[This is a guest post by Chiranth Mukunda.]
This essay considers the doctrine of “double proportionality” in the Electoral Bonds Case. In brief: the majority opinion, written by Chandrachud CJI, holds the various amendments brought through the Finance Act 2017 unconstitutional for being in contravention of right to information protected under article 19. Once it is established that the foundational design of the scheme was to make political donations through electoral bonds confidential, the enquiry proceeds to analyse whether the right to information is engaged (i), and whether the restrictions placed on right to information are reasonable and justified (ii). On aspect (i), the court, following Association for Democratic Reforms (2002) and PUCL (2003), holds that information about political funding is essential for the voter to exercise choice and their freedom to vote, and as a corollary, for the effective exercise of freedom of speech and expression. Aspect (ii) is where the application of proportionality and double proportionality is used by the majority to determine whether the restriction of the right to information is reasonable vis-à-vis the purpose(s) of the scheme. Hence, In part I, I highlight the necessity of application of the double proportionality. In part II, I analyse whether the test of double proportionality is correctly laid down.
Balancing fundamental rights
Chandrachud CJI recognizes two purposes of the scheme in restricting access to information. These are then assessed on the touchstone of proportionality i.e., whether the abridgement of the right is disproportionate to the legitimate aim sought by the purpose(s)/objective(s) of the scheme.
Chandrachud CJI identifies the two purposes of the scheme as a) curbing black money and b) donor privacy. The majority opinion accepts the State’s’ submission that donor privacy or confidentiality is not only a means to achieve the aim of incentivizing political donations through legitimate banking channels, but also a substantive end in itself. It therefore holds that “the Constitution guarantees the right to informational privacy of political affiliation” under article 21, and that extends to political donations being confidential (para 141). Having held so, the question now is whether the Electoral Bond Scheme adequately balances the right to information against right to informational privacy of political affiliation.
Donor privacy as a legitimate aim and double proportionality
According to the majority, the conflict is between the right under restriction i.e., the right to information (Right A) and the countervailing right i.e. right to privacy of the donor (Right B). The traditional balancing exercise to resolve or avoid the conflict can be conducted by various means, for instance:
- It can be held that the right A trumps right B because the former right subserves the ‘larger public interest.’
- Alternatively, it can be held that held that there is ‘no real conflict’ between the rights either because one of the rights is not engaged, or the boundaries of the rights are circumscribed in such a way as to avoid conflict.
However, the application of proportionality in the ‘contextual balancing’ exercise between two competing rights is considered to bring in a ‘structured balancing exercise’ where both rights are given equal importance and weightage. It will be fruitful to highlight the reasons for double proportionality in balancing two fundamental rights, in order to analyse the test laid down by Chandrachud J (Para 157), and whether it is in consonance with the principled reasons behind the application and structure of the double proportionality test.
Reasons for Double-Proportionality
Reason 1: Equal Importance of both competing rights
In Re W, reason 1 was expressed in these terms: “… each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other”. Application of the double-proportionality test to balance two competing rights of equal importance is said to secure ‘procedural justice’ by recognizing that both rights require full protection, and that this is accomplished by application of the proportionality test to the restriction on each right. It structures the enquiry in ways that minimizesthe interferences with both right A and right B, thereby giving fair and equal value in the enquiry to both the interests exemplified by competing rights.
Reason 2 : Single-Proportionality favours the right under restriction (Right A) over the competing interest of Right B
Chandrachud CJI recognises that the ‘priority-to-rights’ effect of proportionality enquiry, as it tends to give prominence to the fundamental right under restriction over the competing interests (para 153), and that single proportionality might not be appropriate when two fundamental rights are involved. When the competing interest is a fundamental right in itself, the prominence given to the ‘invoked right’ i.e. restriction of right A under challenge in the proportionality enquiry cannot be a ‘balanced exercise.’ This is because single proportionality enquiry, especially in the third stage, requires the minimization of interference to the right under restriction (right A) at the expense of the competing interest.
