Proportionality Has Eaten Reasonableness

Two doctrines are now doing the work of one. Indian constitutional review of fundamental-rights restrictions runs simultaneously on a reasonableness standard — built up under Article 14 over five decades — and on a proportionality standard imported, with explicit borrowing, from German constitutional theory through Modern Dental College and given its fullest articulation in the Puttaswamy privacy bench of 2017. The two are not coordinate. They are not in productive dialogue. They produce different outcomes on the same fact-patterns, depending on which the bench reaches for first. I want to argue that this doubling is not pluralism. It is incoherence. The country's constitutional courts are running two different standards of review for the same constitutional question, and the choice between them is being made implicitly, at the level of bench discretion, with no synthesis at the level of doctrine.

The argument has three parts. First, that the reasonableness doctrine the Court has built under Article 14 already contains, in compressed and confused form, the substance of what the proportionality test was later imported to do. Second, that the post-Puttaswamy proportionality test, in its structured four-prong form, is doctrinally cleaner but is being applied selectively, often on Article 19 and Article 21 questions while leaving the Article 14 reasonableness review intact for adjacent issues. Third, that the Indian Court has not, on this question, sat to write the synthesis. The doubling persists because no constitutional bench has been willing to say what the relationship is. I will state at the close what I think the relationship should be.

What Article 14 already does — and what it pretends not to do

The classical statement of Article 14 review is the two-limbed classification test: a State action that draws a classification between persons or classes of persons must be based on an intelligible differentia and the differentia must have a rational nexus with the object the action seeks to achieve. The test, in this form, has been on the Indian books since the 1950s. Tarunabh Khaitan, in the Oxford Handbook chapter that is the spine of the doctrinal argument here, calls it the 'unreasonable comparison' doctrine — and describes it bluntly as a 'highly deferential, remarkably limited, and formalistic equal treatment principle'.¹ The doctrine asks two questions where it could ask twenty. It ignores the real-world impact of the rule. It ignores the normative permissibility of the differentia. It ignores the proportionality of the means to the end. It treats the State's claim about its own objective as 'presumptive proof' that 'completely conclude[s] the matter'. It is a thin doctrine that has, for seventy-six years, done thin doctrinal work.

Sitting alongside the classification test, and to a large extent in tension with it, is the 'arbitrariness' doctrine that Justice P.N. Bhagwati announced in EP Royappa in 1974. The Royappa formulation is well known: 'equality is antithetic to arbitrariness… one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.'² The doctrine has been affirmed since in Maneka Gandhi, in Ajay Hasia, in a long sequence of cases. The settled view is that Article 14 review now runs on two tracks: classification for comparative inequality, arbitrariness for any other State action that lacks reasoned support.

Khaitan's argument, which I think is correct, is that the arbitrariness doctrine is not really about arbitrariness. It is about unreasonableness. The two are not the same. A rule that fixes the age of consent at 16 rather than 15 or 17 is conceptually arbitrary, but it is reasonable on every other ground. A rule that prohibits women from working as bartenders is reasoned in the sense of being responsive to actual social facts, but it is unreasonable in the sense of being based on impermissible reasons. The cases the Court has decided under the 'arbitrariness' label — Anuj Garg, Nargesh Meerza, Mardia Chemicals — are not cases where the State action lacked any reason. They are cases where the State action was based on a reason the Court was prepared to label, on review, as constitutionally insufficient.¹¹

This matters because once the 'arbitrariness' label is understood as a reasonableness review, two things follow. The first is that Article 14 review is, in substance, doing what proportionality review later announced itself as doing — examining the reasons the State has offered for restricting rights, the relation of those reasons to the means chosen, and (occasionally, and badly) the gravity of the restriction relative to the gravity of the State's interest. The second is that the doctrinal frame the Court has been using to do this work is the wrong frame. Equality is, by its nature, comparative. A right against unreasonable State action — torture, ban on tea-drinking, prohibition on religious conversion, denial of access to courts — is not comparative. Khaitan's point that 'not everything that we would call arbitrary is also unreasonable' is matched by the converse: not everything that is unreasonable is unequal.¹ The Court has located, under the Article 14 banner, a doctrine that ought never to have lived there.

