the evolving concept of the doctrine of ...shodhganga.inflibnet.ac.in/bitstream/10603/49259/1...the...

THE EVOLVING CONCEPTDOCTRINE OF PROPORTI

ADMINISTRATIVE PROCE

University of Lucknow, Lucknow

Doctor of Philosophy (Ph.D.) in Law

Supervisor Dr. R.K. Verma Associate Professor Faculty of Law University of Lucknow Lucknow

UNIVERSITY OF LUCKNOW

(i)

THE EVOLVING CONCEPT DOCTRINE OF PROPORTI ONALITY IN

ADMINISTRATIVE PROCE

Thesis submitted to the

University of Lucknow, Lucknowfor the Award of Degree of


Dr. R.K. Verma Swatantra Sin

Associate Professor Enrolment No: LL/043/15

University of Lucknow

FACULTY OF LAW UNIVERSITY OF LUCKNOW

LUCKNOW May, 2015

OF THE ONALITY IN

ADMINISTRATIVE PROCE SS

University of Lucknow, Lucknow


By Swatantra Singh Rawat

Enrolment No: LL/043/15

UNIVERSITY OF LUCKNO

WHEREAS,

Under clause 7.2 read wi

governing Ph.D. Degree known as University of Lucknow Ph.D.

Ordinance, 2011, a candidate is required to write a

approved by Departmental Research C

through the Dean, Faculty of Law for the Degree of Doctor of Philosophy

(Ph.D.) in Law of the University of Lucknow, Lucknow.

AND WHEREAS,

Mr. Swatantra Singh Rawat

topic "The Evolving Concept of the Doctrine of Proportionality in

Administrative Process"

Law of the University of Lucknow, Lucknow.

NOW, THEREUPON,

Mr. Swatantra Singh Rawat

being forwarded to the Registrar, University of Lucknow, Luc

necessary action.

Dated:

May, 2015

(ii)

UNIVERSITY OF LUCKNO W, LUCKNOW

Forwarding Certificate

Under clause 7.2 read with clause 7.4, 7.5 and 7.6 of the Ordinance


rdinance, 2011, a candidate is required to write a Thesis on the title

roved by Departmental Research Committee and the Faculty Board

an, Faculty of Law for the Degree of Doctor of Philosophy

(Ph.D.) in Law of the University of Lucknow, Lucknow.

Mr. Swatantra Singh Rawat has been permitted to write a Thesis on

The Evolving Concept of the Doctrine of Proportionality in

Administrative Process" for degree of Doctor of Philosophy (Ph.D.) in


NOW, THEREUPON,

Mr. Swatantra Singh Rawat has submitted the said

being forwarded to the Registrar, University of Lucknow, Luc

(Prof. R.R. Lyall)Head & Dean

Faculty of Law,University

Lucknow

W, LUCKNOW

th clause 7.4, 7.5 and 7.6 of the Ordinance


hesis on the title

ommittee and the Faculty Board

an, Faculty of Law for the Degree of Doctor of Philosophy

has been permitted to write a Thesis on

The Evolving Concept of the Doctrine of Proportionality in

hilosophy (Ph.D.) in

has submitted the said Thesis which is

being forwarded to the Registrar, University of Lucknow, Lucknow for

(Prof. R.R. Lyall) Head & Dean

Faculty of Law, University of Lucknow,

Lucknow-226031

Dr. R.K. Verma LL.M., LL.D. Associate Professor

CERTIFICATE OF THE SUPERVISOR

This is to certify that the thesis entitled

DOCTRINE OF PROPORTI

is the original work of Mr. S

approve its submission for the award of degree


Dated:

May, 2015

(iii)

Dr. R.K. Verma

Associate Professor


that the thesis entitled "THE EVOLVING CONCEPT

DOCTRINE OF PROPORTI ONALITY IN ADMINISTR

is the original work of Mr. Swatantra Singh Rawat carried under my supervision.

sion for the award of degree of Doctor of


(Dr. R.K. Verma)

FACULTY OF LAWUniversity of Lucknow

Second Campus, Sitapur Road,


THE EVOLVING CONCEPT OF THE

ONALITY IN ADMINISTR ATIVE PROCESS"

carried under my supervision. I

of Doctor of Philosophy (Ph.D.) in

(Dr. R.K. Verma)

FACULTY OF LAW University of Lucknow

Second Campus, Sitapur Road, Lucknow-226 031

(iv)

Certificate of Originality

I certify that the thesis entitled "THE EVOLVING CONCEPT OF THE

DOCTRINE OF PROPORTIONALITY IN ADMINISTRATIVE

PROCESS" submitted to the University of Lucknow, Lucknow for the

award of the degree of Doctor of Philosophy (Ph.D.) in Law is an original

work carried out by me.

The matter embodied in the thesis is authentic and genuine work done by

me.

Dated:

May, 2015 (Swatantra Singh Rawat) Research Scholar Faculty of Law,

University of Lucknow, Lucknow-226031

Enrolment No. : LL/043/15

(v)

Acknowledgement

I express my heartfelt gratitude to my revered teacher, mentor,

philosopher cum guide, Dr. R.K.Verma, Associate Professor, Faculty of

Law, University of Lucknow for his valuable guidance without which the

completion of this research works would have been a dream. My success

behind this creative academic achievement is the result of the constant

support and encouragement given by my esteemed Sir, Dr. Verma. It

would have been extremely difficult on my part to author this manuscript

without his guidance. I am enormously grateful to him for granting me

his concurrence to guide my research project. I am thankful to him for

keeping confidence on my academic effort for the materialization of this

research project.

I am indebted to esteemed Prof. R.R.Lyall, Head & Dean, Faculty of

Law, University of Lucknow, Prof. Omnarayan Mishra, Ex- Head &

Dean and Dr. C.P.Singh for their time to time elderly suggestions as well

as advices for the sake of my academic pursuit.

Behind my authorship of this thesis the assistance and co-operation of

R.U. Singh Law Library staffs of University of Lucknow, ILI Library,

New Delhi, ISIL Library, New Delhi Library of Banaras Hindu

University, D.D.U. Gorakhpur University, Gorakhpur and of High Court,

Lucknow are in no way less than anything.

I owe my thanks to my colleague, Mr. Surendra Kumar, Asstt. Professor,

Govt. J.Yoganandam Chhattisgarh College, Raipur, Chhattisgarh for his

unforgettable yeoman’s service for my this academic achievement. I owe

my sincere thanks to my friend Mr. Dharmendra Kumar Yadav, Research

(vi)

Scholar, Faculty of Law, University of Lucknow, Mr. Shailja Kant

Mishra, Mr. Shashi Kant Verma and Mr. Manish Kumar Jaiswal for his

never-ending support in completion of this work.

For flawless typography, Sunil Kumar Pandey, Jai Prakash Shukla,

Sarvesh Rawat, Piyush Rawat and Puneet Chopra’s much effortsome

endeavor is really extollable and I am thankful to him as well.

It is beyond limit to thank my elder brother Shri Vijay Kumar Rawat

(Senior Advocate, Civil Court, Gorakhpur) who inspired me again and

again for early completion of this reaserch.

I owe my sincere gratitude to my beloved parents, father & mother in

law, brothers & sisters, wife and my daughter for their active co-

operation devoid of domestic interruption for the completion of this

thesis. At last I render my thanks to all my dear ones who have extended

their moral support to complete this research project.

Swatantra Singh Rawat

(vii)

Abbreviation

A.C. : Appeal Cases

A.I.R. : All India Report

All. E.R. : All England Report

Art : Article

C.J. : Common Journals

C.L.Q. : Comparative Law Quarterly

Cr. P. C. : Criminal Procedure Code

Cri. : Criminal

Cri. L.J. : Criminal Law Journal

E.C. : European Commission

E.C.H.R. : European Court of Human Rights

E.C.R.I. : European Commission against Racism and

Intolerence

E.C.J. : European Court of Justice

E.H.R.C. : European Human Rights Convention

E.U. : European Union

ed. : Edition

H.R.A. : Human Rights Act

I.A. : Indian Appeals

i.e. : that is

I.H.L. : International Humanitarian Law

Ibid : Ibidem (with same place)

Id. : Iden (withsame)

J. : Justice

J.I.L.I. : Journal of Indian Law Institute

K.B. : King‘s Bench

(viii)

L.J. : Lords Journals

p. : Page

Q.B. : Queen‘s Bench

Rev. : Revised

S.C. : Supreme Court

S.C.C. : Supreme Court Cases

S.C.J. : Supreme Court Journal

Supra : above

U.S. : United States

v : Versus

vol. : Volume

(ix)

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159

Abrahim Vazir v Bombay (1954) S.C.R. 933. 36 Ajay Hasia v Khalid Mujib Sehravandi (1981) 1 S.C.C. 722 205 Ameerumnissa Begum v Mahboob Begum 1953 S.C.R. 404. 205 Anisminic Ltd. v Foreign Compensation Commission (1969) 2 A.C. 147.

103

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6, 66, 67, 170, 203

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140

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46

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195, 197

Board of Trustees of the University of Alabama v Garrett 531 U.S. 356 (2001).

168

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190

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79

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(x)

Shyam Kumar and Others 2010 (6) S.C.C. 614. Chandeshwar Prasad v State of Bihar and Others A.I.R. 1987 Pat 208.

54

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198, 251

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211

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12, 99

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208

Collector Singh v L.M.L. Limited. Kanpur Civil Appeal No. 10125 of 2014

200

Commissioner of Police and Others v Syed Hussain (2003) 3 S.C.C. 173

10

Commissioner of Police and Others v Syed Hussain A.I.R. 2006 S.C. 1246.

190, 250

Council of Civil Service Union v Minister for Civil Service (1983) U.K.H.L.6.

59, 138, 143

Council of Civil Services Union v Minister for Civil Services, (1984) 3 All. E.R. 935.

122

Council of Civil Services Union v Minister for the Civil Service (1985) A.C. 374.

7, 11, 170, 172, 203, 239, 248

Council of the City of the Stoke - on - Trent and Norwich City Council v B & Q plc Case No. 169/91 (1991) 1 A.C. 49.

129

D. C.Wadhwa v State of Bihar A.I.R. 1987 S.C. 579. 52 Damoh Pamna Sagar Rural Regional Bank v Munna Lal Jain (2005) 10 S.C.C. 84

249

de Freitas v Permanent Secretary of Minister of Agriculture, Fisheries, Lands and Housing (1999) 1 A.C. 69.

175

De Freitas v Permanent Secretary of Ministry of Agriculture Fisheries Land and Housing (1998) 3 W.L.R. 675.

144

Delhi Transport Corporation v D.T.C. Mazdoor Congress, A.I.R. 1991 S.C. 101.

97

Deo man Uppadhyay v State, A.I.R. 1960 All. 1, 94 Deputy Commissioner, Kendriya Vidyalaya Sangathan and Others v J. Hussain 2013 (10) S.C.C. 106.

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Dev Singh v Punjab Tourism Development Corporation (2003) 8 S.C.C. 9

249

(xi)

Dhulabhai and Others v State of Madhya Pradesh and Others A.I.R. 1969 S.C. 78.

106

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230

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136

Dwarka Das Bhatia v The State of Jammu and Kashmir A.I.R. 1957 S.C. 164.

49

Dwarka Das Marfatia v Board of Trustees of Port of Bombay (1989) 3 S.C.C. 293.

97

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197, 203

Express Newspapers Pvt. Ltd. & Others v Union of India 1985 S.C.R. Supl. (3) 382.

42

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155

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107

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107

Florida Prepaid Post Secondary Education Expense Board v College Saving Bank 527 U.S. 627 (1999).

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G. Sadanandan v State of Kerala Writ Petition No. 136 of 1965 41 Government of India v George Philip A.I.R. 2007 S.C. 322 247

Gullapalli Nageshwar Rao and Others v Andhra Pradesh State Road Transport Corporation 1959 S.C.R. Supl. (1) 319.

94

Hall v Shoreham – by – sea Urban District Council (1964) 1 W.L.R. 240.

143

Handyride v United Kingdom, Case No. 5493/72 (1976) E.C.H.R. 5, 136 Handyside v United Kingdom (1976) I.E.H.R.R. 737. 127 Harman v Butt (1944) K.B. 491. 65 Hentrich v France (1994) 18 E.H.R.R. 440, 162,163 Hertel v Switzerland (1998) 28 E.H.R.R. 534. 159

(xii)

Hind Construction and Engineering Corp Ltd. v Their Workmen A.I.R. 1965 S.C. 1917.

195

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196

Howard-Flanders v Maldon Corporation (1926) 135 L.J. 6. 63 Huang and Others v Secretary of State for Home Department (2005) 3 All E.R. 435,

189, 191

Huang v Secretary of State for Home Department, 2007 U.K.H.L. 11. 128,145 Hylton v United States 17.3 U.S (3 Dall) 171 (1796). 89 In re Norrington Bridley v Partridge (1879) L.R. 13 CD. 659. 23 In Re The Special Court Bill 1978 (1979) 1 S.C.C. 380. 34 Indian Airlines Ltd. v Prabha Devi Kanan (2006) 11 S.C.C. 67. 190,192 International Handelsgesellschaft v Einfuhr-und Vorratsstelle Getreide (1970) E.C.H.R. 1125, Case 11/70.

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40

James and others v United Kingdom (1986) 8 E.H.R.R. 123 135, 162 Jasbir Kaur and Others v Union of India and Others A.I.R. 2004 S.C. 293,

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Jindal Steel and Power Limited and another v Rail Vikas Nigam Limited W.P. (C) 5179/2013

11, 79

Jitendra Kumar and Others v State of Haryana and Others (2008) 2 S.C.C. 161.

10, 121, 191

K.L. Trading Company Pvt. Ltd. v State of Meghalaya and Others A.I.R. 1996 Gan 17

55

K.M. Shanmugam v The S.R.V.S. (P) Ltd and Others A.I.R. 1963. S.C. 1626.

50

Kimel v Florida Board of Regents 528 U.S. 62 (2000). 168 Kshetra Pal Singh v N.C.T. Delhi and Others W.P. (C) No. 631/1997

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L. Chandra Kumar v Union of India (1997) 3 S.C.C. 261 (292). 84, 95 Laxmi Khandsari etc. v State of Uttar Pradesh and Others (1981) S.C.R. (3) 92.

185

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(xiii)

2014, arising out of S.L.P. (Civil) No. 39113 of 2013, Lithgow and others v United Kingdom (1982) 8 E.H.R.R. 329 163, 216 Lonrho plc v Secretary of State for Trade and Industry 1989 (2) All.E.R.609

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37

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(xiv)

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(xv)

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(xvi)

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47

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215

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161

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125

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210

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55

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48

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44

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51

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156

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203

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7, 187

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THE EVOLVING CONCEPT OF THE DOCTRINE OF PROPORTIONALITY IN ADMINISTRATIVE

PROCESS

Contents Page No.

Forwarding Certificate Certificate of the Supervisor Certificate of Originality Acknowledgement Abbreviations List of Cases

ii iii iv

v-vi vii-viii ix-xii

CHAPTER-I

INTRODUCTION 1-19 The Perspective

The Framework of Study

CHAPTER-II

ADMINISTRATIVE DISCRETION 20-57

1 Meaning 21 2 Development of Administrative Discretion 24

3 Need of Administrative Discretion 26

4 Sources of Administrative Discretion 29

5 Administrative Discretion and Indian Constitution 32 (A) Limitation on grant of discretionary power and Article 14

(B) Limitation on Grant of Discretionary Power and Article 19 32 34

6 Abuse of Administrative Discretion 37 (A) Non-Application of Mind

(B) Abuse of Discretion (i) Mala Fide (ii) Improper Purpose (iii) Irrelevant Considerations (iv) Mixed Consideration (v) Leaving out Relevant Considerations (vi) Colourable Exercise of Power (vii) Judicial Discretion (viii) Unreasonableness

39 39 40 43 45 48 49 51 53 53

CHAPTER-III

WEDNESBURY PRINCIPLE OF UNREASONABLENESS 58-81 1 Position prior to Wednesbury Principle 59

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(A) Early Decisions on Unreasonableness (B) Unreasonableness – Developments in the 20th Century (C) Cases referred in the Wednesbury Judgement

59 62 64

2 Wednesbury case and Principle 66 (A) Judgement and Principle

(B) Summary of the Case (C) Criticism of Wednesbury principle

68 70 71

3 Wednesbury Unreasonableness in India 76

CHAPTER-IV

JUDICIAL REVIEW 82-108 1 Meaning 83 2 Doctrine of Judicial Review 85

3 Position in India 91

4 Limits of Judicial Review 97 5 Judicial review and Ouster Clause 101

CHAPTER-V

GENERAL PRINCIPLE OF PROPORTIONALITY 109-119

1 Proportionality in Antiquity 112 2 Proportionality before Adoption of U.N. Charter in 1945 113 3 Proportionality in Modern Era: Jus De Bellum and IHL 116

CHAPTER-VI

DOCTRINE OF PROPORTIONALITY 120-151

1 Concept 121 2 Proportionality Test 123 (A) Legitimate Goal or the First Stage

(B) Suitability or the Second Stage (C) Necessity or the Third Stage (D) The Balancing Test or the Fourth Stage

123 125 126 129

3 Importance of Doctrine of Proportionality 131 4 Margin of Appreciation and Proportionality 134 5 Status of Proportionality 138 6 Proportionality, Wednesbury and Merit Based Review 143

CHAPTER-VII

PROPORTIONALITY AND INTERNATIONAL PERSPECTIVE

152-183

1 Proportionality in EU (European Union) Law 153 2 Under Human Rights 158 3 Proportionality in U.S.A. 166 4 Proportionality in United Kingdom 170 5 Proportionality in Canada 177

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CHAPTER-VIII

PROPORTIONALITY AND JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION IN INDIA

184-230

1 Decline of Wednesbury Principle in India 187 2 Application of Proportionality in India 193 3 Judiciary on Proportionality in Administrative Discretion in

India 201

4 Application of Proportionality: Pros and Cons 217

CHAPTER-IX

CONCLUSION AND SUGGESTIONS

231-254

BIBLIOGRAPHY i-xi

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CHAPTER-I

INTRODUCTION

The Perspective The Framework of Study

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CHAPTER-I

INTRODUCTION

The Perspective

The society has become complex and governmental functions have

increased. Due to the intricate and complex system of government and the

vast expansion of social legislation an unprecedented growth of the

administrative process has taken place. Today the modern state provides

elaborate social services and undertakes the regulations of the daily

business of mankind. Welfare schemes are planned and introduced by the

Government to meet these new requirements. The welfare theory of state

has replaced the laissez-faire theory of state and has necessitated that

substantial powers of the legislature to be confessed on administrative

agencies. The welfare state primarily endeavours to invest the

administrator with vast and wide discretionary powers to fulfill social

needs through the accomplishment of legislative policies. The central

issue of administrative justice is the reconciliation of discretion of

administrative officials with the liberty of individuals.

An administrative discretion is a statutory power conferred on a public

authority to make a choice out of available alternatives on considerations

which are either not feasible or are not possible to be declared

beforehand. It is an element governing a non-personal exercise of that

choice being the statutory purpose.

However, the exercise of discretionary power must be reasonable and not

arbitrary. The authority on whom discretionary powers are vested can be

compelled to exercise the discretion but not to exercise in a particular

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manner. In the purported exercise of discretion the authority must not do

what is forbidden to do or has not been authorised to do. It must act in

good faith, must have regard to relevant considerations and must not seek

to promote purposes alien to the letter or to the spirit of legislation that

gives it power to act. Long back in Sharp v Wakefield [L.R. (1891) A.C.

173], Lord Halsbury had observed that discretion means when it is said

that something is to be done within the discretion of the authorities and

that something is to be done according to the rules of reason and justice,

not according to private opinion but according to law and not humour. It

is not to be arbitrary, vague and fanciful but legal and regular.

The problems of administrative discretion are complex. It is true that in

any intensive form of government, the government cannot function

without the exercise of some discretion but it is equally true that absolute

discretion is a ruthless master. It is more destructive of freedom than any

of man’s intervention.

The vesting of power of discretion in the administrative authorities

ensures that it has sufficient autonomy and freedom in performing its

activities. The exercise of this discretion can be violated in two ways by

the authority. Firstly, the administrative authority might fail to exercise

discretion vested in it. Secondly, the authorities might exercise this

discretion incorrectly with improper motives, bias or under influence of

another body. The latter amounts to abuse of discretion.

There are several forms of abuse of discretion. The authority may

exercise its powers for a purpose different from the one for which the

power was conferred or for an improper purpose or acting in bad faith or

taking into account irrelevant considerations etc. The various forms of

abuse of discretion may even overlap. Example of it can be where red

haired teacher was dismissed because she had red hairs. In one sense it is

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unreasonable, in another it takes into account irrelevant or extraneous

considerations. It is improper exercise of power and might be described

as being done in bad faith or colourable exercise of power. In fact, all

these things ‘overlap to a great extent’ and ‘run into one another’.

The Supreme Court of India in Sita Ram Sugar Co. Ltd. v Union of

India [(1990) 3 S.C.C. 223] has stated that a repository of powers acts

ultra-vires either when he acts in excess of his power in the narrow sense

or he abuses his power by acting in bad faith or for an inadmissible

purpose or on irrelevant grounds or without regard to relevant

considerations or with gross unreasonableness. The true position is that

any act of the repository of power whether legislative or administrative or

quasi-judicial is open to challenge. If it is in conflict with the constitution

or the governing Act or the general principles of law of the land or it is so

arbitrary or unreasonable that no fair minded authority could even have

made it.

An administrative body can itself keep a check upon its arbitrary acts by

giving reasons in its reports and orders. In order to successfully defend its

actions, an administrative body should give a reasoned order in cases of

exercise of discretion. By giving a reasoned or speaking order, the

authority is able to put forward the various grounds that were taken into

consideration during the exercise of its discretion. But this rarely happens

because where there are powers, there is its misuse too. Thus the best way

to check the abuse of discretionary powers is by way of judicial control.

The courts have been provided with the power to review by the

Constitution itself like in India or in the U.S.A. Where there is no written

Constitution, the courts have developed their own criteria’s and structure

for such a review as in United Kingdom. The courts can control the abuse

of discretion at two stages. In the first stage, the courts exercise control at

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the stage of delegation of discretionary powers to the administration by

adjudicating upon the constitutionality of the law under which such

powers are delegated with reference to fundamental rights. The statute

conferring the power of discretion upon the government body needs to be

constitutional. If the parent statute is ultra-vires to the constitution, it

cannot confer valid discretionary powers upon the administration. In

India for example every law has to pass the tests of validity upon the

touch stone of Article 14 and 19 of the Constitution of India.

A recent example of view is that the Supreme Court has struck down the

Section 66-A of the Information Technology Act,2000 which made

‘posting’, annoying and ‘grossly offensive’ posts on social media a

criminal offence carrying a jail sentence of up to 3 years. The double

bench of Justice Chelameswar and Rohinton Nariman said that we hold

this section unconstitutional on the ground that it takes within its sweep

protected speech that is innocent in nature. It is liable to have a chilling

effect on free speech and therefore has to be struck down. The Supreme

Court said that action can be initiated against the sites under other laws

only on the order of a Court. Thus removing administrative discretion has

been constantly misused to suit ruling party politicians.

The second stage of control by courts is at the stage of exercise of

discretion and in this regard courts have developed various formulations

like non-exercise of discretion, acting in bad faith, considering irrelevant

factors unreasonableness etc.

The courts in England were the first to establish that no discretion can be

unfettered and devoid of control. In the matter of Padfield v Minister of

Agriculture, Fisheries and Food [(1968) A.C. 997] the Court held that

valid use of discretion must be aimed at promoting the policy and

objective of the statute with which the authority itself was created.

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Similar view was taken in R v Oxford ex-parte Levey [(1987) 151 L.G.

Rev. 371].

Judicial control of administrative discretion by way of judicial review is

the sole of Constitutions across the world. Even countries not having

written constitutions have adopted it. It is the exercise of the courts

inherent powers to resolve whether an action is lawful or not. It holds the

balance of power between individuals and the government and

legitimizes the application of administrative sanctions. The grant of

discretion by the country’s legislature is well intended and bonafide but

still knowing the darker side of this power, the judiciary has been trying

to circumvent its misuse and abuse.

In India judicial review has a firm base. The framers of our Constitution

had not only believed that limited government was necessary for

democracy but also enshrined the philosophy in our Constitution. In this

process it principally maneuvres as a check upon the administrative

branch of the government and the agencies operating there under.

Without judicial review administrative action and discretion would be

limited only by agency, self-discipline, executive direction or legislative

and public pressure. Thus the control acts as a limitation on nasty abuse

of powers by the legislature and the executive.

Though the powers of judicial review is granted by the Constitution to the

courts for control of abuse of administrative discretion as also for

reviewing of decisions of tribunals created by the statute for adjudication

of disputes regarding administrative actions yet the Constitution does not

specify as to what methods or principles have to be applied in such cases

by the courts. The principles and the methodologies have been created by

the courts themselves through the review of various cases based on the

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general principles embedded in the common law itself like natural justice

and fairness etc.

Slowly the principles of judicial review were developed by the courts all

over the world. While in U.S.A. it developed from Marbury v Maddison

[5 U.S. 137 (1803)] in which it was held that it is emphatically the

province and duty of the judicial department to say what law is and if two

laws conflict with each other the court must decide on the operation of

each and must determine which of these conflicting rules govern the case.

The primary object of this method is to subject the administrative

authorities to judicial control while executing to will of the state.

In U.K., the principle to establish whether an administrative decision or

action is irrational or unreasonable was subject to debate but a definitive

answer to this was laid down in 1947 by the House of Lords in case of

Associated Provincial Picture Houses v Wednesbury Corporation

[(1948) 1 K.B. 223] by Lord Greene M.R. This case laid down the

famous Wednesbury Principle or Concept of Wednesbury

Unreasonableness which came to play a central part in public law and

continues to do so even today. The Wednesbury Council had taken upon

itself to decree by a license condition that children under 15 years of age

should not be allowed to attend the local government cinema on Sunday’s

even if accompanied by parents and whatever is the nature of cinema.

That was in spite of the fact that Parliament in the Sunday

Entertainment’s Act, 1932 had authorised cinema to open on Sunday’s

not withstanding anything in any enactment relating to Sunday

observance. The council had general powers to impose conditions on

cinema license.

The Cinema’s case failed in the Court of Appeal. In a somewhat rambling

judgement Lord Greene M.R. explained why he thought that the

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arguments are hopeless. It was based on a misconception of the powers of

the court to intervene in such decision. Unreasonableness as a ground of

review meant that the authority must direct itself properly in law calling

to its attention matters and it must not reach a decision so unreasonable

that no reasonable authority could ever come to it. It required “something

overwhelming”. The Wednesbury Council was far from high threshold.

He said that no one at this time of day could say that the well-being and

the physical and moral health of children is not a matter which a local

authority can properly have in mind .

The high point of the Wednesbury test can be found in the case of

Council for Civil Services Union v Minister for Civil Services [(1985)

A.C. 374]. Wednesbury unreasonableness became the second in the

triology of illegality, irrationality and procedural impropriety. The subject

matter was rather more weighty than Wednesbury National Security as a

reason for removing without prior consultation with the trade rights of

workers of the government’s GCHQ Communications Centre.

Lord Diplock held that by irrationality I mean what can now be succinctly

referred to as Wednesbury unreasonableness. It applies to a decision

which is so outrageous in its defiance of logic or of accepted moral

standards that no sensible person who had applied his mind to the

question to be decided could have arrived at it.

In India too, the Principle of Wednesbury was readily adopted and many

cases like Y. Mehaboob Sheriff and Sons v Mysore State Transport

Authority (AIR 1960 S.C. 321) , M.A. Rasheed v State of Kerala[1975

S.C.R. (2) 96] , Rohtas Industries v S.D. Agarwal(AIR 1969 S.C. 707.)

as also in Jasbir Kaur v Union of India[S.L.P. (C) No. 12904-12909]

etc.

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The wednesbury test however in the following years with passage of time

was made subject to criticism. Its basic postulate of reasonability was

brought into question for being insufficient in R (Association of British

Civilian Internees: Far East Region) v secretary of State for Defence

[(2003) Q.B. 1397] and for being impractical test to judge validity of

administrative actions, in R (Daly) v Secretary of State for Home

Department[(2006) U.K.H.L. 26].

Thus the court started developing a new test for judicial review of

administrative action which came up for application although with lots of

opposition, which was the doctrine of proportionality. This was the test

for judicial review of administrative actions on a more comprehensive

basis. The doctrine of proportionality checks the important link between

administrative objective to be achieved and the measures adopted by the

administration to achieve it. The Doctrine was defined precisely in R

(Daly) case by the House of Lords as whether -

- the administrative objective is sufficiently important to justify

limiting a fundamental right;

- the measures designed to meet the legislative objectives are rationally

connected to it; and

- the means used to impair the rights or freedom are no more than is

necessary to accomplish the objective.

Initially the courts were hesitant to accept this doctrine as was evident in

the case of R v Secretary of State for the Home Department ex-parte

Brind [1991 (1) A.C. 696] wherein the court held that the Wednesbury

reasonableness and proportionality are two different tests. The test of

proportionality is not needed in the English legal system, the Wednesbury

test provide a sufficiency. Initially the rejection of the proportionality

doctrine was based on the thinking that the traditional Wednesbury

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approach represents a correct balance between judicial intervention and

agency autonomy as well as the thinking that the proportionality test

strikes a different and therefore incorrect balance between these two

factors such that it would destroy the distinction between appeal and

review.

The hesitation continued for a few years till the Human Rights Act, 1998

came into force, which emphasized on the requirement of a more in depth

test of review of administrative acts followed by a series of cases

adopting the new doctrine as a test for review. In R (Alconbury

Development Ltd) v Secretary of State for the Environment, Transport

and the Regions [(2001)2 All E.R.929] the court accepted the new

doctrine as an integral part of English legal system irrespective of the

provisions of Human Rights Act, 1998. The court even went to the extent

of placing the doctrine of proportionality as a replacement of Wednesbury

principle. In its words, we have difficulty in seeing what justification

there now is for retaining Wednesbury test but we consider that it is not

for this court to perform burial rights. The continuing existence of the

Wednesbury test has been acknowledged by House of Lords on more

than one occasions. A survey of the various judgments of the House of

Lords and Courts of Appeal etc. would reveal for the time being both the

test continued to co-exist.

In India, the principle of proportionality was embedded in the

Constitution itself under Article 14 and Article 19 of the Constitution of

India which contemplated rights and freedoms such as equality before

law, right to freedom of speech, assembly and formulation of unions etc.

If any restriction was to be placed on such freedoms, only reasonable

restrictions under Article 19 (2) to (6) could be placed and moreover the

power of judicial review of state action or on restriction placed on

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fundamental right was also granted by the Constitution. Thus the doctrine

of proportionality in India has been adopted since 1950 itself though the

word ‘proportionality’ was not expressly expressed.

Thus in Chintaman Rao v State of M.P.( 1959 AIR 118) the Supreme

Court held that ‘reasonable restriction’ connotes that the limitation

imposed on a person in enjoyment of the right should not be arbitrary or

of an excessive nature beyond what is required in the interest of the

public and that legislation which arbitrarily or excessively invades the

rights cannot be said to contain the quality of reasonableness and unless it

strikes a proper balance between n the freedom guaranteed and the social

control permitted, it must be held to be wanting in that quality. Similarly

in State of Madras v V.G. Row ( 1952 AIR 196) as well as in E.P.

Royappa v State of Tamil Nadu (AIR 1974 S.C. 555) it was stated by

Supreme Court that if the administrative action is arbitrary, it could be

struck down under the constitutional provisions. The nature of rights

alleged to have been infringed. The underlying purpose of the restriction

imposed, the extent and urgency of the evil sought to be remedied thereby

and the disproportion of the imposition should be taken into account.

Thus even as the House of Lords began to make cautions and overtures

towards the doctrine of proportionality in cases such as ‘Ex-parte Daly’,

[(2001) 2 W.L.R. 1622] the Indian Supreme Court wholeheartedly

adopted the doctrine. In cases such as Commissioner of Police v Syed

Hussain [(2003) 3 S.C.C. 173] (relating to removal a police officer from

service), State of M.P. v Hazarilal [(2008) 3 S.C.C. 273] (on

disproportionate criminal punishments), Teri Oat Estate v Union

Territory of Chandigarh [(2002) 2 S.C.C. 130] (on the proportionality of

forfeiture of the entire deposit for a minor infraction), Moni Shankar v

Union of India [(2008) 3 S.C.C. 484] and Jitendra Kumar v State of

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Haryana [(2008) 2 S.C.C. 161] (on the standard of review applicable

with respect to the government’s appointment of officers), the Supreme

Court has applied proportionality as a standard of review thereby

advancing the doctrine further than the House of Lords itself is willing to

do.

It is a curious coincidence that in R v Secretary of State for the Home

Department ex-parte Brind [(1991) 1 A.C. 696] a case in which House of

Lords refused to apply the doctrine of proportionality directly in domestic

law. In this case the Council for the Appellants cited an Indian Supreme

Court decision of Ranjit Thakur v Union of India [ (1987) 4 S.C.C. 61]

in support of his arguments that the proper standard of review was

proportionality. Thakur’s case in turn cited certain observations of Lord

Diplock in Council of Civil Services Union v Minister for the Civil

Services [(1985) A.C. 374] and then applied proportionality.

In a recent judgement by High Court of Delhi at New Delhi delivered on

1-11-2013 in Jindal Steel and Power Limited and another v Rail Vikas

Nigam Limited (W.P. (C) 5179/2013 and C.M. No. 11646/2013 and W.P.

C 5189/2013 and C.M. No. 11649/2013.) in which petitioners had

challenged clauses 6.2.2 (Technical Experience) and 6.2.3 (Production

Capacity) of the two invitations to tender issue on 2-7-2013 as being

arbitrary unlawful and violative of Articles 14 and 19 of the Constitution

of India. The court relying on the Wednesbury principle of

unreasonableness decided the case and remarked that it is not for the

courts to supplant their own views for that of the concerned agency of the

state. The scope of judicial review is limited to examine whether the

decision of the administrative authorities are arbitrary and unreasonable

so as to fail the test of unreasonableness as explained by Lord Green

M.R. in Associated Provisional Picture Houses Limited v Wednesbury

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Corporation [(1948) 1K.B. 223]. The question that has to be asked is

whether the decision of the concerned authority (in this case the

respondent) is so unreasonable that no reasonable person could possibly

arrive at such a decision.

Further in the case of Chief Constable of North Wales Police v Evans

[(1982) 3 All.E.R. 141] Lord Brightman remarked that judicial review as

the words imply is not an appeal from a decision but a review of the

manner in which the decision was made. Judicial review is concerned not

with the decision but with the decision-making process. Unless that

restriction on the power of the court is observed the court in my view,

under the guise of preventing the abuse of power, is itself guilty of

usurping power.

Proportionality as a principle has not been included in any legislation or

statute and no definition of it has been provided under any law. This

principle has been developed slowly by the judiciary for proper control of

unfair, unreasonable and arbitrary exercise of discretion by the legislative

and administrative authorities, and has been developed by way of judicial

review. It has now been recognized as an inseparable part of the domestic

and community law as well as the human rights law.

In context of proportionality it would be appropriate to mention the latest

case decided by the European Court of Human Rights is of S.A.S. v

France [(2014) E.C.H.R. 695]. In 2010, France banned the wearing of

Naquabs and Burkas and other clothing which conceals ones face in

public places. This law was followed by a resolution of the National

Assembly which considered that the wearing of full veil in public is

‘incompatible with the values of French Republic’. The violation of this

law was made punishable with a fine at the rate applying to second class

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petty offences up to 150 Euro and the obligation to follows a citizenship

course.

A devotee Sunni Muslim Woman was born in Pakistan with French

citizenship and was living in France, she requested the court to have her

name not disclosed. She emphasised that she was wearing the Naquabs

with her free will in accordance with her religious faith, culture and

personal convictions. She also did not wear Naquabs in public places all

the times and was willing to show her face for identity checks and

security reasons at banks and airports but wanted to be able to wear

Naquabs when she choose to do so to feel at inner peace with herself .

There are many cases which have recognised the principle of

proportionality even before the Human Rights Act came into force. The

case of R v Secretary of State for the Home Department Ex-Parte

Simms [(1999) 3 W.L.R. 328] was concerned with two prisoners serving

life sentence for murder having their separate application for leave to

appeal against conviction and was refused by the Court of Appeal. They

continued to protest their innocence. In order to obtain the re-opening of

their case they wished to have oral interviews with journalists who have

taken interest in their cases. Relying on the policy of the Home Secretary

the Governors of the Prisons were only prepared to allow the oral

interviews to take place if the journalists signed written undertakings not

to publish any part of the interviews. The journalist refused to sign the

undertakings. The prisoners sought judicial review of the decision

denying them the right to have oral interviews. They relied on the right to

free speech not in a general way but restricted to very specific context.

The rapid growth of administrative law necessitates the control of

possible abuse of administrative discretion and on this basis principles are

adopted by the courts for controls. The application of proportionality

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principle in administrative law, though has been applied liberally but is

still a debatable issue and has not been fully and finally settled.

As the days pass, the outlook of the courts in England and India as well as

other countries is becoming more and more clear as to its outlook on the

scope of administrative discretion, abuses of discretion by the

administrative authorities and the principles developed for its controls

and the application of these principles by way of judicial review of the

state actions. This study provides the prevailing trends of judicial review

of the administrative actions as well as the development, application and

analysis of principles of proportionality with respect to state action and

the most recent trends of courts in applying the doctrine of

proportionality for control of abuse of administrative discretion.

Importance of the Study

Administrative law is a by-product of intensive form of Government.

