von KARTIK KALRA
The Indian Supreme Court, in a recent challenge to an electoral funding scheme that sought to secure unlimited and anonymous corporate electoral finance to political parties, has developed and applied the “double proportionality” standard to balance competing claims of contributors’ privacy and citizens’ “rights to know” the sources of parties’ funding. This standard’s incorporation in the balancing enquiry requires the court to apply the four-pronged proportionality standard to both rights in question, asking, inter alia, whether the impugned measure furthered both rights in question. While this standard is a progressive development in the unruly terrain of conflicting rights, some concerns – involving a possible expectation of legislative omniscience – must be addressed.
This month, the Indian Supreme Court delivered its judgment in the Electoral Bonds case, holding the Electoral Bonds Scheme (“EBS/Scheme”) – an electoral funding scheme seeking to secure donor anonymity and unlimited corporate electoral finance – violative of, inter alia, citizens’ “right to know”, a component of their free expression. In this article, I discuss the Court’s resolution of conflicting rights – donors’ privacy and citizens’ right to know – through “double proportionality”, arguing that while this standard marks a progression from the Court’s hitherto prevalent convenience-based reasoning, its present composition poses some risks – including an expectation of legislative omniscience – whose revision, in accordance with the House of Lords’ judgment in Campbell v. MGN, may be desirable.
Resolution of Conflicting Rights – From “Right-Denial” to Preliminary Balancing
The EBS made substantial changes to the law on electoral finance, doing away with all its transparency mechanisms, as well as making information of donations – including the donor and recipient’s identities – wholly confidential. While this arrangement was challenged as infringing citizens’ “right to know”, the state argued that EBS – through its installation of anonymity requirements – sought to protect contributors from political reprisal, which could be achieved only through secrecy.
Given the existence of conflicting rights, the Court had to decide the right that trumped the other, or draw a balance between them, assessing whether EBS corresponded to where this balance lied. It noted that its prior approach towards reconciling rights was somewhat disingenuous, for it aimed to deny one’s existence to prioritize another, instead of recognizing the existence of both, and finding where a balance between them – if any – lied (147). This could be seen in religious-rights adjudication, where courts denied religious denominations their right to particular practices due to their “non-essentiality” towards their religion, in pursuit of upholding or prioritizing other values, such as those of equality or dignity (see, for example, the Sabarimala case, or Noorjehan Safia Saz v. Union of India – both of which debate the religious character of women’s exclusion in enabling their entry into temples/shrines). In other cases, such as Amit Sahni v. Comm. of Police, the Court found commuters’ general rights to travel on public roads to trump protestors’ constitutional rights to protest, offering reasoning premised wholly in the Court’s own preference towards the former (19).
This right-denial approach, the Court noted, evolved over the years, reaching a stage where the Court began balancing competing rights without using formal standards (149-150). Overall, however, its approach was unpredictable, and the enquiry could be framed to enabled one right (of the Court’s choice) to emerge victorious, which would be used to uphold or strike down state action (153).
Double Proportionality – From Reasoning of Convenience to Expectations of Omniscience?
In moving from such convenience-based reasoning, the Court proposed a new standard of “double proportionality” – borrowed from the House of Lords’ judgment in Campbell – to be used in balancing conflicting rights. This standard enquires into the impugned restriction’s ability to satisfy (in the absence of a hierarchy inter-se) the proportionality standard for both rights individually. It provides the standard the following composition:
- 157 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.
This test, therefore, requires the impugned restriction to satisfy the last three prongs of the proportionality test for both rights, individually. The restriction, therefore, should be (i) rationally connected with the furtherance of both rights, (ii) the least rights-restrictive mode of realizing both rights, and (iii) an appropriate mode of balancing both rights.
In applying this test, the Court noted – at prong (i) – that while EBS’s anonymity did possess a rational connection with donor privacy, there was no nexus between anonymity and citizens’ right to know, for anonymity did not further it whatsoever (163). The absence of this nexus meant that it failed double proportionality, and that EBS was invalid. I consider, however, that this composition of “double proportionality”, which requires the impugned state action to further both conflicting rights, carries a risky composition. This would be apparent in situations where conflicting rights do not exist in a constitutionally-sanctioned hierarchy, yet the furtherance of both through state action is either undesirable, or constitutes an unreasonable expectation from the legislative process.