The doctrinal cost of this misplacement is that the Court has had to be uneasy about applying the doctrine to legislation. In McDowell (1996), Jeevan Reddy J was explicit that 'no enactment can be struck down by just saying that it is arbitrary or unreasonable. Some other constitutional infirmity has to be found before invalidating an Act'.⁸ The 2G Reference in 2012, in obiter, treated McDowell as having settled the question for legislative review.¹⁰ Subramanian Swamy in 2014 listed the available Article 14 grounds for striking down legislation as 'discrimination based on an impermissible or invalid classification' and 'excessive delegation' — pointedly omitting non-comparative unreasonableness.⁹ The Court has, in effect, restricted the arbitrariness doctrine to administrative review while affirming it as a constitutional ground. The settlement is unstable. Mardia Chemicals and Malpe Vishwanath Acharya have applied the doctrine to legislation in defiance of McDowell. The Court has refused to settle the question, even when constitutional benches have come close to settling it.

Why proportionality looked like a fix

Into this confused field came proportionality. The doctrine has European roots — most directly in German constitutional theory, where the Bundesverfassungsgericht had since the 1950s developed a structured four-prong test for the review of rights restrictions.¹⁵ The four prongs are familiar: a legitimate aim, a suitable means, a least-restrictive alternative (necessity), and a balancing of the gain to the public interest against the loss to the individual right (proportionality stricto sensu). The framework is doctrinally tidy. It tells the judge what to ask and in what order. It separates the empirical question of fit from the normative question of permissibility. It is a structured proportionality test in the sense the Indian Court's 'reasonableness' review never was.

The Indian Court began borrowing the framework in fragments in the 2000s. Om Kumar v Union of India in 2001 expressly invoked proportionality on administrative-law questions. Teri Oat Estates and a sequence of cases on land acquisition, environmental regulation, and disciplinary review extended the borrowing. The borrowing was selective: the Court would import the term 'proportionality' without always importing the structured four-step inquiry. By Modern Dental College and Research Centre v State of Madhya Pradesh in 2016, the borrowing had become formal. The case is generally identified as the Court's first explicit articulation of a structured proportionality test in Indian fundamental-rights review.⁷ A year later, Puttaswamy — the nine-judge privacy bench — used the same framework to review restrictions on the right to privacy. The opinions in Puttaswamy stated, in language that has since been quoted in dozens of cases, that any restriction on a fundamental right must satisfy a four-prong proportionality test.⁴ The Aadhaar five-judge bench in 2019 applied the framework to a statutory restriction, with mixed doctrinal results.⁵

The attraction of the import is plain. Proportionality, in its structured form, does what the Indian reasonableness doctrine has been doing in unstructured form. It asks whether the State's aim is legitimate (the 'objective' inquiry the Article 14 classification doctrine sometimes attempts and usually skips). It asks whether the means are suitable (the 'rational nexus' inquiry the Article 14 doctrine officially conducts). It asks whether the means are necessary (the 'least restrictive alternative' inquiry the Article 14 doctrine has never conducted). It asks whether the gain is proportionate to the loss (the 'balancing' inquiry the Article 14 doctrine has occasionally smuggled in under the label of 'arbitrariness' or 'manifest unreasonableness'). The four-prong test names what the Indian Court has been doing in pieces, gives the pieces an order, and supplies a vocabulary for the steps.

What the Court has not done is to retire the older doctrines or to specify the relationship between them. The position after Puttaswamy is that an Article 21 challenge to executive action — say, the suspension of internet services in Anuradha Bhasin⁶ — is reviewed on a structured proportionality test, including a least-restrictive-means inquiry. An Article 14 challenge to the same executive action — say, that the suspension applied differentially to one region — is reviewed under the classification doctrine, with its limited two-limb inquiry and high deference. A challenge to a statute under Article 14 is reviewed under the classification doctrine alone, with the arbitrariness doctrine doctrinally available but in practice hostile per McDowell and Subramanian Swamy.⁹ A challenge to the same statute under Article 19 or Article 21, post-Puttaswamy, is reviewed under proportionality with the full four-prong test. The doctrine you get depends on which Article you peg the challenge to. The Article you peg the challenge to depends on the lawyer's strategic choice. The Court has not said why this should be so.

