Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018 7. 56 As a proposal of how to deal with uncertainty, see Alexys Second Law of Balancing, which he proposes in the Postscript to A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002). 122) In contrast, Canadian Supreme Court has chartered different course while using proportionality test. R. v. Oakes57 (popularly known as Oakes test), has held that the objective must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; there must be a rational connection between measure and objective; the means must impair as little as possible the right or freedom in question; and finally, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance. Under this test, arguably more issues are addressed at the earlier stages. Instead of accepting any legitimate goal, Oakes requires a goal of sufficient importance to warrant overriding a constitutionally protected right or freedom. And the minimal impairment test is different from the German necessity test both in the way in which it is formulated (there is no requirement that the less restrictive measure be equally effective) and in the way it is applied in practice: the Canadian Supreme Court tends to resolve cases at that stage and not, as the German Federal Constitutional Court, at the balancing stage. 123) There is a great debate as to which out of the aforesaid two 57 (1986) 1 SCR 103 approaches is a better approach. Some jurists are of the view that the proper application of the German test leads to a practice of constitutional review with two connected problems: first, as pointed about above, usually almost all the moral work is done at the balancing stage, arguably rendering the earlier stages largely useless and throwing doubt on the truth of the popular argument that proportionality is a valuable doctrine partly because it structures the analysis of rights issues in a meaningful way. Secondly, the balancing act at the final stage is often carried out in an impressionistic fashion which seems to be largely unguided by principle and thus opens the door for subjective, arbitrary and unpredictable judgments encroaching on what ought to be the proper domain of the democratic legislature. These concerns can, however, be addressed. According to Bilchitz 58, first concern can be addressed by focusing on the necessity stage of the test. He takes issue with both the German test according to which almost all policies are necessary because any alternative policy will usually have some disadvantage which means that it cannot be considered equally effective and the Canadian minimal impairment test which, taken seriously, narrows down the range of constitutionally acceptable policies far too much: minimal 58 Necessity and Proportionality: Towards A Balanced Approach?, Hart Publishing, Oxford and Portland, Oregon, 2016. impairment can be read as insisting that only one measure could pass constitutional scrutiny, namely the measure which impairs the right least.59 So the alternatives seem to be either to construct the necessity (minimal impairment) test as filtering out almost nothing or to allow only one policy, thus rendering the elected branches partly superfluous. In order to preserve a meaningful but not unduly strict role for the necessity stage, Bilchitz proposes the following inquiry. First, a range of possible alternatives to the measure employed by the Government must be identified. Secondly, the effectiveness of these measures must be determined individually; the test here is not whether each respective measure realises the governmental objective to the same extent, but rather whether it realises it in a real and substantial manner. Thirdly, the impact of the Indian Kanoon - http://indiankanoon.org/doc/127517806/ 110