J Bhat: From 58, it becomes 40. That cannot be your argument.
Arora: Today the way it's worded, once you take the EWS anyone who falls in that category will be those who are poorest of poor from that EWS.
CJI: Why exclude a particular class? That's your preliminary submission.
J Bhat: That is not your argument.
J Maheshwari: How Horizontal will work, given the language?
J Bhat: Take instant wise- gender, you see how many are from OBC, then merit applies. This cannot be because it's impact will be vertical.
J Bhat: Once you look at classes of horizontal reservations, there is gender, disabilities, all of them intersect. That cannot happen in this. This is a clash.
CJI: The moment you say horizontally, it cannot be vertical.
J Bhat: The non obstante clause has to be read down
Arora: Horizontal reservations which was done in cases of disabilities.
Arora: This dilutes the character of reparative justice. We do not oppose any affirmative action and this is in alternative but in Jayshree Patil v. Chief Minister, it was held that there are other ways without diluting nature of reservations, such as horizontal reservations.
Arora: "An affront to a dignity of SEBC the target beneficiaries under 16(4) necessitates a tailored response." - from a judgement.
Arora: It can be solved simply by giving money.
Arora: The reservations for EWS is not based on any intuition that it's beneficiaries cannot compete fairly in state services. Economic disadvantage is neither entrenched nor enduring. In absence of backwardness it may even be temporary.
Arora: Procedure is also unequal and discriminatory. 103rd amendment violates the equality code...it dilutes the benefits of SEBCs that are originally the beneficiaries of reservations.
Arora: For the first time, we are having an explicit exclusion of the poorest of poor and the most vulnerable.