The principle of proportionality and fundamental rights

Recently, the Constitution Reform Commission (CRC) has made certain reform proposals to be brought to the Constitution. Two main reforms are central to the CRC's proposal relating to fundamental rights. First, the CRC advocates for the justiciability of socio-economic rights, recognising them as enforceable legal rights subject to "progressive realisation" based on available resources. Judicial oversight would ensure that the state demonstrates reasonable efforts in fulfilling these rights.

Second, the CRC proposes a general balancing test for all fundamental rights restrictions, replacing rigid limitations with a more adaptable framework. This approach fosters stronger judicial scrutiny of governmental actions, promoting a rights-respecting legal order reflecting contemporary constitutional trends. The general balancing test has five parts and one of them is the principle of proportionality. The current piece will attempt to delve deeper into the jurisprudence of this principle.

The proportionality doctrine employs a four-pronged test to determine the justifiability of such restrictions. It examines: (1) Proper Purpose— the restriction must pursue a legitimate objective; (2) Rational Connection—a demonstrable link must exist between the restriction and its stated objective; (3) Necessity—the least restrictive means must be used; and (4) Proportionality Stricto Sensu—a careful balancing of the importance of the objective against the harm to the right. Another critical feature of proportionality is the concept of "limits on limitations," which prevents governmental overreach in restricting rights. This comprehensive analysis ensures that limitations are not arbitrary or excessive.

Traditionally, Bangladesh's judicial system relied on the Wednesbury Unreasonableness Test (WUT) for administrative review, as established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948). This test sets a high threshold for judicial intervention, limiting scrutiny to cases where a decision is so unreasonable that no rational authority could have made it. Critics argue that WUT grants excessive deference to governmental discretion, inadequately protecting fundamental rights. Proportionality offers a more structured and rigorous alternative, requiring courts to assess if administrative actions are proportionate to their objectives rather than merely avoiding extreme unreasonableness.

Despite its advantages, Bangladesh has been hesitant to formally adopt proportionality. For instance, in Shah Abdul Hannan v Bangladesh (2010), the Supreme Court of Bangladesh (SCOB) relied on WUT to review a government policy on natural resource exploration. The court ruled that intervention was warranted only in cases of unreasonableness, arbitrariness, bad faith, procedural impropriety, or constitutional/statutory violations. It emphasised on the non-justiciability of certain executive actions, invoked the Public Trust Doctrine to protect public resources, and upheld the separation of powers by avoiding interference in complex policy matters.

Constitutional Reform Courts already apply proportionality-like reasoning under "reasonableness" doctrines, but clearer adoption would improve legal consistency and better protect fundamental rights. This trend aligns with efforts to strengthen judicial oversight and ensure governmental accountability.

However, several landmark cases have implicitly used the doctrine of proportionality in Bangladesh. In Aruna Sen v Government of Bangladesh (1974), the court scrutinised the connection between detention grounds and the Special Powers Act's objectives, effectively applying proportionality's suitability and necessity components, while emphasising procedural fairness and ensuring detention was not arbitrary or excessive. In Sheikh Abdus Sabur v Returning Officer (1988), the court assessed the reasonableness of classifications and their link to legislative objectives, implicitly incorporating proportionality by balancing these objectives with equality guarantees and ensuring no disproportionate infringement on democratic rights.

In Bangladesh, courts often engage in proportionality— like analysis without formal adoption, balancing rigid rules and subjective discretion. This approach reflects a growing judicial commitment to structured rights protection while maintaining deference to democratic governance. Hence, the proposal of the CRC may further strengthen the enforcement or application of this principle.

While proportionality has gained traction globally, particularly post-World War II, it also faces some criticisms. One concern is stricto sensu balancing, which some argue allows the courts excessive discretion in weighing competing rights, potentially undermining democratic governance. Critics contend that proportionality risks judicially rebalancing constitutional provisions in ways that intrude on legislative authority and may erode constitutional rights by making them too easily subject to limitation through balancing exercises.

In Bangladesh, the future of proportionality depends on judicial engagement and potential formal recognition. Courts already apply proportionality-like reasoning under "reasonableness" doctrines, but clearer adoption would improve legal consistency and better protect fundamental rights. This trend aligns with efforts to strengthen judicial oversight and ensure governmental accountability.

The writer is Advocate practicing at the District & Sessions Judge Court, Dhaka.