Doctrine of proportionality

Also called: Proportionality test · Topic: Fundamental Rights and Constitutional Remedies · NCERT: Class 11, Ch 2 "Freedom"

Meaning

The doctrine of proportionality is a four-step test that courts use to check whether a limit on a fundamental right is fair. The limit must have a proper aim and be connected to that aim. It must be the mildest option that works, and the harm it does to the right must not be greater than the good it brings.

It matters because it is now the main test courts use to review State action that cuts into rights. It makes the State prove that no milder measure would have worked. It came from Modern Dental College v. State of M.P. (2016) and K.S. Puttaswamy (2017).

Explanation

The four steps, in order

The court asks four questions in a fixed order. If the State fails any one step, the limit falls.

1. Legitimate aim: the law or order must pursue a proper purpose, such as public order or security of the State.
2. Suitability: the measure must have a rational connection to that aim. In simple words, it must actually help reach the goal.
3. Necessity: it must be the least restrictive option that works equally well. If a milder step would do the same job, the harsher step fails.
4. Balancing: the harm to the right must not be greater than the benefit gained. This is "proportionality" in its narrow sense.

Where the test comes from

• Article 19(1) gives citizens six freedoms, including speech, assembly, association, movement, residence and profession.
• Each freedom has a matching clause that lets the State limit it by law, but only through reasonable restrictions:
• assembly under Art. 19(3)
• association under Art. 19(4)
• movement and residence under Art. 19(5)

• profession under Art. 19(6)

• The words "reasonable restrictions" were added by an amendment during the Constituent Assembly debates. The aim was to let courts review these laws and strike down arbitrary limits [3].

• Proportionality is not written in the Constitution. It is the method courts now use to decide whether a restriction is really "reasonable".

How it differs from the older test

Older "reasonableness" review	Proportionality
Asks broadly whether the limit is "reasonable" and not excessive (State of Madras v. V.G. Row, 1952)	Asks four set questions in a fixed order
Gives the government a lot of room (deferential review, where courts mostly accept the State's judgment)	Makes the State show that no milder option exists
Mostly checks the law as written	Checks how the measure works in practice, including how long it lasts and how wide an area it covers

Conditions and limits

• The State must justify the limit. The burden falls on the State to show why a milder step would not work.
• Time and area matter. Under this test, a limit that lasts without end or covers a whole region usually fails, because a shorter or narrower limit could work.
• It does not create new grounds. A restriction must still fit one of the grounds in the Constitution. For example, the grounds for limiting assembly under Art. 19(3) are only sovereignty and integrity of India, and public order.
• Uneven use. Critics say courts apply the test unevenly. Some cases stay pending until the issue is over.

In the Constitution and practice

• Base in the text: "reasonable restrictions" in Arts. 19(3)-(6) [3], and the requirement that any procedure under Art. 21 (protection of life and personal liberty) be "fair, just and reasonable" (Maneka Gandhi, 1978).
• Who uses it: the Supreme Court and High Courts, when they review laws and executive orders that limit fundamental rights.
• Landmark uses:

Case	Year	How proportionality was used
Modern Dental College v. State of M.P.	2016	Set out the four-step test
K.S. Puttaswamy (privacy)	2017	Adopted the test for limits on privacy
Aadhaar (Puttaswamy II)	2018	The Aadhaar scheme was tested against the right to privacy
Anuradha Bhasin v. Union of India	10 January 2020	Internet suspension orders must be the least restrictive option. Section 144 orders must be reasoned and proportionate.
Gujarat Mazdoor Sabha v. State of Gujarat	2020	A COVID-era notification that exempted factories from overtime-pay rules was struck down. A "public emergency" did not justify cutting workers' rights under Arts. 14 and 21.

• Anuradha Bhasin in detail:
• Background: after Art. 370 was changed in August 2019, the government suspended the internet and imposed Section 144 orders across Jammu and Kashmir.

