At the core of governance is the conflict between different constitutional values or different conceptions of the same constitutional value. Countries with a written Constitution attempt to resolve these conflicts by creating a hierarchy of rights within the constitutional order where a few fundamental rights are subjected to others.

For example, Article 25 of the Indian Constitution which guarantees the freedom of conscience, and the profession, practice and propagation of religion is subject to public order, morality, health and other provisions of Part III. The first exercise that the Court must undertake while balancing two fundamental rights is to determine if the Constitution creates a hierarchy between the two rights in conflict. If the Constitution does not create a hierarchy between the conflicting rights, the Courts must use judicial tools to balance the conflict between the two rights.

The judicial approach towards balancing fundamental rights has evolved over the course of years. Courts have used the collective interest or the public interest standard, the single proportionality standard, and the double proportionality standard to balance the competing interests of fundamental rights.

Before the proportionality standard was employed to test the validity of the justification for the infringement of fundamental rights, Courts balanced conflicting fundamental rights by according prominence to one fundamental right over the other based on public interest. This approach was undertaken through two modalities. In the first modality, the Court while identifying the fundamental rights in conflict circumscribed one of the fundamental rights in question such that there was no real conflict between the rights.

The Court while circumscribing the right undertook an exercise of weighing the relative constitutional values of the rights based on public interest. In Re Noise Pollution[1], writ petitions were filed seeking to curb noise pollution. A two-Judge Bench of the Court observed that those who make noise often justify their actions based on freedom of speech and expression guaranteed under Article 19(1)(a).

However, Supreme Court observed that the right to freedom of speech and expression does not include the freedom to “engage in aural aggression”. In this case, there was no necessity for Supreme Court to “balance” two fundamental rights because the right in question (freedom of speech and expression) was circumscribed to not include the actions challenged (noise pollution).

In Subramanian Swamy v. Union of India[2], Sections 499 and 500 of the Indian Penal Code 1860 which criminalized defamation were challenged. A two-Judge Bench of Supreme Court framed the issue as a conflict between the right to speech and expression under Article 19(1)(a) and the right to reputation traceable to Article 21. In this case, the two Judge Bench held that the right to speech and expression does not include the right to defame a person. Justice Dipak Misra (as the learned Chief Justice then was) observed that a contrary interpretation would completely abrogate the right to reputation.

In the second modality of the public interest approach, the Courts undertook a comparison of the values which the rights (and the conceptions of the rights) espouse and gave more weightage to the right which was in furtherance of a higher degree of public or collective interest.

In Asha Ranjan v. State of Bihar[3], Supreme Court held that when there is a conflict between two individuals with respect to their right under Article 21, the facts and circumstances must be weighed “on the scale of constitutional norms and sensibility and larger public interest.”

In PUCL v. UOI (2003), one of the issues before Supreme Court was whether the disclosure of the assets of the candidates contesting the elections in furtherance of the right to information of the voters violates the right to privacy of candidates. Justice Reddi authoring the concurring opinion observed that the right to information of the assets of candidates contesting elections trumps the right to privacy because the former serves a larger public interest.

In Mazdoor Kisan Shakti Sangathan v. Union of India[4], proceedings under Article 32 were initiated challenging orders issued under Section 144 of the Code of Criminal Procedure prohibiting protests in certain areas in Delhi. The issue before Supreme Court was whether the total ban of protests at the Jantar Mantar Road would violate the right to protest which is traceable to Articles 19(1)(a) and 19(1)(b).

One of the inter-related issues was whether the right to hold peaceful demonstrations violates the right of peaceful residence under Article 21, and if it does, how Supreme Court should balance the conflicting fundamental rights.

Supreme Court observed that the Court must while balancing two fundamental rights examine where the larger public interest lies. Supreme Court framed the following issue in the specific context of the case: whether disturbances caused to residents by the protest is a larger public interest which outweighs the rights of protestors.

The two-Judge Bench held that “demonstrations as it has been happening” are causing serious discomfort to the residents, and that the right to protest could be balanced with the right to peaceful residence if authorities had taken adequate safeguards such as earmarking specific areas for protest, placing restrictions on the use of loudspeakers and on parking of vehicles around residential places.

The judgment of Supreme Court in Mazdoor Kisan Shakti (supra), represents the gradual shift from the pre-proportionality phase to the proportionality stage which signifies a shift in the degree of justification and the employment of a structured analysis for balancing fundamental rights. In Mazdoor Kisan Shakti (supra), Supreme Court applied one of the prongs of the proportionality standard (the least restrictive means prong) while balancing the right to protest and the right to peaceful residence. The Court identified other means which would have infringed the right to a peaceful residence to a lesser extent.

In 2012, a five-Judge Bench of Supreme Court in Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India[5], used a standard which resembled the structured proportionality standard used in Justice KS Puttaswamy (5J) v. Union of India[6] to balance the conflict between two fundamental rights. This judgment marked the first departure from the series of cases in which Supreme Court balanced two fundamental rights based on doctrinal predominance.

In Sahara (supra), the petitioner submitted a proposal for the repayment of OFCDs (optionally fully convertible bonds) to the investors. The details of the proposals were published by a news channel. Interlocutory applications were filed in the Court praying for the issuance of guidelines for reporting matters which are sub-judice. Supreme Court resolved the conflict between the freedom of press protected under Article 19(1)(a) and the right to free trial under Article 21 by evolving a neutralizing device.

