[1] Aharon Barak, Proportionality: Constitutional Rights and their Limitations (CUP 2012) 179. 2 W. van Gerven, ‘The Effect of Proportionality on the Actions of Member States of the European Community: National Viewpoints from Continental Europe’ in Evelyn Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart Publishing 1999) 37, 61. 3 Vicki C. Jackson & Mark Tushnet ‘Introduction’ in Vicki C. Jackson & Mark Tushnet (eds), Proportionality: New Frontiers, New Challenges (CUP 2017) 1.
[2] There is substantial evidence of the usage of the proportionality test across the world. Robert Alexy, A Theory of Constitutional Rights (OUP 2002); D. Beatty, The Ultimate Rule of Law (OUP 2004); G. Webber, The
[3] Aparna Chandra, ‘Proportionality in India: A Bridge to Nowhere?’ (2020) 3(2) U of OxHRH J 55. 7 Sweet and Mathews (n 4) 161; Beatty (n 4) 159-88; David Law, ‘Generic Constitutional Law’ (2005) 89 Minnesota L. R. 652.
[4] Vicki Jackson, ‘Constitutional Law in an Age of Proportionality’ (2015) 124 Yale L. J. 3094. 9 Jacco Bomhoff, ‘Beyond Proportionality: Thinking Comparatively about Constitutional Review and Punitiveness’ in Jackson & Tushnet (n 3) 148.
[5] Constitution of India, 1950, art. 13(1) (emphasis added).
[6] See ibid Part III (arts. 12–35). Specifically, restrictions are provided under art. 19(2) to (6).
[7] In Chintaman Rao v State of MP, AIR 1951 SC 118 [6], the Supreme Court held that, ‘[T]he limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19 (1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.’ In V.G. Row v State of Madras, AIR 1952 SC 196 [15], the Court held that, ‘in examining the reasonableness of restrictions on fundamental rights [t]he nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict.’ 13 Union of India v. G. Ganayutham, AIR 1997 SC 3387. 14 (2016) 7 SCC 353.
[8] Julian Rivers, ‘The Presumption of Proportionality’ (2014) 77(3) The Modern L. R. 409, 410. 16 Sweet and Mathews (n 4) 112-113.
[9] Robert Alexy, ‘Balancing, Constitutional Review, and Representation’ (2005) 3 Intl. J. Const. L. 572. 18 This conflict is visible in the Aadhaar case where the right to privacy is in conflict with the right to development, an aspect of right to dignity. The State’s endeavour to promote different welfare and economic benefit schemes, which strive to provide a dignified life to a citizen, intrudes into certain aspects of personal autonomy of the same citizen.
[10] As far as constitutional rights are concerned, it is more or less accepted that there are no absolute
constitutional rights. Though some experts still claim that there are certain rights, albeit very few, which can still be treated as “absolute” like right to human dignity; right not to be subjected to torture or to inhuman or degrading treatment or punishment. However, even in respect of these rights, it is thought, that in the larger public interest, the extent of their protection can be restricted. See Modern Dental College (n 14). 20 Barak (n 1) 131.
[11] A.K. Sikri, ‘Proportionality as a Tool for Advancing Rule of Law’ (2019) 3 SCC J-1, J-14. 22 Modern Dental College (n 14) [60].
[12] R. v. Oakes, 1986 SCC OnLine Can SC 6. There exist differences in doctrinal terms and applications among different countries in the structure of the proportionality principle. The test is articulated and applied differently in Israel and Canada.
[13] As per S. Choudhry, courts in Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the UK, Vanuatu and Antigua have all cited the case. S. Choudhry, ‘So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1’ (2006) 34 S.C.L.R. (2d) 501, 502.
[14] Barak (n 1) 131.
[15] ibid 3.
[16] Rivers (n 15) 410.
[17] Hogg makes this statement in the context of the Canadian Charter of Rights and Freedoms. P. W. Hogg, Constitutional Law of Canada, (5th edn, vol. II, Carswell 2007) 146. 29 Barak (n 1) 412.
[18] ibid 411.
[19] ibid 435.
[20] David Kenny, ‘Proportionality, The Burden of Proof, and some Signs of Reconsideration’ (2014) 52 Irish Jurist 141, 147.
[21] Bernhard Schlink, ‘Proportionality (1)’ in Michel Rosenfeld & Andras Sajo (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2013) 733.
[22] ibid.
[23] Kenny (n 32) 147.
[24] See Barak (n 1) Chp. 16.
[25] ibid 437.
[26] ibid 435, 437.
[27] CCT 23/95 Ferreira v. Levin NO, 1996 (1) SA 984 (CC). See M. Chaskalson, G. Marcus, and M. Bishop, ‘Constitutional Litigation’ in S. Woolman, M. Bishop, and J. Brickhill (eds), Constitutional Law of South Africa (Juta Law Publishers 2002) 3–7.
[28] The principle of Presumption of Constitutionality was enunciated by a constitution bench in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar, 1958 AIR 538, ‘That there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.’ 41 Barak (n 1) 439.
[29] Kenny (n 32) 141.
