In Union of India Vs. G.

Ganayutham,1 the Court remarked that the guiding principle in India

would be the Wednesbury reasonableness.
The apex Court has tacitly accepted the proportionality criteria in Om Kumar v. UOI,
remarking that the doctrine of proportionality have been used in India since 1950.
In the case of VG Row v. State of Madras, the Court observed that in a judicial verdict, the
objective of the limits imposed, the amount and urgency of the wrong sought to be remedied
by them, the disproportion of the imposition, and the prevailing conditions at the time should
all factor in.2
J. Kuldip Singh, in Sodan Singh v. NDMC,3 explained the word "professionals" as referring
to those people who provide services to the society.
In State of Maharashtra v. Indian Hotels & Restaurants, the SC ruled that in determining
whether a specific piece of legislation serves the interests of the general public, "the court
should take into consideration the prevailing conditions at the time the restriction was
imposed, the purpose of the restriction imposed and the degree of urgency."4
The legitimacy of the Madhya Pradesh Act, which forbade residents in particular districts
from manufacturing bidis, was contested in the case of Chintamanrao v. State of MP.5 The
Bill's goal was to maintain a sufficient labour supply in the agricultural sector. The act was
declared invalid by the court since it had no relation to agriculture and it deprived people of
their means of subsistence. This suggests that the court will also consider the desirability of a
restriction when assessing its purpose.6
In Brij Bhushan and Another vs The State Of Delhi,7 the Court observed that if a law is aimed
at preventing public disorder and disturbance to public tranquillity, it meets the constitutional
requirement. It can be inferred that the Court looked at only the purpose prong of the
proportionality test and did not go into the third and fourth prong.
Non-application of the third and fourth prongs of the test raises some concerns as there have
been instances when Court have struck down a law on the ground that it did not satisfy the
requirement of impairment of minimal harm.8 For example, in Sauve v Canada, the Canadian
Supreme Court struck down a provision of Canada Elections Act, 1951 which banned all
prisoners from voting irrespective of their sentence. The ground was that the provision failed
to meet the test of minimum impairment in the proportionality test.
In Modern Dental College & Research Centre v State of Madhya Pradesh, a law which
conferred upon the state government the authority to hold a single entrance test, decide
private institutions’ fee and decide upon the seats reservation in the college. They claimed
that excessive interference amounts to violation of Constitution’s Article 19(1)(g).9

