Doctrine of Proportionality- Introduction

The doctrine of proportionality is one of the emerging concepts of examining the constitutional validity of a particular law, amendment, or legislative action in India. This doctrine laid down four prongs, the first two prongs are the traditional means-ends test and the third and fourth prongs are minimal impairment or least intrusive means and balancing stage.

This doctrine finds its place in the US Constitution in 8th amendment (in the form of strict scrutiny test) and some authors claim it to be part of German Administrative law. The major development of this doctrine has been done internationally in countries like Germany, Canada, and Australia. Recently, it has been seen that our Apex court is using this doctrine to adjudicate matters related to the constitutional legitimacy of law.

The doctrine of proportionality is a standard-based model. It allows factual and contextual flexibility to judges who encounter diverse factual scenarios to analyse and decide the outcome of factual clashes against the standards. Proportionality, particularly its balancing prong, has been criticized by jurists who contend that legal adjudication should be rule-based rather than principle-based.[1] They argue that this provides legal certainty by virtue of rules being definitive in nature. In response, jurists in favour of balancing contend that neither rules nor principles are definitive but rather prima facie.

In this blog, we will delve into detail to understand the doctrine of proportionality. We will identify the emergence of this doctrine internationally and how it was established in India. We will also see important case law related to the doctrine of proportionality in India to understand the nuances of this doctrine presently in constitutional law.

Doctrine of Proportionality as laid down by Supreme Court of India

The SC has laid down the proportionality standard to determine if the violation of the fundamental right is justified.[2] The proportionality standard is as follows:

1. The measure restricting a right must have a legitimate goal (legitimate goal stage);
2. The measure must be a suitable means for furthering the goal (suitability or rational connection stage);
3. The measure must be least restrictive and equally effective (necessity stage); and
4. The measure must not have a disproportionate impact on the right holder (balancing stage).

This four-part doctrinal form was applied in Modern Dental College & Research Centre and Others v. State of Madhya Pradesh and Others. This test was modified in K.S. Puttaswamy (Retd.) and Anr. (Aadhar) v. UOI and Anr. (5J),[3] where this Court adopted a more tempered and nuanced approach. The court, inter alia, imposed a stricter test for the third and fourth prongs, namely necessity and balancing stages of proportionality, as reproduced below.

“155. …In order to preserve a meaningful but not unduly strict role for the necessity stage, Bilchitz proposes the following inquiry. First, a range of possible alternatives to the measure employed by the Government must be identified. Secondly, the effectiveness of these measures must be determined individually; the test here is not whether each respective measure realises the governmental objective to the same extent, but rather whether it realises it in a “real and substantial manner”.

Thirdly, the impact of the respective measures on the right at stake must be determined. Finally, an overall judgment must be made as to whether in light of the findings of the previous steps, there exists an alternative which is preferable; and this judgment will go beyond the strict means-ends assessment favoured by Grimm and the German version of the proportionality test; it will also require a form of balancing to be carried out at the necessity stage.

156. Insofar as second problem in German test is concerned, it can be taken care of by avoiding “ad hoc balancing” and instead proceeding on some “bright-line rules” i.e. by doing the act of balancing on the basis of some established rule or by creating a sound rule…

158. …This Court, in its earlier judgments, applied German approach while applying proportionality test to the case at hand. We would like to proceed on that very basis which, however, is tempered with more nuanced approach as suggested by Bilchitz. This, in fact, is the amalgam of German and Canadian approach. We feel that the stages, as mentioned in Modern Dental College & Research Centre and recapitulated above, would be the safe method in undertaking this exercise, with focus on the parameters as suggested by Bilchitz, as this projects an ideal approach that need to be adopted.”

KS Puttaswamy (5J)

The adaption of this test was seen in Anuradha Bhasin v. UOI and Ors., [4]with the observation that the principle of proportionality is inherently embedded in the Constitution under the doctrine of reasonable restriction. This means that limitations imposed on a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.

In the recent case of electoral bonds, the Supreme Court applied this doctrine to declare the EBS unconstitutional. The judgment can be read here.

Forms of proportionality and its alternatives

Four-stage proportionality

In this model, all the four prongs of proportionality test are employed, including the final balancing stage. According to Robert Alexy, values and interests (rights of citizens and objects of legislations/policies) are both principles and principles are optimization requirements. They are norms and hence their threshold of satisfaction is not strict and can happen in varying degrees. They must be satisfied to the greatest extent possible in the legal and factual scenarios, as they exist. All stages of the proportionality test therefore seek to optimize relative to what is legally and factually possible.

This test was first adopted by the German Constitutional Court in 1950s as a new methodology for intensive judicial review of rights-restricting legislation. It stems from the belief that the German Constitution posits an original idea of values, and the government and courts, both have a duty to realise these values.

Three-stage proportionality

This model proposes limiting the proportionality enquiry to its first three prongs, i.e., minus the balancing stage. Von Bernstorff argues against ad hoc balancing based on two principal reasons:

i) ad hoc balancing fails to erect stable and predictable standards of human rights protection, allowing even the most intensive infringements of civil liberties to be conveniently balanced out of existence when the stakes are high enough; and

ii) the lack of predictability leads to a situation where every act of parliament is threatened, however well intentioned, in the judicial balancing exercise and thus ad hoc balancing is potentially overly intrusive from a separation of power perspective.

