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Administrative Action And Doctrine Of Proportionality

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 v Madison, 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 2 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 a 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. In spite of Article 226/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 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 the Indian Supreme Court accepted the doctrine of proportionality as a part of Indian law. This article seeks to analyse the theoretical aspects of the doctrine of proportionality and the scope of its applicability to the Indian legal system.

Judicial Review
The broad contours of the external structure of judicial review have been laid down by Lord Diplock in the case of Council of Civil Service Unions. v. Minister for the Civil Services as: illegality, irrationality and procedural impropriety". This tripartite classification demarcates judicial review's external structure. However, it is not exhaustive, nor is the grounds it classifies mutually exclusive.

Nevertheless all major authors of books on judicial review use this classification method. Many developments have occurred within the concept of judicial review including the decline of prerogative powers and immunity, rise and fall of the concept of jurisdiction, and the formalization and expansion of legitimate expectation.

However, all these changes can be accommodated and neatly housed within Lord Diplock's tripartite classification. Lord Diplock has himself very neatly defined all the three structures within his classification namely illegality, irrationality and procedural impropriety but it is the concept of irrationality that is of importance in this work.

Irrationality & Wednesbury Unreasonableness

While defining irrationality Lord Diplock equated it with Wednesbury unreasonableness‟. The concept of "Wednesbury unreasonableness‟ was developed in the case of Associated Picture House v. Wednesbury Corporation and hence the name Wednesbury unreasonableness. It simply means that administrative discretion should be exercised reasonably.

Accordingly, a person entrusted with discretion must direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the subject he has to consider. If he does not obey those rules, he can be said to be acting unreasonably.

Lord Diplock beautifully sums up Wednesbury unreasonableness:
As a principle that applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it. Quite obviously the concept of Wednesbury unreasonableness is extremely vague and is not capable of objective evaluation. Hence, Wednesbury unreasonableness cannot be defined in the form of standard tests for universal application.

Proportionality

The classical definition of proportionality has been given by none other than Lord Diplock when his Lordship rather ponderously stated "you must not use a steam hammer to crack a nut if a nut cracker would do" Thus proportionality broadly requires that government action must be no more intrusive than is necessary to meet an important public purpose. However, the greatest advantage of proportionality as a tool of judicial review is its ability to provide objective criteria for analysis.

It is possible to apply this doctrine to the facts of a case through the use of various tests. Lord Diplock even while giving the tripartite classification admits that proportionality in the future would be an additional ground of review. However, today most authors accept proportionality as an additional head of judicial review within the concept of irrationality. Thus, proportionality and Wednesbury unreasonableness is seen as the two aspects of irrationality.

Initially proportionality was only a competitor with Wednesbury unreasonableness but because of the high degree of objectivity associated with proportionality and the vast improvements that the concept has undergone in the last decade and a half, it is seeking to totally replace Wednesbury unreasonableness as the only sub-head of review under the concept of irrationality.

Indian Approach To 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 v. G. Ganayutham. 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 v. Union of India. 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 and 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, 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 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. 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. 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 an 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. 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 and his freedom to assemble. 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 restrain.

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 v. State of U.P. 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.

The next question to be addressed is regarding which model - British or European - is to be adopted in the Indian context. A review of the various judgments of the Supreme Court would show that the Supreme Court has hardly given any consideration to this issue. This is primarily because the Supreme Court has never had a real opportunity to apply the doctrine of proportionality in judicial review of administrative action.

Till now the Supreme Court has been merely stating the legal position of the doctrine of proportionality in the Indian legal system without actually applying the doctrine of proportionality in the sense it is today understood internationally.

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 v. State of Maharashtra. 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 grand 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.

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.

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.

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.

References:
  1. Craig, P.P., Administrative Law (London: Sweet & Maxwell, 1994).
  2. HWR Wade and CF Forsyth, Administrative Law (Oxford: Oxford University Press, 2004).
  3. John Alder, General principles of Constitutional Law and Administrative Law, (Hampshire: Palgrave Macmillan, 2002).
  4. Justice C.K. Thakkar, Lectures on Administrative Law, (Lucknow: Eastern Book Company, 2003).
  5. Allan T.R.S., Human Rights and Judicial Review: A Critique of "Due Deference", (2006) 65 (3) C.L.J 671.
  6. Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 (1) C.L.J.174.
  7. Justice Anand Byrareddy, Proportionality vis--vis irrationality in administrative law, (2008) 7 SCC J-29.
  8. Mark Elliott, The Human Rights Act, 1998 and the Standard of Substantive Review, (2001) 60 (2) C.L.J. 301.
  9. Paul Craig, The Courts, The Human Rights Act and Judicial Review, (2001) 117 L.Q.R. 589

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