‘Strict Scrutiny’ Test in Constitutional Adjudication: Indian Experience
The need of the judicial interpretation has ever existed and persisted in every legal system of the world. Initially the judges in their eagerness to avoid the blasphemy of judicial legislation bounded themselves with the rule of literal interpretation which led to a number of absurd and inequitable results. Subsequently, in relation to the constitutional adjudication, the role of judges enlarged from literal interpretation to intent based interpretation and finally to declaration in cases of vacant spaces. However it was the Supreme Court of the United States of America, one of the oldest constitutional courts of the world, which bestowed upon itself the power of judicial review ; it was this power which made courts the gatekeepers of fundamental rights and provided for the power of a court to hold unconstitutional and hence unenforceable any law, official action based on a law, or any other action by a public official, that it deems to be in conflict with the basic law, that is, the Constitution.
In exercising the task of determining whether a violation is in fact justified the courts have evolved, educed and applied various rules of interpretation. The courts in such constitutional adjudication where the fundamental rights infringement were involved provided that these issues deserve an intense review. Several new tests evolved as an outcome of such need of intense review. One of the tests evoked and utilized by the court in such constitutional adjudication is in form of ‘Strict Scrutiny’ Test.
This work emphasizes upon the meaning and genesis of ‘strict scrutiny’ test, elements of ‘strict scrutiny’ test, application of ‘strict scrutiny’ test in USA, applicability of test in Indian Constitutional interpretation and approaches of the courts in this regard lastly it testifies the need of the test in Indian Constitutional framework.
II. ‘Strict Scrutiny’ Test: Its Intendment, Provenance And Elements
“We seek not just freedom but opportunity—not just legal equity but human ability—not just equality as a right and a theory, but equality as a fact and as a result.”
When a government actor makes a decision that confers benefits or burdens based on a person’s status or membership in a particular group or class, e.g., race, gender, or age, and that decision is challenged, the legality of the decision must be analyzed under one of three levels of judicial scrutiny—strict, intermediate, or weak.
Strict scrutiny test in its ingenuous form can be said to be a standard of judicial review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy. Strict scrutiny test is one of the tests amongst the three tests utilized by the US courts, the other two as-
(a) the rational basis test, which is the lowest form of judicial scrutiny used in cases where a plaintiff alleges that the legislature has made an arbitrary or irrational decision.
(b) the heightened scrutiny test, which is used in cases involving matters of discrimination based on sex.
According to Richard Fallon strict scrutiny test is a judicially crafted formula for implementing constitutional values which ranks among the most important doctrinal elements in constitutional law.
Strict scrutiny test which evolved from the ‘preferred freedom’ test, which itself was a revitalized version of ‘clear and present danger’ test provided for a tripartite test as follows-
1. Where legislation or other statement of policy abridges a preferred freedom on its face, the usual presumption of constitutionality is reversed; that is, the statute or other enactment is assumed to be unconstitutional, and that presumption can be overcome only when the government has successfully discharged its burden of proof.
2. The government must show that the exercise of the fundamental right in question constitutes ‘a clear and present danger’ or that the legislation relating that liberty advances ‘a compelling interest.’
3. The legislation must be drawn in such a way as to present a precisely tailored response to the problem and not burden basic liberty by its over breadth; that is, the policy adopted by the government must constitute the least restrictive alternative.
According to Prof. John Ely, courts should strictly scrutinize statutes of the kind’s most likely to trigger suspect-content tests. He points out that given the Constitution’s central commitment to political democracy, the crucial role of the courts is not to second-guess the substantive decisions of the political branches but to ensure the integrity of the democratic process.
In applying the strict scrutiny to legislation containing suspect classification, the judges have used the above standards to judge laws infringing a preferred freedom. A statute that explicitly discriminates on the basis of race, for example, is presumed to be unconstitutional. Government bears the burden of demonstrating that it has compelling interest for distinguishing among citizen on that basis. It must also show that no other basis for categorization in the law could serve that compelling interest as effectively.
Thus the term “strict scrutiny” refers to a test under which statutes will be pronounced unconstitutional unless they are “necessary” or “narrowly drawn” or “closely tailored” to serve a “compelling governmental interest”.
