Muralidhar Rao v State of AP: the debate on Strict Scrutiny continues

The debate on strict scrutiny is heating up, and Thakur is certainly not the final word on it. This blog has looked at the issue on previous occasions. After Thakur’s refusal to apply strict scrutiny to reservations for OBCs in higher educational institutions, the Delhi High Court in Naz Foundation held that on a harmonious interpretation of Thakur and Anuj Garg, strict scrutiny shall be applied to all violations of Article 15, except in affirmative action cases. Then the Supreme Court in Subhash Chandra sought to read Thakur even more narrowly. The latest in this series of cases is the judgment of the Andhra High Court in Muralidhar Rao v. State of AP, which struck down the inclusion of Muslims into the OBC category. The case has been commented upon here and here.

There are several interesting aspects of the case, one of them being that the majority uses Subhash Chandra to read Thakur very narrowly. The majority judges test the law in question on a strict scrutiny standard and find it unconstitutional. This case is also fascinating because, unlike Anuj Garg or Naz Foundation, but like Thakur, the result of the case (arguably) depended upon whether the appropriate standard of review was strict scrutiny or mere reasonableness review [although the concurring opinion of Justice Meena Kumari found the law to be unconstitutional despite her refusal to apply strict scrutiny in light of Thakur. The dissenting judges also hold that Thakur disallows application of strict scrutiny to affirmative action cases.] Here are a few extracts from the majority opinion:

76. In the afore-stated circumstances, so as to simplify the concept with regard to judicial scrutiny, we can only say that the scrutiny should depend upon the subject matter of legislation and its impact upon legal or fundamental rights of one class of the society. When, so as to achieve the goal enshrined in the Constitution of helping disadvantaged class, a law is enacted so as to give more rights to such a disadvantaged class at the cost of another class of persons, in our opinion, what is required to be examined by this Court is: whether the purpose for which such an Act was enacted was, in fact, served and whether the conclusions on the basis of which the Act was enacted were correctly arrived at. If the reason for which a particular class was considered a disadvantaged class was not rightly arrived at, the enactment made to favour such a class at the cost of the general community would not be just, proper or valid.

86. On a careful consideration of the above judgments[ including Thakur],it would emerge that when an affirmative action of the State providing reservations to backward classes was under challenge in the context of Article 14, the Hon’ble Supreme Court had gone into the details of the basis for making the classification and gave its findings. However, it did not prescribe the level of scrutiny to be applied and providing reservation on such affirmative action was tested on the standards of ‘deeper scrutiny’, ‘in-depth scrutiny’ or ‘extreme care and caution’, and in some cases the doctrine of ‘strict scrutiny’ was applied. All the judgments touching upon reservations consistently applied exacting scrutiny or rigorous scrutiny. In Indra Sawhney I, the Hon’ble Supreme Court analysed the Mandal report minutely, which, in our view, exemplifies application of a rigorous and exacting standard of scrutiny.

88. Analyses of the judgments referred to above [including Subhash Chandra] illustrate that when affirmative action of the State is challenged as offending the equality injunctions of the Constitution, particularly in the matter of reservations to SCs, STs and BCs, though there is a presumption as to the constitutionality of the statute, the Courts have examined such statutes rigorously, with great care and caution. Therefore, the contention advanced on behalf of the State that the standard of scrutiny actually applied in Archana Reddy does not suit the Indian conditions or is inconsistent with the law laid down in Ashoka Kumar Thakur, has to be rejected.

Written by
Tarunabh Khaitan
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  • Sorry for my ignorance.

    Isn't this over ruling Thakur? Or at least the strict scrutiny argument of Thakur?

    If so then can high courts over rule supemecourt in this fashion?

  • sushant, you raise a very important question. at least on the face of it, the majority opinion of the high court used two strategies:
    1. they tried to distinguish thakur (because they obviously could not overrule it). this is dubious, since both cases involved identification of beneficiaries.
    2. the second strategy that the majority used was to cast doubt on the legality of thakur itself by citing a plethora of supreme court cases before and after thakur which applied strict scrutiny. thus, they insist that indra sawhney basically applied a strict scrutiny standard, even if it did not use these terms. further support came from judgments like anuj garg and subhash chandra which post-date thakur but come from smaller benches. i think what the court is doing through these decisions is to suggest that the jurisprudence of the SC on the issue is not clear, and there is as good precedent to apply strict scrutiny as there is not. therefore we will decide the question on independent normative grounds (since precedent is unclear).

    the second strategy is (only relatively) less-troubling, but points to a broader problem with respect to the use of precedents by our courts. courts often don't cite relevant precedents (often, parties fail to bring them to the attention of the court) and what you have emanating from the supreme court is jumbled-up jurisprudence. it is a sad state of affairs where ultimately the personality of the judge comes to have a strong bearing on the result of the case, because the 'state of the law' is often so unclear. of course, one can hardly help this situation – given the sheer volume of cases that the judges have to decide in a unenviably short time, and the huge number of precedents that are potentially relevant, along with the often mediocre quality of legal representation of the parties involved. we cannot demand quick justice, have an extremely wide jurisdiction for the SC with the heaviest of dockets in the world for an apex court and demand quality jurisprudence at the same time. systemic changes are the only answer – interpreting the scope of SC's special leave jurisdiction very very narrowly might be a good start. it is often better not to decide a case at all than to decide it badly.