[This is a guest post by Priyansh Dixit.]
In India Young Lawyers’ Association v State of Kerala (‘Sabrimala’), Justice Chandrachud observed the possibility of using proportionality as a limitation analysis in Article 25(1), as opposed to the Essential Religious Practice (‘ERP’) test. The case is currently pending before a nine-judge bench under the Court’s review jurisdiction. In line with Justice Chandrachud’s observations, it has been more elaborately argued elsewhere that proportionality should be applied to the limitation analysis of religious rights, as a superior alternative to the contemporary ERP test.
Such arguments have taken on new significance in light of the recent split division bench of the Supreme Court in Aishat Shifa v State of Karnataka, regarding the (in)famous Hijab issue. The case has been put before the Chief Justice of India and is likely to raise the issue of limitation analysis in religious rights, which would be echoed in the Sabrimala review. The important issue of applying a proportionality-based review can arise. Nevertheless, because of the critique that the ERP test is subjected to, and because of the importance that limitation analysis based on proportionality is given, the question of applying proportionality to Article 25(1) becomes important.
In assessing the application of proportionality to Article 25(1), the first step of the inquiry, before a normative analysis of the desirability of using proportionality in the adjudication of religious rights, would be to ascertain whether a legal foundation exists that justifies limitations analysis based on proportionality. Recently, in a guest post, Kartik Kalra, while criticising Justice Dhulia for sidestepping the ERP test in his judgement in the Hijab case, argued that a cleaner, judicially sound alternative would have been to use proportionality in Article 25(1) of the Indian Constitution, effectively contending that such a legal basis exists. His central premise was that because it has been held that no state action can be arbitrary, unreasonable, or fanciful (Maneka Gandhi v Union of India, Mithu v State of Punjab), and because no right can be abridged more than what is necessary to achieve a state’s legitimate objectives (K.S. Puttaswamy v Union of India), proportionality can be applied.
In this article, I take a stance contrary to Kalra. I argue that proportionality, as a structured four-prong structured test, cannot be applied to Article 25(1). Firstly, I will argue that standards of reasonableness, even though they have been read broadly into the constitutional scheme, do not justify reading proportionality as a limitation analysis in Article 25(1). This argument is not a contribution toward my actual inquiry into whether proportionality can be applied to Article 25(1). Rather, it acts as a rebuttal to Kalra’s argument that mere reasonability can justify the use of proportionality. To make such a rebuttal is particularly important because otherwise, any need for a specific inquiry into Article 25(1) would be rendered meaningless. Secondly, I will assess the threshold for establishing proportionality in a constitutional provision by analysing the case of Modern Dental College and Research Centre v State of Madhya Pradesh (‘Modern Dental’), where proportionality as a structured doctrine was established in Article 19’s context. I would further argue that the threshold is not met in the context of Article 25.
Note that I will not deal with normative issues of whether proportionality should be applied. Rather, I will limit myself to a formal inquiry in analysing if proportionality can be applied if required.
Also note that across the article, I use proportionality to refer to the structured four-prong test – where the four prongs are: (i) Legitimate Purpose (ii) Rational Connection (iii) Necessity (iv) Balancing – which is used to, as Aharon Barak explains, balance ‘constitutional’ and ‘sub-constitutional’ norms. The former are principles/rules enshrined in the Constitution (such as Article 25(1)), while the latter include legislations that limit the scope of such principles/rules. For the latter to be valid, they must conjunctively satisfy each prong of the test.
NON-APPLICATION OF REASONABLENESS
Let me briefly extend the argument that I am dealing with. What is being proposed is that any elaborate analysis of whether proportionality cannot be applied to Article 25(1), or any other provision for that matter, is unnecessary since the same has been done by Courts, which have read reasonableness as a requirement in every legislative action. This reasonableness is understood to be a requirement that runs across the constitution, including Article 25(1) by extension. If this contention is indeed true, then there is no point in further analysis of this article. But there are two reasons why this is not the case and why a more specific inquiry into the question of applying proportionality is needed.