According to Fallon the modern strict scrutiny test developed during the 1960s as an innovation of Warren Courts. Before the 1960s, the idea had emerged that some constitutional rights deserved more protection than others, or appropriately triggered heightened judicial scrutiny, but no workable formula had emerged to implement this general idea, it was this need of workable formula that the strict scrutiny test was evolved. Fallon writes that strict judicial scrutiny---which is a generic constitutional doctrine, capable of broad application---rose to prominence as the solution to a generic problem confronting the Warren Court. That problem involved the judicial enforcement of a regime of “preferred” or fundamental rights that were too important to be balanced away on an ad hoc basis or protected only by a rational basis test, on the one hand, but that the Court thought it impractical to define as wholly categorical or unyielding, on the other. The modern strict scrutiny test arose as a device to implement, or as the constitutional complement to, a closely related phenomenon of more primary significance: the Supreme Court’s solidifying commitment to a jurisprudential distinction between ordinary rights and liberties, which the government could regulate upon the showing of any rational justification, and more fundamental or “preferred” liberties entitled to more stringent judicial protection. The evolution and development of the strict scrutiny test will be emphasized more while dealing with the USA perspective.
According to Siegel Strict scrutiny varies from ordinary scrutiny by imposing three hurdles on the government. It shifts the “burden of proof” to the government; it requires the government to pursue a “compelling state interest;” and it demands that the regulation promoting the compelling interest be “narrowly tailored.” Thus, broadly there exist three elements of fulfillment in relation to strict scrutiny test which are discussed herewith.
(i) Burden of Proof: - Shifting the burden of proof is an expression of strict scrutiny’s assumption that in certain situations the judiciary should not accord the normal presumption of constitutionality to government action. The burden shifting aspect of strict scrutiny traces to the Supreme Court’s decision, in the late 1930s, to accord governmental action that burdened First Amendment liberties a reduced presumption of constitutionality.
(ii) Narrow Tailoring: - Narrow tailoring is the oldest branch of strict scrutiny. Tracing back to Gilded Age Commerce Clause adjudication, and frequently used in Lochner-era police power cases, the “narrow tailoring” doctrine gave meaningful protection to constitutional norms well before the development of either bifurcated review or modern strict scrutiny. By 1940, the New Deal Court had made narrow tailoring analysis a prominent part of First Amendment jurisprudence. The Warren Court made it a part of equal protection analysis in 1964.Strict scrutiny’s “narrow tailoring” requirement provides a means to examine the government’s “precision of regulation,” allowing the Court to uphold government action “only if ... it is necessary to achieve ... [the] compelling interest” that the government has asserted as the purpose of its action. Narrow tailoring demands that the fit between the government’s action and its asserted purpose be “as perfect as practicable.”Strict scrutiny’s narrow tailoring requirement means that in pursuing its goals, government action can be neither over- nor under-inclusive.
(iii) Compelling State Interest: - Siegel emphasizes that a compelling state interest is one of the central tenets of modern constitutional law. It comes into play, whenever government employs a suspect classification, burdens a fundamental interest, or adopts a content-based regulation of speech. According to him the compelling state interest standard was a comparatively late development in the evolution of bifurcated review. Further he says that the compelling state interest test has roots that reach into the 1940s; it first appeared in First Amendment litigation in the late-1950s and early 1960s. Its birthing process was not complete until 1963 at which time it coalesced with other doctrines to form modern strict scrutiny analysis. Initially confined to the First Amendment, it took another six years for all the component parts of strict scrutiny to migrate to the Equal Protection Clause. The compelling state interest standard was the last component to make the move. When it did, strict scrutiny rapidly blossomed into one of the late-twentieth century’s most fundamental constitutional doctrines.
III. Progression Of Strict Scrutiny Test In United States Of America
“..there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution..”
The words “strict scrutiny” appear nowhere in the US Constitution. However a passing reference to “strict scrutiny” can be found in Skinner v. Oklahoma but the Supreme Court did not again use the term until the 1960s, meanwhile, the Court had spoken of applying “the most rigid scrutiny” to race-based classifications in Korematsu v. United States. The origin of this test can be traced to the decision in United States v Carolene Products in which Justice Harlan Stone noted that there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution.
