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):
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 benefit. 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.
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 relevant. 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 U.S. Supreme Court applicable to our review of affirmative action under Art 15(5) and similar provisions? 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.