During the last decades the role of the government has changed in almost

every country of the world from laissez faire to welfare state. This made

the state to act as not only paternal but also maternal. This has resulted in

the rise of administrative authorities, which act as the state

instrumentalities to implement welfare policies of the Government in

conformity with the constitutional norm.

The administration has acquired powers of adjudication over dispute

between itself and private individual. To enable the administration to

discharge effectively its rule making, adjudication and other discretionary

and regulatory function should be in conformity with Constitutional

obligations.

The role of administrative authorities have taken a new task as a result of

which they have started handling new adjudicatory functions involving

complicated and technical matters. Consequently, they are forced to work

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like a Court or Court's substitute. The resultant shift from administrative

action to quasi judicial one obligates theses authorities to follow judicial

approach and to comply strictly with minimum standard of justice.

One of the important work of administration under the impact of

welfarism is to provide benefit to the people. The laudable objective

cannot be achieved in absence of effective control on the abuse of

powers. The courts have over the period evolved the principle of

proportionality as a patent safeguard against the abuse of administrative

discretion. Just as they can control the substance of what public

authorities do by means of the rules relating to reasonableness, improper

purposes and so forth, hence through principle of proportionality they can

control the procedure by which they do it. Consequently, they impose

particular procedural technique on the government authorities and

statutory bodies and have provided doctrines, which are essential part of

any administration of justice system.

Thus, the doctrine of proportionality is the best instrument to promote the

interest of the individual. It ensures participation of the common man in

administrative process. Further also seeks to legitimate state purposes by

ensuring the government against committing elementary blunders in

administration due to ignorance which may attack its good image as the

just government.

Object of the Study

In the process of changing government's philosophy from laissez faire to

social welfare state, the law making power was delegated to the

executive. The administrative adjudicators are not following the regular

procedure of courts for attaining justice. It has become necessary to

devise a procedure to have control over them and ensure the fairness to

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the individuals. Hence the principle of proportionality applied in

administrative actions.

In this research work, it is intended to present the scope of principle of

proportionality in administrative actions and inquire how for it is used as

an effective tool to have control over administrative actions and prevent

miscarriage of justice. It is also proposed to analyse the various aspects

and dimensions of the principle of proportionality in administrative

actions.

Hypothesis

Considering the object of the study, this research is undertaken on the

basis of following hypothesis i.e., the principle of proportionality in

common law countries otherwise termed as fairness and unreasonableness

in America is used as an effective tool to have control over administrative

actions and prevent the miscarriage of justice in India.

To test this hypothesis, the study has been made on the various aspects of

the principles of proportionality-its history, application in various actions,

rule against bias and fair hearing in administrative function. Moreover, to

have an in-depth analysis, the following issues are framed and answered:

- whether the principle of proportionality is applied in our Indian

Constitution and in any other laws in India?

- to what extent the common law principle of Wednesbury and later

on principle of proportionality are statutorily accepted in India?

- to what extent the judiciary has accepted this principle and in what

form?

- whether the principle of Wednesbury is an equivalent concept to

the principle of proportionality or fall out of it?

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- What is the present position of the principle of proportionality in

India?

Research Methodology

In this research work, mainly the doctrinal research method has been

adopted. The analytical method has been also employed in this work for

tracing out the history and development of the concept of Wednesbury

and doctrine of proportionality. In addition to this comparative method

too is used wherever necessary.

The Framework of the Study

This research problem is identified through review of literature and case

laws. The researcher has made survey of cases involving administrative

discretion, numerous articles and books on the subject.

The provocation for selecting this topic for a detailed analysis is to

present conceptual clarification in respect of the complex issues relating

to administrative discretion. For the purpose of effective study, the thesis

is divided into Nine Chapters.

The First Chapter deals with the introduction. In this chapter the

importance of doctrine of proportionality, the object of the study,

hypothesis, methodology and scheme of the research work are out lined.

This chapter gives the perspective in light of which the detailed analysis

has to be made. It mentions the complicated problems relating to

administrative discretion in general and the principle of proportionality in

specific.

The Second Chapter explains the origin of the concept of administrative

discretion, development, need and sources of administrative discretion.

Apart from this administrative discretion under Indian Constitution and

its applicability and abuse of administrative discretion is also discussed.

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The Third Chapter deals with the conceptual analysis of the Wednesbury

principle of unreasonableness. It highlights the position prior to

Wednesbury principle and present position of Wednesbury case and

principle in common law as well under Indian law. In this Chapter an

attempt is also made to analyse the role of Indian judiciary in

incorporating the principle of Wednesbury.

The Chapter Four deals specifically in brief the concept of judicial

review, judicial review in India, limits of judicial review and judicial

review and ouster clause. It encompasses on the application of rules of

judicial review, duty to act judicially, its distinction in administrative and

quasi-judicial functions. Classification of administrative actions for

applying the principle of judicial review has also been explained.

Moreover, a study has been made on the role of doctrine of judicial

review for legitimate expectation in enlarging the scope of judicial review

in administrative actions.

The Fifth Chapter focuses on general principle of proportionality. It also

concerns about the foundation of law of proportionality and

proportionality in antiquity. In this chapter an attempt has been made to

analyse the position of proportionality before adoption of U.N. Chapter in

1945 and proportionality in modern era.

The Sixth Chapter deals with the concept of proportionality test of

proportionality, importance of this doctrine, margin of appreciation and

proportionality and status of proportionality. It also explains the

comparative analysis of doctrine of proportionality, doctrine of

Wednesbury and merit based review.

The Seventh Chapter highlights the position of proportionality in

International perspective. In this Chapter the concept of proportionality

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has been examined in the light of its application and extension in

European Union, U.S.A., U.K. and Canada.

In Chapter Eight an attempt has been made to analyse the current trend

and future direction of the application of proportionality in judicial

review of administrative discretion in India particularly in context of

fundamental rights and human rights in India as well as in Europe. The

pros and cons of the application of the principle of proportionality has

also been discussed in this Chapter.

In Last Chapter an attempt is made towards giving certain tentative

conclusion and suggestions. In this Chapter an attempt is made to review

the microscopic work for commenting positive remarks. The whole

attempt in this study would give a complete and clear picture of the

concept of proportionality with special reference to the evolving concept

of the doctrine of proportionality in administrative process.

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CHAPTER-II

ADMINISTRATIVE DISCRETION

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1. Meaning

2. Development of Administrative Discretion

3. Need of Administrative Discretion

4. Sources of Administrative Discretion

5. Administrative Discretion and Indian

Constitution

(A) Limitation on grant of discretionary power

and Article 14

(B) Limitation on Grant of Discretionary Power

and Article 19

6. Abuse of Administrative Discretion

(A) Non-Application of Mind

(B) Abuse of Discretion

(i) Mala Fide

(ii) Improper Purpose

(iii) Irrelevant Considerations

(iv) Mixed Consideration

(v) Leaving out Relevant Considerations

(vi) Colourable Exercise of Power

(vii) Judicial Discretion

(viii) Unreasonableness

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CHAPTER-II

ADMINISTRATIVE DISCRETION

From the choices available, one has to select the best choices, which apart

from influencing his own affairs may also affect the affairs of other

people. The exercise of choice is the discretion of every human being,

keeping in mind the effect it may have on the rights and expectations of

others connected with it.

In fact the state has become now a ‘Welfare State’, as such the functions

of the government have increased mani-fold. The administrative

authorities of the state have acquired vast discretionary powers, which

they are left to exercise to their satisfaction. These powers acquired by

the authorities, are though required to be exercised keeping in mind the

liberty, benefits and convenience of those being effected by this exercise

of power, but at times these powers are exercised only to their own

satisfaction without laying down any guidelines or conditions. In other

words administration is supposed to administer or organize or to put into

effect the laws enacted by the legislature. At the same time the power to

legislate is also delegated by the legislature to the administration.

Moreover the administrative tribunals are also supposed to interpret laws.

Assuch, for all practical purpose there is a concentration of all powers in

the hands of administration i.e. legislative, administrative and executive

as well as to a considerable extent judicial, also. For appropriate use of

administrative discretion, it is necessary to understand the actual meaning

of discretion.

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1. Meaning

Discretion, in short implies the power to decide and act as per one’s own

judgement.1 Generally it means the ‘individual choice or judgement’ or

‘power to take free decision’ or ‘even prudence’. The Oxford English

Dictionary describes discretion as ‘the freedom to decide what should be

done in a particular situations’. It can be described as ‘liberty to act at

pleasure’. Thus discretion would not only include what is legal or which

is authorized but may also include arbitrary choices or a good number of

illegalities within its periphery.

In legal parlance it has wide impact which confines the exercise of

freedom to act, squeezes one’s individual choice2. It prescribes discretion

to the authority uponwhom discretion is vested to act in conformity with

statutory provisions and rule of law. As a delegated power under due

process of law, it must follow the dimensions of law so as to prevent

abuse of process of law and miscarriage of justice3. In legal sense the

power of discretion exercised would mean that which is exercised without

any influence of any external source of opinion or judgement and where

one exercises a reasonable and sound mind. Thus discretion would

include finding all the facts, due application of law and reasonableness

and then the decision what is appropriate and just. According to the

definition of justice is the freedom of choice and of action of a judge,

prosecutor or other public official within the defined scope of his or her

responsibilities4. For example in a criminal matter a judge may have wide

1. legal-dictionary.reference.com/browse/discretion. 2. Raman M.S., “ Discretion” , The Cuttack Law Times, Vol.88, 1999, p. 42. 3. Id. at p. 42. 4. legal-dictionary.reference.com/browse/discretion.

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discretion to release the defendant on recognizance of based on the judges

view of the defendant as a flight risk5.

Administrative discretion is the exercise of professional expertise and

judgement as opposed to strict adherence to regulations or statutes in

making a decision or performing official acts or duties6.

A discretionary action is informal and therefore unprotected by the

safeguards inherent in formal procedure. A public official for example

has administrative discretion when he or she has the freedom to make a

choice among potential courses of action. The discretion would be abused

if there is failure to exercise reasonable judgement or discretion and it

might provide a course of action for an unconstitutional invasion of right

protected by the due process of the Constitution.

The person principally responsible for the development of administrative

law in the United States during the early 20th century, Ernst Freund has

defined administrative discretion very aptly. He says that “when we speak

of administrative discretion, we mean that a determination may be

reached in part at least upon the basis of consideration not entirely

susceptible of proof or disapprove - - - it may be practically convenient to

say that discretion include the case in which the ascertainment of fact is

legitimately left to administrative determination”7.

In words of Lord Halsberry, L.C., “discretion means that something is to

be done within the discretion of the authorities that something is to be

done according to the rules of reason and justice not according to private

opinion according to law and not humour, it is to be not arbitrary, vague

5. Websters New World Law Dictionary 2010 by Wiley Publishing Inc.Hoboken,

New Jersey. 6. West Encyclopaedia of American Law, ed.2, 2008, The Gale Group Inc. 7. Freund, Ernst Administrative Powers Over Persons and Property: A

Comparative Survey, p.71, Publisher B. Franklin 1928.

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and fanciful, but legal and regular. And it must be exercised within the

limit to which an honest man competent to the discharge of his office or

to confine himself”8.

Late Dr. A. t. Markose has defined administrative discretion as a statutory

power conferred on a public authority to make a choice, out of available

alternatives, on considerations which are either not feasible or not

possible to be declared beforehand, the element governing a non-personal

exercise of that choice being the statutory purpose. The element of

subjective evaluation is prominent in an administrative discretion and for

the reason it is practically impossible to demonstrate that any particular

exercise of it is wrong. The considerations that guide a discretion are

incapable of proof of disproof and word like ‘adequate, ‘advisable,’

‘Fair,’ expedient,’ equitable’ ‘proper’ etc. which are usually employed by

statues to qualify the administrative determination indicate the

incapability. The outcome of an exercise of discretion is theoretically

impredictable.9

In order to understand administrative discretion it is necessary, to pursue

the golden words of Bacon, V.C in In re NorringtonBridley vPartridge10

the word discretion has been frequently used - - - what does it mean to?

In honest and plain language it means‘do as you like’. A discretion which

is to be actively exercised must be exercised honestly and intelligently,

but the discretion which a man chooses to exercise by remaining supine is

a duty, if it is a duty, of imperfect obligation. If no shadow of suspicion

can be brought against him, if no culpable negligence can be alleged

against him, what liability does a man in whom the discretion is vested in

our incur by doing nothing? Attention should be paid to the meaning of

8. Sharp v Wakefield (1891), 64 L.T. Rep. 180 (1891), Ap. ca. 173. 9. Markose, A.T., Judicial Control of Administrative Action in India, 406 (1956). 10. (1879) L.R. 13 CD. 659.

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the word, and the effect of it in the various cases in which its operation is

called in question.

Thus in short administrative discretion would mean choosing from

various available alternatives with reference to rules of reasons and

justice but not according to personal whims.

2. Development of Administrative Discretion

In the ancient society the functions of the state were very few. The chief

among them were being levying of taxes, protection from foreign

invasions and maintenance of law and order. However this does not mean

that before the 20th century there was no administrative discretion. In

India it can be traced back to well organised administration under the

Maurya’s, Gupta’s and Mughal’s to the administration under the East

India Company. With the passage of time the structure of society changed

considerably and the state had to take several steps for the economic

growth and advancement of people and society as a whole. Since the

modern state became custodian of social welfare, hence directly or

indirectly there was no field in which the interference of state was not

required.

The ruling gospel of the 19th century was ‘Laissez Faire’ which

manifested itself in the theories of self-help and individual enterprise11.

This philosophy envisaged minimum government control, maximum free

enterprise and contractual freedom. The management of social and

economic life was not regarded as responsibility of the government. This

led to human misery and exploitation of the weaker sections by the

stronger such as exploitation of labour by management in industries.Due

to this theory the wealth became concentrated only in few hands. This

approach and condition forced the state to take active interest in 11. http//permin.gov.in, assessed on 24-11-2014.

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improving the conditions. Slowly the state assumed a positive role and

the concept of social welfare state emerged putting emphasis on role of

state as a generation of socio-economic regeneration and welfare of

people12.

As well as India is concerned, before the Independence, it was a police

state. The ruling British power was interested in increasing its own

domination and the administrative machinery was used mainly with

keeping the object in view. But all this changed with the advent of

independence due to the philosophy incorporated in thePreamble of the

Constitution which enunciates the great objectives and socio-economic

goals. The Indian Constitution was drafted in the mid 20th century when

concept when welfare state had set in and the government was under an

obligation to achieve and maximize social welfare and basic social values

like health, education, employment etc.

At that time to achieve such pious objectives the judiciary had to playan

active role indispensing justice not only between one person and another

but also between state and its citizen. It was also assigned an additional

role of protection of fundamental rights. The legislative wing had to

legislate, form laws to be carried out in order to ascertain socio-economic

development13. Thus the responsibility to carry out socio-economic

development, implementation of programmes of social development and

economy was assigned to the executive wing. However, the executive

wing was unable to carry out this job effectively, unless powers were

given to it.

During thesecond world war extreme crisis had developed in India. In

order to meet the crisis a lot of discretionary powers were given to the

12. Ibid. 13. Kalyan-city.blogspot.com assessed on 24-11-2014

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administrative bodies by the regulations framed by the defence by the

Defence of the India Act, 1939 and rules made thereunder. Subsequently

the Industrial Disputes Act, 1947, The Minimum Wages Act, 1948

ensured important social measures and security measures taken for those

employed in industries14. The Essential Commodities Act, 1955 was

passed for needs of people as regarding commodities.

The modern state welfare schemes were introduced for benefit of society

at large.The private rights were sacrificed to an extent not only in India

but all over the world, be it U.K. or U.S.A or France etc. In our

Constitution itself provisions have been made to secure to all citizens

social, economic and political justice, equality of status and opportunity.

To meet out these objects wide discretionary powers have been given to

the administrative authorities and tribunals. However the principle of

judicial review has also been recognised and the order passed by the

administrative authorities by use of their discretion can be quashed by the

courts if found mala fied or ultra-vires by the Act or as per the

Constitution.

3. Need of Administrative Discretion

The rule of law according to Dicey assumes that, “the absolute supremacy

or predominance of regular law as opposed to the influence of arbitrary

power excluding the existence of arbitrariness of prerogative even of

wide discretionary authority on the part of the government”15. But Dicey

at the time of formulation of law was living in the era of Laissez-Faire.

Since then the Doctrine of Laissez- Faire has been declining. The concept

of welfare state has emerged with the need for social and economic

welfare and as such the scope and extent of government functions is 14. Ibid. 15. Dicey, A.V.- Introduction to the Study of Law of the Constitution,

p.(MacMillan and Co.), 1885.

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changing drastically. The modern state has to resolve the social problems

like family welfare, health, unemployment and poverty etc. The

government has to plan a channelised utilisation of its resources so as to

obtain desired services and goods. It has also to regulate the distribution

and production of essential commodities and to protect the weaker

sections of the society. It has also to curb tase offences, frauds and

adulteration of goods etc16.

The governmental functions have increased so much that it is not possible

to devise laws which may be able to control the wide principles and scope

in order to formulate and carry out what is just and desired for the society

of any country. The law can only issue guidelines and policies which

have to be adhered to, but cannot actually implement and supervise the

effective implementation and carrying out of these guidelines and

principles.

It has been rightly and aptly put that,“if the State is to care for its citizen

from the cradle to the grave, to protect their environment, to educate them

at all stages, to provide them with employment, training, houses, medical

services, pensions and in the last resort food, clothing and shelter it needs

a huge administrative appratus. Relatively little can be done by merely

passing Acts of Parliament and leaving it to Courts to enforce them.

These are far too many problems of detail and far too many matters

which cannot be decided in advance. No one may enact a building

without planning permission, but no system of general rules can prescribe

for every case. There must be discretionary power”17.

Besides the theory of welfare state, it is also considerable that every day

there are fresh and new problems. To deal with the legislature and courts

16. Gupta, R.S., “ Administrative Discretion and Judicial System”Indian Jourrnal

of Public Administration, 1980, p. 1101. 17. Wade, H.W.R., Administrative Law, 4th ed., p.4.

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cannot apply general rules with them. Administrative authorities have to

be given powers to apply their own mind to deal with these problems

according to their experience and application of just mind. If discretion is

not applied the courts will be overburdened by litigations just in order to

clarify the general rules and guidelines and how they are to be applied in

each individual case. Moreover application of one rule mechanically to

all cases and situations would itself result in injustice as circumstances

differ from case to case18.

The exercise of discretion is an inseparable part of sound administration.

Certain problems may involve complexities and a solution given by

general rule, may not be adequate to meet it. Discretionary powers in

these cases allow the administration to act freely and perform its duty

efficiently. Karen Yeung19 has recognises the utility of flexible

enforcement of statutory standards and also emphasized the need of

administrative actions to wield their powers in a manner consistent with

the constitutional values of due process, participation transparency,

accountability and legal principles of fair treatment.

According to him the reasons and need for growth of discretionary

powers can be summed up as :

(a). the notion of welfare and adoption of other development policies.

(b). the environmental control mechanisms.

(c). lack for technical competence and requirement of expert advice on

the part of legislation.

(d). unforeseen situations.

18. cifo.in/uploads/administrative, assessed on 27-12-2014. 19. Yeung,Karen “Better Regulation and Administrative Sanctions and

Constitutional Values,” 25th October 2012, Source: onlinelibrary. wiley. com/doi assessed on 27-11-2014.

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(e). variety of problems and the complexity of subject matter encountered

by the administrative authorities.

(f). control on litigations20.

Besides these, the discretion is needed as it is done for fulfilment and

performance of certain functions. These functions in short may be

classified as follows:

(a). the rights and interests of society depend on exercise of discretion by

administrative authorities.

(b). the achievement of policies formulated in our Constitution is vastly

dependant on discretion of administration.

(c). it provides flexibility to cater to different situations.

(d). it is a time saving mechanism.

(e). the technical knowledge of the administrative authorities is well

equipped to deal with complexities arising in day to day situations.

(f). the gaps and ambiguities left at the time of laying down of laws by the

legislature can be filled up by exercise of discretion on part of

administrative authorities21.

4. Sources of Administrative Discretion

Administrative discretion begins with the enabling legislations i.e. the

basic statutes that establish a given programme and authorize the exercise

of power. If the statute establishes fixed and clearly defined criteria for

the exercise of choices then discretion is narrowed. Vague language in the

statutes the administrative rules or the guidelines, creates a downward

flow of discretion. This is because the administrative agency interprets

the statutory language and issues its interpretations in form of regulations.

20. Ibid. 21. Id.

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Not unexpectedly the regulations are vague very often, so lower level

officials in turn have not made choices as to the meaning of regulations.

The process continues down through the administrative structure, until

the lowest officer interprets rules and guidelines for specific cases22.

In this respectan important question arises asto whether a specific

legislation must contain the authority of administrative discretion and

must be the main source of the discretion? In the Indian context in this

regard the case of Ram Sahib Ram Jawaya Kapoor Sons v State of

Punjab23 is of great importance. In this case, the petitioners were the

publishers and sellers of text books of different classes in schools of

Punjab particularly for primary and middle classes under the name and

style “Uttam Chand Kapoor and Sons”. It was alleged by the petitioners

that the Education Department of the Punjab Government has in

pursuance of their policy of nationalisation of text books, issued a series

of notifications since 1950 regarding the printing, publication and sale of

these books which have not only placed unwarrantable restrictions upon

the rights of petitioners to carry out their business but have practically

ousted them and other fellow traders from the business altogether. It was

pleaded that no restriction could be imposed upon the petitioners right to

carry out trade which was guaranteed under Article 19 (1)(g) of the

Constitution of India by mere executive orders without proper legislation,

and that legislation, if any, must confirm to the requirements of clause 6

of Article 19 of the Constitution. It was contended that the executive

government of the State is wholly incompetent without any legislative

sanction to engage in any trade or business activity and that the acts of the

Government in carrying out their policies of establishing monopoly in the

22. Handler,Joel.F.,Protecting the Social Service Client: Legal and Structural

Controls, Academic Press, ed. 2014, p.9 23. A.I.R. 1955 S.C. 549.

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business of printing and publishing text books for school students is

wholly illegal and without jurisdiction.24

The Court in para 6 of its judgement observed that it is not argued that the

functions of a modern state like the police states of old are confined to

mere collection of taxes or maintenance of law and protection of the

realm from external or internal enemies. A modern state is certainly

expected to engage in all activities necessary for the promotion of social

and economic welfare of the community. The Apex Court further held

that Article 73 provide that the executive power of the Union shall extend

to matters with respect to which the Parliament has power to make laws

and to exercise of such rights, authority and jurisdiction as are accessible

by the Government of India by virtue of any treaty or any agreement on

the other hand the language of Article 162 clearly indicates the power of

the State executive do extend to matters upon which the State Legislature

is competent to legislate. The same principles underlined in Article 73 of

the Constitution25.

In this case it was laid down that it may not be possible to frame an

exhaustive definition of what executive function means and implies.

Ordinarily the executive powers connotes the residue of governmental

functions that remain after legislative and judicial functions are taken

away - - - the executive indeed can exercise the powers of departmental

or subordinate legislation when such powers are delegated to it by the

legislature - - - it does not follow from this (Article 154 of the

Constitution), that in order to enable the executive to function there must

24. Ibid. 25. Ram Jawaya v State of Punjab, AIR 1955 S.C. 549.

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be a law already in existence and that the powers of executive are limited

merely to carry out these laws26.

The petition was dismissed. The exercise of powers thus without any

specific legislation would also involve the exercise of powers and

performance by administrative authorities by exercising their

administrative discretion and it would be wrong to say that the source of

that administrative discretion would have to be a specific legislation.

Besides this even in cases where specific statutes are present, they do

leave a wide area of scope for administrative discretion because these

statutes normally contain words like “If in the opinion of the authority” or

“If it is necessary and expedient to do so” or “If the authority is satisfied”

etc.

5. Administrative Discretion and Indian Constitution

The discretionary powers conferred on administrative authorities are

usually very wide andif they are misused, the rights and interests of the

society are gravely affected. In such cases the regulation of such powers

is conferred by Article 14 and Article 19 of the Constitution of India. The

administrative discretion can be challenged on the ground that it violates

the constitutional provisions of Article 14 and 19 which confer

fundamental rights.

(A) Limitation on grant of discretionary power and Arti cle 14: Article

14 of our Constitution provides a fundamental right of equality and lays

down that the state shall not deny to any person equality before the law or

the equal protection of the laws within the territory of India. It lays down

that the law should be applicable to every person and must not

discriminate person against another. Any law which discriminates

between persons or classes of persons shall be void. A similar creation 26. Id. at para 14.

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has been adopted while checking the validity of the discretionary power

by the administrative authorities.

The above rule was aptly laid down by the Supreme Court in Ram

Krishna vJustice Tendulkar27. The Supreme Court laid down that Article

14 forbids class legislation but not classification and said that the

legislative might itself indicate person or things to whom or which its

provisions were intended to apply and the basis of such classifications

might either appear in the statute itself or may be gathered from the

surrounding circumstances. The statute might also leave it to the

discretion of the Government to select and classify persons to which the

provisions would apply. If the statute does not contain any policy or

principle for guiding the exercise of discretion then the same may be

struck down on the ground that it granted arbitrary power to the

Government.

In West Bengal v Anwar Ali Sarkar28, the statute of West Bengal

provided for Special Courts to try cases or clauses of cases or offences or

clauses of offences for ensuring speedy trial. However the statute did not

lay down as to the types of offences to be tried and the executive

authorities could arbitrarily select a case for trial by Special Courts. It

was held that the statute violated Article 14 of the Constitution in so far

as the Act empowered the Government to have any case or offence tried

by Special Courts.

Similarly in Satwant Singh v Assistant Passport Officer29, the Passport

Act, 1967 was in question. The Act gave power to the Passport Officer to

give or refuse a passport without providing any guidelines for the

existence of such power. The Act was held invalid and the Parliament

27. A.I.R.1958 S.C. 538. 28. (1952) S.C.R. 284. 29. A.I.R.1976 S.C. 1836.

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was asked to specify the criteria in accordance with which the Passport

Officer was supposed to exercise discretion.

In one of the leading cases In Re The Special Court Bill 197830 the

Supreme Court upheld that Special Court Bill which provided for Special

Courts to deal with offences committed by persons who had held high

political offices during the period of emergency imposed by Indira

Gandhi Government in 1975. The Bill gave power to the Government to

refer such cases to the Special Courts. The court upheld the grant of

discretion because it was controlled by the policy of the Act.

In State of Maharashtra v Kamal S. Durgule31, the Section 65-A of the

Bihar and Orissa Co-oprative Societies Act, 1985 which conferred

blanket power on the state Government to decides matters contemplated

under the Act even including quasi-judicial matters was held to be

violative of Article 14.

In R. Patnakar Rao v Andhra Pradesh,32 the court held that normally the

discretion should be preceded by an enquiry conducted in accordance

with a quasi-judicial procedure and the power should be accorded to a

high official or authority.

(B) Limitation on Grant of Discretionary Power and Arti cle 19 :

Article 19 of the Indian Constitution provides Fundamental rights of

freedom of speech and expression alongwith several other rights. When a

person exercises these rights other persons are under a duty not to curtail

or infringe these rights. As such, grant of any discretionary power which

acts as a hindrance to the fundamental rights have to be void and

curtailed. Article 19 acts as a regulation on conferment of discretionary

30. (1979) 1 S.C.C. 380. 31. A.I.R.1985 S.C. 119. 32. (1996) 5 S.C.C. 359.

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powers. Article 19 lays down protection of certain rights regarding

freedom of speech etc. It provides that All citizens shall have the right :

(a). to freedom of speech and expression;

(b). to assemble peaceably and without arms;

(c). to form associations or unions; [or Co-oprative Societies]33

(d). to move freely throughout the Territory of India;

(e). to reside and settle in any part of the territory of India;

(g). tom practice any profession or to carry out any occupation, trade or

business.

However the State under Article 19(2) to (6) can impose reasonable

restrictions on the above mentioned rights. The court determines the

reasonableness of the restrcitions34.

While deciding the reasonableness of a restriction the principle laid down

is that the power conferred on the executive by the law should not be

arbitrary and unregulated and it should not be left entirely to the

discretion of an authority to do so as likes without any check and control

by the above authority35.

Some of the examples as to how Article 19 acts as regulator of

uncontrolled administrative discretion can be well assessed from some of

the prominent cases where the statutes or rules conferring arbitrary

powers very held to be violative of fundamental rights guaranteed by

Article 19 of the Constitution. Thus in R.M. Sheshadri v District

Magistrate, Tangore36, a rule requiring an exhibitor of films to show at

33. Ins. by the Constitution (Ninety Seventh Amendment Act, 2011, Sec 2)

(w.e.f.12.1.2012) 34. Chintaman Rao v State of Madhya Pradesh, AIR 1951 S.C. 118. 35. Dwarka Prasad v State of U.P. AIR 1954 S.C. 224. 36. A.I.R.1952 Mad. 120.

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each performance approved film of such length and for such duration as

the Government will direct, was held to be unreasonable, as the duration

and length had not been specified in the Act and the Government was

vested with unregulated discretion to compel an exhibitor to show a film

of any length.

In Madras v V.G. Rao37, the Apex Court struck the law being violative of

right to freedom of association because it authorixed an administrative

authority to declare an association as unlawful on its subjective

satisfaction that the association was carrying out subversive activities.

Similarly in Abrahim Vazir v Bombay38 it was held that a statutory

provision which authorises Government to impose the penalty of removal

of a citizen from India on reasonable suspicion entertained by it that the

person concerned has committed an offence against the Permit Law was

invalid. Section 3 of Influx from Pakistan (Control) Act, 1949 prohibited

entry of any person into India without a valid permit. Section 7 of that

Act empowered Central Government to direct removal from India of any

person committing an offence under the Act. The court held that since the

act has left the question whether an offence had been committed to be

determined entirely by the executive on the basis of a reasonable

suspicion. It gave uncontrolled administrative discretion and thus violated

the fundamental right to reside and settle in any part of the country.

Further, in JaganNath v State of Orissa39, a law authorizing the

executive to frame a scheme of management and administration of an

endowed property without the intervention of judicial tribunal at any

stage was held to be invalid as contributing an unreasonable restriction on

right to property.

37. A.I.R.1952 S.C. 196. 38. (1954) S.C.R. 933. 39. A.I.R.1954 S.C. 400.

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In the leading case of Dwarka Prasad v State of U.P.40, the Supreme

Court held that a rule requiring a person to get a licensed stock, sell or

store for sale of an essential commodity as coal was not objectionable.

However, provisions that empowered the licensing officer to exempt any

person or class of persons from taking out a license and give absolute

power to grant or to refuse grant, renew or refuse to renew, suspend or

revoke, cancel or modify any license without the presence of any rules or

directions to guide the authority were held invalid as violative of

fundamental rights.

Also in M/s Krishna Bus Service Pvt. Limited v State of Haryana41 the

facts were that under the Motor Vehicles Act, 1935 the Government of

Haryana issued a notification appointing the general Manager of Haryana

Roadways as Deputy Superintendent of Police (D.S.P.) for the purpose of

the Act.The D.S.P. was to exercise powers of inspection, search and

seizure, detention etc. under this Act. These powers had to be exercised

without bias .The General Manager of Haryana roadways being the head

of arival business organisation, it was held that his appointment as DSP

would cause an unreasonable restrictions on freedom of trade and

business guaranteed by Article 19(1) (g) of the Indian Constitution.

6. Abuse of Administrative Discretion

The problem of administrative discretion is complex. In any organised

form of government, the government cannot function without discretion

being exercised by administrative officials. It is necessary for the

individualisation of the administrative power as also because it is

impossible to lay down a rule for every conceivable eventuality in the

complex art of modern state. However absolute discretion is an enemy

40. A.I.R.1954 S.C. 224. 41. A.I.R.1985 S.C. 1651.

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and is destructive of freedom of man. As such there hasalways was a

conflict between claims of the administration to absolute discretion and

the claims of subjects to a reasonable exercise of it42. There is always

scope for misuse of administrative discretion and therefore remedy lies in

tightening the procedure and not in abolishing discretion power

altogether.

There must be a control over discretion at the stage of delegation because

the court exercises control over delegation of discretionary powers to the

administration by adjudicating upon the constitutionality of statute or law

under which the powers have been delegated with reference to

fundamental rights as incorporated in Article 14 or Article 19 of the

Indian Constitution. Thus if vague or uncontrollable discretionary power

have been conferred, the court can declare the law void or illegal.

In India, there is no legislative enactment which provides for judicial

review on exercise of administrative discretion. In U.S.A. for e.g.there is

the administrative Procedure Act for such purpose. The Administrative

Procedure Act (A.P.A) enacted on June 11, 1946, is the United States

Federal Statute that governs the way in which administrative agencies of

the Federal Government of United States may propose and establish

regulations. The A.P.A. also set up a process for the United States Federal

Courts to directly review agency decesions43. The basic purpose of

A.P.A. is :

(a). to require agencies to keep public informed of their organization,

procedure and rules.

(b). to provide for public participation in the rule making process.

42. www.legalsrevicesindia.com/article/article/abuse-of-administrative-discretion-

756-1.html, assessed on 3-11-2014. 43. en.wikipedia.org/wiki/administrative-procedure-act, assessed on 3-11-2014.

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(c). to establish uniform standards for the conduct of formal rules making

and adjudication.

(d). to define the scope of judicial review44

In India, in absence of any act for administrative procedure, the power of

judicial review arises from Constitutional configuration of courts. Courts

have always held the view that judge proof discretion is a negation of rule

of law. Therefore they have developed formulations to control the

exercise of administrative discretion. These formulations generally may

be grouped as45:

(A) that the authority is deemed not to have exercised its discretion at

all or failure to exercise discretion or “Non-Application of Mind”.

(B) that the authority has not exercised its discretion properly or excess

or “Abuse of discretion”.

(A) Non-Application of Mind : Under this, the courts exercise judicial

control over administrative discretion. If the authority has put fetters on

its exercise or its jurisdiction or facts have been non-existent or wrongly

determined. The discretionary power when conferred on an

administrative official must be exercised after applying its mind to facts

and circumstances at hand. The authority on which discretionary power

has been vested can be compelled to exercise it but not exercise in a

particular manner. As such where there is abdication of functions,

conditional precedents, or when no due care is applied etc. then there is a

failure to exercise discretion46.

(B) Abuse of Discretion: This is an all embarrassing formulation

developed by the courts in India to control the exercise of discretion by 44 . Ibid. 45. Kumar, Laksheyender “ Abuse of Administrative Discretion” , 2011, www.legal

services.com. 46 . Ibid.

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administrative authorities. When discretionary power is conferred on an

administrative authority it must be exercised according to law. There is an

abuse of discretion when this power is exercised improperly or with

unreasonableness. This includes which in England is called unreasonable

exercise of discretion or in America is called arbitrary and capricious

exercise of discretion. Abuse of discretion includes taking irrelevant

considerations into account, acting for improper purpose, acting in bad

faith and neglecting to consider relevant factors etc.

Abuse of discretion can be better understood by discussing it under short

headings as follows:

(i) Mala Fide: This may also be termed as bad faith or dishonest

motives. The statutes or laws confer discretionary powers in broad terms

thus it is difficult to analyse whether in a particular case the authority has

exceeded its power or not, but if the motive behind the action is seen to

be dishonest the administrative action may be declared as mala fide47.

In Jaichand Lal Sethia v State of West Bengal and Others48, the

Supreme Court observed that mala fide exercise of power does not

necessarily imply any moral turpitude as a matter of law. It only means

that the statutory power is exercised for purpose foreign to those for

which it is in law intended.Thus an administrative action which is based

on dishonest intention or corrupt motive may be declared as mala fide

action. It includes personal enimosity, vengeance, personal benefit to the

authority at self or its relation or friends49.

47 . Id. 48 . (1996) S.C.R. 464 49 . Saxena, Manju and Chandra,Harish, Law and Changing Society, Deep and

Deep Publication, ed. 1999, p. 119.

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In S. Paratap Singh v State of Punjab50, the Apex Court used the phrase

mala fide for initiating administrative action against an individual for

satisfying a personal grudge of the authority. In this case a Civil Surgeon

in the employment of the State Government was granted leave

preparatory to retirement but subsequently it was revoked and he was

placed under suspension and a disciplinary action was started against him

on the charge that he had accepted a bribe of 16 Rs from a patient, before

going on a leave. The Appellant alleged that the action has been initiated

against him at the instance of the Chief Minister who had a personal

vengeance to settle as he had refused to yield to illegal demand of the

Chief Minister and his family members. The Supreme Court found the

allegations of the appellant true and held that the exercise of power to be

mala fide.

Similarly in G. Sadanandan v State of Kerala51, the petitioner a

businessman dealing in wholesale Kerosene Oil was detained under Rule

30 (1) (b) of Defence of India Rules, 1962 with a view to prevent him

from acting in a manner prejudicial to the maintenance and supplies of

essential services. The petitioner challenged the validity of his detention

on the ground that it is mala fide and the detention order has been passed

as a result of false report prepared at the instance of Deputy

Superintendent of Police. The object of Deputy Superintendent in

securing the preparation of this false report was to eliminate the petitioner

from the field of wholesale business of Kerosene Oil in Trivendrum so

that his relatives may take benefit from the same and obtain dealership.

After considering all materials facts the Supreme Court found the

detention order to be clearly and plainly malafide.

50. 1964 S.C.R. (4) 733. 51 . Writ Petition No. 136 of 1965 under Article 32 of the Constitution of India.

