Constitution courts especially in democratic countries often test the justification of any restriction on the fundamental rights of citizens. Over a period of time courts have evolved various tests to test the justifiability of such restrictions.
The test of reasonableness and the proportionality standard are two such tests or touchstones developed by courts to determine the legality, reasonability, and justiciability of any restrictions imposed on fundamental rights.
When it comes to rights, Article 19(1) of the Indian Constitution enlists various freedoms guaranteed to Indian citizens.
These freedoms include freedom of speech and expression; to assemble peaceably and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India and to practice any profession, or to carry on any occupation, trade or business.
However, these freedoms are not absolute. Sub-clauses 2, 3, 4, 5, and 6 of Article 19 mention the nature of restrictions that the state can impose on the exercise of the freedoms guaranteed in sub-clause 1 of Article 19.
Huge volumes of constitutional jurisprudence exist on the interpretation of almost each and every word contained in Article 19(2), yet there often arises some doubts and uncertainties over the nature and scope of these restrictions.
Given below are some questions regarding the nature and scope of restrictions on fundamental rights that often arise from time to time.
- What exactly is ‘reasonable’ restriction?
- On whom lies the burden of proof to show that restrictions are reasonable or not reasonable?
- Does restriction include total prohibition?
- Does reasonable means proportionate?
Reasonableness and Proportionality Tests: Case Analysis
In Pathumma v State of Kerala 1978, SC held that in judging the reasonableness of the restrictions imposed by the clause (5) of Article 19, the court has to bear in mind the DPSP and restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.
In Chintaman Rao v The State of Madhya Pradesh 1958, the court said that the phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required.
Unlike Article 14, where there is a presumption of constitutionality in favor of concerned statutes, in the case of article 19, the petitioner has to first prove that a particular enactment by the state infringes upon his Article 19 rights, and then it is incumbent on the state to show that those restrictions are justified under Article 19(2).
So the burden of proof lies on State to show that justifications for such restrictions are reasonable and proportionate.
As to whether restrictions include prohibition, SC said yes provided they are reasonable.
In Narendra Kumar v UOI 1960, Court said that the greater the restriction, the stricter the scrutiny of the court, and restrictions can even be in the nature of complete prohibition as long as they are reasonable.
As per the test of proportionality, any restriction on the rights of an individual can be justified only to the extent they are proportionate to the evil sought to be remedied using such restriction.
The proportionality test originated in the European and American Jurisdiction. But of late, Indian constitutional courts have also started using this standard in determining the restrictions on freedoms guaranteed under Article 19.
Citing the case of State of Madras v VG Row 1958, many say that proportionality standard is not new in India. In this case, SC had held that test of reasonableness, wherever prescribed, should be applied to each individual statute keeping in mind the 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 and the prevailing conditions at the time.
But in Modern Dental College v State of Madhya Pradesh 2016, the court laid down a very comprehensive proportionality standard and this was carried forward in the Aadhar verdict as well.
As per this case, a limitation of a constitutional right will be constitutionally permissible if-
- It is designated for a proper purpose;
- The measure undertaken to effectuate such limitation are rationally connected to the fulfillment of that purpose;
- The measures undertaken are necessary in the sense that there are no alternative measures which can achieve the same purpose but with a lesser degree of limitation on freedoms; and finally
- 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.
Difference between Reasonableness and Proportionality Test
While the test of reasonableness and proportionality standard do share some common characteristics, they also differ in two significant ways.
Firstly, there exists no exhaustive formula to ascertain the test of reasonableness, but there exists a comprehensive step-wise formula to ascertain the proportionality standard.
Secondly, unlike the proportionality standard, the test of reasonableness does not go into the requirement of alternative measures equally efficacious when it comes to restricting fundamental rights.
Simply put, if any restriction on fundamental rights is reasonable, it will be justified even if there exist better alternatives that are equally efficacious but less compromising on rights.
But the same is not true for the proportionality standard. Here the state will have to prove that there exists a no better alternative to achieve the legitimate aim.
It is expected that in the future Supreme Court of India is going to rely more on the favor of the ‘Proportionality Test’.
Suggested Reading| Constitutional Law Class Notes