Abstract
The Doctrine of Proportionality (Proportionality Analysis or PA) is a doctrine focused on modifying the rational partaking between means and ends, with an aim of achieving a balance between the benefits and the harms. PA, being a multi-part test, in which legitimacy, suitability, necessity and balancing (proportionality stricto sensu) are specified, was first introduced by the German Federal Constitutional Court and is now universally seen.
This principle is a potent instrument of judicial review of the administrative action and has been known since the year 2000 in India Om Kumar vs. Union of India (AIR 2000 SUPREME COURT 3689). The role of PA in India has greatly increased especially after the historic K.S. Puttaswamy (Retd.) v. The Union of India AIR 2015 SUPREME COURT 3081, The right to privacy as a fundamental right has been established in judgment (Puttaswamy I), which held that under Article 14, 19 and 21 of the Constitution, the right to privacy is a fundamental right. All encroachment on life or individual liberty, such as privacy, is now subject to the stricter proportionality test that includes legality, legitimate objective (need), and proportionality/rational nexus. Nonetheless, judicial interpretation in India can be seen to be inconsistent in the application of this principle.
Introduction
The Doctrine of Proportionality is an important concept within the Constitutional and Administrative Law, serving as one of the tools of judicial review to make sure that the actions of the government are reasonable and fair. The principle was born in Europe, and its origins shrouded in German law, and has enjoyed enormous success internationally in adjudication of constitutional rights. It is a necessary instrument of protecting the rights of citizens and preventing the abuse of the governmental power. The conceptual ideology is that the administrative activities should not go beyond what is required to achieve their proclaimed objectives. Proportionality is considered a more vigorous test, which is replacing the old Wednesbury unreasonableness principle in most common law systems, including India. The doctrine involves a due balance between negative impact of state action on individual rights and the planned purpose of the people. The doctrine has been pegged by the Supreme Court as the right measure to be applied in examining the limitations to basic rights, in the context of India. In particular, the acknowledgment of the right to privacy as the fundamental right in the Puttaswamy cases requires the use of the proportionality framework to assess state encroachment, which is why the notion of proportionality becomes highly important in modern Indian legal jurisprudence.
Keywords:
Proportionality, Proportionality Test, fundamental rights, Human Rights, judicial Review, Administrative Law, right to privacy, necessity test, balancing.
Historical Context in India:
The very flaws of the traditional Wednesbury test led common law jurisdictions to a stiffer standard of review. Lord Diplock, in Council of Civil Service Unions v. The Minister for the Civil Services himself admitted that proportionality could become another basis of judicial review. The fact that proportionality entails the court evaluating the actual balance struck by the decision-maker, not just examining whether the decision lies within a broad range of rational or reasonable decisions, makes proportionality inherently superior as a review tool.
In India, the ruling of Supreme Court in Om Kumar v. With proportionality being adopted formally by Union of India (2000) but it is understood that since the Constitution came into effect in 1950 Indian courts implicitly had applied proportionality particularly in the evaluation of the validity of legislative restraints to the fundamental freedoms guaranteed under article 19(1) of the Constitution. Om Kumar classified the area of review: courts conduct a Primary Review (to apply proportionality) in cases of legislation or administrative action which infringes fundamental freedoms (Articles 19 and 21) or where they are found to discriminate against them in Article 14. However, where Article 14 (e.g. service law punishments) was simply contended that administrative action was based on mere arbitraryness, the weaker Secondary Review (Wednesbury principle) was engaged. This early model however remained restrictive of the scope of the doctrine by cutting massive areas of administrative discretion over the arbitrary/Wednesbury rubric.
The Structure of Doctrine and its Origin:
Doctrine of Proportionality is a concern that is aimed at measuring the rationality of the relationship between means and ends in order to balance the benefits and harms. Proportionality Analysis (PA): This is a form of test which typically consists of four parts, namely legitimacy (proper purpose), suitability (rational connection between means and purpose), necessity (least restrictive means available) and balancing (proportionality stricto sensu, benefits exceeding costs/harm).
Privacy and Constitutional Test: Puttaswamy I (Privacy Verdict) as Constitutional Turning Point (2017):
The Court of Puttaswamy I (9-judges) unanimously affirmed the Right to Privacy as a fundamental right under Articles 14, 19 and 21. More importantly, the court determined that any limitation on such right had to meet the constitutional standard of Legality, Legitimate Aim (need), and Proportionality (reasonable nexus between object and means adopted). Justice Chandrachud pointed out that the process of restrictions of rights should be fair, just and reasonable.
Case Law in Puttaswamy II (Aadhaar Verdict) (2018): The five-judge court used the proportionality test to Aadhaar scheme. Though most of them supported the core Act on the explicit ground that the welfare delivery fell within the legitimate aim, and that the proportionality requirement had been satisfied, most of the requirements (such as mandatory linkage with bank accounts/mobile numbers, and use by nonprofit entities under Section 57) were declared disproportionate. Dissenting Justice Chandrachud believed that the Aadhaar Act did not satisfy the necessity test in that less obtrusive options would meet the legitimate goal of the State.
Necessity and Least Restrictive Means: The necessity test needs to be able to identify the least restrictive means by which the end is to be attained, which often involves an evaluation of alternative mechanisms. In the fundamental rights violation, the state bears an affirmative responsibility of showing that there is minimal interference with individual rights.
Implementation Challenges: The Indian judiciary has been identified to have been hesitant to enforce the entire four facets of the proportionality rule, although it has been formally adopted. The fact that courts have made the State jump through the assertions of the lack of less intrusive alternatives (failing the necessity test), especially in cases such as Puttaswamy II (Aadhaar) and Anuradha Bhasin (Kashmir Internet Ban), has been criticized.
Conclusion
The Doctrine of Proportionality has become an important progressive development in judicial review, and offers a formal, tight, criterion that is quickly replacing in many countries around the world, and in India, the fuzzy Wednesbury unreasonableness test. In the Indian context, its development has been central particularly after the acknowledgment of the Right to Privacy as a basic right. The new judicial standard requires that the resulting interference in the fundamental rights should meet the high standards of legality, legitimate need, and four-pronged proportionality analysis. This system is necessary to enable a harmonious society where the interests of individuals and the legitimate state interests are balanced in a way that they do not conflict. Yet, it is entirely dependent on the systematic and consistent application of this doctrine to achieve the full potential of this doctrine. The effectiveness of proportionality as a measure against arbitrary state action is now compromised by a chronic problem, the failure of the judiciary to be rigorous especially in insisting on empirical evidence and demanding that a burden of proof be placed on the State as to the necessity (least restrictive measure) step. In order to realize the promise of the doctrine to its fullest extent, there is a need to continue the legislative clarity and an effective and principled judicial readiness to question the claims of fact.
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WRITTEN BY Manisha Kunwar
