Guest Post: Proportionality in Application – An Analysis of the “Least Restrictive Measure”

[This is a guest post by Ankush Rai.]


Proportionality, at the most basic level, is the common sense idea that any state action should choose such means which are well-suited to the ends it is pursuing. As Fritz Fleiner, a German administrative law scholar, once wrote – “the police should not shoot at sparrows with cannons.” The principle of proportionality as a standard of review has been adopted universally by multiple countries in their jurisprudence. However, this ‘universal’ principle of proportionality has distinctly local flavours due to the varying history, culture and institutions of different countries.

In India, the proportionality test has also acquired its own flavour and evolved conceptually through a bunch of cases in its jurisprudential history. The test in its newest form was adopted in a 2016 case named Modern Dental College vs State of Madhya Pradesh (hereinafter Dental College). This reformulated version of the proportionality test, which resembles the German version in its language, has been applied in subsequent cases, and as a result has firmly made its place in Indian jurisprudence. In the Dental College case, the Supreme Court of India, in the context of Article 19 of the Indian Constitution, endorsed a four-pronged test for proportionality. It held that –

… 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.” (paragraph 53)

The adoption of this four-pronged approach by a 5-judge bench of the Supreme Court brought the proportionality test in its true sense to the centre-stage of Article 19 analysis. This test was further amplified when the Supreme Court through a landmark decision in Justice K. Puttaswamy vs Union of India endorsed proportionality as a standard of review for any limitation upon the fundamental right to life and liberty under Article 21. It is submitted that through these two decisions the Supreme Court firmly established proportionality as the new standard of review for any state action that limits fundamental rights.

Against this backdrop, this piece aims to analyse the application of the proportionality principle in its latest form in three recent Supreme Court decisions: Justice K Puttaswamy vs Union of India II (hereinafter Aadhaar case), Anuradha Bhasin vs Union of India (hereinafter Anuradha Bhasin) and Internet Mobile Association of India vs Reserve Bank of India (hereinafter IMAI). In all these three cases, an array of fundamental rights and limitations were reviewed by the Supreme Court using the four-pronged proportionality test. This piece will only focus on the application of the third prong of the proportionality principle (the least intrusive measure) vis-à-vis the above-mentioned cases. This is because firstly, the application of the first two prongs have been largely non-controversial in nature. Secondly, an analysis of the fourth prong vis-à-vis these cases deserves an independent analysis of its own and is beyond the scope of this piece.

The central argument of this piece is that the Supreme Court, through an inconsistent application of the third prong of the proportionality test in these three cases, has made it impossible to determine what the position of the law is on this issue. This inconsistency in application has been created because it has answered the following two questions differently in different cases: firstly, on whom does the burden lie to produce the ‘least restrictive measure’; and secondly, through how much evidence can this burden be satisfied? After it has been established that there is an inconsistent application of the third prong, this piece will put forward an approach which can remove this inconsistency and determine a position for the law in this regard. It will finally conclude on the necessity to have a consistent position of law on this issue and the grave consequences that may arise if it is not done so.

Inconsistency in Application 

The third prong of the proportionality test is a fact-based test as it necessarily entails for the Court to examine various alternative measures that can be adopted to achieve the intended goal of the state. After such examination, the Court should choose the least restrictive but equally effective measure to achieve the intended goal of the state. This piece will now present the answers given by the Court in the above-mentioned judgements for the two questions flagged before. This presentation of the answers of the Court will clearly show the inconsistency with which it has applied the third prong of the test. However, before the analysis is done it is important to note what this analysis will not do. This analysis will not engage in normative scrutiny of ‘what is the correct position of law’ but will limit itself to finding out ‘what is the position of law’. A normative scrutiny would require a very different kind of analysis and is beyond the scope of this piece.

Question 1: On whom does the burden lie?

In the Aadhaar case, a 5-judge bench of the Supreme Court of India held the Aadhar Act to be constitutional through a 4:1 majority. The majority observed in paragraph 280 of the judgement:

The manner in which malpractices have been committed in the past leaves us to hold that apart from the system of unique identity in Aadhaar and authentication of the real beneficiaries, there is no alternative measure with lesser degree of limitation which can achieve the same purpose. In fact, on repeated query by this Court, even the petitioners could not suggest any such method.


Hence, on the first question, this observation of the majority makes it clear that it is the petitioner upon whom the burden lies. While this statement of the Court regarding petitioners not providing alternatives is factually incorrect as they had given the alternative of smart cards, this grave factual error is of no concern in this context. All that matter is that the burden was put on the petitioners.

