Beyond Reasonableness - A Rigorous Standard of Review for Article 15 Infringement

Abstract

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.

Keywords: equality, discrimination, standard of review, strict scrutiny, affirmative action, article 15, India, Anuj Garg, Ashoka Kumar Thakur, constitutional adjudication, proportionality, rigorous standard of review