Published By: Twinkle

College: Asian Law College, Noida-125.

Jurisprudence in India

The application of judicial review to legislations which infringe upon the fundamental rights of
the citizens has been an established characteristic of constitutional jurisprudence in India. It has
been enshrined in Article 13 that the State shall not enact laws which take away or abridge the
rights conferred in Part III of the constitution. There have been innumerable legislations which
have been challenged over the years for being in contravention of the rights embodied in Part III.
The Supreme Court has devised different methods of evaluation in order to effectively adjudicate
such challenges posed to legislative enactments. These methods have undergone an organic
process of evolution with the transforming needs of the society. For instance, A.K. Gopalan
found a place in the judicial pronouncements of the Supreme Court in a period where the
imposition of the emergency without a satisfactory cause was downright unimaginable.

However, after the imposition of the emergency, which was rightly perceived as an assault on all
freedoms of the citizenry, it was understood that absolute trust cannot be reposed in the State
with respect to the preservation of the fundamental rights. The imposition of the emergency led
to a vital change in the manner fundamental rights were viewed by the apex court. The expansion
of the ambit of Article 21 to encompass aspects which deal with whether a procedure prescribed
by a law represents a fair, reasonable and just standard constituted the essence of Maneka
Gandhi . The viewing of Articles 14, 19 and 21 in an isolated manner was relegated to an
inglorious past tainted with the excesses committed by the State.

The realities of today present threats which are quite changed from the threats of previous times.
The State has reconciled itself with the measures created by the judiciary to safeguard
constitutionally guaranteed rights. Hence, the possibility of a direct onslaught on fundamental
rights, though not impossible, becomes improbable. But in the manifestations of legislative
authority, there still exist mechanisms which tend to overreach their legislative mandates. Thus,
they pose a tangible threat to constitutional sanctity. For the purpose of illustrating these threats,
one might consider the notification issued by the Bihar state government on the 31st of March,
2016 to amend the Bihar Excise Act, 1915. The significance of proportionality is more
pronounced in the face of myriad legislative adventures such as the Gujarat government’s law
which has made cow slaughter punishable with life sentence. The law being brought to curb the
practice of triple divorce may also squarely fall within the purview of proportionality as it
prescribes an imprisonment of three years for merely indulging in the verbal communication of
triple divorce.

The doctrine of proportionality has been used very sparingly by the Indian judiciary. In State of
Andhra Pradesh v McDowell & Co ., the Supreme Court, considered and rejected the
application of proportionality in administrative as well as legislative spheres. However, the
doctrine has gained much popularity in the recent past. The courts have consistently evolved the
doctrine of proportionality and interpreted it in new ways. The debate over the use of doctrine of
proportionality in contrast to Wednesbury unreasonableness is a continuous one. But it has to be
conceded that the principle of proportionality is by no means a judicially settled issue in India.
There is a huge amount of deliberation which is required to fully understand the implications of
proportionality. It can hardly be said that a final position has been reached with regard to
proportionality.