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.

The Supreme Court is asking long-overdue questions. India needs some affirmative action policy. The debate is over who should be targeted, why they should be targeted and how they should be targeted. The current reservations policies do not provide a rational basis for answering any of these questions. At Independence there was a consensus that SC/STs had been subjected to such an appalling degree of subordination that their case for reservations was self-evident. One of the greatest travesties of modern Indian politics is how that narrative of exploitation was appropriated by castes whose condition and entitlement was, by any stretch of imagination, not quite the same. The number of groups entitled to reservation was recklessly expanded till the policy became a catch-all grab for power rather than a social justice programme.

The Supreme Court’s query about the number and identification of Other Backward Classes can be interpreted in two ways. The weak interpretation will simply give an aggregate number based on a favourite data source. All agree that the Mandal Commission’s number of 52 per cent had no foundation. But other data sources will put this number somewhere between 30 and 40 per cent. But is this all that we should be discussing? We have created a new paradigm of thinking in so many fields. Is it not possible to use this opportunity to think about the sorts of deprivations that impede individuals from realising their opportunities in a more complicated and rigorous way?

Our current paradigm of thinking about deprivation is a mess, and likely to be made more so by the patchwork of groups that will be added on under new proposed schemes. Should we not at least think of a properly constructed deprivation index that has considerable advantages over the current system? It will make caste at most only one consideration and enable us to move beyond it, it will be able to assign weights that better target those who are genuinely economically marginalised, it will pick out relevant individuals more than bluntly defined castes, and will in principle be more sensitive to different layers of deprivation that stand in the way of opportunity. This scheme could, if well-designed, cut through so many of the dichotomies that bedevil the current system. It could be an alternative to caste-based reservations rather than a supplement, as the National Knowledge Commission has strangely proposed. While a full discussion of alternatives is a matter for another occasion, it is worth stressing that the court is giving us an opportunity to think about deprivation rigorously and junk analytically dubious categories like OBC altogether. The point of reservations is to overcome caste, not perpetuate it.

This inflation in the currency of reservations was accompanied by a fundamental obfuscation. Is reservation an anti-discrimination instrument? Is it an instrument for creating a middle class? For expanding opportunity? Or are we committed simply to mirror theory of representation? Each of these objectives rests on a different justification and requires different instruments. One of the most appalling consequences of current reservation policy is that it misidentifies the barriers to entry in higher education. It is a cliché, but one that bears repeating, that inequality in educational opportunities is not corrected by reservation: that requires a whole range of other instruments like better schooling. For instance, there is some evidence that, if we consider economic criteria, caste has negligible effect on your probability of being able to access higher education. Indeed we can say something stronger: even with reservation and low fees, lack of income remains a formidable barrier in accessing higher education. If this is the case, then economic empowerment through vastly more ambitious scholarship schemes than currently exist is going to do more for access than reservations.

Reservations, in their current form, are a cover for not demanding and doing things that will be the sources of effective empowerment. It is an astonishing reflection on the state of our democracy that not one politician, from any caste, is willing to say, “Junk this illusion creating opiate. Ask more solid means of empowerment.” The political response to reservation is corrosive, not just because it has the potential of creating a constitutional crisis, but because it is dangerous for democracies to continually peddle the politics of illusion.

The writer is president, Centre for Policy Research, New Delhi