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Critical Analysis of Doctrine Of Proportionality

Doctrine of proportionality finds its place in the Administrative Law and is used at the stage of Judicial Review. The doctrine assets that there must be a reasonable nexus between the desired result and the measures taken to reach that goal. The action taken must not be shockingly disproportionate to the consciousness of the court and the said action can then be challenged by way of judicial review.

It can be better understood with the help of an illustration. Let's say, if in a workplace some workers remain absent from their duty then the punishment for it must be proportional, that is, the employer may treat it as leave without pay and may warn them or may even levy a fine but to dismiss them from service permanently would be disproportional.

Sir John Laws has described 'proportionality' as a principle where the court is concerned with the way in which the decision maker has ordered his priority.

Lord Diplock in [R Vs Goldstein 1983 (1) WLR 151] in a bit to explain proportionality said:
This would indeed be using a sledge-hammer to crack a nut 'Proportionality' involves a Balancing test which keeps a check on the excessive or arbitrary punishments or encroachment upon the rights and Necessity test which takes into account other less restrictive alternates.

Judicial Review of legislative and executive action has been one of the most important developments in the field of public law in the last century. Though the concept of Judicial Review was developed way back in 1803 in the famous case of [Marbury Vs. Madison, 5 US 137 (1803)], it found wide application only in the later periods of the 20th Century, when in the aftermath of the World War II, democracy came to be the governing political principle in most parts of the world. Since then the scope and ambit of Judicial Review has been one of the Central themes of discussion in the branch of Administrative Law.

Among the two - Executive and Legislative actions - it is the Judicial Review of Executive action (Administrative action) that has assimilated much content enrichment, particularly in the last two decades. The growth of Modern Welfare State coupled with the technological advances has resulted in the legislature not only leaving wide areas of discretion to the administrative authority but also even delegating many of its powers and functions.

This has resulted in the modern day bureaucrat becoming extremely powerful. This often leads to misuse of discretion vested in him there by requiring frequent Judicial intervention. However this intervention should not result in the Judiciary encroaching into areas reserved for the Executive. Consequently, the scope and ambit of Judicial Review must be limited to the extent just necessary to prevent the abuse of the discretion conferred on the Executive.

To achieve this limiting function of Judicial Review, common law systems and civil law systems reacted differently and developed different processes. In common law jurisdictions the concept of secondary review was developed to achieve this limiting function of Judicial Review. Under the concept of Secondary Review the Courts would strike down Administrative Orders only if it suffers the vice of Wednesbury unreasonableness [Associated Provisional Picture Houses Vs. Wednesbury Corporation (1947) 2 All ER 74 (CA)], which means that the order must be so absurd that no sensible person could ever dream that it lay within the powers of the administrative authority.

The civil law jurisdictions on the other hand developed the concept of proportionality based review (Primary Review) which is a much more intensive form of Judicial Review. The principle of proportionality ordains that the administrative measure must not be more drastic than is necessary for attaining the desired result. Though the common law countries prefer Secondary Review, it could not ignore proportionality based review for long. This was not only because of the advantages associated with proportionality based review but also because of the establishment of an European Court and the consequential growth of a separate pan European jurisprudence primarily based on civil law concepts.

India, a former colonial State of British Empire, inherited from British India, the common law system. After Independence, India chose to retain the common law system without much change. Indian Courts have always found it desirable to follow English precedents while deciding domestic cases. This has virtually been the case in the development of Administrative Law in India. Inspite of Article 226 and Article 32 read with Article 13 of the Constitution of India giving the Constitutional Courts much wider scope to interfere with Executive Orders, the Indian Courts have chosen to follow the English concept of Wednesbury's reasonableness.

However, with the doctrine of proportionality fast gaining currency across the world including common law countries, the Indian Legal System could not remain closed for long and in the case of Omkumar v Union of India 4 the Indian Supreme Court accepted the doctrine of proportionality as a part of Indian law.

Origin And Development; From Reasonableness to Proportionality
The doctrine of proportionality is a European origin. It is imbibed in European Droit Administratif and is one of the most important legal principles in the 'European Administrative Law.' In Britain, the Principle of Proportionality has, for so long, been treated as a part of the Wednesbury's Principle of reasonableness which postulated the basic standard of reasonableness that ought to be followed by a public body in its decisions. It stated that if a choice is so unreasonable to the point that no sensible expert could ever take those actions or employ the methods adopted, then such activities are subject to be liable and quashed through Judicial Review.

