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TMI BlogTest of proportionalityX X X X Extracts X X X X X X X X Extracts X X X X ..... been a less restrictive alternate measure that is equally effective (minimal impairment/necessity test). (iv) The last stage is to strike an appropriate balance between the fundamental right and the pursued public purpose (balancing act). 26. In Modern Dental College & Research Centre and Others v. State of Madhya Pradesh and Others, this Court had applied proportionality in its four-part doctrinal form In Gujarat Mazdoor Sabha and Another v. State of Gujarat, the Court added fifth prong to proportionality test. It stipulated that the state should provide sufficient safeguards against the abuse of such restriction. This was relied upon in Ramesh Chandra Sharma and Others v. State of U.P. and Others, as a standard for reviewing right lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act of balancing on the basis of some established rule or by creating a sound rule... xx xx xx 158. ...This Court, in its earlier judgments, applied 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 more nuanced approach as suggested by Bilchitz. This, in fact, is the amalgam of German and Canadian approach. We feel that the stages, as mentioned in Modern Dental College & Research Centre and recapitulated above, would be the safe method in undertaking this exercise, with focus on the parameters as suggested by Bilchitz, as this projects an ideal approach that need to be adopted." 27. The said test was also referred to in Anuradha Bhasin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fering impact of the measure and the alternatives (identified in MN2) upon fundamental rights must be determined, with it being recognised that this requires a recognition of approximate impact; and (MN4) Given the findings in MN2 and MN3, an overall comparison (and balancing exercise) must be undertaken between the measure and the alternatives. A judgment must be made whether the government measure is the best of all feasible alternatives, considering both the degree to which it realises the government objective and the degree of impact upon fundamental rights ("the comparative component"). 29. The test of proportionality is now widely recognised and employed by courts in various jurisdictions like Germany, Canada, South Africa, Austr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmine entitlements rather than balancing interests. However, proportionality is a standard-based review rather than a rule-based one. Given the diversity of factual scenarios, the balancing stage enables judges to consider various factors by analysing them against the standards proposed by the four prongs of proportionality. This ensures that all aspects of a case are carefully weighed in decision-making. This perspective finds support in the work of jurists who believe that constitutional rights and restrictions / measures are both principles, and thus they should be optimised / balanced to their fullest extent. 33. While balancing is integral to the standard of proportionality, such an exercise should be rooted in empirical data and evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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