Context

The article provides three arguments why the proportionality principle is best suited to review fundamental rights in India.

Details

  • Recently the Supreme Court has been increasingly relying on the principle of proportionality to review the constitutionality of laws that limit fundamental rights.
  • The principle has been used in judgements on issues concerning privacy rights (Puttaswamy case), individual auto­nomy (Navtej Singh Johar case), and freedom of speech and its restrictions (Anuradha Bhasin case)

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Principle of Proportionality

  • The principle of Proportionality is related to the doctrine of interpretation of statutory provisions which maintain fairness and justice.
  • The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation processes
  • Proportionality is considered to be a product of the contemporary pheno­mena of global constitutionalism.

Proportionality in Jurisprudence

  • Proportionality is an important feature that guarantees against arbitrary actions by the state.
  • The proportionality principle serves as a standard for resolving disputes involving fundamental rights and a governmental interest.
  • Appli­cation of the principle requires pro­cess in which the government inte­rest is subjected to a three-pronged test.
  • The three-pronged approach tests the validity of the government initiative based on its legitimacy, suitability and benefit-versus-harm analysis.
  • Proportionality acts as a level-playing field between fundamental rights and government initiatives.

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Significance of the Principle of Proportionality

  • Addresses the issue of constitutionality holistically
    • Proportionality follows a review system that tests the constitutionality of a law by three separate tests.
    • Legitimacy test – requires the state to prove that the law has a constitutionally legitimate objective.
    • Suitability test – the constitutionality of a law is also analysed in terms of the degree of harm it causes to the fundamental rights.
    • Balancing test – the court checks if the benefit that is availed by harming the fundamental right outweighs the harm caused by it.
  • Transparency
    • One major advantage of employing proportionality is that it makes the review process transparent.
    • Proportionality has all the attributes of a transparent review procedure.
  • Holistic analysis
    • Proportionality works with conflicting interests, which involves fundamental rights most of the time on the one hand and a different interest on the other.
    • The major advantage of the proportionality principle is that it gives the scope to explore the law in its various dimensions and examine in detail the reasonableness of the limitation on a fundamental right.
  • Historical Precedents
    • The idea of suitability and necessity has been historically engrained in jurisprudence in India.
    • The usage of proportionality can also be seen in various occasions of the Court namely,
      • In Chintaman Rao v the State of Madhya Pradesh case 1951, the court said that “Legislation which arbitrarily invades the rights cannot be said to contain the quality of reasonableness unless it strikes a balance bet­ween the freedom guaranteed in Article 19(1)(g) and the social control per­mitted by Article 19.
      • Ranjit Udeshi v State of Maharashtra 1965 case, the court held that “A balance should be maintained bet­ween freedom of speech and expression and public decency and morality but when the latter is transgre­ssed the former must give way.”

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Criticism

  • The principle of proportionality is criticized as “democratically illegitimate” as it empowers a group of unelected judges to parti­cipate in voting and judicial review that undermines the powers of “elected representatives”.
  • Proportionality in India, contradicts the structural values of the principle, thus undermining its operational efficacy.
    • Example: in the Puttaswamy case, the Supreme Court confused the proportionality prin­ciple with the arbitrariness test.
  • The Supreme Court recently has increasingly relied on the principle in validating the constitutionality of government measures.

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Conclusion

The judicial review of laws that are against fundamental rights demands a methodology that satisfies social aspirations and also ensures that fundamental rights are not disproportionately limited.

It is this nature that gives prominence to the functioning of the proportionality principle which as a tool of decision-making, restricts the state’s potential of limiting the fundamental rights while ensuring that it does not disturb the socio-economic fabric of the society.

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