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Evolution of the Doctrine of Proportionality: Assessing its Scope and Ambit in

Relation to the Right to Privacy in India

Article in Indian Journal of Law and Human Behavior · May 2024

DOI: 10.21088/ijlhb.2454.7107.10124.3

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pISSN: 2454-7107, eISSN: 2455-4189 Indian Journal of Law and Human Behavior
Volume 10 Number 1 / January - June 2024
DOI: [Link]
Original Article

Evolution of the Doctrine of Proportionality: Assessing its Scope and

Ambit in Relation to the Right to Privacy in India

Radha Ranjan

How to cite this article:

Radha Ranjan. Evolution of the Doctrine of Proportionality: Assessing its Scope and Ambit in Relation to the Right to
Privacy in India. Indian J Law Hum Behav 2024;10(1):31-38.

Abstract

The doctrine of proportionality is a legal principle that aims to balance competing interests in
situations where fundamental rights are at stake. In India, the right to privacy is a fundamental
right that has been recognized by the Supreme Court. The scope and ambit of the doctrine of
proportionality with respect to the right to privacy in India are vast and complex. The doctrine
of proportionality requires that any infringement on the right to privacy be proportionate to
the legitimate aim sought to be achieved by the state. The state must demonstrate that the
infringement is necessary and proportionate to the legitimate aim sought to be achieved. The
doctrine also requires that the least intrusive means be used to achieve the legitimate aim.
In India, the scope of the doctrine of proportionality with respect to the right to privacy has
been expanded by the Supreme Court in recent years. The Supreme Court has recognized
that the right to privacy is not an absolute right and may be subject to reasonable restrictions.
However, any restrictions imposed on the right to privacy must be proportionate and must not
be excessive. The ambit of the doctrine of proportionality with respect to the right to privacy
in India extends to various aspects of modern life, including surveillance, data protection,
and online privacy. The Supreme Court has recognized that the right to privacy extends to
informational privacy, which includes the protection of personal data. Overall, the doctrine
of proportionality plays a critical role in balancing the competing interests of the state and
individuals with respect to the right to privacy in India. It requires the state to demonstrate
that any infringement on the right to privacy is necessary and proportionate to the legitimate
aim sought to be achieved.
Keywords: Fundamental rights; Right to privacy; Doctrine of proportionality.

INTRODUCTION
Author Affiliation: Doctoral Research Scholar, Central

T
University of South Bihar, Gaya 824236, Bihar, India.
he right to privacy is a fundamental right
Corresponding Author: Radha Ranjan, Doctoral Research that has been recognized by the Constitution
Scholar, Central University of South Bihar, Gaya 824236,
Bihar, India. of India and the Indian judiciary. However, the
exercise of this right is not absolute and may be
Email: murarieflu@[Link]
subject to reasonable restrictions. In situations
Received on 09-10-2023
where the state seeks to infringe upon the right
Accepted on 29-11-2023 to privacy, the doctrine of proportionality plays a
© Red Flower Publication Pvt. Ltd. 31
 Radha Ranjan. Evolution of the Doctrine of Proportionality: Assessing its Scope and Ambit in Relation to the
Right to Privacy in India

crucial role in ensuring that such infringement is

necessary and proportionate to the legitimate aim of harmony between individual privileges and
sought to be achieved.1 This abstract explores the cultural worries. The Indian judiciary is able to
scope and ambit of the doctrine of proportionality navigate the complexities of privacy rights in the
with respect to the right to privacy in India, country thanks to the doctrine of proportionality,
including its expansion by the Supreme Court in which provides a framework that fosters a rights
recent years and its application to various aspects of based approach that upholds the fundamental
modern life, such as surveillance, data protection, values enshrined in the Indian Constitution.
and online privacy. The Doctrine of Proportionality
can be seen as one of the most important tools in Judicial Interpretation of the Doctrine of
constitutional rights law around the world.2 The Proportionality: Implications for the Right to
proportionality test is really about the resolution Privacy in India

