Proportionality’s Fifth Prong

In an interesting judgment delivered on 20th February 2023, a two-judge bench of the Supreme Court undertook further evolution of the proportionality standard under Indian constitutional law.

Ramesh Chandra Sharma vs State of UP arose out of the Greater Noida Authority’s decision to pay differential compensation rates for certain land that it had acquired under the old Land Acquisition Act. The Authority divided landholders into “Pushtaini” and “Ghair-pushtaini.” Pushtaini landholders were those who had acquired the land before the establishment of the Authority in 1991, or who had subsequently received it through partition or a family settlement. Ghair-pushtaini landholders were those who had purchased the land after the establishment of the Authority. Pushtaini landholders were paid greater compensation than Ghair-pushtaini landholders. Before the High Court, the Authority defended this classification on the basis that it was providing for the “sons of the soil”, i.e., landholders whose income depended directly on the land, as opposed to those who had purchased it for other reasons. A Full Bench of the Allahabad High Court agreed, and upheld the classification.

The Supreme Court, however, disagreed. A two-judge bench of Murari and Bhat JJ held that the impugned classification failed all three tests under Article 14: reasonable classification, arbitrariness (which the Court framed as a Wednesbury enquiry), and proportionality. With respect to reasonable classification, the Court found that the Authority’s basis for distinction between Pushtaini and Ghair-pushtaini landholders was both under-inclusive and over-inclusive: to the extent that the idea was to protect people who made their living off the land, the 1991 cut-off date was not fit for purpose, as it would leave some people who did depend on the land out of the loop, while protecting others who did not. This is an interesting finding, as the Supreme Court does not often strike down State action on grounds of under- and over-inclusiveness; it generally holds that legislation cannot draw bright lines, and some play in the joints is always available. Clearly, in this case, the Court felt (although it did not say) that the under- and over-inclusiveness was too great to justify, even under deferential standards. The Court then further held that the classification lacked a determining principle, and therefore failed Wednesbury arbitrariness.

It is the Court’s proportionality analysis, however, that is most interesting. We normally think of the proportionality test as containing four prongs – legitimate State aim, suitability, necessity, and balancing (proportionality stricto sensu). Here, however, relying upon the judgment of Gujarat Mazdoor Sabha, the Court added a fifth prong: that “the state should provide sufficient safeguards for the possibility of an abuse of such rights infringing interference.” (paragraph 50) On an analysis, it found that the Greater Noida Authority’s classification violated more or less every one of the five prongs of the proportionality standard.

The addition of a fifth prong to the proportionality standard is a very interesting development. One of the common recourses that the Court has often taken to uphold problematic laws has been to say that the possibility of abuse does not make a law unconstitutional, and that consequently, if there is abuse, the individual is free to invoke legal remedies to save themselves. This reasoning, however, is flawed: abuse rarely takes place in open contravention of law. Almost always, it takes place under cover of law, and is enabled because the law leaves far too much room for discretionary executive action within its interstices.

The Supreme Court’s awareness of this fact in Ramesh Chandra Sharma is evident in the reasoning that it gave for adding the fifth prong. It noted that:

State action that leaves sufficient room for abuse, thereby acting as a threat against free exercise of fundamental rights, ought to necessarily be factored in in the delicate balancing act that the judiciary is called upon to do in determining the constitutionality of such state action – whether legislative, executive, administrative or otherwise. (paragraph 51)

This is extremely important, as it recognises, first, that abuse does not take place outside the law, but is baked into the law; and secondly, it places the burden firmly upon the State to affirmatively mitigate abuse within the legislation itself. Under the doctrine laid down by the Court, therefore, in future, highlighting the potential for abuse in a law is a good ground for challenging its constitutionality, under the proportionality standard.

Of course, it remains to be seen whether the fifth prong will have any genuine bite. Ever since the proportionality test was first articulated in formal terms by the Supreme Court in 2016, its record has been patchy: whereas the Court has deployed it rigorously in cases where the stakes are low, in cases with higher stakes for the political executive – as we have discussed on this blog – proportionality has been deployed inconsistently, and has been used a tool to wave State action through rather than to scrutinise it. The proof of the pudding, therefore, will be in the eating.