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Proportionality in India: A
Bridge to Nowhere?
Aparna Chandra*
Abstract From the very dawn of India’s constitutional republic, the Supr of India has held that a measure that restricts a fundamental right shouldeme Court bear a proportional relationship to the right. However, starting in 2016 with Modern Dental College and Research Centre v State it is only recently, of Madhya Pradesh proportionality test to determine the validity of rights restricting measures, that the Court has adopted a structured four-part. In this article, I describe how the Supreme Court has engaged with the doctrine of proportionality in its recent case Court’s approach to proportionality is riddled with law. I argue conceptual confusion that the Supreme which has always existed in Indian constitutional jurisprudence and that therefore stems from the Court’s (mistaken) assumption that proportionality adopting the test existing practices of rights review. requires the Court to do The Court’s approach of assimilating nothing very different from its proportionality into the pre-existing framework for rights review has limit culture,ed (^) and inthe disruptive potential of proportionality in reshaping legal re-aligning the relations between citizens and the State, and between the Court and other branches. Keywords: Proportionality; Fundamental Rights; Constitutional Adjudication India ; Judicial Review; Supreme Court of India; Constitution of
Governance, National Law University, Delhi. The research for this paper was conducted in^ *^ Assistant Professor of Law and Director, Centre for Constitutional Law Policy and part under the “Proportionality in Public Policy” project at the Israel Democracy In and was supported by the European Research Council under the EU’s Seventh Frameworkstitute Programme (FP7/2007 on various themes that this paper touches on, I am thankful to Vrinda Bhandar-2013), ERC grant no. 324182. For previous and on-going discussionsi, Lorian Hardcastle, Mordechai Kremnitzer, Andrej Lang, Anna Sledzinska, Steiner, and Raanan Sulitzeanu-Kenan. Aishwarya Gupta, Anant Sangal and Yashraj Mittal Richard Stacey, Talya provided excellent research assistance. Any errors are mine alone.
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- Introduction Proportionality has been adopted by constitutional and human rights courts across the world as the gold standard for adjudicating the validity of limitations on fundamental rights. 1 The global move towards proportionality has led many scholars to call this an ‘age of proportionality.’ structure of the proportionality test, its exact contours differ from state to^2 However, while there is a broad consensus on the overall state. Courts have not only adopted this ‘global’ doctrine, but also adapted it in ways that gives proportionality a local flavour in each jurisdiction. 3
Court^ In India, at the very dawn of the constitutional republic, the Supreme determined that a rights-limiting measure should bear a proportional relationship to the right.^4 However, the Court did not adopt a structured step the Court sporadically referenced proportionality in discussing the nature-wise test for the proportionality analysis. Over the years, of judicial review of State action but did not apply the structured test to determine the validity of a rights-limiting measure. Recently however, starting with Modern Dental College and Research Centre v State of Madhya Pradesh, part doctrinal form as a standard for reviewing rights^5 the Court has begun applying proportionality in its four-limitations in India.-
doctrine of proportionality in its recent caselaw. To do so, I first describe^ In this^ article, I^ describe how the Supreme Court has engaged with the the proportionality test and explain the value choices underlying different variants of the test. I argue that how a court co proportionality test shapes political and nstructs its version of thelegal relationships and (re)distributes power rights; between parties – between citizens and the State as mediated through to a case in terms of their burdens and responsibilities in the course of adjudication; between the court and the polity; and between the court and the elected branches (Section 2).
(^1) Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 73, 161; David Beatty, The Ultimate Rule of Law (OUP 2004) 159-88; David Law, ‘Generic Constitutional Law’ (2005) (^2) Vicki Jackson, ‘Constitutional Law in an Age of Proportionality’ (2015) 124 Yale Law 89 Minnesota Law Review 652. Journal 3094. (^3) Jacco Bomhoff, ‘Beyond Proportionality: Thinking Comparatively about Constitutional Review and Punitiveness’ in Vicki Jackson and Frontiers, New Challenges (CUP 2017) 148; David Kenny, ‘Proportionality and the Mark Tushnet (eds), Proportionality: New Inevitability of the Local: A Comparative Localist Analyst of Canada and Ireland’ (2018) 66 American Journal of Comparative Law 537. (^4) Chintaman Rao v State of MP AIR 1951 SC 118; VG Row v State of Madras AIR 1952 SC 196. (^5) (2016) 7 SCC 353.