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The court observed that after all the detention of a citizen in every case is

the result of the subjective satisfaction of the appropriate authority; and

so if a prima facie case is made by the petitioner that his detention is

either mala fide or is result of a casual approach adopted by the

appropriate authority, the appropriate authority must place before the

court sufficient material in form of proper affidavit made by a duly

authorised person to show that the allegations made by the petitioner

about the casual character of decision or its mala fides are not well

founded- - -his continued detention after 24th October 1965, are totally

invalid and unjustified.52

It is worth mentioning that in the concluding remarks the Supreme Court

added that- - - “In conclusion, we wish to add when we come across

orders of this kind by which citizens are deprived of their fundamental

rights of liberty without a trial on the ground that the emergency

proclaimed by the President in 1962 still continues and the power

conferred on the appropriate authority by Defence of India Rules justify

the deprivation of such liberty. We feel rudely disturbed by the thought

that continuous exercise of the very wide powers conferred by the rules

on the several authorities is likely to make the conscience of the said

authorities insensitive if not blunt”53.

Further in Express Newspapers Pvt. Ltd. & Others v Union of India54 a

notice of re-entry upon the failure of lease granted by the Central

Government and of threatened demolition of the appellant’s office

buildings was held to be mala fide and politically motivated by the party

in power.

52 . Source: indiakanoon.org/doc/234426/, assessed on 23-11-2014. 53 . Ibid. 54 . 1985 S.C.R. Suppl. (3) 382.

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In State of Punjab v V.K. Khanna & Others55 the Supreme Court

observed that mala fide intent or biased attitude cannot be put on a

straight jacket formula but depend upon fact and circumstances of each

case. The Court also said that the expression ‘mala fide’ has a definite

significance and there must be existing definite evidence of bias. The

action would not be mala fide unless the same is an accompaniment with

some other factors which would depict a bad motive or intend on the part

of the doer of the act.

Mala fide is a psychological factor to allege but is difficult to prove. The

burden to prove mala fide is very heavy and is upon the person alleging

it. This is because there is presumption always in favour of the

administrative authority that it exercises its powers in bonafide manner

and in good faith.

In E.P. Royappa v State of Tamil Nadu56, the Supreme Court brought

out difficulties inherent in proving mala fides. The factors important to

prove mala fides are :

(a). direct evidence for example documents, tape recordings etc.

(b). course of events.

(c). public utterance of the authority.

(ii) Improper Purpose : When there is an exercise of power with a

different purpose than that which is specified in the law or concerned

statute, then the same is liable to be quashed. The conferment of wide

discretionary powers has resulted in exercise of these powers for

improper purpose. The powers in case of compulsory acquisition of land

especially in England are quashed when based on improper purpose. For

55. (A. No. 6963 of 2000 (arising out of S.L.P (c) No. 6173 of 1999) and (C.A. No.

6964 of 2000) (arising out of S.L.P. (c) No. 6237 of 1999). 56. 1974 S.C.R. (2), 348.

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e.g. if a Municipal Corporation acquires a land for public purpose but in

fact the purpose is to enable another body to acquire it through the

medium of the corporation for some other purpose the same may be

quashed by the courts.

“Improper purpose” is broader than mala fides. Mala fides denotes a

personal malice or spite; the improper purpose may lack such element.

The action of the administrative authority may be motivated by some

public interest (as distinguished from private interest) but it may be

different from what is contemplated by the statues under which action has

been taken57. It is relevant in those cases as to what was the purpose

enshrined in the statute conferring power to the authority concerned. The

purpose for which the power is exercised is an issue of law. The purpose

for which the power is actually exercised is an issue of fact.

In Smt. S.R. Venkataraman v Union of India & Others58, the statute

conferred that a public servant could be retired in public interest by taking

assent from the President. In this case the appellant compulsorily retired

on her attaining the age of 50 years. She alleged that there was non-

application of mind and that her retirement was carried out for extraneous

reasons, outside the scope of statute. This was established by the fact that

there was nothing in her service record to justify premature retirement.

The court relying on observation in Shearer v Shields59 and Pilling v

Abergale Urban District Council60 observed that “- - - for it is trite law

that if a discretionary power has been exercised for an unauthorised

purpose, it is generally immaterial whether its repository was acting in

good faith or bad faith”. 57. www.legalserviceindia.com/article/article abuse-of-administrative-discretion-

756-1.html assessed on 23-11-2014. 58. 1979 S.C.R. (2) 202. 59. (1914) A.C. 808. 60. (1950) 1 K.B. 636.

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Also in R.L. Arora v State of U.P.61, the Land Acquisition Act, 1894

allowed the state Government to give consent to acquisition of property

for industrial purpose if it was useful for public. The Government

assented to acquisition of property by textile factory. This was challenged

on the ground that the Government could not interpret the words of the

statute and exercise discretion on the same as well. The court held that the

purpose of the statute was to allow acquisition when construction of work

after acquisition would be useful for public and lead to benefit of people.

In this case the benefit would arise only after the industry is functioning

and not during construction. Hence, the order of the Government was

struck down on the grounds that it violated the mandate of the legislation.

(iii) Irrelevant Considerations: It is clear that discretion allows an

authority to choose between alternative actions. However, this discretion

can only be exercised on relevant grounds. All discretionary actions must

be in conformance to the considerations laid down in the statute that

granted discretion in the first place. If the authority concerned pays

attention to or takes into account wholly irrelevant or extraneous

circumstances, events or matters, then the administrative action is ultra-

vires. The determination of considerations which are relevant or

irrelevant is a matter of inference from the general terms of statute. In

case no considerations are delineated the court can look into the purpose

and aim of the statute to fix considerations and place fetters on the

discretion allowed62. These considerations, if not exhaustive, can be

added by the courts on its own.

61. A.I.R. 1964 S.C. 1230. 62 . www.lawteacher.net/free-law-essays/administrative law/the abuse-of-

administrative-discretion-administrative-law-essay,php,assessed on 23-11-2014.

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This was laid down clearly in Barium Chemicals Limited and another v

The Company Law Board and others63. Under section 236 of the

Companies Act, 1956 the Company Law Board can order investigations

in the affairs of the company if the company is being conducted with the

intention to defraud creditors or the persons involved in the management

are guilty of fraud among other things or full information regarding the

firm has not been given. Investigation was ordered in the instant case on

the ground that there were continuous running losses owing to faulty

planning and various directors had left the board. The order was

challenged and the court quashed the order stating that these grounds

were irrelevant and extraneous to the purpose enshrined in the statute.

They did not confirm to the mandate of section 236. The Supreme Court

observed that “- - - but the maxim delegatus non-protest delegare must

not be pushed too far. The maxim does not embody a rule of law. It

indicates a rule of construction of a statute or other instrument conferring

an authority. Prima facie, a discretion conferred by a statute on any

authority is intended to be exercised by that authority and by no other.

But the intention may be negatived by any contrary indications in the

language scope or object of the statute. The construction that would best

achieve the purpose and object of the statute should be adopted.

The same position was reiterated in Rohtas Industries Limited v S.D.

Agarwal and Other64. This case also involved investigation of a company

undersection 237 of the Companies Act, 1956. The investigation was

ordered on the ground that there were several complaints of misconduct

against one of the leading directors of the appellant company in relation

to other company under his control for which he was being prosecuted

and that the company had arranged to sell preference shares of Rs.3 lakhs

63. A.I.R. 1967 S.C. 195. 64. A.I.R. 1969 S.C. 707.

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of other company held by it for inadequate consideration. The

government order was quashed on the ground that the government had

not relied on the shares in question as suggesting fraud. The courts

observed that the law recognises certain well recognised principles within

which the discretionary power under section 237 (b) must be exercised.

There must be a real exercise of discretion. The authority must be

exercised honestly and not for corrupt or ulterior purpose. The authority

must form the requisite opinion honestly and after applying its mind to

relevant materials before it ---it must act reasonably and not capriciously

or arbitrarily --- if it is established that there were no materials upon

which the authority could form requisite opinion, the court may infer that

the authority did not apply its mind to the relevant facts.

In Brij Mohan Singh Chopra v State of Punjab65 the appellant was

compulsory retired from service on the basis of service entries of about

twenty years, though during that period he had been promoted several

times. The court held that the entries of only last ten years were relevant

for compulsory retirement. During this period two entries were adverse to

the appellant. The court held that reliance on those two entries was also

not proper and the impugned order was quashed as the same was based

on irrelevant considerations.

In the leading case of Rampur Distillery Company Limited v Company

Law Board and Other66 the Company Law Board exercising wide

discretionary powers under section 326 of the Companies Act 1956 in the

matter of renewal of a managing agency refused approval to the

managing agents of the Rampur Distillery. The reason given by the

Company Law Board for its action related to past conduct of the

managing agents. The Vivian Bose Enquiry Commission had found 65 . 1987 S.C.R. (2) 583. 66 . A.I.R. 1970 S.C. 1789.

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managing agents guilty of gross misconduct during 1946-47 in relation to

other companies. Though the Supreme Court did not find any fault in

taking into consideration the past conduct but it held that the board did

not take into consideration the present act which were very relevant.

(iv) Mixed Consideration: It happens at times that the order of the

administrative authority taken by exercising power of discretion is not

wholly based on irrelevant considerations. The order may be based partly

on relevant considerations and partly on irrelevant considerations. The

judiciary in such cases does not have a uniform approach. For e.g.in cases

of preventive detentions the court hold a strict view and declared such

orders invalid if based on any irrelevant consideration along with relevant

considerations generally it is difficult to say to what extent the bad

grounds operated in the minds of administrative authorities and whether

the order could have been passed only on basis of relevant considerations.

In Shibban Lal Saxena v The State of U.P. and Others67 the petitioner

was detained on two grounds, firstly that his activities were prejudicial to

the maintenance of supplies essential to the communities and secondly

that his activities were injurious to the maintenance of public order. Later

the Government revoked his detention on first ground as either it was not

substantial or non-existent but continued it on second ground. The court

quashed the detention order. The court observed that to say that the other

ground, which still remains is quiet sufficient to sustain the order would

be to substitute an objective judicial text for the subject decisionof the

executive authority which is against the legislative policy underlying the

statute. In such cases the position would be the same as if one of these

two grounds were irrelevant for the purpose of the act or was wholly

illusory and this would vitiate the detention order as a whole.

67. A.I.R. 1954 S.C. 179.

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Similarly in Dwarka Das Bhatia v The State of Jammu and Kashmir68

the Supreme Court analysing various such cases held that the principle

underlying all these decision is this that the power is vested in a statutory

authority to deprive the liberty of a subject on its subjective satisfaction

with reference to specified matters. If that satisfaction is stated to be

based on a number of grounds or for variety of reasons all taken together

and if some out of them are found to be non-existent or irrelevant the very

exercise of power is bad. That is so because the matter being one for

subjective satisfaction it must be properly basedon all the reasons on

which it purports to be based. If some out of them are found to be non-

existent or irrelevant the court cannot predict what the subjective

satisfaction of the said authority would have been on the exclusion of

those grounds or reasons. To uphold the validity of such an order inspite

of the invalidity of some of the reasons or grounds to substitute the

objective standards of the court for the subjective satisfaction of the

statutory authority. In applying these principles, however, the court must

be satisfied that the vague or irrelevant grounds are such as if excluded

might reasonably have affected the subjective satisfaction of the

appropriate authority.

(v) Leaving out Relevant Considerations : If in exercising its

discretionary power an administrative authority ignores or does not take

into account the relevant considerations then it constitutes abuse of

discretionary power and the action would be invalid. If the statute

prescribes expressly or impliedly any considerations to be taken into

account, the same should be adhered to by the authority. However in such

cases, unless detailed reasons are given from which it can be inferred that

68. A.I.R. 1957 S.C. 164.

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the authority took the action after ignoring material considerations, it is

hard to prove this and have the action quashed.

In Ranjit Singh etc. v Union of India69, the production quota of a

licenced manufacturer of guns was reduced from 30 to 10 guns per

month. The order was challenged on the ground that the order was not

based on relevant consideration but on extraneous considerations. In

allowing the appeal the Supreme Court held that the Government order

was bad as Government did not consider the relevant facts like

production capacity of the factory, quality of guns produced, economic

viability of the unit and the administrative policy pertaining to the

maintenance of law and order. The Supreme Court observed that any

curtailment of quota must necessarily proceed on the basis of reason and

relevance. If all relevant factors are not considered or irrelevant

considerations allowed tofind place, the decision is vitiated by arbitrary

judgement. On the material placed before us we are not satisfied that the

Government of India has taken into careful consideration the several

elements necessary for forming a decision on the quota.

Also in K.M. Shanmugam v The S.R.V.S. (P) Ltd. and Others70 a

regional transport authority called for applications for the grant of stage

of carriage permit for certain route. Under the statute, the authority had

wide powers to grant the permit in public interest but the government

attempted to control the discretion of the authority by prescribing a

marking system under which marks were allotted to different applicants

on basis of viable unit, workshop, residence or branch office on route,

experience and special circumstances. In the present case the branch

office of the petitioner was on route but this fact was ignored on the

ground that he had branches elsewhere. It was held by the court that a 69 . A.I.R.1981 S.C. 461. 70 . A.I.R.1963 S.C. 1626

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relevant consideration had been ignored. It was an untenable position to

take that even if the applicant had a well equipped branch on concerned

route, it would be ignored and if the applicant has some other branches

unconnected with that route. The court observed that but if the authority

under a manifest error of law ignores the said relevant considerations it

not only disobeys the administrative discretions given by the Government

but also transgresses the provisions of Section 47 of the Act. The

disobedience of the instructions which are administrative in nature may

not afford a cause of action to an aggrieved party, but the transgression of

the statutory law certainly does.

(vi) Colourable Exercise of Power : Sometimes the abuse of

discretion is denounced by the term ‘colourable exercise of power’. It

means that under the guise or colour of power conferred for a purpose the

authority is seeking to achieve something else which is not authorized to

do under the statute or law concern. If viewed in this light the colourable

exercise of power would not appear to be a distinct ground of judicial

review for abuse of discretion and would be covered under irrelevant

considerations or improper purpose. The same appears to be the

conclusion when reference is made to cases where the grounds of

‘colourable exerciseof power’ have been invoked71.

In Smt. Somavanti and Others v The State of Punjab and Others72 the

Supreme Court stated in reference to the Land Acquisition Act that now

whether in a particular case the purpose for which land is needed is a

public purpose or not is for the State Government to be satisfied after

subject to one exception. The exception is that if there is colourable

exercise of power the declaration would be open to challenge at the

71. Karjee,ShankarKumar.blogspot.in/2012/04/colourable-exercise-of power. html,

assessed on 23-11-2014. 72. A.I.R. 1963 S.C. 151.

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instance of the aggrieved party. If it appears that whether the Government

is satisfied about it is not public but a private purpose or no purpose at all.

Action on the Government would be colourable as not being related to the

power conferred upon it by the Act and its declaration will be a nullity.

Also in the leading case of D.C.Wadhwa v State of Bihar73 the question

was whether the Governor can go on re-promulgating Ordinances for an

indefinite period of time and thus take over to him the power of the

Legislature to legislate, though that power is conferred on him under

Article 213 only for the purpose of enabling him to take immediate action

at a time when the Legislative Assembly of the State is not in session or

when in case where there is Legislative Council in the State, both houses

of legislature are not in session. The court held that of course, there may

be a situation where it may not be possible for the Government to

introduce and push through the legislature a Bill containing the same

provisions as in the Ordinance - - - where such is the case, re-

promulgation of the ordinance may not be open to attack. But otherwise it

would be a colourable exercise of power on the part of the Executive to

continue an ordinance with substantially the same provisions- - - - this is

clearly contrary to constitutional schemes and it must be held to be

improper and invalid74.

The term colourable has also at times been used in the sense of mala fide

action. Colourable means that the power is exercised ostensibly for the

authorised end but really to achieve some other purpose or in other words

the power has been used or exercised illegally but has been given guise of

legality. Thus in the context of cases of preventive detentions, where

court feel that detention cannot be used as a substitute for criminal

73. A.I.R.1987 S.C.579. 74. Ibid.

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prosecution, they use the term ‘colourable exercise of power’ by the

executive75.

(vii) Judicial Discretion: Sometimes the Courts use the term ‘judicial

discretion’ to restrict the exercise of discretionary power of an authority.

Through the use of this term the courts would read implied limitations

into statutory powers and quash an administrative order if it crosses those

limitations. This term indicates that the discretion is not absolute or

unqualified. However its use does not seems to be necessary as the court

have read implied restrictions on a discretionary power even without

characterising it as judicial discretion. The term can be applied to only the

quasi-judicial bodies and not to administrative bodies.

In the Registrar of Trade Marks v Ashok Chandra Rakhit76 with

reference to the power of Registrar to register a trade mark the Supreme

Court observed that the exercise of the power conferred on a Registrar

always remains a matter of discretion to be exercised not capaciously or

arbitrarily but according to sound principles laid down for the exercise of

all judicial discretion.

(viii) Unreasonableness : Usually the statute requires the administrative

authorities to act reasonably. The Court has often directed in various

cases that the authorities must act fairly and reasonably. Unreasonable is

more than one thing. It may embody a host of grounds i.e. the authority

has acted on irrelevant considerations or extraneous considerations or

mala fidely etc. Thus viewed in such manner unreasonableness does not

provide a separate form of abuse of discretionary powers. The term may

include instances in which the authority has acted in a wrong manner

75. Id. 76. 1955 S.C.R. (2) 252.

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though may be as per law or where it has acted not according to law and

on wrong grounds77.

On the other hand unreasonableness also mean that even though the

authority has acted according to law in the sense that it has not acted on

irrelevant grounds or exercised power for an improper purpose, yet it

hasgiven more weightage to some factors than they deserved as compared

to other factors. On this ground the interference requires going into the

relative importance of various factors and then balancing which amounts

to substituting the discretion of the judiciary for that of the executive.

Usually such wide powers are not exercised by the Courts to interfere in

the administrative discretions78.

Unreasonableness may be a ground for intervention of the Courts when

Constitution of India or the statute so requires79. It has been provided in

Article 14 of the Constitution where equality before law is guaranteed but

Courts have permitted reasonable classification to be made. Similarly

Article 19 requires only reasonable restrictions to be imposed on the

rights specified therein.

In Chandeshwar Prasad v State of Bihar and Others80 the

administrative authority had cancelled certain grants or property made to

the petitioner by the previous owner on the ground that the transfer was

made with a view to defeating the provisions of the Bihar Land Reforms

Act, 1950, and to obtain higher compensation. The Court found no

evidence supporting the findings of the authority. The Court observed

that the word ‘satisfied’ in Section 4(4) must be construed to mean

‘reasonably’ satisfied and therefore the finding of the Collector under 77. Supra note 57. 78. Ibid. 79. lawprojectforfree.blogspot.in/2010/08/administrative-law-judicil-control. html,

assessed on 23-11-2014. 80. A.I.R.1987 Pat. 208.

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Section 4(4) cannot be subjective or arbitrary finding but must be based

upon adequate materials.

Also in Rohtas Industries Ltd. v S.D. Agarwal and others81, the Supreme

Court quashed an administrative action taken by the government

underSection 237 of the Companies Act, 1956 on the ground that nobody

reasonably would have reached the impugned conclusions. Here the

Courts considered the question as to whether any reasonable body much

less expert body like the Central Government would have reasonably

made the impugned order on the basis of material before it? In such cases

the text of judicial intervention is not what the courts consider as

unreasonable decision but when the action is oppressive or absolutely

absurd.

In Sheonath Singh v Appellate Assistant Commissioner82 the Supreme

Court has remarked in case of initiating reassessment proceedings that the

belief must be that of an honest and reasonable person based upon

reasonable grounds but not on mere suspicion, in regard to the Income

Tax Act. Similarly in K.L. Trading Company Pvt. Ltd. v State of

Meghalaya and Others83 the court observed that to attract judicial

review of administrative action the applicant must show that the

administrative action suffers from vice of arbitrariness, unreasonableness

and unfairness.

Administrative discretion is an essential part of the modern administrative

state which takes on itself a whole lot of activities which touch the rights,

life and liberties of an individual citizen. The rule of law does not tend to

81. A.I.R. 1969 S.C. 707. 82. A.I.R. 1971 S.C. 2451. 83. A.I.R.1996 Gau. 17

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exclude it altogether but it only seeks to control its exercise and maintain

it in order to prevent its abuse.84

There are the developments in internal controls from within the

administration but in spite of this an independent control through judicial

system is an essential ingredient of rule of law.

The idea of discretion which is to be exercised should not be in a

capricious and impetuous way but in a disciplined and responsible

manner. It really represents a compromise between the idea that people

who posses power should be trusted with a free hand and not tied down

by narrow formulas and the competing notion that some contingent

control must be retained over them in case they act in an unreasonable

way. Discretion in public affairs is seldom absolute and is usually

qualified.85 The vesting of discretion per se would not be unreasonable.

Unreasonability is to be found in its exercise and not in existence. Even if

no guidelines are laid down for the exercise of discretionary powers, the

rules which confer the power need not be struck down but only the actual

exercise of power under it which is unreasonable on discriminatory will

be quashed.86

The judicial trend now is to uphold the conferment of discretion but

impose restraints on its unreasonable exercise. Most executive actions

have an element of discretion about it. Barring cases where the statutory

provision or uncodified law in issue is mandatory, the administrative

authority would be faced with the question 'to act or not, and if to act then

to act in what manner’. Courts are primarily concerned with the manner

of exercise of discretion and not with its matter unless the questions of 84. Gupta, R.S., "Administrative Discretion and Judicial System", 'Indian Journal

of Public Administration, 1980, Oct.-Dec., p. 1120 85. William A Robson, Justice and Administrative Law, Sleven and Sons, London,

1955, 3rd edition, p. 400-401. 86. Pannalal Bingraj v Union of India, (1957) SCR 233

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reasonableness are involved. The direction is of the authority and not the

court. Administrative Law builds up the unwritten rules that supplement

the written rules conferring the discretion. Its function is to define the

principles which demarcate the boundaries of discretion exercised

properly.

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CHAPTER-III

WEDNESBURY PRINCIPLE OF UNREASONABLENESS

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1. Position prior to Wednesbury Principle

(A) Early Decisions on Unreasonableness

(B) Unreasonableness – Developments in the 20th

Century

(C) Cases referred in the Wednesbury judgement

2. Wednesbury case and Principle

(A) Judgement and Principle

(B) Summary of the Case

(C) Criticism of Wednesbury principle

3. Wednesbury Unreasonableness in India

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CHAPTER-III

WEDNESBURY PRINCIPLE OF UNREASONABLENESS

In the history of judicial review there are ample evidences that

‘unreasonableness’ of any order made by the administrative authority has

been a solid ground for its challenge. In the earlier days the life was much

simple and to find out what is reasonable and what is not reasonable, one

had to just apply the real meaning of the term. But today the procedures

are overlapping and life is bit complex. Every process needs to be defined

and every definition requires interpretation either by the statutes or by the

Courts. Thus the concept of unreasonableness is not an exception when

viewed in regard to judicial review. The basis of the jurisdiction is

provided by the fact that the Parliament never intends anyone to behave

unreasonably.

Before evaluating the Wednesbury principle we have to see whether

unreasonableness is a separate ground for judicial review and a tool for

challenging administrative action and whether it is not covered in ultra-

vires doctrine. The ultra-vires doctrine refers to an action which is in

excess of the powers of decision making bodies, and the reasoning or

implications of this principle are important in so far as they uphold the

sovernity of Parliament and the Rule of Law1. Very often there are cases

in which more than one ground of challenge became the facts of any case

and are likely to introduce several levels of complexity. In several

decisions unreasonableness has emerged as a common factor.

1. www.lawteacher.net/free-lawessays/constitutional-law/scope-of-the-

wednesbury-principle-constitutional-law-essay.php, assessed on 17-12-2014.

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In the Council of Civil Services Union v Minister for the Civil Service2

is popularly known as CCSU case. Lord Diplock classified the grounds

on which administrative action is subject to judicial control namely–

illegality, irrationality and procedural impropriety. He also said that

further grounds can be added as the law develops case by case. It is in the

second mentioned category that the Wednesbury principal finds relevance

and Lord Diplock elaborates the concept by stating that ‘irrationality’ is

applicable in a decision which is so outrageous in its defiance of either

logic, or morals that no sensible person could have arrived at that

conclusion on proper application of his mind. He also added that whether

or not a decision falls within the ambit of that category is subjective and

depends on the interpretation of the judge.

1. Position Prior to Wednesbury Principle

To understand the true importance of the Wednesbury Principle it is

necessary to analise the cases preceding the Wednesbury principle of

Unreasonableness. This can be discussed under as follows :

(A) Early Decisions on Unreasonableness: The principle of

unreasonableness was widely recognized even in the earlier times and

was established as one of the traditional grounds of review of

administrative discretion even much before the Wednesbury Principle

was laid down.

The most prominent case among them is the Rooke’s Case3. In this case

the Commissioner of Severs had levied charges for repairing a river bank.

Ideally, these charges ought to have been divided equally among all the

owners benefitted but this chargehad been thrown on one adjacent owner.

In this case the Court had to decide whether the decision of the

2. (1983) U.K.H.L. (6.) 3. (1598), 5 Rep. 99b.

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administrative body of the Commissioner of Sewers to assess Mr. Carter

a fee of 8 shillings for every acre he had adjoining the River Thames was

correct in having to pay for maintaining the bank from collapsing and

causing floods. They assessed him because there was an ancient

prescriptive obligation of the holder of his lands to maintain the bank but

there were many landowners whose lands would be flooded but the

Commissioner did not assess any fees from them4.

The Court asserted that even though the prescription existed, the statute

required that the Commissioner should have assessed the costs to

everyone who benefitted from flood prevention not just the bank owner.

This case is one of the earliest examples of judicial review of an

administrative act and is often thought to be the foundation of modern

administrative law. Reasonableness plays in this case the function

underlined by the Court in the promise to the judgement. Notwithstanding

the words of the Commission gives authority to the Commissioners to do

according to their discretions yet their proceedings ought to be limited

and bound with the rule of reason and law5.

Sir Edward Coke, C.J., also said that for discretion is a science on

understanding to discern between falsity and truth, between wrong and

right, between shadows and substance, between equity and colourable

glosses and pretences, and not to do according to their wills and private

affections. Thus in this case, the ‘Rule of Reason’ was imposed6.

In Estwick v City of London7 the main issue was concerned with the

discretionary powers of the Commissioner. It was held that the

4. Ciccheti, Anna.Frosini, Justino. Gola, Marcello, Public Law and Regulation,

Collected Essays, Maggioli ed. 2011, p. 31. 5 . Ibid. 6 . Id. 7 . (K.B. 1647) Style 42.

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Commissioner has the power to do a certain thing at his discretion but

such discretion needs to be sound discretion and it has to be according to

law and in case this is not followed the court has the power to redress

things done in non-compliance of these conditions.

While in the Rooke’s case, the judicial review of such discretion was not

explicitly dealt with, yet in ‘Estwick’ case which followed the Rooke’s

ratio to the extent that such discretion necessarily needs to follow the rule

of reason, the court also said that it has the power to assess such exercise

of discretion.

Thus in Leader v Moxon8 decided in 1773, the paving Commissioner was

given power to make alterations in streets ‘insuch manner as the

Commissioner shall think fit’. The Commissioner in exercise of his

discretion raised part of a street by six feet thus blocking the plaintiff's

doors and windows. The Court held that the Commissioner had grossly

exceeded their powers and such discretion was arbitrary. The Court also

observed that the Commissioner had ‘grossly exceeded their powers’

since the discretion was limited by ‘law and reason’.

This case demonstrates that even in the eighteenth century the position

established was that apparently unfettered discretionary powers could

properly be read subject to a principle of reasonableness9.

In one of the fascinating case decided by the Chancery Division in 1879,

the reasonableness principle and its application to the exercise of

discretionary powers was articulated clearly by the Vice Chancellor. This

case Vernon vVestry of St. James, West Minister10 concerned a decision

by the Vestry of St. James, Westminster (exercising statutory powers

8 . (1773) 2 Bl 929. 9 . Hickman, Tom Public Law after the Human Right Act, Bloomsbury Publishing,

ed. 2010, p. 19b. 10 . (1880-81) LR 16 ch D. 449, 459 (Malins VC) (The Regent Street Urinal Case).

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under the Metropolis Local Management Act, 1855) to site a public urinal

in a tiny cul-de-sac assessed from Regent Street, the Malins VC accepted

that there was great want of public urinal in Regent Street but rejected the

submission that the vestry had been made the Supreme Judge of the place

and cannot be controlled ‘unless they are acting in bad faith’.The logic

given by Malins VC has resonance even today if the question before me

were simply whether they were right in selecting the place and whether

one place on another was better, I should be bound to decide that the

Vestry are the sole judges as to what the situation should be. But great as

the powers of vestries under the Act are, not absolute and vestries are like

other public bodies liable to be controlled by this court.If they proceed to

exercise their powers in an unreasonableness manner whether they are

induced to do so by improper motives or from error of judgement.

(B) Unreasonableness – Developments in the 20th Century: In the 20th

century there were further developments in the judicial review of cases of

use of discretionary powers with respect to the rule of law and the

principle of unreasonableness.

In the Westminster Corporation vLondon and North Western Railway11

the appellant had a statutory power to provide public sanitary

conveniences and to construct these in or under any road. It built an

underground convenience on Parliament Street near Bridge Street in

London with assess to the pavement on either side of the street. The

London and North Western Railway, which owned property fronting

Parliament Street and Bridge Street, objected to the construction. Lord

Macnagnten in the instant case considered whether the Corporation had

constructed the subway as the means of crossing the streetunder colour

and pretence of providing public convenience which are not really wanted

11. (1905) AC 426, H.L. (U.K.).

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at the particular place, which would not have been authorised by the

statute. He concluded that the Corporation’s primary object had been to

construct the public convenience together with proper means of

approaching and exiting from them. The scheme thus was not unlawful.

However Lord Macnagnten did remark in the case that the body vested

with discretion should take care so as to keep within limits of the

authority committed to it and the exercise of its discretion must be

reasonable and in good faith.

Roberts v Hopwood12 is another leading case in view of reasonableness

of discretionary power and its exercise. In this case, under the power of

the Local Council to determine wages the Poplar Borough Council

resolved that it should act as a model employer and pay a higher uniform

wage rate of 4 pounds per week to male and female employees. This

meant a 20% increase for men and a 38% increase for women. The

District Auditor disallowed the increase under the U.K. Public Health

Act,1875 as‘contrary to law’ and imposed a surcharge of 5000 pounds on

the members of the Council. The House of Lords held that the Council

had acted contrary to law and the surcharge was rightly made, as the

council had wrongly considered some acentric principles of socialistic

philanthropy, or a feminist ambition to secure equality of the sexes in the

matter of wages. Once again in this case the test was reasonableness of

the exercise of discretion.

Further, in the leading case of Howard-Flanders v Maldon

Corporation13 decided in 1926, Scrutton L.J., the case concerning road

improvement in which an action was brought against a highway

authority, which had in perfectly good faith and for the public good

widened a road up to the plaintiff's front door, upheld that the powers had 12. (1925) A.C. 578. 13. (1926) 135 L.J. 6.

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been exercised unreasonably. It was considered that it was ‘much more

intelligible and satisfactory’ simply to ask whether the statutory power

had been exercised ‘with reasonable regard to rights of others’.

Then in East Suffolk Rivers Catchment Board v Kent14 which for many

years was the governing authority on liability in tort for public authority,

Lord Atkin considered many cases again. He stated that he regarded it as

established in Law that ‘A public authority whether doing an act which it

is its duty to do, or doing an act which it is merrily empowered to do,

must in doing the act do it wiothout negligence, or as it is put in some of

the cases must not do it carelessly or improperly’.While the Word

‘reasonableness’was not used here,the reference to ‘improperly’

contemplated that a public authority making a careful but unreasonable

decision could not claim to be acting properly with authority of

Parliament.

(C) Cases referred in the Wednesbury judgement: The Wednesbury

case did not arise by itself out of nowhere. On the contrary precedents

contributed largely to the judgement of the Wednesbury case which

shaped the principal of unreasonableness though many cases were cited in

the judgement of Wednesbury. It is necessary to analyse some important

cases referred to therein:

Theatre de Luxe (Halifax), Limited v Gledhill15 In this case the relevant

Legislation was the Cinematography Act, 1909. This provides that the

Cinematography Act is an Act to make better provision for securing

safety at Cinematograph and other exhibitions and for this purpose, a

County Council may grant licenses to such persons as they think fit to use

the premises specified in the license for the purpose of Cinematograph

14. (1941) A.C. 74, 90. 15. (1915) 2 K. 849.

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exhibitions on such terms and conditions and under such restrictions as

subject to regulation of the Secretary of State, the Council may but the

respective license determine.A license was granted under the Section 2(1)

of this Act subject to the condition that-

(a) children under 14 years of age could not enter the premises after 9

pm, if they are unaccompanied by a guardian or a parent.

(b) children under 10 years of age could not enter the premises,

irrespective of whether they are accompanied by a guardian or a parent.

In this judgement the majority of Lush and Rowlatt, JJ., opined that the

conditions was ultra-vires in as much as there was no connection between

the ground upon which the condition was imposed and the use of the

premises that is there was no connection between the health and welfare

of children and the use of the premise for holding exhibitions. The

minority as per Atkin J. was referred to in the judgement of the

Wednesbury case. Atkin J. opined that the restriction upon the power of

the authority to impose conditions on the grant of license to these houses

must satisfy three requirements viz., they must be reasonable, they must

be in respect of the use of the licensed premises and they must be in

public interest. He added that if these requirements are satisfied then the

conditions are not ultra-vires and the authority can take into account the

public interest so far as children are affected16.

Another important case is in context is Harman v Butt17.This case was

concerned with the Section 1(2) of the Sunday Entertainment Act, 1932.

Acting under these provisions and authority having powered to grant

license under the Cinematograph Act, 1909 allowed a Cinematograph

theatre in their area which was licensed under the aforementioned Act, to

16. Ibid. 17. (1944) K.B. 491.

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be open and used on Sunday for the purpose of Cinematograph

Entertainment. In the exercise of this discretion the authority imposed a

condition on the Cinematograph theatre that no children under the age of

16 years should be admitted to the Cinematograph theatre.

In this case it was held by Hens Collins J., that the imposition of this

condition was not ultra-vires and the condition was not unreasonable.

Discretion, when vested in an authority must be exercised in a reasonable

way and there is nothing in the exercise of discretion vested in the

authority which suggest that it was not exercised in a reasonable manner

in accordance with the ‘Rule of Reason’.

Further in Ellis v Dubowski18 the Middlesex County Council licensed

premises as a cinema with a condition of license that no films were to be

shown in their which had not been certified for public exhibition by the

British Board of Film Censors. A cinema showed an uncertified film and

was charged by the County Council. The grant of license was made under

the County Council’s powers under the Cinematograph Act, 1909 which

provided for delegation in only very narrow circumstances. The Court

held that making the British Board of Film Censors the final arbiters was

ultra-vires for putting the Statutory decisions ‘into the hand of the third

person or body not possessed of statutory or Constitutional authority’ and

was thus unreasonable.

2. Wednesbury Case and Principle

In the modern period the administrative authorities whether created by

statute or by the Government enjoy wide range of discretionary powers.

These powers are subject to some conditions and restraints have been put

to its use.19 The main factor is that the administrative power must be

18. (1921) 3 K.B. 621. 19 . Wednesbury case - (1948)1 K.B. 223

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exercised keeping in mind the interest of the society and the public good.

Since the use of discretionary powers are not only necessary but are also

wide as such these powers are generally abused or exercised wrongly.

The courts in these cases have been very cautious in exercising its power

of judicial review but the new developments in the exercise of

administrative discretion has made the courts to adopt new techniques to

discipline this exercise of discretion by the authorities20.

In the case of Wednesbury Corporation that the Court of Appeal in

England ruled that the Courts could only interfere in the action of the

executive authority if it is proved that the authority acted against the law

or statute and that the powers of the Court to interfere in such matters is

very limited. The Court may interfere only when the exercise of

discretionary powers conferred to the authority is against the settled

principles of law. The Court could only interfere in case where the

irrelevant factors had been taken into account while exercising the

discretion or the decision taken was such that no reasonable person could

have taken it.

The Wednesbury principle referred to was the case of Associated

Provincial Picture Houses limited v Wednesbury Corporation21. The

Plaintiff’s company, the owners and licenses of the Gaumont Cinema,

Wednesbury, Staffordshire, were granted by the defendants who were the

licensing authority for that borough under the Cinematograph Act, 1909,

a license to admitted to any entertainment whether accompanied by an

adult or not.In these circumstances the Plaintiffs brought an action for

declaration that the condition was ultra-vires and unreasonable.

20. www.lawteacher.net/free-law-essays/, assessed on 7-12-2014. 21. (1948) 1 K.B. 223.

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References were made to two important Acts in the case. The first was

The Cinematograph Act under which Wednesbury Corporation had the

power to grant licenses in any area for Cinematograph performances. The

second, was The Sunday Entertainment Act Section 1(1) which provided

that if an authority had under the Cinematograph Act the power to grant

licenses in any area for Cinematograph performances, then such authority

had the power to allow a licensed place to be open and used on Sunday,

subject to such conditions as the authority thinks fit to impose22. There

was no confusion that the Wednesbury Corporation was an authority

under both the Acts mentioned.

(A) Judgement and Principle : The Court held that in considering

whether the authority having so unlimited power has acted unreasonably,

the court is only entitled to investigate the action of the authority with a

view to seeing if it has taken into account any matters that ought not to be

or disregarded matters that ought to be taken into account.23 Court further

observed that it cannot interfere as an appellate authority overriding the

decision taken by the authority but can act only as a judicial authority as

to whether the authority concerned has acted against any law or has acted

in excess of its powers24.

Lord Green M.R. held that when any executive discretion is entrusted by

the Parliament to anybody such as a Local authority, such discretion

exercised by the executive can only be challenged in the courts in limited

class of cases.