Although the Doctrine of Proportionality has been dealt with as a part of the Wednesbury's Principle, the Courts have adopted a different position when it comes to the Judicial intervention in terms of the Judicial Review. It has been held that the principle entails the reasonableness test with a heightened scrutiny.

On other words, to apply this doctrine, not only the decisions have to be within the limits of reasonableness, but only, there has to be a balance between the advantage and disadvantage in the outcome that has been achieved through the administrative action. Therefore, the extent of Judicial Review is more intense and greater on account of the 'proportionality' test than the 'reasonableness' test. Furthermore, the Court while applying the rule of proportionality will think about the public and individual interest in the matter which is not done while applying the Wednesbury's principle of unresaonableness.

Indian Approach To The Doctrine Of Proportionality
The Indian Supreme Court consciously considered the application of the concept of proportionality for the first time in the case of [Union of India Vs. G. Ganayutham, (2006) 65 (1) C.L.J.174, p. 175]. In that case the Supreme Court after extensively reviewing the law relating to Wednesbury unreasonableness and proportionality prevailing in England held that the 'wednesbury' unreasonableness will be the guiding principle in India, so long as fundamental rights are not involved.

However the Court refrained from deciding whether the doctrine of proportionality is to be applied with respect to those cases involving infringement of fundamental rights. Subsequently came the historic decision of the Supreme Court in [Omkumar Vs. Union of India, AIR 2000 SC 3689].

It was in this case that the Supreme Court accepted the application of proportionality doctrine in India. However, strangely enough the Supreme Court in this case suddenly discovered that Indian courts had ever since 1950 regularly applied the doctrine of proportionality while dealing with the validity of legislative actions in relation to legislations infringing the fundamental freedom enumerated in Article 19 (1) of the Constitution of India.

According to the Supreme Court the Indian Courts had in the past in numerous occasions the opportunity to consider whether the restrictions were disproportionate to the situation and were not the least restrictive of the choices. The same is the position with respect to legislations that impinge Article 14 (as discriminatory), and Article 21 of the Constitution of India. With respect to the application of the doctrine of proportionality in administrative action in India, the Supreme Court after extensively reviewing the position in England came to a similar conclusion.

The Supreme Court found that administrative action in India affecting fundamental freedoms (Article 19 and Article 21) have always been tested on the anvil of proportionality, even though it has not been expressly stated that the principle that is applied is the proportionality principle. Thus the Court categorically held that the doctrine of proportionality is applicable to Judicial Review of administrative action that is violative of Article 19 & Article 21 of the Constitution of India.

With respect to Article 14 of the Constitution of India, Supreme Court concluded that when an administrative action is challenged as discriminatory the Courts would carry out a Primary Review using the doctrine of proportionality. However when an administrative action is questioned as arbitrary the principle of Secondary Review based on Wednesbury principle applies. The Supreme Court also held that punishment in service law is normally challenged as arbitrary under Article 14 of the Constitution of India, and hence only Secondary Review based on Wednesbury principle would apply.

This according to the Supreme Court is because in such matters relating to punishments in service law, no issue of fundamental freedom or of discrimination under Article 14 of Constitution of India applies. However even after a decade since the decision in Omkumar's case, no further progress has been made. The law regarding proportionality in India remains at what has been stated in Omkumar's case. The only advancement could be the vague observation in a few subsequent Judgments that the doctrine of unreasonableness is giving way to the doctrine of proportionality. [see Indian Airlines Ltd. Vs. Praba D. Kanan AIR 2007 SC 548; State of U. P. Vs. Sheo Shankar Lal Srivastava (2006) 3 SCC 276 51].

Thus, in India, under the current state of law, as declared by the Supreme Court, proportionality review with respect to administrative action has only limited scope. This is because, in India much of the administrative action is challenged before the Courts primarily on the ground of arbitrariness and this can be challenged only on the ground of Wednesbury unreasonableness. Thus in reality the decision in Omkumar's case has not significantly enhanced the scope of Judicial Review in India.

No reason as such is given by the Supreme Court in Omkumar's case as to why doctrine of Wednesbury unreasonableness alone should be applied to challenges under the head of arbitrariness.

However there can be at least two reasons for this:

  1. First of all, the Supreme Court was simply accepting a similar classification in England by which proportionality review was applicable only when convention rights were involved and Wednesbury principle alone was applicable when non convention rights were involved. [Brind Vs Secretary of State for the Home Department, (1991) 1 All ER 720 P. 723].
     
