Aditya Jain & Ayushi Shukla
Introduction
The proportionality principle today forms an integral part of review jurisprudence around the globe, and India is no exception. Tracing its origin from the German Constitutional Courts in the 19th century, the principle was developed in the context of administrative law to regulate police action while dealing with individual rights. In India, this principle came to be applied in a limited sense in various cases dealing with administrative action infringing fundamental rights and was expressly recognized as a part of the Indian review jurisprudence in the celebrated Puttaswamy (II) case. Under the proportionality framework, prior to applying any measure that limits individual liberty, it must be shown that such measure was suitable for achieving the purpose and that there existed no less intrusive means for achieving the same. The objective behind this principle is to ensure that a sense of proportion is maintained by the public authority in determining the means to achieve a particular goal and can aptly be summarized in George Jellinek’s comment that “the police may not kill a swallow with a cannon”. Its significance is underlined by the fact that it ensures administrative action does not put excessive limits on individual liberty in the interest of obtaining the desired result in the public interest.
The Problem: Inconsistent Application of Proportionality in Indian Courts
The proportionality test was introduced in Indian Administrative law to overcome the practical difficulties in achieving the high standards of irrationality envisaged under the earlier existing Wednesbury principle. The Wednesbury standard states that a reviewing court can only overturn an administrative authority’s decision if it violates rationality or ethical principles. Ratiocinating the adoption of the proportionality principle, the 9-judge Constitutional Bench in the Puttaswamy II case, observed that the “seeds” of the fundamental tenets of the principle were already sown in the previous judgments, and accordingly, it forms a part of the pre-existing review procedure framework in India. Though over the years the principle has been applied by the Court in an array of matters ranging from personal autonomy to freedom of profession, the analysis of a series of Supreme Court judgments including the most recent ones indicates that the principle is applied only in form rather than in substance by the Court. Accordingly, despite its continuous mention by the judiciary, there is a lack of clarity as to the practical application of the principle. The Court’s approach in the interpretation and implementation of each prong of the proportionality test determines the ease with which the State is allowed to infringe fundamental rights in the pursuit of other larger public interests. Evaluating the gaps in the consistent application of the proportionality principle is, therefore, of great relevance since it forms the basis for deciding the normative significance of fundamental rights within the Indian legal system and the scope of the State’s legitimate power to impose limitations on the same.
Critical Analysis: Judicial Interpretation and Implementation of the Proportionality Test
Before delving deeper into the complexities involved in the application of the proportionality principle in India, it is imperative to understand its multiple facets. Proportionality serves as a universal evaluative framework for assessing measures that restrict fundamental rights. This framework employs a systematic analysis based on four-fold criteria:
a) The Legitimacy Test– It is to be determined by the court whether the right in question which is being curtailed, is restricted for a legitimate purpose;
b) The Suitability Test- The court needs to be satisfied with whether there is a ‘rational connection’ between means and purpose for restriction i.e. the means used by the administration justify the purpose;
c) The Necessity Test-It is to be inquired by the court that the restrictions imposed are in consonance with the extent necessary to pursue the objective and are least intrusive among alternatives;
d) Balance of Interest- The court must strike a balance between the benefits of the measures used by the administration and the harm that they will cause to the rights. This test seeks to weigh the public benefits in achieving the intended purpose against the harm to constitutional rights caused by the legal means chosen to achieve the purpose.
While closely examining the pronouncement of the Supreme Court in landmark cases, it is asserted that a blatant reluctance to determine all the facets of the proportionality rule from the side of the court can be observed.
For instance, in the Modern Dental College case, the State Legislation’s provisions regarding admission and fixation of fees applicable on private unaided colleges were challenged and the limits of reasonable restriction under Article 19(6) were in question. The Court, under the cloak of applying the ‘balancing test’ which subsumed other tests under the proportionality principle, directly concluded that the government’s measure was ‘warranted in the larger public interest’ without any evidence or empirical data to show that the least intrusive measure from the possible alternatives had been adopted by the Government.