22. Ibid. 23. Based on excerpts from full case law, source: www.justis.com/titles/iclr-

54821028.html, and oxycheps. new. ox.ac. uk/casebook/resources/ASSOCI-DOC.pdf, assessed on 10-11-2014.

24. Supra note 21 para 5.

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Unreasonableness was used to describe action based on illegality and

irrelevance etc. He specifically stated that the Courts must always I think

remember this; First, we are dealing with not a judicial act but an

executive act. Secondly, the conditions which under the exercise of that

executive act may be imposed are in terms so far as the language goesbut

within the discretion of the Local authority without limitation. Thirdly,

the Statute provides no appeal from the decision of the Local authority25.

Lord Green M.R., in the crux of the judgement, settling the principle

quoted that26 what then, is the power of the courts? They can only

interfere with an act of the executive authority if it be shown that the

authority has contravened the law. It is for those who assert that the local

authority has contravened the law to establish that proposition. On the

face of it, a condition of the kind imposed in this case is perfectly lawful.

It is not to be assumed prime face that responsible bodies like the Local

authority in this case will exceed their powers but the courts, whenever it

is alleged that the local authority have contravened the law must not

substitute itself for that authority. It is only concerned with seeing

whether or not the proposition made is good. When an executive

discretion is entrusted by Parliament to a body such as the local authority

in this case, what appears to be an exercise of that discretion can only be

challenged in courts in a strictly limited class of cases? As I have said, it

must always be remembered that the court is not a court of appeal. When

discretion of this kind is granted the law recognizes certain principles

upon which that discretion must be exercised but within the four corners

of those principles the discretion, in my opinion is an absolute one and

cannot be questioned in any court of law27.

25. Id. at para 4. 26. Supra note 19. 27. Supra note 21 para 5

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The court further added, “What then are those principles? They are

perfectly well understood.The exercise of such a discretion must be a real

exercise of the discretion. If, in the Statute conferring the discretion, there

is to be found expressly or by implication matters to which the authority

exercising the discretion ought to have regard then, in exercising the

discretion they must have regard to those matters. Conversely, if the

nature of the subject matter and the general those matters- - - bad faith,

dishonesty, those, of course, stand by themselves unreasonableness,

attention given to entravenous circumstances, disregard of public policy,

and things like that have all been referred to as being matters which are

relevant for consideration28. In the present case we have heard a great

deal about the meaning of the word “unreasonable”. It is true that

discretion must be exercised reasonably. What does it means? Lawyers

familiar with the phraseology, commonly used in relation to the exercise

of the statutory discretion often use the word unreasonable in

comprehensive sense. It is frequently used as a general description of the

things that must not be done. For instance, a person entrusted with

discretion must direct himself properly in law. He must call his own

attention to the matters which he is bound to consider. He must exclude

from his consideration matters which are irrelevant to the matter he has to

consider. If he does not obey these rules, he may truly be said an often is

said to be acting ‘unreasonably’."29

(B) Summary of the Case : Dismissing the appealit was pointed out that

“I do not wish to repeat what I have said, but it might be useful to

summarise once again the principal, which seems to be that the Court is

entitled to investigate the action of the local authority with a view to

seeing whether it has taken into account matters which it ought not to

28. Ibid. 29. Id.at para 12

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take into account or conversely has refused to take into account or

neglected to take into account matters which it ought to take into account.

Once that question is answered in favour of the Local authority, it may

still be possible to say that although the local authority have kept within

the four corners of the matter which they ought to consider, they have

nevertheless come to a conclusion so unreasonable that no reasonable

authority could ever have come to it. In such a case I think Court can

interfere. The power of the Court to interfere in each case is not as an

appellate authority to override a decision of the local authority, but as a

judicial authority which is concerned, and concerned only, to see whether

the local authority has contravened the law by acting in excess of the

powers which Parliament has confided in them.30

The test laid down in this case in all three limbs is known as the

‘Wednesbury test’. These three limbs are as follows:

(i) whether the authority took into account factors that ought not

to be taken into account,

(ii) whether the authority failed to take into account factors that

ought to have been taken into account, and

(iii) whether the decision of the authority was so unreasonable

that no reasonable body would ever consider imposing it.

The term ‘Wednesbury unreasonableness’ is used to describe the third

limb.

(C) Criticism of Wednesbury principle: The principle of

reasonableness set a standard of substantive review which reflects

traditional thinking about how judges and administrator should relate to

one another. However the principles and doctrine of Wednesbury has

30. Id. at para 12

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been subject to criticism and that too a great deal. The central point of the

criticism has been the methodology of the Wednesbury and the

substantive level of review which it supplies.

The methodological critique is centrally concerned with transparency and

it is argued that the Wednesbury review lacks this quality, because the

finding of ‘unreasonableness’ or ‘reasonableness’ risks creating the

impression of judicial decision making by intuition, since such a

conclusion may be unaccompanied by any structured application or

explanation of the judicial reasoning process which yielded to it. To an

extentthis is a function of circularity of the traditional text if the

‘unreasonable’ decision is defined simply in terms of that which no

decision maker would reach, then little scope exist for the elaboration of a

structured and transparent judicial decision maker process31.

Paul P.Craig32 has illustrated this point by contrasting the Wednesbury

principle with the ‘Proportionality’ test as “Proportionality provides a

more structured analysis of the kind which is often lacking under the

Wednesbury formula- - -. This is of particular relevance given the

mismatch between the rtiatoric and reality of Wednesbury review - - - if it

is accepted that our courts even in cases which do not involve rights are

in reality applying Wednesbury more intrusively than the bare words of

the text would suggest and if it is also the case, that this requires some

balancing of interest, whether explicit or implicit, then this should be as

transparent as possible. The reasoning process provided by

Proportionality renders this more likely to occur than the comparatively

unstructured Wednesbury process.

31. Beaston, Mathews and Elliot’s Administrative Law: Text and Materials, 3rd

ed., Oxford University Press, p. 256-257. 32. Craig, Paul P.,“ Proportionality, rationality and Review”, Faculty of Law,

University of Oxford, 2010, New Zealand Law Review, p. 99-100.

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“The criticism of Wednesbury principle is acute on some other ground

also. As well as the understanding the structure of court’s reasoning

process people also want to know as to by finding of unreasonableness;

what are the substantive norms being protected by the courts. A mere

finding of ‘unreasonableness’ does not convey anything very particular

about why the decision in question is objectionable or about which values

it infringes33. It has been explained that the Wednesbury test is confusing

because it is tautologous. It allows the court to interfere with decisions

that are unreasonable and then define as unreasonable decision as one

which no reasonable authority would take- - - this test is unhelpful as a

practical guide - - - the incantation of the word unreasonable simply does

not provide sufficient justification for judicial intervention. Intellectual

honesty requires a further and better explanation as to why the act is

unreasonable. The reluctance to articulate a principled justification

naturally encourages suspicion that prejudice and policy considerations

may be hiding underneath Wednesbury ample cloak- - -.34

In R v Education Secretary, Ex-Party Begbie35 it was remarked by Laws

L.J.thatfairness and unreasonableness (and their contraries) are objective

concepts; otherwise there would be no public law or if it there were it

would be palm tree justice. But each is a spectrum not a single point and

they shade into each other. It is now well established that the Wednesbury

principle itself constitutes a sliding scale of review more or less intrusive

according to the nature and gravity of what is at stake.

The case which clearly and very usefully illustrates the manner, in which

the Wednesbury review can obscure the normative foundations of judicial

33. Supra note 31, p. 257. 34. Jowell and Lestor, “Beyond Wednesbury: Substantive Principles of

Administrative Law”, 1987, Public Law 368 at p. 372. 35. (2000) 1 W.L.R. 1115.

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decisions, is the case of Wheeler v Leicester City Council36. This case

arose after three members of the Leicester Rugby League were choosen

for the 1984 England Tour to South Africa. This was the era of apartheid.

The defendant authority invited a Rugby Club to condemn the

participation of these players in the town of South Africa. The club

refused to do so. It condemned apartheid but considered that there were

differences of opinion as to how best to break it down and that the

members had individual choice as to where to play. Leicester City

Councils response was to draft four questions, relating to whether the

Rugby Club considered that the decision to tour was an insult to the large

proportion of Leicester population and whether the club would press the

Rugby Football Union and the players to call off and pull out of the tour

respectively. In this the Council indicated that only affirmative answers

would be acceptable. The club refused and when no decision was reached

in following weeks, purporting to act under discretionary powers to

regulate the use of its own land, the council passed the resolution banning

the club from using its recreation ground for twelve months.

The club sought a judicial review of the decision eventually the House of

Lords stated that the Council did have power under Section 71 of the

Race Relations Act, 1976 to consider the best interest of race relations in

regard to the man agreement of the recreation ground. However in

demanding the club provides affirmative answers to the four questions in

order to ensure the club accepted its views and position. The House of

Lords took the view that the Council had acted unreasonably. It was

therefore a situation where the courts should interfere because of the

unfair manner in which the council set about obtaining its objective and 36. (1985) 1 A.C. 1054.

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since the club had done no wrong the Council could not use their

statutory powers in order to punish the club37.

In the Court of Appeal Lord Roskill, whose speech commanded the

ascent of three of the judges of the House of Lords commented that to my

mind the crucial questions whether the conduct of the Council in trying

by - - - the questions (which they ask the club) whether taken individually

or collectively, to force acceptance of the club of their policy (However

proper the policy may be) on their own terms- - - can be said either to be

so unreasonable as to give rise to ‘Wednesbury’ unreasonableness or to

be so fundamental a breach of the duty to act fairly which rest upon every

Local authority in matters of this kind. None of the learned judges in the

court below have felt able to hold that the action of the club was

unreasonable or perverse in the ‘Wednesbury’ sense. They do not appear

to have been invited to consider whether those actions even if not

unreasonable on Wednesbury principle, were assessable on the ground of

procedural impropriety or unfairness by the Council in the manner in

which, in the light to the facts, which I have outlined, they took their

decision to suspend for twelve months the use by the club of the Well

Ford Road Recreation Ground. I greatly hesitate to differ from four

learned judges on the Wednesbury issue but for myself I would have been

disposed respectfully to do this and to say that the actions of the Council

were unreasonable in the ‘Wednesbury’ sense”.

The observations of Lord Cooke of Thorndon in this regard are

noteworthy made in the case of R v Secretary of State for the Home

Department, Ex-Party Daly38 – “I think that the day will come when it

will be more widely recognised that Associated Provisional Picture 37. Anderson, Jack.,“Leading Cases in Sports Law”,Springer Science and Business

Media, 2013, p. 119. 38. (2001) U.K.H.L., 26.

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House Limited v Wednesbury Corporation, was an unfortunately

retrogressive decision in English Administrative Law; in so far as it

suggested that there are degrees of unreasonableness and that only a very

extreme degree can bring an administrative decision within the legitimate

scope of judicial invalidation”39.

The crux of the judicial opinion was that the depth of the judicial review

varied with subject matter. An individual may find an administrative

decision unreasonable but that is not enough for the court to strive down

the administrative action as ‘unreasonable’. It is only in those extreme

and limited cases of unreasonableness where no reasonable person can

find the decision ‘reasonable’, does the Wednesbury principle permit the

court to interfere with the administrative decision? So much so, there can

be a large amount of subjectivity ruling the judicial mind in applying the

Wednesbury test.

3. Wednesbury Unreasonableness in India

The test of unreasonableness of the Wednesbury principle has been

applied in India but later it gave way to the proportionality principle.

India has been following the common law principle in the matters of

justice delivery system and for the interpretation of the statutes as well as

Constitution.We relies mainly on the basic principles laid down by the

superior court of common law countries. In India we closely follow the

decision of the United States Supreme Court, House of Lords, Court of

Appeal of U.K. and Supreme Court of Canada and this is reflected and

even expressly mentioned in various cases decided by the Supreme Court

and High Courts of India.

39. Id. at para 32.

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In Rameshwar Prasad vUnion of India40, a case concerningthe issue that

before the first meeting of the Legislative Assembly its dissolution had

been ordered on the ground that attempts were being made to cobble

together a majority b illegal means and to lay claim to form the

Government in the State. The main question before the court was whether

the dissolution of the Assembly under Article 356 (1) of the Constitution

could be ordered on the said ground. Linked with this question was the

correctness of the dissolution even before the Assembly met for the first

time after its due Constitution and the members took oath. The majority

while agreeing with the petitioners contentions held that no such powers

vested in the Governor. Such a power would be against the democratic

principles of the majority rule. If such a power is vested in the Governor

or the President the consequences can be horrendous and would open a

floodgate of dissolutions and will have far reaching alarming and

dangerous consequences.

However, the minority judgement delivered by Honourable Justice Arjit

Pasayat relied heavily on the Wednesbury Principle regarding the

standards for judging reasonableness of an executive action. It was

unfortunately overlooked that the Wednesbury principles have been

already diluted, if not rejected by the House of Lords and the Privy

Council in 2001 and 1999 respectively. This was pointed out in the

submission but somehow escaped attention.

In Canara Bank v V.K. Awasthi41 while deciding a case as to correctness

of the judgement of Division Bench of Kerela High Court holding that the

order directing surpendents dismissal from service was in violation of

principle of natural justice and order for dismissal was passed without

40. A.I.R. 2006 S.C. 980. 41. 2005 (6) S.C.C. 231.

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proper application of mind by the Disciplinary Authority. The Supreme

Court remarked that the Lord Green has said in 1948 in the famous

Wednesbury case that when a statute gave discretion to an administrator

to take a decision the scope of judicial review would remain limited. He

said that interference was not permissible unless one or the other

condition was satisfied, namely the order was contrary to law or relevant

factors were not considered, or irrelevant factors were considered --.

These principles were consistently followed in U.K. and in India to judge

the validity of administrative action”.

The court further remarked that to judge the validity of any administrative

order and statutory discretion normally the Wednesbury test is to be

applied to find out if the decision was illegal or suffered from procedural

improprieties or was one which no sensible decision maker could on the

material before him and within the framework of law have arrived that- -

- the court would however not go into the correctness of the choice made

by the administrator amongst the various alternatives open to him. Nor

could the court substitute its decision to that of the administrator. This is

the Wednesbury test”42. It was also stated that the position in our country

in administrative law where no fundamental freedoms as aforesaid are

involved is that the courts/tribunals will only play a secondary role while

the primary judgement as to reasonableness will remain with the

executive or administrative authority.

The secondary judgement of the court is to be based on Wednesbury and

CCSU principles a stated by Lord Green and Lord Diplock respectively

to find if the executive or administrative authority has reasonably arrived

at his decision as the primary authority”.

42. Excerpts based on full judgement text, source: indiakanoon.org/doc/1086058,

assessed on 10-11-2014.

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Also in Chairman, All India Railway Recruitment Board and Another

vK.Shyam Kumar43, the High Court had rejected the contentions of the

respondent that the order of the tribunal was politically motivated and

mala fied. Applying the Wednesbury principle of unreasonableness held

that the decision of the board as illegal, arbitrary and unreasonable and

had directed the board to finalise the selection of the candidates on basis

of first written test and to issue appointments to all candidates except the

62 candidates against whom there were allegations of impersonation.

However the Supreme Court applied the principal of proportionality and

rejected the Wednesbury test.

In a recent judgement by High Court of Delhi at New Delhi delivered on

1-11-2013 in Jindal Steel and Power Limited and another vRail Vikas

Nigam Limited44 in which petitioners had challenged clauses 6.2.2

(Technical Experience) and 6.2.3 (Production Capacity) of the two

invitations to tender issue on 2-7-2013 as being arbitraryunlawful and

violative of Articles 14 and 19 of the Constitution of India.The court

relying on the Wednesbury principle of unreasonableness decided the

case and remarked that it is not for the courts to supplant their own views

for that of the concerned agency of the state. The scope of judicial review

is limited to examine whether the decision of the administrative

authorities are arbitrary and unreasonable so as to fail the test of

unreasonableness as explained by Lord Green M.R. in Associated

Provisional Picture Houses Limited v Wednesbury Corporation. The

question that has to be asked is whether the decision of the concerned

authority (in this case the respondent) is so unreasonable that no 43 . (2010) 6 S.C.R. 291. 44 . W.P. (C) 5179/2013 and C.M. No. 11646/2013 and W.P. C 5189/ 2013 and

C.M. No. 11649/2013.

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reasonable person could possibly arrive at such a decision45.

In the matter of administrative law there have been tremendous changes

in last decades. Though the rights of superior court to invoke judicial

review is guaranteed by the Constitution of India its content, reach and

power and the balance between various principles are not incorporated in

any provisions of the Constitution. In this field various principles have

been enunciated on basis of notions of fairness which are the heart of the

principles of the Constitution. The principles of proportionality have

given way to Wednesbury principles and the outlook of judiciary has also

accordingly changed. Unreasonableness is struggling to survive as a

coherent and useful ground of review. Its days are surely numbered as a

tool for dealing with Constitutional and convention right claims i.e.

proportionality or merits review have already stepped in. Even in relation

to domestic law judicial review too much seems to be required of the

unreasonableness ground. Without developing a robust set of principles to

guide it, the appratus for variable intensity seems less than clear in

practice.46

Unreasonableness is an apparently straight forward and simple test may

fail in objectively assessing what would amount to 'unreasonable'. There

is also an inherent complexity in a large amount of subjectivity playing a

major role in identifying unreasonableness.47

The future of wednesbury unreasonableness as a ground of review looks

uncertain. The adoption of proportionality as a ground of review has

made wednesbury unreasonableness almost unnecessary as almost

anything which is wednesbury unreasonable would automatically be 45. para 22 of the Judgement. 46. Andrew Le Sueur, "The Rise and Ruin of Unreasonableness", a. lesueure bham.

ac. uk, 2004. 47. Rajan Varghese, "The Relevance of Wednesbury Unreasonableness", www.

iipa.org.in/g-rajan. pdf at p. 91.

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disproportionate.48

However the concept of unreasonableness is surrounded by scope to more

act and also of freedom to choose which gives enough scope for judicial

innovation and application of judicial wisdom. Thus the concept of

unreasonableness is open ended and has enough scope for developing

various principles and standards depending on the circumstances

prevailing at any time. The categories of unreasonableness are never

ending and shall be in existence at any given time.

Time has yet not come to say goodbye to wednesbury for ever.

Wednesbury even today finds it presence in domestic law where the

violation of ordinary right of citizens is concerned both in United

Kingdom as well as in India. Despite numerous criticisms of the

restrictive and unrealistic high thresholds set by the wednesbury test it

would continue to exist and be used would over.49

48 . Bent, Greeme Broad,Public Law Directions, Oxford University Press, 2009,

p.267. 49. Kumar, Tarun Kirshna. "The Wednesbury Principles: Formulaiton, Evolution

and Demise",www. calq.in/ sites/ default/files/-1.pdf at p.17.

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CHAPTER-IV

JUDICIAL REVIEW

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1. Meaning 2. Doctrine of Judicial Review 3. Position in India 4. Limits of Judicial Review 5. Judicial review and Ouster Clause

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CHAPTER IV

JUDICIAL REVIEW

Before proceeding to the analysis of the doctrine of proportionality and

its impact on the judicial review it is necessary to discuss briefly the

concept of judicial review and its growth over the period of time. Judicial

review is the prime tool for the control of excessive or uncontrolled

administrative discretion or in other words for the control of abuse of

administrative discretionary powers.

The policies of the Government in any democratic form of set up and its

modes of operations are mainly shaped by the views and choices of the

public. For meeting the social and other basic needs of the society the

Government sets up many constitutional or other institutions in order for

smooth running of these institutions, it is officials or controlling

authorities are conferred with wide discretionary powers. The actions of

these administrative authorities, when executed for the good of public and

when these actions cause no infringement of rights and liberties of

citizens are so far so good. But often it so happens that the administrative

authorities exceed their jurisdiction and make improper use of their

discretionary powers for their own or for other private benefits due to

which the society or public is affected. Whenever this occurs the abuse of

discretionary power is brought to halt and check by the judicial review.

The judiciary checks the ‘Proportionality’ element i.e. the public good as

against the infringement of rights or private benefits.

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1. Meaning

Judicial review can be defined as a procedure by which a court can

review an administrative action by a public body and secure a declaration,

order or award1. In the United States, in general, it means the review by

the Supreme Court of the constitutional validity of a legislative act2.The

judicial review is “a procedure by which a court can pronounce or an

administrative action by public body or “Courts power to review the

actions of other branches of government especially the courts power to

invalidate legislative and executive actions as being unconstitutional”3.

Lord Scarman in Nottinghamshire County council v Secretary of State

for the Environment4 has penned “Judicial Review is a great weapon in

the hands of the judges; but the judges must observe the Constitutional

limits set by our parliamentary system upon the exercise of this beneficial

power”.

In Lonrho plc v Secretary of State for Trade and Industry5 Lork Keits

observed: “Judicial Revies is a protection and not a weapon”

Henry J Abraham defines judicial review as the power of any court to

hold unconstitutional and hence unenforceable any law, any official

action based upon a law or any other action by a public official that it

deems to be in conflict with the Basic Law6.

1. Concise Oxford English Dictionary, 2002, p. 765. 2. Legal Dictionary, the free dictionary. com/Judicial review. 3. Black’s Law Dictionary, 8th ed. at p. 864. 4. 1986 (1) ALL.E.R. 199. 5. 1989 (2) ALL.E.R. 609. 6. Abraham, Herny J The Judicial Process 4th ed., Oxford University Press, 1980,

p.296.

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Howard Mebain defines judicial revise as the power possessed by the

courts to declare that legislative and executive action are null and void if

they are volatile of the written constitution7.

Broadly speaking, judicial review deals with the judicial review of

legislative action, judicial review of judicial decision and the judicial

review of administrative action.

In L. Chandra Kumar v Union of India8 it was stated that judicial review

is a great weapon in the hands of judges. It comprises the power of a

court to hold unconstitutional and unenforceable any law or order based

upon such law or any other action by a public authority which is

inconsistent or in conflict with the basic law of the land.

Judicial review is the way in which a decision made is challenged rather

than the rights and wrongs of the conclusion reached. There are many

administrative agencies or tribunals which make decisions of one sort or

another the decisions of which can also be appealed. In many cases the

appeal from administrative agencies is known as ‘Judicial Review’,

which is essentially a process where a court of law is asked to rule on the

appropriateness of the administrative agency or the tribunal's decision.

Judicial review is a fundamental principle of administrative law. A

distinctive feature of judicial review is that the ‘appeal’ is not usually

limited to errors in law but may be based on alleged errors on the part of

the administrative agencies on findings of the fact. ‘Judicial Review’ is a

user friendly term used by many jurisdictions to encompass the more

traditionally named remedies of Mandamus Habeas Corpus, Certiorari

and Prohibition9.

7. www.internatiaonal seminar. org. pdf p.5 8. (1997) 3 S.C.C. 261 (292). 9. www.dutaime.org/legaldictionary/j/judicialreview.aspx, assessed on 14-11-

2014.

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2. Doctrine of Judicial Review

The doctrine of judicial review is prevalent in the countries having

written Constitutions. A court having judicial power may invalidate laws

and decisions which are incompatible with a higher authority such as the

terms of a written Constitution. Under the doctrine of judicial review the

legislative and executive actions are subject to the review by the

judiciary. The judiciary holds a very significant and powerful position in

the democratic countries. The courts in such position not only solve and

settle the disputes arising among the citizens but also resolve the disputes

between the various sectors of the State itself as well as the disputes

arising between the State and the citizens. In the democratic countries

especially where there is a written Constitution, it is a settled principle

that the Constitution is supreme and any legislation or act which is

against the provisions of the constitution is invalid and void. Judicial

review is one of the checks and balances in the separation of power i.e.

the power of the judiciary to supervise the executive as well as legislative

branches. The main principle behind this is that it is necessary that the

provisions laid down by the constitution must be implemented by a body

which is independent and authoritative because in absence of such an

authority the government administrative bodies and the legislative body

may exercise their powers in such a way which may be against the

constitutional provisions and may affect adversely the rights and liberties

of public. The courts have to act as a guardian of the constitution and has

also to interpret the provisions of the constitution in such a way that the

basic essence of the constitutional provisions is revealed and

implemented and as such it has to have powers over all the bodies as far

as this aspect goes i.e. the legislative, executive and quasi-judicial bodies

etc.

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It is significant to mention that in Eshugbayi Eleko v Government of

Nigeria10, Lord Atkin stated that in accordance with British jurisprudence

no member of the executive can interfere with the liberty or property of a

British subject except on the condition that he can support the legality of

his action before a court of justice. And it is the tradition of British justice

that judges should not shrink from deciding such issues in the face of the

executive.

It may be noted that in Britain, there is no written constitution. There, a

person who feels that an exercise of public power by a government

authority such as a minister, the local council or a statutory tribunal is

unlawful and his or her rights have been violated then it may apply to the

Administrative Court (A Division of High Court) for judicial review of

the decision. The English doctrine of parliamentary sovereignty means

that the law does not allow the judicial review of primary legislation

except in few cases where primary legislation is contrary to law of the

European Union11.

Judicial review can be understood in the context of two distinct but

parallel systems as civil law and common law and also by two distinct

theories of democracy regarding the manner in which government should

be organized with respect of principles of legislative supremacy and the

separation of powers. Thus, while in common law judges are seen as

sources of law capable of creating new legal principles and rejecting the

legal principles no longer valid while in civil law judges are seen to apply

the laws with no power to create or destroy the legal principles.

The idea of separation of powers is a theory on the organisation of the

democratic government. The idea of separation of powers was introduced

10. (1931) A.C. 662 P.C. (on appeal from Nigeria). 11. en.wikipedia.org/wiki/Judicial-review-in-English-law, assessed on 14-11-2014.

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by Montesquieu12. The aspect of judicial review in the separation of

powers was institutionalised by the landmark case of Marbury v

Madison13 under the court of John Marshall, decided on 24th February

1803. This case resulted from a petition to the Supreme Court by William

Marbury, who had been appointed Justice of Peace in the District of

Columbia by President John Adams but whose commission was not

subsequently delivered. Marbury petitioned the Supreme Court to force

the new Secretary of State James Madison to deliver the documents14. On

24th February, 1803, the Court rendered a unanimous decision that

Marbury had the right to his commission but the court did not have the

power to face Madison to deliver the commission. However, John

Marshall on the question of whether Marbury had the remedy stated that

the government of United States has been emphatically termed as

government of laws and not of men. It will certainly cease to deserve this

high appellation if the laws furnish no remedy for the violation of vested

legal right15.

This conflict raised an important question of what happens when an Act

of Congress conflicts with the Constitution. Marshall answered that Acts

of Congress that conflict with the Constitution are not law and the courts

are bound instead to follow the Constitution affirming the principle of

judicial review. Marshall took the view that there is no point in having a

written constitution if the courts just ignore it. He affirmed that to what

purposes powers limited are, and to what purpose is that limitation

12. Montesquieu, Baron Charles de The Spirit of Laws. Published in 1748,

Translated in French 1977, London. 13. 2 L. ed. 60, 1 Cranch 137, 5 U.S. 137 (1803). 14. en.wikipedia.org/wiki/Marbury-v-Madison, assessed on 14-11-2014. 15. Ibid.

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committed to writing if these limits may at any time be passed by those

intended to be restrained16.

The core of this decision can be found on the following observation from

the decision “it is emphatically the province and duty of the judicial

department (The judicial branch), to say what the law is. Those who

apply the rule to particular cases must, of necessity, expound and

interpret the rule. If two laws conflict with each other, the courts must

decide on the operation of each.

So, if a law (e.g. a statute or treaty) be in opposition to the Constitution if

both the law and the constitution apply to a particular case so that the

Court must either decide that case conformably to the law disregarding

the constitution, or conformably to the Constitution, disregarding the law

the court must determine if these conflicting rules govern the case. This is

one of the very essences of judicial duty. If then, the courts are to regard

the constitution and the constitution is superior to any ordinary Act of the

Legislature, the Constitution and not such ordinary Act must govern the

case to which they both apply.

Who controvert the principle that the constitution is to be considered in

court as a paramount law are reduced to the necessity of maintaining that

courts must close their eyes on the constitution and see only the law (e.g.

the statute or treaty). This doctrine would subvert the very foundation of

all written constitution”17.

Questions have been raised about the logic of Marshall’s argument for

judicial review by legal scholars and writers. For e.g. Alexander Bickel in

his book18 argues that Marshall’s argument implies an unrealistic

16. 5 U.S. (1 Cranch) at 176. 17. Supra note 13 at 177 to 178. 18. Bickel, Alexander, The Least Dangerous Branch,1962, Indianapolis: Bobby

Merrill, ISBN; 978 -0-300-03299-4, Retrieved May 26, 2011.

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mechanical view of jurisprudence, one which suggest that the court has

an absolute duty to strike down every law it finds violative of

Constitution.

Despite such criticisms the case of Marbury v Madison19 established the

acceptance of judicial review in American legal community.

Although the power of judicial review is said to have originated with

Marbury case, the concept of judicial review has ancient roots. The idea

that courts could nullify statutes originated in England with Chief Justice

Edward Coke’s opinion in Dr. Bonham’s case20 “This decision arose

under a statute of Parliament enabling the London College of Physician’s

to law fines against anyone who violated their rules. The college accused

a doctor of practicing without a license and fined him accordingly. Coke

found that their statutory powers violated ‘common right on reason’

because no person should be a judge in his own case”.

Between the ratification of the Constitution in 1788 and the Supreme

Court’s decision in Marbury in 1803, judicial review was used in a

number of cases in both state and federal courts21. It was argued by

William Treanor that the sheer number of decisions not only belies the

notion that the institution of judicial review was created by Chief Justice

Marshall in Marbury. It also reflects widespread acceptance and

application of the doctrine22. For e.g. in Hylton v United States23 the

court upheld a federal tax on carriages against a claim that the tax

violated the ‘direct tax’ provision of the Constitution. This was

manifestly a case of judicial review of the constitutionality of legislation.

19. Supra note 13. 20. Thomas Bonham v College of Physician’s, 8 C.O.Rep.107. 21. Supra note 14. 22. TreanorWilliam,“Judicial review before Marbury” , 58, Stanford Law Review,

455, 457-58, (2005) 17.3 U.S. (3 Dall) 171 (1796). 23. 17.3 U.S (3 Dall) 171 (1796).

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Most modern legal systems allow the court to review administrative acts.

In many systems this also includes the review of secondary legislation

that is legally enforceable rules of general applicability adopted by

administrative bodies24. In some countries like France and Germany these

are administrative courts which have powers to resolve disputes between

public and administration. There is even a administrative court within the

High Court of England and Whales. In countries like the United States,

Netherlands and Scotland etc. judicial review is carried out by regular

civil courts.

A written constitution through the power of judicial review keeps a check

on the arbitrariness of the administrative acts and the legislature. But even

in countries where there is no written constitution judicial review is

exercised through the decision of courts. Judicial review plays an

important role in establishing the rule of law and democratic values in a

country. That is why, in countries where there is no written constitution,

there is a demand for having a written constitution so that judicial review

can be exercised at ease25.

In relation to constitutional frame work of United Kingdom it has been

observed that having no written constitution on which he can fall back,

the judge must in every case be able to demonstrate that he is carrying out

the will of Parliament expressed in the statute conferring the power. He is

on safe ground only where he can show that the offending Act is outside

the power. The only way in which he can do this in the absence of an

24. en.wikipedia.org/wiki/judicial-review#cite-ref-1. 25. Scarman Sir Leslie, English law-The New Dimension, Hamlyn Lectures,

Twenty Sixth series, London, St. Evens and Sons Ltd, 1974.

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expressed provision, is by finding an implied term or condition in the Act,

violation of which then entails the condemnation of ultra-vires26.

3. Position in India

Judicial review in India is based on the assumption that the Constitution

is the supreme law and all government organs which owe their origin to

the Constitution and derive their powers from the constitutional

provisions must not do any act which is against the provisions of the

Constitution. The court in India has performed the role of guardian of the

Constitution and also expounds the provisions of the Constitution.

The doctrine of judicial review in India has been incorporated in several

provisions of the Constitution itself. Article 13 of the Indian Constitution

provides that every law in force or every future law which is inconsistent

with or in derogation of fundamental rights shall be void. The power of

reviewing legislative enactment of the Union and States has been

expressly vested in the Supreme Court of India27. Being the guardian of

the fundamental rights and the arbiter of constitutional conflicts between

the Union and States with respect to the division of powers between them

the Supreme Court enjoys the competence to exercise the power of

reviewing legislative enactments. The constitution also provides the

enforcement of fundamental rights by providing the right to move to the

Supreme Court for enforcement of these rightsand by granting power to

the court to issue discretions or orders or writs for the enforcement of

these rights28.

Further under Article 143 of the Indian Constitution the President can

consult the Supreme Court on any question of law or fact in any matter of 26. Wade H.W.R. and Forsyth C.F., Administrative Law, 10th ed., Oxford

University Press, 2009, p.31. 27. Article 131& 136 of the Indian Constitution. 28. Article 32 of the Indian Constitution.

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public importance and may refer a dispute to the Supreme Court for

opinion. The High Courts in India are also given the powers to issue

directions or orders or writs to any person or authority or even the

Government for enforcement of fundamental rights or for any other

purpose29. Besides this, Article 246 deals with subject matters of laws

made by the Parliament and by State Legislature and provides matters on

which laws can be made by the Parliament and State. Article 372 (1)

establishes the judicial review of the pre-constitutional legislation.

Thus the principle of judicial review is firmly established in India by the

Constitution itself. The courts have the constitutional powers to interpret

the Constitution while adjudicating disputes between States and Union or

the individuals or States. The interpretative function of Constitution is

discharged by the courts through direct as well as indirect judicial review.

In direct judicial review the court overrides or annuls all enactment or an

executive act on the ground that it is inconsistent with the Constitution. In

indirect judicial review the court attempts to give such interpretation to

the impugned statute so that it may be held Constituional30.

If the courts want to ignore any law on the ground that it violates the

Constitution, the court must declare on its unconstitutionality. In

Mohammad Ishaque v State31 it was observed that even though a law

becomes void automatically under Article 13 without the necessity of any

declaration by a court. A declaration that a law has become void is

necessary before a court can refuse to take notice of it. The voidness of

law is not a tangible thing which can be noticed as soon as it comes into

29. Article 226 of the Indian Constitution. 30. Jain M.P.,Constitutional Law of India, Wadhwa and Co. Law Publishers,

Nagpur, 1993, p. 830. 31. A.I.R. 1961, All. 552 para 5.

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existence. A declaration that it is void is necessary before it can be

ignored.

The court does not suo-moto decide unconstitutionality in the present

system of judicial review in India unless moved by an aggrieved party.

Also the determination of unconstitutionality be necessary for the

decision of the case. The legislature itself being the makers of law is not

competent to determine the constitutionality of legislative Act. An

independent and impartial body like court is the proper authority to look

into legislative or executive lapses. This is necessary to maintain the spirit

of democracy32. In regard to judicial review it was aptly remarked by

Prof. K.V. Rao that in a democracy public opinion is passive and in India

it is still worse and that is the reason why it is imperative that judiciary

should come to our rescue. Otherwise- - -the constitution becomes ill

balanced, and leans heavily on executive supremacy, and tyranny of the

majority, and that was not the intention of the makers33.

The concept of judicial review in India has its foundation on the

following constitutional principles:

(a) the actions of the Government that cannot satisfy the ‘governed’

cannot be considered to be legitimate and democratic and such

government cannot be expected to receive the confidence and

satisfaction of the public;

(b) the government in a democratic set up has only limited powers and

as such it has to take recourse to a machinery or agency (like courts)

for the scrutiny of charges of legislative views and constitutional

disobedience and such agency must be impartial and unbiased;

32. Shodh Ganga.inflibnet.ac.in:8080/jspui/bitstream, assessed on 19-12-2014. 33. Rao K.V., Parliamentary Democracy of India, The World Press Pvt. Calcutta,

1961, p. 213.

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(c) Constitution imparts a right to every citizen who is aggrieved of a

legislative or administrative act on the ground of constitutional

violation, to approach the court to declare such act as

unconstitutional and void; and

(d) In a federal state, judicial review is inevitable in order to maintain

balance between State and Center34.

Modern democracy demands that if any legislative or administrative act is

challenged by an aggrieved person in the court of law the validity of the

Act has to be tested objectively. In Gullapalli Nageshwar Rao and

Others v Andhra Pradesh State Road Transport Corporation35 the

Supreme Court laid down that the court has abundant power to look into

validity of law and to scrutinize if the legislature has overstepped the field

of competency even indirectly by way of device.

It is not open to the legislature to contravene and flout the provisions of

part III of the Constitution by taking shelter behind the plea that the

infringement was accidental and not deliberate36. The Bombay High

Court inManilal Gopalji v Union of India37 asserted that in the case

where the impugned provision is held to have violated a fundamental

right it is the bounded duty of the court to give redress to the party even if

that involves the striking down of provisions of a law enacted by the

Parliament.

Justice Dhawan in U.P. Shramic Mahasangh v State of U.P.38 observed

that the court is under a duty imposed by Article 13 and 14 of the

Constitution, to act as a sort of constitutional sensor of all legislations and

34 . Supranote 25, at p. 80. 35 . 1959 S.C.R. Suppl. (1) 319. 36 . Deoman Uppadhyay v State ,A.I.R.1960 All. 1, para 51. 37 . A.I.R.1960 Bom. 83, para 5. 38 . A.I.R.1960 All. 45, para 18.

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to scrutinize at the instance of any aggrieved citizen, any law or executive

act, to examine its legality and thus ensure that no unconstitutional

legislation or illegal state action slips from its vigilant scrutiny.

