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(iv) Doctrine of protective discrimination envisaged in Article 16 would bring within its ambit all such people who are backward not only in a State or Union Territory but also throughout the length and breadth of the country as envisaged under clause (1) of Article 16 thereof.

(v) For the purpose of considering the validity of the circular letters impugned in the writ petitions, the preamble of the Constitution of India as also the provisions relating to reservation should be allowed to have its full play particularly in view of the binding precedents of this Court in Chandigarh Administration & Anr.

43. The law relating to affirmative action and protective discrimination by way of reservation of posts for the members of the Scheduled Castes invoking Clause (4) of Article 16 of the Constitution of India is reflected by constitutionalism, i.e., the provisions of the Constitution of India read with the executive instructions issued by the National Capital Territory of Delhi in this behalf which has the force of law in terms whereof only the classes of persons who would be entitled thereto were determined. By judicial process or otherwise, the said executive instructions which are consistent with the constitutional scheme could not have brought about an altogether different situation as a result whereof those who are residents of Delhi being belonging to the members of the Scheduled Castes and, thus, entitled to be regarded within the framework of the quota provided for by the Government could not have been deprived therefrom by way of bringing in another class of persons within the purview of the said category of Scheduled Castes who are not entitled to the said benefit. By reason of such an Act, those who are entitled to the benefit of the doctrine of protective discrimination contained in Clause (4) of Article 16 of the Constitution of India had been deprived of their constitutional right. Once it is found that the constitutional violation of this nature has been committed, in our opinion, the Courts would be entitled to apply the principle of strict scrutiny test or closer scrutiny test or higher level of scrutiny. It is commonly believed amongst a section of Academicians that strict scrutiny test in view of the Constitution Bench decision of this Court in Ashok Kumar Thakur (supra) is not applicable in India at all.

Objectivity, both in terms of quantifiable data and the intended objective, and time bound prescriptions, (preferably with a sunset clause) are two measures which shall keep the State in good stead while discharging the burden under the protective discrimination mandate. The law must showcase overinclusion or underinclusion or whatever other requirement there may be through statistics before moving ahead with the execution of law. In M. Nagaraj & Others v. Union of India & Others, (2006)8SCC212 this court employed the doctrine of guided power to suggest that the power of the state to enact such a law or give effect to protective discrimination under Article 16 (4-A) is to be exercised under the guidance of the Court. The doctrine of guided power in that sense has been used as a corollary of strict scrutiny rule. It is a distant relative of continuing mandamus.

Protective discrimination may be used to curtail the extremely hard won civil and political rights granted by the Constitution. We have the backdrop of freedom struggle to engage with in this regard. Rights of the accused as part of the fair trial rights, equality rights, right to liberty and personal autonomy and other such rights are to be fiercely protected against any blind policy onslaught of the times. The government must have a overwhelming compelling interest to justify limitations on the freedom of association, free exercise of religion, free speech, right to vote, right to travel et al. Strict scrutiny thus 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. The court must adopt a weighted balancing approach or in other words pursue an even-handed balancing of the interests