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
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
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
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
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
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:
- 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].
- 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
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
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
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:
- Whether the relative merits of differing objectives or interests were
appropriately weighed or fairly balanced?
- 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
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
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
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.
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
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
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
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,
Email: [email protected], [email protected]