Suppose a law is enacted by an overwhelming majority that persons belonging to certain castes or community are ineligible to hold certain constitutional offices. Can the court shirk its duty of striking it down as discriminatory?

Reservation to the extent of 27 per cent for OBCs in higher educational institutions has generated furious controversy. The court is not concerned with the wisdom or otherwise of the reservation policy but it has to consider its impact on fundamental rights, especially the guarantee of equality. Leaving aside the recent Supreme Court stay order let us test the issue on principle. Suppose the percentage of reservation is increased — God forbid —to 77 per cent. If the court finds that the hypothetical 77 per cent reservation violates the fundamental right of equality, should it fold its hands in despair and refuse to interfere because the majority of people and several political parties are insistent about it? Such a course would not be exercise of judicial restraint but plain and simple judicial abnegation. The rationale of guarantee of fundamental rights in the Constitution and their protection by an independent judiciary is precisely to check the majority’s fleeting impulses and desires which are contrary to the cardinal values of the Constitution.

To dub judicial intervention in case of violation of fundamental rights by the legislature or by executive inaction as an overreach is tantamount to questioning the very legitimacy of judicial review by an independent judiciary which is a basic feature of our Constitution.

... contd.