In the case of State of Madras v V.G. Row and Others39 the Supreme

Court expressly stated that we think it right to point out what is

sometimes overlooked that our constitution contains expressed provisions

for judicial review of legislature as to its conformity with the constitution

- - - if then the courts in this country face up to such important and none

too easy task it is not out of desire to tilt at legislative authority in a

crusaders spirit but in discharge of a duty plainly laid upon them by the

constitution.

In S.S. Bola v B.D. Sharma40 the Supreme Court emphasised that the

founders of the Constitution were very wise to have incorporated the

provisions of judicial review in the Constitution itself. This was done to

protect the fundamental rights and freedoms guaranteed to every citizen

by the Constitution. The court further asserted that the function of the

judicial review was a part of constitutional interpretation in order to meet

the needs of time and new conditions.

Further in L. Chandra Kumar v Union of India41 a bench of seven

Judges observed that the judges of the Supreme courts have been

entrusted with the task of upholding the Constitution and due to this they

have also been given powers to interpret the constitutional provisions.

The Court has to ensure that the balance of power as denied by the

framers of the constitution is maintained and that in performing their

duties the legislature and executive do not violate the limitations set up by

the Constitution.

39. 1952 S.C.R. 597 40. A.I.R 1997 S.C. 3127. 41. A.I.R.1997 S.C. 1125.

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Besides this, in State of Rajasthan v Union of India42 a leading case on

the Article 356 of the Constitution, it was held by Justice Bhagwati that

the Constitution is the supreme law of the land and all the three branches

Legislature, Executive and Judiciary draw its powers from the

Constitution. He further held that this court has been assigned the task of

determining the powers conferred on each branch of the Government and

what are limits of those powers. The Court is the ultimate interpreter of

the Constitution and it has to see if any branch of Government exceeds its

limit.

The discussion on judicial review would be incomplete without the

mention of the leading case of the Minerva Mills. In Minerva Mills Ltd.

and Others v Union of India43 the issue was whether the Section 4 and

55 of the 42nd Amendment Act, 1976 of the Constitution are beyond the

amending powers of the Parliament under Article 368 of the Constitution

and therefore void and whether the Directive Principles of State Policy

contained in Part IV of the Constitution can have primary over the

fundamental rights conferred by Part III of the Constitution. The court

held that Indian Constitution is founded on a nice balance of power

among the three wings of the State namely, Legislative Executive and

Judiciary. It is the function of the judges and their duty to pronounce

upon the validity of laws. If the courts are totally deprived of that power,

the fundamental rights conferred upon the people will become a mere

adornment because these rights without remedies are as gut in water. A

controlled Constitution would them become uncontrolled.

The court further added that if a constitutional amendment cannot be

pronounced to be invalid if it destroys the basic structure of the

Constitution a law passed in pursuance of such an amendment will be 42. A.I.R.1977 S.C. 1361. 43. A.I.R. 1980 S.C. 1789.

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beyond the pale of judicial review- - - Article 13 of the constitution will

then become a dead letter because even ordinary laws will escape the

scrutiny of the courts. The court also observed that it is a solemn duty of

the judiciary under the constitution to keep the different organs of the

state within the limits of powers conferred upon them by the Constitution

and the power of judicial review is conferred on the judiciary by Article

32 and 226 of the Constitution.

The Supreme Court has in various cases interpreted the Constitution and

has shown great powers in upholding the Constitution by way of judicial

review.

Judicial review being an essential and fundamental feature of the

Constitution cannot be abrogated without affecting the basic structure of

the Constitution44. The concept of reasonableness and non-arbitrariness

pervades the entire constitutional scheme and is a golden thread which

runs through a whole fabric of the Constitution45.

4. Limits of Judicial Review

It is true that the courts have wide powers of judicial review of

constitutional and statutory provisions. These powers however must be

exercised with great caution and self-control. Judicial review has some

inherent limitations. It is suited more for adjudication of disputes than for

forming administrative and legislative functions46. Each branch of State is

assigned its duties that is executive to administer the law, legislative to

enact the law and the prime function of judiciary is to ensure that the

44. R.K. Jain v Union of India, (1993) 4 S.C.C. 119, 168, Shri Lekha Vidyarthi v

State of U.P., A.I.R. 1991 S.C. 537, Dwarka Das Marfatia v Board of Trustees of Port of Bombay (1989) 3 S.C.C. 293.

45. Bandhuwa Mukti Morcha v Union of India (1984) 3 S.C.C. 161, Delhi Transport Corporation v D.T.C. Mazdoor Congress, A.I.R. 1991 S.C. 101.

46. Takwani C.K., Lectures on Administrative Law,Eastern Book Co, 2006 p.281.

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Government carries out its duties in accordance with the provisions of the

Constitution47.

The courts are not supposed to interfere with the functions carried out by

the executive or legislative body, just on the idea that the decision or

action of those bodies are not according to the perception of the judiciary.

In fact the intervention of the courts is only required in cases where the

actions and decisions of those bodies are violative of constitutional

provisions or where the decision is not taken according to defined

procedures or those bodies have acted unreasonably, arbitrarily or in an

unfair manner. The main idea is that the court has to keep a distinction

between appeals a judicial review. Where there is no provision of an

appeal the courts are free to exercise judicial review unless and until such

review has been specifically barred by the legislation. The merit of the

case the decision reached by the administrative bodies etc. is generally to

be kept outside the scope of judicial review. The judicial review should

only be concerned about the legality of the action or decision. The

appellate bodies have the function and they can substitute the decision or

action of an executive body with their own decisions. This is the basic

reason sometimes legislature in some cases gives no right to appeal on the

decision of the executive body and in such cases the court has no right to

interfere. Thus judicial review has to have its own limits and limitations.

The Supreme Court in S.R. Bommai v Union of India48 observed that the

parameters of judicial review must be clearly defined and never

exceeded. If the authority has faltered in its decision and wisdom the

court cannot act as a super auditor49.

47. S.R. Bomnai v Union of India, (1994) 3 S.C.C. 1 para 376. 48. (1994) 3 S.C.C. 1. 49. Supra note 41, para 64.

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The power of judicial review is supervisory in nature. In Nottingham

County Council v Secretary of State for Environment50 Lord Scarman

proclaimed that judicial review is a great weapon in the hands of the

judges but the judges must observe the constitutional limits set by our

parliamentary system upon the exercise of this beneficial power.

This view was also adopted by the court in a case in New Zealand in

Butcher v Petrocorp Exploration Ltd.51. Further in the case of Chief

Constable of North Wales Police v Evans52 Lord Brightman remarked

that judicial review as the words imply is not an appeal from a decision

but a review of the manner in which the decision was made. Judicial

review is concerned not with the decision but with the decision-making

process. Unless that restriction on the power of the court is observed the

court in my view, under the guise of preventing the abuse of power, be

itself guilty of usurping power.

In another significant case R v Secretary of State for Trade and Industry

Ex- parte Lonrho Plc53 Lord Keith remarked that the judicial review is a

protection and not a weapon.

In the leading case of Tata Cellular v Union of India54 the Supreme

Court observed that judicial review is concerned with reviewing not the

merits of the decision in support of which the application for judicial

review is made but the decision making process itself55.

The courts should not step out of its limits of their legitimate powers of

judicial review. The parameters of judicial review of constitutional

provisions and the statutory provisions are totally different. In

50. (1986) A.C. 240. 51. (1991) 1 N.Z. L.R. 641. 52. (1982) 3 All. E.R. 141. 53. (1989) 2 All. E.R. 609. 54. 1994 S.C.C. (6) 651. 55. Id. at para 74.

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J.P. Bansal v State of Rajasthan56 the Supreme Court stated that it is true

that this court in interpreting the constitution enjoys a freedom which is

not available in interpreting a statute. It endangers continued public

interest in the impartiality of the judiciary which is essential to the

continuance of rule of law, if judges under guise of interpretation provide

their own preferred amendments to the statutes which experience of their

operation has shown to have had consequences that members of the court

before whom the matter comes consider to be injurious to public interest.

Where the words are clear, there is no obscurity, there is no ambiguity

and the intention of the legislature is clearly conveyed, there is no scope

for the court to innovate or to take upon itself the task of amending or

altering the statutory provisions. In that situation the judge should not

proclaim that they are playing the role of lawmakers merely for an

exhibition of judicial valour. They have to remember that there is a line

though thin, which separates adjudication from legislation. This line

should not be crossed or erased57. Indeed, the court cannot reframe the

legislation as it has no power to legislate58.

In Syed T.A. Naqshbandhi v State of J & K59 Raju, J. remarked that as

has often been reiterated by this court judicial review is permissible only

to the extent of finding whether the process in reaching the decision has

been observed correctly and not the decision itself as such. Critical or

independent analysis or an appraisal of the materials by the courts

exercising powers of judicial review unlike the case of an appellate court

would neither be permissible nor conducive to the interests of either the

officers concerned or the systems and institutions of administration of

justice with which we are concerned.

56. (2003) 5 S.C.C. 134. 57. Ibid. 58. See State of Kerala v Mathai Verghese, 1986 (4) S.C.C. 746 at p. 749 and

Union of India v Deoki Nandan Agarwal, A.I.R.1992 S.C. 96 at p. 101. 59. (2003) 9 S.C.C. 592.

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Further, in PUCL v Union of India60 case concerning the legality of

prevention of Terrorism Act the Supreme Court held that once the

legislation is passed, the Government has an obligation to exercise all

available options to prevent terrorism within the bounds of the

Constitution. Moreover, mere possibility of abuse cannot be counted as a

ground for denying the vesting of power or for deciding a statute

unconstitutional.

The limits of judicial review have been set so that there is no usurping of

powers by the judiciary of that of the legislation or the administrative

bodies. Summing it up it would be worthwhile to quote the words of

Bernard Schwarth, which were cited in the Tata Cellular case61. “If the

scope of review is too broad agencies are turned into little more than

media for transmission of cases to the courts. That would destroy the

values of agencies created to secure the benefit of special knowledge

acquired through continuous administration in complicated fields. At the

same time the scope of judicial enquiry must not be so restricted that it

prevents full enquiry into the question of legality. If that question cannot

be properly explored by the right to review becomes meaningless. It

makes judicial review of administrative orders a hopeless formality for

the litigant. It reduces the judicial process in such a case to a mere

feint”62.

5. Judicial review and Ouster Clause

An Ouster Clause or privative clause is, in use, in countries with common

law legal system. A clause or provision included in a piece of legislation

by a legislative body to exclude judicial review of acts and decisions of

the executive by stripping the court of their supervisory judicial 60. A.I.R. 2003 S.C. 2363. 61. Supra note 54. 62. Schwarth Bernard, Administrative Law , 2nd ed. at p. 584.

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function63. As per the doctrine of separation of powers one of the most

important functions of the judiciary is to review the administrative action

and ensuring that it is according to the will of the Constitution and that it

complies with settled law. The ouster clause prevents courts from

carrying out this function.

For example a particular statute may provide that a decision taken under

it ‘shall be final’ or ‘shall be final and conclusive’ or ‘shall be not

appealable’ or ‘shall not be questioned in any legal proceedings ‘what so

ever’ etc. There is a debate on the question as to whether the ouster clause

excludes the power of the court for judicial review or not. There are some

examples of the ouster clause.

R v Medical Appeal Tribunal Ex-Parte Gilmore64 is regarded as a

leading decision on this point. In this case the National Insurance

(Industrial Injuries) Act, 1946, Section 36 (3), provided that ‘any decision

of a claim or question - - - - shall be fixed’. The applicant sought the

remedy of ‘certiorari’ because there had been an error of law. The remedy

was refused by the Divisional Court, but was allowed in the Court of

Appeal. Denning L.J., held that while these words may have been enough

to exclude an appeal they did not prevent judicial review. He stated that

“I find it very well settled that the remedy by certiorari is never to be

taken away by and statute except by more clear and explicit words”.

Denning further held that the court never allowed those statutes to be

used as a cover for wrong-doing by tribunals. If the tribunals were to be

at liberty to exceed their jurisdiction without any check by the courts the

rule of law would be at an end.

63. en.wikipedia.org/wiki/ouster – clause. 64. (1957) 1 Q.B. 574.

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This view can also taken be supported by the decision of R v Cheltenham

Commissoners65 where Lord Denham C.J., stated that ‘the statute cannot

affect our right and duty to see justice executed.’ Besides this Pearlman v

Harrow School66 is an authority to suggest that an ouster or finality

clause will be ineffective when there is error which goes to the

jurisdiction. In this case the decision of a county court judge on the matter

in question was to be ‘final and conclusive’. In addition the County Court

Act, 1959 section 107 contained a non-certiorari clause. In this case also

Lord Denning said that a finality clause may not even exclude more

general appeals on point of law.

One of the leading cases in the English Law on ouster clause decided by

House of Lords in 1968 is Anisminic Ltd. v Foreign Compensation

Commission67. It is the case which further developed into what we call as

the Anisminic Principle or the Anisminic Doctrine. This case established

that any error in law made by a public body will make its decision a

nullity and that a statutory exclusion clause does not deprive the courts

from their jurisdiction in judicial review unless it expressly states this.

The facts of this case were, that as a result of the Suez Crisis, some

mining properties of the appellant located in Sinai Peninsula were seized

by the Egyptian Government before November, 1956. The appellants

then sold the property to an Egyptian Government owned organization

called TEDO in 1957. In 1959, a subordinate legislation was passed

under the Foreign Compensation Act, 1950 to distribute compensation

paid by the Egyptian Government for the U.K. Government with respect

to British properties as it had nationalised. The appellants claimed that

65. (1841) 1 Q.B. 467. 66. (1979) Q.B. 56. 67. (1969) 2 A.C. 147.

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they were eligible for compensation under this legislation which was

determined by a tribunal (respondents) set up under the Foreign

Compensation Act, 1950.

The tribunal decided that the appellant was not eligible for compensation

because their successor in title i.e. TEDO did not have the British

nationality as required under one of the provisions of the subordinate

legislation. Section 4(4) of the Foreign Compensation Act, 1950 stated

that the determination by the commission of any application made to

them under the Act shall not be called in question in any court of law.

This was the ‘Ouster Clause’. The main issue to decide was that even if

the tribunal had made an error of law whether the appellate court had the

jurisdiction to intervene in the decision of the tribunal.

The House of Lords with a 3-2 majority decided that Section 4(4) of the

Foreign Compensation Act did not preclude the court from inquiring

whether or not the order of the tribunal was a nullity and accordingly

decided that the tribunal had misconstrued the legislation. This decision

was later on followed in great number of cases. The developed Anisminic

principle illustrates that the court is reluctant to give effect to any

legislative provision that attempts to exclude their jurisdiction or in

judicial review. Even when such exclusion is clearly worded, the courts

will hold that it does not stop them from scrutinising the decision on an

error of law and quashing it when such error occurs.

In contrast with total ouster clause, courts in U.K. have affirmed the

validity of partial ouster clause that specify a time period after which

aggrieved person can no longer apply to the courts for remedy68.

The High Court of Australia has held that the Constitution of Australia

restricts the ability of legislatures to insulate administrative tribunals from

68. Supra note 63.

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judicial review using ouster clause. In case of R v Hickman Ex- Parte

Fox69, Justice Owen Dixon of Australian High Court said that “they

(ouster clause) are not interpreted as meaning to set at large the courts or

other judicial bodies to whose decisions they relate. Such a clause is

interpreted to mean that no decision which is in fact given by the body

concerned shall be invalidated on the ground that it has not confirmed to

the requirements governing its proceedings or the exercise of its authority

or has not confined its acts within the limits laid down by the instrument

giving it authority provided always that its decision is a bona fide attempt

to exercise its powers that it relates to the subject matter of the legislation

and that it is reasonably capable of reference to the power given to the

body”70.

Similarly in India the ouster clause are almost always ineffective because

judicial review in India is regarded as a basic structure of the

Constitution. India follows the basic structure doctrine which involves

that the basic structure or features of the Constitution cannot be amended.

Judicial review in India has been regarded as a basic feature since the

Minerva Mill case71. The court held that the power of judicial review is

an integral part of our constitutional system and without it, there will be

no Government of laws and rule of law would became a teasing illusion

and a promise of unreality. The Court affirmed that if there is one feature

of our Constitution which, more than any other is basic and fundamental

to the maintenance of democracy and rule of law, it is unquestionably the

power of judicial review. In this case it was also affirmed that the

Parliament’s ‘power to destroy is not a power to amend’ and hence the

power of judicial review cannot abrogated either by ordinary process of 69. (1945) to C.L.R. 598 H.C. (Australia). 70. Supra p. 615. 71. A.I.R.1980 S.C. 1789, affirmed inS.P. Sampath Kumar v Union of India, 1987

S.C. 386 at p. 441.

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legislation or through the procedure of constitutional amendment. Thus

the ouster clauses which are intended to make the decisions of public

authorities and other decision makers final and unchallengeable by courts

should be held void and ineffective as they deprive the aggrieved parties

the constitutional right of judicial review.

In A.B.C. Laminpart Pvt Ltd. v A.P. Agencies Salem72 it was held that

where there are two or more courts with jurisdiction over a matter and the

ouster clause merrily limits the jurisdiction of one particular court, the

ouster clause is valid as the aggrieved party is still left with an avenue to

proceed with his or her claim73. The court explaining the position

concerning the ouster clause observed that it can be reasonably deduced

that where such an ouster clause occurs, it is pertinent to see whether

there is ouster of jurisdiction of other courts. When the clause is clear,

unambiguous and specific accepted notion of contract would bind the

parties and unless the absence of ad idem can be shown the other court

should avoid exercising jurisdiction. As regards construction of the ouster

clause when words like ‘alone’, ‘only’, ‘exclusive’ and the like have been

used there may be no difficulty. Even without such words in appropriate

cases the maxim ‘expressio unius estexclusio alterius’ expression of one

is the exclusion of another may be applied. What is appropriate case shall

depend on the facts of the case. In such a case mention of one thing may

imply exclusion of other. When certain jurisdiction is specified in a

contract and intention to exclude all others from its operation may in such

case be inferred. It has therefore to be properly continued.

In another case of Dhulabhai and Others v State of Madhya Pradesh

and Others74 the question was related to Section 17 of the Madhya

72. 1989 (2) S.C.R.I. 73. Ibid. 74. A.I.R. 1969 S.C. 78.

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Bharat Sales Tax Act, 1950, by way of which the jurisdiction of civil

court was banned. The court held that the jurisdiction of the civil court is

not to be readily inferred unless the statute gives afinality to the orders of

the special tribunals. The civil court’s jurisdiction must be held to be

excluded if there is adequate remedy to do what the civil courtss would

normally do in a suit. Such provision however does not exclude cases

where the provisions of the particular Act have not been complied with or

the statutory tribunal has not acted in conformity with the fundamental

principles of judicial procedure.

More importantly the court also pointed out that where there is an express

bar of the jurisdiction of courts, then an examination of the scheme of the

particular Act to find the adequacy or the sufficiency of remedies

provided may be relevant but it is not decisive to sustain the jurisdiction

of the civil court.

This view was followed in State of Kerala v Rama Swami Iyer and

Sons75 and in Firm of Illuri Subbayya Chetty v The State of Andhra

Pradesh76.

Also in FirmSeth Radha Kishan v The Administrator, Municipal

Committee, Ludhiana77 the court held that a suit in a civil court will

always lie to question the order of the tribunal created by a statute even if

its order is expressly or by necessary implication made final. If the said

tribunal abuses powers or does not act under the Act but in violation of its

provision.

In another very interesting case of R.S.D.V. Finance Co. Pvt. Ltd. v

Vallabh Glass works Ltd.78 the question before the Supreme Court was

75. A.I.R. 1966 S.C. 1738. 76. 1964 S.C.R. (1) 752. 77. A.I.R. 1963 S.C. 1547. 78. 1993 S.C.R. 1 455.

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that if a deposit receipt contains the endorsement subject to jurisdiction of

a particular place does it exclude the jurisdiction of all other courts

otherwise competent to entertain the suit. Kaliswal, J., held that the

endorsement ‘subject to Anand jurisdiction’ does not contain the ouster

clause using the words like ‘alone’, ‘only’, ‘exclusive’ and the ‘like’.

Thus the maxim ‘expression unius est excusio alterius’ cannot be applied

under the facts and circumstances of the case and it cannot be held that

merely because the deposit receipt contained the endorsement subject to

Anand jurisdiction it excluded the jurisdiction of all other courts who

were otherwise competent to try the suit. In this case the courts relied on

the decision inA.B.C. Laminpart case79.

This view has recently been confirmed by the Supreme Court in M/s

Swastik Gases Pvt. Ltd. v. Indian Oil Corporation Ltd80.

Thus it is an integral principle of our constitution that no one, how so

ever highly placed and no authority what so ever can claim to be sole

judge of its power under the Constitution. Rule of law directs that the

exercise of powers be it by the executive or the legislation or even the

judiciary must be conditioned by the Constitution. Judicial review is the

touch stone and repository of supreme law of the land.81

In recent times the scope of judicial review has extensively increased.

The state activities have become pervasive and giant public corporations

have come in existence. Thus a more intensive and wider judicial control

is the requirement of today.

79. Supra note 72. 80. Civil Appeal No. 5086 of 2103 (arising out of S.L.P. no. 5595 of 2012) decided

on 3rd July 2013. 81. Takwani C.K., Lectures on Administrative Law, Eastern Book Company, 2007

ed. p. 277.

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CHAPTER-V

GENERAL PRINCIPLE OF

PROPORTIONALITY

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1. Proportionality in Antiquity 2. Proportionality before Adoption of U.N. Charter

in 1945 3. Proportionality in Modern Era: Jus De Bellum

and IHL

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CHAPTER V

GENERAL PRINCIPLE OF

PROPORTIONALITY

Initially, proportionality, developed mainly in mathematics and

aesthetics. Proportion means (a) harmonious relation of parts to each

other or to the whole (balance, symmetry); (b) proper or equal share; (c)

the relation of a part to another or to the whole with respect to magnitude,

quantity or degree (ratio) and (d) size, dimension1. This provides the

basics of the concept of proportionality as a political and juridical

principle as well.

In plain meaning proportionality can be described as “You must not use a

steam hammer to crack a nut, if a nut cracker would do.”2 In fact

proportionality is a very ancient concept. The code of Hammurabi, a

Babylonian Law Code dating from about 1722 B.C., incorporated the

principle of “An eye for an eye, and a tooth for a tooth”. The Magna

Carta and the English Bill of Rights 1689 also embodied that principle of

proportional punishment ‘under which punishment must be proportional

to crime.’ The concept was proportionality though evolving in and law

has shown remarkable continuity over several centuries. The theory of

proportionality rapidly arose, almost spontaneously, through Aristotle.

1. Websters Dictionary, 1993, 10th ed. p. 936. 2. R v Goldstein (1983) 1 W.L.R. 151, p. 155.

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However, the practice of proportionality jurisprudence the practical legal

concept and legal implementation occurred over several centuries as a

historical evolution, refining and modifying Aristotle’s original theory

along the way. Aristotle’s idea, that the just is a ratio between two parties

mediated by an abstract principle, is still a part of contemporary law as

shown by the general principle proportionality. However, Aristotle’s

abstract general concept became more precisely defined through legal

practice3.

Proportionality is a long standing doctrine of criminal and to a certain

extent public international law. In the former the proportionality of a

sanction to the gravity of wrong committed represents one of the pillars

of modern criminal justice. In international law the response of a state to

elicit acts or to the breach of contractual obligations by another state must

be proportional to the initial unlawful act. In both areas proportionality is

conceived as a proper relationship between an act and the reaction

triggered thereby.

The principle of proportionality, as a legal standard which is enforceable

by courts in the process of review of state action is associated with

German Law at the turn of 20th Century. The Prussian Administrative

Courts usedthis principle as a criteria for determining the validity of

police measuresfor checking whether discretionary powers were

exercised in a manner excessively restrictive to the freedom of private

citizen. At the same time although French Administrative Courts without

expressly usingthe term proportionality employed a similar techniques of

3. Engle Eric, “The History of the General Principle of Proportionality; an

Overview”,The Dartmouth Law Journal, Vol. 10th 1, p. 2.

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control of administrative action in cases involving rights and liberties of

citizens. British Courts reviewed Administrative decisions for gross

outrageous errors via common law developed notion of

unreasonableness4.

Since 1960’s, the principle of proportionality has been playing an

important role in constitutional and administrative decision all over the

world. The European Court of Justice and Courts of Human Rights begun

to develop these principle as a criteria for assessment of public authority

acts especially those which affects human rights. Besides the influences

of European Law several other factors contributed to the rise of this

principle. Constitutional review became more a rule than an exception in

post-war Europe.5

The rise of the agenda of rights during 1960’s also lead to search of

methods of effective implementation of constitutional guarantees

provided for rights and liberties of the people. The emergence of the

concept of a welfare state also created awareness of the need for control

of discretionary administrative powers. Elsewhere, in the common law

world the importance of this principle from European sources is less

direct. For e.g. in New Zealand, the principle was imported and adopted

from Canada6. The Canadian themselves lifted the principle from the

European Courts of Human Rights7.Today the general principle of

proportionality is a worldwide principle of law. It is found both in law

and civil law alike.

4. Prof. Taskovska Dobrinka, “On Historical and Theoretical Origins of

Proportionality Principle”,www.law-reveiw, mk/ pdf, p. 1 and 2 assessed on 14-12-2014.

5. Id. at p. 2. 6. Ministry of Transport v Naort, (1992) 3 N Z.L.R. 260 (C.A.). 7. R v Oakes (1986) 1 S.C.R. 103 (S.C.C.).

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1. Proportionality in Antiquity

Originally the idea of justice appears as proportionality through

Aristotle8. The ancient form of justice goes back to Aristotle and was later

called the distributive justice. The goal of distributive justice is the

relative relational equality in the treatment of different persons in

measure to pre-conditional differentiation criteria. The proportion which

falls to individuals corresponds to the degree to which the differentiation

criteria are fulfilled in connection with the comparator group. Then the

principle determines entire categories of compensatory interest9. This

appears to be earliest known historical source of general principle of

proportionality in law. The idea of proportionality as a specific rule of

law emerged from Aristotle’s though a vague and general but

increasingly concrete through and definite proportion of law of self-

defence.

This was realised by Marcus Tullius Cicero in Positive law10. Cicero

describes law as meaning the right ratio and the proper proportion. This

concept was further refined by Thomas Aquinas in the law of self-

defence of States. Aquinas presented the first decomposition of

Aristotle’s concept into the known Multi–Step proportionality procedure.

Aquinas argued that there are conditions that must exist for use of force

to be justit must be necessary and when it is used it must not be

excessive.It must be proportional force and must be exercised by the

sovereign according to rules11.

8. Aristotle, The Nicomachean Ethics, Book 3rd , Chapter 10-12. Translated by

Anthony Kenny, Kindle Edition, 2011, Oxford World Classics. http://www.amazon.in

9. Hanau,Hans Proportionality as an Element of Legal Concept, 2004, ed. 14. 10. Jalowicz H.F. and Nicals Barry,A Historical Introduction to the Study of

Roman Law, 3rd ed., 1972, p. 104-105. 11. http://www/ccel,org/a/Aquinas/summa/ss.html, assessed on 10-9-2014.

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Aquinas theory on proportional self-defence was seen as a general

principle of law by Grotius. He conceived that the principal would apply

not just to the states but also to individuals in their mutual relationship.

He transitioned this concept into modernity and linked the idea of justice

as proportion to the ideas of interestand balancing of it as a method for

resolution of dispute12.

Thus modern proportionality emerged as a general principle of law. The

legal principle of proportional self-defence first articulated in the Public

International Law and was applied in cases of self-defence of not only of

States but also of person and then further in administrative law. The

principle as emerged was that right of self-defence must be exercised in

proportion to the threat and punishment should be proportional to crimes

and the administration must not act excessively.

2. Proportionality before Adoption of U.N. Charter in 1945

In relation to unilateral state action, the requirement of proportionality in

Jus Ad Bellum (Right to war) find their correct expression only in context

of self-defence, against an armed attack. However these principles have a

long history associated with history of regulation of resort to force over

the years. In particular proportionality has played an integral role in the

development of theories restraining violence. During the Middle Ages

proportionality operated as limit on resort to arms and on conduct of

welfare. Such limitations were derived from the view that

disproportionate violence was undesirable, unnecessary and combined

aspects found today in Just Ad Bellum and International Humanitarian

Law (IHL).

It was necessity in the sense that war is the last way of resort. When other

means have failed it is inherent in the just war theory. The major 12. http://oll.libertyfund.org/title/533/90737/2052898, assessed on 10-9-2014.

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implication of it was that if other peaceful means are available for

achieving the desired aim then use of force is unwarranted13. In the latter

part of 18thand 19th century the resort to force became unregulated as a

sovereign right of the states. The declining interest in the just war theories

alongwith growth in humanism allowed for a growing focus on the

conduct warfare and what is known today as IHL emerged as a set of

independent rules14. The division between the law on use of force and

IHL that occurred during this period was to be permanent. The genesis of

the modern reflection of proportionality in treatment of combatants, the

rules protecting combatants against means and methods of warfare

causing unnecessary suffering occurred during this period.

However, proportionality as a principle in limiting the impact of armed

conflict on civilians was not established until the United Nations Charter

era.The development of modern warfare system like aerial bombardments

and weapons of mass destruction in first half of 20th century affected the

civilians and IHL responded to these developments and focused on

achieving a legal regime that could provide civilians with protection

against warfare.

As the just war theories of middle ages merged into purely secular

theories of Grotius and Cicero.Proportionality was a component of their

analysis in the Jus Ad Bellum sense. The idea was that the rural must

balance the evil and the good that may result from a just war. The

effectiveness of the means to contribute to the good must be part of

balancing process and resort should be had to war only if the likely result

will contribute more too good than to evil. Unlike today, in these earlier

theories proportionality was part of the rules that determined whether a 13. Keen M.,The Laws of War in the Late Middle Ages, Routledge, London, 1965,

p. 66-67. 14. Best G.,War and Law Since 1945, Oxford University Press, Oxford, 1994 p. 20.

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resort to force was initially warranted and took account of what are now a

days a combination of political, legal and moral factors15.

The Covenant of the League of Nations adopted in 1919 imposed

restraints on the liberty of States to resort to war. A system of peaceful

settlement of disputes was set up under the Covenant and the resort to

force was forbidden without the dispute being first submitted for

arbitration, judicial settlement or the league council16. The General Treaty

for the Renunciation of War was signed in Paris in 1928 and ratified by

Sixty- Three states.

Over all, it is difficult to assert confidently in light of state practice prior

to the adoption of the U.N. Charter that proportionality was ever clearly

established as a requirement of legitimate reprisals. Opinions differ as to

the effect of League of Nation Covenant and the General Treaty for the

Renunciation of war on the legality of reprisals. Nevertheless the practice

declined during the two world wars and the requirement that states settle

their disputes by peaceful means in Article 2 (3) of the U.N. Charter and

the ban on use of force (otherwise than in self-defence) in Article 2(4) led

to the unanimous view that armed reprisals were unlawful under its terms.

It was during the period between the First and the Second World War that

the right of self-defence developed and finally took the form that we see

today in Article 51 of the U.N. Charter. Necessity and proportionality

were part of the developing law of self-defence. Moreover a vigorous and

independent Jus in Bello (Laws of war) was firmly established by that

time.

15. Gardam Judith, Necessity, Proportionality and the Use of Force by States,

2004, Cambridge University Press, p. 30. 16 . Brierly J., The Law of Nations, Clarendon Press, Oxford, 1928, p. 310-311.

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3. Proportionality in Modern Era: Jus De Bellum and IHL

The principles of proportionality are different when we consider the

theory of Jus Ad Bellum or rights of war and these principles were

followed by the International Humanitarian Law or IHL. The bases of

proportionality in Jus Ad Bellum are mainly concerned with peace on an

international level and the security of the state. The principle therein

incorporates that war is only necessary when all other methods of

conciliation have failed and in case of wars, the states are required to use

the bare minimum force that is necessary to defend themselves from

external aggression. Also, the weapons of mass destruction must not be

used so as to cause undue damage and destruction to the other state as

well as harm to the civilians. The harmony of the International

Community would be harmed if the right to self-defence is used in a

disproportionate manner. Thus, what is mainly to be kept in mind in case

of modern form of Jus De Bellum is that if the force is necessary the state

must adhere to the facts of quantum of destruction, damage to civil

property and civilians and the causalities of the combatants. So the basic

concept of Jus Ad Bellum in modern era is definitely based on the

humanitarian grounds and the proportionality principle of Jus Ad bellum

does keep in mind the concerns of humanity. On the other hand the rules

of IHL attempt in broad terms to regulate conflict in order to minimise

human suffering. IHL reflects this constant balance between the military

necessity arising in a state of war and the needs for humanitarian

protection. IHL is founded on the following principles:

(a). distinction between civilians and combatants;

(b). prohibition of attacks on those who are rendered out of action due to

injury or damage;

(c). prohibition on the infliction of the unnecessary suffering;

(d). principle of proportionality;

(e). notion of necessity and

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(f). principle of humanity17.

So the principle of proportionality limits and protects potential harm to

civilians by demanding that the least amount of harm is caused to the

civilians and when harm to civilians must occur it needs to be

proportional to the military advantage. The article where proportionality

is most prevalent is in Article 51 (5)(b) of additional protocols concerning

the conduct of hostilities which prohibits attacks when the civilian harm

would be excessive in relation to the military advantage sought. This is an

area of hostilities where we often hear the term ‘collateral damage’.

This principle cannot be applied to override specific protections or create

exceptions to rules. As with the principle of necessity, the principle of

proportionality itself is to be found within the rules of IHL themselves.

For e.g. direct attack against civilians are prohibited and hence a

proportionality assessment is not a relevant legal assessment as any direct

attack against even a single civilian who is not taking part in hostilities is

a clear violation of IHL. Proportionality is only applied when a strike is

made against a lawful military target. The principle of IHL can befound

in all major religions and cultures but they set out basic protections and

the principles demonstrate that even during armed conflict there is a

common sense and respect for humanity. Modern IHL simply looks to

limit the harm and accepts that harm destruction and death can be lawful

during armed conflicts.

The IHL or Jus in Bello in the law governs the way in which warfare is

conducted. IHL is purely humanitarian in nature seeks to limit the

suffering caused. It is independent from the questions about the

17. IHL Resource Centre, 30-10-2013, “Basic Principles of IHL”. http:// www.

icrc. org/en/war-and-law/ihl-other-legal-regmies/

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justifications or reasons of war or its prevention covered by Jus Ad

Bellum18.

In context to modern era it is relevancy to understand these principles the

difference between Jus Ad Bellum and Jus in Bello or IHL. Under the

International Law there are two distinct ways of looking at war these

reasons are the reason you fight and how you fight. In theory it is possible

to break all the rules while fighting a just war or to be engaged in a unjust

war while adhering to laws of armed conflicts. For these reasons the two

branches of law are completely independent of each other.

Jus Ad Bellum is the title given to the branches of law which defines the

legitimate reason that a state may engage in war and focuses on certain

criteria that render a war just. The modern source of Jus Ad bellum is the

U.N. Charter which declares in Article 2 that “all members shall refrain in

their international relations from the threat on the use of force against the

territorial integrity or political independence of any state or in any

manner inconsistent with the purpose of the United Nations” and in

Article 51 that “nothing in the present charter shall impair the inherent

rights of individual or collective self-defence if an armed attack occurs

against a member of the United Nations”.

In contrast, Jus in Bello is the set of laws that come into effect once a war

has begun. So a party engaged in a war that could easily be defined as

unjust would still have to adhere to certain rules during the prosecution of

war as would the side committed to righting the initial injustice19. This

branch of law relies on customary law based on recognised principles of

war, as well as treaty laws like Hague Regulations of 1899 and 1907 or

18 . http://www.icrc.org/en/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-

bellum. 19 . NabulsiKarma,“ Jus Ad Bellum/Jus In Bello”, www.crimesofwar.org, assessed

on 13-10-2014.

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the Tour Geneva Conventions of 1949 which protect war victims, as well

as Additional Protocols of 1977 which define the key term such as

combatants and contain detailed provisions to protect non-combatants and

civil defence etc.

There is no agreement on what to call Jus in Bello. The International

Committee of Red Cross and many scholars call it the International

Humanitarian law or IHL. But military thinkers and some scholars say

that laws of war are drawn directly from customs and practice of war

itself and are intended to serve state armies20.

As a gist it is noteworthy to pursue the words of Prof. Horst Fischer,

Academic Director of the Institute for International Law of Peace and

Armed Conflict at the Ruhr- Universitat Bochum in Germany and adjunct

Prof. of Columbia University. He says that the principle of

proportionality is embedded in almost every national legal system and

underlies the international legal order. Its function in domestic law is to

relate means to ends. In the conduct of war, when a party commits a

lawful attack against a military objective, the principle of proportionality

also comes into play whenever there are collateral damage i.e. civilian

causalities or damages to non-military objective. Attacks are prohibited if

they cause incidental loss of civilian life, injury to civilians, or damage to

civilian objects that is excessive in relation to the anticipated concrete and

direct military advantage of the attack. This creates a permanent

obligation for military commanders to consider the result of the attack

compared to the advantage anticipated.

20. Ibid.

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CHAPTER-VI

DOCTRINE OF PROPORTIONALITY

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1. Concept

2. Proportionality Test

(A) Legitimate Goal or the First Stage

(B) Suitability or the Second Stage

(C) Necessity or the Third Stage

(D) The Balancing Test or the Fourth Stage

3. Importance of Doctrine of Proportionality

4. Margin of Appreciation and Proportionality

5. Status of Proportionality

6. Proportionality, Wednesbury and Merit Based

Review

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CHAPTER VI

DOCTRINE OF PROPORTIONALITY

With the rapid growth of administrative law a need was felt to control the

abuse of discretionary powers of the administration due to the wide scope

given by the legislation, statutes and other laws for the exercise of

discretionary powers. The courts that are primarily responsible to control

the abuse of discretionary powers by the authorities by way of powers

conferred to them under the constitution and by way of judicial review

evolved various tests and principles for control of this abuse. The

principles of irrationality, unreasonableness, ultra-vires and irrelevant

considerations etc are some of them. One of such modes which are latest

in practice is the doctrine or principle of proportionality1.