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exactly each prong means and requires.^10 These variations depend on how intensely a court scrutinises rights infringing measures. The aspects to the court’s scrutiny: (1) the substantive standards, that is, the fourre are two component sub (2) the evidential standards-tests that the rights infringing measure has to satisfy, comprising the burden of proof, standard of; and proof, and the quality of evidence that have to be fulfilled to prove that the substantive standards have been met or violated. The higher the intensity of review, the heavier is the justificatory^11 burden on the State to satisfy the court that a rights proportional. So, for example, in the test for proper purpose, at a low-infringing measure is-level of scrutiny the court determines whether the impugned measure is pursuing a legitimate aim. court asks not only whether^12 At a comparatively higher level of scrutiny, thethe law serves a legitimate aim but also whether the aim is of sufficient importance to warrant overriding a fundamental right. (^13) Courts in various jurisdictions show similar variations in intensity of review for each of the four substantive tests.^14 test determines the ease with which the State can infringe rights in the^ Where^ the court locates itself on the spectrum of choices under each pursuit of other public interests. Therefore, the different locations on the spectrum configure in specific ways the importance of fundamental rights within a legal system and consequently, the scope of State power when confronted with a rights claim. If the substantive aspect of proportionality tells us what the standards of review are, the evidential aspect of review exp whether those standards have been met or not. Evidential components oflains how to determine proportionality review include the standard) , the standard of proof burden of proof (to what degree of certainty do the (who has to prove each underlying facts and inferences pertaining to each standard have to be proved) 15 and the quality of evidence (the robustness, cogency and
(^10) Cora Chan, ‘Proportionality and Invariable Baseline Intensity of Review’ (2013) 33 (1) Legal Studies 1, 5. (^11) ibid; Julian Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65 Cambridge Law Journal 174, 190 (^12) This is the standard followed in Germany; Dieter Grimm, ‘Proportionality in Canadian. and German Constitutional Jurisprudence’ (2007) 57 Uni 383, 388. versity of Toronto Law Journal (^13) R v Oakes [1986] 1 SCR 103, 138 (Canadian Supreme Court); R v Big M Drug Mart Ltd should [1985] 1 SCR 295, 352 (Canadian Supreme Court) stating that the rights limiting measure be pursuing an objective ‘of sufficient importance to warrant overriding a constitutionally protected right of freedom (^14) Grimm (n 12); Barak (n 8) for a detailed discussion on such variations.’. (^15) Chan (n 10) 15 writing that ‘the idea of the court being certain of a proposition to a requisite degree is applicable to evaluative as much as it is to factual questions’.