Siegel on the roots of strict scrutiny opines that strict scrutiny’s roots back to First Amendment cases in the 1940s and 1950s, it establishes strict scrutiny as part of a constitutional paradigm in which, even for high protectionist Justices, no constitutional right was “beyond limitation,” and none could prevail over an appropriate subordinating governmental interest. According to him when Justice Brennan quoted Rutledge’s remark in Sherbert v. Verner , he announced the birth of modern strict scrutiny.
According to Fallon the modern strict scrutiny test developed during 1960s. According to him it was need of a doctrinal structure which could impose discipline or at least the appearance of discipline on judicial decision making that paved way for strict scrutiny test. Subsequently the Supreme Court employed the test in various provisions of the Constitution. The Court applied it in cases of race-based classifications under the Equal Protection Clause , in Free Speech Cases , in Freedom of Association Cases , and Strict Scrutiny under the Due Process Clause.
Articulation of strict scrutiny test in affirmative action was first seen in Regents of the University of California at Davis v. Bakke in which Justice Powell observed that a race-conscious program survives strict scrutiny test if it is “precisely tailored” to serve a “compelling governmental interest”. The Bakke case considered whether the affirmative action admissions program at the University of California at Davis violated the Equal Protection Clause by granting preferential treatment in its admissions decisions to applicants of color.
However Elizabeth Anderson argues that the courts struck down race-based affirmative action programs on the basis of alleged failures to meet strict scrutiny of racial classifications, without having a clear grasp of the point of strict scrutiny and hence of how to apply it. According to her the arguments for affirmative action have actually helped perpetuate a confused conception of strict scrutiny and its purposes. She further emphasizes that the integrative rationales for affirmative action in higher education also could easily pass equal protection analysis, if only the point of strict scrutiny of racial classifications were understood. She argues that there is no constitutional or moral basis for prohibiting state uses of racial means to remedy private-sector discrimination. Integrative affirmative action programs in educational contexts, which aim to remedy private-sector discrimination, can therefore meet the requirements of strict scrutiny, properly interpreted.
Subsequently in Grutter v. Bollinger , the U.S. Supreme Court held that broadly defined student body diversity is a compelling interest that can justify the use of race in university admissions when the institution determines that such diversity is necessary to achieve its educational mission. However in Gratz v. Bollinger , the Court held that the University of Michigan’s undergraduate admissions policy of automatically distributing twenty points to students from underrepresented minority groups was not narrowly tailored because it assumes that each member of a racial minority group makes the same contribution to the university based solely on race and forecloses the exercise of academic judgment on the potential contributions of an applicant based on all of his or her attributes.
Thus the Supreme Court’s approach in affirmative action was that the program should survive a strict scrutiny analysis if it were to continue.
IV. Strict Scrutiny Test: The Indian Experience
“The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all.”
(A) Indian Constitution: A Backdrop
India, a Union of States, is a sovereign, socialist, secular, democratic, republic with a parliamentary system of government. The Constitution offers all citizens, individually and collectively, some basic freedoms in the shape of fundamental rights that are justiciable. These include freedom of conscience and freedom to profess, practice, and propagate religion; the right of any section of citizens to conserve their culture, language, or script; and the right of minorities to establish and administer educational institutions of their choice. However the absolute concept of liberty and equality are very difficult to achieve in modern welfare society. The form in which such rights have been provided is in the form of restrictions which the government is expected to follow in the governance of the country. Unlike the US Constitution the Constitution of India formulates the fundamental rights with inherent restrictions which permit the State to directly impose the limitations on the fundamental rights.
Under the Indian Constitution, the fundamental rights have been provided in different forms. In some cases there is an express declaration of rights while in others they are declared as prohibitions without any reference to any person or body to enforce them. Some of these rights take specific forms of restrictions on State action while some require sate action. Some of them are also given in the form of positive declaration and simultaneously provide for restriction on them. Though the declaration of fundamental right has not been in a uniform pattern yet they seek to protect rights of individuals or groups of individual against the infringement of these rights within specific limits, express or implied with each right having different dimensions of facts.