The same fact-pattern, two different doctrines

The clearest test of the duplication is whether the two doctrines produce different outcomes on the same fact-pattern. They do. Take the Nargesh Meerza rule that terminated the employment of an air hostess on her pregnancy. The Court struck the rule down in 1981 by labelling it 'arbitrary'.¹¹ Khaitan's analysis of the case is severe and correct: the rule was not arbitrary in any conceptual sense. It rested on a clear reason — the airline's interest in not having to organise replacement cover for pregnant employees. The rule was unreasonable, on Khaitan's account, because the reason was constitutionally impermissible: it discriminated on the ground of pregnancy, which is sex-based discrimination, and it imposed an indirect burden on women as a class.¹ The Court reached the right outcome through the wrong doctrine. Had a structured proportionality test been available in 1981, the case would have been decided at the second or third prong: the means were not suitable to a legitimate aim that did not include sex-discrimination, and there were less-restrictive means available (maternity leave with replacement cover).

Now move forward forty years. The same fact-pattern, if it arose in 2024 against a statutory rule rather than a private rule of a government corporation, would be reviewed differently depending on the pegging. Under Article 14 alone — the classification doctrine — the rule would likely survive on the deferential standard of review the doctrine carries, because the differentia (pregnant vs non-pregnant employees) is intelligible and rationally connected to the stated objective (administrative convenience). The Court would, again, have to fudge to strike the rule down — either by labelling the differentia 'normatively' unintelligible (the Subramanian Swamy trick) or by labelling the rule 'arbitrary' in defiance of McDowell.¹² Under Article 19(1)(g) and Article 21 read with the post-Puttaswamy proportionality test, the rule would be struck down cleanly at the necessity prong: there are less-restrictive means to achieve the airline's objective. Same rule, same Court, two different doctrinal pathways, two different reasoning chains, two different likely outcomes. The choice between pathways is being made at the level of pleading.

The same point can be made about the recent litigation on internet shutdowns. Anuradha Bhasin v Union of India in 2020 reviewed the suspension of internet services in Jammu and Kashmir post the abrogation of Article 370.⁶ The Court applied a proportionality framework, including a least-restrictive-means inquiry, and held that an indefinite suspension was impermissible. The remedy was not the lifting of the shutdown but its periodic re-justification. The case is widely treated as a proportionality milestone. What is less often noticed is that the same fact-pattern, framed as an Article 14 challenge — that the shutdown applied to one region and not to others, or to one class of users and not to others — would have been reviewed under the classification doctrine and would almost certainly have failed at the rational-nexus prong, because the differentia (region under public-safety threat vs region not) is intelligible and the State's objective (public safety) is legitimate. The same shutdown is impermissible under Article 19 + 21 proportionality and likely permissible under Article 14 classification. The doctrines are not coordinate. They are competing.

Why the Court has not synthesised

The Court could resolve the duplication in two ways. It could elevate the Article 14 reasonableness doctrine to a structured proportionality test — folding the classification doctrine into the suitability prong, the arbitrariness doctrine into the necessity and balancing prongs, and producing a single test applied across Articles 14, 19, and 21. This is the European route. It is the route most cleanly compatible with the post-Puttaswamy case law. It would render Article 14 a more demanding standard of review than it currently is. It would also, on a charitable reading, be consistent with what the framers of Article 14 thought they were doing — Article 14 is one of the rights, not a separate kind of rights provision, and it should not carry a uniquely deferential standard of review.

The alternative is to retire the arbitrariness doctrine and confine Article 14 review to the classification doctrine in its actual two-limb form, while letting Article 19 and Article 21 do the proportionality work. This is closer to the position Khaitan recommends. It would mean that an Article 14 challenge to a State action is a comparative challenge — the action treats one class of persons worse than another for an insufficient reason — and that any non-comparative challenge to a State action is run through Article 21 or Article 19, with the proportionality test. The duplication would be removed. Article 14 would do less work. Articles 19 and 21 would do more work. The Court's reasoning across cases would be more coherent.