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sufficiency of the proof) that should be adduced to satisfy each prong of the substantive review. As with substantive standards of rev^16 iew, each of these evidential standards can be placed along a spectrum of intensity of scrutiny. For example, in relation to quality of proof, at a low level of scrutiny, the court may accept the State’s ipse dixit or abstract inferences, instead of seeking evidence to demonstrate a claim. At a higher level of scrutiny, the court may require the relevant party to produce ‘cogent and sufficient evidence’ for its claims. assertations, without putting it to proof, may significantly weaken rights 17 Allowing the State’s claims on the basis of its own protection. On the other hand, in the context of factual indeterminacy, epistemic gaps, and more broadly human subjectivity in m decisions, the need for a high degree of empirical proof may place tooaking policy great a burden on the State discharge, especially in complex policy areas. – one that it may not always be in a position to (^18) This approach also may not give sufficient weight to the constitutional judgment of co-equal branches of government in the context of such indeterminacy. Thus, as with the substantive standards of scrutiny, where the court locates itself on the spectrum of evidential intensity carries implications for rights and the scope of State power. the importance of
evidential scrutiny depends on how the court views its institutional role^ Where the court locates itself on the spectrum of substantive and vis a vis the elected branches. This register varies along a spectrum of how much or how little deference the judiciary gives to the decisions of the elected branches. The court places itself on this spectrum through considerations of the comity it owes to other institutions as co branches of government mandated to uphold the constitution, authorised-equal directly or indirectly by the people themselves, and often having better resources, expertise and institutional capacity to understand and respond to social needs. On the other hand, deference is tempered by the judiciary’s conception of its own role as a guardian of fundamental rights, with a duty to ensure that other branches work within constitutional limits. 19 One could imagine a spectrum starting from high deference at one end
(^1617) ibid. inquiry^ Oakes ‘should be cogent and persuasive and make clear to the Court the co^ (n 13) [71] stating that the evidence to prove the constituent elements of a s1nsequences of imposing or not imposing the limit (2011) Public Law 237, 251-53; Chan (n 10).’. See Paul Daly, ‘Wednesbury’s Reason and Structure’ (^18) Grimm (n 12) 390; Sujit Choudhry, ‘So What is the Real Legacy of Oakes?: Two Decades of Proportionality A Court Law Review 501, 503nalysis under the Canadian Charter’s Section 1’ (2006) 35 Supreme-04. (^19) Aileen Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222.
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infringe rights with very little accountability for such restrictions. Citizens would have limited power to question the State’s exercise of power. R within this conception would carry minimal normative weight and wouldights shape the relations between citizens and the State accordingly. As a highly deferential doctrine, proportionality analysis would not be the site for claiming and contesting rights, impacting thereby the judicial role within the polity. On the other hand, even at its lowest level of scrutiny, proportionality^27 requires the court to determine that the measure was legitimate, suitable, necessary and balanced. This implies a deeper level of scrutiny of the State’s reasons as compared to Wednesbury and places a greater restriction on the scope of State power. At higher levels of scrutiny, the court signals that rights are extremely important, that rights-infringing State action is presump justifying, based on clear and cogent evidence, that it infringed the righttively illegitimate, and that the State is tasked with only in very exceptional circumstances. Such an approach can shape the political expectations of both citizens and the State. significance of rights can impact the culture and the practice of claiming Raising the legal and contestation of rights. With the confidence that rights violations will be taken seriously, and with the diffusion of rights into legal consciousness and cult State for rights violations.ure, citizens are more likely to demand accountability from the (^28) Further, based on iterative learnings from the court, the State may self-regulate to mirror the salience attributed to rights.^29 It has been noted before that in countries where courts routinely require proportionality analysis for rights infringements, State actors learn to deliberate within the proportionality framework themselves. understanding of their own power and legitimacy, or at the very least, their^30 Their self- self-interest, comes to be shaped by the importance placed upon rights by courts in their decision-making.
(^27) Since the avenue of enforcing rights at courts is closed, a robust culture of political discourse on rights might emerge. This is doubtful however, since the nature of legal argumentation is itself based on an underlying legal culture. If rights are considered important in a society, and the judiciary is authorised to perform judicial review for rights violations, it would be culturally incongruous and cognitively dissonant for courts to legitimate extensive rights violations as valid under the create a legitimacy crisis for the courts. See Lawrence Lessig, ‘Delineating the Proper Scope Constitutional framework. At the very least, this would of Government: A Proper Task for a Constitutional Court?’ (2001) 157 Journal of Institutional and Theoretical Economics 220, 222 holding ‘legal cultures will affect what is or is Interpretation’ (1981) 34 Stanford Law Review 739. not a possible legal argument within that culture’; Owen Fiss, ‘Objectivity and (^2829) Lessig (n 27). and Unofficial Law 1.John Griffiths, ‘The Social Working of Legal Rules’ (2003) 35 Journal of Legal Pluralism (^30) Stone Sweet and Mathews (n 1) 112-13.
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Having noted the variations in the proportionality test, the choices and consequences they reflect, and the power dynamics that they constitute, let us now turn to the Indian Supreme Court’s engagement with the doctrine.