Supreme Court held that it has the power to evolve neutralizing devices such as the postponement of trial, retrial, change of venue, and in appropriate cases, grant acquittal in case of excessive media prejudicial publicity to neutralize the conflicting rights. Supreme Court followed the Canadian approach in evolving a two prong standard to balance fundamental rights through neutralizing devices which partly resembled the structured proportionality standard.

The two-pronged test was as follows:

a. There is no other reasonable alternative measure available (necessity test); and

b. The salutary effects of the measure must outweigh the deleterious effects on the fundamental rights (proportionality standard).

Finally, Supreme Court in Justice KS Puttaswamy (5J) (supra) applied the structured proportionality standard to balance two fundamental rights. In this case, a Constitution Bench of Supreme Court while testing the validity of the Aadhar Act 2016 had to resolve the conflict between the right to informational privacy and the right to food.

Justice Sikri writing for the majority held that the Aadhar Act fulfills all the four prongs of the proportionality standard. In the final prong of the proportionality stage, that is the balancing stage, Supreme Court held that one of the considerations was to balance the right to privacy and the right to food. On balancing the fundamental rights, Supreme Court held that the provisions furthering the right to food satisfy a larger public interest whereas the invasion of privacy rights was minimal.[7]

However, the single proportionality standard which is used to test whether the fundamental right in question can be restricted for the State interest (that is, the legitimate purpose) and if it can, whether the measure used to restrict the right is proportional to the objective is insufficient for balancing the conflict between two fundamental rights.

The proportionality standard is an effective standard to test whether the infringement of the fundamental right is justified. It would prove to be ineffective when the State interest in question is also a reflection of a fundamental right.

The proportionality standard is by nature curated to give prominence to the fundamental right and minimize the restriction on it. If Supreme Court were to employ the single proportionality standard to the considerations in this case, at the suitability prong, Supreme Court would determine if non-disclosure is a suitable means for furthering the right to privacy.

At the necessity stage, the Court would determine if non-disclosure is the least restrictive means to give effect to the right to privacy. At the balancing stage, the Court would determine if non-disclosure has a disproportionate effect on the right holder.

In this analysis, the necessity and the suitability prongs will inevitably be satisfied because the purpose is substantial: it is a fundamental right. The balancing stage will only account for the disproportionate impact of the measure on the right to information (the right) and not the right to privacy (the purpose) since the Court is required to balance the impact on the right with the fulfillment of the purpose through the selected means.

Thus, the Court while applying the proportionality standard to resolve the conflict between two fundamental rights preferentially frames the standard to give prominence to the fundamental right which is alleged to be violated by the petitioners (in this case, the right to information). This could well be critiqued for its limitations.

In Campbell v. MGM Limited[8], Baroness Hale adopted the double proportionality standard to adequately balance two conflicting fundamental rights. In this case, the claimant, a public figure, instituted proceedings against a newspaper for publishing details of her efforts to overcome drug addiction. Baroness Hale applied the following standard to balance the right to privacy of the claimant and the right to a free press:

“141. […] This involved looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each”

In Central Public Information Officer, Supreme Court of India v. Subash Chandra Agarwal[9], one of us (Justice D Y Chandrachud) while authoring the concurring opinion adopted the double proportionality standard as formulated in Campbell (supra). Referring to the double proportionality standard, the concurring opinion observes that the Court while balancing between two fundamental rights must identify the precise interests weighing in favour of both disclosure and privacy and not merely undertake a doctrinal analysis to determine if one of the fundamental rights takes precedence over the other:

“113. Take the example of where an information applicant sought the disclosure of how many leaves were taken by a public employee and the reasons for such leave. The need to ensure accountability of public employees is of clear public interest in favour of disclosure. The reasons for the leave may also include medical information with respect to the public employee, creating a clear privacy interest in favour of non-disclosure.

It is insufficient to state that the privacy interest in medical records is extremely high and therefore the outcome should be blanket non-disclosure. The principle of proportionality may necessitate that the number of and reasons for the leaves be disclosed and the medical reasons for the leave be omitted. This would ensure that the interest in accountability is only abridged to the extent necessary to protect the legitimate aim of the privacy of the public employee.”

Baroness Hale in Campbell (supra) employed a three step approach to balance fundamental rights. The first step is to analyse the comparative importance of the actual rights claimed. The second step is to lay down the justifications for the infringement of the rights. The third is to apply the proportionality standard to both the rights. The approach adopted by Baroness Hale must be slightly tempered to suit our jurisprudence on proportionality.

The Indian Courts adopt a four prong structured proportionality standard to test the infringement of the fundamental rights. In the last stage of the analysis, the Court undertakes a balancing exercise to analyse if the cost of the interference with the right is proportional to the extent of fulfilment of the purpose.

It is in this step that the Court undertakes an analysis of the comparative importance of the considerations involved in the case, the justifications for the infringement of the rights, and if the effect of infringement of one right is proportional to achieve the goal. Thus, the first two steps laid down by Baroness Hale are subsumed within the balancing prong of the proportionality analysis.

Based on the above discussion, the standard which must be followed by Courts to balance the conflict between two fundamental rights is as follows:

a. Does the Constitution create a hierarchy between the rights in conflict? If yes, then the right which has been granted a higher status will prevail over the other right involved. If not, 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.

An Excerpt from-

Association for Democratic Reforms v. Union of India (2024)

[1] (2005) 5 SCC 733

[2] (2016) 7 SCC 221

[3] (2017) 4 SCC 397

[4] (2018) 17 SCC 324

[5] (2012) 10 SCC 603

[6] 2019) 1 SCC 1

[7] (2019) 1 SCC 1 [308]

[8] [2004] UKHL 22

[9] Civil Appeal No. 10044 of 2010