(B) Affirmative Action & India
The Constitution of India seems to be the first to have expressly provided for affirmative action. It is one major country in the world that has a longer history – a much longer history -- than the U.S. of designing and evaluating affirmative action programs. Since the adoption of its Constitution in 1950, India has afforded an extensive program of affirmative action to a set of caste groups known as Scheduled Castes and a set of tribal groups known as Scheduled Tribes, which together constitute about twenty-two percent of the total population. In addition, India has provided more selective affirmative action measures to a number of groups within Indian society, defined by the constitution as “socially and educationally backward classes,” which have suffered from a history of economic exploitation and social segregation comparable in some measure to that suffered by the untouchables.
The constitution makers were aware of the fact that mere grant of freedom from restraints and liberty would not be sufficient enough to promote these disadvantaged group of the society, therefore they imposed obligations on the State to take positive steps to lift these sections to a level from where they can take advantage of their freedom and liberty on reasonably equal footing. In several decisions the Apex Court has emphasized that equality is a positive right and requires the State to minimize the existing inequalities and to treat unequals or unprivileged with special care as envisaged in the Constitution.
(C) Conspicuous Cases Involving Issue Of ‘Strict Scrutiny’ & Courts Observation
Our constitution confers on the courts the power to scrutinize a law made by a legislature and to declare it to be void if it is found to be inconsistent with the provisions of the Constitution. The courts over the years have resorted to the Principle of Reasonableness to testify the State action. The approach of the courts was clear in which they testified the actions on the basis of test for valid classification consisting primarily of intelligible differentia and the rational relation to the objective to be sort out. Indian constitutional adjudication contrary to the U.S.A. didn’t deal with the application of strict scrutiny in constitutional adjudication; however there are some of the cases where the urge for application of the test is conspicuously made and subsequently relied upon. It would be imperative to know what the courts observed in these cases.
At the outset it is to be noted that these cases are not exhaustive, apart from it, there are cases where the courts have used the term strict scrutiny and proportionality inter alia. The precise content of ‘strict scrutiny’ and ‘proportionality review’ is deeply controversial in their respective jurisdictions. It is noteworthy that administrative action in India affecting fundamental freedoms has been tested on the anvil of 'proportionality' and therefore these cases do not fall within the ambit of present study.
In Saurabh Chaudhary & Ors v. Union of India the constitutional validity of reservation based on domicile or institution in the matter of admission into post graduate courses in government run medical colleges was questioned. In the case the appellants raised two contentions in support of the writ petition. It was submitted that in view of the equality clause contained in Articles 14 and 15(1) of the Constitution of India, reservation whether based on domicile or institutional preference would be unconstitutional. Further it was contended that any reservation that would fall within the purview of 'suspected classification' must pass the 'strict scrutiny test' or 'intermediate scrutiny test'. While respondent, in contrast, submitted that the Apex Court has laid down the law that the constitutionality of a statute must be presumed and onus to prove that the statute is unconstitutional is upon the person who asserts the same. Only two tests, namely, as to whether the classification is reasonable and based on an intelligible differentia stood the test of time and there is no reason to deviate there from. The CJI V. N. Khare observed-
“The strict scrutiny test or the intermediate scrutiny test applicable in the United States of America as argued by Shri Salve cannot be applied in this case. Such a test is not applied in Indian Courts. In any event, such a test may be applied in a case where a legislation ex facie is found to be unreasonable. Such a test may also be applied in a case where by reason of a statute the life and liberty of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts the same.”
Justice Sinha in concurrence opined that while considering the reasonableness of the institutional reservation, the Apex Court has taken into consideration the effect of equality clause contained in Article 14 and 15 of the Constitution of India. However in his opinion even applying strict scrutiny test, the institutional reservation should not be done away with having regard to the present day scenario.
In Anuj Garg & Ors v. Hotel Association of India & Ors the constitutional validity of Section 30 of the Punjab Excise Act, 1914 prohibiting employment of "any man under the age of 25 years" or "any woman" in any part of such premises in which liquor or intoxicating drug is consumed by the was challenged. Justice Sinha in this case observed:-
“Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until unless there is a compelling state purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases.”