- Proportionality in India: Old Wine in a New Bottle
A. Early Encounters The Indian Constitution does not have an overarching limitations clause applicable to all fundamental rights. Each right has its own corresponding limitation, either contained in the text or deter Supreme Court has stated that the requirement of reasonableness of Statemined judicially.^31 While the action runs through the entire fundamental rights chapter, expressly understood this to mean that there is a single limitations test 32 it has not implied by such a principle of reasonableness.^33 In its absence, there exist multiple, overlapping, and often contradictory approaches to limitations within and across fundamental rights. (^34) Lack of a consistent approach has led to ad uncertainty and lack of accountability for judicial decisions.-hocism in the Court’s rights adjudication, giving rise to legal 35
(^3132) Article 19 is an example of the former; Article 14 of the latter. and non^ Ajay Hasia v Khalid Mujib- arbitrariness pervades the entire constitutional scheme and is a golden thread which^ AIR 1981 SC 487^ holding that^ ‘the concept of reasonableness runs through the whole of the fabric of the Constitution (2017) 9 SCC 1, 91 holding that ‘the thread of reasonableness runs through the entire’; Shayara Bano v Union of India fundamental rights chapter (^33) I have found that in practice the Court does have a common structure of limitations’. analysis running through its Article 14, 19 and 21 jur analysis of cases between 2004-2016, I argue that the Court reviews rights infringing measuresisprudence. Based on an empirical to examine whether it was following a legitimate aim through means that were rationally connected to that aim, and that on a general balance between the right and the public interest sought to be pursued, the measure was a justified infringement of that right. The necessity step of the proportionality review is missing from limitations analysis for these fundamental rights. See Ch (^34) Vikram Aditya Narayan and Jahnavi Sindhu, ‘A Historical Argument for Proportionalityandra (n 6). under the Indian Constitution’ (2018) 2(1) Indian Law Review 51, 52 (^35) See Natural Resource Allocation, in re: Special Reference No. 1 of-53; Chandra (n 6). 2012 (2012) 10 SCC 1 for the Court criticising itself for the Article 14 of the Constitution. Also, Chandra (n 6); Mrinal Satish and Aparna Chandra, ‘Of ‘arbitrary use of the “arbitrariness” doctrine’ under Maternal State and Minimalist Judiciary: The Indian Supreme Court’s Approach to Terror Related Adjudication’ (2009) 21 (1) National Law School of India Review 51.
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pointed out, even when the Court has used the language of proportionality, the actual standard of review that it has applied is that of By and large, in testing the reasonableness of restrictions on rights, the Wednesbury.^42 Court typically presumes the constitutionality of laws and places the burden of proof on the petitioner; (^43) any doubt as to the validity of the law is resolved in favour of the State.^44 The approach of the Court to rights limitation is captured by the following quote Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy…Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of t the subject of judicial review… 45 he policy, is
infringing measure.^ It follows that the Court rarely examines the necessity of the rights^46 And while balancing is often implicit in its review of rights infringing measures, the Court does not expressly se determine whether the measure and the right are properly balanced.t out to 47 Overall, the Court’s approach to rights review is deferential. It involves low evidential scrutiny and does not engage with all the substantive elements of the proportionality test.
(^42) See Abhinav Chandrachud, ‘ Wednesbury Reformulated: Proportionality and the Supreme Cou Prateek Jalan and Ritin Rai, ‘Review of Administrative Action’ in Sujit Choudhury et al (eds),rt of India’ (2013) 13(1) Oxford University Commonwealth Law Journal 191; Oxford Handbook of the Indian Constitution Court Disproportionately Applying the Proportionality Principle?’ (2004) 8 (OUP 2016); Ashish Chugh, ‘Is the Supreme Supreme Court Cases (Journal) Wednesbury; Chan (n 10) 33 all noting that the Court confused the application of pro observing strands of a similar trend in other jurisdictions.portionality with (^43) Ram Krishna Dalmia v Justice S R Tendolkar AIR 1958 SC 538; Pathumma v State of Kerala SCC 534; (1970) 2 SCR 537; State of Madhya Pradesh v Rakesh Kohli State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat ( (2012) 6 SCC 312. 2005) 8 (^4445) Delhi Transport Corporation v DTC Mazdoor Congress AIR 1991 SC 101. 46 Directorate of Film Festivals v Gaurav Ashwin Jain Chandra (n 6) examining cases from 2004 to 2016 and finding that the Court rarely^ 2007 (4) SCC 737 (emphasis added). examines the nec (^47) ibid; finding that balancing between the importance of the right and the cost from itsessity of a rights infringing measure. limitation on the one hand, and the importance of the social objective sought to be achieved on the other, is implicit in many decisions on the validity of rights limitations.
