Shades of Proportionality: Fundamental Freedoms and Reasonable Restrictions in India

This paper tells the story of the proportionality doctrine in Indian constitutional reasoning. It is, I argue, one of innovation, loss, recovery, and pretence. Innovation: The Supreme Court, in 1950, summoned the deep structure of proportionality to invalidate legislation. It was a robust form of proportionality but without the term. Loss: By the late 1950s, proportionality analysis fell away. Assessing the reasonableness of legislative restrictions involved erratic doctrines. Recovery: It began in 2000. Without apparent context, the court invoked the language of proportionality in constitutional law. But reference to structure came only in 2016. The court outlined the steps proportionality entailed in India. Proportionality, its language and substance, had arrived in India, or so it felt. Pretence: With a clear approach to proportionality now in place, how has the court applied it? It hasn’t. So, proportionality analysis in India now is present in theory and absent in practice.