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.

... contd.