The doctrine of proportionality is a legal

at the balancing stage.3 The courts of law in India principle that has evolved through judicial
have also given due recognition and application pronouncements in India. The principle requires
to the same. Recently, the said doctrine has gained that any infringement on fundamental rights by
immense relevance in the contemporary Indian the state must be proportionate to the legitimate
Legal Scenario, with the Apex Court of the country aim sought to be achieved. The principle has been
incorporating it as a relevant test for determining applied by the Indian judiciary in a number of cases,
the legitimacy of acts of encroachment by the state particularly in relation to the right to privacy. The
on the privacy of individuals while simultaneously evolution of the doctrine of proportionality in India
declaring Right to Privacy as a fundamental right began with a landmark case7 where the Supreme
protected under Article 214, along with Part III Court held that any restriction on the right to travel
of the Constitution in general, in the landmark J. abroad must be reasonable and proportionate to
Puttaswamy Case.5 the objective sought to be achieved. Since then, the
principle of proportionality has been applied by the
While it is clear that the Doctrine of
judiciary in various cases, including those related
Proportionality is now an essential component
to the right to life and personal liberty.
of privacy law jurisprudence in India, the scope,
ambit and extent of its applicability remains Overall, the evolution of the doctrine of
ambiguous due to certain distinctions in the proportionality in India through judicial
various concurring judgments in the J. Puttswamy pronouncements has played a crucial role in
Case.6 The present article seeks to examine such ensuring that fundamental rights are protected
distinctions and ascertain the nature and requisites and that any infringement on such rights by the
of proportionality that are now required to be met state is proportionate and necessary. The doctrine
in privacy law jurisprudence in India, in light of continues to evolve as the Indian judiciary faces
the evolution of the Doctrine of Proportionality in new challenges related to privacy, surveillance, and
India through legal developments. data protection.
With regard to the right to privacy, the Indian The Apex court also reviewed the application of
perspective on the doctrine of proportionality
8
In
faces challenges. The use of the principle requires that case, the Supreme Court of India, following a
comprehensive assessment of the law pertaining to
the intricacies of India's different society, the Wednesbury unreasonableness and proportionality
requirement for public safety, and the steadily prevalent in England, held that Wednesbury
developing computerized scene. A problem that unreasonableness shall be the governing principle
needs to be solved is ensuring that the doctrine in India, so long as fundamental rights are not at
is applied in the same way in all cases and stake.9
jurisdictions. In a subsequent case10, the Supreme Court upheld
All in all, the Indian viewpoint on the extension the proportionality doctrine's application in India.
and ambit of the precept of proportionality In this case, however, the Supreme Court suddenly
concerning the right to privacy mirrors a promise to discovered that, since 1950, Indian courts had
shielding individual protection while recognizing consistently applied the doctrine of proportionality
genuine state interests. The precept goes about as when determining the validity of legislative actions
an imperative device in surveying the sensibility in relation to legislations violating the fundamental

32 Indian Journal of Law and Human Behavior / Volume 10 Number 1 / January – June 2024
 Radha Ranjan. Evolution of the Doctrine of Proportionality: Assessing its Scope and Ambit in Relation to the
Right to Privacy in India