The principle of proportionality requires a public authority to act and use

its discretionary powers in such a way that the rights and liberties of the

individual are not at all affected or if it is necessary affectes to a very

minimum level. For this purpose the authority ought to maintain a

proportion between what it wants to achieve by way of its decision and

by what modes and means does he need to achieve it. The power

conferred to an administrative authority is for a specific purpose and the

1. Messey I.P., Administrative Law, 7th ed., Eastern Book Company, p. 383.

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exercise of discretionary power of the executive must be in proportion to

the purpose it wants to achieve. In general proportionality in a broad

sense requires that the government actions must be no more intrusive than

what is necessary to meet an important public purpose2.

1. Concept

Proportionality can be described as a principle where the court is

primarily concerned with the way in which the priorities have been set up

by the administrative authorities. The very essence of decision making

consists in the attribution of relative importance to factors of the case.

This is precisely what proportionality is all about3. It can be thus

described as the Preparedness to hold that a decision which overrides

fundamental rights without sufficient objective justification will as a

matter of law necessarily be disproportionate to the aims in view - - - the

deployment of proportionality sets in focus the true nature of the exercise

that is the elaboration of a rule about permissible priorities4.

The Doctrine of proportionality involves the theory that for attaining the

desired result the administrative action taken must not be more than what

is necessary. If the action taken is grossly disproportionate the decision is

liable to scrutiny of the court. It was said by the Supreme Court in

Jitendra Kumar v State of Haryana 5 that this doctrine operates both in

the procedural and in substantive matters.

The central point in principle of proportionality is that the administrative

action has to be scrutinized in order to assess that the process conferred to

2. Adler John,General Principals of Constitutional and Administrative Law 2002,

4th ed. , p. 385. 3. SirLaws J., “Is the High Court the Guardian of Fundamental Constitutional

Rights”, (1993) P.L. 59. 4. Quoted in Union of India v G. Ganayutham, (1997) 7 S.C.C. at p. 474. 5. (2008) 2 S.C.C. 161.

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the authority has been exercised in proportion to the purpose for which

the power had been granted. For this the court has to go into the pros and

cons of any administrative action brought before it. The administrative

action must be in the interest of the public and society and should do

minimum harm to the fundamental and constitutional rights of a person.

This principle should be is strictly followed since any government action

directly or indirectly effects the rights and the life of citizens of the

country.

The concept of proportionality is used as criteria of fairness and justice in

statutory interpretation process especially in the Constitutional law as a

logical method intended to assist in discerning the correct balance

between the restriction imposed by a corrective measure and the severity

of the nature of the prohibited act.

Though there is no statutory definition or meaning of the principle of

proportionality has been given in statutes. The doctrine has been

developed by way of judicial review and judicial decisions given in cases

of arbitrary exercise of discretionary powers by the administration.

Proportionality was for the first time suggested by Lord Diplock in the

case of Council of Civil Services Union v Minister for Civil Services6.

In this case the court observed that:

“Judicial review has I think developed to a stage today when without

reiterating any analysis of the steps by which the development has come

about one can conveniently classify under three heads the grounds on

which administrative action are subjected to control by judicial review.

The first ground I would call ‘illegality’ the second ‘irrationality’ and the

third ‘procedural impropriety’. This is not to say that further development

on a case by case basis may not in course of time add further grounds. I

6. (1984) 3 All. E.R. 935.

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have in mind particularly the possible adoption in the future of the

principle of propoprtionality7.

The scope under proportionality for rigorous scrutiny of the putative

justification for measures which infringe human rights or other highly

regarded interests led some judges to argue strongly against the adoption

of proportionality in the English Law System contending that its adoption

will be against the principles of separation of powers and would diminish

the difference between appeal and review8. Thus this principle was

criticised in R v Secretary of State for the Home Department Ex-Parte

Brind9. Whether the principle of proportionality is applied clearly or not,

it is definitely an affective tool for assessing whether the decision of the

administrative authority is unreasonable and arbitrary and whether the

administration has struck a proper balance between the reasonable and

relevant considerations?

2. Proportionality Test

Proportionality is basically a test to determine whether interference in the

right of a person or in his liberties is justified by the administrative action.

The proportionality requires satisfying the following tests10:

(A) Legitimate Goal or the First Stage: The first stage in a

proportionality test is to see as to the measure taken by the authority must

serve a legitimate goal. This is rather a difficult process because the

courts do not normally enquire into the state of minds of the decision-

makers. In this regardwhat matters is whether the policy or decision is

7. Id. at p. 950. 8. Elliott Mark,BeastonJack and Mathews Martin, Administrative Law : Text and

Materials, 3rd ed., Oxford University Press, p. 264 9. (1991) 1 A.C. 696. at 766-767. 10. Alexy Robert, A Theory of Constitutional Rights, Oxford University press,

2002, p. 66.

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objectively justifiable, not whether the person who made it had the right

considerations on their minds.11

In R v Oakes12 a case decided by the Supreme Court of Canada it was

observed that the goal must be ‘of sufficient importance to warrant

overridinga constitutionally protected right or freedom’.

In Tennessee v Garner13 the police shot down a perpetrator in order to

protect the property and the question was whether the law enforcer had a

right to shoot the fleeing suspect. In this case the legitimate goal was the

protection of property but when in proportion one looks at the relative

importance of life and property it may essentially be deduced that the

goal was not legitimate enough to call for such an action.

Thus while assessing the legitimacy of an administrative action which

interferes with aright it is important to see that the action taken justifies

the interference and it must at least be rationally connected to the aim of

public interest. For example if a demonstration is prohibited on the

ground that it would attract counter demonstration which would lead to

violence the justification of prohibition is the need to protect the right to

physical integrity of those who might be harmed by violence. In this case

the protection of rights is a goal and is legitimate also14.

It may well be deduced that the goals which protect a person’s physical or

psychological integrity, his property, liberty or other rights and interests

are legitimate goals. It has rightly been observed that moralistic and

impermissibly paternalistic goals should be excluded and must not be

counted as legitimate.For example paternalism is justified in case of seat

11. www.corteidh.or.cr/r30064.pdf at p.712. 12. (1986) 1 S.C.R. 103. 13. 471 U.S. 1 (1985). 14. MollerKai, “Proportionality: Challenging the Critic”, 2012, I.Con (2012) Vol.

10, No. 3, p. 712.

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bolt requirements but unjustified in case of sexual practices between

adults15.

(B) Suitability or the Second Stage: The main point in the suitability

stage is to establish the extent to which the protection of the right and the

legitimate goal established in the first stage actually clash. To put it

another way the point of the principle of suitability is to seek out those

cases where upon a closer lookthere does not seem to exist any conflict.

This principle holds that there must be a rational connection between the

interference and the legitimate goal. Thus the interference must be a

suitable means to achieve the goal. If the interference does not contribute

to the achievement of legitimate goal then there is no conflict. A conflict

only means that one can realise one value only at the cost of the other.If

the interference with the rights or liberties of an individual, contributes to

the achievement of a legitimate goal then the suitability test is satisfied

because it has been established that there is indeed a clash of the two

values16.

In Seco v Establishment d’ Assurance17 it was said that it can easily be

argued that measures which are not suitable at all to pursue the stated

objective should not be imposed on that basis. In other words suitability

requires a casual relationship between the measures and its object18.

In domestic law the legislator is often granted a certain ‘right to err’, in

making his appraisals about effectiveness. Thus the scope of discretion

granted to the initial decision maker will also affect the intensity of

15. Kumm Mattias, Political Liberalism and the Structure of Rights :On the Place

and Limits of the Proportionality Requirement quoted in Law, Rights, Discourse, Themes of work of Robert Alexy edited by S. Paulson and G. Pavlakos,Hart Publishing, 2007, p. 166.

16. Supra note 13, at p. 713. 17. Joint Cases 62/81 and 63/81, (1982) E.C.R. 223, at p. 236-237. 18. Jans H. Jans, “ Proportionality Revisited”, Legal Issues of Economic

Integration, Vol. 27, No. 3, at p. 240.

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review ranging from mere review of evidence to intense substantive

review of the decision19.

Therefore, from the decision-maker’s point of view the suitability

principle is merely a very rough grid to exclude obvious disproportionate

measures. From the government’s perspective it is a safeguard for judicial

restraint and against excessive judicial activism that grants considerable

leeways in making policy decisions20.

(C) Necessity or the Third Stage: The necessity test requires that the

objective upon which an action is based cannot be achieved by alternative

means that are less restrictive than the action taken. In other words it a

particular objective can be achieved by various means then that means

should be selected which is the least harmful for achieving the particular

objective. This is often called the ‘least restrictive alternative’21. Thus the

test combines two questions. The first is whether there are less restrictive

or milder or less harmful measures. The second question that one needs to

object is whether the alternative measures are equally effective in

achieving the pursued objective22.

The underlying objective of this test is that the measure adopted by the

administrative authority or the state should be such that it does minimum

harm to the rights of the citizens and the public interest. The European

Court of Justice in Officer Van Justitie v Adriaande Peijper23 ruled out

the necessity of domestic legislation which the Dutch authorities tried to

justify on public health grounds. The court held that the measure was not

necessary since the domestic authorities could have pursued the same 19. Ibid. 20. Kullick Andreas, Global Public Interest in International Investment Law,

Cambridge University Press, 2012, p. 186. 21. Supranote 17, at p. 240. 22. Ortino Federico, Basic Legal Investment for the Liberalisation of the Trade: A

Comparative Analysis of E.C. and W.T.O. Law, Hart Publishing, 2004, p. 471. 23. Case No. 104/75, 1976 E.C.R. 613.

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objective as effectively by adopting other means whichwere less

restrictive to inter-community trade24.

The European Court of Justice similarly in Familiapress v Bauer

Verlag25 ruled that it was for the National Court to assess whether the

national prohibition was ‘proportionate to the aim of maintaining press

diversity and whether that objective might not be attained by measures

less restrictive of both intra-community trade and freedom of

expression’26.

The English Courts in several cases have aligned necessity with the

principle of proportionality in the strict sense. In R v Shayler27 the court

citing the cases of Handyside v United Kingdom28 and The Sunday

Times v United Kingdom29 held that “it is plain from the language of

Article 10 (2) and the European Court of Human Rights has repeatedly

held, that any national restriction on freedom of expression can be

consistent with Article 10 (2) only if it is prescribed by law, is directed to

one or more of the objectives specified in the Article and is shown by the

state concerned to be necessary in a democratic society. ‘Necessary’ has

been strongly interpreted. It is not synonymous with ‘indispensable’,

neither has it the flexibility of such expressions as ‘admissible’,

‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’- - - one must consider

whether the interference complained of corresponded to a pressing social

need, whether it was proportionate to the legitimate aim pursued and

24. Id. at p. 636. 25. 1997 E.C.R. I -3689. 26. Id. at I -3717. 27. (2003) 1 A.C. 247. 28. (1976)IEHRR 737. 29. (1979)2EHRR245.

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whether the reasons given by the National authority to justify it are

relevant and sufficient under Article 10 (2)30.

The traditional formulation of the necessity test which asks whether there

is a less restrictive but equally effective means is basically simplistic. The

problem is that often there exists an alternative policy which is indeed

less restrictive but may have some disadvantages. Firstly such cases may

be where the alternative policy is less restrictive but not equally effective.

Secondly there can be cases where the alternative policy is less restrictive

but requires additional resources. For e.g. in Pretty v United Kingdom31

which was concerned with the right to assisted suicide the court could and

indeed should have considered not only the alternatives of permitting or

prohibiting assisted suicide but also the possibility of making assisted

suicide permissible within a regulatory framework designed to minimise

the danger of abuse, for e.g. by requiring certain procedures to be

followed such as the involvement of a physician. But such a scheme

would require a certain amount of resources to be spent, so while the

alternative is less restrictive of the right, it involves an extra cost to be

borne by the public32.

Thirdly, there may be a less restrictive policy option which however

would involve imposing a burden on the third party e.g. cases involving

accommodation fall in this category.

There will often be a range of responses to a social problem, some will be

more restrictive, some will be more effective, some will burden one

30. Id. at 268, 269. See also R (Daly) v Secretary of State for Home Department,

(2001) U.K.H.L. 26 and Huang v Secretary of State for Home Department, 2007 U.K.H.L. 11.

31. (2002) 35 E.H.R.R. 1. 32. www.corteidh.or.cr/tableas/r30064.pdf, assessed on 21-9-2014.

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group and others another group. The proper way to handle such cases

must be to assess all possible policies relative to each other33.

(D) The Balancing Test or the Fourth Stage: If the government’s

measures fails on first three stages i.e. legitimate goal, suitability and

necessity then the act is disproportionate and is liable to be struck down

as it is outweigh by the pleaded right and therefore unconstitutional. The

last stage ‘balancing’ is also known as proportionality in the narrow

sense. If the measure under judicial review possesses the first three tests

the judge proceeds to balancing strict ‘sense’34. The point of balancing

stage is to determine which of the two (or more values) at stake, take

priority in the circumstances of the case.

In the balancing stage the judge weights the benefit of the action the

against infringement of the right in order to determine which

‘constitutional value’ shall prevail in light of the given facts35. Basically

balancing test is finding out the means that have been employed to

achieve the goals and to see whether the means adopted have effected in

any way the rights or liberties of a person or have in any manner violated

the constitution. Different weightage is given to the different means

available for achieving the object desired and then the overall picture is

seen.

Thus in Council of the City of the Stoke - on - Trent and Norwich City

Council v B & Q plc36 the House of Lords while interpreting “Article 30

ofthe E.E.C. (European Economic Community) treaty on Prohibition on

Sunday Trading, observed that Article 30 of the treaty is to be interpreted

33. Hickman Tom,“ The Substance and Structure of Proportionality”,Public Law,

2008, p. 711. 34. Sweet Alex Stone. & Mathews Jud, “ Proportionality balancing & Global

Constitutionalism”, 2008, Yale Law Schools Faculty Scholarship Series, 2008, p. 71.

35. See United States v O’Brien, 391, U.S. 367 (1968). 36. Case No. 169/91 (1991) 1 A.C. 49.

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to mean that the prohibition which it lays down does not apply to national

legislation prohibiting retailers from opening theirpremises on sunday- - -

Such legislation which is not intended to regulate the flow of goods and

affects the sale of both domestic and imported products, pursues an aim

which is justified under community law. It reflects certain choices

relating to particular national or regional socio-cultural characteristics and

it is for the member states to make those choices in compliance with the

requirements of community law in particular the principle of

‘proportionality’. As far as that principle is considered the restrictive

effects on community trade which might result from such rules would not

appear to be excessive in relation to the aim pursued”37.If the measures

adopted for achieving the desired goal effects the livelihood of persons or

any basic right, then these factors are weighed more heavily than other

matters of less importance.

Balancing test was also applied in deciding the case of Bela-Muhle

Josefberjmann K.G. vGrows farm Gmbhs Co. K.G.38 which is popularly

known as ‘Skimmed Milk Powder Case’. This case was concerned with a

regulation passed by the council for the purpose of reducing the vast

supply of skimmed milk powder. The regulation attempted to solve the

problem by forcing farmers to use skimmed milk powder for animal feed

instead of the cheaper soya milk powder. The court ruled that although

the council had the powers necessary to issue such a directive and that

solving the oversupply was a legitimate goal still the measures prescribed

were disproportionate to the problem since they would put extra cost

burden on the farmers.

Again in a display of balancing the means available for reaching a

decision by the authority the court decided that the case is R (On the

37. Id. at p. 63-65. 38. 1977 E.C.R. 1211.

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application of Farrakhan) v Secretary of State for Home

Department39 in which the applicant sought admission to the United

Kingdom. His request was rejected without giving any reasons on the

ground that in the past he had made utterances which were capable of

being racist. He claimed to have recanted and had given undertakings of

his behaviour. The court observed that the rules of judicial review did not

require the court to hold that if no reasons for a decision were given, there

were in fact no reasons. The Home Secretary was satisfied that Mr.

Farrakhan had expressed racial views and that his admission in U.K.

would risk public disorder. The court held that freedom of expression is

important, but Article 16 created specific exceptions for aliens and

Article 10 was only engaged for people already in the country and did not

affect immigration control, unless the refusal was specifically to control

the expression of views. The Home Secretary had disclosed sufficient

reasons to justify the exclusion and the exclusion was proportionate.

3. Importance of Doctrine of Proportionality

The judicial doctrine beginning from the ancient times till now evokes

that proportionality is signifying the idea about order, equilibrium,

rational relation and justified measure. Proportionality is not just a

rational law principle, but at the same time it is a principle of positive

law. It is judicial criteria through which it is appreciated the legitimacy of

the encroachments of the state power in the field of the exercise of

fundamental rights and freedoms40. The principle finds place in

International Instruments like Universal Declaration of Human Rights41,

International Pact in regard to economical, social and political rights,42

39. (2002) Q.B. 1391. 40. Dr. Andreescu Marius, “ Proportionality- A Constitutional principle”, January

2010, Article; Source: International Conference: CKS, p. 780. 41. Item 29, para 2 and 3. 42. Item 4 and 5.

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European Convention for Human Rights Protection of fundamental

freedoms43 and several other. It also finds specific place in the

constitution of Spain, Germany and Italy. The principle of proportionality

is established in the Constitution and legislation of Portugal, Switzerland

etc and has been expressly evoked in the legislation and jurisprudence of

countries like Greece, Belgium, Luxembourg etc.44 In India, England and

in America this principle has been established by the judicial reviews of

various administrative and legislative actions.

The principle of proportionality is readily found in the community law

meaning that the lawfulness of the community rules is subject to the

condition that the means used to achieve the aimed objectives are

adequate and will not exceed than what is lawfully required to reach this

objective. The principle is applied in many branches of law, be it criminal

law, civil law or administrative law. The importance of proportionality

is meaningful in many aspects. In the European Court of Human Rights

proportionality has been conceived as a fair and equitable relationship

between the situations in fact, the means for restraining the exercise of

certain rights and the legitimate purpose aimed. It forms a equitable

relationship between individual rights and public right. It is also a

criterion that determines the legality of the interferences of the State in

the exercise of the rights protected by the Constitution45.

As a result the principle of proportionality is imposed and applied more

and more as a universal principle established in the majority of

contemporary law systems implicitly and explicitly found in the

43. Item 8, 9, 10, 11 and 12. 44. Andreescu Dana Apasstal, the Discretionary Power and Excess of Power of the

Public Authorities, All Beck Publishing House, Bucharest, 1999, p. 48. 45. Supra note 37 at p. 10 and 11.

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constitutional norms and is acknowledged by both the national and

international jurisdictions46.

The proportionality is correlated with legality concepts, opportunity and

discretionary power. In the public law the violation of the principle of

proportionality is considered as being the exceeding of liberty of action

let at the disposal of the authortities47.

Proportionality is important because it is a fundamental principle of law

that is accepted or deducted from the constitutional and legislative

regulations and those of international juridical instruments. It is based on

justice and equity and it expresses the existence of a balanced relationship

between the actions, phenomenous and situations. It also deals adequately

with limiting the measures of discretion exercised by the state authorities

thus avoiding the abuse of law and protecting the fundamental rights and

freedoms48.

It is also important from the point of view of standard of judicial review.

This is because the proportionality test provides a well structured form of

enquiry in four parts i.e. legitimate goal, necessity, suitability and

balancing. In such case the agency/state has to justify its action on these

tests and grounds and the court after balancing all the aspects and giving

a view to the circumstances of the case decides whether the state or

concerned agency acted in accordance with the principles of law and the

constitution.

The application of the test of suitability and necessity enables the court to

review not only the legality but also to some extent the merits of

legislative and administrative measures. Because of this distinct

46. Id. at p. 11. 47. Guibal M., De la Proportionalite, (1978) A.J.D.A. at p. 477. 48. www.uab.ro/reviste-recumoscute/reviste-drept/amales.pdf assessed on 21-9-

2014.

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characteristic proportionality is often perceived to be the most far-

reaching ground of review and the most potent weapon in the arsenal of

the public law judge. However it is fact that depends on how strictly a

court applies the test of proportionality and how far it is prepared to defer

to the choices of the authority which has adopted the measure in issue. In

community law proportionality is important because it is a flexible

principle which is used in different context to protect different interests

and entails varying degree of judicial scrutiny49.

4. Margin of Appreciation and Proportionality

Margin of appreciation is a concept of the European Court of Human

Rights. It has developed when considering whether a member state of

European Convention of Human Rights has breached the convention. The

doctrine allows the court to take into account the fact that the convention

will be interpreted differently in different member states50. This doctrine

is very similar to the doctrine of proportionality as in the jurisprudence of

the European Court gives power to the contracting states to enjoy a

certain degree of latitude in balancing individual rights and national

interests as well as resolving the conflict that emerge as a result of diverse

moral convictions51.

The doctrine of proportionality is at the heart of the Courts investigation

into the reasonableness of restriction. Although the Court offers margin

of appreciation to the member states and its institutions, the courts main

role is to ensure that the rights laid down in the conventions are not

interfered unnecessarily. The principle of proportionality requires that

49. EllisEvelyn, The Principle of Proportionality in the Laws of Europe, Hart

Publishing, 1999, p. 68-69. 50. en.wikipedia.org/wiki/margin-of-appreciation, assessed on 21-9-2014. 51. www.iosrjournals.org, assessed on 21-9-2014.

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there must be a reasonable relationship between a particular objective to

be achieved and the means used to achieve that objective52.

The Courts in general use the phrase ‘a reasonable relationship between

the means and aims sought to be released’ or a ‘fair balance’ between the

general and individual interests at stake. In James and others vUnited

Kingdom53 a case in which the claimants challenged the Leasehold

Reform Act, 1967 saying that it deprived them of their property rights

when lesses were given the power to purchase the freehold reversion. The

court held that allowing a mechanism for the compulsory transfer of the

freehold interest in the house and the land to the tenant with financial

compensation to the landlord cannot in itself be qualified in the

circumstances as an inappropriate or disproportionate method for

readjusting the law so as to meet the proper concern for the equitable

distribution of ownership. There must be a reasonable relationship of

proportionality between the means employed and the aim sought to be

realised54. Further more the court held that the possible existence of

alternative solution does not make legislations unlawful under the right to

property and it is not for the court to consider whether legislation

represents the best way of dealing with the problem or whether the

legislative discretion should have been exercised in another way55.

When the interrelationship between proportionality and causes of margin

of appreciation is considered some factors becomes important for

reconsideration.These are as follow:First, the significance of the right in

question because the court have declared that some conventional rights

52. Clayton R. and Tomlinson H.,The Law of Human Rights, Oxford

Press,2000,p.278

53. Series A, No. 98, Judgement of 21st February 1986.

54. Ibid.

55. Id.

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are fundamental, such as the right to fair trial56 or right to private life57 or

right to freedom of expression58. Secondly, the objectivity of the

restriction in question is important as the court distinguishes between the

objective nature of maintaining the authority of the judiciary and the

subjective nature of the protection of morals where the court defers to

domestic view59. Thirdly, when there is consensus in law and practice

among the member states, the court acknowledged an emerging

consensus about legal treatment of illegitimate children and struck down

inheritance laws which discriminated against them60.

The proponents of the doctrine of proportionality maintain the view that

judicial review is different from an appeal whereas an appeal allows the

appellate body to decide the whole matter again after reviewing the

merits of the case as well as the evidences.The judicial review is only

concerned with the facts as to whether the legal standards or the powers

conferred by the legislation or statute has been complied with in a

properand balanced manner taking into view all considerations which

ought to have been taken61.

The proportionality form of judicial review achieves this by ascertaining

whether the decision maker has adopted the least restrictive choice of

measures and has maintained a proper balance between the possible

adverse effects of the decision on the rights, liberties and interests of the

56 . Series A, No. 11 Judgment dated 17-1-1970, p. 14 DelCourt v Belgium.

57. Dudgeon v United Kingdom, Series A, No.45, decided on 22-10-1981.

58. Handyride v United Kingdom, Case No. 5493/72 (1976) E.C.H.R. 5, decided on 7-12-1976.

59. Sunday Times v United Kingdom, Series A, No. 30, 2 E.H.R.R. 245, decided on 26-4-1979.

60. Marckse v Belgium, (1979) 2 E.H.R.R. 330.

61. AdlerJohn, “ General Principle of Constitutional and Administrative Law”, 4th

ed. 2002, Palgrave Law Masters, p. 366-368.

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persons affected by the decision. This does not involve a review of the

merits of the case62.

The decision maker i.e. the administrative body or legislation is given an

area of discretion and choices. The margin or the width of this area of

discretion depends upon the subject matter and the type or the nature of

the rights involved in the matter63. Where the decision maker functions

within the prescribed area of discretion and makes choices from the

various alternatives available the courts normally refrain from

questioning the wisdom of the authority. However, it was observed in the

leading case of Om Kumar vUnion of India64 that in such cases the court

may still look into whether the choice made excessively infringes the

right in question or not.

However, it is not to be disregarded that margin of appreciation in case of

domestic law and the margin of appreciation in the International Law of

Human Rights cannot be same. The judicial review on the basis of

proportionality under the domestic law deals with the relationship of

judiciary to the branches of state/ government.The International law or

court supervises independent legal systems and thus has to take into

consideration the cultural diversity of the nations and the varying

conceptions of human rights of the nation’s etc. This is why the courts

under domestic law prefer terms like ‘margin of discretion’ or

‘discretionary area’ instead of the term ‘margin of appreciation’ used by

International Courts65.

62. Ajoy P.B., “Administrative Action and the Doctrine of Proportionality in

India”,Journal of Humanities and Social Science, Vol. 1, Issue 6 (September-October2012), p. 18.

63. R (Mehmood) v Secretary of State for Home Department, (2001) 1 W.L.R. 840. 64. A.I.R. 2000 S.C. 3689. 65. ReverseJulian, “Proportionality and Variable Intensity of Review”, Cambridge

Law Journal, 2006, Vol. 65, Issue 1, p. 175-176.

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The margin of discretion has two aspects viz. ‘Judicial Deference’ and

‘Judicial Restraint’ both of which together determine the margin of

appreciation. The concept of judicial deference is based on concept of

institutional competence of non-judicial bodies to determine the

proportionality of the limitations imposed on the rights of citizens. In

contrast, the judicial restraint relates to the aspect of legality in judicial

review. The judges would normally not impose their choice over the

administrative or legislative body because their role is to secure legality

and not correctness66.

5. Status of Proportionality

Proportionality as a principle has not been included in any legislation or

statute and no definition of it has been provided under any law. This

principle has been developed slowly by the judiciary for proper control of

unfair, unreasonable and arbitrary exercise of discretion by the legislative

and administrative authorities, and has been developed by way of judicial

review. It has now been recognized as an inseparable part of the domestic

and community law as well as the human rights law.

In the leading case of Council of Civil Services v Minister for Civil

Service67, Lord Diplock while classifying the grounds on which

administrative action is subject to judicial control had besides stating

illegality, irrationality and procedural impropriety, added that there

further may be possible grounds as thelaw develops case by case. It

seems that proportionality could in future be added as a possible ground

of judicial control of state actions.

66. Id. at p. 191-194. 67. (1983) U.K.H.L. 6.

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The opportunity to incorporate or present the influence of proportionality

occurred to the House of Lords in R v Secretary of State for the Home

Department Ex-Parte Brind.68 This case is still the leading case on

status of proportionality. The brief facts of the case are that the Home

Secretary had issued directives under the Broadcasting Act, 1981

requiring the B.B.C. to refrain from broadcasting interviews with people

who represented terrorist's organisations. The prescription was limited to

direct statements from individuals and its implications led to farcical

dubbing of the I.R.A. member's voices on the news. The applicant sought

to challenge the decision on several grounds. One of them was that the

directive was disproportionate response to the government’s legitimate

objective.

The House of Lords rejected the proportionality argument. They also

rejected the incorporation of doctrine of proportionality as a head of

review but simultaneously they did not exclude the possibility that

proportionality would be a part of domestic law in future. Lord Roskill

stated that this was not a case in which the first step can be taken and that

in his view proportionality would force the court in substituting its own

judgement of what was needed to achieve a particular objective for the

judgement of Secretary of State upon whom that duty had been laid by

the Parliament69.

Thus Lord Roskill saw the scope of possibility of proportionality as a

future basis of judicial review but in this particular case he asserted that

proportionality would create a situation where judicial review would

become an appeal against a decision rather than an assessment of legality

68. (1991) 1 A.C. 696. 69. Id. at p. 749-750.

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and legitimacy of state decision. Lord Lowry concurred with Lord Roskill

stating that, ‘there can be very little reason for judges to operate a

proportionality doctrine in the space which is left between conventional

judicial review (Wednesbury) and the forbidden appellate jurisdiction’70.

He also felt that the courts were not well equipped by training or

experience to balance factors in an administrative decisions71.

Since ‘Brind’ was a leading case on status of proportionality.Besides this

there are several cases in which the courts have explicitly refused to

consider proportionality as a criteria of review72. In R v Secretary of

State for the Home Department, Ex-Parte Hargreaves73 the issue

concerned was with prisoners whose expectations of home leave and

early release was not fulfilled by reason of change of policy. The court in

this case also did not go beyond the confines of the Wednesbury formula.

Similarly in the ‘ABICIFER Case’ i.e. in the Association of British

Civilian Internees For Eastern Region v Secretary of State for

Defence74 the association sought a judicial review of a decision not to

pay compensation in respect of their or their parents or their

grandparent’s interment by the Japanese in the Second World War.

Payment was not made because those interned were not born in Britain.

Lord Dyson L.J. rejecting the appeal followed ‘Brind’ and held that the

principle of proportionality was strictly applicable only in the cases with

an E.U. dimension or subject to the human rights.

70. Id. at p. 762. 71. Id. at p. 767. 72. BarclayTheo, “The Proportionality Test in U.K. Administrative Law”,

www.sjol.co.uk/issue-3/proportionality, assessed on 21-9-2014. 73. (1997) 1 W.L.R. 906. 74. (2003) 3 W.L.R. 80.

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In R v International Stock Exchange of the United Kingdom and the

Republic of Ireland Ex-Parte Else (1982) Ltd.75, Poppel Well J. stated

that proportionality was not a free standing principle in domestic law and

that it would not be proper to apply.

However it is evident that in cases concerning domestic law the courts

have applied proportionality either explicitly or implicitly specially in the

cases dealing with fundamental rights and those of penalties. In the case

of Regina v Barnsley Metropolitan Borough Council Ex-Parte Hork76,

the applicant applied for quashing a decision of the local council to

exclude him from trading in the market. The licence of the stall owner

had been revoked for urinating in the street and for using offensive

language. The decision of the council was struck down to the extent that

the penalties were out of proportion to the offence. In many cases, this

decision was followed and the principle of proportionality was applied in

the cases of R v Wear Valley District Council Ex-Parte Binks77, R v

Birmingham City Council Ex- Parte Dredger78, Regina on the

application of Isle of Anglesey County Council v Secretary of State for

Works and Pensions79 etc.

The passing of the Human Rights Act, 1998 triggered a revival of debate

about incorporating proportionality. Leading more judges to argue for full

domestic use of the doctrine80. Across Europe the construction of the

proportionality principle was interpreted by the national courts so as to

75. (1993) Q.B. 534. 76. (1976) 1 W.L.R. 1052. 77. (1985) 2 All. E.R. 699. 78. (1994) 6 Admin. L.R. 553. 79. (2003) E.W.H.C. 2518. 80. BarclayTheo, ‘‘ The Proportionality test in U.K. Administrative Law-a New

Ground of Review, or a fading Exception’’ www. sfd. co.uk.

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apply them proportionality test. In R (Daly) v Secretary of State for the

Home Department81 Lord Steyn and Lord Bingham acknowledged that

the construction of the Human Rights Act was required that the

proportionality test to be applied and confirmed.There was a separate

ground of review for Human Rights Act and E.U. related decisions.

However they did not condemn the application of proportionality to all

irrationaldomestic review. Lord Cooke without objecting to the

judgement for Lord Steyn or Lord Bingham, went even further and

suggested that the Wednesbury test was unfortunately regressive, and that

the decision should be within the scope of judicial intervention on its

merits. Thus allowing the judges to consider cases on their merits seems

materially close to the proportionality doctrine and certainly dismisses the

objections of the House of Lords in ‘Brind’ case.

In the same year Lord Slynn expressed this view in R v Secretary of

State for the Environment Ex- Parte Alconbory82. He asserted that, “I

consider that even without reference to the Human Rights Act the time

has come to recognise that this principle of (proportionality) is a part of

English administrative law not only when judges are dealing with

community act but also when they are dealing with acts subject to

domestic law. Trying to keep the Wednesbury principle and

proportionality in separate compartments seems to me to be unnecessary

and confusing. However reference to the Human Rights Act makes it

necessary that the court should ask whether what is done is compatible

with convention rights. That will often require that the question should be

asked whether the principle of proportionality has been satisfied.” 83

81 . (2001) U.K.H.L. 26. 82 . (2001) 2 W.L.R. 1389. 83 . Ibid.

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It is clear that the principle of proportionality established its status

without any express approval by entering judicial review on case by case

basis. In Hall v Shoreham – by – sea Urban District Council84 the court

explicitly labelled the council’s policy as irrational on the ground that

there were other ‘better’ ways to achieve what was the objective and

policies. In R v Secretary of State for the Home Department Ex- Parte

Nadarajah85 Laws. L.J., ruled that a public body could resile from a

legitimate expectation only where it had a duty to do so or if it was a

proportionate response with regard to a legitimate aim in the public

interest.

More explicitly Laws L.J., in R v Secretary of State for the Home

Department Ex- Parte Walker86 stated that the Wednesbury

unreasonableness is an ‘old fashioned legal construct’ and argued that

with the Human Rights Act the courts were increasingly accustomed to

the application of proportionality and were often doing so in the domestic

law. Similarly in Somerville and Others v Scottish Ministers87 the House

of Lords ruled that proportionality was not a stand alone ground of review

in cases that did not involve the breach of E.C.H.R. rights.

6. Proportionality, Wednesbury and Merit Based Review

The traditional standard of review for irrationality under the Common

Law is that of Wednesbury unreasonableness. It sets a high standard that

a decision is so unreasonable that no reasonable authority could have

reached it. However as early as in the case of G.C.H.Q. or in the case of

Council of Civil Service Union v Minister for Civil Service88 Lord

Diplock acknowledged the possibility that another head of review may be 84. (1964) 1 W.L.R. 240. 85. (2005) E.W.C.A. Civ. 1363. 86. (2000) 1 W.L.R.806. 87. (2008) U.K.H.L. 44. 88. (1983) U.K.H.L.6.

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added on others some points in future be acknowledged in the U.K. laws

i.e. the head of proportionality. Proportionality has its origins in Prussia,

Germany, Europe and then the European Convention on Human Rights.

The formula adopted in English Laws which largely echoes its European

origins is expressed by the Privy Council case of De Freitas v Permanent

Secretary of Ministry of Agriculture Fisheries Land and Housing89. In

this case the issue was the constitutionality of Section 10 (2)(a) of

Antigua and Barbuda’s Civil Service Act which prohibited civil servants

from expressing opinions on controversial matters and so interfered with

their constitutional right to freedom of expression. Lord Clyde’s

reasoning in this case was a modal application of the proportionality test.

He observed that the plain wordings of the section had a legitimate

objective namely the maintenance of the neutrality of the civil servants.

The restraint imposed was rationally connected with that objective but it

failed due to the hurdle of necessity or a fair balance as a blanket ban was

clearly excessive90.

Similar view was taken by the Privy Council in Thomas v Baptiste91. In

this case an appeal against the order for their execution after very

substantial periods in custody was involved and one of the focal points of

challenge were instructions related to the exercise by the applicants of

their right to apply to an internation human rights body (the UNHRC).

Lord Millett for the majority stated, that the instructions were

disproportionate because they curtailed the prisoner’s rights.Further it

was necessary to deal with the mischief created by the delays in the

international appellate process. It would have been sufficient to prescribe

89. (1998) 3 W.L.R. 675.

90. Ibid.

91. (1999) 3 W.L.R. 249.

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an outside period of say 18 months for the completion of all such

process92.

A legitimate aim must be sufficiently necessary to justify the restriction

of a right.The limitation must be rationally connected to that aim and

restriction must be no more than that is necessary to attain the legitimate

objective. The limitations must strike a balance between interest of

individual and the community as a whole93. This principle has been

subsequently endorsed in R (F) (by his litigation friend F) v Secretary of

State for Home Departmen94 by the Supreme Court of United Kingdom.

The most influential dicta on the proportionality doctrine are

comparability with that of Wednesbury is that of Lord Steyn in the Daly

case95. In this case Lord Steyn confirmed that the proportionality test is

the correct measure for human right cases or European legislation. He

also made obiter remarks as to the doctrine’s substantive differences from

Wednesbury irrationality.

Lord Steyn observed that both test often would result in the same

outcome but went on to draw distinctions between them. He noted that

proportionality is a higher intensity of review. Also proportionality test

will require the courts to consider a balance between interests and thus

necessarily involve a weighting of different considerations. He concluded

that the proportionality test does not amount to ‘merit based review’ and

that the distinction between a judge and administrator remains

functionally distinct96.

92. Jowell Jeffrey L. and Cooper Jonathan, Understanding Human Rights

Principles, Hart Publishing, 2001, p. 61-62.