In the case of Anuradha Bhasin, the Supreme Court through a 3-judge bench decision reiterated that fundamental rights could only be restricted in a proportionate manner. Although it did not restore access to the internet in Kashmir, it asked for a review committee to review the suspension orders after seven days.

This judgement, after having a detailed discussion on the proportionality test, summarizes it in paragraph 70. While referring to the third prong of the test it states that “the ‘authorities’ must assess the ‘existence’ of any alternative mechanism in furtherance of the aforesaid goal.” This observation logically entails that if the State has to assess the existence of alternatives it has to necessarily find them out first. Without finding out alternatives it cannot assess their effectiveness. As a result, what the Court essentially means by the extract quoted above is that the burden to produce alternatives is upon the state. This is a reversal from the previous position taken by the Supreme Court in the Aadhaar case in which it placed the burden upon the petitioners. Hence, two contradictory answers to the same question create an inconsistency in the application of the third prong. This inconsistency is only enhanced by the next case of IMAI.

In the IMAI case, a three-judge bench of the Supreme Court lifted the ban on cryptocurrency that had been imposed by the Reserve Bank of India. It did so solely on the ground that ‘alternative measures’ were not considered by the RBI. As a result of not considering alternatives, it had restricted the fundamental right under Article 19(1)(g) of the shareholders of virtual currency trading firms in a disproportionate manner.

In this judgement, in paragraph 6.162 the Court states that “we are obliged to see if there were less intrusive measures available and whether RBI has at least considered these alternatives.” So, the answer to the first question in this case is again given to be – “the State.”

Hence, we have a situation where in the first case, a 5-judge bench of the Supreme Court holds that the burden to come up with alternatives is on the petitioners. In the second case, by defying the rule of precedent, a 3-judge bench holds that the burden is on the state. This would logically entail that the judgement given in the second case by the 3-judge bench is bad in law because it outrightly defies a larger bench’s decision and as a result, the same approach would not be followed in the future. However, in fact, this does not turn out to be true. This is because in the third case the Court again places the burden on the state to come up with alternatives. So, what is the position of the law on this question? Is it the petitioner as per the 5-judge bench decision? Or has the position changed as per two consecutive 3-judge bench’s decision? Which position will the Court adopt in a future case ? The decision of an older 5-judge bench or the decision of two recent three judge benches. There is simply no way to find that answer as things stand now.

Question 2: How much evidence satisfies this burden?

In the Aadhaar case, the answer that the Court gives to the second question is ambiguous. This is because, as has been argued elsewhere on this blog, the manner in which this judgement conceptualizes the third prong is very different from how it applies it.

The manner in which the Court conceptualizes the test is by wholly adopting the model given by Professor David Bilchitz. The model which Bilchitz proposes requires, first, identifying alternatives to the measures adopted by the state; secondly, asking how effective these alternatives are and whether they achieve the state objective in a ‘real and substantial manner’; thirdly, what is the impact of each of these alternative measures on the infringed right; and fourthly, the Court should undertake a balancing exercise. This is how the Court conceptualizes the third prong of the test.

The manner in which the test is applied in the Aadhaar Case, however, is different: the Court does an analysis of the third prong in just one paragraph, where it states that most of the components of the third prong have been dealt with in the first two prongs. Moreover, it holds that the manner in which malpractices have been committed in the past with respect to various public distribution schemes, leaves it with no choice but to hold that there is no alternative scheme with a lesser degree of limitation which can achieve the purpose. Aadhar through its unique identity-based authentication system is the only way to do so.

Hence, we can see a clear disconnect between the conceptualization of the third prong and the manner in which it was applied. It is impossible that the first two prongs of the proportionality test which deal with questions around whether the aim is legitimate and whether there is rational nexus between the legitimate purpose and the way it is being applied, can answer the questions asked while examining the third prong. Moreover, in the application of third prong there is no engagement by the Court on the effectiveness of the alternative measures or the impact of Aadhar and the other alternative measures on the right to privacy.

Therefore, this case answers the second question in an ambiguous manner. It is impossible to determine what standard will the Court follow in a future case. This ambiguous answer is further amplified by how the Court answers the same question in the second and third case.