Firstly, it must be noted that despite Courts reading reasonableness broadly into the constitutional structure, specific limitation analysis of any constitutional provision has still been considered important. Professor Aparna Chandra has argued that while the Supreme Court has stated that the requirement of reasonableness runs through the entire constitution, it does not consider the same to imply that there should be a single limitation test. This is evident by the multiple approaches courts have taken to analyse limitations on fundamental rights. Thus, whether standards of reasonableness can be used in Article 25(1) at all is a contested issue. To determine the same, the limitation of Article 25(1) and its interpretation by the Court must be specifically analysed. It will be argued later that any balancing exercise, like reasonableness or proportionality, cannot be read into Article 25(1) because of its limitation, and the judicial history of the same.
Secondly, even if we assume that reasonableness can be read into Article 25(1), the case is not necessarily the same for proportionality. This is because the two standards – reasonableness and proportionality – are different. They are often mistakenly equated because both entail balancing competing values, but two fundamental differences between the two illustrate otherwise.
One, the substantive content of both is different. While the proportionality test requires an independent review of the four prongs, there is no need for the same in assessing reasonableness. The mandate to analyse each step can considerably affect the adjudication process. A judge might reach a different conclusion when using reasonableness than while using proportionality when she is looking at the same set of facts. It can be argued that in cases like Chinataman Rao v State of MP and V.G. Row v State of Madras, where reasonableness was first introduced, strands of proportionality can be found. For instance, in V.G. Row, it was observed that the “disproportion of imposition” needs to be analysed while assessing the validity of right-restricting measures. Similarly, in Chintaman, it was held that:
“Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19 (1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.” (para 6) [emphasis mine]
However, while using reasonableness, the approach of Courts has largely been deferential to the legislative wisdom. Consider the following observation from the Directorate of Film Festivals v Gaurav Ashwin Jain, which illustrate the approach this approach:
“Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy…Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review…”
The conceptualisation of judicial review here is that Courts are not supposed to explicitly look at whether a policy is necessary for its purported aim. The lack of the necessity prong makes a substantial difference since the prong gives Courts leeway to inquire into the appropriateness of policy which is otherwise exempted from judicial review. Professor Chandra has argued here that many cases, where proportionality has been ostentatiously applied, have deemed the alleged right-restriction measure to be valid, only because they improperly analysed the necessity prong. If courts had applied reasonableness as the standard of review, Professor Chandra’s critique would have had no legal basis at all. The point is that the content of both the tests and the results they produce are different. Thus, it cannot be argued that the mere presence of reasonableness warrants applying proportionality.
Two, the evidentiary standards of both are different. Evidentiary standards comprise the burden of proof, the standard of proof, and the quality of evidence. The higher these standards, the greater the justificatory burden on the State to justify its right infringement. For instance, take burden of proof. In applying reasonableness, the burden of proof to establish that a certain restriction invalidly infringes rights and is unconstitutional is on the party alleging unconstitutionality. This is based on the well-established doctrine of presumption of constitutionality, which (i) places the burden of proving the unconstitutionality on the petitioner and (ii) raises the degree of evidence required to prove unconstitutionality, since presumption of constitutionality entails a strong assumption that the impugned legislation is compliant with part III rights. In proportionality, however, the burden of proof is reversed. Justice Chandrachud observed in Puttaswamy (II) v Union of India, interpreting his plurality judgement in Puttaswamy (I) v Union of India:
“Proportionality requires the State to justify that the means which are adopted by the legislature would encroach upon the right to privacy only to the minimum degree necessary to achieve its legitimate aim” (para 32) [emphasis mine]
Reasonableness, as compared to proportionality, has lower evidentiary standards, as has been illustrated above. The point that I am again making is that the impact of a judicial review done using reasonableness would be different than if it is done using proportionality. Therefore, even if it is assumed that the standards of reasonableness can be applied to Article 25(1), proportionality cannot be read into it.