For example, the conflict in Campbell v MGN was between freedom of speech (Right A) and the right to privacy (Right B), both of which are equally protected rights under the ECHR. If the court were to adopt a single proportionality test to review the restriction of the invoked right (A), the furthering of competing right B would form the legitimate aim and the restriction of the right to freedom of speech (A) would have to have a rational nexus to the protection of privacy (right B). However, in the third stage, the court would have to consider whether the restriction on right A is the “least restrictive measure” to further the competing interest of right B. This entails prioritizing and maximizing the protection of right A, but not maximizing the interests of competing right B. This is incompatible with the proposition that both rights require equal and full protection.
Reason 3 : Single Proportionality is insufficient to take into account the interest of the competing right
It should be noted that it is not conceptually impossible to account for the fundamental importance of the competing interest (Right B) within the single proportionality test while testing the restriction of right (Right A). However, it would require modification, or what some call ‘distortion’, of the single proportionality test in order to recognise the importance of the competing fundamental right. For example, the third stage of proportionality would require not the maximum protection of right under restriction to which proportionality is applied, but maximum protection for both the rights. Instead of asking the question whether the measure is least restrictive of the right under restriction (A) and achieves the end in ‘real and substantial degree,’ the question would be whether the alternative measure would be least restrictive of both rights and achieves the purpose in ‘real and substantial degree.’
Then, the third stage of proportionality test is no longer about prioritizing and providing maximum protection to the right under restriction, but an equilibrium position of right under restriction and competing interest (right B).This modification is considered unsatisfactory for giving maximum protection and importance to both right A and right B. Therefore, double proportionality is envisaged as the same question being examined from two perspectives, rather than two different perspectives being considered under a single proportionality review of restriction on one right (invoked right). This flows directly from the reason 1 that both the rights are fundamental and deserve equal importance and consideration.
Chandrachud CJI’s three-step test
The major case after Campbell v. MGN where the ‘balancing of rights’ was required was In Re S. The facts were that there was a gag order on news outlets, to prevent the publication of details and photographs of a 5-year-old child whose brother had been killed by their mother. The case concerned a conflict between freedom of speech of the newspapers (invoked right) and privacy of the child (competing right). Lord Steyn laid down the four propositions for the ‘ultimate balancing test’, last three of which include those laid down by Baroness Hale in Campbell, which Chandrachud CJI relies on.
First, neither Article has precedence over the other.
Secondly, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.
Thirdly, the justifications for interfering with or restricting each right must be taken into account.
Finally, the proportionality test must be applied to each.
Chandrachud J modifies this test by holding that that second and third propositions are subsumed within the balancing (fourth) prong of the proportionality analysis. Further, he holds that:
a. if under the constitution, no hierarchy has been presented for the rights under consideration (firstly above), then :
the following standard must be employed from the perspective of both the rights where rights A and B are in conflict:
b. Whether the measure is a suitable means for furthering right A and right B.
c. Whether the measure is least restrictive and equally effective to realise right A and right B; and
d. Whether the measure has a disproportionate impact on right A and right B.
However, it is argued below that this distorts the double-proportionality enquiry and prioritizes the right under restriction (right A) over competing right B, and approximates towards a modification of single proportionality test, rather than a double-proportionality test. This is essentially evident from the subsequent analysis which Chandrachud CJI undertakes, where the contradictions of the test he lays down become apparent.
Subsequent Analysis and Contradictions
The first prong of proportionality is satisfied as each right ( A and B) provides a legitimate aim for the restriction of other.
On proposition (b):
(b): Whether the measure is a suitable means for furthering right A and right B.
The question is framed in such a way that it is not possible to fulfil the requirement of suitability from both sides but is only possible from the side OF the invoked right (Right A). As Chandrachud CJI holds, the measure that places restriction on right to information(right A) is suitable for purpose of realizing the informational privacy of the donor (right B). However, the measure can never be suitable for purpose of realizing the right to information (right A).
