Guest Post: Proportionality’s Fifth Prong – A Reassessment

[This is a guest post by Rudraksh Lakra.]

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Introduction

In this piece, I examine how the recent decision of the Supreme Court in Ramesh Chandra Sharma v State of Uttar Pradesh (Civil Appeal No 8819 of 2022) (“Ramesh v UP”) contributes to its jurisprudence on proportionality. I had previously noted in a blog post that the Supreme Court has yet to clearly define and consistently apply the standard of proportionality in its jurisprudence, a sentiment shared by many others (see here, here, here, here, here, here, here, here, and here). In fact, the Court’s track record on proportionality is best described as “patchy”.

Rather than extensively discussing the application of proportionality in the case of Ramesh v UP, I shall focus on the theoretical concerns that emerge from the judgement. Specifically, the judgement’s introduction of a “fifth prong” to the standard of proportionality: the requirement of “adequate safeguards”. I suggest that this prong is not actually a fifth stage of the test, but rather an inquiry that should be made within the existing stages of the proportionality test. This interpretation best enriches the standard of proportionality. I also explain at which stages the Court ought to demand and examine the requirement of “adequate safeguards”.

Standard of Review

The Supreme Court in the Ramesh v UP case was tasked with adjudication on the constitutionality of an impugned administrative measure against the touchstone of Article 14. The Court applied three standards for this task, the standard of reasonable classification, arbitrariness, and then finally proportionality. Although it has become customary for the Court to apply these tests together, they require the state to meet vastly different expectations and evidentiary burdens. Without delving into the criticisms of the standards of review under Article 14 and how they could be redesigned, which others have already examined (see here, here, here, here, here), I would like to make two limited points. [A], the first and second prongs of the proportionality standard already encompass these two less demanding tests, as implicitly acknowledged by the Court itself (see paragraph 52). [B] Second, given this overlap, it is unclear why the Court applies all three standards simultaneously, which goes against the principle of judicial economy.

Standard of Proportionality

The Court remarks that proportionality has been developed by the Indian Courts throughout the years and has now attained the form of a “five-pronged test”. For this assertion, the Court relies on the K. S. Puttaswamy v. Union of India (2017) (“Puttaswamy I”) judgement, and more recently, in the Gujarat Mazdoor Sabha v State of Gujarat (2020) (“Sabha v Gujarat”).

According to the Court in the case of Puttaswamy I, a nine-Judge Bench of this Court had laid a four-pronged test that can be summarised as:

…The action must be sanctioned by law;

The proposed action must be necessary in a democratic society for a legitimate aim;

The extent of such interference must be proportionate to the need for such interference;

There must be procedural guarantees against abuse of such interference. (Paragraph 49)

This paragraph along with the opinion of J. DY Chandrachud is interpreted as the Supreme Court endorsing the standard of proportionality in the Puttaswamy I judgement. This interpretation was initially adopted by one of the editors of this blog and has found support in subsequent decisions of the Supreme Court and academic literature (see here, and here). However, there was a lack of clarity regarding both the substantive content and evidential requirements of the test beyond the prima facie agreement between the bench vis-à-vis the adoption of the test (see here, and here). The plurality opinion contained an internal contradiction in the description of the design of the proportionality at various parts of the opinion, and it adopted evidentiary standards that were deferential to the state (see here, and here). On the other hand, J. Kaul, whose opinion was the controlling one, adopted the standard proposed by the petitioners without any guidance regarding the evidentiary standards (see here and here). The petitioners had forwarded the standard followed by the European Court of Human Rights, which uses the term “necessary in a democratic society” (see here, and here). This term has a very specific import in the European context and takes into account the “pressing social needs” within member states, which guides the European Court of Human Rights’ margin of appreciation jurisprudence. There was no clarity as to how this standard would be harmoniously incorporated into the existing rights review framework in India. In fact, the culture in the European Court of Human Rights is not to apply to four-prong test in a structured and sequential manner in every case, rather their focus is on the least restrictive stage and especially the balancing limb. 

The Supreme Court interprets the Sabha v Gujarat as laying down the following standard: “in order to determine the validity of state action that could infringe on fundamental rights, it must pass the following conditions, namely, (i) [t]he interfering with the fundamental rights must have a state purpose, (ii) the said rights-infringing measure must be based on a rational nexus between the interference and the state aim, (iii) the measures must be necessary to achieve the state aim, (iv) the restrictions must be necessary to protect the legitimate objective and (v) [t]he state should provide sufficient safeguards for the possibility of an abuse of such rights-infringing interference (Paragraph 50)”. The Court observes that “[a]lthough the fifth prong, as mentioned in the Gujarat Mazdoor Sabha (Supra) has not been expressly mentioned in Puttaswamy, Chandrachud J (as His Lordship then was), in our view, rightly has read that in the Gujarat Mazdoor Sabha case (supra) to complete the test (Paragraph 51)”.

