Position of Fundamental Rights In Re Of The Proportionality Test

‘We the people of India’ are guaranteed some fundamental civil and political rights to safeguard individual liberty and equality under the constitution. Under part III of the constitution, six fundamental rights are given to the citizens laid down from Article 14 to 35.[1] These rights are essential to ensure social, economic, and political justice and attain the individual’s full intellectual, moral, and spiritual status. They instil the values cherished by our forefathers and are pivotal to achieve the goal they framed for us. As Holland says, “Rights are the capacity residing in one man of controlling with the assent and assistance of the state the action of others,”[2] thus without ensuring essential and inviolable fundamental rights, real development and growth of the society cannot be attained. In the words of Justice PN Bhagwati, “The fundamental rights are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.”[3] 

Nevertheless, these rights are not absolute, meaning in the hour of need restrictions can be imposed on them, and they can be suspended. If some unexpected and sudden event that endanger our country’s security, stability, and integrity occurs, the government can take strict measures to deal with it. In India, the president has the power to declare national, state, or financial emergency in the country as per the provisions of the constitution. During an emergency, the president can order to suspend the enforceability of all the rights conferred by part III of the constitution. However, the 44th constitutional amendment restricted the scope and amend that all rights except Art. 20 and 21 can be suspended.[4] However, the president may only proclaim an emergency if the security of the nation or any part of the nation is threatened. The constitution confers the state power to take any executive action and make any new law to cope with extraordinary economic, civil, or political circumstances. 

However, there stands a vulnerability that the position holders might take advantage of while exercising their discretionary powers. The administrative authorities might use these powers arbitrarily and impose unwarranted restrictions on the rights to postpone elections, limit political opponents and restrict people for other self-serving intend. This discretionary power risks the democratic nation to fall in the hands of a ‘constitutional dictatorship.’ As said by Ex-CJI, “Even though the fundamental rights are not absolute, there should be no fetters that destroy the central dogma of the constitution.”[5] Thus, if the administrative actions deviate from the object or are disproportionate to the quantum of restrictions required to achieve it, the court can quash such decisions using the principle of proportionality. 


What Is the Principle of Proportionality? 

As Fritz Fleiner once wrote, “the police should not shoot at sparrows with cannons,”[6] the principle of proportionality works on its lines. The principle of proportionality came into being as a result of the Doctrine of Wednesbury unreasonableness[7]. The doctrine of Wednesbury says that the decisions can be questioned if they are so unreasonable and discriminatory that no reasonable authority would impose it. The proportionality test goes a step further and says that the administrative actions have to be unreasonable and arbitrarily implemented for it to be disproportionate.

The State has an obligation to create a balance between the restrictions imposed on the fundamental rights and severity of the unanticipated objective to be achieved. For instance, during a state emergency, it is proportionate to restrict the right to freedom of movement under Art. 19 if a war breaks out. The State can impose such restrictions to fulfil a more significant public interest goal. However, if the actions are Wednesbury unreasonable and limit individual rights more than required to achieve its objective, it can be challenged in the court. Simply put, the State should limit the rights of the people only in the quantum required to execute its responsibilities and maintain stability in emergency times.

In India, the court adopted this principle in the case of Om Kumar v. Union of India[8] and said that while regulating fundamental rights, the administration must take appropriate or least restrictive measures. If the state action is prima facie irrational and perverse, then it can be challenged in the court, and the court can strike down such a decision. 

Further, the court, in the case of Dev Singh v. Punjab Tourism Development Corporation[9], reiterated the same and explained that the restrictions must be narrowly tailored, and if there are any other means provided under the law, then it must be employed. The aim must be to protect people’s rights as much as possible. 

Subsequently, the supreme court of India, in the case of Modern Dental College v. State of Madhya Pradesh[10], laid down a four-pronged test to determine if the restrictions are reasonable or not. The limitations imposed by the administrative authority is permissible if 

  1. It is designated for a proper purpose. 
  2. Measures undertaken to effectuate such a restriction are rationally connected to the fulfilment of a particular purpose. 
  3. There are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation.
  4. There needs to be a proper relation between the importance of achieving the purpose and the social importance of preventing the limitation on the fundamental rights.[11] 

This test was amplified in the case of Justice K.S. Puttuswamy v. Union of India[12] and the court held that the test of proportionality is the standard to review any limitations laid upon the fundamental rights. The court submitted that the four-prolonged proportionality test must act as a standard of review for any state actions that limit its people’s fundamental rights. 

