DOCTRINE OF PROPORTIONALITY UNDER THE INDIAN LEGAL SYSTEM: A CRITICAL ANALYSIS”
Author: Kaushik Deo
LLM, CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
ISSN: 2582-3655
ABSTRACT
The proportionality doctrine has its origins in Europe. In European Administrative Law, the idea of proportionality has been described as the most significant general legal principle. The principle of proportionality states that a public authority should keep a sense of proportion between its specific goals and the means it uses to attain those goals so that its actions infringe on individual rights only to the amount necessary to protect the public interest. This means that administrative action should have a reasonable relevance to the overall goal for which the authority was granted.
The notion of proportionality implies that the court will consider the benefits and drawbacks of administrative action for itself. The court will uphold the administrative action only if the balance is favourable. Any choice that has a public or individual impact requires the Administration to weigh the benefits and develop a balance sheet of the pros and drawbacks. The principle of proportionality states that an administrative action may be struck down if it is disproportionate to the harm it is intended to cause. The Administration’s actions must be appropriate to the goal being sought. When exercising discretionary authority, an administrative authority should strike a reasonable balance between any negative repercussions that its decision may have on people’s rights, liberties, or interests, and the goal that it is pursuing. Overall, it implies that the decisionmaker must be proportionate.
Because basic rights are enshrined in the Indian Constitution, courts have consistently applied the notion of proportionality in determining the legality of a restriction on their exercise. The theory has always served as a deterrent to government actions that restrict fundamental freedoms. By proportionality, we mean the question of whether, while controlling the enjoyment of fundamental rights, the legislature or the administrator used the most appropriate or least restrictive method of measurement to attain the legislative or administrative goal, as the case may be. The supreme court will ensure that the legislative and administrative authority strike a proper balance between the negative impacts that legislation or administrative orders may have on people’s rights, liberties, and interests, while keeping in mind the goals for which they were created. The legislature and administrative authorities are allowed discretion or a range of options, but it is up to the court to assess whether the choice made infringes on the rights excessively or not. This is the proportionality principle.
KEYWORDS: Proportionality, Wednesbury reasonableness, CCSU Test, Indian constitution, UK Constitution, Administrative action.
EVOLUTION OF DOCTRINE OF PROPORTIONALITY
This idea can be traced back to Persia in the nineteenth century, with Germany[1], France, and other European countries moving ahead. The principle has been utilized by the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg in determining the legality of administrative actions. Since 1950, the Indian Supreme Court has applied the proportionality criterion to legislative activities. When an administrative action is challenged as a discretionary power under Article 14 of the constitution, this concept applies.
When administrative action is challenged as being “arbitrary” under Article 14, the Wednesbury principle[2] is invoked. In terms of Article 14, Indian courts looked at whether the classification was founded on intelligible differentia and whether the differentia had a reasonable connection to the legislation’s goal. It signifies that the courts were looking into the difference’s validity and appropriateness. This is another example of the proportionality principle in action.
The proportionality doctrine is found in Administrative Law and is applied during the Judicial Review stage. The doctrine stipulates that there must be a plausible connection between the desired outcome and the steps taken to achieve it. The action taken must not be startlingly disproportionate to the court’s awareness, and it can then be challenged through judicial review.
With the aid of an illustration, it can be better understood. For example, if some employees at a business fail to show up for work, the punishment must be fair. For example, the employer may treat the absence as unpaid leave and issue a warning or perhaps a fine, but dismissing them permanently would be disproportional.
‘Proportionality,’ according to Sir John Laws, is a notion in which the court is concerned with how the decision maker has arranged his priorities.
One of the most significant innovations in the subject of public law in the last century has been judicial review of legislative and executive action. Though the notion of judicial review was founded in 1803 in the famous case of Marbury vs. Madison[3], it was not widely used until the late twentieth century, when democracy became the prevailing political paradigm in most areas of the world in the aftermath of World War II. Since then, one of the main topics of debate in the field of Administrative Law has been the scope and ambit of Judicial Review.