In summation, proportionality and reasonableness are two different kinds of judicial review. If limitation analysis of a certain provision requires the application of reasonableness, the same cannot justify applying the structured four-prong proportionality test. To apply the same, a separate interpretative process is required. What such a process would entail and what would be the result of applying it to Article 25(1) are issues that the next section deals with.
PROPORTIONALITY IN INDIA – APPLYING THE EXTANT THRESHOLDS TO ARTICLE 25(1)
In the previous section, I proved that reasonableness does not justify using proportionality in Article 25(1). What is required is a more specific inquiry. In this section, I do exactly that through two steps. First, I will explain how Indian Courts sourced proportionality into Article 19 and distil the appropriate threshold that ought to be used to apply proportionality to other rights. Second, I will show why this threshold is not met in Article 25(1)’s context.
PROPORTIONALITY THRESHOLD IN INDIA
Proportionality as a structured doctrine was explicitly established for the first time by Indian Courts in Modern Dental in the context of Article 19. The Court’s reasoning to reach its conclusion regarding proportionality had two levels. Firstly, and on a more abstract note, the Court cited Aharon Barak, a renowned constitutional scholar, and the former Chief Justice of the Israeli Supreme Court, who identifies two sources of proportionality – democracy and rule of law – that warrant balancing constitutional rights against the public interest (para 62). The Court worked with the premise that these sources are intrinsic features of India’s constitutionalism and thus reasoned that the said balancing is justified (para 62). Secondly, the Court noted that the doctrine of proportionality is already built into the Article, using the term ‘reasonable restrictions’ in its text (para 65). The court analysed case laws that have interpreted this scope of reasonableness and argued that it has been interpreted in a manner that would warrant a conjunctive use of all prongs of the structured doctrine of proportionality (para 65).
Here, a question arises: Can either of these conditions justify using proportionality as a limitation analysis for a provision or do both need to exist? It is submitted that the latter is the correct interpretation. If the contrary is correct, the implication would be that proportionality can be applied to any right since ‘democracy’ and ‘rule of law’, which forms the first condition, is a part of the basic structure of the Indian constitution and is thus a part of every provision. Such an interpretation has two issues. Firstly, Modern Dental’s analysis of Article 19’s limitation clause would be rendered useless. This fails to make sense since the Court imputed sufficient weight to the analysis. Moreover, this would also violate the point that specific limitation analysis of different rights ought to be done and that broad limitations cannot be read across rights, which was established earlier. Secondly, the deliberate differences made by the constituent assembly in different limitation clauses would be ignored. This would render the drafting exercise a futile endeavour, which would be contrary to constitutional interpretation.
Thus, to assess if proportionality can be applied to Article 25(1), an analysis of the limitation clause presents a valid method. In the next sub-section, I undertake the analysis and conclude that Article 25(1)’s limitation clause disallows applying proportionality.
APPLYING THE THRESHOLD TO ARTICLE 25(1)
The limitation clause of Article 25(1) states that the right provided under the article (to freely profess, practice, and propagate religion) are “subject to public order, morality, and health and the other provisions of this part.” This section, first, analyses the text of Article 25’s limitation clause and argues that because of how it is hierarchically sewn with other provisions of Part III, it does not warrant balancing exercises like proportionality and, secondly, argues that if the judicial history of Article 25 is analysed, as was done for Article 19 in Modern Dental, one concludes that it does not warrant applying proportionality.
Firstly, ‘Subject to… other provisions of this part’ leads to the conclusion that Article 25(1) is hierarchically inferior to other articles in Part III. Two arguments, regarding the interpretation of the term ‘part’, can be made against this interpretation. One, that the term ‘part’ refers to Article 25(2), and two, that it refers to Article 26. However, as has been argued elsewhere, these arguments do not hold. The former does not hold, because if the framers wanted to do so, they could have retained “this Article” instead of “this part” as was done in the earlier drafts of the current Article 19. The latter does not hold because to do that, the framers could have simply stated “subject to Article 26” as was done with some other provisions (Art 62(2), 68(2), 81(1), etc.). The specific wording, which was not used by the constituent assembly for other provisions, signifies that Article 25(1) was meant to be sewn into a hierarchy with other fundamental rights.
