Has Ashoka Thakur buried the concept of stict scrutiny in Indian jurisprudence? In this recent article published by the Journal of the Indian Law Intitute, I argue that it is a good idea that may yet be revived without overruling Thakur. The issue has been discussed previously on this blog.
‘This article makes the case for applying a rigorous standard of review for constitutional adjudication under article 15 of the Indian constitution, which guarantees freedom from discrimination. Drawing upon the strict scrutiny jurisprudence in the United States and the proportionality jurisprudence in Europe, the article argues that a rigorous standard of judicial review in India can provide a more meaningful protection from discrimination. However, it warns against the wholesale importation of the United States jurisprudence and makes the case for excepting affirmative action measures from a rigorous standard of review. It also argues that the grounds on which discrimination is prohibited should be expandable rather than frozen. The discussion analyses two recent Supreme Court decisions on equality jurisprudence to further the argument – Anuj Garg v Hotel Association of India AIR 2008 SC 663, and Ashoka Kumar Thakur v Union of India 2008 (5) SCALE 1.’
Full text is downloadable at the link above. Comments are welcome.