Further, “It is to be borne in mind those legislations with pronounced "protective discrimination" aims, such as this one, potentially serve as double edged swords. Strict scrutiny test should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects.”
In Ashok Kumar Thakur v. Union of India & Ors . the Apex Court through CJI observed that the decisions of the United States of Supreme Court were not applied in the Indian context as it was felt that the structure of the provisions under the two Constitutions and the social conditions as well as other factors are widely different in both the countries, there exists structural differences in the Constitution of India and the Constitution of the United States of America.
Further in India, Articles 14 and 18 are differently structured and contain express provisions for special provision for the advancement of SEBCs, STs and SCs. Moreover, in our Constitution there is a specific provision under the Directive Principles of State Policy in Part IV of the Constitution requiring the State to strive for justice social, economic and political and to minimize the inequalities of income and endeavour to eliminate inequalities in status, facilities and opportunities (Article 38). Earlier, there was a view that Articles 16(4) and 15(5) are exceptions to Article 16(1) and 15(1) respectively.
It was observed that the strict scrutiny test as 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 in India there is no application of the principles of "suspect legislation" and it has been followed that every legislation passed by the Parliament is presumed to be constitutionally valid unless otherwise proved.
In Naz Foundation v. Government of NCT of Delhi , the High Court of Delhi attempted to harmonise the above two judgments of the Apex Court and observed that the Supreme Court must be interpreted to have laid down that the principle of 'strict scrutiny' would not apply to affirmative action under Article 15(5) but a measure that disadvantages a vulnerable group defined on the basis of a characteristic that relates to personal autonomy must be subject to strict scrutiny.
In Subhash Chandra v. Delhi Subordinate Services Selection Board , Sinha J. observed that since the facts of the Ashok Kumar Thakur case did not bear out an ex facie unreasonableness the court did not employ the strict scrutiny test.It was further observed that Ashok Kumar Thakur solely relies upon Saurabh Chaudri to clarify the applicability of strict scrutiny and does not make an independent sweeping observation in that regard.
Further the court pointed out several cases where the said test may be applied:-
1. Where a statute or an action is patently unreasonable or arbitrary.
2. Where a statute is contrary to the constitutional scheme.
3. Where the general presumption as regards the constitutionality of the statute or action cannot be invoked.
4. Where a statute or execution action causes reverse discrimination.
5. Where a statute has been enacted restricting the rights of a citizen under Article 14 or Article 19 as for example clauses (1) to (6) of Article 19 of the Constitution of India as in those cases, it would be for the State to justify the reasonableness thereof.
6. Where a statute seeks to take away a person's life and liberty which is protected under Article 21 of the Constitution of India or otherwise infringes the core human right.
7. Where a statute is `Expropriatory' or `Confiscatory' in nature.
8. Where a statute prima facie seeks to interfere with sovereignty and integrity of India.
Further putting a note of caution it was said that, by no means, the list is exhaustive or may be held to be applicable in all situations.
In T Muralidhar Rao and others v. State of Andhra Pradesh a seven judge bench of the High Court at Andhra Pradesh by a majority of 5:2 struck down the A.P. Reservation in Favor of Socially Educationally Backward Classes of Muslims Act, 2007 (“the Act”) as unconstitutional describing the Act as “unsustainable” and “religion specific”.
It was observed that by reading Ashoka Kumar Thakur it is clear that though the learned Judges of the Supreme Court have observed that the law on strict scrutiny applied by the U.S. Supreme Court is inapplicable in our country, the judgments delivered by the U.S. Supreme Court on affirmative action have great persuasive value and may offer broad guidelines as to how we should tackle our prevailing condition.
The court observed that on a careful consideration of the Ashok Kumar Thakur and Saurabh Chaudhary it could be said 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.
Further the court observed that on analyses of the Ashok Kumar Thakur, Saurabh Chaudhari & Shubash Chandra case it can be said 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.