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B. The Structured Test
- Anuj Garg v Hotels Association of India In the 2007 case of moved towards adopting a structured proportionality test. Anuj Garg v Hotels Association of India, 4948 Here, the the Court Court had to determine the constitutionality of Section 30, Punjab Excise Act 1914 which prohibited, premises where alcohol was consumed inter alia , the employment of women inby the public. This provision was challenged, and the right to freedom of occupation under the Constitution. inter alia, for violating the prohibition on sex discrimination 50 The purported aim of the provision, at least as argued before the Court, was to provide for women’s security. In deciding whether this restriction was justified, the Court examined whether the measure’s ‘legitimate aim of protecting the interests of women well-settled gender norms such as autonomy, equality of opportunity, right are proportionate to the other bulk of to privacy et al.’^51 Proportionality between means and ends was to be judged on democratic society. ‘a standard capable of being called reasonable in a modern’ (^52) Holding that the burden was on the State to justify that the measure was proportional, the stated aims of the law, but also the effect that the law had on women’s^53 the Court sought evidence not only of rights. enhancing women’s security and empowering them was a 54 The Court found that the measure was not justified since ‘more tenable and socially wise approach’ than placing curbs on their freedom.^55 Though this was not a fully fleshed out necessity analysis, the Court did look at less rights-intrusive alternative measures that would have been more appropriate in a democratic society. The Court appeared to use strict scrutiny and proportionality interchangeably in its judgment however, 56
(^4849) (2008) 3 SCC 1. Supreme Court had adopted a limited structured proportionality test. In determiningPreviously in^ Sahara India Real Estate Corporation Ltd v SEBI^ (2012) 10 SCC 603, the whether and whe Court stated thatn courts can order postponement of publication of a sub judice matter, the ‘[s]uch an order of postponement has to be passed only when other alternative measures such as change of venue or postponement of trial are not available. In passing such orders of postponement, courts have to keep in mind the principle of proportionality and the test of necessity (^50) Article 15(1) and Article 19 (1)(g) respectively.’. (^5152) Anuj Garg v Hotels Association of India (2008) 3 SCC 1, 19. 53 ibid 15. ibid 12. (^5455) ibid 15. 56 ibid 18.ibid 18 holding ‘strict scrutiny test should be employed while assessing the implications of [protective discrimination] legislations. The test to review such a Protective Discrimination
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measure’ since various malpractices had been noticed when private institutions were conducting entrance examinations themselves. basis, the Court concluded that the restrictions satisfied the test of^62 On this proportionality, examining whether less restrictive means could have been adopted. without engaging in either a structured analysis or even
- Subramanian Swamy v Union of India Soon after Subramanian Swamy v Union of India Modern Dental College, the Court delivered its judgment in. (^63) Here, the Court had to decide the constitutionality of provisions relating to criminal defamation contained in Sections 499 and 500 of the Indian Penal Code 1860 and Section 199 of the Code of Criminal Procedure 1973. These provisions were challenged for violating the freedom of speech and expression in Article 19(1)(a) of the Constitution. This was an opportune moment for the Court to apply the doctrine of proportionality not least because it already defamation. Therefore, it was perfectly placed to evaluate the necessity had an alternative, less intrusive means to consider: civil prong of the doctrine of proportionality. The Court quoted Dental College both for the proposition that it had to inquire into the Modern proportionality of the limitation and that proportionality was already a part of the Court’s jurisprudence on reasonableness of restrictions. 64 Yet again, however, in its analysis, the Court did not engage with the doctri were ne of proportionality. It concluded that the impugned provisions‘not a restriction on free speech that can be characterised as disproportionate the right to free speech does not include the’ since individuals have a right to reputation and therefore right to defame others. (^65) The Court did not explain why civil defamation was not sufficient to protect this right to reputation, or why given the importance of free speech and the impact that criminal defamation has on such speech, the balance should be struck in favour of the measure.