Relying on Sabha v Gujarat, the Supreme Court adopted the fifth prong of proportionality, i.e., “sufficient safeguards”. The rationale for this adoption is found in another paragraph where the Court notes that “[s]tate action that leaves sufficient room for abuse, thereby acting as a threat against the 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)”. As Bhatia has already noted, this paragraph recognizes two key points. Firstly, it acknowledges that abuse “does not take place outside the law, but is baked into the law”. Secondly, it places the burden on the State to proactively address and reduce the risk of abuse within the legislation itself. Bhatia concludes that “in future, highlighting the potential for abuse in a law is a good ground for challenging its constitutionality, under the proportionality standard.” By considering the sufficiency of safeguards, the Supreme Court has an opportunity to provide guidance on the baseline safeguards that must be complied with in specific cases. For instance, over the decades, the European Court of Human Rights has developed a rich jurisprudence on sufficient safeguards. It has established certain baseline safeguards for cases involving surveillance, DNA profiling, and data protection (see here, here, here, here, and here). This jurisprudence should be developed gradually, in a case-by-case manner, and should be context-specific. If this jurisprudence is well-developed, it can help internalise baseline good practices among state actors and increase the burden on the state to justify its interference, thereby acting as a counterweight against the abuse of state power. In the next section, I explore how the requirement of sufficient safeguards can best operate in the context of proportionality and enrich its analysis.

Incorporating Adequate Safeguards within the Proportionality Framework

As previously mentioned, in Ramesh v UP, the Supreme Court drew inspiration from the Sabha v Gujarat judgement and included “adequate safeguards” as part of the fifth prong of proportionality. While I support the inclusion of the requirement of “adequate safeguards”, I do not believe it should be treated as a separate element of the test. Rather, a more strategic and appropriate approach would be to incorporate the requirement within the existing four pillars of the test. According to scholar Panaccio, proportionality is best viewed as a heuristic tool, where the quality of reasoning and justification improves as the quality of the information provided at each stage of the test improves. Understanding the design and effectiveness of the safeguards could enhance the stages of necessity and balancing (more on this shortly). It is not sufficient to assess a state’s measure in isolation; instead, the measure’s design as a whole must be closely scrutinised in the specific context and circumstances of the case. From this, it follows that understanding the impugned measures along with its proposed safeguards is a precursor to and is indispensable to the process of assessing its constitutionality at each stage.

Alternative Imagination of Proportionality

In this sub-section, I build upon my claim that “adequate safeguards” should be incorporated with the  requirement of proportionality but not as a distinct limb of the test. For this objective, I shall take a case study and explain how the examination of the stage of necessity and proportionality stricto sensu/balancing would be augmented by the examination of the stage. In fact, these are the two stages where Court often examines and reads in safeguards within the impugned measure. For the case study, let us take up a legislation that purports to provide a framework for communication surveillance. 

Necessity

At the stage of necessity, the state is required to adopt the least restrictive measure that would achieve its objective. The different versions of the test diverge on the question of the extent to which an alternative measure needs to advance the stated goal. According to the dominant version of proportionality, the alternative must achieve the state’s goal to the same extent (the “traditional understanding of necessity”). However, a different understanding of this stage is based on the decision of the Canadian Supreme Court in Alberta v Hutterian Brethren of Wilson Company. According to this, at the stage of necessity, the state should adopt the less restrictive alternative that achieves its aim to a “real and substantial degree”.

Under both the Hutterian model of necessity and the traditional understanding of necessity accounting for safeguards is integral to the process of conceptualising alternatives. In the context of the communication surveillance law, possible less restrictive measures could include ex-ante and ex-post independent review, incorporating data protection principles, establishing the procedure for authorisation, defining the role of actors, exception of certain categories, and redressal mechanism. This is not to say that every one of these possible alternatives would be the “legitimate” alternative measure in contrast to the state’s measure and this would also be contingent on the version of the necessity a Court adopts. For example, if a court applies the traditional understanding of necessity, there is a greater chance that an alternative like ex-ante and ex-post oversight by an independent body (Alternative A) would not be considered a legitimate alternative compared to only ex-ante oversight by an independent body (Alternative B) in achieving the state’s goal, as it adds preliminary procedural steps before initiating an investigation. However, if the court adopts the Hutterian model of necessity, Alternative A may be considered a better alternative than Alternative B, as it would still advance the goal of state communication surveillance albeit to a slightly less extent.

Regardless of which version of necessity is adopted, taking into account the feasible safeguards, as discussed above, allows the Court to examine a number of alternatives. Another tactical advantage is that this enables the Court to explore less restrictive options without questioning the wisdom of the means adopted by the state. If the Court were only to review the measure by itself without considering the safeguards, it would significantly limit its scope of inquiry. In this scenario, the Court could only envision alternatives that would question the wisdom of the means adopted by the state. In the context of communication surveillance, such potentially less restrictive alternatives could be investigative tools that do not involve communication surveillance.