“… the purpose of securing information about political funding can never be fulfilled by absolute non-disclosure. The measure adopted does not satisfy the suitability prong vis-à-vis the purpose of information of political funding. However, let us proceed to apply the subsequent prongs of the double proportionality analysis assuming that the means adopted has a rational nexus with the purpose of securing information about political funding to voters.”(para 162)
This is obvious. It is because the anonymity of the contributor (privacy of the donor, right B) is intrinsic to the Electoral Bond scheme (para 158). The measure can never be suitable to realise right to information (right A) because the measure places no restrictions on the right to privacy (B). It is the invoked right A i.e. right to information which has the potential to place restrictions on competing right B if the challenge is successful. The court’s responsibility is to balance the involved right against the competing right by application the proportionality analysis separately to right each, by considering protection of each as a restriction on another.
Is the question posed by Chandrachud CJI analytically sound for application of Double-Proportionality analysis? The answer is no. As Prof. Huge Collins commenting on Campbell v HGN and In re S writes : “Given that there are [equal]competing interests, rights…the correct approach appears to be a double proportionality test. In other word, the case for interference with the separate rights of each party needs to be assessed separately according to a test of proportionality. The legitimate aim that may justify such an interference with a fundamental right ….include the protection of the fundamental right of the other party”
As Chandrachud CJI himself opines, the “standard must be employed from the perspective of both the rights where rights A and B are in conflict”. So, the question must be whether the restriction of the invoked right A (right to information) by the measure is suitable/rational to achieve right B (right to privacy). The answer might be yes/no. On inverse application, the question would be whether the potential restriction on competing right B (right to privacy) by protection of invoked right A is suitable/rational to achieve right A (right to information). The answer might be yes/no. There is no logical impossibly, as Chandrachud CJI finds to be engaged by the question framed. The assumption which Chandrachud CJI makes could be avoided if there was true application of the double proportionality test as shown in the table below.
It might be said that separate application of proportionality to each right considering the other right as legitimate aim is merely unnecessary repetition that has no substantive bearing on the final conclusion reached. However, that is not the case, as a single proportionality review in case of conflict of two equal rights has the potential to skew the balance in towards the invoked right to the disfavour of the competing right that is furthered by the measure. The ‘preferential framing’ negates the reasons mentioned above for balancing two equal fundamental rights by applying double-proportionality test. The test ensures that both the rights deserve maximum judicial protection by application of proportionality test to the restriction on each right.
| Restriction of invoked right A (first stage) | Potential Restriction of competing right B by the invoked right ( second ‘inverse’ stage) | The test Chandrachud CJI lays down |
| Legitimate aim: Conflicting operation of right B of equal value.
Suitability/rational nexus: Whether the restriction of right A is suitable to realize right B. Whether the restriction on right A is least restrictive measure and equally effective and whether the alternative such measure realizes the purpose of right B in real and substantial degree. Balancing stage: Comparative importance of fundamental rights and justifications for restrictions on the same; Whether the restriction on right A is disproportionate to the purpose of right B |
Legitimate aim: conflicting operation/protection of right A of equal value.
Suitability/rational nexus: whether the restriction of right B suitable to realize right A Whether the restriction on right B is least restrictive measure and equally effective to realise and whether the alternative such measure realizes the purpose of right A in real and substantial degree Balancing stage: |
b. Whether the measure is a suitable means for furthering right A and right B.
c. Whether the measure is least restrictive and equally effective to realise right A and right B; and d. Whether the measure has a disproportionate impact on right A and right B |
On proposition (c)
Consider question (c): Whether the measure is least restrictive and equally effective to realise right A and right B.
If we bifurcate the question into two parts as Chandrachud CJI does for the above question (b), then we see that the question is either illogical (as it is similar to the above), or prioritizes the invoked right against the competing right B. Non-bifurcation essentially becomes a modified version of the necessity stage of single-proportionality test (reason 3).
i. whether the measure is least restrictive [on right A] and equally effective to realised right B [right to privacy].