(D) Scrutinizing The ‘Strict Scrutiny’ Test
No doubt the Constitution of India through its framework consecrates for the advancement of the disadvantaged, yet such objective could never be achieved without the coordinative, integrative and pragmatic working of the three wings of the State. The State action subject to the judicial review should lead a pathway for such development & upliftment of the disadvantaged; however judicial review of a legislative act is also necessary in order to preserve individual liberties against the rule of the majority and to protect individuals and groups against invidious attacks by the public authorities or the departments of the Government. The courts in India while such judicial review seems to be in dilemma on the applicability of the strict scrutiny test. Here are some of the key issues which could aggravate such dilemma, and which require a provocative thought on applicability or inapplicability of the test.
i. Is there a concept of “Preferred” & “Non Preferred” Rights under Indian Constitution?
The strict scrutiny test which evolved from “Preferred Freedom” test presupposes in the US context the notion of “preferred” and “non preferred” rights within the fundamental rights itself. However in Indian context, all fundamental rights are to be read together and there exist no such hierarchy or classification within the fundamental rights. Whether it would be appropriate to apply the test without fulfillment of its groundnorm is a question yet to be addressed by the court. Subsequently one must ponder over the argument that some of the rights are of more importance and are more fundamental over other, thus there exists a classification of “special rights” within the fundamental rights. As argued by Khaitan that a violation of the fundamental rights guaranteed by article 15(1), article 19(1)(a) and the negative rights under article 21, in the very least, deserve an intense review because these are very special rights, will it be appropriate to apply strict scrutiny test in the matter of violation of these special rights is a question which requires a sincere answer from the judicial fraternity.
ii. Does the court usurp the function of the executive and enter into the fields of policy and resource allocation while applying the test?
While application of strict scrutiny test, the courts empower themselves to adjudicate whether a particular policy is narrowly tailored to serve the compelling interest, the court has the selectivity option with regards to various policies, at this instance, it may be said that the Court at this juncture pursues its own political agenda, in breach of the separation of powers and of the express intention of the Constitution. The question arises whether the courts usurp the function of the executive and enter into the fields of policy and resource allocation.
iii. Is there a need to give up the principle of reasonableness and to embrace the strict scrutiny test?
Decades back in State of Madras v. V. G. Rao , Patanjali Shastri, observed:
"It is important in this context to bear in mind that the test of reasonableness wherever prescribed should be applied to each individual Statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right al1eged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, disproportion of the imposition, the prevailing conditions of the time should all enter into judicial verdict."
The Supreme Court after that elucidated the scope of permissible classification and applied the standards differently in various cases. For few decades the court has started incorporating higher standards of scrutiny by applying proportionality test and other constitutional borrowing . In Anuj Garg, Sinha J emphasized upon the need of heightened level of scrutiny as a normative threshold for judicial review in cases of protective discrimination. Again in Naz Foundation it was observed that a measure that disadvantages a vulnerable group defined on the basis of a characteristic that relates to personal autonomy must be subjected to strict scrutiny. In Subash Chandra Sinha J. urged that the strict scrutiny paves the way for a more searching judicial scrutiny to guard against invidious discriminations which could have made by the State against group of people in violation of the constitutional guaranty of just and equal laws
Keeping into these lines of argument, whether it would be proper to embrace the concept of strict scrutiny test or to pursue with ‘deeper scrutiny’, ‘in-depth scrutiny’ or ‘extreme care and caution’ is a key question. There is also a noteworthy suggestion of application of “rigorous standard of review” which should be look forth for its propriety and applicability.
Constitutional interpretation across the globe is taking on an increasingly cosmopolitan character , no doubt the Apex court seems to be bewildered by this cosmopolitan character in recent year. It would be proper to say that the courts in India are perplexed in application of the test, it might be due to the comparative jurisprudence, differences in constitutional framework or it could be the pre-existing binding approaches of the court itself. It would be advertent enough 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 a law is enacted to help the disadvantaged class at the cost of another class of persons the court should enquire into whether the legitimate goal matches the means chosen, if there is an illegitimate means chosen by the state, such means should be struck down. Further it should be seen 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.
The strict scrutiny test acts as a device to “smoke out” illicit governmental motive. Justice O’Connor points out that the purpose of strict scrutiny is to "smoke out" illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen "fit" this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype. Keeping in view the above substantial & majestic purpose it would not be improper to say that such test has vital importance.