Judicial Review of Executive Action (Administrative Action) has integrated substantial content enrichment among the two – Executive and Legislative activities – particularly in the recent two decades. The rise of the modern welfare state, combined with technical advancements, has resulted in the legislative not only delegating many of its powers and functions to the administrative authority, but also allowing large areas of discretion to the administrative authority.
As a result, the modern-day bureaucracy has gained enormous influence. This frequently results in him abusing the discretion entrusted to him, necessitating frequent judicial intervention. This action, however, should not result in the Judiciary intruding into areas reserved for the Executive Branch. As a result, the scope and ambit of Judicial Review must be confined to the bare minimum required to prevent abuse of the Executive’s authority.
Common law and civil law systems reacted differently and devised various mechanisms to achieve Judicial Review’s restricting purpose. To meet this limited role of Judicial Review, the notion of secondary review was evolved in common law jurisdictions. The Courts would only strike down Administrative Orders under the concept of Secondary Review if they suffer from the vice of Wednesbury unreasonableness (Associated Provisional Picture Houses Vs. Wednesbury Corporation[4]), which means that the order must be so absurd that no reasonable person could ever believe it was within the administrative authority’s powers.
On the other hand, civil law regimes created the notion of proportionality-based review (Primary Review), which is a far more thorough kind of Judicial Review. The proportionality principle states that the administrative measure should not be more severe than is necessary to achieve the targeted goal. Though common law countries prefer secondary review, proportionality-based review could not be ignored for long. This was due not just to the benefits of proportionality-based assessment, but also to the creation of a European Court and the resulting formation of a distinct pan-European jurisprudence based principally on civil law notions.
JUDICIAL REVIEW: WEDNESBURY UNREASONABLENESS VERSUS PROPORTIONALITY.
Lord Diplock described the exterior structure of judicial review as “illegality,” “irrationality,” and “procedural impropriety” in the case of Council of Civil Service Unions v. Minister for the Civil Services[5]. The outward structure of judicial review is defined by this three-part classification. It is not, however, exhaustive, nor are the bases it categorizes mutually exclusive[6]. Nonetheless, this classification system is used by all major authors of works on judicial review.
The decline of prerogative powers and immunity, the rise and fall of the concept of jurisdiction, and the formalization and expansion of legitimate expectation are just a few of the changes that have occurred in the concept of judicial review. All of these adjustments, however, may be accommodated and neatly tucked away within Lord Diplock’s three-part categorisation. Lord Diplock has carefully described the three structures that make up his classification – illegality, irrationality, and procedural impropriety[7] – but it is the concept of irrationality that is crucial in this work.
Irrationality and Wednesbury Unreasonableness
Lord Diplock compared irrationality with “Wednesbury unreasonableness” while defining it. In the case of Associated Picture House v. Wednesbury Corporation[8], the idea of “Wednesbury unreasonableness” was formed, hence the name “Wednesbury unreasonableness.” Simply put, administrative discretion should be exercised in a reasonable manner. As a result, a person entrusted with discretion must exercise good legal judgment. He must draw his attention to issues that he must consider. He must reject from his attention matters that are unrelated to the subject at hand. He can be accused of acting irrationally if he does not follow those norms. Lord Diplock defines “Wednesbury unreasonableness” as a principle that applies to a choice that defies logic or established moral norms in such a way that no reasonable person applying his intellect to the subject at hand could have arrived at it. Obviously, the concept of Wednesbury unreasonableness is exceedingly nebulous and impossible to assess objectively.
As a result, Wednesbury unreasonableness cannot be characterized in terms of universally applicable standards.
Proportionality:
Lord Diplock provided the classic definition of proportionality when he said, rather ponderously, “you must not employ a steam hammer to crack a nut if a nut cracker will suffice.[9]” As a result, proportionality mandates that government action be no more intrusive than is necessary to achieve a significant public goal. However, proportionality’s greatest value as a judicial review tool is its capacity to give objective standards for analysis. Using various tests, it is possible to apply this doctrine to the facts of a case. Even as he gives the tripartite classification, Lord Diplock recognizes that proportionality will be an additional subject of assessment in the future. However, most authors now consider proportionality to be a separate type of judicial evaluation within the concept of irrationality. As a result, the two parts of irrationality are understood as proportionality and Wednesbury unreasonableness. Initially, proportionality was only a competitor to Wednesbury unreasonableness, but due to its high degree of objectivity and vast improvements over the last decade and a half, it is now attempting to completely replace Wednesbury unreasonableness as the only sub-head of review under the concept of irrationality.