Similarly, after recognition of the fundamental right to privacy in Puttaswamy I, the point of contention in the Puttaswamy II case was the constitutionality of the Aadhar legislation and related rules. The court formally accepted the proportionality principle as the suitable review procedure, and post analyzing the approaches adopted by different nations and their key differences, the Court decided to follow the approach recommended by Bilchitz. Under this approach, the least intrusive measure is accepted after identification of the alternative measures present with the public authority and assessment of each of them in relation to their effectiveness in achieving the objective and their restriction on the individuals’ rights. However, in reality, without conducting any further inquiry/verification, the Court blindly relied on the Government’s assertion regarding the absence of any other less intrusive alternative, thereby defeating the very rationale behind Bilchitz’s approach. The Court’s procedure has also been criticized for going against the very core of the proportionality test which demands comparative assessments of the data from both parties and factual verification, particularly at the necessity stage and the balancing stage. Considering the Court’s reluctance in calling for or scrutinizing empirical data supporting the claim, it is argued that the application of the proportionality test was reduced to a mere formality.
Another instance indicating the lack of clear understanding in applying the principle of proportionality in India is the Akshay Patel v. RBI case dealing with the order imposing blanket ban on PPE products exporting during the COVID-19 times. The petitioner, challenging the infringement of his rights under Article 19(1)(g) (right to trade) and Article 21 (right to livelihood), argued that other less intrusive measures should be taken by the Government. The Court after resorting to the proportionality test, upheld the measure on the reasoning that to ensure adequate supply of PPE products in India, it would require complete ban on export so that there is sufficiency of products in the international market and the petitioner’s argument suggesting less intrusive measures was rejected. It is noteworthy that again in this case, the Court restricted itself only to the necessity and the balancing test and refrained from analyzing the issue from the angle of legitimacy and suitability test which were crucial to adequately adjudicate the same.
Furthermore, the view of inconsistent application of the proportionality principle is reinforced by the stance taken in the recent case of Vivek Narayan Sharma vs. Union of India. In this landmark judgment, concerning the legality of demonetisation order, the court purported to conclude that the decision was based on a rigorous application of the proportionality principle. However, in effect, it can be observed that the court’s decision was prima facie overpowered by the presence of the Wednesbury principle of unreasonableness. Ruling on the scope of its power of judicial review, the Court opined that it could exercise its power to interfere only in cases involving “palpable arbitrariness” and not in the Government’s economic policies ordinarily. On a deeper understanding, it can be found that under the pretence of satisfying the proportionality test, the court restrained the inquiry solely on identifying illegality in the decision-making process. Thus, a majority of the facets of the proportionality principle were ignored and reliance was instead placed upon the high standard of ‘unreasonableness’ under the Wednesbury principle.
A deep dive into the series of rulings on this matter offers two key insights into the application of the well-established proportionality principle: firstly, there is a tendency in the Indian judiciary to conflate it with less stringent standards (like the Wednesbury unreasonableness) thereby diluting the principle’s intended rigorous framework and secondly, there is often selective application of the principle which undermines its core intent of providing a structured, multifaceted analysis to balance individual rights and state interests.
Conclusion and the Way Forward
Despite multiple references being made to the proportionality principle, it can be observed that the principle, in its true sense, has failed to make a significant contribution to the Court’s decision-making. This inconsistent approach in the application of this principle not only undermines its efficiency and true potential but also raises concerns about administrative overreach. This conceptual confusion can be related to the mistaken belief that the proportionality criterion has always been a component of the existing Indian review procedure. An undesirable consequence of this is the tendency of Courts to refrain from doing anything different from its priorly followed practices under the review jurisprudence. Though time and again the Court has asserted the use of the proportionality principle to floor test arbitrary administrative actions, in effect, it has relied its decision on a cacophonic mixture of different review procedures with the proportionality principle.
To utilise the fruits of the principle in its true sense, it is therefore suggested to move towards a more systematic and consistently applied proportionality approach. In this regard, even if a step-by-step formulaic application of the principle is not made, it is suggested that the Courts should be willing to place reliance on empirical data supporting the claim while purporting to undertake a proportionality review and should be vigilant regarding satisfaction of all its four-prongs. A thorough judicial guidance that clarifies specific features of the proportionality principle, such as the contextual circumstances that may lead to its application and an assessment of its scope and limitations, would further go a long way in whole-heartedly accepting it. In conclusion, while the adoption of proportionality principle in Indian administrative law represents a positive step towards a more rigorous rights protection framework, it is imperative that the judiciary rises to the challenge of applying proportionality in a manner that truly fulfils its promise as a safeguard against disproportionate state action.
Aditya Jain and Ayushi Shukla are third-year students at Symbiosis Law School, Pune.
NUALS Law Journal 