Great nations are defined by their ability to convert a crisis into an opportunity. The Supreme Court’s stay order on implementing the 27 per cent reservation for OBCs in Central institutions gives India another chance. This stay order is not an occasion for one side to declare victory and another side war. It is rather an opportunity to replace divisive politics with one oriented to the common good, replace the illusory benefits of reservation with the real advantages of a well-defined affirmative action policy and replace the politics of brute power with a commitment to sober reason. But unfortunately all the signs are that the politicians will once again sacrifice genuine social justice to a politics of expediency; the recklessness of Arjun Singh and regional leaders will trump the supposed sobriety of the prime minister.

Courts often overstep their bounds. But it would be a gross simplification to see this as an instance of the court overstepping. The court has not overturned affirmative action. Rather it is reminding us that any scheme must be within the bounds of constitutional values. The issue was not whether the number of seats remaining in the general category is increased. That move is itself a fraud twice over. First, it diminishes the effectiveness of existing institutions. Second, it exemplified the way the government thinks of admissions: goodies to be distributed to whoever they want, a mechanism for buying out different groups.

If you have a good justification for increasing reservation, the number of seats is irrelevant. Rather what is at stake is something deeper: an arbitrary and indiscriminately targeted scheme violates the fundamental principle of equality. This is not because of the number of seats at stake or some naïve commitment to a narrow conception of formal equality. But it is a corner stone of constitutionalism that there must be a solid justification for why a particular group must be treated differently from others. The principle behind the creamy layer exclusion is that if starting points, in most significant respects, have been made equal, then there is a burden on the state to prove why similar categories should be treated differently. The court is asking for a policy based on justification, not brute power and for a policy that can balance the different values at stake.

... contd.