- The Aadhaar Litigation The Court again engaged with the doctrine of proportionality in three interconnected judgments arising out of a challenge to the constitutionality of Aadhaar. Through the Aadhaar, Targeted Delivery of Financial and other Subsidies, Benefits and Services Act 2016 (Aadhaar Act), and through executive orders that preceded it, the State created a biometric (^6263) ibid [68]. 64 (2016)ibid 343.^7 SCC^ 221. (^65) ibid 344.
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identification enabled identity card called the Aadhaar card. Enrolling for this card required and iris scans. The identity of the person could be verified, so the State a person to provide biometric data such as fingerprints claimed, by matching their biometric data, such as their fingerprints, with data stored with the government. The State also created a Central Identities Data Repository (CIDR) to store the identification data of each individual, to be used for authenticating the identity of any enrollee. Details of any authentication request, including the time of such authentication and identit stored in the CIDR. From time to timey of the entity seeking authentication were also, the State passed various orders making it compulsory to provide one’s Aadhaar details for purposes such as opening back accounts, getting a mobile phone connection, filing taxes, and receiving a range of social welfare benefits.
on the ground that it violates the right to privacy. Due to potentially^ The entire apparatus was^ challenged on multiple grounds, including conflicting prior precedent on the issue, the Court had to decide whether the right to privacy is in fact a right guaranteed by the Indian Con Therefore, the main hearing in the challenge to Aadhaar was deferred tostitution. allow a Meanwhile, the Parliament enacted the Finance Act 2017, incorporating nine-judge bench to first decide on the right to privacy issue. Section 139AA into the Income T to link Aadhaar with the Permanent Account Number (PAN). PAN isax Act 1961 which made it mandatory issued by the Income Tax Department and is required for carrying out a range of financial and banking activities, including filing one’s taxes. Quoting the Aadhaar number was also made mandatory for filing one’s taxes. The penalty for defaulting was that one’s PAN would be declared void ab initio, which would limit a person’s ability to carry out various financial and banking transactions, amongst other consequences. The constitutionality of Section 139AA immediately, and because of looming deadlines, this matter was hived off, Income Tax Act 1961 was challenged from the main Aadhaar challenge and decided separately in v Union of India. (^66) Thus, Binoy Viswam came to be decided first. Next Binoy Viswam came the decision on the right to privacy issue. And finally, the Court decided the constitutionality of Aadhaar itself. a. Binoy Viswam v Union of India In Binoy Viswam, the petitioners argued, and the Court accepted, that since PAN was essential for carrying out a range of business transactions, cancelling PAN would seriously infringe the right to profession,
(^66) (2017) 7 SCC 59.
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serious intrusion into individual rights. However, the Court did not explain why, if it was following the proportionality test, the balance between the intrusion into the rights and the benefit from the measure should have been struck the way it was in this judgment. By not engaging in the necessity and balancing stages of the proportionality analysis, the Court adopted a very deferential rational nexus test. This deference was writ large not only in the t questions. The Court cited authority for the proposition that laws enjoy aests adopted by the Court, but also in its approach to procedural presumption of constitutionality and that a court beyond any iota of doubt that the violation of the constitutional provisions ‘must be able to hold was so glaring that the legislative provision under challenge cannot stand.’^73 This conception of the burden and standard of proof, made the intensity of review minimal. This is why, perhaps, the Court accepted the State’s contentions as to the benefits of the law and the effectiveness of Aadhaar itself, without putting it to empirical proof.