  2. Secondly, just like Lord Lowry the Supreme Court may have feared a docket explosion when the threshold of review is lowered.

The latter of these two reasons cannot and should never be the reason for not allowing a better and more intensive standard of review. Initially there may be a increase in the number of cases, but when it becomes clear to the decision makers that the Judiciary is adopting a much more intense standard of review, they would themselves reassess their decision making process and bring their decisions in tune with the new standard of review. As for the former reason, the distinction between convention and non convention rights as regards application of proportionality is fast disappearing [See R (AlConbury Developments Ltd.) Vs. Secretary of State for Environment, Transport & Regions, (2001) 2 All ER 929].

Furthermore, the Supreme Court's distinction based on arbitrariness is not conceptually strong. First of all, the assumption behind this classification is that an Administrative Order which is arbitrary would seldom be violative of fundamental rights or is discriminatory. This is patently erroneous in most cases.

For e. g., suppose a government employee is dismissed from service under the service law for attending a religious congregation, then the order is not only arbitrary but also violative of at least two of his fundamental rights namely his freedom of religion under Article 25 of Constitution of India and his freedom to assemble under Article 19 (1)(b) of the Constitution of India.

Similarly an administrative act denying promotion for a sufficiently experienced government employee and at the same time promoting similarly placed persons will be per se not just arbitrary but also discriminatory.

Secondly, when a Petitioner having sufficient locus standi challenges an administrative act as arbitrary, he is doing so only because one or other of his rights - fundamental, statutory or common law - has been violated. If the classification made by the Supreme Court is adopted then the first task before the Court is to determine which type of right has been affected.

This is not an easy task for there can be no clear cut boundaries between fundamental rights and non fundamental rights particularly when the Supreme Court has itself given a very broad meaning to Article 21 of the Constitution of India. This task becomes even more difficult, when one considers the fact that usually an administrative act is violative of more than one right. Hence much of Judicial time would be wasted in deciding the nature of the right.

In the alternative, the Judicial time could be effectively used in evaluating whether the decision maker has properly balanced the priorities while taking the decision. Obviously a variable intensity of proportionality review - based on the concept of Judicial deference and Judicial restraint - can be adopted depending upon the subject matter and the nature of the rights involved.

Equally important is the consideration whether the administrative action challenged as arbitrary should remain within the purview of Wednesbury principle. For this, it is pertinent to look at the meaning of the word arbitrariness. It is never an easy term to define with precision and hence the Supreme Court in the case of [Shrillekha Vidyarthi Vs. State of U. P, AIR 1991 SC 537] equated arbitrariness with reasonableness.

By equating arbitrariness with Wednesbury unreasonableness, the decision maker escapes serious Judicial Review. But this is fast changing. Proportionality is fast replacing Wednesbury reasonableness which the Supreme Court itself has observed in a large number of recent cases. After all there is nothing wrong in a modern democratic society if the Court examines whether the decision maker has fairly balanced the priorities while coming to a decision. At any rate, the intensity of proportionality review is variable depending upon the subject matter and the nature of rights involved.

After the conscious adoption of the doctrine of proportionality into Indian law in the Omkumar's case the only case where the Supreme Court has expressly adopted the doctrine of proportionality is the case of [Sandeep Subhash Parate Vs. State of Maharastra (2006) 1 SCC 501].

In that case a student obtained admission to Engineering Course based on a Caste Certificate, which was subsequent to the admission, invalidated. However, he completed the course based on an interim order of the High Court. Yet the University refused to grant him the degree. This action of the University was held to be correct by the High Court.

The Supreme Court in appeal directed the University to grant him degree subject to the appellant making a payment of Rupees One lakh, to re-compensate the State for the amount spend on imparting education to him as a reservation candidate. This, the Supreme Court claimed was done having regard to the doctrine of proportionality.

But the Supreme Court did not come to a finding that the University had failed to balance the various considerations before refusing to grant the appellant the degree. Also, the Supreme Court apart from mentioning the facts of the case failed to explain how it came to the conclusion regarding proportionality. At any rate the Supreme Court itself admitted that it was taking the decision under Article 142 of the Constitution of India.

Hence the choice between the European model and the British model in the Indian context will be a purely academic exercise. As suggested by Julian Rivers the choice would be in favour of the European model. Further such a selection gets some Judicial backing from the decision of the Supreme Court in Omkumar's case wherein the Court while defining proportionality held that the legislative and administrative authority must be given a range of choice, but the courts can decide whether the choice infringes the rights excessively or not.

