[This is a guest post by Rudraksh Lakra.]
Introduction
On 19 June 2026, the Delhi High Court, in Telegram FZ LLC v Union of India (2026) (“Telegram FZ“), upheld the temporary nationwide blocking of Telegram and its associated features under Section 69A of the Information Technology Act, 2000 (“IT Act”), in response to fraud surrounding the NEET-UG re-examination. Given that the decision affected approximately 150 million users of the platform, it has generated substantial discussion touching upon administrative law, constitutional law, and statutory interpretation. Tanmay Durani, in his insightful post on this blog, had offered a detailed merits analysis of the decision. He argued that the order lacked a rational basis and that blocking an entire platform is not permitted under the IT Act, as it is contrary to the legislative intent underlying the provision and the decision in Shreya Singhal v. Union of India (2015). Anushka Aggarwal has taken the latter argument even further, contending that the Court’s reasoning resembles copyright law jurisprudence, where the platform’s architecture itself becomes the basis of liability.
The pieces by Tanmay Durani, Apar Gupta, Indumugi C., Naman Kumar, and Amber Sinha have all emphasised the Court’s failure to properly understand and apply the proportionality standard, particularly at the necessity stage. They argue that although the Court adopted the framework laid down in Anuradha Bhasin v Union of India (2020) (“Anuradha Bhasin“), it failed to meaningfully apply it. The relevant extracts from Anuradha Bhasin regarding necessity are as follows:
… before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. (Para 78)
This is supported by the next two paragraphs, where the Court notes that the “degree of restriction and the scope of the same, both territorially and temporally” and “restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction.” (Para 79 to 80)
Thus, Anuradha Bhasin appears to place considerable emphasis on the Court examining less restrictive alternatives, in the form of more narrowly tailored measures. In Telegram FZ, however, and given that this point has already been discussed extensively elsewhere, it is sufficient to note that the Court, at this stage, merely restated the arguments of the petitioners and the respondents. It offered no meaningful analysis as to why other, less restrictive measures were unavailable. Thus, it would fail the Anuradha Bhasin standard.
In this blog, I do not seek to offer a case-specific or merits analysis. Instead, I use Telegram FZ as an opportunity to reflect on the necessity stage of the traditional proportionality test, a term I define in the following section. This issue is important as the petitioners placed considerable emphasis on necessity, and it has been, and is likely to remain, a central feature of constitutional adjudication in the future.
I argue that the necessity stage is widely misunderstood. It is often assumed to make proportionality a demanding and rigorous standard of review. Properly understood, however, the opposite is true. The traditional necessity inquiry is highly deferential to the State because it requires any less restrictive alternative to achieve the State’s objective to the same extent as the impugned measure. As a result, it is particularly well-suited to justify blanket restrictions and other overbroad limitations on rights, such as the Telegram ban. Building on this insight, I argue that Indian courts should abandon the traditional formulation in favour of the Hutterian model of necessity, which is both more rigorous and conceptually coherent.
I first developed this argument in detail in 2023, where I also proposed how each stage of the proportionality test could be redesigned and applied in India. My recommendations concerning the necessity stage remain equally relevant today. Indeed, they have become even more pressing as the State’s ability to impose overbroad restrictions, and the range of measures available through its expanding digital authoritarian infrastructure have continued to grow. This piece revisits that argument in light of the Telegram ban.
Traditional proportionality test and the Indian Supreme Court
I refer here to the traditional four-stage proportionality test, developed and applied in Germany, initially theorised by Robert Alexy and subsequently popularised by scholars such as Kai Möller, Aharon Barak, Alec Stone Sweet, Jud Mathews, and others. In comparative constitutional scholarship, including Indian literature, the term proportionality is often understood in this traditional four-limb form. The four stages of the traditional proportionality test are, according to Kai Möller, and Aharon Barak:
- Legitimate aim: The measure must pursue a legitimate objective.
- Suitability (or rational nexus): The measure must have a rational connection with the legitimate objective. In other words, it must be capable of promoting that objective.
- Necessity: It requires that amongst two means that can promote the state’s aim to the same extent, the one that is less intrusive should be chosen
- Proportionality stricto sensu (balancing): this stage determines whether the interference with the right is justified in light of the benefits secured by protecting the competing right or public interest. It requires balancing the extent of the rights infringement against the importance of the competing objective.
