ANALYSIS OF THE DOCTRINE OF STRICT SCRUTINY IN INDIA by Gourab Kumar Agarwal, HNLU

The concept of judicial review is one of the basic structures of our Constitution. It gives power to the higher judiciary to review any impugned legislation on the grounds of its constitutionality. It acts as a weapon to restrict arbitrary state intervention in the matters concerning fundamental rights of the individuals.

The stringency with which legislations are reviewed can be measured under three heads. They are the test of rational basis, intermediate scrutiny, and strict scrutiny. This article restricts its scope to just discussing about strict scrutiny.

Strict scrutiny is the peak in terms of intensity of judicial control, over the intermediate scrutiny and rational basis test consisting only of the investigation of whether the contested measure is unreasonable. Strict scrutiny leads the judicial reasoning to a level of substantive evaluation and, respectively, produces such a high burden of proof that the chances of annulment of the impugned measure rapidly increases.

Article 21 of the Constitution of India confers on every person the fundamental right to life and personal liberty. According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society” Iyer, J., has characterized Article 21 as “the procedural Magna Carta protective of life and liberty”[i]. But this right is not ideal and absolute. Being far from inalienable, this right exists subject to violation or reasonable restrictions by the state.

But for a law to have the force to abridge Article 21 and other fundamental right guaranteed under Part III, they must meet some prescribed standards and constitutional benchmarks. Supreme Court in the case of Maneka Gandhi v. Union of India has held that Article 21 does not include any law which has some resemblance of procedure, however arbitrary or fanciful it is to deprive a person of his personal liberty. “The procedure cannot be unfair, arbitrary or unreasonable”. The procedure contemplated by Art. 21 must answer the test of reasonableness in order to conform with Art. 14.[ii]

The role of the judiciary is to determine when an individual’s fundamental right can or cannot be violated in the interest of greater public good. The standard of reasonableness which enumerates the two fold test of intelligible differentia possessing a rational nexus to the object of the legislation for equality analysis has recently come under question. For the purpose of according greater protection to individual rights, the courts have been called upon to adopt standards involving more rigorous evaluation of legislations. The test of strict scrutiny is one such measure which has started to capture the imagination of jurists and has thus found itself in some of the recent decision by the Supreme Court[iii].

 

 

Application of Strict Scrutiny in India

The doctrine of Strict Scrutiny has its origin in American jurisprudence. The Supreme Court of the United States has applied strict scrutiny standards as early as 1886 in Yick Wo v. Hopkins, later confirmed in war-time cases Hirabayashi v. United States and Korematsu v. United States[iv]. The reasoning employed for non-application of the doctrine in India was the presumption of constitutionality that existed in the Indian courts.

The test of reasonableness as used in Indian courts relies on presumption in favor of the constitutionality of the enactment and the burden of proof lies on the person who attacks it to show that there has been a clear transgression of the constitutional principal[v]. On the contrary, doctrine of strict scrutiny subjects laws based on certain suspect classifications or infringing preferred fundamental rights to heightened judicial scrutiny. It requires the classification infringing fundamental rights to be narrowly tailored to achieve a compelling administrative necessity to save the law from the taint of unconstitutionality and the burden is on the state to prove the compelling necessity and narrow tailoring.[vi]

Strict scrutiny can be harmoniously integrated within the current legal framework in so far as it is applied to cases where presumption of constitutionality does not stand. Bhandari, J. in Ashok Kumar Thakur v. Union of India critically notes that “the problem of race (in America) is akin to our problem of caste”.  It is important to note here that in cases of racial discrimination the Supreme Court of United States has applied the strict scrutiny standards as early as 1886.

A strict scrutiny approach may be employed to uphold group rights against undue State interference just as it has been used in other traditions to uphold individual rights.

Thus one can conclusively infer that adopting strict scrutiny, where it can be harmoniously integrated within the current legal framework, would not lead to significant inclusion of a wholly foreign principle but in fact a valuable and sustainable addition to equality analysis in India.

Adopting such a standard of equality analysis carries it with certain inherent benefits. First, the need for a compelling state interest represents a proper standard that condones violation of fundamental right only in cases of larger public interest. Second, as the burden to prove constitutionality is placed on the Government, it ensures that the Government employs greater assessment standards before effecting legislations. Finally, as opposed to common belief, strict scrutiny will not rule out positive discrimination by striking down all legislations[vii].

Ultimately, fundamental rights must remain fundamental. This task is more complex than one might assume. To minimalize the arbitrary state infringement over the fundamental rights it is necessary to adopt stringent measures. Even though the jurisprudence on the subject of strict scrutiny is still at a nascent stage, there have been several judgments dealing with the issue in depth. If these decisions are any indication of the final outcome, the future seems bright. The court must follow through with its initiative in order to truly act as the guardian of rights.

 

[i] http://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/

[ii] M P Jain, Indian Constitutional Law

[iii] Taking Rights Seriously- The Supreme Court on Strict Scrutiny; Raag Yadava

[iv] Affirmative Action Policies and Judicial Review Worldwide; George Gerapetritis

[v] V N Shukla’s Constitution of India; Mahendra Pal Singh

[vi] Ibid note iii.

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