[30] Oakes (n 23) [66].
[31] ibid [68].
[32] Police v. Curran [1992] 3 NZLR 260 (CA); Minister of Transport v. Noort [1992] 3 NZLR 260, 283 (CA); P. Rishworth, G. Huscrot, S. Optican and R. Mahoney, The New Zealand Bill of Rights (OUP 2003) 68; A. S. Butler, ‘Limiting Rights’ (2002) 33 Victoria U. Wellington L. Rev. 113, 116.
[33] S. v. Makwanyane, 1995 (3) SA 391 § 102: ‘[I]t is for the legislature, or the party relying on the legislation, to establish this justification, and not for the party challenging it to show that it was not justified’.
[34] R. Clayton and H. Tomlinson, The Law of Human Rights (2nd edn, OUP 2009) 6.187— 6.190.
[35] Barak points out that the ‘notion of democracy’ has many meanings. Every constitution provides the notion of democracy with a meaning that best captures its purpose as appearing in that legal system. Most constitutions are based upon the fundamental concept of free democracy which are the democratic values of human dignity, equality, and freedom. Barak (n 1) 218-219.
[36] Cora Chan, ‘Proportionality and Invariable Baseline Intensity of Review’ (2013) 33(1) Legal Studies 1, 14.
[37]Ankush Rai, ‘Proportionality in Application-An Analysis if the “Least restrictive Measure”’ in Gautam Bhatia, (Indian Constitutional Law and Philosophy Blog, 8 May, 2020) accessed 10 January 2021 (emphasis added). Every court does not require the ‘less restrictive measure’ to be equally efficacious, especially not the Canadian courts.
[38] Barak (n 1) 449 (emphasis added). Also see F. James, ‘Burdens of Proof’ (1961) 47 Va. L. Rev. 51, 59; R. Belton, ‘Burdens of Pleading and Proof in Discrimination Cases: Toward a Theory of Procedural Justice’ (1981) 34 Vand. L. Rev. 1205.
[39] Barak (n 1) 449.
[40] 53 ibid 450-51.
[41] (2019) 1 SCC 1.
[42] David Bilchitz, Necessity and Proportionality: Towards a Balanced Approach? (Hart Publishing 2016). Also see ibid 318. 56 ibid 207
[43] ibid 211
[44] Written submissions on behalf of Mr. K. V. Viswanathan, Sr. Advocate accessed 12 January, 2020.
[45] Puttaswamy (II) (n 54) [334] (emphasis added).
[46] ibid [715] (emphasis added).
[47] Gautam Bhatia, ‘The Aadhaar Judgment and the Constitution-I: Doctrinal Inconsistencies and a
Constitutionalism of Convenience’ (Indian Constitutional Law and Philosophy Blog, 28 Sept., 2018) accessed 14 January 2020.
[48] Puttaswamy (II) (n 54) [1382].
[49] ibid [295]. Also see Chandra (n 6) 78-79.
[50] (2020) 3 SCC 637
[51] ibid [78] (emphasis added).
[52] ibid [10.8] (emphasis added).
[53] ibid [160.4].
[54] Suhrith Parthasarthy, ‘The Kashmir Internet Ban - What’s at Stake?’ in Gautam Bhatia (Indian Constitutional Law and Philosophy Blog, 25 December, 2019) accessed 14 January, 2020.
[55] On 14th Jan. 2020, the government directed, inter alia, for provisions of broadband services to institutions providing essential services, 2G mobile connectivity in certain districts, and the installation of internet firewalls and a set of “white-listed websites” that could be accessed by internet users [Govt. Order No.-Home 03(TSTS) of 2020: accessed 14 January, 2020]. On 18th Jan. 2020, second order was passed under the exercise of review powers under the Telecom Suspension Rules. This order directed restoration of Voice and SMS facilities on pre-paid SIMS, and extended 2G internet to a few more districts. In addition, it provided a specific list of 153 “white-listed” websites, from Blue Dart to Zomato to Amazon Prime – which could be accessed [Govt. Order No.-Home 04(TSTS) of 2020:
accessed 14 January, 2020].
[56] See Gautam Bhatia, ‘The Kashmir Internet Ban: “Restoration”, White-Listing and Proportionality’ (Indian
Constitutional Law and Philosophy Blog, 25 January, 2020)
accessed 14 January, 2020.
[57] (2020) 10 SCC 274.
[58] Bank Mellat v. HM Treasury (No. 2), (2013) UKSC 39: (2013) 3 WLR 179.
[59] IMAI (n 73) [211].
[60] ibid [214].
[61] ibid [217].
[62] (2020) 10 SCC 459.
[63] ibid [48].
[64] ibid [38].
[65] Rai (n 50).
[66] Rivers (n 15).
[67] Rivers (n 15) 412.
[68] Cora Chan, ‘The Burden of Proof under the Human Rights Act’ (2014) 19 Judicial Review 46.
[69] ibid 48.
[70] Chandra (n 6) 86.
[71] Ronald Dworkin, ‘Equality, Democracy, and Constitution: We the People in Court’ (1990) 28 Alta. L. Rev. 324, 325.