However, the application of this test in its latest form has been inconsistent. In an array of decisions regarding fundamental rights being limited, the Supreme Court has applied the third prong of the test differently the way it has conceptualized it. The concept is drawn on the lines of the model proposed by David Bilchiz that requires: 

  1. Identify alternatives to the measures adopted by the State.
  2. How effective these alternatives are and whether they achieve the state objective in a ‘real and substantial manner.’
  3.  What is the impact of these alternative measures on the infringed right?
  4.  The court should undertake a balancing exercise.[13] 

However, in the case of Justice K. Puttuswamy[14], the court laid no attention to the questions raised in third-prong and said that the first two-prong were sufficient to test the proportionality. Moreover, the court did not engage in the effectiveness or impact of these alternatives on the Right to Privacy. Therefore, the court is yet not clear on what standards they would examine an administrative decision. 

Subsequently, the court gave no clear answer in the case of Anuradha Bhasin v. Union of India[15], the internet ban case. This case arose when the government imposed a complete ban on the internet, landlines connectivity, and mobile network in the valley of Kashmir. Though in the judgment, the court did an admirable job in expanding the ambit of judicial review and scrutinizing government decisions, the court did it being blind to the third-prong of the test. The State had the burden to provide for the least restricting alternative, but they submitted that there is a need to impose a complete ban on the internet to maintain ‘security of the state.’ When the petitioner provided an alternative to impose a ban on a particular part of the internet and allow particular parts of the internet, the state argued that “The level of restriction required is best left to the officers who are on the ground with the requisite information and knowledge.”[16] The court, instead of inquiring the need for this strict ban, simply defers to the submission given by the state. Due to this, the country has witnessed the most prolonged internet shutdown in the history of democracy. After 213 days, on 4th March 2020, the state allowed free access to the internet, but only through 2G verified SIM’s.[17] 

The law still stands unclear on how the proportionality test must be applied. In cases where a complete factual analysis can only determine the proportion of the limitations imposed, the court should call for it. The courts must urge the state to demonstrate a full factual analysis and give the reason to the quantum of rights required to be suspended to achieve its intended objective when required. If the state fails to bring off any substantial evidence to prove the limitations it has put on the rights of its people beyond doubt, then the court should declare it unconstitutional. As per Lon fuller, one of the eight principles of legality is that the law should be free from contradiction and be consistent.[18] A test that determines if the restrictions imposed on fundamental rights is reasonable and unarbitrary cannot have an inconsistent application, and the court must step in to protect the citizens from the domination of the state. Let us not lose out on the court that has stood of its people’s rights time and time again and not forget, “All hope abandon ye who enter here.” 


[1] The Constitution of India, 1950.

[2] Mohd Aqib Aslam, Rights and Duties In The Light Of Jurisprudence: An Overview. 

[3] Maneka Gandhi v. Union of India 1978 AIR 597.

[4] The Constitutional (forty-fourth Amendment) Act, 1978.

[5] No compromise on fundamental rights: CJI Dipak Mishra, The Economic Times, available at https://economictimes.indiatimes.com/news/politics-and-nation/no-compromise-on-fundamental-rights-cji-dipak-misra/articleshow/61807330.cms

[6] Fritz Morstein Marx, Comparative Administrative Law: Exercise of Police Power, 1942, available at https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9227&context=penn_law_review 

[7] Associated Provincial Picture Houses v. Wednesbury Corporation [1947] EWCA Civ 1.

[8] Om Kumar & Ors v. Union of India SLP (civil) 21000 of 1993.

[9] Dev Singh v. Punjab Tourism Development Corporation Civil Appeal No. 6918 of 2003.

[10] Modern Dental College v. State of Madhya Pradesh AIR 2016 SC 2601.

[11] Ankush Rai, Proportionality in Application- An Analysis of the “Least Restrictive Measure” available at https://indconlawphil.wordpress.com/category/constitutional-interpretation/proportionality/

[12] Justice K. S. Puttuswamy v. Union of India (2017) 10 SCC 1.

[13] Supra note. 11.

[14] Ibid.  

[15] Anuradha Bhasin v. Union of India Writ Petition (Civil) 1039 of 2019.

[16] Supra note. 15, pg. 17.

[17] Longest shutdowns, Internet shutdowns available at https://internetshutdowns.in/

[18] Colleen Murphy, Lon Fuller and The Moral Value of The Rule of Law, available at http://faculty.las.illinois.edu/colleenm/Articles/Murphy-%20Fuller%20and%20the%20Rule%20of%20Law.pdf

Khushi Totla from NMIMS Kirit P. Mehta School of Law

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