UJ’s Prof Bilchitz’s work utilised in developing Indian constitutional law

UJ’s Prof Bilchitz’s work utilised in developing Indian constitutional law

Publishing Date: 10/3/2018 8:00 AM

In an important judgment on the constitutionality of an identity card scheme in India, the Supreme Court of India in its majority judgment utilised the academic work of Prof to David Bilchitzdevelop its legal doctrine of proportionality.

Prof Bilchitz is a Professor of Fundamental Rights and Constitutional Law at the University of Johannesburg (UJ) and Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) - a leading South African research centre within the Faculty of Law at UJ.

The proportionality test is used in courts across the world to evaluate whether there is a good justification for limiting a fundamental right. Bills of rights enshrine important entitlements that individuals have to such goods as life, privacy, speech, housing and food. There are, sometimes circumstances in which such rights must be limited: famously, individuals may not create panic, for instance, by shouting ‘fire’ in a crowded theatre or incite hatred and violence. The proportionality test provides a structured process of reasoning to determine when it may be justifiable to limit rights.

Prof Bilchitz, in a chapter in the book Reasoning Rights (Hart, 2014), focused on providing an understanding of the ‘necessity’ component of the proportionality test. This involves the requirement that courts must consider whether there are alternatives to a government measure that can achieve its purposes whilst having a lesser impact on a right. If there is such an alternative, then it is not justifiable to adopt a measure which has a more severe effect on a right. Bilchitz attempts to break down the various dimensions of this test and develop it in an attractive manner such that it can provide significant protection for fundamental rights and still allow a justification for limitations in appropriate circumstances.

The Indian Supreme Court quoted Bilchitz’s article at length as providing a meaningful interpretation of the ‘necessity’ enquiry. It concluded that “This Court, in its earlier judgments, applied the German approach while applying proportionality test to the case at hand. We would like to proceed on that very basis which, however, is tempered with the more nuanced approach as suggested by Bilchitz.”’

The  Court therefore effectively adopted Bilchitz’s proposed approach into the very manner in which it will apply the proportionality test in this judgment and the future.

 Prof David Bilchitz