Margin of Appreciation
Proponents of the proportionality theory have always claimed that judicial review based on proportionality is distinct from an appeal. An appeal permits the appellate authority to revisit the case and make a new decision. As a result, it entails a full evaluation of the entire judgment, whereas judicial review focuses solely on verifying those legal requirements are followed. The proportionality form of judicial review accomplishes this by determining whether the decision maker used the least restrictive methods available and maintained a suitable balance between the decision’s potential negative consequences on the rights, liberties, and interests of those affected by it. This isn’t a full-fledged merits examination. Furthermore, the decision maker is given a discretionary area or range of options. The scope of the discretionary area is determined by the subject matter and the type/nature of the rights involved[10]. If the decision maker is acting within his or her discretion and making a choice among the different options available, the courts are unlikely to contest the decision maker’s judgment. However, as M. Jaganatha Rao J. correctly points out, the court may still investigate whether the decision made infringes substantially on the rights of the parties.[11] This range of options available to the decision maker is referred to as the Margin of Appreciation in Strasburg jurisprudence (European Court). It refers to the contracting states’ ability to exercise some discretion in balancing individual rights and national interests, as well as resolving conflicts that arise from differing moral convictions[12]. When the Human Rights Act of 1998 went into effect in the United Kingdom, there was widespread agreement that a domestic counterpart of the margin of appreciation was required. However, because the European Court is an international tribunal that supervises independent legal systems with legislative, executive, and judicial branches, the domestic “margin of appreciation” cannot be equal to the European one. The domestic equivalent, on the other hand, deals with the interaction between the court and the other arms of government, requiring consideration of proportionality at some point. An International Court on the other hand has to take into account the cultural diversity of human right conceptions among nations in a way inappropriate for the courts of a single political community.
As a result, English judges and academic writers prefer phrases like “margin of discretion” or “discretionary region of judgment” over “margin of appreciation.” This margin of discretion, according to Julian Rivers, includes two aspects: “Judicial Deference” and “Judicial Restraint,” which together determine the width of the margin of discretion. The concept of judicial deference is based on the concept of non-judicial organizations’ institutional competence to judge the proportionality of restrictions imposed on individuals’ rights. Often, courts lack the ability to assess whether or not an act is proportional, and in such cases, the court will defer to the decision maker’s discretion. Judicial restraint, on the other hand, is concerned with the legality component of judicial review. If, in a particular circumstance, two or more proportionate decisions are available and the decision maker makes a bona legitimate choice, the court will not interfere with the decision, not out of deterrent, but because the court displays restraint. There is no intrinsic reason why a judge could not make a choice as well but such a choice would be illegitimate. Their role is to secure legality not correctness.
THE CONCEPT OF DOCTRINE OF PROPORTIONALITY IN INDIA.
However, in India, the notion of proportionality in the broad European sense has yet to be adopted. So far, just a very limited version of it has been implemented. The reason for this is that the broad premise contradicts common-law judicial review traditions.
Administrative tribunals, which is not a regular court, are entrusted with the primary reviewer of administrative activity in the European version of proportionality, and so the broad concept of proportionality can be followed. In common law, the court has traditionally avoided delving into the merits of an administrative decision.