1
(1997) 7 SCC 463.
2
AIR 1952 SC 196 [16].
3
(1989) 4 SCC 155.
4
(2013) 8 SCC 519.
5
AIR 1951 SC 118.
6
AIR 1986 SC 515; Bennett Coleman v UOI AIR 1973 SC 106.
7
1950 SCR 594
8
Sauve v Canada (Chief Electoral Officer) [2002] 3 SCR 519 (Can).
9
(2016) 7 SCC 353.
In the majority opinion, Justice AK Sikri stated that proportionality was the test for assessing
whether a restriction imposed under Article 19 is reasonable.10 While observing that
proportionality test has impliedly become a part of Article 19 Jurisprudence, the Court cited
the test of Aharon Barak11 and the Canadian version in R v Oakes12. The proportionality test,
however, was not actually applied by the Court to the facts of this case. For instance, the
Court ruled that when the exams were conducted by universities, the measure taken by the
state was justified by "larger public interest.”13 The Court concluded that the state legislation
met the test of proportionality on this basis; the Court did not delve into the nature of the
restriction that was imposed and neither did it conduct a structured analysis of alternative less
restrictive measures. Without addressing the efficiency of the linkage, which was the
principal argument made by the appellants, it was decided that the "penal consequence" was
directly related to the intention of the statute.
In Binoy Viswam v UOI, the Finance Act of 2017 was passed by the Parliament, requiring
the linking of Aadhaar and PAN for the purpose of processing commercial transactions and
payment of taxes. Business transactions would be disrupted if linkage is not done. The
petitioners' principal contention was that PAN was necessary for the purpose of financial
transactions and that its cancellation would violate right to profession provided by Article
19(1)(g) of the Constitution.
The Court ruled that the restriction needed to be examined in light of the Dental College's
proportionality test.14 It agreed with the state's argument that preventing the use of duplicate
PAN cards was the main goal of linking PAN and Aadhaar cards. Aadhaar and PAN linking
would produce a distinct, fraud-proof biometric identity.15 As a result, the Court made a
decision only regarding the test's "purpose" prong. It observed that “penal consequence” was
directly related to the purpose for which law was brought. The Court did not address the
effectiveness of the linkage, the appellant’s main argument..
The Court did not deal with the question of how the advantages of law outweighed the
drawbacks of restricting the right. The Court should have clarified why a measure with less of
an impact than the one adopted could not be used to mitigate the evil of duplication. The
Court did not examine the "balancing" phase of the proportionality test, even though it
acknowledged that the legislation under challenge could have serious effects in terms of daily
suffering and a potential data breach. The Court, instead, instructed the government to enact a
data scheme law.
One of the features of proportionality test has been that it is applied with some logical
consistency i.e., one step of the doctrine is followed by the next.16 The test starts with
checking with the purpose for which infringement is being done is legitimate and then moves
in to the aspect of the whether the infringement, in itself, is rightly designed. The apex Court
has not followed this consistency. Generally, in proportionality test, the Court has to first see
whether the purpose sought to be achieved by the measure adopted is legitimate and then go
10
Ibid.
11
Aharon Barak, ‘Proportional Effect: The Israeli Experience’ (2007) 57 University of Toronto Law Journal 369,
378.
12
R. v Oakes [1986] 1 S.C.R. 103.
13
Manohar Lal v State of Punjab AIR 1961 SC 418.
14
Binoy Viswam v UOI (2017) 7 SCC 59.
15
Ibid (62).
16
Gideon Sapir et al (eds), Israeli Constitutional Law in the Making (Hart 2013) 187.
into whether the measure is able to fulfil that purpose. In Virendra v State of Punjab,17 the
Court went into the aspect of whether the measure being applied fulfils the goal for which it
was brought, without deciding upon whether the purpose or goal in itself is legitimate.
Through the Dental College case, the proportionality test is being applied in India in its latest
form. A four-pronged proportionality test has been endorsed by the Court,18 states that:

i. the restriction imposed should be designated for a proper purpose.19

ii. the measures taken are rationally connected to fulfilling the purpose.20

iii. the measures taken are essential in such a manner that no alternative measure could have
accomplished the same goal by restricting the fundamental right.21

iv. The balance between fundamental rights and restrictions on those rights should be
maintained.

The third ("iii") aspect of this test, which calls for the Court to focus on the "Least Restrictive
Measure," has not been discussed extensively by the SC. This is mainly due to the fact that
the third prong needs adoption of a fact-based approach on the part of the Court22 in which
less intrusive alternatives have to be looked into by the Court.23 In Omkar v. Union Of India,
the Court explained the term “proportionality”, remarking that it refers to the issue of whether
the legislature chose the least restrictive measure possible.

A. ANURADHA BHASIN V UOI (2020) 2-judge

In this case, the factual matrix was that the Constitution's Articles 19(1)(a) and 19(1)(g) were
allegedly violated in the context of internet shutdown in Jammu and Kashmir. In this
instance, the Court ruled that having access to the internet is a basic right guaranteed by
Article 19(1)(a) and any restriction on it must pass the proportionality test.24 Judgement of
proportionality must be made in light of “territorial extent”.25 This meant that a place can
have internet restrictions only if there exists a threat to the public order. In paragraph 70 of
the judgement, the Court remarked that it is mandatory for state to identify the available
alternative mechanisms before adopting a measure.26 Consequently, to review the situation
from time-to-time in Jammu and Kashmir, a Special Review committee was established. In
effect, a "Special Committee" was assigned the Judicial responsibility ― duty of Judiciary ―
17
1958 SCR 308.
18
Dental College (n 33)
19
Fatehchand v State of Maharashtra AIR 1977 SC 1825.
20
Subramanian Swamy v UOI (2016) 7 SCC 221.
21
David Bilchitz, ‘Necessity and Proportionality: Towards a Balanced Approach?’ (2014) 45 Hart LR 35.
22
Chintan Chandrachud, ‘Proportionality, Judicial Reasoning and the Indian Supreme Court’ (2017) 1
Antidiscrimination Law Review 87, 98.
23
VN Shukla, Constitution of India (12th edn, 2015) 169.
24
Anuradha Bhasin v UOI 2020 SCC Online SC 25.
25
Ibid [76].
26
Ibid [70].
of determining whether the suspension of internet access was constitutional. This episode
demonstrates the SC's submissive attitude.