J. Sinha, a bird of different feather from the plover , has constantly argued for appropriate standard of review in constitutional cases, no doubt the Apex court in upcoming time, guided by this need of appropriate standard of review either comes up with new form of review or clings to the strict scrutiny test, the orderly progress towards the goal of sovereign democratic republic and secure justice, liberty, equality and fraternity to all citizens be ensured by such form of review.
# Cardozo points out that no system of jus scriptum has been able to escape the need of interpretation. B. N. Cardozo., The Nature of Judicial Process 16 (Universal Law Publishing Co. Pvt. Ltd., 7th Ed, 2008).
# A.M. Ahmadi, “Judicial Process: Social Legitimacy and Institutional Viability.”, (1996) 4 SCC (Jour) 1.
# Supra note 1at 17.
# Chief Justice Marshall’s decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163-180 (1803).
# The test of reasonableness, the proportionality test, the heightened scrutiny test, the strict scrutiny test etc.
# President Lyndon B. Johnson, To fulfill These Rights, Speech at Howard University (June4, 1965) reprinted in Kranz Rachael, Affirmative Action 16 (Facts On File, Inc., New York, 2002).
# Affirmative Action - A Legal Primer, Standing Our Ground: A Guidebook for STEM Educators in the Post-Michigan Era, at p. 15, available at: http://www.aaas.org/standingourground/PDFs/4_Legal_Primer.pdf (Visited on October 29, 2010).
# Richard H, Fallon "Strict Judicial Scrutiny,", 54 UCLA Law Review 1267 (2007).
# Merriam Webster’s Law Dictionary defines strict scrutiny as the standard used to determine whether a classification of a group of persons (such as a racial group) or a fundamental right (such as the right to vote) violates due process and equal protection rights under the United States Constitution. Strict scrutiny is used to establish whether there is a compelling need that justifies the law being enacted, Merriam Webster’s New World Law Dictionary, Wiley Publishing,2006.
# J. Rutledge in Thomson v. Collins who toughened ‘clear and present danger’ test by reversing customary burden of proof as to constitutionality and by requiring that legislation regulating freedom of speech be precisely tailored to the evil at hand thus revitalizing ‘clear and present’ danger test as ‘preferred freedom’ test, Ducat Craig R., Constitutional Interpretation, Rights of the Individual, (II) 842 (Wadsworth # Publication, 7th Ed., 2000).
# John Hart Ely, Democracy & Distrust: A Theory of Judicial Review(Harvard University Press, 1981).
# Supra note 10 at 14.
# Supra note 8 at 7.
# Id. at 3.
# Id. at 26.
# Siegel A. Stephen, “The Origin of the Compelling State Interest Test and Strict Scrutiny”, available at: http://www.law.northwestern.edu/colloquium/constitutionaltheory/documents/Siegel.pdf (Visited on October 23, 2010).
# See United States v. Carolene Products, 304 U.S. 144, 153 n. 4 (1938)
# Supra note 16 at 10.
# Id. at 1.
# It is considered to be the most celebrated footnote in constitutional law, it provided that there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth, See (304 U.S. 144 # (1938).
# 316 U.S. 535, 541 (1942)
# 323 U.S. 214, 215 (1944)
# 304 U.S. 144 (1938)
# Supra note 20.
# Justice Rutledge wrote in Thomas v. Collins that for a few preferred rights “[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.”
# 374 U.S. 398 (1963)
# Supra note 16 at 90
# Supra note 8 at 4.
# See McLaughlin v. Florida , 379 U.S. 184 (1964)
# See NAACP v. Button, 371 U.S. 415 (1963)
# See Thomas v. Collins, 323U.S. 516 (1945)
# See Roe v. Wade, 410 U.S. 113 (1973)
# 438 U.S. 265 (1978)
# See Anderson, Elizabeth S., “Integration, Affirmative Action, and Strict Scrutiny”, New York University Law Review, Vol. 77, 2002.
