March 27

Jahnavi Sindhu & Vikram Aditya Narayan: A Historical Argument Supporting Proportionality Review under the Indian Constitution

Understanding the standards of judicial review of State action under the Indian Constitution can be an extremely daunting exercise. This is largely attributable to the fact that the judiciary has developed multiple standards of review, both within and across the different fundamental rights provisions. For instance, under the “right to equality” clause, the standard of review can range from “reasonable classification” to “arbitrariness” or even “strict scrutiny”, without any clear basis for a choice between them. Similarly, under the “right to freedom” clause, the judiciary has employed varied approaches involving references to the “rational nexus,” “reasonableness” and “proportionality” tests. The Indian Supreme Court has maintained a generally deferential approach toward judicial review of State action while adjudicating upon civil rights claims under each fundamental rights provision. For decades, scholars of Indian constitutional and administrative law have critiqued the arbitrary manner in which standards were borrowed from American and English jurisprudence, as well as the dominance of deferential standards. A lot of this scholarly work has focused on the words and phrases used in particular provisions to argue in favour of more rigorous standards of judicial review. In this post, we focus on the system established by the Indian Constitution to argue that the Judiciary was meant to adopt a uniformly strict standard of review while adjudicating upon civil rights claims. Based on the Constituent Assembly Debates, we argue that the Framers of the Indian Constitution intended for a standard that is very similar to what is now recognised as the four-step proportionality test.

A useful starting point for explaining the uniqueness of the system established under the Indian Constitution is the distinction between “cultures of authority” and “cultures of justification.” While this distinction has gained prominence in recent years due to the work of Eliya and Porat, the phrases are traceable to the South African scholar, Etienne Mureinik. As per Mureinik, a culture of justification is one “in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.” Conversely, in a culture of authority, “the legitimacy and legality of governmental action is derived from the fact that the actor is authorized to act” as opposed to the rationality of their decisions (Eliya and Porat). Mureinik specifically refers to the system of parliamentary sovereignty as a culture of authority.

The Indian Constituent Assembly Members shared Mureinik’s concerns and rejected a system of parliamentary sovereignty as incompatible with enforceable fundamental rights. In the Constituent Assembly, Dr. Ambedkar asserted that “beyond doubt it [Sovereignty] vests with the people.” The Indian Framers’ source of inspiration for this notion of “popular sovereignty” was the United States. Typically, a system based on popular sovereignty lays emphasis on the legitimacy of decisions taken by elected representatives and bodies, and accordingly raises a counter-majoritarian difficulty for judicial review of those decisions. This difficulty is arguably exacerbated when the Constitution of a region does not expressly provide for judicial review, as in the case of the United States. The significance of this difficulty perhaps explains why the power of judicial review as understood by the Supreme Court of the United States had modest origins in doctrine but was only strengthened over time to check State action. Systems of popular sovereignty in the absence of effective checks and balances can thus devolve into cultures of authority if the presumption that elected officials will act in the interests of the people is stretched too thin. After the lived experience of the atrocities committed in the first half of the twentieth century culminating in the Second World War, framers of constitutions were especially concerned that the presumption could not be taken for granted. Many jurisdictions remedied the potential for abuse by elected officials by establishing constitutional systems where rights were considered foundational and to be protected through stronger systems of judicial review than had existed previously. These Constitutions closely resemble Mureinik’s conception of a culture of justification.

Even though the Framers used the British and American Constitutional systems as reference points, the system they evolved through the Indian Constitution closely resembles Constitutions that create cultures of justification, which include the South African and German Constitutions as per Eliya and Porat. This is evidenced from first, the Framers concern of abuse of power by even elected Government, second, the provision of judicial review as fundamental feature of the Constitution and third, the inclusion of virtually all forms of State action including administrative action within the purview of judicial review.