The framing of this question itself prioritizes right A over right B. This is because right B i.e., the right to privacy is intrinsic to the measure. The question effectively being asked is whether the restriction on right to information (right A) by the measure (in furtherance of right B) is the least intrusive. This is prioritizing and maximization protection offered to the invoked right against the competing right B that is effectuated by the measure.
However, if the question is asked differently, i.e. whether the alternative measure would be least restrictive of both rights and achieve the purpose in a real and substantial manner( conjoined question), it is then merely a modification of the least restrictive stage in the single-proportionality test to take into account of the competing right B, with limitations of that approach to effectively maximize the protection of both the competing rights (as explained in Reason 3).
ii. whether the measure is least restrictive (on right B) and equally effective to realise right A (right to information).
The measure is not placing any restrictions on right to privacy (right B), but is placing restrictions on right to information (right A). In fact, right B is intrinsic to the measure. If that is the case, the question is redundant. However, it is not redundant if the question is whether the alternative measure would be least restrictive and equally effective to realise rights A and B. But the question is not framed in that way.
Chandrachud CJI previously holds that the measure can never be suitable to realise right to information (right A). If that is the case, then this question is also one of logical impossibility, as a measure which can never be suitable to realise A can never be the least restrictive means of doing so. However, Chandrachud CJI avoids the second logical impossibility by framing the question conjoinedly as mentioned above.
Example: How would the third stage work in proportionality, applied separately from both perspectives
It would involve asking the same question from perspective of both right A and right B. From the perspective of right A, the question would be whether the restriction of right A is least restrictive means of realizing interest of right B. From the perspective of right B, the question would be whether the restriction on right B would be the least restrictive measure to realize right A. On the latter question, it might be said that there is no restriction on right B. However, the double-proportionality enquiry is merely tasked with balancing competing interests of right A and right B in the judicial setting. The competing rights mark a conflict for the space to be occupied by the judicial outcome, where giving protection to one involves restriction on another.
Consider section 29C of the Representation of Peoples Act 1951, which Chandrachud CJI holds to be minimally restrictive of both rights and secures the purpose of both rights in a real and substantial manner (para 165). The said alternative measure has to be considered from both sides as placing some restrictions on each right. Then, the question would be whether such restriction is minimized interference with each right vis-à-vis the purpose (competing right) considered from both perspectives, rather than a single question of whether the measure under challenge is least restrictive of both rights.
On Proposition (d) whether the measure has a disproportionate impact on right A and right B.
This question suggests that the measure can have disproportionate impact on the right B. However, at the risk of repetition, the right B is intrinsic to the measure. The question makes sense only if the question is modified into whether the identified alternative has disproportionate impact on either right. As table A shows, this involves separately asking two questions from two perspective by considering protection of each right (example: in the identified alternative measure) as a restriction on each other.
However, Question (d) is not applied at all as the Chandrachud CJI holds that the necessity stage (c) has not been satisfied, and therefore there is no need of applying the balancing stage (para 167). Having held that double proportionality standard formulated by Baroness Hale in Campbell v MGN is adopted, and having held that the first two components of the Campbell standard of “comparative importance of the actual rights being claimed in the individual case” and “justifications for interfering with or restricting each of those rights” is to be submerged within the balancing stage, Chandrachud J does not complete the said double-proportionality standard adopted. As discussed above, even the last component of Campbell standard of “applying the proportionality test to each” is not satisfactorily applied, as the questions are framed in a way that prioritizes the invoked right A against the competing right B: thus negating the very reasons for application of the double-proportionality test.
Conclusion
The Court fails to apply proportionality separately to each of the rights. Having held that there were two competing rights, the balancing exercise by application of proportionality in relation to each other is required to give due recognition to the equal importance and maximum protection to each right. Although the outcome of the case might not differ, the propositions laid down suffer from lack of clarity for future application. The question is framed in a way that would either lead to no answers or one which would prioritize the right under restriction i.e., the invoked right A. It is argued in this essay that what the majority opinion effectively applies is a modified single-proportionality test with all the analysis happening in the necessity (third) stage, making most of the questions in the test laid down redundant without a modification in the framing. This, it is submitted, makes the test incomplete.
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