b. Puttaswamy (I) v Union of India A few months later, the Court delivered its opinion on the right to privacy question. In Puttaswamy (I) v Union of India ( Right to Privacy), (^74) the Court had to decide whether the right to privacy was guarante right by the Indian Constitution, and it if was, the permissible limitsed as a fundamental thereto. As noted earlier, this issue was referred to a nine-judge bench because of conflicting precedent on whether the Indian Constitution protects the right to privacy. Since the Court had the opportunity to examine the existence and scope of the right to privacy as well as the permissible limits to it, this was an opportunity to more fully elaborate on the doctrine of proportionality, unhampered by the need to apply the test to facts. The Court unanimously held that the Indian Constitution protects the right to privacy. The petitioners had argued that such a right could be limited only in accordance with the following the test of proportionality (i) The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference;
(^7374) State of Madhya Pradesh v Rakesh Kohli (2012) 6 SCC 312. Puttaswamy v Union of India (2017) 10 SCC 1.
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(iv) There must be procedural guarantees against abuse of such interference.^75
would^ Per majority, be valid only if it satisfies the doctrine of proportionality. However,^76 the Court held that a limitation on the right to privacy the judges differed on what this doctrine entailed. The plurality opinion, authored by Justice DY Chandrachud, stated that any interference with the right to privacy has to meet the three-fold criteria of legality, legitimacy of aims, and proportionality, and that these requirements procedural and content-based mandate of Article 21.’ 77 ‘ This opinion heldemanate from the that the Court’s role in the legitimacy analysis is not to second guess the value judgement of the legislature, but to ensure that there is no or manifest arbitrariness’ in the aims of the law. 78 Thus, legitimacy ‘palpable standards should be pegged at the deferential end of the intensity of review spectrum. Note that previous cases had required that in right to privacy adjudication, the standard of scrutiny of State interests had to be that of compelling State interest scrutiny test in US constitutional – a much higher standard drawn from the strict law. 79 The plurality opinion in Puttaswamy intensity of substantive review of purpose. I did not specifically engage with the rationale for reducing the
test, and stated that this prong ensur^ Next, the plurality decision looked at the proportionality limb of thees ‘that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law. proportionality’ 80 Subsequently, however, the opinion asserted that the limb of ‘ensures a rational nexus between the objects and the means ends does not secure proportionality by itself. Rational nexus only requires adopted to achieve them.’^81 A rational nexus between means and that the means be capable of securing or advancing (depending on the intensity of the test) the ends for which they though the plurality opinion used the languagehave been put in place. So, and principle of proportionality, in effect, it reduced the standard to a much less intensive
(^7576) ibid 89. Chandrachud (for himself and three other justices) and Justice SK Kaul (writing for himself).^ The majority on this point comprised the plurality opinion authored by Justice DY (^7778) Right to Privacy (n 7 4 ) 504. 79 ibid 504.See Gobind v State of MP (1975) 2 SCC 148 at [22]; If the Court does find that the claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Justice Chelameshwar was the only one who engaged with this test that the compelling State interest test should be reserved for the most serious intrusions into – albeit briefly. While his opinion was silent on the proportionality test, he stated privacy; (^80) Right to Privacy Right to Pri vacy(n 7 4 (n 7) 504 (emphasis added). 4 ) 378-80. (^81) ibid 504 (emphasis added).