93. R (Huang) v Home Secretary, (2007) U.K.H.L. 11.

94. (2010) U.K. S.C. 17.

95. (2001) U.K.H.L. 26.

96. Ibid.

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Lord Slynn in Alconbury97 hinted at an amalgamation between the two

standards of review or at the most extreme the abolition of the

Wednesbury standard all together. Lord Cooke also in the Daly case98

went so far as to say that the Wednesbury test was a retrogressive step in

administrative law.

In light of decision giventhe above cases, it is necessary to consider that

what then are the benefits or substantive cost of replacing the

Wednesbury standard? It has already been acknowledged that

Wednesbury test is simple. Howeverwith variations the test had to

undergo to survive the scrutiny of the European Court of Human Rights.

At its most basic Wednesbury test is circular and attempting to

conceptually reinforce it against. The onslaught of Human Right Courts

may be futile or cause it to collapse under its own weight99. Wednesbury

emerged in scenario involving sensitive subjects like ministerial

discretion and national security while at the other end the ‘anxious

scrutiny’ variant reduced the hurdle for irrationality. In R v Ministry of

Defence Ex- Parte Smith100 the applicant were discharged from the

armed forces under a policy that being homosexual was incompatible

with serving in the armed forces. The Human Rights Act was not in force

at that time. The applicants claimed that this policy was ‘irrational’ on

traditional Wednesbury principle. The Court of Appeal rejected the

argument on the ground that courts could only interfere if the decision

was outside the range of reasonable responses open to the decision-

maker. However, in Smith and Grady v U.K.101 the courts found that

the investigation into and subsequent discharge of personals from the 97. Supra note 76. 98. (2001) U.K.H.L. 26. 99. HunterSteven, “Proportionality: A Creep Towards Merit Based Review”,

Article Dated 9-6-2013, University of Bristol, available at stevenhunter.me. 100. (1996) Q.B. 517. 101. (1999) 29 E.H.R.R. 493.

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royal navy on the basis that they were homosexual was a breach of their

rights to a private life under Article 8 of the European Convention on

Human Rights. In U.K. law this decision is notable because the

applicant's case had previously been dismissed in both the High Court

and Court of Appeal, who had found that the authorities action had not

violated the principle of legality including Wednesbury unreasonableness.

Whatever be the weakness the courts have maintained that Wednesbury

test permits a healthy respect for separation of powers and constitutional

role of Parliament. Although, conceptually the Wednesbury test must

require an element of merit based review i.e. a conclusion that a decision

has no merits or reasonable foundations, proportionality moves

significantly further. This has led to a significant fear that proportionality

may cross the boundaries or limits of judicial activism. The distinction

between classic judicial review, irrationality and proportionality can be

best considered by taking into account the difference in effect between

the two satndrads102.

In Padfield v Minister of Agriculture103 it was observed that a decision-

maker must not take into account an irrelevant factor or fail to take into

account a relevant factor. This rule of law is considered between the

bounds of irrationality and ultra-vires. Where a decision maker has failed

to consider an important factor or has not directed his mind to it the

decision is liable to be quashed. It is relevant to consider that in Tesco

Stones v Secretary of State for Environment104 it was held that where

upon reconsideration the decision maker may consider the relevant or

important factor but legitimately affords it no weight. Such a

consideration of factor will bar a claim unless it is shown to be so

102. Supra note 92 103. (1968) A.C. 997. 104. (1995) 1 W.L.R. 759.

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unreasonable that no reasonable authority could have reached it. The third

limb of proportionality may be conceptualised in a similar way that is the

decision maker has failed to consider a method which is least or less

harmful in case of limitation of a right in order to attain the desired

objective. However, if the decision of the authority is quashed then he

cannot defend the action by saying that it has considered the less harmful

method but refuse to acknowledge its weight. Thus the court knowingly

or unknowingly steps into the shoes of the primary decision maker and

there by mandates that correct weight to afford individual rights in the

deliberative process105.

The above considerations may be overstated as being merely academic. A

decision maker or authority would seldom refuse to attain the desired

objective through a less harmful means in so far as the human rights or

liberties are concerned. This principle has been summarized by Lady

Justice Arden in her words that the logic of proportionality is

impeccableand its attraction irresistible. Why would one choose to use a

steam hammer when one can crack a nut with a nut cracker. Parliament

cannot have intended to delegate more power than necessary. It cannot

have possibly intended to be disproportionate in how it impacts upon

human rights- - - how can one determine the force required to crack a

nut? What if the legislature intended not only to open the nut but to crush

it? Does the court have the expertise to determine the nuts breaking

points?”106

This leads to another problem in use of proportionality as a doctrine in

place of Wednesbury. In affording weight to the considerations the court

105. Supra note 97. 106. Justice Lady Arden, “ Proportionality The Way Ahead”, Speech at the United

Kingdom Association of European Law Annual Address, 12 November. 2012, Source :www.judiciary.gov.uk.

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is well placed to afford values to the rights of individuals which is a rule

of law as well as the primary purpose of the court. But as far as public

interest is concerned the court is not so competent or has less expertise.

Under Wednesbury the decision of authority is set aside only when it is

beyond the arena of reasonableness. In proportionality the doctrine of

deference attempts to ensure that the court does not overstep its

constitutional role. Deference would mean where courts refrain from

going into merits of the case. In Prolife Alliance, R (on the application

of) v British Broadcasting Corporation107 Lord Hoffman coined

deference in terms of civility and reverence and said that it represent a

legal principle. The judiciary cannot determine the public interest for then

the rules would be set by judges and not by a democratically elected

Parliament. However for Lord Steyn conversely, it is not a rule of law or

an element of separation of power but an ex-post determination made by

the court that its relative institutional competence should result in its own

inaction.

Lester and Pannick put the concept more strongly by stating that, “it is

essential that the courts do not obdicate their responsibilities by

developing self-denying limits on their powers”.108 Deference as such is

the quid pro quo of proportionality and it is necessary constitutional

compromise to ensure that the judiciary does not overstep their bounds as

well as on the other hand the court also may not understate its part in

protection of human rights and fundamental rights.

107. (2003) U.K.H.L. 23. 108. Lester and Pannick, Human Rights Law and Practice, 2nd ed., Lexis Nexus

Butterworth’s, 2000, para 3.19 note 3.

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Thus, the proportionality is a step towards merit based review. To extend

proportionality to the domain of all administrative decisions may mark an

inroad too far against the principle of parliament sovereignty.

Conceptually proportionality is not suited to decisions not based on

rights.109 Julian Rivers has also noted that proportionality fails to notice

any distinctive nub of human rights which cannot be overridden by public

interest110. Rarely the court refused a limitation as insufficiently

important under the first step or as not rationally connected to its aim

under the second. How one frames the objective of a restriction under the

proportionality test dictates whether a measure is the least interventionist.

An aim of public protection affords the more leeway to the courts. Lord

Justice Dyson in R (Association of British Civilian Internees Far East

Region) vSecretary of State for Defence111 observed that it was not for

the court of appeal to consign Wednesbury to the relics of history. It

seems that a Supreme Court decision in this regard would be a radical

step.

The courts understand proportionality as an implied interpretive intention

of Parliament and thus refuse to extend its reach. Yet the historical

Common Law developments of judicial review from the supervisory

jurisdiction do not rely on legislative acts. In Jackson and others v

Attorney General112 Lord Hope had remarked that our Constitution is

dominated by the sovereignty of Parliament. But Parliamentary

sovereignty is no longer, if it ever was, absolute. It is not uncontrolled- - -

step by step and gradually but surely the English principle of the absolute 109. Craig Paul. P., Administrative Law, Sweet and Maxwell, 2008, p. 24. 110. HuscroftGrant, Miller W.Bradley, WeberGregoine, Proportionality and Rule of

Law, Cambridge University Press, 2014, p. 22. 111. (2003) Q.B. 1397. 112. (2005) U.K.H.L. 56.

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legislative sovereignty of the Parliament which dicey derived from Coke

and Blackstone is being qualified.

In light of above study Supreme Court might be inclined to make the

move towards a Constitution based on rule of law and Parliamentary

sovereignty. Proportionality is applied universally; it would certainly be a

serious step in this discretion.

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CHAPTER-VII


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1. Proportionality in EU (European Union) Law 2. Under Human Rights 3. Proportionality in U.S.A. 4. Proportionality in United Kingdom 5. Proportionality in Canada

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CHAPTER VII


The doctrine of proportionality originated in Prussia and it has been

adopted in number of countries, which ordains that the administrative

measures must not be more drastic than are necessary for attaining the

desired result1. This doctrine is applied in the European Court of Human

Rights and is also taken into account in Britain under the Human Rights

Act, 19982. The introduction of proportionality into consideration of

whether limitations on fundamental rights are justified is one of the most

far reaching and prominent consequences of the Human Rights Act,

19983. This doctrine has also been adopted by the European Court of

Justice in the case of R v Intervention Board for Agricultural Produce

Ex-Parte E.D. and F. Man (Sugar) Limited 4.

However proportionality is not a catchword in international law. The well

established general principles of law applicable to international law does

not include proportionality, next to equity, the protection of good faith,

legitimate expectations or protection from retroactive application and

other principles generally recognised in domestic law. Equally the

proportionality has not been considered to be part of general principles

under customary international law next to sovereign equality, self 1 . Schwarze Jurgen,“ European Administrative Law"Office for Official

Publications for European Communities 2006, p. 680. 2 . Section 2 (1) of the Act. 3 . Sir Wade William and Forsyth Christopher, Administrative Law, 10th ed.,

Oxford University Press, p. 305. 4 . (1986) 2 All. E.R. 115 .

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determination, non-intervention, theprohibition of use of threat or force

orpermanent sovereignty over natural resources5.

The importance of proportionality is increasing but its legal status in

international law is still unclear6. It still remains to be defined whether

proportionality operates as a self standing principle in its own right or

whether it merely operates in context of particular fields of international

law and in different ways7.

However it is fact that the doctrine and the principle of proportionality

though as yet having no legal status or express mention under law, has

been applied by courts both in domestic as well as community law

specially in the field of control over state and administrative discretionary

powers and their exercise and abuse.

1. Proportionality in EU (European Union) Law

The principle of proportionality regulates the exercise of powers by the

European Union. It seeks to set out the actions taken by the institutions of

the union within specified bounds. Under this, the involvement of the

institutions must be limited to what is necessary to achieve the objectives

of the treaties. In other words the content and form of the action must be

in keeping with the aim pursued8.

The principle of proportionality is laid down in Article 5 of the Treaty of

European Union. Article 5(1) provides that “the limits of Union

competences are governed by the principle of conferral. The use of union

5. Thomas Cottier, Roberto Echandi, Rafael Leal-Arcas, “ The Principle of

Proportionality in International Law”, Swiss National Science Foundation, Working Paper No. 2012/38j, Dec 2012.

6. Crawford E., “ Proportionality In”, ed. by R. Wolfrum in, The Mase Planck Encyclopedia of Public International Law, Vol. 8th, 2012 at p. 533.

7. Frank T.M., “ On Proportionality of Counter Measures in International Law”, American Journal of International Law, Vol. 102, No. 715, 2008, p. 715.

8. Europa.en/legislation-summaries/glossary/proportioabnlity-en.htm, assessed on 13-12-2014.

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competences is governed by the principle of subsidiarity and

proportionality”9. Further Article 5(4) provides that “under the principle

of proportionality the content and form of Union action shall not exceed

what is necessary to achieve the objectives of the treaties. The institutions

of the union shall apply the principle of proportionality as laid down in

the protocol on the application of the principles of subsidiarity and

proportionality”10.

The criteria for applying is set out in the Protocol No.2 on the

application of the principle of subsidiarity and proportionality annexed to

the treaties. It was laid down that “each institution shall ensure constant

respect for the principle of subsidiarity and proportionality, as laid down

in Article 5 of the treaty on European Union”11.

It is also laid down that “draft legislative acts shall be justified with

regard to the principle of subsidiarity and proportionality. Any draft

legislative act should contain a detailed statement making it possible to

appraise compliance with the principle of subsidiarity and

proportionality- - - ”12.

In E.U. law a proportionality review differs significantly from the purely

national context due to the integration context. This is because in the E.U.

system the allocation of rights and responsibilities between the different

levels of government is at issue in addition to the more general setting of

public intervention which encroaches upon individual freedom13.

9. Consolidated Version of the Treaty on European Union/ Title 1 : Common

provisions. Eur-lex.europans.eu. 10. Ibid. 11. Protocol No.2, Article 1 of the Protocols, Annexes and Declarations attached to

the treaties of the European Union. 12. Ibid Protocol No.2, Article 5. 13. Wolf Sauter, “Proportionality in E.U. law: A Balancing Act”, TILEC

Discussion Paper No. DP-2013-003, available at SSRN, pdfid No. 2208 467, p. 6.

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In E.U. law a proportionality test is applied both to the E.U. acts and the

acts of the member states. In both cases the consistency with the E.U. law

is reviewed i.e. in case of secondary measures taken at E.U. level the

compatibility with the rules of treaties and in case of member states both

their implementation of E.U. measures and the compatibility of national

measures with E.U. law. The legal concept of proportionality is

recognised one of the general principles of European Union law by the

European Court of Justice since 1950’s14.

This principle was first recognised in the case of Federation

Charbonniere de Belgique v High Authority15 in 1956. In this the court

referred to a ‘generally accepted rule of law’ according to which

“reaction by the high authority to illegal action must be in proportion to

the scale of that action”16. Further in International Handelsgesellschaft v

Einfuhr-und Vorratsstelle Getreide17, the European Advocate General

provided an early formulation of the general principles of proportionality

by stating that, the individual should not have his freedom of action

limited beyond the degree necessary in the public interest”.

Thus by adopting both fundamental rights and proportionality as

principles of E.U. law, the European Court of justice strengthened the

constitutional credentials of E.U. Therefore proportionality emerged as an

E.U. legal principle to avoid national constitutional review trumping E.U.

law and in effect reconciled fundamental rights and supremacy.

Another landmark case on this aspect was the case of Rewe-Zentral A.G.

v Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon)18 where

14. Danian Chalmers, European Union Law: Text and Materials, Cambridge

University Press, 2006, p. 448. 15. Case 8 /55, (1954-56) E.C.R. 292. 16. Id. at 299. 17. (1970) E.C.H.R. 1125, Case 11/70. 18. Case/20/78, (1979) E.C.R. 649.

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the Court held that minimum alcohol content requirements for spirits

imposed by German Law were disproportionate compared to informing

consumers by way of labelling. Here the application of proportionality

regarded the invocation by a member state of an exception to E.U. law.

Moreover in this case it was also held that the least restrictive measure or

means of obtaining the desired standard had not been employed.

In the case of The Queen v Minister of Agriculture, Fisheries and Food

& Secretary of State for Health Ex-Parte: Fedesa et al19, a case

regarding an E.U. prohibition of the use of hormonal substances in

livestock farming held that the court has consistently held that the

principle of proportionality is one of the general principles of community

law. By virtue of that principle, the lawfulness of the prohibition of an

economic activity is subject to the condition that the prohibitory measure

are appropriate and necessary in order to achieve the objects legitimately

pursued by the legislation in question. Where there is choice between

several appropriate measures recourse must be had to the least onerous

and the disadvantage caused must not be disproportionate to the aims

pursued20.

In the Society for the Protection of Unborn Children Ireland Ltd.

vStephen Grogan et al21 it was observed that – “- - - - it is not sufficient

for a national rule to be in pursuance of an imperative requirement of

public interest which is justified under community law. It must not also

have any effects beyond that which is necessary. In other words it must

comply with the principle of proportionality”22.

19. Case C-331/48 (1990) E.C.R. I-4023.

20. Id. at para 13.

21. C-159/90, (1991) E.C.R.I.- 4685.

22. Id. at Para 26, Note 41.

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In E.U., proportionality also concerns the balance between the

differentlevel of government even when E.U. law based rights of

individual citizens are involved. This is because the individual rights vis-

a-vis Member States are also E.U. law based and may eventually affect

citizenship. The examples of such instances are exceptions to the treaty

rules evolved by member states that affect individuals such as health care

mobility or patients rights cases like Raymond Kohll vUnion Des Caisses

de maladie,23 Nicolas Decker vCaisse de maladie des employes prives24

and The Queen Ex-Parte Yvonne Watts vBedford Primary Case Trust

and Secretary of State for Helath25.

The use of proportionality test can also be seen in one of the latest case of

Sky Osterreich GmbH v Osterreichischer Rundfunk26 of 2013. This case

concerned with the legality of a provision of an E.U. directive requiring

companies which had acquired exclusive broadcasting licence for sports

events also to allow limited reporting of these events by other competing

channels. In review of the compliance of this requirement with ‘the

freedom to conduct a business’, a right under Article 16 of the E.U.

Charter of Fundamental Rights the Court found that this right needed to

be balanced with the right to freedom to receive information under

Article 11(2) of the Charter. With regard to the first step of

proportionality test the court found that safeguarding the freedoms

protected under Article 11 of the Charter undoubtedly constitutes a

legitimate aim in the general interst27. In its analysis of second test the

court explored which methods would have been conceivable which were

capable of reaching the legislative legitimate goal but were at the same

23. C- 158/96, (1998) E.C.R.I. – 1931. 24. C-120/95, (1998) E.C.R.I. – 1831. 25. C- 372/04, (2006) E.C.R.I. – 4325. 26. Case C-283/11, Judgement 22-01-2013 27. Id. at para 52.

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time less restrictive for the rights of the plaintiffs. It considered, the

possibility of granting the right holder the right partially to recover the

cost of acquisition of the exclusive sports broadcasting rights. However

the court found that this less restrictive option would not achieve the

objective pursued by the directive. Further it would effectively restrict the

assess of general public to the information28. Regarding the third test, the

Court held that the E.U. legislature had struck a fair balance between the

rights of the parties.

2. Under Human Rights

The concept of proportionality is not specifically mentioned in the text of

European Convention or in any of its additional Protocols. Nevertheless it

has come to be recognised as one of the central principles governing the

application of the rights and freedoms within the instruments. The

principle role in this regard has been played by European Commission

and the Court of Human Rights and proportionality has been employed

by them for interpreting the provisions of European Convention of

Human Rights29.

The rights and freedoms in the convention are basically of three types:

those without any express qualifications; like the prohibition of torture;

those which are subject to number of limitations like the right to liberty

and security of the person; and those which are subject to limitations like

right to expression, right to private life, right to property and right to

receive and impart information30.

The very first task is to judge whether a specific activity falls within the

scope of guaranteed rights or freedoms and whether these rights can be

28. Id. at para 55-57. 29. Jesemy Mcbride, Proportionality and the European Convention on Human

Rights, p.23 quoted in The Principle of Proportionality in the Laws of Europe, Evelyn Ellis Hart Publishing, 1999.

30. Article 10(1) and 10(2) of the Convention.

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constrained by certain stated objectives like public order, national

security and right of others etc31. It is the need of balancing these factors

which make it necessary to apply the principle of proportionality.

To determine the balance in particular cases the Strasbourg institutions

has taken into account a number of factors. The main factor to consider

was whether a particular restriction totally extinguishes the right or

freedoms or does it leave some scope for its exercise. In Jacubowski v

Germany32 an injunction that restrained a former employee of a news

agency from criticising the respondents which had dismissed him for

alleged financial mismanagement. In a circular promoting his new to rival

business group was found to be acceptable because this still did not

prevent him from voicing his opinions and defending himself by other

means. Thus the restriction was not a disproportionate means of

providing protection for the news agency against the potential damage to

its business interest.

In Sheffield and Horsham v United Kingdom33 also where two trans

woman claimed that the U.K. governments refusal to correct their birth

certificate violates the European Convention for the Protection of Human

Rights and Fundamental Freedoms, the Court took the view that the

situation in which the trans sexual had to disclose their pre-operative

gender were not so frequent so as to impinge on their rights to respect for

their private lives to a disproportionate extent.

On the other hand in Hertel v Switzerland34 the application for injunction

was granted which prevented the applicant making certain statements

about the dangers of microwave ovens and was found to be unacceptable

31. Abdullaziz, Cabales and Balkandali v United Kingdom, (1985) 7 E.H.R.R. 741. 32. (1995) 19 E.H.R.R. 64. 33. (1999) 27 E.H.R.R. 163. 34. (1998) 28 E.H.R.R. 534.

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because it affected the very substance of his view that it prevented him

from making his contribution to public debate.

Similarly in Vereinigung Demokratischer Soldaten Osterreichs and

Gubi v Austria35 a prohibition on the distribution of a periodical to

soldiers was seen as disproportionate as the court was not convinced that

the contents of the articles in them was a serious threat to military

discipline not withstanding that they were critical of military life.

The question of proportionality is of major importance in cases of

property rights. States often have to interfere with individual property

rights in order to fulfil its lawful duties of the government. The European

Court of Human Rights has pointed out that the state has wide margin of

appreciation. But there is a limit. If the state creates a situation which

upsets the fair balance that should be struck between protection of rights

of property and the requirements of general interest or if the effected

person bears an individual or excessive burden then there is a violation36.

In Belvedere Alberghiera v Italy37 the Court considered the interference

in the property right of the applicant and found that it was not compatible

with the property rights granted by Article 1 of Protocol 1 on applying the

proportionality test.

Article 10 of the European Convention on Human Rights which confers

the right of freedom of expression provides in paragraph 2 that it may be

restricted only if there is a pressing social need and if the degree of

restriction is proportionate to the importance of social need. This was

specifically established by the Court of Human Rights in various cases

35. (1995) 20 E.H.R.R. 56. 36. Major Requirements: Lawfulness and Proportionality, Icelandic Human Rights

Centre, www.humanrights.is/en/human-rights-education-project assessed on 22-11-2014.

37. Application No. 31524/96, Judgement dated 30-5-2000.

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like The Sunday Times Case38, The Handyside Case39 and more

prominently in the case of Dudgeon v United Kingdom40. Although a

balancing exercise of this kind is difficult, the Article 10 does at least

identify the matters which have to be put in balance. It empowers the

court that freedom of expression is above all other interest unless they fall

within a defined category and even they can be restricted only to the

minimum extent which the protection of the interest requires41. Thus in

the Sunday Times case the European Court of Human Rights held that the

restraint imposed. On the freedom of expression of the applicant was not

proportionate to the objective that was pursued and it was not necessary

in a democratic society.

In the recent case of Saint Paul Luxembourg S.A. v Luxembourg42 the

Fifth Section of court of Human Rights considered the protection of

Journalists against coercive court orders. In December 2008, ‘Contacto

Semranario’, a Portuguese Language Newspaper published by the

applicant included an article about families losing custodian of their

children signed by ‘Domingos Martins’. The name did not appear on the

list of Luxembourg Press Council Journalists although there was a

Journalists named ‘Alberto de Araiyo Domingos Martins’. A defamation

complaint was made and a criminal investigation was opened. In March,

2009, a search warrant was issued to obtain the documents in relation to

these offences including a relation to the identification of the author of

the article. The warrant was executed and Journalists gave the relevant

38. Series A, No. 30, 2 E.H.R.R. 245. 39. Series A, NO. 24, 1 E.H.R.R. 737. 40. Series A, NO.45, (1982) 4 E.H.R.R. 149. 41. Hon. Lord Hoffmann R.T., “ The Influence of the European Principle of

Proportionality upon U.K. Law”, p. 108 quoted in Evelyn Ellis, The Principle of Proportionality in the Laws of Europe, Hart Publishing, 1999.

42. Case No. 26419/10, decided on 18th April, 2013. http://hudoc.echr.coe.int

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documents to the police. The Journalists and the applicant staff

cooperated with the police during the search. The applicant contended

that thesearch of the premises of the newspaper was a violation of Article

8 of the Convention.

The Court applying the proportionality test and less restrictive method

principle held that the search was disproportionate and there was breach

of Article 10 of the Convention as well. The Court observed that the

investigating judge could have taken a less restrictive method to confirm

the identity of the author of the article rather than issuing a search and

seizure order.

The Strasbourgh organs have consistently stressed that a ‘proper balance’

or a ‘fair balance’ must be struck down between the demands of the

community interest and the requirements of protecting the right to

property of an individual. In Sporrong and Lonnoth v Sweden43 and

inJames and Other v United Kingdom44 the court of Human Rights was

of the view that there must be a ‘reasonable relationship of

proportionality’ between the means employed and the aim sought to be

realised45. The requisite balance would not be found if the individual

concerned has to bear ‘an individual and excessive burden’46. The effect

of burden has been recognised as onerous in case if for instance long term

expropriation permits and prohibition on construction without

compensation or reduction of time limits47.

Similarly in Hentrich v France48 it was asserted that the availability of

less burdensome measures capable of accomplishing the same objective

43. (1982) 5 E.H.RR. 85 44. (1986) 8 E.H.RR. 123 45. Supra note 44, para 73. 46. Supra note 45, para 50. 47. Supra note 44. 48. (1994) 18 E.H.R.R. 440, decided on 22.9.1994

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combined with serious effects of interference with the applicants rights

meant that ‘fairbalance’ was destroyed49. The commission observed that

“- - -it is disproportionate to disposes a purchaser of his property against

payment of a 10% compensatory premium on the sale ground that the sale

price declared by the parties was apparently too low, when the

administrative authorities could have used a different procedure-the tax

reassessment procedure-more respectful of the individuals fundamental

rights”50.

The organs of Court of Human Rights have occasionally been satisfied

with the legitimacy of the proposed purpose so as not to engage in

detailed evaluation of the effects of interference. This propensity is

particularly striking in the area of right to porperty51.

However the Court of Human Rights have applied a proper standard of

proportionality appraising the ‘effects’ of a restrictive measure and giving

them priority over the purported social endsin Pressos Compamia

Naviera S.A. and Others v Belgium52 and inStran Greek Refineries and

Stratis Andreadis v Greece53. According to the view of the Court the

proportionality would be upset if a person affected were required to bear

“an individual and excessive burden” (Lithgow and others v United

Kingdom54 and in Vesilescu v Romania55), measured in terms of the

level of severity (Hentrich v France56 and Sporrong and Lonnroth v

49 . Id. at para 48-49. 50. Id. at para 119. 51. Yutaka Arai, Yukata Arai Takahashi, “ The Margin of Appreciation Doctrine

and Principle of Proportionality in the Jurisprudence of the E.C.H.R.”, Intercentia nv, 2002, p. 158.

52. (1995) 21 E.H.R.R. 301 53. Commission Report of 12th May 1993, A.301-B, para 88. case law.echr. globe

24h.com 54. (1982) 8 E.H.R.R. 329 55. Judgement of 22nd May 1998, 28 E.H.R.R. 241, para 53. swarb,co.uk 56. Supra note 49, para 48.

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Sweden57) or the ‘serious nature’ of restrictive measures (Hentrich v

France58).

In context of proportionality it would be advisable to mention the latest

case decided by the European Court of Human Rights is of S.A.S. v

France59. In 2010, France banned the wearing of Naquabs and Burkas

and other clothing which conceals ones face in public places. This law

was followed by a resolution of the National Assembly which considered

that the wearing of full veil in public is ‘incompatible with the values of

French Republic’. Theviolation of this law was made punishable with a

fine at the rate applying to second class petty offences up to 150 Euros

and the obligation to follows a citizenship course.

A devotee Sunni Muslim Woman was born in Pakistan with French

citizenship and was living in France, she requested the court to have her

name not disclosed. She emphasised that she was wearing the Naquabs

with her free will in accordance with her religious faith, culture and

personal convictions. She also did not wear Naquabs in public places all

the times and was willing to show her face for identity checks and

security reasons at banks and airports but wanted to be able to wear

Naquabs when she choose to do so to feel at inner peace with herself60.

The application made to European Court of Human Rights was related to

prohibition of degrading treatment (Article 3), the right to respect for

private life (Article 8), the freedom of religion (Article 9), the freedom of

expression (Article 10) and the freedom of association (Article 11) of the

57. Supra note 43, para 119. 58. Supra note 49, para 120. 59. (2014) E.C.H.R. 695, Application No.43835/11 Judgement dated 1st July 2014. 60. From the full judgement of court available at hudoc.echr.coe.int, assessed on

9-11-2014.

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European Convention on Human Rights was taken separately and

together with prohibition of discrimination (Article 14).

The applicant’s lawyer argued that the ban could not be based on the

legitimate aim of ‘public safety’ as it was not a measure intended to

address specific safety concerns in places of high risk such as airport but

a blanket ban applying to all public places. The ban would also not be

justified with the aim of ‘respect for human dignity’ as it would foster

‘stereotyping’ and ‘chuvinistic logic’ that woman who wore veils were

‘effaced’.

The French Government responded that the effect of concealing ones face

in public places is to break the social tie and to manifest a refusal of the

principle of ‘living together’. The wearing of Naquab or Burkha was

‘hardly compatible with the affirmation of social existence’. As regards

the necessity and proportionality the Government argued that the ban

followed the wide democratic consultations including the majority of

civil society. It pointed out that the court afforded state a wide margin of

appreciation when it came to striking a balance between competing

private and public interest61.

The majority of judges held that the ban did not violate the European

Convention on Human Rights. On one side the Court took the view that

France cannot invoke ‘gender equality’ in order to ban a practice that is

actually defended by woman. The judges highlighted that the wearing of

full face veil shocked the majority of French population but

acknowledged that it is an ‘expression of cultural identity’ which

eventually contributed to the pluralism being ‘inherent in democracy’.

Further the Court held that the state has the right to organise conductive

public order, religious harmony and tolerance in democratic society and

61. Ibid.

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that the court seesthis ‘constant search for a balance’ between the

fundamental rights of each individual as the foundation of a democratic

society. The Court stressed that the national authorities are better placed

than an international court to evaluate local needs and conditions and that

the state have a wide ‘margin of appreciation’ regarding questions

concerning the relationship between state and religion.

The dissenting judge's judge Angelika Nussberger of Germany and Judge

Helena Jadenblom of Sweden however concluded in his dissenting

opinion that it is the very task of the court to protect religious minorities

against disproportionate interferences. Both judges challenged that the

aim of the Government to discourage the relatively recent phenomenon of

the use of full face veil could have been accomplished by less restrictive

measures through awareness raising and education. In the opinion of

dissenting judges the ban on full face veils in public places was

disporportionate62.

3. Proportionality in U.S.A.

Officially there is no such thing as ‘proportionality review’ in American

Administrative Law. The Administrative Act (APA) of 1946, the

framework statute governing administrative law does not recognise

proportionality as a general head of review. Nor have American Courts

ever developed a judge made doctrine of proportionality as such either

prior to or following the APA’s enactment63.

Classical proportionality review is designed to correct and detect a

particular kind of administrative failure an overreach in which the

government uses measures that are excessive in relation to the ends they

62. Id. 63. Jud Mathews, “ Searching for Proportionality in U.S. Administrative

Law”,Pem State Law, The Pennsylvania State University, The Dickinson School Law, Legal Studies Research Paper No. 1-2015, p. 1.

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are designed to achieve. In Oregon v Mitchell64 upholding the five year

nationwide ban on literacy test and similar voting requirements for

registering to vote, Justice Black observed that the congressional

enforcement power is not unlimited and that there must be congruence

between the means used and the ends to be achieved. Quoting this Justice

Kennedy in The City of Boerne v Flores65 asserted that the legislation

enacted in pursuance of the power of congress cannot be so out of

proportion to a supposed remedial or preventive object that it cannot be

understood as responsive to, or designed to prevent unconstitutional

behaviour66.

Since the case of Boerne the congruence and the proportionality test was

applied in the case concerning the Patent Remedy Act in Florida Prepaid

Post Secondary Education Expense Board v College Saving Bank67 in

which it was held that the Patent Remedy Act is particularly incongruous

in light of the scant support for unconstitutional conduct68.

Further in Kimel v Florida Board of Regents69 while analysing the Age

Discrimination in Employment Act, 1967 (ADEA) the court held that

“applying the - - -‘congruence and proportionality test’ - - -we conclude

that the ADEA is not appropriate legislation under Section 5 of the

Fourteenth Amendment70.

The proportionality influence can also be seen in the U.S. Courts in

United States v Morrison71 in which the court applying the

proportionality test in case of violence against Woman Act observed that

64. 400 U.S. 112 (1970) Decided on 21st December 1970. 65. 521 U.S. 507 (1997). 66. Id. at p. 532. 67. 527 U.S. 627 (1999). 68. Id. at p. 647. 69. 528 U.S. 62 (2000). 70. Id. at p. 82-83. 71. 529 U.S. 598 (2000).

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as we have phrased in more recent cases prophylactic legislation must

have a congruence and proportionality between the injury to be remedied

or prevented and the means adopted to that end72.

Carrying this approach even further the U.S. Courts in Board of Trustees

of the University of Alabama v Garrett73 the court held that the remedy

imposed by the congress must be congruent and proportional to the

targeted violation74. In this case the court was reviewing the Americans

with Disabilities Act of 1990.

American Legal Scholars have received the proportionality test with

negative feelings except for a few of them consisting of very small

minority. Most of them do not like it because it sounds unfamiliar and

dangerous for the protection of civil rights and illustrative of the

conservatism of the court75. The reason that the new principle of

proportionality is so unappealing to the American Legal Community lies

in the fact that the Supreme court has used the proportionality principleto

protect the rights of states not of individuals. The Courts answer to the

question to what must congressional statutes is proportional? In always

that they must be ‘proportional to the states dignity’. In Seminole Tribe

of Fla. v Florida76 the court relying on the observation of the court in

P.R. Aqueduct and Sewer Auth. v Metcalf and Eddy77 recalled that the

purpose of the Eleventh Amendment was to avoid the indignity of

subjecting a state to the coercive process of judicial tribunals at the

instance of private parties78.

72. Id.at p. 626-627. 73. 531 U.S. 356 (2001). 74 . Id. at p. 357. 75. Evan H. Carninker, “ Appropriate Means Ends Constraint on Section 5

Powers” , 53 Stan.L.Rev.1127 (2001). 76. 517 U.S. 44 (1996). 77 . 506 U.S. 139, 146 (1993). 78. Supra note 77, at p. 58.

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The fact that proportionality principle was introduced by the court to

protect federalism and state right need not prejudice in any way what can

be done with it in the future. The congruence and proportionality test is

equally promising for both liberal and conservative judges. This is why

no Judge has criticized or rejected the principle of congruence and

proportionality per se. The disagreement has been over the application of

test not over the test itself79.

The word ‘proportionality’ is not unknown in American Legal System but

it seldom applies as a legal concept. In the field of civil or criminal

remedies the idea of proportionality is not germane to American legal

thinking. Anevolution however is underway and can be seen in few

instances. For instance in United States v Bajakajian80 Justice Thomas

delivering the opinion of the court affirmed that the touchstone of the

constitutional enquiry under the excessive fines clause is the principle of

proportionality. The amount of the forfeiture must bear some relationship

to the gravity of the offence that it is designed to punish81.

The Supreme Court, unknowingly summarized the thrust of European

principle of Proportionality in NAACP v Alabama Ex- rel Flowers82. It

said that this court has repeatedly held that a governmental purpose to

control or prevent activities constitutionally subject to state regulation

may not be achieved by means which sweep unnecessarily broadly and

thereby invade the area of protected freedoms83.

The difference however between the principle of proportionality and the

doctrine used in American Legal System is that the American Judge 79. Elizabeth Zoller, “ Congruence and Proportionality for Congressional

Enforcement Powers: Cosmetic Change or velvet Resolution?”, available at ilj.law.indiana.edu/articles/78/78-1-zoler.pdf, assessed on 10-11-2014, p. 570.

80. 524 U.S. 321 (1998). 81. Id.at p. 334. 82. 377 U.S. 288 (1964). 83. Id.at p. 307.

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claims not to balance the respective interest in the cases while the

European Judges under the principle of proportionality takes an active

part in law making process and decides what the proper balance is. This is

very evident from the case of United States v Robel84 in which Chief

Justice Warren held that in making this determination we have found it

necessary to measure the validity of the means adopted by congress

against both the goals it has sought to achieve and the specific

prohibitions of the First Amendment. But we have in no way balanced

that respective interest. We have ruled only that the Constitution requires

that the conflict between congressional powers and individual rights be

accomodated by legislation drawn more narrowly to avoid the

conflict- - -85.

4. Proportionality in United Kingdom

Lord Diplock suggested the introduction of Principle of proportionality as

a potential fourth ground of review in the case of Council of Civil

Services Union v Minister for the Civil Service86. Inevitably such a

transplantation of a Europeanprinciple of German origin meant a

challenge to the traditional common law approach. More precisely, the

principle of unreasonableness of Wednesbury and the relationship to the

principle of proportionality has since been at the center of the discussion

whether the European concept has been integrated into English Law87.

The Wednesbury principle as established in Associated Provincial

Picture Houses Limited v Wednesbury Corporation88 contained the rule

84. 389 U.S. 258 (1967). 85. Id. at 268 No. 20. 86. (1985) A.C. 374. 87. D. Burca, G, “ Proportionality and Wednesbury Unreasonableness: The

Influence of European Legal Concepts on U.K. Law” , European Public Law, 1997, p. 561.

88. (1948) 1 K.B. 223.

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that a discretionary decision of a public body is illegal if it is so

unreasonable that no reasonable authority could ever come to it. The

principle of proportionality in its European formulation however

embraces the test of whether the challenged act is suitable and necessary

for the achievement of its objective and one which does not impose

excessive burdens on the individuals89.

