing a line. You may continue being poor.
J Bhat: Did the concept of creamy layer exist during Indra Sawhney?
Jethmalani: It was argued.
J Bhat: But it wasn't a concept.
For three years, there is a creamy layer so some people are excluded but a child might get it. Same thing might happen today.
Jethmalani: Ironically, while Indra Sawhney lays down that economic criteria shall not be criteria for inclusion. But the creamy layer OBCs are excluded on basis of economic criteria. So there is a contradiction.