As a result, in India, the notion of proportionality is only used in a very restricted sense by the courts. The principle is implemented as an aspect of Article 14 of the Constitution, rather than as a stand-alone principle as it is in European administrative law, i.e., an arbitrary administrative action is subject to Art. 14. As a result, when an administrative decision is challenged as arbitrary under Art 14, the question will be whether the administrative order is rational or reasonable, with the Wednesbury test[13] as the standard. If the administrative action is arbitrary, as the Supreme Court stated in Royappa case[14], it may be knocked down under Art. 14. An administrator’s arbitrary action is defined as one that is irrational and unreasonable. As a result, in the case of administrative penalties, a very rigorous form of proportionality is used. The first proposition is that the amount of punishment a disciplinary authority imposes on a civil servant for misbehavior in service is a matter of the disciplinary authority’s discretion. Because of the limitations imposed by Art. 14, the second proposition is that the punishment must be reasonable. This means that Art 14 is violated if the punishment imposed is excessive. When the punishment is egregiously disproportionate, the court can rule on its proportionality. On compassionate grounds or because the sentence is disproportionate, the court will not intervene in the question of punishment. The court would only intervene in exceptional circumstances that appear to be perverse or unreasonable on the surface. In such instances, the Wednesbury test should be used.
APPLICATION IN INDIA:
The application of this principle can be seen in India with respect to cases involving fundamental rights. The case not involving fundamental freedoms, the role of our courts/ tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU [15]principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the courts can only go into the matter as a secondary reviewing court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU tests. The choice of the option available is for the authority. The courts/tribunals cannot substitute the view as to what is reasonable.
In Hind Construction Ltd. v. Workmen[16], the Supreme applied the doctrine of proportionality and held that an employer could not impose a harsh punishment like dismissing a permanent employee from job when he remained absent from duty treating a particular day as holiday. In Ranjit Thakur[17] case, The Apex Court had applied the doctrine of proportionality while quashing the punishment of dismissal from service and sentence of imprisonment awarded by the court martial under the Army Act. Upholding the contention, following CCSU[18] case the court observed:
“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 indicative or unduly harsh. It should not 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 a part of the concept of judicial review, would ensure that even as 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 recognised grounds of judicial review”.
In Sardar Singh v. Union of India,[19] a Jawan serving in an Indian Army was granted leave and while going his home town, he purchased eleven bottles of rum from army canteen though he was entitled to carry only four bottles. In court martial proceedings, he was sentenced to undergo rigorous imprisonment for three months and was also dismissed from service. His petition under Article 226 of the Constitution was devised by the High Court. The petitioner then approached the Supreme Court. The Supreme Court observed that the main submission and perhaps the only submission if we may say so, in this appeal is that the sentence awarded to the appellant is wholly disproportionate to the offence committed by him. Court considered the case of Ranjit Thakur[20] in the matter of awarding punishment under the Army Act. Applying these principles to this case the court observed that there is an element of arbitrariness in awarding these severe punishments to the appellant.
Jayachandra Reddy J. further said that we are satisfied that an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishment. Accordingly, we set aside the punishment of three months rigorous imprisonment and dismissal from service and remand the matter to the court martial which shall award any of the lesser punishments having due regard to the nature and circumstances of the case and in the light of the above observation made by us.
In Canara Bank v. V.K. Awasthy[21], the Apex Court had explained the scope and ambit of the power of judicial review of administrative action relating to the ground of proportionality. Instead of breaking the new ground and analyzing the concept thoroughly, the Apex Court simply restated the position as laid down in Om Kumar case[22].
In fact, in this process, the court created more confusion rather than clarification when it said that where departmental proceedings reveal several acts of misconduct and charges clearly establish failure in discharge of duties with utmost integrity, honesty, devotion and diligence, the scope of judicial review on the ground of proportionality is highly limited to situation of illegality and irrationality. It may be remembered what is said in the beginning of this topic that in applying proportionality it is assumed that the grounds of illegality are not there, since if those grounds are there, the decision will be set aside without going into proportionality. The principle of proportionality replaces the second sense of Wednesbury or irrationality ground only. And even when misconduct and charges are clearly established there is scope for proportionality in seeing whether the punishment imposed is suitable and also necessary in view of the gravity of misconduct or charges established. It is regrettable that the Apex Court is still groping in the darkness so far as the scope of proportionality is concerned.
