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.

... contd.