Proportionality, Judicial Reasoning, and the Indian Supreme Court
Anti-Discrimination Law Review, Forthcoming
24 Pages Posted: 23 Jan 2016 Last revised: 18 Feb 2016
Date Written: January 20, 2016
On the 11th of December 2013, a bench of two judges of the Indian Supreme Court reversed a Delhi High Court judgment reading down section 377 of the Indian Penal Code (IPC), a colonial-era sodomy law. The Court’s judgment was heavily critiqued based on liberal conceptions of gender, identity and sexuality. Commentators, however, were not just unsettled by the ultimate decision of the Court, but also by the absence of logical reasons in support of the Court’s decision. Ironically, the Court relied upon the ‘reasonableness test’ – well established in Indian constitutional law – in deciding the case. This judgment offers an opportunity to reflect upon whether it remains reasonable to employ the reasonableness test in an age in which the proportionality test is ‘dominating the dockets’ of supreme courts around the world.
Many commentators claim that the Indian Supreme Court is already applying the test of proportionality in constitutional adjudication. The first objective of this paper is to debunk these claims. Although proportionality-type considerations are sometimes taken into account in the reasonableness test, there is a difference between adopting the proportionality test comprehensively and relying, ad hoc, on one or more of its components. Even in cases in which the Court has explicitly claimed to be applying the proportionality test, it has done so only in name.
From this analytical argument, the paper then moves to a normative argument. Proportionality promotes a culture of justification and reason giving that is lacking under the reasonableness test. To establish this claim, the paper distinguishes between three categories of errors – and explains that proportionality review mitigates the possibility of errors that represent a failure of the duty to give reasons for judgment. The Indian Supreme Court’s (anti-) LGBT rights judgment provides a paradigm case of how reasonableness, in contrast with the proportionality test, can obscure reason giving in a most remarkable way.
Keywords: proportionality, Indian Supreme Court, Indian Constitution, LGBT rights
Suggested Citation: Suggested Citation