Proportional Curtailment Of Fundamental Rights: Between Judicial Borrowing And Constitutional Design
- IJLLR Journal
- Apr 4
- 1 min read
Anjali Singh, Advocate, LucknowLL.M., National Law School India University, Bengaluru LL.B., University of Lucknow
ABSTRACT
There have been several debates about the borrowing of doctrine from American jurisprudence by the Indian Judiciary in Indian cases without any application of mind to it which often leads to dis-harmony between the Indian society and the rules. This paper, tends to look at doctrine of proportionality as one of the principles applied by the Indian Judiciary in Fundamental rights curtailment cases to delve into the merits of the criticism. The main question around which the paper revolves is whether the said doctrine was adopted as rule or as a principle. And how such a transplantation of doctrine happened in our jurisdiction (if any). The article further engages with the argument of whether the doctrine of proportionality was wholly borrowed from other jurisdictions or was it somewhat inherent to Art 19(2) of the Indian Constitution.
Keywords: proportionality, balancing, rules and principle, legal transplantation, reasonable restriction
