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Three Arguments for the Application of Proportionality in Rights Review in India
The article provides three arguments why the proportionality principle is best suited to review fundamental rights in India. The author’s argument revolves around three central claims, namely the structure of the proportionality principle, the limited nature of fundamental rights, and fi nally a historical argument. Navin
Of late, the Supreme Court has been increasingly relying on the proportionality principle to review the constitutionality of legislations limiting fundamental rights. Proportionality has featured extensively on issues concerning privacy rights (Puttaswamy v Union of India, 2018), individual autonomy (Navtej Singh Johar v Union of India, 2016), and also in establishing the contours of free speech and its corresponding limitations (Anuradha Bhasin v Union of India, 2020). So what is it about proportionality that has made it one of the most controversial yet sought after procedures in review jurisprudence.1 Many consider proportionality as a product of the contemporary phenomena of global constitutionalism (Sweet and Mathews 2013). Proportionality, as remarked by Justice Chandrachud, constitutes, “an essential facet of the guarantee against arbitrary state action’. Its attraction lies not only in the ease in which it fits the institutional structure of review jurisprudence, but also in its ability to conceptualise a theoretical basis for fundamental rights.
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