The Court has done neither. Chintan Chandrachud's analysis of what he calls the 'panchayati eclecticism' phase of the Court's interpretive jurisprudence is precisely a description of why.¹⁴ The Court now sits in panels of two and three judges. Constitutional benches are convened rarely, and on questions that have ceased to be live they refuse to convene at all. The Court has, in any given year, dozens of benches doing constitutional review, each free to pick the doctrinal frame that fits its preferred outcome. The Article 14 classification doctrine is the deferential frame. The Article 14 arbitrariness doctrine is the somewhat-less-deferential frame. The post-Puttaswamy proportionality test is the most demanding frame. The selection of frame is, in practice, the selection of outcome. The Court has not been asked to choose between the frames at the level of doctrine because the panels that would have to do the choosing have not been convened.

Add to this the substantive concern Anup Surendranath has raised on Article 21 specifically. The post-Maneka³ integration of Articles 14, 19, and 21 means that any restriction on any of the freedoms in Article 21 is subject to the 'fair, just and reasonable' test that Maneka read into 'procedure established by law'. That test, Surendranath argues, has not been developed into a hierarchy. The right against torture and the right to sleep are reviewed under the same standard. The right to free legal aid and the right to a clean environment are reviewed under the same standard.¹³ Without a hierarchy of rights within Article 21, the proportionality test that Puttaswamy announced cannot do the work the four-prong test does in Germany or Israel, where the gravity of the right and the gravity of the restriction calibrate the intensity of the balancing inquiry. The Indian Court's proportionality test is, at present, a one-speed proportionality test. It is structured but not calibrated. The Article 14 reasonableness doctrine, for its part, is neither structured nor calibrated. Neither doctrine is in a state to do the work the other is doing.

The counter-argument, addressed honestly

The strongest reply to all this runs in three steps. First, the duplication is not a duplication; the two doctrines apply to different things. Article 14 reviews the rationality of classifications; proportionality reviews the depth of restrictions on substantive freedoms. The fact that some State actions are reviewable under both is unsurprising — many actions implicate both equality and liberty — and the integrated reading of Articles 14, 19, and 21 announced in Maneka already provides for cumulative review. Second, the Indian Court has not synthesised because the synthesis is not needed. The two doctrines coexist because they answer different questions. The reasonableness inquiry under Article 14 is about whether the State has treated persons differently for an insufficient reason. The proportionality inquiry under Articles 19 and 21 is about whether the State has restricted a substantive freedom for an insufficient reason. The questions overlap on some fact-patterns. They do not collapse. Third, even if a synthesis would be doctrinally tidy, the Court's case-by-case approach has produced acceptable outcomes — and a structured proportionality test imposed across the board would burden every State action with a four-step review that Indian administrative capacity could not sustain.

This is a serious reply and I want to take it on directly. The first step is the strongest. There is a difference between an equality challenge and a liberty challenge. An equality challenge says: the State has classified me and similarly situated persons into different groups and treated them differently for a reason that does not justify the difference. A liberty challenge says: the State has restricted my freedom for a reason that does not justify the restriction. These are conceptually different. The doctrines can, in principle, be different.

The trouble is that the Indian Court has, by importing the arbitrariness doctrine into Article 14, already collapsed the distinction. The arbitrariness doctrine is a free-standing reasonableness review of State action. It is not a comparative review. It asks the liberty question, not the equality question. Khaitan's central diagnostic insight — that the arbitrariness doctrine is in substance a non-comparative unreasonableness test that the Court has mounted on the back of Article 14 — is what makes the duplication a duplication.¹ If the arbitrariness doctrine had stayed within Article 14's comparative remit, the reply would be correct: the two doctrines would be different doctrines doing different work. The arbitrariness doctrine did not stay. It became a reasonableness doctrine. And a reasonableness doctrine, mounted on the back of equality, doing the work proportionality is also doing under Articles 19 and 21, is the precise definition of duplication.

