J Bhat: That is the direction that Constitution makers took in original. It has to be understood in that context and provison of reservation was recognised. Perhaps the argument there is that it is a per se category that needed positive discrimination; that is where 15(3) comes.
J Bhat: Perhaps that's the answer that women are a class which are recognised and identified easily.
J Bhat: Where is this safeguard or committee etc? When we bring it, we have to look at it holistically.
Arora: Constitution envisaged that you could make special legislations which were not in 15(1) but can be for women and children as a class.
J Bhat: Just to flag one possible way of looking at it- the original constitution also thought of reparative channel which did not have guardrails.
Same history cannot have two. You cannot have departure. First amendment uses same words. 15(4) uses special provision.
Arora: What your lordships gave- representation of women are completely mutable but EWS is immutable because it's variable- equity, justice are variable factors.
J Bhat: To test your arguments, let's go to 15(3)- that is also immutable factor. For that there are no guard rails.
J Bhat: In elections, reservations are for 1/3rd women, 1/3rd women SC/ST/OBC. In that sense this is a powerful marker of identity.
Arora: ...must be backwardness and inadequacy of representation.
CJI: This was in the context of express language of 16.
J Bhat: More than that part what is relevant is the test of width and identity. Broad equality is not the mark but it's the identity.
Arora quotes from Nagaraj Judgement: In the matter of application of principle of basic structure, twin tests have to be satisfied namely the width test and the test of identity... Therefore in every case where state decides to give reservation there...
Arora: Can I just place a few paragraphs of Nagaraj 2006 8 SCC?
CJI: We are only deliberating if reading down is possible or not.
Bench discusses.