In the Anuradha Bhasin case, the answer to the second question is found through analysing the so-called ‘relief’ provided by the Court in terms of internet access. The relief as mentioned in paragraph 152 (f) of the judgement states that the existing suspension orders for internet services must be reviewed within seven working days. In this case, since the burden was upon the State to provide for alternatives, it would be correct to assume that the decision of the Court would be based on an examination of the alternatives provided by the state itself. So, what alternatives did the State provide? The answer is none. It simply advocated for a total ban. This is mentioned in the judgement when it records the submissions made by Solicitor General Tushar Mehta appearing for the State. He submits that it is impossible for the state to distinguish between ordinary citizens and troublemakers, and so a total ban has to be imposed. He further submits, with respect to internet services, that it is not possible for the state to ban only certain websites/parts of the internet while allowing access to other parts. Hence, the answer that emerges to the question – through how much evidence is the burden satisfied? – seems to be “whatever the state submits to the Court.” This is because the Court does not lift the internet ban, which is exactly what the State had asked for. The Court simply defers to the evidence given by the state without any engagement or critical analysis of the state’s submissions.

Therefore, while in the Aadhaar case the Court gave an ambiguous answer, in this case it set the standard of deferring to what the state had submitted without any critical engagement or analysis. This standard, however, turns on its head in the IMAI case.

In the IMAI case, the Court establishes a new standard that had not been seen before. The judgement in paragraph 6.172 and 6.173 states that the RBI has to prove with ‘empirical data’ that such harm was caused to the entities it regulates due to cryptocurrency that it had no option but to ban it. This is unlike the previous two cases wherein the alternatives given by the petitioners were completely ignored. In the Aadhaar case, the alternative given was smart cards, and in the Anuradha Bhasin case the alternative given was selective banning of the internet and not a complete shutdown. Both of these were ignored. However, in IMAI, the Court extensively engages with the alternatives given by the petitioners. This can be observed in paragraph 6.162 to 6.164 of the judgement. Additionally, the Court ensures that the RBI responds to these alternatives given by the petitioner, as can be read in paragraph 6.165 of the judgement. Eventually, on the account of the RBI not being able to give demonstrable evidence, the Court strikes down the ban on cryptocurrency. So, the standard set through this case is – the state through ‘empirical data’ must establish why the action it took was the only possible measure and no alternative measure could have been adopted.

Hence, a simple perusal of the answers given by the Court to the same question puts us in a very complicated position. While in the first case, a 5-judge bench sets an ambiguous standard, in the second case, a 3-judge bench sets the standard of deference to the whatever the state submits. Yet in the third case, another 3-judge bench sets an entirely new standard of asking the State to demonstrate with ‘empirical data’ that alternative measures are not equally effective. All this again begs the question – Which standard will the Court follow in a future case? This is because all three judgements set three different standards.

A Consistent Approach to the Law

Now that it has been established that the law with respect to the third prong is undetermined because of the inconsistent application of the third prong of the test, a new approach will be suggested by the author to create consistency in application. What is the new approach? The answer to this question is embedded in citation 13 of the case where it all started – Modern Dental College vs State of Madhya Pradesh. The Supreme Court in this case had adopted the four-prong proportionality test from the book of Aharon Barak (former Chief Justice of the Supreme Court of Israel) titled Proportionality: Constitutional Rights and Their Limitation. There is an extensive discussion in Chapter 16 of this book on the issue of burden of proof in the context of proportionality. Regarding the question on whom does the burden lie, Barak makes a very nuanced argument. He states the burden should lie both on the petitioner as well as the State. However, the nature of the burden on both of them will be different. On the petitioner, the burden is to bring forth alternative measures that are less intrusive but equally effective in nature. This is because the state should not bear the burden of dealing with an infinite set of possibilities through which legislation can be carried out. On the state, the burden is to examine those alternative measures suggested by the petitioners, and then show through evidence that the alternative measures put forward by the petitioners do not achieve the intended goal in an equally effective manner. This is because only the state has the financial and logistical capability to test those alternative measures. This is how the first question – on whom the burden should lie – is answered by Barak.

Regarding the second question: how much evidence is needed to satisfy the burden – he states that this ought to be determined by the Court. He then lays down how the Court should determine this. He states that in situations where the State, due to whatever reason, simply does not provide a full factual framework as to the justification for the limitation on a fundamental right then the Court should use its powers to the demand the production of more evidence by the state. The Court should urge the state to factually demonstrate with evidence that the alternative measures provided by the petitioners which it is rejecting do not achieve the intended goal in an equally effective manner. This is level of evidence that needs to be satisfied. If, even after this, the State does not come up with factual evidence to justify the limitation it has put up on a fundamental right, then the Court should hold the limitation unconstitutional. Hence, at the end of the day if the Court is not satisfied with the justification for the limitation on a constitutional right, then it should declare the limitation unconstitutional. It should be noted here that a similar approach was adopted by the Supreme Court in the IMAI case.