The principle of proportionality is inherent in cases of punishments. This is also the basis of awarding punishments in the criminal law. For the first time, in Union of India v. Rajesh,[23] the Supreme Court applied the principle of proportionality to an area other than that of punishments. In this case 134 posts of constables were to be filled up for which written test and viva voce were held. As a result of allegations of favouritism and nepotism in conducting the physical efficiency test, the entire selection list was cancelled. This was challenged in the High Court through a writ petition. Allowing the writ, the High Court found that there were only 31 specific cases of irregularities. On appeal the Supreme Court upheld the High Court. Applying the principle of proportionality, the Apex Court observed that the:
“Competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational”.
It would not have been possible for the court on Wednesbury principle to set aside the authority’s decision to cancel the entire selection, because the decision could not be characterized as “so absurd that no sensible person could ever dream that it lay within the powers of the authority”. But the court held it to be arbitrary and not reasonable, thus adopting a lower threshold of unreasonableness than the Wednesbury or the CCSU test.
In India, the proportionality doctrine has a lot of utility and potential. The fundamental components of the principle have yet to be fully appreciated by the courts. We can also observe that the courts serve as a secondary means of reviewing the actions of administrative functions, demonstrating that the doctrine’s applicability is not limited. The Indian judiciary’s positive aspect of this theory is that, except in a few cases, it has not interfered with the severity of punishment, which is a discretionary matter for the administration or executive. This shows the balancing of powers and functions between judiciary and the executive in a harmonious manner.
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.
In the name of this philosophy, Indian courts were given regulated power. And during its existence, the doctrine followed a rather restricted approach. However, it is critical that the theory be established properly and that it be applied in order to restrain the activities of administrative entities in the chain of proportionality when they exceed the criteria of reasonability and enter the realm of arbitrariness.
However, sooner or later, Indian courts will have to actively consider applying the idea of proportionality in all situations that come before them, regardless of whether citizens’ or persons’ fundamental or ordinary rights are implicated. This is because human rights jurisprudence, which has grown to dominate the legal system, encompasses not just fundamental but also non-fundamental rights. As a result, the importance of adopting the proportionality approach cannot be overstated, because otherwise, even if nut crackers are sufficient, steam hammers will be increasingly employed to shatter nuts.
[1] Dieter Grimm, “Proportionality in Canadian and German Laws”, 51 U, Toronto L. J, 383.
[2] Associated Provincial Picture Houses Ltd. v Wednesbury Corporation (1948)1 KB 223; English law case which set down the standard of unreasonableness of public body decisions which render them liable to be quashed on judicial review. This special sense is accordingly known as Wednesbury unreasonableness.
The court stated three conditions on which it would intervene to correct a bad administrative decision, including on grounds of its unreasonableness in the special sense later articulated in Council of Civil Service Unions v Minister for the Civil Service by Lord Diplock:
| “So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” | ” |
[3] 5 US 137 (1803)],
[4] (1947) 2 All ER 74 (CA)]
[5] 1984 3 All ER 935, pp. 950, 951.
[6] Wheeler v. Leiscester City Council (1985) A.C. 1054.
[7] Council of Civil Service Unions. v. Minister for the Civil Services (1984) 3 All ER 935, pp. 950, 951
[8] 1947 2 All ER 680 (CA).
[9] R v. Goldsmith (1983) 1 WLR.
[10] R(Mahmood) v. Secretary of State for Home Department (2001) 1 WLR.
[11] Omkumar v. Union of India AIR 2000 SC 3689.
[12] Signatories of the European Convention on Human Rights, 1950.
[13] R v. Secretary of State of Home Dept (2002) 3 WLR 481.
[14] E. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
[15] Council of Civil Services v. Minister of Civil Services, 1985 AC 374.
[16] AIR 1965 SC 917.
[17] Ranjit Thakur v. U.O.I. (1987) SC 611, 620.
[18] Council of Civil Service v. Minister of Civil Services, 1985, AC 374.
[19] (1991) 3 SCC 213.
[20] AIR 1987 SC 2387.
[21] Teri Oat Estate (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130.
[22] Om Kumar v. Union of India, (AIR 2000 SC 3684).
[23] (2003) 7 SCC 285.