freedoms listed in Article 19(1)11 of the Indian

Constitution. BRITISH MODEL OF PROPORTIONALITY
The Supreme Court has recognized in
a considerable number of recent instances The British model of proportionality is a
legal framework that has evolved through
that proportionality is quickly replacing the
judicial decisions in the United Kingdom. The
Wednesbury reasonableness standard. In the case
framework is used to assess whether a state's
of12, the Supreme Court explicitly embraced the
action that infringes upon a fundamental right is
doctrine of proportionality.
proportionate and necessary. It is a three pronged
test that aims to balance competing interests
The proportionality principle analyses two aspects
and protect individual rights.15
of a decision:
the test requires that the objective of the state's
1. Whether the relative merits of diverse objectives
infringement of the fundamental right. The second
or interests were properly considered or
prong requires that there be a rational connection
balanced?
between the infringement of the fundamental right
2. Whether the contested legislation was overly and the achievement of the state's objective. The
restrictive or imposed an unwarranted burden third prong requires that the infringement of the
on affected parties under the circumstances? fundamental right be no more than is necessary
The Supreme Court also held13, that the court in to achieve the state's objective. The British model
of proportionality has been applied in a variety of
such a case would not be concerned with the validity
contexts, including cases related to national security,
of the decision, but rather the procedure used to
immigration, and environmental protection. It has
achieve such a decision. The process of rendering a
also been applied in cases related to the protection
decision entail assigning relative weight to various
of individual rights, such as the right to freedom
aspects of the case, which is where the doctrine of of expression and the right to privacy. The British
proportionality comes into play. model of proportionality has been criticized for
It was determined that Judicial Review is not being too vague and subjective. Critics argue that
generally directed against a decision, but rather the the test does not provide clear guidance on how
decision-making process. The Court-Martial has to weigh the competing interests at stake and
the question and discretion to choose the selection that it does not adequately take into account the
and severity of the penalty.14 It should not be so severity of the infringement of fundamental rights.
out of proportion to the offense that it shocks the However, despite these criticisms, the British model
conscience and constitutes solid evidence of bias. of proportionality remains an important legal
framework in the United Kingdom and has been
As part of the concept of judicial review, the
doctrine of proportionality would ensure that and Canada. The British model of proportionality
the sentence would not be immune to correction, has played a crucial role in balancing competing
even if the Court-Martial has exclusive jurisdiction interests and protecting individual rights in the
over a particular aspect of the case. Irrationality United Kingdom and beyond. Its three-pronged
and perversity are accepted Judicial Review test provides a useful framework for courts to
grounds. All abilities are limited by the law. Thus, assess the proportionality of state action and ensure
the proportionality doctrine has found immense that fundamental rights are protected.
application vide judicial pronouncements in India. British idea of proportionality originated in de
Freitas Case16 where it was laid down:
Comparative Study of the Doctrine of
Proportionality in Various Jurisdictions A decision is proportionate if:
Regarding the right to privacy in India, 1. The legislative (or executive) objective is sufficiently
international human rights frameworks and important to justify the limitation of a fundamental
jurisprudence offer useful perspectives on the right
scope and scope of the doctrine of proportionality.
Different worldwide courts and bodies have 2. The measures designed to meet the legislative (or
addressed the utilization of the convention executive) objective are rationally connected to it
corresponding to security privileges. 3. The means used to restrict the right or freedoms are

Indian Journal of Law and Human Behavior / Volume 10 Number 1 / January – June 2024 33
 Radha Ranjan. Evolution of the Doctrine of Proportionality: Assessing its Scope and Ambit in Relation to the
Right to Privacy in India

no more than necessary to achieve the objective.17 Covenant on Civil and Political Rights (ICCPR).25
In this paradigm, proportionality is not concerned According to the United Nations Human
Rights Committee, which oversees the ICCPR's
pursuing predetermined goals through the most implementation, any interference with privacy
18
proportionate to that goal.
European Model of Proportionality The teaching of proportionality has been applied
by global bodies to survey the similarity of state
The European Model of proportionality
conforms somewhat to the original principle of Special Rapporteur on the Right to Privacy at the
proportionality that originated in Prussia.19 The
said principle was accepted by the ECJ20 in the of proportionality in the context of surveillance
landmark FEDESA Case21, and a four-stage test was practices, stressing that measures of surveillance
laid down: ought to be necessary, proportionate, and subject to
1. Legitimacy: Does the challenged Act seek a valid independent oversight.26
general aim in the context of the challenged right?
Comparative Jurisprudence
2. Suitability: Is the Act capable of achieving the aim?
3. Necessity: Is the Act the least invasive means of The doctrine of proportionality and the right to
achieving the desired level of aim realisation? privacy are discussed from a variety of perspectives
in comparative jurisprudence from various nations.
4. Fair Balance or Proportionality in the Narrow
Strong frameworks have been developed by courts
Sense: Does this Act result in a net benefit when
in Canada, Germany, and South Africa that look at
the reduction in the enjoyment of rights is weighted
how state actions affect privacy through the prism
against the level of goal realisation?
of proportionality. Legitimate objectives, rational
The European model of proportionality has been connection, necessity, and balancing of interests are
used by the ECtHR and the EU in a variety of cases, typical considerations shared by these frameworks
including those related to freedom of expression, and European approaches.
freedom of assembly, and the right to privacy.22
In conclusion, the Indian context and the
It has been lauded for its detailed and nuanced
international perspective on the scope and ambit of
approach to assessing the proportionality of state
the doctrine of proportionality in relation to the right
action, as well as for its ability to balance competing
to privacy agree that individual privacy rights and
interests and protect fundamental rights.
legitimate state interests must be carefully balanced.
However, the European model of proportionality Global common freedoms systems and the statute
has also been criticized for being too complex
and for requiring courts to make subjective
judgments about the balancing of competing of need, proportionality, and the assurance of key
interests. Nevertheless, it remains an important privileges with regards to protection.