Proportionality stricto sensu/Balancing

At this stage, the extent of the interference with the right/interest should be proportional to the extent of contribution of the state’s measure to the competing right or interest. To this end, the two interests/rights have to be balanced against each other. Let us return to the example of communication surveillance legislation. One important factor in determining if the law is disproportionate will be the possibility of abuse. To understand the possible degree of abuse, the incorporation of the aforementioned safeguards is integral. This would locate the analysis in the concrete circumstances of each case. To ensure that the measure proportionally balances the right and the competing interest, a court may even read in or demand that the state incorporate certain safeguards. In the context of communication surveillance legislation, this may include safeguards that may not be considered legitimate alternatives under the third stage, such as ex-ante and ex-post oversight by an independent body, as discussed earlier.

In conclusion, the requirement of adequate safeguards should be incorporated within the existing framework of proportionality. This is because the requirement is already inherent within the different stages of the test, and considering safeguards is crucial for the proper adjudication of proportionality. Moreover, I posit that safeguards are best examined and incorporated at the third and fourth stages of proportionality. However, the approach of the European Court of Human Rights regarding the element of adequate safeguards is distinct. In the following sub-section, I will present arguments against the adoption of the approach of the European Court of Human Rights.  

European Court of Human Rights Approach to Adequate Safeguards

One element of the European Court of Human Rights test to determine the consistency of a member state’s interference is to ensure that any interference by a public authority with a right has to be in accordance with the law. This expression not only necessitates compliance with domestic law but also relates to the “quality of that law”, requiring it to be compatible with the “rule of law” (Big Brother Watch and Others v. the United Kingdom [GC], 2021, para 332). Quality of law includes the following requirements: clarity, foreseeability, accessibility, and adequate safeguards to protect against arbitrary interference (Big Brother v. UK Para 332-339).

In my view, examining “adequate safeguards” is more appropriate at the stage of necessity and balancing, rather than legality (as is the approach of the European Charter of Human Rights). I present two arguments to support this claim. Firstly, as we have seen before, the element of ‘adequate safeguards’ can be included within the test, while enriching the adjudication at the third and fourth stages. Secondly, the European Court of Human Rights practice of examining the adequacy of safeguards at the stage of legality can introduce balancing at this stage.  This means that the Court would then be required to examine whether the safeguards are designed in such a manner that it can proportionately address the harm. For example, in the case of Roman Zakharov v. Russia, the Grand Chamber of the European Court found that although Russian law requires prior judicial authorization for interception measures, in practice, Russian judges only apply purely formal criteria in deciding whether to grant authorization, rather than verifying the necessity and proportionality of imposing such measures (Para 272). Introducing balancing at the stage of legality raises serious conceptual concerns because it conflicts with and significantly devours the scope of balancing. Furthermore, the Supreme Court has a long history of carrying out general “all things considered” balancing exercises between various interests, rights, and duties at stake in the matter at hand. Deviating from the discipline-inducing structural and sequential nature (see here, here, here, here, and here) of the test can lead to the Court falling prey to its old habit. This would lead the Court to again applying lower standards of review under the disguise of applying proportionality (see here, here, here, and here). Finally, it is also important to remember that balancing is the most controversial stage of the test  (see here, here, here, here, and here) so introducing it within the stage of legality can raise legitimacy concerns. 

Conclusion

The Supreme Court decision in Ramesh v UP has contributed to the evolution of proportionality in India by introducing the requirement of “adequate safeguards” as part of the fifth prong of the test. However, I have attempted to make a case for the incorporation of “adequate safeguards” within the existing four pillars of the proportionality framework. I sought to demonstrate this would enable the Court to engage in a nuanced and contextual analysis of measures in each case. I clarified at which stages this inquiry is best conducted.

The evolving proportionality jurisprudence of the Supreme Court has highlighted a lack of understanding of the theoretical underpinning of the test, its architecture, and how it operates in practice. As Chandra has noted in her work the adoption of the proportionality test has not unsettled or disrupted “preexisting configurations of relations between citizens and the State as mediated through rights, or between the judiciary and other branches.” For proportionality to be a bridge to “culture of justification” the duty falls squarely on the Supreme Court to first, provide the proportionality test a theoretical grounding which best aligns with the constitutional vision, second, to design and coherently lay down the both substantive and evidentiary aspects of the test in manner that forwards this theoretical framework and finally, to apply this test in concrete cases. The last aspect is the most pertinent as theoretical expositions and explications matter little if they do not translate into a counterweight against the executive’s excess in cases where the stakes are “real”.