• What the Court held:

  • Speech and trade carried out over the internet are protected by Arts. 19(1)(a) and 19(1)(g).
  • Internet suspension orders must be published, temporary, proportionate and open to periodic review.

• From judgment to law:

• The Telecommunications Act, 2023 allows a temporary suspension of telecom services only in a public emergency or in the interest of public safety [2].

• Under the 2024 rules, three safeguards apply [2]:

  • Orders must be published.
  • Only the Home Secretary may order a suspension.
  • A review committee meets every two months and can set aside orders.

• Prohibitory orders: the old CrPC s.144 power now sits in BNSS s.163, 2023 [4]. Under the proportionality test, a blanket ban on "five or more persons" that crushes peaceful protest is open to challenge.

• Protest cases that use the same balancing logic:
• Himat Lal K. Shah (1973): the State can regulate meetings on public streets but cannot ban them outright.
• MKSS (2018): a complete ban on protests at Jantar Mantar and Boat Club was struck down.
• Amit Sahni (2020): protest is a right, but public ways cannot be occupied indefinitely.

Don't confuse with

• Older "reasonableness" review (V.G. Row, 1952): this asks one broad question and gives the State a lot of room. Proportionality asks four fixed questions and makes the State prove that no milder option exists.
• Grounds of restriction (Arts. 19(2)-(6)): the grounds are the list of reasons for which a right can be limited, such as public order or morality. Proportionality checks whether the limit goes too far, even when a valid ground exists.
• "Fair, just and reasonable" procedure (Maneka Gandhi, 1978): this is a rule about the procedure under Art. 21. Proportionality is a test of whether the measure itself is suited, needed and balanced.
• Blanket ban vs regulation: proportionality usually allows regulation of time, place and manner. A total ban usually fails the necessity step (MKSS, 2018).

Prelims Hooks

• The four-step test comes from Modern Dental College (2016) and K.S. Puttaswamy (2017). The steps, in order, are legitimate aim → suitability → necessity → balancing.
• The necessity step means the least restrictive measure that works equally well.
• Anuradha Bhasin (10 January 2020): internet suspensions must be published, temporary, proportionate and reviewed. Section 144 orders must be reasoned and proportionate.
• Gujarat Mazdoor Sabha (2020): a COVID-era overtime-pay exemption for factories was struck down. A "public emergency" did not justify cutting rights under Arts. 14 and 21.
• Aadhaar (Puttaswamy II, 2018) tested the Aadhaar scheme against privacy using proportionality.
• Trap: the word "proportionality" does not appear in the Constitution. The text says "reasonable restrictions", and those words were added during the Constituent Assembly debates [3].

Mains Points

• A stronger check than reasonableness. Proportionality makes the State explain why a milder measure would not work. This makes it the main tool for reviewing internet shutdowns, prohibitory orders and bans on protest.

• The Telecommunications Act, 2023 and its 2024 rules put the Anuradha Bhasin safeguards into law: publication, orders by the Home Secretary, and review every two months [2].

• Gaps in practice.

• Courts apply the test unevenly. Some cases are left pending until the issue is over, as in the J&K review.
• Review of shutdowns stays inside the executive, with no judicial member. States have ordered state-wide shutdowns to stop cheating in exams [2].

• Reforms: a fixed maximum duration, judicial review, and targeted rather than area-wide blocking.

• Balancing rights against each other. On protest, proportionality lets the State regulate time, place and manner but not ban dissent itself.

• The State still has to protect the rights of other citizens to move, work and use roads (Amit Sahni, 2020).
• Designated protest sites must be ones people can actually use, and blanket "five or more persons" orders under BNSS s.163 should be avoided.

Related concepts

• Freedom of assembly
• Right to protest
• Prohibitory order
• Freedom of association
• Right to strike
• Freedom of movement
• Freedom of residence
• Freedom of profession
• Anuradha Bhasin case
• Right to access the internet

Read more

• Assembly, association, movement and occupation; protests and shutdowns