development of proportionality principles in other Incorporation of Doctrine of Proportionality in

jurisdictions around the world. Indian Privacy Law Jurisprudence
This model focuses on optimising or striking a
balance between the rights (which are viewed as The doctrine of proportionality has been
protected interests and are being restricted by the incorporated in Indian privacy law jurisprudence
proposed action) and the public interest or interest through several landmark judgments of the
(which the proposed measure seeks to achieve). Supreme Court. The doctrine requires state action
Consequently, it is referred to as the optimisation to be proportionate and necessary to the legitimate
idea of proportionality.23 aim it seeks to achieve. In the context of privacy law,
the doctrine requires state action to be necessary
International Human Rights Perspective and proportionate to the threat to privacy it seeks
to address. The doctrine of proportionality has
The right to privacy is recognized as a played a crucial role in shaping Indian privacy law
fundamental human right in international human jurisprudence. Its incorporation has ensured that
rights instruments like the Universal Declaration the right to privacy is protected in a balanced and
of Human Rights (UDHR)24 and the International proportionate manner. It has provided guidance

34 Indian Journal of Law and Human Behavior / Volume 10 Number 1 / January – June 2024
 Radha Ranjan. Evolution of the Doctrine of Proportionality: Assessing its Scope and Ambit in Relation to the
Right to Privacy in India

to policymakers and law enforcement agencies This is, in essence, constitutes the narrow tailoring
in designing measures that are consistent with
constitutional values and international human "just, fair, and reasonable" under Article 21, but
rights norms. The incorporation of the doctrine of which, as can be seen, is a more rigorous form of
proportionality in Indian privacy law jurisprudence that standard that the Court has applied expressly
has contributed to the development of a robust to privacy claims.
framework for the protection of privacy in India.
In this aspect, the verdict appears to be somewhat
In the landmark J. Puttaswamy Case27, the Right divided. For instance, Justice Bobde interpreted
to Privacy was declared as a Fundamental Right. Article 2136 "just, fair, and reasonable" standard
The Court had two choices before it. One option as requiring just that the state demonstrate that
the law was "rational".37 A simple demonstration
during which numerous courts had articulated the
of rationality is, however, far less rigorous than
the compelling state interest narrow tailoring
instances. The second objective was to articulate
standard. However, no other judge agreed with
a distinct set of criteria within the judgment itself.
The court ended up doing both. In Paragraph 3 of this formulation.
the operative order, it was laid down: Justice Sapre articulated his own standard
"The right to privacy is safeguarded as an inherent of "social, moral, and compelling public interest in
aspect of the right to life and personal liberty under conformity with the law"38 Justice Nariman did not
Article 21 and as part of the freedoms granted by Part III articulate any distinct Article 2139 standard.
of the Constitution" However, it was Justice Chelameswar who most
When it comes to Article 2128, the Court, clearly distinguished between a standard "just,
fair, and reasonable" test and the "compelling
as a component of life and personal liberty, has State interest" test, which he termed "the greatest
consistently insisted on a stricter standard than is standard of scrutiny a court can adopt." Thus,
typically applied to other Article 21 rights. When according to Justice Chelameswar, privacy claims
read together, paragraphs 3 and 4 of the Operative themselves fell into two categories: ordinary claims,
Order preserve both, the Court's limitations which would be evaluated using the "just, fair, and
jurisprudence for fundamental rights in general
such as Articles 1429, 1930, and 2531 (which cover which merited the "compelling State interest-
aspects of privacy) and the more rigorous limitations narrow tailoring" standard. However, even this
formulation failed to garner majority support.
privacy under Article 21.
Therefore, it remains to be seen if Justice
Justice Bobde properly noted out in his decision,
violations under Article 21 had to comply to the and his four pronged test, which seems to be the
“just, fair and reasonable” standard, as put out in most elaborate, well reasoned, appropriate and
Maneka Gandhi v. Union of India.32 However, in applicable position of law can be given primacy in
Gobind v. State of MP33 the future.
privacy-related decision, the Court had established
a stricter variation of this test, which muddies the Emerging Issues and Challenges
waters. It was ruled that privacy invasions could
only be permissible if there was a "compelling The acknowledgment of the right to privacy
State interest" at stake and if the law was narrowly as a fundamental right in India has made ready
tailored — that is, the State would have to show
that there was no other, less intrusive method to utilization of the tenet of proportionality. A critical
achieve its goals. examination reveals a number of obstacles and
The Apex court supported the constitutionality complexities in the application of the doctrine of
of phone tapping only by-passing guidelines proportionality, despite the fact that it is thought to
that restricted its scope to narrow and focused be an essential tool for determining the legitimacy
surveillance.34 In another surveillance case,35, it was of state actions that may violate the right to privacy.
stated that the period of surveillance is limited in One of the central questions in applying the
time and that requirement demands "minimum doctrine of proportionality to one side to
interception." protection is the absence of an unmistakable
Indian Journal of Law and Human Behavior / Volume 10 Number 1 / January – June 2024 35
 Radha Ranjan. Evolution of the Doctrine of Proportionality: Assessing its Scope and Ambit in Relation to the
Right to Privacy in India

