Thursday, April 10, 2008

Mandal II and strict scrutiny

In Ashoka Kumar Thakur v. Union of India (Mandal II case), the SC has refused to test the impugned law through strict scrutiny. However, it seems that this refusal is restricted only to affirmative action legislations, and the Court has left scope for the argument that a discriminatory law that disadvantages a vulnerable group may be scrutinised strictly. In fact, in an earlier decision of the SC delivered in December 2007 (Anuj Garg v. Hotel Association of India) a law discriminating against women was tested by strict scrutiny standard, i.e. the State was required to show a compelling interest in the objectives sought to be achieved by the law and the fact that it is narrowly tailored to achieve that objective.

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):

Balakrishnan CJ:

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

United States of America cannot be applied directly to India as the

gamut of affirmative action in India is fully supported by

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 be

constitutionally 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 action

contemplated under Article 15(5) of the Constitution.

Pasayat J:
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 India. It is submitted that label is not


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:


7) Are the standards of review laid down by the U.S.

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 "Compelling State necessity" are not strictly

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.

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