Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018
respective measures on the right at stake must be determined. Finally, an overall judgment must be
made as to whether in light of the findings of the previous steps, there exists an alternative which is
preferable; and this judgment will go beyond the strict means- ends assessment favoured by Grimm
and the German version of the proportionality test; it will also require a form of balancing to 59 On
the various problems which the Canadian Supreme Court created for itself because of its early
unfortunate statements on proportionality see S Choudhry, So What Is the Real Legacy of Oakes?
Two Decades of Proportionality Analysis under the Canadian Charters Section 1 (2006) 34 Supreme
Court Law Review 501.
be carried out at the necessity stage.
124) Insofar as second problem in German test is concerned, it can be taken care of by avoiding
ad-hoc balancing and instead proceeding on some bright-line rules i.e. by doing the act of balancing
on the basis of some established rule or by creating a sound rule. We may point out that whereas
Chandrachud, J. has formulated the test of legitimate state interest, other two of the Judges,
namely, Chelameswar and Sapre, JJ. have used the test of compelling state interest and not
legitimate state interest. On the other hand, S.K. Kaul, J. has held that the test to be applied is
whether the law satisfies public interest. Nariman, J., on the other hand, pointed out that the Right
to Information Act, 2005 has provided for personal information being disclosed to third parties
subject to larger public interest being satisfied. If this test is applied, the result is that one would be
entitled to invoke large public interest in lieu of legitimate state aim or legitimate state interest, as a
permissible restriction on a claim to privacy of an individual a more lenient test. However, since
judgment of Chandrachud, J. is on behalf of himself and three other Judges and S.K. Kaul, J. has
also virtually adopted the same test, we can safely adopt the test of legitimate state interest as the
majority opinion, instead of applying the test of compelling state interest.
125) In Modern Dental College & Research Centre, four sub components or proportionality which
need to be satisfied were taken note of. These are:
(a) A measure restricting a right must have a legitimate goal (legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability or rationale connection stage).
(c) There must not be any less restrictive but equally effective alternative (necessity stage).
(d) The measure must not have a disproportionate impact on the right holder (balancing stage).
126) This has been approved in K.S. Puttaswamy as well. Therefore, the aforesaid stages of
proportionality can be looked into and discussed. Of course, while undertaking this exercise it has
also to be seen that the legitimate goal must be of sufficient importance to warrant overriding a
constitutionally protected right or freedom and also that such a right impairs freedom as little as
possible. This Court, in its earlier judgments, applied German approach while applying
proportionality test to the case at hand. We would like to proceed on that very basis which, however,
is tempered with more nuanced approach as suggested by Bilchitz.
Indian Kanoon - http://indiankanoon.org/doc/127517806/
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