This would indicate that the Supreme Court does intent that the fair balance stage (last stage) of the European model must be part of proportionality review. Hence the conclusive argument would be that the European conception of proportionality review should be the appropriate test that should be applied in the Indian context.

The principle of proportionality evaluates two aspects of a decision:

  1. Whether the relative merits of differing objectives or interests were appropriately weighed or fairly balanced?
  2. Whether the measure in question was in the circumstances excessively restrictive or inflicted an unnecessary burden on affected persons?


The Court in such a case will not be concerned with the correctness of the decision rather the method to reach such decision. [Maharashtra Law Development Corporation Vs. State of Maharashtra, (2011) 15 SSC 616. The decision making process involves attributing relative importance to various aspects in the case and there the doctrine of proportionality enters.
In [Ranjit Thakur Vs Union of India, (1987) 4 SCC 611], wherein, an Army Officer disobeyed the lawful command of his superior officer by not eating food offered to him. Court Martial proceedings were initiated and a sentence of one year rigorous punishment was imposed. He was also dismissed from service, with added disqualification that he would be unfit for future employments.

It was held that Judicial Review generally speaking, is not directed against a decision, but is directed against the decision making process. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It shouldn't be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.

The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of Judicial Review. All powers have legal limits.

In [Coimbatore Distt. Central Co-operative Bank Vs. Employees Association, (2007) 4 SCC 669] Certain Employees went on illegal strike. They also prevented others from discharging their duty. It was held that the acts amounted to Serious misconduct. Punishment imposed on the employees of stoppage of increment could not be said to be disproportionate to the charges levelled and proved against employees.

In [K. S. Puttaswamy Vs. Union of India, 2017 (10) SCC 1] - Test of proportionality was upheld by the Hon'ble Supreme Court. It was held that in the case of proportionality of a measure must be determined while looking at the restrictions being imposed by the State on the fundamental rights of citizens. It is not just the legal and physical restrictions that must be looked at, but also the fear that these sorts of restrictions engender in the minds of the populace, while looking at the proportionality of measures.

Most recently, in [Anuradha Bhasin Vs. Union of India 2019 SCC Online SC 1725], wherein, the validity of internet shutdown and movement restrictions in J&K was challenged in the Hon'ble Supreme Court. It was held - To summarize the requirements of the doctrine of proportionality which must be followed by the authorities before passing any order intending on restricting fundamental rights of individuals.

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.

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. Lastly, since the order has serious implications on the fundamental rights of affected parties, the same should be supported by sufficient material and should be amenable to judicial review.

Conclusion
From the above analysis it is patently clear that at the international level Wednesbury unreasonableness is on a terminal decline. It is fast being replaced by the doctrine of proportionality which is a much more intense form of review which seeks to see whether the decision maker has properly balanced the various factors that he has to take into consideration before rendering a decision. Further there are two competing models of proportionality, namely, European model and the British model. Of the two the European model is more efficient and objective.

In the Indian context it is amply clear that even though proportionality was made part of the Indian law as early as 2000, there is hardly any significant use of doctrine in India. Not only has the doctrine as adopted by the Supreme Court, limited application, but even within that applicable range, it has hardly been used.

Indian Courts were given regulated power in the name of this doctrine. And the doctrine took a very narrow approach in its existence. But it is highly required that the doctrine should establish itself in its proper manner and should be applied in order to curb the actions of the administrative bodies in the chains of proportionality in the cases when they outreach the requirement of the reasonability and come in the frame of arbitrariness.

Though it the duty of the Court to respect the position of the administrative body, but it is important to analyse that the doctrine is not to undermine the position of any such administrative body but to regulate every action so that no action of administrative body should be beyond the purview of the principles of law that are existing. This is not only for the development of the legal system of the country but also for the Protection of Rights of the citizens of the country.

However sooner or later Courts in India will have to actively consider implementing the doctrine of proportionality in all cases coming before it irrespective of whether fundamental or ordinary rights of citizens / persons are involved. This is because of the fact that human rights jurisprudence that has come to dominate the legal system includes not just fundamental rights but other rights also. Hence the urgency of adopting the doctrine of proportionality cannot be overlooked for otherwise steam hammers would increasingly be used to crack nuts even if nut crackers are sufficient.

Written By: Dinesh Singh Chauhan, Advocate, J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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