Landmark judgments can have one of two features. They can strike an uneasy balance between competing considerations, in a sort of compromise that keeps the peace. Or they can mark out a radically new course of action. Ashok Thakur is an oddity in that, amidst all the complications of four different judgments, it manages to do both. The core orders of the Supreme Court strike a balance between two considerations. A society like India needs affirmative action. But the core question must have some rational justification: Who should be targeted, why should they be targeted and how should they be targeted? For all the brave face the government is putting up, its perfidy has been exposed. The issue was not whether affirmative action is permissible. What was grossly objectionable was that the government indiscriminately included groups that manifestly ought not to be beneficiaries. They had converted a social policy into a pure power play.
The court has, in deference to the legislature but in line with its own precedent, upheld reservations. It has upheld the constitutionality of the 93rd Amendment and 27 per cent quota for OBCs. But it is in modest ways forcing the government to rationalise the system in at least two ways: the exclusion of the creamy layer from the OBC quota and an injunction that the inclusion of specific groups be reviewed every five years. The rationalisation imposed is modest. Who falls under creamy layer exclusion is relatively clear in case of government employees. But the judges have left the determination of its precise boundaries an open question and potentially given the government a good deal of discretion. This will potentially be a great area of uncertainty in the future. But implicitly there is a reminder that caste is a reality in India but it is not the only reality.
The second area of uncertainty is whether private unaided institutions can come under the purview of reservations. The 93rd Amendment was occasioned by the issue of private institutions in the first place. But strangely, the court refused to pronounce on this constitutional issue on the grounds that no private party was impleaded in the matter. But this is precisely the issue that provoked Justice Bhandari’s dissent to one of the strongest defences of the rights of unaided institutions to date in Indian judicial history. The regulatory uncertainty on this issue is likely to continue for a long time, and may be an indication of how divisive this issue will yet be.
This issue is directly related to an issue that the court settles incidentally: whether minority institutions should be exempt from the purview of reservations. The court has upheld special status for minority institutions, but in doing so seems to have confused, as it has in the past, two different issues. The court has been rightly concerned in the past and has insisted that an institution should not lose its minority character merely because it receives state funding. But it does not follow from that fact that the Constitution requires that there be a distinction between minority and majority institutions if they do not receive any state funding. In other words, the court has lost an opportunity to detach freedom of association from being irrevocably imprisoned in the categories of minority and majority. But the fact that it could not come to a determination on unaided institutions has left the majority-minority distinction inscribed in areas where it is unnecessary.
For the most part, the court operates within the parameters of Indra Sawhney; the CJ’s moderately worded judgment does, contrary to the government’s stand, categorically insist that there is a qualitative distinction between SCs and OBCs, and the two deserve different treatment. This is the ground on which creamy layer is excluded for the one and not the other. But since it is operating within existing precedent, many of the anomalies over affirmative action are likely to persist. A curious sentence from the CJ’s judgment: “If any Constitutional Amendment is made which moderately abridges or alters the equality principle under Article 19(i)(g) it cannot be said that it violates the basic structure of Constitution.” Moderate abridgment may be a tacit concession to the fact that the current scheme of reservation remains at best very blunt in its targeting.
While the core orders can be construed as a holding pattern compromise, the large and contentious issues that divide Indian society are scarcely resolved. This division can be seen in the overall approach of the majority and Justice Bhandari’s extraordinarily pointed dissent. Both agree that Indian society is characterised by inequity. But one approach of addressing this inequity operates in the following paradigm. To overcome this inequity we must recognise the key axis of social divisions like caste. It then assumes that the very same categories that produced the social division in the first place should be used to address inequality. Another more radical approach worries that using the same categories is perpetuating those very distinctions that we seek to overcome. The way to overcome caste is to overcome it in public policy, but at the same time attend to the basic provisions that make for real social empowerment.
Which side you come out on is not a matter of pure legal judgment. It depends on your reading of Indian history. One side says: look at the reality of caste. Another side says: look at the ineffectiveness and arbitrariness of reservations, a policy that does not help the very groups it is designed to help. On the one side, which the majority represents, there is an unstated pessimism that is barely concealed — Indian society cannot be trusted to effectively do all the right things quickly enough: spread genuine quality education, create awareness about discrimination and aspire towards equality. So the present compromise is warranted. On the other side, reflected in the dissenting judgment, there is a real fear that this politics of pessimism plays straight into the hands of those who want to opportunistically exploit divisions, engage in power play and avoid doing the real thing.
It is time we really did say to ourselves: let us make quality education a basic right. Let us be clearer about the real sources of social disempowerment and address them. One is resigned to a society of necessary palliatives, the other dreams of an India beyond caste and the tyranny of state-sponsored compulsory identities. The majority judgment reflects the former; the dissenting judgment the latter. Who is on the side of the future will be decided, not by the courts, but by the kind of politics we now engage in.