Proportionality Without A Common Text: Institutional Architecture And The Limits Of Doctrinal Transplantation In India, Germany, And South Africa
Dhwanit Bhatt, LLM, Gujarat National Law University
Stuti Gautam, B.A. LLB., GLS University
ABSTRACT
Proportionality has established itself as the dominant grammar of rights adjudication in constitutional courts around the world, but its accession to jurisdictions with different constitutional texts raises an open question: does it carve out one single doctrine that survives intact, or a family of practices united only by an identical lexicon? Drawing on a comparative study of India, South Africa and Germany, the article investigates this question by showing how the stronger discipline of proportionality review is linked to an identifiable textual structure in one system (the German Basic Law), its codified general limitation clause in another (South Africa), but conspicuously absent from the third (India). Through an eighteen-point comparative analysis, the article demonstrates how, where a codified general limitation clause exists, the judiciaries' adherence to doctrinal discipline is closer than in any other area to proportionality's identification with state action and its requirement of evidence that the act exceeds reasonable limits. Once absent, proportionality's lexicon can be used without the associated evidentiary discipline, creating precisely the pattern that the Indian literature has recognized at the stage of necessity: an 'ostensive' proportionality canon. The article makes the new claim that doctrinal, rather than cultural, textual foundations best explain the variance in the disciplining of proportionality review.
Keywords: proportionality, comparative constitutional law, judicial review, limitation clauses, constitutional transplantation, institutional competence balancing India.