During the drafting of the Constitution, the Framers were guided by the potential of abuse of power by elected officials and considered remedies for violations of rights as central and indispensable to the Constitution. The Chairman of the Constitution Drafting Committee (B.R. Ambedkar), for example, expressed concern that in the absence of express constitutional remedies, the question of what amounts to a valid limitation upon a right would be left to the executive of the day. Similar concerns were expressed by several other members (including G. Ranga, Somnath Lahiri, Ayyangar, Pocker Sahib Bahadur, Shibban Lal Saksena, and V. S. Sarwate). Ultimately, it was decided to expressly grant powers of judicial review under the Indian Constitution in broad terms, as may be seen from the wording of Articles 32, 226 and 145. Notably, the Fundamental Rights Chapter of the Indian Constitution begins with provisions defining the meaning of “the State” and “law” broadly to identify a wide range of State action as potentially being “inconsistent with or in derogation of fundamental rights,” and it ends the enumeration of rights with a fundamental right to approach the Supreme Court for the enforcement of the fundamental rights. The Constitution further specifies the exceptional situations where judicial review is barred [See Articles 37, 122, 163(2), 212, 262, 329, 363]. Thus under, the Indian Constitution judicial review was considered the rule and not the exception.

The Indian Constitution’s proximity to those establishing cultures of justification is also evidenced from the broad power of judicial review that flows from the “right to equality” provision. The provision (Article 14) draws on the American doctrine of “equal protection of the law” and the British conception of “equality before law.” The latter encompasses the requirement that State action adhere to the “rule of law.” Given that State action has an expansive definition under the Fundamental Rights Chapter, Article 14 takes all kinds of State action within its fold, including a wide variety of administrative decisions. Whether we understand the rule of law to be a formal or substantive notion, Article 14 requires that all State action covered under the Fundamental Rights chapter of the Indian Constitution should not be arbitrary. Notably, the phrase, “equality before law” was retained in the final draft of the Constitution despite a prominent member (A.K. Ayyar) of the Sub-Committee on Fundamental Rights of the Constituent Assembly arguing against its inclusion on the ground that every law would then be subject to judicial review.

According to Eliya and Porat, the standard of judicial review in a culture of justification must necessarily be the proportionality test. This is because the proportionality test serves the objective of a culture of justification of checking abuses of power by the State. By contrast, deferential standards recognised by the Indian Supreme Court such as reasonableness and reasonable classification can only evaluate whether a restriction has a rational nexus with the interest sought to be protected. An enquiry limited to evaluating nexus will not be able to identify situations of malafide or colourable exercise of power which are usually inferred from the efficacy of the measure and its narrow tailoring. Indeed, at the time the Indian Constitution was drafted, there was very little literature on the proportionality test and the test had only been applied in administrative law in Germany. Even so, the members of the Indian Constituent Assembly while discussing the “right to freedom,” and judicial review generally, appeared to prefer a stricter standard of judicial review akin to the proportionality test. During a long debate on whether restriction should be provided to the “right to freedom”, it was agreed that restrictions may be inserted, as long as they were qualified by the word “reasonable.” One member (Algu Rai Shastri) explained that only those restrictions would be imposed which would be necessary in the interest of public health, and “unavoidably necessary” for the maintenance of public peace and public safety. Similarly, while debating the draft of the fundamental right to judicial review (Article 32), it was argued that the Court must be able to go into facts to determine whether a law “exceeds the requirements of a case.” These statements represent the concern of the Framers over the possible abuse of power, and the perceived need for a strict standard of judicial review akin to curb such abuse if and when it occurs.

It is unfortunate that the Indian judiciary did not give a purposive reading to the debates to adopt the proportionality test as the default standard of review even when the test gained global prominence. One scholar has pointed out that even in the few cases that the Court has adopted the proportionality test, the Court does not actually apply the proportionality test in its structured four-step form, while another has shown how the Court failed to apply the necessity and balancing stages of the test even after acknowledging the four steps that must be applied. Thus, the focus of the Court in the future must be two fold, first to consider how to tie its dispersed strands of jurisprudence on the standard of judicial review to make way for the application of the proportionality test and second, on refining the use of the test.

Jahnavi Sindhu was a judicial clerk at the Supreme Court of India from 2015 to 2017 and is currently an LLM Candidate at Yale Law School. Vikram Aditya Narayan practiced law before the Supreme Court of India from 2013 to 2017 and is currently an LLM Candidate at University College London.