The Indian Supreme Court has a long history of applying a relatively deferential standard of review under the guise of proportionality (see here, here, here, here, here, and here). The structured proportionality test emerged in the Court’s jurisprudence only in the last decade, beginning with Modern Dental College and Research Centre v State of Madhya Pradesh (2016) (“Modern Dental College“). However, while attempting to develop a structured proportionality jurisprudence, the Court has frequently reverted to its earlier approach. It has often failed to define and apply the proportionality test in a coherent and consistent manner. In cases such as Modern Dental College and Puttaswamy I, the Court did not clearly articulate a proportionality framework (see here, and here). In Puttaswamy II, it attempted to do so, but the third limb (necessity) and the fourth limb (balancing) were formulated in a manner that rendered the framework internally inconsistent (see here, and here). I shall return to Puttaswamy II in the last section. Further, in cases such as Puttaswamy II, Vivek Narayan Sinha v Union of India (2023) (“Vivek Narayan Sinha“), and Association for Democratic Reforms v Election Commission of India (2026) (“Association for Democratic Reforms II”), the Court did not apply the standard rigorously (see here, and here). Aparna Chandra has accordingly observed that “the Court’s approach of assimilating proportionality into the pre-existing framework for rights review limits the disruptive potential of proportionality”. This is because the Court appears to believe that proportionality has always been part of Indian constitutional jurisprudence. Consequently, it sees no need to make any substantive changes to the existing, lower standard of review, whether in terms of the substantive standard or the allocation of the evidential burden.
Even in Anuradha Bhasin, the Court stated that it was applying the structured proportionality standard, but it neither adopted nor properly articulated the traditional four-stage framework. Instead, it conflated several distinct limbs of the test:
In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It ought to be noted that such goal must be legitimate. However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. (Para 78)
The opening sentence clearly refers to the first limb of proportionality, namely the requirement of a legitimate aim. Notably, however, the Court omits any discussion of the second limb, namely, suitability or rational connection. The following sentence refers to the existence of less restrictive alternatives and therefore corresponds to the necessity stage.
The most significant difficulty lies in the final sentence. The Court states that the “appropriateness of such a measure depends on its implication upon the fundamental rights”. Assessing whether the extent of the rights infringement is justified in light of the importance of the competing objective is the inquiry ordinarily undertaken at the fourth stage, namely, proportionality stricto sensu or balancing. At the same time, the Court also refers to the “necessity of such measure”, thereby collapsing the necessity and balancing stages into a single inquiry. Even then, the balancing envisaged in Anuradha Bhasin is not equivalent to proportionality stricto sensu. The Court appears to weigh the degree of rights restriction against the availability of less restrictive alternatives. By contrast, under the traditional proportionality framework, proportionality stricto sensu requires balancing the severity of the rights infringement against the importance of the State’s objective. These are analytically distinct inquiries. More fundamentally, Anuradha Bhasin neither adopts the traditional four-stage proportionality framework nor articulates any other coherent structured model. Rather, it fails to approach proportionality as a methodological exercise comprising distinct and analytically separate stages of review.
Necessity and the traditional proportionality standard
Necessity is commonly misunderstood. It is often assumed that the necessity stage makes the traditional proportionality standard stringent and rigorous for the government. In reality, the opposite is true. Properly understood, it is a highly deferential standard. Under the traditional formulation, necessity requires that where two measures are capable of promoting the State’s objective to the same extent, the less rights-restrictive measure must be adopted.
The necessity stage is, in practice, almost otiose under the traditional proportionality framework because it is exceedingly difficult to identify an alternative measure that would achieve the State’s objective to the same extent. This limitation significantly weakens the test. Empirical evidence from Germany, where the traditional necessity standard is applied, supports Bilchitz’s argument and demonstrates the dominance of the final balancing stage. In 84 per cent of the reviewed cases, the impugned measure failed only at the fourth stage, while only 14 per cent failed at the necessity stage. Further, in 44 per cent of the cases, the Federal Constitutional Court either skipped the necessity inquiry altogether or dealt with it only briefly. Overall, the traditional formulation makes it exceptionally difficult for Courts to identify a viable alternative measure, rendering it unlikely that a measure will fail at the necessity stage unless the Court departs from the orthodox standard. Indeed, where the Federal Constitutional Court has found that a measure failed the necessity requirement, it has often done so only after deviating from the traditional understanding of necessity. This suggests that the capacity of the necessity stage to promote a culture of justification is inherently limited.
Moreover, the current formulation of the necessity inquiry is itself deferential to the State. Because the State determines the level of protection it seeks to achieve, it also effectively determines the benchmark against which alternative measures are assessed. Consequently, highly intrusive measures, including blanket bans, are likely to satisfy the necessity requirement because targeted alternatives will rarely achieve the State’s objective to precisely the same extent.