He, however, defends the use of judicially established bright-line rules for specific cases where intensive interferences are at stake. The bright line rule brings clarity to a law or regulation that could be interpreted in multiple ways. Bright line rules constitute the ‘core’, ‘substance’ or ‘essence’ of a particular right, making huma rights categorical instead of open-ended in nature. A stricter evaluation of evidence becomes crucial at the necessity stage for an objective standard of review, in contrast to ad hoc balancing.

This test can be seen in Canada, they resolve the cases in the first three prongs. Only in limited instances, does the Canadian Supreme Court decide that a measure survives the first three prongs but nevertheless fails at the final balancing stage. Despite this, past jurisprudence in Canda does affirm the significance of final balancing stage.

Means-ends test

The doctrine is similar to a reasonableness inquiry, albeit with some variation. In Australia, for instance, courts enquire whether a law is ‘reasonably appropriate and adapted’ to achieving a legitimate end in a manner compatible with the constitutionality prescribed system of representative and responsible government.

This test was followed in Australia before the development of proportionality and is not frequently used in contemporary times.

Calibrated Scrutiny (evolved means-ends test)

The essential elements of the approach are as follows:

First, a judge determines the nature and intensity of the burden on the right by the challenged law;

Second, the judge calibrates ‘the appropriate level of scrutiny to the risk posed to the maintenance of the constitutionally prescribed system of representative and responsible government;

Third, the judge isolates and assesses the importance of the constitutionally permissible purpose of prohibition; and

Finally, the judge applies the appropriate level of scrutiny so as to determine whether the challenged law is justified as reasonably appropriate and adapted to achieve that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government.

This test is similar to some prongs of the proportionality test. However, it is more rule-oriented instead of being standard/principle-oriented.

While proportionality is the predominant doctrine in Australia, this alternate test is applied by a few judges. These judges raise concerns about the application of a test of structured proportionality and suggest that it was best understood as a ‘tool’ of analysis, or ‘a means of setting out steps to a conclusion’, ‘not a constitutional doctrine.’

Strict Scrutiny Test

This is considered one of the heightened forms of judicial review that can be used to evaluate the constitutionality of laws, regulations, or other governmental policies under legal challenge. Strict scrutiny is employed in cases of violation of the most fundamental liberties guaranteed to citizens in the United States of America. For instance, it is employed in cases of infringements on free speech. The test places the burden on the government to show a compelling, or strong interest in the law, and that the law is either very narrowly tailored or is the least speech-restrictive means available to the government.

The usual presumption of constitutionality is removed, and the law must also pass the threshold of both- necessity/ end and means. The courts in the United States use a tiered approach of review with strict scrutiny, intermediate scrutiny, and rational basis existing in decreasing degree of intensity.

Unreasonableness/ Wednesbury Principles

A standard of unreasonableness is used for the judicial review of a public authority’s decision. A reasoning or decision is unreasonable (or irrational) when no person acting reasonably could have arrived at it.

This test have two limbs:

1. The court is entitled to investigate the action to check whether the authority has considered and decided on matters which they ought not have considered, or conversely, have refused to consider or neglected to consider matters which they ought to have considered.
2. If the above query is answered in favour of the local authority, it may be held that, although the local authority has ruled on matters which they ought to have considered, the conclusion they have arrived at is nonetheless so unreasonable that no reasonable authority could ever have arrived at it.

The test was established by the UK King’s Bench in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation.[5]

Conclusion

The doctrine of proportionality stands as a pivotal tool in constitutional law, offering a nuanced approach to evaluating the legitimacy of governmental actions or laws that may infringe upon fundamental rights. As delineated through various models and tests, including the four-stage proportionality, three-stage proportionality, means-ends test, calibrated scrutiny, strict scrutiny, and the unreasonableness principles, courts around the globe have grappled with balancing the necessity of governmental intervention with the preservation of individual liberties.

In India, the Supreme Court has embraced the doctrine of proportionality as a means to assess the constitutional validity of legislative actions, particularly in cases concerning fundamental rights. Through landmark judgments such as Modern Dental College & Research Centre v. State of Madhya Pradesh and K.S. Puttaswamy (Retd.) v. UOI, the Court has refined and adapted the proportionality standard, emphasizing the importance of a meticulous examination at each stage.

While the doctrine of proportionality offers a flexible framework for judicial review, it has not been without criticism. Some jurists advocate for a more rule-based approach, citing concerns regarding the potential subjectivity inherent in balancing competing interests. However, the evolution of proportionality jurisprudence reflects a concerted effort to strike a delicate balance between legal certainty and the exigencies of justice in a rapidly changing societal landscape.

As the doctrine of proportionality continues to evolve, it remains a cornerstone of constitutional adjudication, providing a principled framework through which courts can navigate complex legal terrain while safeguarding individual rights against governmental overreach. In the ever-evolving realm of constitutional law, the doctrine of proportionality serves as a beacon, guiding courts in their quest to uphold the principles of justice, fairness, and the rule of law.

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[1] Francisco J. Urbina, A Critique of Proportionality, American Journal of Jurisprudence, Vol 57, 2012. Also see Ronald Dworkin, Taking Rights Seriously (Bloomsbury 2013), pp 41-42.

[2] (2016) 7 SCC 353.

[3] (2019) 1 SCC 1.

[4] (2020) 3 SCC 637.

[5] (1948) 1 KB 223.