B. PUTTASWAMY (II) V UOI (2018) 5-judge

By a majority of 4:1, the Court decided that the Aadhaar Act is constitutionally valid. In the
Para 280 of the ruling, the Court remarked that due to the manner in which the malpractices
have happened in the past leaves us the Court with no other option than the system of unique
identity in Aadhaar. The Court also considered the fact that there is no alternative less
intrusive solution available and even after multiple queries, the petitioners were unable to
offer any method.27
The observations of the Court demonstrate that the petitioners were required to come up with
an alternative solution. In place of Aadhaar, the petitioners preferred smart cards since they
would prevent data centralization and be less invasive overall.

C. INTERNET MOBILE ASSOCIATION V. RBI (2020) 3-judge

The apex Court struck down the ban put by RBI on the use of cryptocurrency in India on the
ground that there was violation of Article 19(1)(g) of the Constitution. In the Judgement, the
Court observed in Para 6.1 that the action of RBI amounted to significant restriction on the
shareholders’ fundamental rights since RBI did not contemplate any alternative less intrusive
methods."28 Therefore, in this case, the state, or RBI, was given the burden of proof.

A possible solution to this issue could be found in Aharon Barak’s book on the
Proportionality Test. Aharon makes the case that the burden should be shared by both the
state and the petitioner.29 However, the burden's nature would differ for both the parties.

Aharon argued that it should be made the petitioners' responsibility to present alternatives
that would lessen the interference with fundamental rights.30 The reason given for this is that
since there can be various ways of forming a legislation, the state should not be given the
burden. Alternatively, he asserts that the duty of the state would then be to show that the
petitioners' alternative suggestions for actions would not be effective. This is because the
logistical capacity to test the effectiveness of the alternative measure is available only with
the state.
27
(2019) 1 SCC 1 [280].
28
2020 SCC Online SC 275 [6.1].
29
ibid 45.
30
Ibid.
The case laws analysed in this paper show that the SC has been inconsistent in applying the
proportionality test. The cases demonstrated that there is no requirement for Courts to
actually go into the factual issues that are in dispute. Instead, the Court has to decide upon
whom to place the onus of demonstrating the efficacy of the measures; the petitioners or the
state. A commonality that can be seen across all these cases is the adoption of the
proportionality test by the Court in its reasoning of the decision.

 Manohar Lal v State of Punjab AIR 1961 SC 418: The legislation is in effect the
exercise of social control over the manner in which business should be carried on-
regulated in the interests of the health and welfare not merely of those employed in it
but of all those engaged in it. A restriction imposed with a view to secure this purpose
would, in our opinion be clearly saved by Article 19(6).
 Om Kumar v Union of India (2001) 2 SCC 386
 State of Maharashtra v. Indian Hotels & Restaurants (2013) 8 SCC 519: the SC ruled
that in determining whether a specific piece of legislation serves the interests of the
general public, "the court should take into consideration the prevailing conditions at
the time the restriction was imposed, the purpose of the restriction imposed and the
degree of urgency
 VG Row v State of Madras AIR 1952 SC 196: the Court observed that in a judicial
verdict, the objective of the limits imposed, the amount and urgency of the wrong
sought to be remedied by them, the disproportion of the imposition, and the prevailing
conditions at the time should all factor in.
 Indian Express Newspapers v UOI AIR 1986 SC 515: The Supreme Court observed
that neither the petitioners were able to prove excessive tax burden nor the
Government of India were able to counter it. The court instructed the Government of
India to re-examine the taxation policy by evaluating whether it constituted an
excessive burden on the newspaper. The government was of the view that such a
consideration was irrelevant. Therefore, they had to revise the notification by taking
this factor into consideration.
 Fatehchand v State of Maharashtra AIR 1977 SC 1825: Attorney-General showed
how by reading together the two Acts and remembering their respective purposes a
viable resolution of possible imbroglios is simple although officialdom is not
unfamiliar with the art of embroilment where artless customers are involved or
ulterior ends are to be served.
 Anuradha Bhasin v UOI 2020 SCC Online SC 25: Ever since 1950, the principle of
'proportionality' has indeed been applied vigorously to legislative (and administrative
action) in India.
1. R. v Oakes [1986] 1 S.C.R. 103: R v Oakes [1986] 1 SCR 103 is a case decided
by the Supreme Court of Canada which established the famous Oakes test, an
analysis of the limitations clause (section 1) of the Canadian Charter of Rights
and Freedoms that allows reasonable limitations on rights and freedoms. A two-
 part test was proposed in this case: the purpose of the law must be
important to society or be designed to promote a sufficiently
important objective.
2. Proportionality
1. Rational Connection
2. Minimal Impairment
3. Proportionality between means and effect