and uniform norm for deciding the

proportionality of state activities. The four SUGGESTIONS
pronged proportionality test, albeit broadly
recognized, leaves space for translation The following are a couple of one of a kind
and emotional decisions. Courts may thoughts connected with the degree and ambit of
apply different standards, resulting in the precept of proportionality as for the right to
inconsistent privacy rights protection. The privacy in India:
doctrine's ability to protect privacy may be Neutrality in technology: A novel idea might be
undermined by this lack of clarity. to include the principle of technological neutrality
within the scope of the doctrine of proportionality
In addition, the doctrine of proportionality
in light of the rapid development of technology
frequently necessitates a delicate balancing and its impact on privacy rights. This would
act between individual rights and state necessitate determining whether state actions are
interests in its practical application. It can technologically neutral—that is, they focus on
be subjective and contentious to determine the underlying purpose or objective rather than
the legitimate goals pursued by the state disproportionately on particular technologies or
and determine whether the chosen means data collection methods.
are rationally connected to those goals. Relationships to Other Rights: Investigating
When the doctrine is used as a mere the interconnection of the right to protection
formality to justify intrusive measures that with other central privileges, like opportunity
disproportionately violate privacy, this
subjectivity may permit potential abuse by special point of view. A more comprehensive and
the state. balanced approach to evaluating the actions of the
state can result from examining how the doctrine of
Besides, the principle of proportionality
proportionality considers the interaction between
doesn't expressly resolve issues of mass
privacy and these other rights.
reconnaissance and the assortment and
utilization of individual information by Privatization and Proportionality: Although
both state and non-state entertainers. In the the principle of proportionality is typically applied
digital age, where extensive data collection to actions taken by the state, expanding its scope
to include those taken by private organizations
might be a novel concept. This would include
threats to privacy, these concerns have
investigating whether private entertainers, like
become increasingly relevant. The precept's partnerships and online entertainment stages, stick
ongoing structure may not satisfactorily to the standards of proportionality while gathering,
utilizing, and sharing individual information.
requiring further legitimate turn of events
Context of culture: Considering India's assorted
and variation.
social scene, a one of a kind thoughts could be to
All in all, while the regulation of proportionality investigate how the tenet of proportionality adjusts
to various social settings and local area assumptions
degree and ambit of the right to protection in about protection. This could include perceiving
and regarding social standards and values while
of a reasonable and uniform norm, subjectivity evaluating the sensibility and proportionality of
in its application, hardships in recognizing less
prohibitive other options, and the developing idea Data Protection Laws' Proportionality: A novel
of security worries in the computerized period all idea might be to investigate how the principle of
posture impediments to its compelling execution. proportionality is incorporated into the framework
Continual judicial interpretation, legislative of data protection laws in light of the recent
reforms, and a robust legal framework that keeps passage of the Personal Data Protection Bill in
up with technological advancements and balances India. This could entail determining whether the
the protection of privacy rights will be necessary to laws explicitly incorporate the concepts of necessity
and proportionality and how they are utilized in
overcome these obstacles.
practice.

36 Indian Journal of Law and Human Behavior / Volume 10 Number 1 / January – June 2024
 Radha Ranjan. Evolution of the Doctrine of Proportionality: Assessing its Scope and Ambit in Relation to the
Right to Privacy in India

These thoughts expect to give new points of view personal liberty in the Indian legal landscape
on the extension and ambit of the regulation of by providing a framework for evaluating the
proportionality as for the right to security in India. reasonableness and necessity of state actions.
They support inventive reasoning and investigation
of arising issues to guarantee a powerful and
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Radha Ranjan. Evolution of the Doctrine of Proportionality: Assessing its Scope and Ambit in Relation to the
Right to Privacy in India

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38 Indian Journal of Law and Human Behavior / Volume 10 Number 1 / January – June 2024