Admittedly, this is only one reading of the Mandal II case, and there is enough loose wording to conclude that strict scrutiny has been buried not only for affirmative action but also harmful and insidious discrimination. In my opinion, that was not the question before the Court and the ratio of the case is certainly limited to affirmative action cases. If Article 15(1) should give rise to the same deferential 'reasonableness' test that is used for Article 14, the Court is treating a distinction between men and women under Article 15 at par with a distinction between sellers of tea and coffee under Article 14 - this surely cannot be the correct constitutional position. Hopefully later cases that deal with insidious discrimination rather than affirmative action will confirm the position in Anuj Garg that strict scrutiny does indeed have a role to play in Article 15(1) (and also Articles 19 and 21).
Relevant extracts from the Mandal II case are below (all emphases mine):
179. Thus, the first limb of the strict scrutiny test that elucidates the
"compelling institutional interest" is focused on the objectives that
affirmative action programmes are designed to achieve. The second
limb, that of "narrow tailoring", focuses on the details of specific
affirmative action programmes and on the specific people it aims to
184. The aforesaid principles applied by the Supreme Court of the
gamut of affirmative action in
constitutional provisions and we have not applied the principles of
"suspect legislation" and we have been following the doctrine that
every legislation passed by the Parliament is presumed to beconstitutionally valid unless otherwise proved.
Summary - 9. The principles laid down by the United States Supreme
Court such as "suspect legislation", "strict scrutiny" and
"compelling State necessity" are not applicable for challenging the
validity of Act 5 of 2007 or reservations or other affirmative actioncontemplated under Article 15(5) of the Constitution.
132. It is unnecessary to decide as it has been contended
by learned counsel for the petitioners whether the concept of
strict scrutiny is a measure of judicial scrutiny as highlighted
by the conditions in
139. To sum up, the conclusions are as follows:
(10) While interpreting the constitutional
provisions, foreign decisions do not have
great determinative value. They may provide
materials for deciding the question regarding
constitutionality. In that sense, the strict
scrutiny test is not applicable and indepth
scrutiny has to be made to decide the
constitutionality or otherwise, of a statute.Bhandari J:
SUMMARY OF FINDINGS
7) Are the standards of review laid down by the
Supreme Court applicable to our review of
affirmative action under Art 15(5) and similar
The principles enunciated by the American Supreme Court,
such as, "Suspect Legislation" "Narrow Tailoring" "Strict
Scrutiny" and "
applicable for challenging the impugned legislation.
Cases decided by other countries are not binding but do
have great persuasive value. Let the path to our constitutional
goals be enlightened by experience, learning, knowledge and
wisdom from any quarter. In the words of Rigveda, let noble
thoughts come to us from every side.