Properly understood, therefore, the traditional necessity test provides a particularly strong justification for blanket restrictions. If applied to Telegram FZ, assuming that preventing further dissemination of the leaked examination paper constituted a legitimate aim, a blanket ban on Telegram would almost certainly satisfy the traditional necessity requirement. It would have been exceptionally difficult for the petitioners to identify an alternative measure that could have prevented further dissemination to the same extent as a complete platform-wide restriction. This illustrates the central weakness of the traditional necessity test. Since the State defines the level of protection that it wishes to achieve, and the blanket ban or the overbroad restriction is likely to be the most effective means of achieving that level of protection, the measure is likely to satisfy the necessity requirement.
Reflections on the necessity stage in India and the Hutterian model of necessity
The Indian Supreme Court has not adopted a consistent understanding of the necessity requirement in its proportionality jurisprudence. It rarely applies the necessity inquiry and seldom examines whether less restrictive alternatives to the State’s chosen measure exist, largely because it is reluctant to second-guess executive and legislative choices. For instance, in Justice Chandrachud’s opinion in Puttaswamy I, which has subsequently been cited and followed in several cases, the necessity inquiry is absent altogether. In Association for Democratic Reforms v Union of India (2024) (“Association for Democratic Reforms I”) and Akshay N. Patel v Reserve Bank of India (2021) (“Akshay N. Patel”), the majority’s formulation in Puttaswamy II was followed. I shall critique the Puttaswamy II version shortly.
The traditional necessity standard can be found in cases such as Vivek Narayan Sinha and Association for Democratic Reforms II, as well as in the writings of Aharon Barak, whose formulation of the necessity inquiry was approvingly cited in Modern Dental College. However, in both Vivek Narayan Sinha and the Association for Democratic Reforms II, the Court did not actually apply the traditional necessity standard. Instead, it applied an even more deferential standard of review. Ironically, Vivek Narayan Sinha and the Association for Democratic Reforms II are rare cases in which a faithful application of the traditional necessity test would lead to potential failure at the state. If the traditional necessity standard is consistently applied, it would make it considerably easier for Courts to uphold measures such as blanket bans.
The strongest argument against adopting the traditional formulation of the necessity stage can be found in the majority opinion in Puttaswamy II. There, the Court observed that, under the German model of proportionality (traditional version), the balancing stage performs almost all the analytical work, rendering the earlier stages, including necessity, largely useless (Para 122-123). To address the concerns regarding the German model, it adopts David Bilchitz’s formulation of the necessity standard (Para 123).
To address the concern that the balancing stage of proportionalitystricto sensu is impressionistic and unguided, the Court reasoned that the use of established “bright-line rules” could discipline the inquiry (Para 123-124). In doing so, it drew upon the work of Jochen von Bernstorff without citing him. This becomes apparent from paragraph 123 of Puttaswamy II, which is a near verbatim reproduction of Kai Möller’s overview of Part II of Reasoning Rights: Comparative Judicial Engagement, to which both David Bilchitz and Jochen von Bernstorff contributed chapters setting out distinct models of proportionality.
It is possible that the Court did not read beyond Möller’s introductory chapter. Had it done so, it would have recognised that von Bernstorff’s principal criticism of the traditional proportionality framework is directed at the balancing stage itself. Von Bernstorff argues that, in most cases, only the first three stages of proportionality should be applied. In exceptional cases involving serious infringements of rights, a fourth stage may be justified, but it should not take the form of proportionality stricto sensu. Instead, it should be replaced with categorical rules. The Court thus relied upon a model that, far from seeking to discipline the balancing stage, advocates for its removal altogether.
The difficulty is compounded by the fact that Bilchitz’s model introduces a form of balancing at the necessity stage (see below) that closely resembles proportionality stricto sensu, whereas von Bernstorff rejects balancing altogether and replaces it with categorical rules. As Bilchitz himself acknowledges, there is a conflict between the two approaches (Page 59-60). These two conceptions of proportionality cannot be reconciled.
