CJI: The argument comes from two planes- one, from person coming from unreserved category. There could be people who are belonging to community which are SEBC but you're saying that since you are in creamy layer, that affirmative action is denied.
J Bhat: If the govt is saying this is a special class, there can be another special class.
Adv Agarwal: That's why I again I fall back to 50% and whether that is basic structure.
Adv Agarwal: Reservations are not exception to rule of merit.
CJI: We're saying you're taking out from general pool.
J Bhat: When you're giving it to everyone, it's not a problem but when you're taking affirmative action for a selected pool, that's the exception.
Adv Agarwal: That's the opportunity cost.
CJI: Minimum 50% should be reserved for open category.
Adv Agarwal: The guardrail controls it. CJI said that this particular enables to take out 10% of open category. That is the opportunity cost. Suppose we remove 15(5) and (6), even when a single seat is reserved for SC/ST/OBC, it is taken out from general pool.
Adv Agarwal: Nagaraj was considering a situation where a segment had reservation at entry level and in matter of promotions. That was a far graver thing. In that case, Nagaraj said there shouldn't be excessiveness.
Adv Agarwal: 50% is not the mathematical nicety which is a part of basic structure. It is the concept of excessiveness. We have to understand the background of Nagaraj.
CJI: We suggest to this side that conclude your submissions by 4 pm today and then rejoinder can be on Tuesday.
Bench rises. Hearings to resume at 2 pm.
Agarwal: M Nagaraj says that part of basic structure that we need to locate that there may not be excessiveness. Basic structure is the controlling of excessiveness. Excessiveness will always depend of facts.
Adv Agarwal: Our submissions on applicability of the new Articles in private unaided institutions is the same as those in Pramati Judgement and Ashok Kumar Thakur judgement.