Abstract
Whilst fundamental rights may not be inalienable, it must be ensured that they remain fundamental. In the constitutional scheme of matters, this duty falls upon the judiciary. Thus, legislative actions seeking to restrict these rights must satisfy certain judicial standards. With respect to equality analysis, the existing standard is one of reasonableness. However, in the interest of according enhanced protection to these rights, the Supreme Court has been called upon to subject legislations to a more rigorous evaluation or a heightened level of scrutiny, namely strict judicial scrutiny. In a seemingly simple issue, confusion and ambiguity reign prevalent as a result of differing opinions expressed by the Supreme Court. Whilst one school of thought views it as a foreign principle of law incapable of harmonious integration within the existing jurisprudence, the other observes no such disharmony. To add to the confusion, the Delhi High Court recently provided its own opinion on the matter, leaving the question of applicability of strict scrutiny in India open to academic discussion. In this context, this article attempts to trace the rather uncertain development of this doctrine. It seeks to operate on two levels: first, it conducts a positive analysis to determine status quo and related problems. Subsequently, it conducts a normative study arguing in favour of importing the strict scrutiny standard.
Recommended Citation
Yadava, Raag
(2010)
"Taking Rights Seriously - the Supreme Court on Strict Scrutiny,"
National Law School of India Review: Vol. 22:
Iss.
2, Article 7.
Available at:
https://repository.nls.ac.in/nlsir/vol22/iss2/7