This argument also gains some force from Justice Chandrachud’s decision in Sabrimala. He had noted while holding that values like dignity and equality form overriding considerations against which religious rights would have to be sacrificed: “These constitutional values stand above everything else as a principle which brooks no exceptions, even when confronted with a claim of religious belief” (para 54). This is illustrative of the idea that some other constitutional values are in a supreme position vis-à-vis individual religious freedom.
In Sahara India Real Estate Corporation. Ltd v SEBI, the Court had held that the conceptual premise of any balancing exercise, such as proportionality, is the equality between these rights: “When rights of equal weight clash, Courts have to evolve balancing techniques or measures based on re-calibration under which both the rights are given equal space in the Constitutional Scheme” (para 42). Thus, Article 25(1), whose limitation clause puts it in an inferior position, cannot be balanced using proportionality.
Secondly, the specificities that were found in Article 19’s limitation clause are absent in Article 25(1). No standard of reasonableness has been provided in the text as has been done with Article 19 with the use of the word ‘reasonable’. Moreover, notions of reasonableness find no mention in the jurisprudence of limitations of Article 25(1). Instead, the history of its limitation analysis primarily consists of the ERP test, which simply justified state interventions where the concerned religious practices are not essential. What concerns us is how this essentiality has been analysed.
This essentiality, evident by court judgements, is demonstrably devoid of the requirement of reasonableness. In its nascent form, the ERP test evaluated the essentiality of practices as per the beliefs of the followers (See Commissioner v Shirur Mutt). Later, the jurisprudence flipped on its head, with the Court deciding the essentiality of a practice based on extraneous considerations as opposed to evaluating the faith of the believer. Such considerations include the optionality of the practice (See Ismail Farooqui v Union of India, Hanif Quareshi v State of Bihar) and the recency of the practice (See Acharya Jagdishwaranand Avadhuta v Comm. Of Police Calcutta). Evidently, the inquiries under the ERP test assess the concerned religious practice. No assessment of the state restriction is done, which is what an inquiry into reasonableness would entail. Therefore, the reasonableness of state restrictions is left out of the picture while applying the ERP test.
At this juncture, one might argue that if proportionality and reasonableness are different standards, why does it matter if the latter has not been used to adjudicate Article 25(1) cases to analyse if the former can be applied? At the cost of reiteration, I will have to restate my argument regarding reasonableness and proportionality to rebut this argument. Reasonableness and proportionality are closely related, and the existence of the former can lead to the conclusion that the latter might be justified. Therefore, I argue the lack of reasonableness in the adjudication of rights becomes a reason why the application of proportionality is not justified. But the two are still different in the sense that their application requires different lines of inquiry and can lead to different results. So, while related, the use of proportionality and a separate interpretative exercise is required to apply it. If the contrary happens, the character of reasonableness as a standard of judicial review would be drastically changed. Therefore, it is conceptually and legally consistent to argue that while a lack of reasonableness can be used to justify not applying proportionality, the two standards are different in the sense that one does not lead to the presumption that the other can apply.
In summation, proportionality cannot apply to Article 25(1). The standards that are required for the same cannot be established owing to the requirements of balancing, which are not met in Article 25(1)’s context, and because of the jurisprudence of Article 25(1), which has refrained from applying standards of reasonableness.
Whether proportionality should be applied to Article 25(1) is a normative question, answering which would require much research. In this article, I limited myself to a much-limited inquiry of whether proportionality can be applied to Article 25(1) if needed and answered it in the negative. I began with the argument that standards of reasonableness cannot be used to justify proportionality in India. Then, I argued that to establish proportionality, the limitation clause of Article 25(1), and its judicial interpretation, needed to be analysed and that on such an analysis, it is found that proportionality could not be applied to the article.