Consider, for example, the case of Gopalakrishnan v. State of Kerala, which considered the question of whether a video recording of the commission of the offence of rape – which was being used by the state to prove the offence’s commission – must be given to the accused as a matter of fair trial (mandated by statute). The rights being balanced concerned the victim’s dignity on one hand, and the accused’s fair trial on the other. If double proportionality – in its present formulation – was applied to the rule requiring the video’s disclosure (the impugned state action), it risked being declared invalid due to its inability to further victim privacy, for it possessed no nexus therewith; it furthered only the accused’s fair trial. This conclusion, however, is undesirable, for the legislative process is unlikely to anticipate and incorporate all affected rights (for them to be furthered in prong [i]). This standard, therefore, may – in a different context – risk constituting an expectation of omniscience from the state, requiring it to further all conflicting rights through law.
More importantly, however, the legislative exercise often – for good reasons – chooses a right that trumps another, instead of drawing a balance among all relevant rights. In Gopalakrishnan, Parliament’s mandate was clear: all documents being used by the state to prove the commission of an offence must, without exception, be given to the accused. The very fact that a priority among rights was made through legislation – to the exclusion of all other relevant rights – must not, by itself, serve as a reason to hold legislation invalid. Instead, the court must enquire into this choice’s overall fairness, as well as the availability of alternative means.
A revision of the standard, such that it aligns closer to the decision in Campbell, may be worthwhile: in that case, the House of Lords noted that prior to proportionality’s application, a holistic enquiry must be made into the conflicting rights’ comparative importance, and the justifications for interfering with each (141). In case this is done, a zero-sum response at the suitability prong can be avoided, and room created for a fairer enquiry that enables – in some situations – one right to justifiably trump another.
Alternatives and Minimal Abridgement – Where the Enquiry’s Focus Must Lie
Thereafter, the Court tested EBS on prong (ii), enquiring into its rights-restrictiveness. For EBS to have satisfied this prong, it should have been the least rights-restrictive mode of pursuing donor privacy, i.e., it should not have infringed citizens’ right to know beyond what was essential for securing donor privacy. This, the Court held, the EBS did not do, for it stepped much beyond the degree to which the right to know had to be necessarily abridged. There existed, it noted, equally effective alternatives to pursue privacy that undermined citizens’ right to know lesser, which offered privacy protections based on the contribution’s amount – if the amount was high, no protections were available; if it was low, the donor’s identity would be kept confidential. Given EBS’s abridgement of citizens’ right to know beyond what was essential, it was not the least rights-restrictive measure to pursue privacy, making it unconstitutional (168-9).
Using double proportionality, therefore, the Court finds EBS unconstitutional, noting the availability of alternatives for pursuing donor privacy that did not abridge citizens’ right to know to the extent the EBS did. The focus of the enquiry – after a comparative assessment of the importance of both rights (in accordance with Campbell) – must be this stage, for it enables a qualitative assessment of the degree of abridgement one right must undergo for both to coexist. This also prevents the unfairness of prong (i) in demanding legislative omniscience, for it does not enquire into whether legislation had accounted for, and furthered all rights. In pursuit of minimal abridgement, it enables a conclusion that one right must be absolutely abridged for another’s existence – in Sabarimala, for example, the impossible coexistence of religious rights and human dignity could have justified religious rights’ absolute abridgement.
Conclusion
The formal pronouncement of the double proportionality standard, overall, is a progressive constitutional development, bringing a degree of resolution to the recurring issue of conflicting rights. Its composition in prong (i), however, may need to be modified to enable a comparative assessment of rights’ importance, and to prevent a zero-sum answer thereunder – both of which are essential to account for situations where some rights, for well-justified reasons, must necessarily emerge victorious over others.
Zitiervorschlag: Kalra, Kartik, Conflicting Rights, Definitive Standards? On the Indian Supreme Court’s “Double Proportionality” Experiment in the Electoral Bonds Case, JuWissBlog Nr. 16/2024 v. 06.03.2024, https://www.juwiss.de/16-2024/.
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