Admittedly, the approach suggested by Barak is a complex approach to understand, and hence warrants an example. Let us take the example by applying the above approach in the Aadhaar case. As the burden is on both parties but of different nature, the petitioners ought to provide alternatives, like they did with smart cards. Now the burden would fall upon the State to examine the alternative of smart cards and then through evidence establish whether smart cards could or could not achieve the intended goal in an equally effective manner as Aadhaar could. Say the state claims that smart cards do not achieve the intended goal in an equally effective manner. In such a scenario, the Court has to step in find out whether the state has provided the full factual framework in conducting its examination of smart cards. Suppose the Court is not satisfied with the factual framework and feels that the State has either negligently or wilfully not provided the same. Then it should demand that the State factually demonstrate how it came to the conclusion that smart cards are not as effective as Aadhaar in achieving the intended goal. If the State still does not provide any such evidence, then the Court should hold the limitation unconstitutional.


In conclusion, the author would like to state the grave consequences of having an inconsistency in application of the third prong of the proportionality test. One of the eight ‘principles of legality’ as per Lon Fuller is that Law should be free from contradictions and have consistency. If this is not the case, then it cannot be called a law. An inconsistent law is no law at all. This basic understanding of law gains a lot more importance when applied in the context of proportionality. Proportionality is now an established standard of review with firm roots in Indian jurisprudence, something that is used to check whether any limitation on fundamental rights is valid or not simply cannot have an inconsistent application – otherwise, a citizen will never know whether his fundamental rights will be protected by the Supreme Court when the wrath of State is unleashed upon him. This also violates the normative role of a constitutional Court in a democracy, which is to act as a check on excessive state power. Therefore, it is submitted that the third prong of the proportionality test should be made consistent and in order to do that the above approach should be established.

[The author would like to thank Tanvi Apte and Bhavisha Sharma for their inputs on the article.]

12 thoughts on “Guest Post: Proportionality in Application – An Analysis of the “Least Restrictive Measure”

  1. For the burden of proof in the Aadhar case, doesn’t the observation ” even the petitioners could not suggest any such method” imply that it was expected of the state to provide the alternative bt they could not and then even the petitioners couldn’t?

    • @Hariom – I think the issue of burden of proof has not been properly established by either of the decisions. It seems to me that you are correct in saying that the word “even” implies the burden is not solely on the petitioners. Reading that particular sentence to say the burden is only on the Petitioners seems like an exaggeration of the Aadhar case.

      In fact, in IMAI (para 6.165), the Court goes into the analysis of alternatives suggested by the Petitioners. This contradicts the position that IMAI places the burden of proof on the Respondents.

      While I do think the burden should be on the Petitioners (because there are infinite measures possible), the court is not clear on this. In Anuradha Bhasin and IMAI, they seem to be examining:
      (1) Whether there was a consideration of other alternatives by the Executive when they introduced the measure.
      2) Whether the petitioner is able to show some other less restrictive alternatives.

      (1) seems to be a sort of due diligence to be shown by the Executive that they tried looking for/considered other measures. (2) seems to be a rebuttal presented by the Petitioners to (1).

      These judgments are not clear on the position but do not seem to contradict each other.

  2. For the burden of proof in the Aadhar case, doesn’t ”even the petitioners could not suggest any such method” imply that the court sought for the centre to give the alternate methods, and then commented on how even the petitioners were ‘unable’ to suggest one ?

  3. I truly wish to know why judges are never consistent with their judgements…..sometimes it feels like they decide the verdict first and then botch up whatever half-baked arguments they can to fool us

  4. […] In addition to the above-mentioned reasons, there is one more way to increase transactional costs through Proportionality. It was proposed by Aharon Barak in Proportionality: Constitutional Rights and Their Limitations that the burden of proof must be placed on both the petitioners and the State when it comes to least restrictive measures. (‘Third prong of proportionality’) Firstly, the petitioners have to provide the state with alternative measures to carry out the same direction. These measures reduce the impingement on the fundamental right and are equally effective. Secondly, the State has to assess the measures and prove with evidence why the alternative measures are not efficient for the executive direction given. If the state cannot provide factual evidence, then the direction will be held unconstitutional. […]

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