 Subramanian Swamy v UOI (2016) 7 SCC 221: The Supreme Court of India
dismissed challenges to the constitutionality of the criminal offense of defamation,
holding that it was a reasonable restriction on the right to freedom of expression. The
reasonableness and proportionality of a restriction is examined from the stand point of
the interest of the general public, and not from the point of view of the person upon
whom the restrictions are imposed. Applying this standard, the Court judged the
criminal defamation laws to be proportionate.
 Superintendent Central Prison v Ram Manohar Lohia 1960 SCR (2) 821: It is well
settled by decisions of this Court that in a restriction in order to be reasonable must
have a reasonable relation to the object the Legislation has in view and must not go
beyond it. Restrictions, therefore, meant to be in the interest of public order which
have no proximate relationship or nexus with it but can be only remotely or
hypothetically connected with it, cannot be reasonable within the meaning of Art.
19(2) of the Constitution.
 Sodan Singh v. NDMC (1989) 4 SCC 155: J. Kuldip Singh, in Sodan Singh v.
NDMC,31 explained the word "professionals" as referring to those people who provide
services to the society.
 Modern Dental College & Research Centre v State of Madhya Pradesh (2016) 7 SCC
353: while examining as to whether the impugned provisions of the statute and Rules
amount to reasonable restrictions and are brought out in the interest of the general
public, the exercise that is required to be undertaken is the balancing of fundamental
right to carry on occupation on the one hand and the restrictions imposed on the other
hand. This is what is known as 'Doctrine of Proportionality'.

According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are
four sub-components of proportionality which need to be satisfied[13], a limitation of
a constitutional right will be constitutionally permissible if: (i) it is designated for a
proper purpose; (ii) the measures undertaken to effectuate such a limitation are
rationally connected to the fulfillment of that purpose; (iii) the measures undertaken
are necessary in that there are no alternative measures that may similarly achieve that
same purpose with a lesser degree of limitation; and finally (iv) there needs to be a
proper relation ('proportionality stricto sensu' or 'balancing') between the importance
of achieving the proper purpose and the social importance of preventing the limitation
on the constitutional right.
 Internet Mobile Association v RBI 2020 SCC Online SC 275
 Bennett Coleman v UOI AIR 1973 SC 106: The Supreme Court of India accepted
petitioners’ challenges that certain restrictions and regulations on newspapers affected
the right to freedom of speech and expression. The Court found that because the
31
(1989) 4 SCC 155.
 freedom of the press involved both qualitative and quantitative dimensions, the
Newsprint Policy was unconstitutional as its quantitative restrictions were not
justified by a shortage of newsprint; the Newsprint Order and Import Control Order
were not struck down.
 Puttaswamy (II) v UOI (2019) 1 SCC 1
 R v. Goldstein 1983 (1) WLR 151: According to Lord Diplock, proportionality
consists of a balancing test, which is supposed to keep check on arbitrary or excessive
punishment or encroachment upon rights, and the necessity test, which considers
other less restrictive measures through which the desired goal could have been
achieved.32
 Brij Bhushan And Another vs The State Of Delhi 1950 SCR 594: the Court observed
that if a law is aimed at preventing public disorder and disturbance to public
tranquillity, it meets the constitutional requirement. It can be inferred that the Court
looked at only the purpose prong of the proportionality test and did not go into the
third and fourth prong.
 Virendra v State of Punjab 1958 SCR 308: the Court went into the aspect of whether
the measure being applied fulfils the goal for which it was brought, without deciding
upon whether the purpose or goal in itself is legitimate.

32
R v. Goldstein 1983 (1) WLR 151.