The second step — that the Court has not synthesised because synthesis is not needed — is empirically refuted by the cases I have walked through. The pregnancy-termination rule, the internet shutdown, the surveillance order, the prior-restraint regime: each of these is a State action whose constitutionality depends on which doctrinal frame the bench reaches for. Lawyers know this. They plead Article 19 and Article 21 in addition to Article 14 because the proportionality framework is more demanding. The State's counter-pleadings emphasise Article 14 because the classification doctrine is more deferential. The choice of doctrine is part of the choice of outcome. If the doctrines did not collapse on the same fact-pattern, the choice would not matter. It matters.

The third step — that a structured proportionality test imposed across the board would impose unsustainable review costs — is the most pragmatic part of the reply, and it has some force. Structured proportionality is more demanding than the classification doctrine. The least-restrictive-means inquiry, in particular, asks judges to imagine alternatives to the State's chosen means and to weigh their comparative effectiveness. Indian courts are not always equipped to do this well. Aharon Barak's full proportionality framework presupposes a constitutional culture, judicial training, and administrative capacity that Indian courts have not uniformly developed.¹⁵ The reply is right that a structured proportionality test, imposed on every fundamental-rights review, would burden the system.

It would burden the system. But the burden of the present arrangement is worse. The present arrangement is that the same fact-pattern produces different outcomes depending on the bench. The same State action is permissible on Monday under the classification doctrine and impermissible on Wednesday under the proportionality test. The unpredictability is not the unpredictability of legitimate doctrinal pluralism. It is the unpredictability of a system that has not chosen between two competing standards. The cost of choosing is real. The cost of not choosing is higher.

What the synthesis should look like

I want to close on a specific position rather than on framing. The synthesis I think Indian constitutional review should arrive at has three components.

The first component is that the arbitrariness doctrine should be retired from Article 14 review of State action and either folded into a free-standing reasonableness doctrine under Articles 19 and 21 or, more cleanly, into a structured proportionality test applied across Articles 14, 19, and 21. This is the European route. It removes the conceptual confusion Khaitan diagnoses. It also removes the perverse incentive lawyers currently have to peg challenges to the Article that carries the more demanding standard of review. Article 14 review would, on this proposal, do the comparative work the classification doctrine does — and would do it better, by adopting the deeper inquiries the classification doctrine currently skips (intelligibility tested normatively, impact tested empirically, objective tested against constitutional morality). Articles 19 and 21 review would do the non-comparative reasonableness work, structured through the four-prong test.

The second component is that the proportionality test, where applied, must be calibrated by the gravity of the right and the gravity of the restriction. Surendranath's hierarchy-of-rights point applies here.¹³ The right against torture and the right to sleep are not the same right, and a restriction on the first should not be reviewed under the same intensity of proportionality as a restriction on the second. The Court has, in Mohd Arif and a few other recent cases, gestured at a 'pyramidal' Article 21. The gesture should be doctrinalised. The intensity of proportionality review should track the constitutional weight of the right.

The third component is that the Court should sit a constitutional bench to resolve the doctrinal duplication openly. The duplication has now been visible for at least a decade. The cases that would have resolved it — 2G Reference, Subramanian Swamy, Modern Dental College, Puttaswamy — were all decided on bench compositions large enough to settle the question and small enough not to be required to. The next constitutional bench convened on a fundamental-rights review question should be asked to state, explicitly, the relationship between Article 14 reasonableness review and post-Puttaswamy proportionality review. The Court will not do this on its own. It needs to be asked.

The doubling is not what doctrinal pluralism looks like. It is what doctrinal indecision looks like. Two standards of review for the same constitutional question, applied at the discretion of the bench, with no synthesis at the level of doctrine, produces a body of fundamental-rights law in which the right answer depends on the door you knock on. That is not the rule of law that the Article 14 cases of the 1970s, or the Article 21 cases of the 1980s, or the privacy bench of 2017, thought it was building. The doctrines are not in conversation. They are in competition. The Court has not yet chosen between them. It should.

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