Bilchitz’s model requires:
First, a range of possible alternatives to the measure employed by the Government must be identified. Secondly, the effectiveness of these measures must be determined individually; the test here is not whether each respective measure realises the governmental objective to the same extent, but rather whether it realises it in a ‘real and substantial manner’. Thirdly, the impact of the respective measures on the right at stake must be determined. Finally, an overall judgment must be made as to whether in light of the findings of the previous steps, there exists an alternative which is preferable. (Puttaswamy II majority opinion Para 123)
The major problem with the standard advanced by Bilchitz is the design of the last limb of his model. At the last limb, the Bilchitz model introduces balancing, which Bilchitz acknowledges. The nature of the balancing that the Bilchitz standard introduces is much closer to the stage of proportionality stricto sensu. As it requires the degree of achievement and the degree of impact to be balanced, these are the two factors ordinarily balanced at the stage of proportionality stricto sensu. This raises an important issue concerning the role of the stage of proportionality stricto sensu. If balancing is already being carried out at the stage of necessity, then what remains to be done at the stage of proportionality stricto sensu? The Bilchitz standard, therefore, conflates the third and fourth stages of the traditional proportionality test.
I have elsewhere argued for the adoption of the formulation provided by the Canadian Supreme Court in Alberta v Hutterian Brethren of Wilson Colony for the necessity stage. According to this approach, at the stage of necessity, any less restrictive alternative that achieves the State’s aim to a “real and substantial degree” should be adopted (“Hutterian model of necessity“). This model was used by David Bilchitz to build his model. The Hutterian model of necessity would resolve the primary issues highlighted in the traditional proportionality test. Allowing alternatives that achieve the State’s aim to a substantial extent to be considered reduces the strictness of the necessity stage and helps operationalise it by making potential alternatives available for a Court to examine. Further, the Hutterian model has an important advantage over the Bilchitz standard. It keeps the necessity and balancing stages separate, does not conflate them.
Mariyam Kamil has described the approach adopted in Puttaswamy II as a “hybrid” model of proportionality, combining the approaches of David Bilchitz and Jochen von Bernstorff (manuscript on file with the author). However, there is an intractable conflict between these two approaches. Consequently, subsequent decisions, such as Akshay N. Patel (para 21) and Association for Democratic Reforms II (para 62), adopt the Puttaswamy II formulation of the necessity standard, although the latter does so only implicitly, without attempting to reconcile Bilchitz’s and von Bernstorff’s competing theories. Instead, in formulating the necessity inquiry, they effectively adopt the Hutterian model without acknowledging it. However, as noted above, when called upon to apply the proportionality test, both Vivek Narayan Sinha and the Association for Democratic Reforms II, ultimately reverted to a lower standard of review under the guise of the test.
For these reasons, Indian Courts should adopt, and petitioners and appellants should advocate for, the Hutterian model of necessity. Had the Delhi High Court in Telegram FZ applied this approach, it would have been required to undertake a genuine examination of whether less restrictive alternatives, such as the targeted blocking of specific channels, groups, or functionalities, could have achieved the State’s objective to a real and substantial degree. Such an inquiry would have been considerably more demanding than the traditional necessity test while preserving the analytical distinction between necessity and proportionality stricto sensu.
Conclusion
While this piece focuses specifically on the necessity stage, the design and implementation of the traditional proportionality standard marginalises all other stages and places predominant weight on balancing. One study found that 84% of cases reviewed before the German Federal Constitutional Court were resolved solely at the balancing stage. This raises two concerns. First, marginalising the first three stages can undermine the quality of reasoning at the balancing stage itself, since all prior stages feed into it. Second, balancing is an arduous exercise that has attracted a host of criticisms, many of which have considerable force.
Much of the scholarship on proportionality in India focuses on the Supreme Court’s failure to adopt and apply the traditional proportionality standard faithfully. However, even if the Court were to do so, the concerns raised by the traditional framework suggest that faithful application alone may not effectively reshape legal culture or reconfigure power relations in the way envisioned. Without making the test more robust, proportionality risks remain a bridge to nowhere, rather than a bridge towards a culture of justification.
For this reason, over the last decade, a growing body of scholarship has sought to refine the proportionality test (see here and here). While recognising its value, this scholarship also acknowledges the criticisms the traditional framework has attracted and attempts to redesign and apply proportionality in a more defensible form.
In my July 2023 literature review, “Pathways for the Future Evolution of the Proportionality Discourse in India,” I found that there were very few Indian contributions engaging with this emerging strand of proportionality scholarship aimed at strengthening, rather than merely applying, the test. Today, the landscape remains much the same. In the constitutional law jurisprudence following Puttaswamy II, there has been no serious engagement with the criticisms of the traditional proportionality framework or with how it might best be adapted for the Indian constitutional context. Improving the design and application of the proportionality test is therefore the next stage in its evolution in India, with comparative and empirical scholarship playing a pivotal role. That responsibility falls on scholars, litigants, and Courts alike.