# 539 U.S. 306 (2003)
# 539 U.S. 244 (2003)
# See Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)
# Apex Court in Kesavananda Bharati v. State of Kerala,(1973) 4 SCC 225
# See Shukla V.N., Constitution of India, Eastern Book Company,Lucknow, Tenth Edition, 2007, at p.A-43.
# Articles 25,26,29(1),30(1) & 32.
# Articles 18(1),23(1),24 & 28(1).
# Articles 14, 15, 16, 20, 21, 22(1),27 &28.
# Articles 15(4),16(3),16(4),16(5),22(7),23(2),25(2) & 30(1-A).
# Articles 19(1) & 19(2) to 19(6).
# Supra note 38 at A-44.
# Clark D. Cunningham, Glenn C Lourry & John David Skretny, “Passing Strict Scrutiny: Using Social Science To Design Affirmative Action Programs”, available at: http://www.econ.brown.edu/fac/glenn_loury/louryhomepage/papers/cunninghan, loury and skrentny.pdf (Visited on October 27,2010.)
# Id at 24.
# Articles 15(4),16(4),330 to 332. For more see supra note 39 at A-47.
# See Indra Sawhney v. Union of India,AIR 1993 SC 477, St.Stephen’s College v. University of Delhi, AIR 1992 SC 1630
# See State of West Bengal v.Anwar Ali Sarkar, AIR 1955SC 191
# Om Kumar v Union of India, 2001 (2) SCC 386, Union of India v. Dwarka Prasad Tiwari, available at: http://www.ipsofactoj.com/international/2006/Part08/int2006(08)-011.htm (Visited on November 02,2010)
# Tarunabh Khaitan, “Beyond Reasonableness: A Rigorous Standard of Review for Article 15 Infringement”, JILI Vol. 50, No. 2, April-June 2008, at 180.
# The proportionality test has only been analysed in the context of misconduct in service matters in India. See Chugh Ashish, “Is The Supreme Court Disproportionately Applying The Proportionality # Principle?”, (2004) 8 SCC (J) 33
# 2004 AIR 361.
# Shri Ram Krishna Dalmia v. Justice S.R. Tendolkar and Ors. 1959 SCR 279
# AIR 2008 SC 663.
# 2008 (5) SCALE 1.
# (2009) 160 DLT 277
# Supra note 57
# Supra note 54
# See Mithu v. State of Punjab,(1983) 2 SCC 277
# See E.V. Chinnaiah v. State of A.P. & ors.,(2005) 1 SCC 394
# Decided on 08-02-2010, available at: http://hc.ap.nic.in/orders/wp_15267_2007.html, (Visited on November 08, 2010).
# In B. Archana Reddy and Ors. v. State Of A.P., the A.P. Reservation of Seats in the Educational Institutions and of appointments/posts in Public Services under the Muslim Community Ordinance, 2005 declaring the whole Muslim community as backward class and providing 5% reservation to them in educational institutions and public employment was challenged. The Andhra Pradesh High Court declared the same as unconstitutional being violative of Articles 15 (4) and 16 (4) of the Constitution on the ground that the Muslim community as a whole, based on religion, was declared as backward class without there being any identification of the social backwardness of Muslims by the Commission. available at: http://indiankanoon.org/doc/1848048 (Visited on November 09,2010.)
# Supra note 52 at 179.
# 1952 S. C. R. 597
# See Teri Oat Estates v. U.T., Chandigarh, (2004) 2 SCC 130
# SeeOm Kumar v. Union of India, (2001) 2 SCC 386
# Supra note 56.
# Supra note 58.
# Supra note 59, para 43.
# Supra note 52 at 181.
# Sujit Choudhry, “Globalisation in Search of Justification: Toward a Theory of. Comparative Constitutional Interpretation”, (1999) 74 Ind. L. J. 819
# The approaches in the form that in Indian context the burden of proof of unconstitutionality lies on the claimant, the ever existing applicability of the principle of reasonableness etc.
# Supra note 64 at 76.
# See City of Richmond v. Croson, 488 U.S. 469, 493 (1989)
# I call him “a bird of different feather from the plover” because he was the only judge who continuously argued in favor of the strict scrutiny test from Saurabh Chaudhary to Anuj Garg and then to Shubash Chandra cases.
The author can be reached at: firstname.lastname@example.org