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c. Puttaswamy (II) v Union of India Justice DY Chandrachud had an opportunity to clarify the proportionality test in the main Aadhaar challenge, and here he applied a much more stringent proportionality test. However, he was in the minority in this decision. In Puttaswamy (II) v Union of India ( Aadhaar), 86 the Court decided the challenge to various parts of the various rules, notifications and circulars that had been issued under that or Aadhaar Act, as well as other laws pertaining to Aadhaar. The State had made providing Aadhaar details de jure or de facto mandatory for availing various services from the State or from private entities and these provisions were included in the scope of the challenge. In my discussion below challenge to Sections 7 and 8 of the Aadhaar Act, and the challenge to, I will focus on the Rule 9, Prevention of Money Laundering (Maintenance of Re 2005 (as amended by Prevention of Money Laundering (Maintenance ofcords) Rules Records) Seventh Amendment Rules 2017) (Rule 9, PML (MR) Rules). Act, one of the main purposes of the law was^ According to the Statement of Objects and Reasons of the Aadhaar to identify beneficiaries of various government schemes in a manner that eliminated duplication or fraud. According to the State, the failure to establish the identity of beneficiaries of various welfare programmes was leading to a lot of leakage and corruption, and was causing a hindrance to their successful implementation.^87 To this end, Section 7 of the Aadhaar Act required that any individual wanting to avail subsidies, benefits or services, produce their Aadhaar number. Section 8 made Aadhaar 88 had tobased authentication of identity mandatory for the availing such subsidies, benefits or services. The petitioners argued, and the Court accepted, that these provisions infringed Article 21. The question then was whether the infringement was justified. According to the petitioners, the burden was on the State to justify the infringement and the State had failed to do so because: (1) the State had failed to demonstrate that the purported leakages in the system were being caused due to identity fraud and that if the Aadhaar was implemented affidavits to show that leakages existed for a variety of reasons including these leakages would stop. The petitioners had filed ‘ types being the seligibility frauds, quantity frauds and identity frauds,ubstantial cause of leakages. They also raised questions’ with the first two about the evidence produced by the State to show how Aadhaar was helping in identifying and deleting fake beneficiaries from the Public (^8687) (2019) 1 SCC 1. 88 ibid 207.This provision applied to subsidies, services and benefits that were funded from the Consolidated Fund of India, see section 7, Aadhaar Act.
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Distribution System (PDS); (2) Aadhaar was itself not fool-proof and was open to its own forms of mischief burden of demonstrating that other less, rights; (3) the State had not discharged the-restrictive ways would have been significantly worse in addressing the problem. The petitioners produced studies which pointed to other mechanisms that were working well in reducing leakages in PDS; and (4) finally, the petitioners argued that Aadhaar was leading to systemic exclusion of marginalised groups from welfare schemes, which also militated against its proportionality. (^89) In sum, the petitioners argued that while Aadhaar might have a legitimate aim, the State had failed to demonstrate that the measure was suitable for achieving that aim, necessary for achieving that aim, or proportional to the rights infringement, especial On the other hand, the State argued that it was pursuing a legitimately since it had other very severe consequences. aim; that Aadhaar would help achieve that aim, and that the State had already considered and rejected alternatives offered by the petitioners after due deliberations. In any case, the State argued that the standard of necessity in the proportionality analysis could not be the test,’ among other reasons because ‘it involves a value judgment or second ‘least intrusive guessing of the Even if the least intrusive test was applicable, the Court should defer to the legislation’ which the judiciary should refrain from doing.^90 State’s determination on whether the impugned measure was the least intrusive one, since this involves a ‘technical exercise and cannot be undertaken in the court of law.’^91 On proportionality strictu sensu, the State argued that Section 7 and 8 involved minimal invasion into the right. On the other hand, it had significant benefits since by achieving its aims, it would help i live a dignified life. Therefore, the measure was itself in furtherance ofn better targeting of services that were essential for people to fundamental rights and directive principles of state policy.^92 lead judgment in^ These then were the arguments. Justice AK Sikri, the Modern Dental College wrote the majority opinion for^ author of the the Court in implies, its purposes, Aadhaar. In this opinion, he fleshed out further what the test 93 its types, 94 the value choices behind different versions of the test and his judgment as to the substantive form of the test. In particular, he noted the differences in the German and Canadian tests and the criticisms of both. (^95) He refined his own approach from Modern
(^8990) Aadhaar (n 8 6 ) 366-67. 91 ibid 368. ibid 368. (^9293) ibid 369-71. 94 Citing as three distinct models Alexy (n 22); Focusing on the distinctions between the German and Canadian models.^ Kumm (n 23); Möller (n 23). (^95) Aadhaar (n 8 6 ) 318-19 citing concerns that in the German doctrine the most important stage, where the bulk of the analysis takes place is the final the previous stages largely redundant. Another concern with the final stage is that the one: the balancing test. This makes
