Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018
Justice, Supreme Court of Israel), there are four sub-components of proportionality
which need to be satisfied [Aharon Barak, Proportionality: Constitutional Rights and
Their Limitation (Cambridge University Press 2012)], a limitation of a constitutional
right will be constitutionally permissible if:
(i)
(ii)
it is designated for a proper purpose;
the measures undertaken to effectuate such a
limitation are rationally connected to the fulfilment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures
that may similarly achieve that same purpose with a lesser degree of limitation; and
finally
(iv) there needs to be a proper relation (proportionality stricto sensu or balancing)
between the importance of achieving the proper purpose and the social importance of
preventing the limitation on the constitutional right.
61. Modern theory of constitutional rights draws a fundamental distinction between the scope of the
constitutional rights, and the extent of its protection. Insofar as the scope of constitutional rights is
concerned, it marks the outer boundaries of the said rights and defines its contents. The extent of its
protection prescribes the limitations on the exercises of the rights within its scope. In that sense, it
defines the justification for limitations that can be imposed on such a right.
62. It is now almost accepted that there are no absolute constitutional rights [ Though, debate on
this vexed issue still continues and some constitutional experts claim that there are certain rights,
albeit very few, which can still be treated as absolute. Examples given are:(a) Right to human dignity
which is inviolable,(b) Right not to be subjected to torture or to inhuman or degrading treatment or
punishment. Even in respect of such rights, there is a thinking that in larger public interest, the
extent of their protection can be diminished. However, so far such attempts of the States have been
thwarted by the judiciary.] and all such rights are related. As per the analysis of Aharon Barak
[Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University
Press 2012).] , two key elements in developing the modern constitutional theory of recognising
positive constitutional rights along with its limitations are the notions of democracy and the rule of
law. Thus, the requirement of proportional limitations of constitutional rights by a subconstitutional law i.e. the statute, is derived from an interpretation of the notion of democracy itself.
Insofar as the Indian Constitution is concerned, democracy is treated as the basic feature of the
Constitution and is specifically accorded a constitutional status that is recognised in the Preamble of
the Constitution itself. It is also unerringly accepted that this notion of democracy includes human
rights which is the cornerstone of Indian democracy. Once we accept the aforesaid theory (and there
cannot be any denial thereof), as a fortiori, it has also to be accepted that democracy is based on a
balance between constitutional rights and the public interests. In fact, such a provision in Article 19
itself on the one hand guarantees some certain freedoms in clause (1) of Article 19 and at the same
time empowers the State to impose reasonable restrictions on those freedoms in public interest.
Indian Kanoon - http://indiankanoon.org/doc/127517806/
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