Proportionality test has been used quite often and again in Indian constitutional law jurisprudence. In the absence of a clearly defined rule or standard, courts resort to proportionality standards, that is, balancing individual interests against broader public interests. This article will argue that while proportionality has been the dominant lens through which courts evaluate data privacy infringements, procedural doctrines like the hard look review can serve to complement to proportionality tests.
Indian Jurisprudence on Data Privacy
Right to privacy was recognised by the Supreme Court in the Puttaswamy judgement, post which the data privacy framework was finally settled with the passing of the Digital Personal Data Protection Act, 2023 (DPDP Act). Throughout the DPDP Act, there are various instances where executive discretion has been granted. There are around 26 instances in the legislation where the phrase “as may be prescribed” is present; however, in none of these instances is any specific criterion or framework actually provided. This raises questions regarding where will the “prescribed” rules be accessible or who is the formulating authority? Perhaps the repeated use of this word is merely a palatable way of signalling executive discretion, especially given that the term “discretion” is nowhere mentioned in the entire legislation. The lack of effective checks and balances and the lack of any oversight mechanism allows wide discretionary powers to the executive. Hence, throughout the Act. state interests override individual interests.
Proportionality standards are used whenever any conflict of interests arises. However, exemptions, especially those based on national security, sovereignty, and public order are frequently protected from judicial scrutiny. Judicial review gets restricted to a mere formalistic application of the proportionality standard. Furthermore, under Rule 22(1) of the Seventh Schedule in the Draft Digital Personal Data Protection Rules, 2025, the government is granted expansive and largely unrestricted access to personal data. The ambit is very broad, and the provision notably departs from even the limited safeguards offered by proportionality test.
Analysing the Proportionality Standard
Justice Chandrachud, in his dissenting judgment in the Puttaswamy case, commented on the increasing usage of the proportionality test by stating that the test acts as a “shift from the culture of authority to a culture of justification.” The DPDP Act shows how, in the name of balancing state interests and individual rights, the proportionality test can become a mere formality. The structure of the Act ensures that, state interests framed as national security or public order will outweigh individual privacy, largely due to the absence of effective checks on executive discretion. This shows that the law relies on balancing, but the scales are controlled by the state which makes the outcome predictably skewed.
Here, the work of Stavros Tsakyrakis in his piece titled ‘Proportionality: An assault on human rights?’ would be of importance where he has criticised the proportionality doctrine as following a utilitarianism theory where putting individual and state interests on two sides of the balancing will, most of the times, weigh more towards state interests. He argues that not everything can be put in this balancing scale and there are certain inviolable human rights like right to life and personal liberty which cannot be violated by the state. Hence, he rejects the proportionality test or the balancing test altogether and asks to openly debate and discuss about it.
Treading Proportionality with Caution
Balancing is just one test amongst the tests of proportionality. The proportionality test consists of four components – (1) the act should be towards a legitimate aim; (2) the act should be suitable to achieve the said purpose; (3) it should be necessary and the least restrictive of measures available; and (4) it should strike a fair balance between the rights infringed and the purpose to be achieved.
The act of balancing is mostly accepted as universally applied. Even in international covenants like the International Covenant on Civil and Political Rights, 1966, it provides the means through which states can impose reasonable restrictions in certain situations. Under Article 19(2) of the Constitution, grounds have been mentioned regarding when such restrictions can be imposed.
However, some caveats should also be observed here. It has been claimed by many scholars that there is a tendency to equate balancing and proportionality by treating both as similar concepts. But these are different as balancing comprises of one of the components in the proportionality test. Proportionality test consists of other components as well and the test of necessity is most often overlooked as the courts are busy weighing the balance between the claims.
On this point, the claims made by Stavros might have some validity; however, the problem is rejecting such tests outrightly. The proportionality test is not just about weighing opposite claims, but also in assessing if there exist any alternative measures or not. The purpose of proportionality test is to assess each sub-test on their own merits and the conclusion drawn out of the balancing test cannot simply be transposed to mean that the act is suitable, necessary or the least restrictive of measures available.
In the United States legal system, ‘hard look review’ doctrine which has been formed through judicial doctrine under the Administrative Procedure Act, 1946 is used to evaluate the impact an administrative action can have on the rights of an individual. The hard look doctrine is simply a way to analyse the decisions taken by the administrative authorities to assess that such decisions are based on reasoned analysis and not on any arbitrary or whimsical grounds. It states that courts analyse whether administrative decisions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This means that the agencies must provide reasons or justifications for exercising such discretion and should take all relevant factors into consideration.
Hard look review can be applied as a complement to proportionality. It does not mean that the Courts are stepping into the realm of policy making as it is just a means to control arbitrary executive actions. It is a way for agencies to justify their decisions. This means that they will be able to maintain some separation of powers provided it does not result in judicial overreach. The court is required to intervene in situations where it is apparent that the administrative authorities did not take a “hard look” at the relevant problem. The hard look is not about any “agency capture” that the courts deal with but is a result of “judges’ conceptions of what is needed for a proper judicial review of agency decisions.” Although hard look review has been criticized for enabling excessive and intrusive judicial scrutiny into the domain of the executive where courts are traditionally expected to adopt a hands-off approach, it remains crucial in today’s increasingly intrusive environment.
So, while there have been some drawbacks associated with hard look review and that it has to be exercised with caution, yet if it is seen from the lens of controlling administrative discretion and arbitrary decisions, it provides a better alternative to proportionality test, if the aim is to achieve substantive justice. The proportionality or the balancing test (as many do equate!) emphasises on the substantive outcome that the balancing act provides. On the other hand, hard look doctrine focuses on the procedural part, on reasoned decision making. It might be a procedural alternative which can make sure that robust procedural safeguards prevent rights being diluted easily, showing that process matters as much as substance.
Conclusion
The DPDP Act gives the government broad powers to access data for vague reasons. If courts only apply the proportionality test, these powers may be upheld on the ground that “national security” justifies them. Instead, hard look review will require the executive to justify why a particular exemption has been granted and prove that there had taken note of all other measures that can be availed. Therefore, a reasoned decision can be looked into, and the courts can evaluate whether proper procedure has been followed, whether raising public interest is really necessitated, whether there is any evidence to show necessity, among other relevant factors. When right to privacy has been read into Article 21 of the Indian Constitution, reasons should be strong enough to bypass this threshold. Though no rule is a one-size-fits-all solution, the intent behind hard look review is something which should be considered in order to better evaluate executive actions.
The Author is a fourth year student of Jindal Global Law School.
Image Credits: Claudio Schwarz
Constitutional Law Society 
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