The proportionality test clearly requires the express articulation and

explicit weighing of the specific aims and measures in relation to its

impact on a right or interest invoked by the applicant90. This test

possesses two difficulties for a smooth accommodation into the existing

system of judicial review of administrative action in English Courts. The

first difficulty is the degree of review of an original decision which such a

test would require. The weighing of public and private interest amount to

a form of review which is closer to that of an appellate jurisdiction and

goes beyond the traditional supervisory function of judicial review

proceedings91. The second possible obstacle in the absence of a

fundamental law in U.K. . Both these concerns were clearly expressed in

case of Brind v Secretary of State for Home Department92. In 1988 the

Home Secretary issued a directive under the Broadcasting Act, 1981

prohibiting the broadcasting of ‘words spoken’ by a person representing

or purporting to represent certain organisations including Sinn Fien and

the Ulster Defence Association. This case was concerned with this issue.

In this case the proportionality test was discussed intensively in the light

whether principle of proportionality should be used as a separate ground

89. Craig, P. D. Burca G., E.U. Law, Oxford University Press, 1998, ed. p. 350. 90. Supra note 88. 91. Marine Kunnecke, “ Tradition and Change in Administrative Law: An Anglo-

German Comparison”, Springer Science and Business Media, 2007, p. 96. 92. (1991) A.C. 696, R v Secretary of State for the Home Department ex-parte

Brind.

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of review as suggested in CCSU case93 it was also discussed whether

human right has any room in judicial review. In this case Lord

Templeman was the only person who suggested applying the

proportionality test in general even though in this case he held it was not

appropriate. Lord Templeman stressed that in terms of convention as

construed by the European Court of Human Rights the interference with

freedom of expression must be necessary and proportionate to the damage

which the restriction is designed to prevent. Lord Ackner argued that the

principle was incompatible with the judicial review approach which does

not review the merits of a case and also describes it as ‘the forbidden

appellate approach.’ He also held that in absence of a ‘fundamental law’

there was no room for this principle94.

Lord Roskill and Lord Bridge concluded with Lord Ackner that however

preserving the possible future incorporation of the ground of

proportionality as a separate ground of review. Lord Roskill expressly

said that i am clearly of the view that the present is not a case in which

the first step can be taken for the reason that to apply the principle in the

present case would be for the court to substitute its own judgement of

what was needed to achieve a particular objective for the judgement of

the Secretary of State upon whom the duty has been laid by the

Parliament. But so to hold in the present case is not to exclude the

possible future development of the law in this respect- - -95.

Howeverthe protection of human rights has progressed significantly in

U.K. The explicit protection of human rights has found clear expression

in the Human Rights Act, 1998. The Act has incorporated a number of

93. Supra note 87. 94. Excerpts from original case law available at www.uniset.ca/orthers, assessed on

10-11-2014. 95. Ibid.

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rights into English domestic law. Section 2(1) of the act requires taking

into account any judgement, decision, declaration or advisory opinion of

the European Court of Human Rights. This means that the U.K. courts

have regard to the case law of the European Court of Human rights which

applies the principle of proportionality. However it is said that the most

difficult and important problem facing British Courts would be to develop

or rather invent a coherent and defensible doctrine of proportionality96.

There are many cases which have recognised the principle of

proportionality even before the Human Rights Act came into force. The

case of R v Secretary of State for the Home Department Ex-Parte

Simms97 was concerned with two prisoners serving life sentence for

murder having their separate application for leave to appeal against

conviction and was refused by the Court of Appeal. They men continued

to protest their innocence. In order to obtain the re-opening of their case

they wished to have oral interviews with journalists who have taken

interest in their cases. Relying on the policy of the Home Secretary the

Governors of the Prisons were only prepared to allow the oral interviews

to take place if the journalists signed written undertakings not to publish

any part of the interviews. The journalist refused to sign the undertakings.

The prisoners sought judicial review of the decision denying them the

right to have oral interviews. They relied on the right to free speech not in

a general way but restricted to very specific context. The House of Lords

allowed both appeals and held that declaration should be granted in both

the cases to the effect that the Home Secretary current policy is unlawful

and the Governors administrative decisions pursuant to that policy is also

unlawful. This case illustrates how the English Judges have embraced the 96. Kentridge S., “ The Incorporation of the European Convention on Human

Rights” , The University of Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom, 1998, p. 70.

97. (1999) 3 W.L.R. 328.

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protection of human rights; apply the principle of proportionality by

referring to the requirement of a pressing social need to restrict a basic

right and therefore applying an intensive control to administrative power.

Lord Slynn made an important statement in the case of R v Secretary of

State for the Environment Transport and the Regions, Ex-Parte

Holding and Barnes and Others98 which is also known as the Alconbury

case. He said that I consider that even without references to the Human

Rights Act, the time has come to recognise the principle of

proportionality as part of English administrative law, not only when

judges are dealing with community acts but also when they are dealing

with acts subject to domestic law. Trying to keep the Wednesbury

principle and proportionality in separate compartments seems to me to be

unnecessary and confusing”99.

R v Secretary of State for the Home Department, Ex-Parte Daly100 is

another important example of application of test of proportionality by the

House of Lords. This case was concerned with a prisoner Mr. Daly, who

challenged the lawfulness of a policy under the Prison Act which

contained the requirement that a prisoner may not be present when his

legally privileged correspondence is examined by prison officers. He

submitted that the policy contravenes the human rights under the

European Convention on Human Rights.

Lord Steyn observed that when anxiously scrutinising an executive

decision that interferes with human rightsthe Court will ask the question

applying an objective test whether the decision maker could reasonably

have concluded that the interference was necessary to achieve one or

more of the legitimate aims recognised by the Convention. When

98 . (2001)E.W.H.L 23. 99 . Id. at para 51. 100 . (2001) 2 W.L.R. 1622.

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considering the test of necessity in the relevant context the court must

take into account the European jurisprudence in accordance with Section

2 of the Act, of 1998 (The Human Rights Act).

In this case Lord Steyn clearly distinguished the traditional Wednesbury

test from the ‘more precise and sophisticated’ test of proportionality. He

asserted the contours of the principle of proportionality are familiar to our

law. In de Freitas v Permanent Secretary of Minister of Agriculture,

Fisheries, Lands and Housing101 the Privy Council adopted a three

stage test. In this case Lord Clyde observed that in determining whether a

limitation (by an Act, rule or decision) is arbitrary or excessive the court

should ask itself whether -

(a). the legislative objective is sufficiently important to justify limiting a

fundamental right;

(b). the measures designed to meet the legislative objective are

rationally connected to it; and

(c). the means used to impair the right or freedom are no more than is

necessary to accomplish the objective”102.

Lord Steyn also observed that the intensity of review under the

proportionality test is more intensive. He held that proportionality test

involves the assessment of balance which the decision maker had to

strike rather than just judging on the rationality or reasonableness of the

decision. He also stated that the proportionality test would have to pay

attention to the weight given to the interest and considerations and is

therefore wider than the traditional approach.

The principle of proportionality under the Human Rights Act, 1998 was

discussed in the case of R (On the Application of Pro Life Alliance) v

101 . (1999) 1 A.C. 69. 102 . Ibid.

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B.B.C.103. This case was related with the banning of a video which was

part of the party election broadcast of a registered political party which

was opposed to abortion. The video was planned to be used in the

General Election of 2001. The video showed clear images of aborted

foetus in a ‘mangled and mutilated state’. The broadcasters refused

transmission on the grounds of taste and decency on basis of Section (1)

of the Broadcasting Act, 1990. The applicant submitted that the ban was

the violation of their right to freedom of expression under Article 10 of

the European Convention on Human Rights and that ban was not

‘necessary in a democratic society’ under Article 10(2).

The Court of Appeal held that the broadcasters had failed to give

sufficient weight to the pressing imperative of free political expression

and allowed the appeal104.

The main criticisms to the adoption of the principle of proportionality

have been the main problem in adopting this test into system of judicial

review which emphasised the supervisory function of the courts.

Therefore the question has been asked whether the introduction of the

principle of proportionality amounts to a merit based form of review105.

At the root of the tension felt in applying the proportionality principle as

a more searching test like such as fundamental constitutional

considerations as to the appropriate role of the courts106. This was

illustrated in the leading case of R v Secretary of State for Home

Department107. This case was concerned with the detention of suspected

international terrorist who could not be deported from the U.K.. The

103 . (2003) U.K.H.L. 23. 104 . Id. at 757. 105. Plowden P. and Kerrijan K., “ Juridical Review- A New Test?”, 2001, New

Law Journal, 1291 at p. 1292. 106 . Supra note 92, at p. 104. 107 . (2004) U.K.H.L. 56.

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decision of the Home Secretary was based on Section 23 of the Anti-

Terrorism Crime and Security Act, 2001. The House of Lords held that

this section was incompatible with Article 5 of the European Court of

Human Rights. Lord Bingham in his leading speech set out that the

detention powers were disproportionate and discriminatory. The court

observed that the greater intensity of review now required in determining

questions of proportionality, and the duty of the courts to protect

convention rights would in my view be emasculated if a judgement at

first instance on such a question were conclusively to preclude and

further review. So would excessive deference in a field involving

indefinite detention without charge or trial to ministerial decision - - -108.

5. Proportionality in Canada

The notion of proportionality is not found in the Charter of Rights and

Freedoms in Canada. The rights and freedoms enshrined in the Charter

are subject to limitations which provides that the Canadian Charter of

rights and freedoms guarantees the rights and freedoms set out in its

subject to such reasonable limits prescribed by law as can be

demonstrably justified in a free and democratic society109.

The first and still the most important exposition of the requirement of

Section 1 of the Charter can be found in the judgment of Dickson C.J. in

R v Oake’s110. In this case the court combined the European

Jurisprudence and the modern principles of justification and

proportionality. The judgement of this case has been described as “one of

the most important pages ever written in Canadian Constitution Law”111.

108. Id. at 56, N.R. 44. 109. Section 1 of the Canadian Charter of Rights and Freedoms. 110. (1986) 1 S.C.R. 103. 111. Sharpe R.J. and Roach K., Brind Dickson – A Judges Journey, University

Toronto Press, 2003 ed. p. 334.

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The facts of this case were that David Edwin Oaks who was caught with

eight vials of hashish oil outside a tavern in Ontario on December 17,

1981. He claimed that he had purchased ten vials of hashish oil for his

own use. Despite Oaks protest that the vials were meant for pain relief

Section 8 of the Narcotic Control Act established a ‘rebuttable

presumption’ that possession of a narcotic inferred an intention to traffic

unless the accused established the absence of such an intention. Oaks

challenged that the presumption of possession for the purpose of

trafficking violated the presumption of innocence guaranteed under

Section 11 (d) of the Charter. In this casethe issue before the court was

whether Section 8 of the Narcotic Control Act violated Section 11(d) of

the Charter and whether any violation of Section 11(d) could be upheld

under Section 1 of the Charter.

The court unanimously held that the shift in onus violated Oaks right

under Section 11(d) and could not be as such justified under Section 1 of

the Charter. The court presented a two step test to justify a limitation

under the charter. First, it must be an objective related to concerns which

are pressing and substantial in a free and democratic society. The second

test, which the proportionality tests required the invoking party to show

that first the measures adopted must be carefully designed to achieve the

objective in question. They must not be arbitrary, unfair or based on

irrational considerations. In short they must be rationally connected to the

objective. Second, the means even if rationally connected to the objective

in first sense should impair ‘as little as possible’ the right or freedom in

question. Third, there must be proportionality between the effects of the

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measures which are responsible for limiting the charter rights or freedom

and the objective which has been identified as of sufficient importance.112

Further in R.J.R. Macdonald I.N.C. v Attorney General of Canada113 the

Canadian Supreme Court asserted that the proportionality enquiry

required by Section 1 of the Canadian Charter of Rights and Freedoms in

its very nature a fact specific enquiry. The court observed that in

determining proportionality a court must determine the actual connection

between the objective and what the law will in fact achieve the actual

degree to which it impairs the right and whether the actual benefit which

the law is calculated to achieve outweighs the actual seriousness of the

limitation of the right. In short Section1 is an exercise based on the facts

of the law at issue and the proof offered of its justification not on

abstractions114.

In New Found land (Treasury Board) v N.A.P.E.115, the Court had

occasion to consider Section 1 under the Oake’s test to the extent to

which judicial deference is mandated within the constitutional

framework. On the question of whether inadequate deference is give on

legislative and executive choice. Overall the court observed that

generalised deference would largely circumscribe and render superfluous

the independent second look imposed on the courts by Section1 and

would leave little protection to minorities116. The Court further added that

the judicial review of governmental action long predates the adoption of

the charter since confederation. Courts have been required by the

Constitution to ensure that the state action complies with the Constitution.

112. Supra note 111 at para 69-71. 113. (1995) 3 S.C.R. 199. 114. Id. at para 133. 115. (2004) 3 S.C.R. 381. 116. Id. at para 103.

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The charter has placed new limits on government powers in the area of

human rights117.

The charter of Rights and Freedoms does not specify which objectives

may legitimately be relied upon to justify and interfere with a protected

right. Dickson C.J. in Oake’s case118 said that this principle is essential to

a free and democratic society119. However it must explain the objective it

sought to pursue120. Moreover, there have been cases where the Supreme

Court has held that an objective is not a legitimate and the court has

struck down legislation where the aims pursued are not proportionate or

are incompatible with the observance of right enshrined in the charter.

Thus in Attorney General of Quebec v Quebec Association of

Protestants School Boards121 the court applying the principle of

proportionality held that restrictions on English Language education in

Quebec is incompatible with protection of minority language rights and in

R v Big M. Drug Mart122 the Supreme Court held that the Lord’s Day

act imposing sundayclosing on traders was intended to compel the

observance of Christian Sabbath and this was illegitimate as contrary to

the protection of freedom and religion.

Considering in a recent case of Dore v Barreaudu Quebec123 the assistant

Syndic of the Barreaudu filed a complaint against Dore which Dore had

written to a judge calling him loathsome, arrogant and fundamentally

unjust. The Bureau of de Quebec alleged that Dore had violated Article

203 of Code of Ethics of Advocate which provided that conduct of

117. Id. at para 105. 118. Supra note 111 at para 64. 119. (1998) 1 S.C.R. 493. 120. Id. at para 114. 121. (1984) 2 S.C.R. 66. 122. (1985) 2 S.C.R. 295. 123. (2012) 1 S.C.R. 395.

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advocates must bear the stamp of objectivity, moderation and dignity,

The Disciplinary Council of Bureau de Quebec reprimanded Dore and

suspended his ability to practice for 21 days. Before the Quebec Court of

Appeal challenge the decision as being violative of Charter of Rights and

Freedoms. The Court of Appeal held that the councildecision had a

rational connection to the important objective of protecting the public and

the decision proportional to the objective.

In this case the Supreme Court had to determine whether administrative

decision makers had exercised the statutory discretion in accordance with

the Charter’s protection. The court held that in assessing whether a law

violates the Charter, we are balancing the governments pressing and

substantial objective against the extent to which they interfere with the

Charter right at issue. If the law interferes with the right no more than is

reasonably necessary to achieve the objective, it will be proportionate and

therefore a reasonable limit under the Charter Section 1. But in assessing

whether an adjudicated decision violates the Charter, we are engaged in

balancing somewhat different but related considerations namely has the

decision maker exercised disproportionately, and therefore unreasonably

limited a Charter’s right. In both cases we should look for whether there

is an appropriate balance between rights and objectives and the purpose

of both the exercise is to ensure that the right at issue is not unreasonable

limited124.

The court also observed that when applying Charter values in the exercise

of statutory discretion an administrative decision maker must balance

Charter’s values with statutory objectives by asking how the charter value

at issue will best be protected in light of those objectives. 124 . Ibid.

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This is at the core of the proportionality exercise and requires the decision

maker to balance the severity of the interference of the Charter protection

with the statutory objectives125.

The constitutional right analysis and adjudication is typically and

increasingly operationalized by application of the principle of

proportionality126. Having its origins in Germen Administrative Law, the

Proportionality principle began to be applied by the Federal

Constitutional Court. A few years after it came into being in the late

1950s and has spread over the succeeding decades at rapid speed to many

countries and constitutional regimes around the world including Canada,

Israel, South Africa, European Countries, European Convention of

HumanRight and as also in India127.

The Proportionality principle in nowhere expressly contained or

referenced in the text of a constitution but has been implied by the court

as the proper methodology for applying textual limitation clause128.

Proportionality principle determines whether the means employed by the

government to promote its conflicting public policy objective are

justified. Most countries also apply a prior or threshhold test to the

objective itself. For example, under the Oakes test, the Supreme Court of

Canada first asks whether the government objective in questionis of

‘sufficient importance to warrant overriding a constitutionally protected

right on freedom’ and that it is necessary, at a minimum that an objective

relate to concerns which are pressing and substantial in a free and

125 . Id. 126 . Tom Ginsburg, Rosalind Dixon, Comparitive Constitutional Law, Edward

Elgar Publishing, 2011, p.390 127. Stone Sweet and J Matthewes, “ Proportionality by Balancing and Global

Constitutionalism,” (2008) 47 Columbia Journal of Trasnational Law 72, p. 98-103

128. Supra note 126

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democratic society before it can be characterized as sufficiently

important129.

Although the proportionality test is fairly uniform, it is applied with

variations by court in different countries. Court of certain countries like

Canada and Germany employ a more formalized version in which the test

are considered separately and in order i.e. only when previous test is

satisfied, only then the court moves to next test. By contract, the South

African Constitutional Court and the European Court of Human Right

tend to employ a more all-things- considered version without breaking

down the test into parts. The United States does not apply the test for

determining limits on Constitutional right are justified130.

Whatever is the difference in the way of applying the Proportionality

tests, there is no doubt that this principle and doctrine is there to stay on

the global and international level for years to come.

129 . Id. 130 . Julian Rivers, “ Proportionality and variable Intensity of Review” , Cambridge

Law Journal, Volume 65, issue 01, 2006, p.184-85.

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CHAPTER-VIII

PROPORTIONALITY AND JUDICIAL REVIEW OF ADMINISTRATIVE

DISCRETION IN INDIA

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1. Decline of Wednesbury Principle in India 2. Application of Proportionality in India 3. Judiciary on Proportionality in Administrative

Discretion in India 4. Application of Proportionality: Pros and Cons

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CHAPTER VIII

PROPORTIONALITY AND JUDICIAL REVIEW OF ADMINISTRATIVE

DISCRETION IN INDIA

Doctrine of proportionality signifies that the administrative action should

not be more drastic than it ought to be for attaining the desired result or

objective. This doctrine was originated in Europe and was finally

established in the European Droit Administratif. In Europe an countries

this principle envisages the court to be a reviewer of the administrative

action but under the common law the courts only apply judicial review in

selected cases and would only interfere when the administrative action

violates any fundamental rights and if the procedure adopted by the

executive is such that a less intrusive method would have sufficed the

cause. This is the reason that the principle of proportionality has been

applied in a very limited scope in India as the courts even during judicial

review do not go into the merits of the case1.

The implication of the principle of proportionality is that the

administrative authority must draw a balance sheet of pros and cons

involved in any decision as to its consequences to the individual and to

the public. The court would only interfere where the decision of the

1 . Mubashshir Sarshar, Monalisa Singh, Mohit Shripat and Mohit Sharma, “ The

Doctrine of Proportionality” , Journal of National Law University, Delhi, 2010, p. 1.

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administration taken under its discretionary authority would be

disproportionate to the mischief it was aimed at. The court would weigh

for itself the advantages and disadvantages of administrative action2.

In context in India the Fundamental Rights of citizens form an integral

part of the Indian Constitution therefore the courts have always used a

doctrine of proportionality in judging the reasonableness of a restriction

on the exercise of fundamental rights3.

Thus the administrative actions that affect the fundamental rights and

freedom in India have always been tested on the threshold of

proportionality. This means that it is viewed while regulating the exercise

of fundamental rights, the appropriate or the least restrictive measure has

been made by the administrative authority or the legislature in order to

achieve the objective desired. It is also seen whether a proper balance has

been made between the intentions of the particular legislation or the

authority had in mind and the adverse effects the action or the legislation

would have on the rights and liberties of a person. The courts in India

have to decide whether the discretion exercised by the authority

excessively infringes a right or freedom of person affected by decision4.

While exercising the judicial reviewing powers deciding the

constitutionality of a law or action which imposes restriction on a

fundamental right the court has to see that the particular restriction does

not affect the public interest unreasonably or in an arbitrary manner.

In Laxmi Khandsari etc. v State of Uttar Pradesh and Others5 the Bench

of Honourable Fazale ali and Syed Murtaza observed that, fundamental

rights enshrined in part III of the Constitution are neither absolute nor 2 . Ibid. 3. Messey I.P., Administrative Law, Eastern Book Company, 7th ed., p. 386. 4. Supra note 1. 5. (1981) S.C.R. (3) 92.

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unlimited but are subject to reasonable restrictions which may be imposed

by the state in public interest- - - what are reasonable restrictions would

naturally depend on the case, the character of the statute, the object which

it seeks to serve, the existing circumstances, the extent of evil sought to

be remedied as also the nature of restraint or restriction placed on the

rights of the citizens. The court further asserted that the restrictions may

be partial, complete, permanent or temporary, but they must bear a close

nexus with the object in interest of which they are imposed.

A balance has to be struck between the need for the restriction and the

fundamental right of the citizen. The restriction may be reasonable and

the discretion of the legislation or the administrative authority may have

been properly exercised but if this balance is not maintained the decision

of the authority or the legislation is not reasonable.

In Teri Oat Estates Pvt. Ltd v Union Territory of Chandigarh6 Bench of

Honourable V.N. Khare, C.J. and S.B. Sinha of the Supreme Court

observed that, “by proportionality, it is meant the question whether while

regulating the exercise of fundamental right, the appropriate or least

restrictive choice of measures has been made by the legislature or the

administrator so as to achieve the object of the legislation or the purpose

of the administrative order, as the case may be. Under the principle, the

court will see that the legislature and the administrative authority

maintain a proper balance between the adverse effects which the

legislative or the administrative order may have on the rights, liberties or

interests of persons keeping in mind the purpose which they were

intended to serve”.

6 . (2004) 2 S.C.C. 130.

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1. Decline of Wednesbury Principle in India

The judiciary in India has often resorted to using unreasonableness test to

check discretionary executive action7. The courts in the country have

resorted to using more positive test of testing whether the decision taken

could have been taken by a reasonable authority, as opposed to the more

negatively worded Wednesbury test. This questions whether the act was

so unreasonable or absurd that no reasonable man would have reached it8.

The Indian Courts in a number of cases stated that an administrative

action or decision is likely to be quashed if no reasonable body, based on

the same material that it had available for its decision, would have

reached such a conclusion.

In Y. Mahaboob Sheriff and Others v Mysore State Transport Authority

and Others9, the question concerned with the Supreme Court was that

whether courts could interfere in the discretion granted on transport

authority by section 58 of the Motor Vehicles Act, 1939. Under the said

provision, the authority had power to renew transport license for a period

“not less than 3 years and not more than 5 years”10.

The authority granted renewal for a period of 1 year only. The petitioner

challenged this order claiming that the authority had no power to exercise

discretion beyond what was provided by the provisions of the statute. The

Supreme Court allowed the petition and quashed the order of the

transport authority and directed the authority to issue license in

accordance with the statutory provisions of section 58 of the Motor

vehicles Act, 1939. Kapoor J., citing Wednesbury test and quashed the

7. JainM.P., Principle of Administrative Law, Butterworths Wadhwa, Nagpur,

2011, p. 1267. 8. Ibid. 9. 1960 S.C.R. (2) 146. 10. Section 58 (1)(a) of Motor Vehicles Act,1939.

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order on the ground that reasonable authority would have taken such a

decision in light of the statutory provisions. Further, the court delineating

the powers of the judiciary held that the courts could quash the decision

of the authority for being unreasonable, but it could not grant unit of

Mandamus as this would amount to the judiciary substituting its

judgement in an area where the power was conferred by the statute on the

transport authority.

In M.A. Rashid v State of Kerala11 the court once again took into account

the consideration of reasonableness of the decision to rule whether a

notification ‘prohibiting production of fibre from coconut husks by the

use of machinery to secure equitable distribution of coconut husks to

traditional sector’ was valid. The court in upholding the notification took

into account various considerations such as the fact that the decision had

been taken after adequate due diligence and was thus reasonable.

In case of Rohtas Industries v S.D. Agarwal12 the court considered a

decision of the Government to initiate an investigation into a company’s

affairs under section 237(b) of the Companies Act, 1956. This provisions

provided for the government discretionary powers to undertake

investigations into a company if circumstances existed to suggest any

corporate wrong - doing. The court held that the government acted in

excess of its powers under the statute by not applying its mind and

expressly stated that, we do not think that any reasonable person much

less than any expert body like the government on the material before it

could have jumped to the conclusion that there was any fraud involved in

the sale of the shares in questions.

11. 1975 SCR (2) 96. 12. A.I.R. 1969 S.C. 707.

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The reference to the Wednesbury principle also arose in the case of

Jasbir Kaur and Others v Union of India and Others13 in which the

Chief of Army Staff’s recommendation for a particular uniform for

military nurses was challenged. The court noted that a grievance redressal

committee had been formed and that the grievances had been taken into

account held that there was no scope for the court to interfere. The court

observed that, “a decision such as the one challenged before us can hardly

be faulted unless on the ground of Wednesbury principle of rationality.

In our view there is no such irrationality in the decision of the Army Act

which requires us to interfere in the exercise of our constitutional

powers”14.

Despite the wide spread use of the Wednesbury principle the courts

gradually began to realise that in some circumstances a more searching

and pervasive form of judicial review was required15. This position was

no less different in U.K. where the utility of the Wednesbury principle

was questioned many times specially after the enactment of the Human

Rights Act, 1998.

In State of U.P. v Sheo Shankar Lal Shrivastava and Others16 the

Supreme Court opined that, it is interesting to note that the Wednesbury

principle may not now be held to be applicable in view of the

development of constitutional law in this behalf. For, e.g. Huang v

Secretary of State for Home Department17 wherein referring to R v

Secretary of State of the Home Department, ex-parte Daly18 it was held

13. A.I.R. 2004 S.C. 293. 14. Id. at p.8. 15. Tarun Krishna Kumar, “ The Wednesbury Principles: Formulation, Evolution

and Demise” , Comparative Constitutional Law and Administrative Law Quarterly, Vol. 1, Issue 1, April 2013, p. 14.

16. (2006). 3 S.C.C. 276. 17. (2005) 3 All E.R. 435. 18. (2001) 3 All. E.R. 433 (HL).

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that in certain cases the adjudication may require to conduct a judicial

exercise which is not merely more intrusive than Wednesbury but

involves a full blown merit judgement, which is yet more than ex-parte

Daly requires on a judicial review where the court has to decide a

proportionality issue19.

The court also observed that, while saying so we are not oblivious of the

fact that the doctrine of unreasonableness is giving way to the doctrine of

proportionality20.

The recognition that a more intrusive form of judicial review is now

required also came into light in case of Bombay Dyeing and

Manufacturing Co. Ltd. v Bombay Environmental Action Group21 the

court agreed that in certain cases the adjudication may require to conduct

a judicial exercise more intrusive than the Wedensbury. The court also

remarked that the law is never static and it changes with the change of

time.

In Indian Airlines Ltd. v Prabha Devi Kanan22 the Supreme Court held

that where no appeal is provided against an administrative order, judicial

review of such an order is maintainable. The court stated that High Court

in exercise of its jurisdiction under Article 226 of the Constitution of

India would not confine its jurisdiction only to the known test laid down

therefore viz, illegality, irrationality and procedural impropriety. It has to

delve deeper into the matter. It would require a deeper scrutiny.

The case of Commissioner of Police and Others v Syed Hussain23 is also

of great importance. In this case S.B. Sinha and R.P. Naolekar J.J.,

19. Supra note 16, para 25. 20. Id. at para 24. 21. A.I.R.2006 S.C. 1489. 22. (2006) 11 S.C.C. 67. 23. A.I.R. 2006 S.C. 1246.

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observed that in ex-parte Daly it was held that the depth of judicial

review and the deference due to administrative discretion vary with the

subject matter. It was further stated it may well be that the law can never

be satisfied in any administrative field merely by a finding that the

decision under review is not capricious or absurd.

As for as in Huang and Others v Secretary of State for Home

Department24 referring to R v Secretary of State of Home Department

ex-parte Daly25 it was already observed that in certain cases the

adjudicator may require to conduct a judicial exercise which is not merely

more intrusive than Wednesbury but involves a full-blown merits

judgement26. The court further added that it is therefore beyond any doubt

or dispute that the doctrine of proportionality has to be applied in

appropriate cases as the depth of judicial review will depend on the facts

and circumstances of each cases27.

Further in the leading case ofJitendra Kumar and Others v State of

Haryana and Others28 the Supreme Court quoted the words of Sir

William Wade that the Wednesbury doctrine is now in terminal decline

but the coup de grace has not yet fallen despite calls for it from very high

authorities29 and opined that in some jurisdictions the doctrine of

unreasonableness is giving way to the doctrine of proportionality.

24. (2005) 3 All E.R. 435,

25. (2001) 3 All E.R. 433,

26. Ibid.

27. Id.

28. (2008) 2 S.C.C. 161.

29. William Wade and Christopher Forsyth, Administrative Law, Oxford University Press, 9th ed., 2004, p.371-372.

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Another relevant case which focuses on the changed outlook of courts as

regards Wednesbury is the case of State of Madhya Pradesh and Others

v Hazarilal30.

In this case the Supreme Court observed that further more, the parameters

of judicial review has undergone a change. Wednesbury principle of

unreasonableness has been replaced by the doctrine proportionality31. The

court in this case referred to the cases of Indian Airlines Ltd.32 as well as

the Sheo Shankar Lal Shrivastava case33.

The decision of the Supreme Court in M.P. Gangadharan and Another v

State of Kerala and Others34 may also be relevant to in this regard where

the Court declared that the question of reasonableness and fairness on the

part of statutory authority shall have to be considered in the context of

factual matrix. The court expressly stated that the constitutional

requirement for judging the question of reasonableness and fairness on

the part of the statutory authority must be considered having regard to the

factual matrix obtaining in each case. It cannot be put in a strait jacket

formula. It must be considered keeping in view the doctrine of flexibility.

Before an action is struck down the court must be satisfied that a case has

been made out for exercise of power of judicial review. We are not

unmindful of the development of the law that from the doctrine of

wednesbury unreasonableness, the court is leaning towards the doctrine

of proportionality35.

30. (2008) 3 S.C.C. 273.

31. Id. at para 12.

32. Supra note 22.

33. Supra note 16.

34. (2006) 6 S.C.C. 162.

35. Id. at para 34.

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It is relevant to point out that even before the principle of wednesbury in

the case of ex-parte Daly36 the Supreme Court of India in Om Kumar v

Union of India37 had acknowledged this fact.

In this case Supreme Court said that while dealing with the validity of

legislation infringing fundamental freedoms enumerated in Article 19(1)

of the Constitution of India the issue that whether restrictions imposed by

the legislation were disproportionate to the situation and not the least

restrictive choices has been repeatedly examined by the superior courts in

numerous judgements. It was also asserted that it was for the superior

courts to decide whether the choice made by the legislature or the

administrative authorities infringe the rights excessively.

In the field of administrative law there have been tremendous changes in

the recent times. Thought the rights of superior courts to invoke the

judicial review is guaranteed by the constitution its content reach and

power and the balance between various principles are not enunciated in

any provisions of the constitution but has probably been founded on

various principles enunciated on the notions of fairness which generally

permeate the common law38.

2. Application of Proportionality in India

The principle of proportionality is used both in an explicit and implicit

manner in various fields. These include the labour laws, service laws and

military laws etc. To be precise no field has been left alone where the

doctrine does not find place and the courts in India have been liberally

applying the principles to impart justice. There have been times in which

the governmental action or a piece of legislation has infringed the rights

36. Decided on 13th May 2001. 37. A.I.R. 2000 S.C. 3689 38. “Scope of the Wednesbury Principle”, www.lawteacher.net/free-law-

essay/constituinal law, assessed on 20-11-2014.

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and freedoms of individuals, employees, trade unions or even the

employees. Besides these constitutional cases, in private disputes also

which arise between parties the principle is applied freely by the courts.

In a number of cases the principle of proportionality has been applied in

India since log back in cases of punishments that were awarded by the

disciplinary authorities in the matters of discipline under the service or

labour laws. The courts in India as well as the tribunals have often

interfered in such cases where injustice was felt or where the authorities

acted in arbitrary manner or in excession of their powers. It is very much

evident in the case of M/s Bengal Bhatdee Coal Corp.v Shri Ram

Prabash Singh and Others39 or in National Tobacco Corp. of India Ltd

v Fourth Industrial Tribunal40. In the former case the respondents were

the employees of the appellant and while a strike was going on in the

concern of appellant they physically obstructed the loyal and willing

workers from working in the colliery and insisted on other workmen to

join them in the obstruction. A show cause notice was served on them and

the respondents submitted their explanation. The welfare officer found

them guilty and recommended their dismissal. The appellants filed an

application before the Industrial Tribunal under Article 33 (2) (b) of

Industrial Dispute Act and the Tribunal approved the dismissal. Thereby

reference was made under section 10 of the Act and appeal was filed by

way of special leave in the Supreme Court.

In this case the Supreme Court observed that now there is no doubt that

though in a case of proved misconduct normally the imposition of a

penalty may be within the discretion of the management. There may be

cases where the punishment of dismissal for misconduct proves may be

39. 1964 S.C.R. (1) 709. 40. 1960 2 L.L.J. 175.

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so unconscionable or so grossly out of proportion to the nature of offence

that the tribunal may be able to draw an inference of victimisation merely

from the punishment inflicted.

In Hind Construction and Engineering Corp. Ltd. v Their Workmen41

the court observed that in respect of punishment it has been ruled that the

particular conduct and the past record or is such that as no reasonable

employer would ever impose in like award of punishment for misconduct

under the standing orders if any it is a matter for management to decide

and if there is any justification for the punishment imposed and the

Tribunal should not interfere but where the punishment is shockingly

disproportionate regard being had to the circumstances, the Tribunal may

treat the imposition of such punishment as itself showing victimisation or

unfair labour practice.

In above case the Supreme Court relied on similar judgments given in the

cases of Punjab National Bank Limited v Its Workmen42 and The

Chartered Bank, Bombay v The Chartered Bank Employee Union43.

The Apex Court in Bhagat Ram v State of Himachal Pradesh and

Others44, without referring to the principles of proportionality examined

the proportionality of punishment in light of Article 14 of the

Constitution of India and concluded that dismissal on trivial charge of

negligence which has not resulted in any loss to the department cannot be

sustained and that a penalty which is disproportionate to the amount of

misconduct proved is against the provisions of Article 14 of the

Constitution. 41. A.I.R.1965 S.C. 1917. 42. A.I.R.(1960) S.C.160. 43. A.I.R.1960 S.C.919. 44. (1983) 2 S.C.C. 442.

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Further in the Management of the Federation of Indian Chamber of

Commerce v Their Workmen45 the Supreme Court relying on the

judgements passed in case of Hind Construction and Engineering

Corporation v Their Workmen46 and W.M. Agnani v Badri Das and

Others47 held that if the punishment given to the employee is

disproportionate to the severity of misconduct the Tribunal can interfere

with the decision of the management. The leading case of Ranjit Thakur

v Union of India and Others48 is a case which displays the application of

the proportionality principle by the Apex Court. In this case the appellant

was a signal man in a Signal Regiment of the Armed Services. He while

serving out a sentence of 28 days rigorous imprisonment imposed on him

by the Commanding Officer of the Regiment for violating norms for

presenting representation to higher officers was alleged to have

committed another offence by refusing to eat his food when ordered to do

so. He was charged under section 41(2) of the Army Act, 1950 for

disobeying a lawful command of his superior officer and a rigorous

imprisonment of 1 year was imposed on him by Summary Court Martial.

The applicant’s representation to the confirming authority under section

164 of the Act was rejected by the General Officer Commanding and his

writ petition was also dismissed by the High Court49.

The Supreme Court held that judicial review generally speaking is not

directed against a decision but is directed against the “decision making

process”. The question of 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

45. A.I.R.(1972) S.C. 763. 46. (1965) 2 S.C.R. 85. 47. (1965) 1 L.L.J. 684. 48. A.I.R.1987 S.C. 2386. 49. Ibid.

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harsh. It should not be as disproportionate to the offence as to shock the

conscious 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 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 connection. Thus the doctrine of proportionality as

seen is applied in nearly all the cases where the courts feel that the

penalty or punishment imposed by the authorities is excessively harsh or

in excess to the gravity of the misconduct or offence. The Supreme Court

in Ex. Naik Sardar Singh v Union of India and Others50 relying on

theRanjit Thakur and the Bhagat Ram case51 held that the penalty

imposed must be commensurate with the gravity of the misconduct and

that any penalty disproportionate to the gravity of misconduct would be

violative of Article 14 of the Constitution of India.

Since the trend is continuing and the principle of proportionality is being

applied by courts in all genres of cases it will be relevant to examine

some of the recent cases.

In Management of Coimbatore District Central Cooperative Bank v

Secretary, Coimbatore District Central Cooperative Bank Employees

Association and Other52 decided on 23rd April 2007 the Supreme court

observed that So far as the doctrine of proportionality is concerned there

is no gain saying that the said doctrine has not only arrived at in our legal

system but has come to stay. With the rapid growth of administrative law

and the need and necessity to control possible abuse of discretionary

powers by various administrative authorities certain principles have been

50. 1991 S.C.R. (2) 676. 51. Supra. 52. MANU/SC/2117/2007.

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evolved by the Courts. If an action taken by any authority is contrary to

law, improper, unreasonable, irrational or otherwise unreasonable a court

of law can interfere with such action by exercising powers of judicial

review. One of such modes of exercising powers known to law is the

doctrine of proportionality.

Further, in Chairman, All India Railway Recruitment Board and

Another v K. Shyam Kumar and Others53 the Supreme Court was

concerned with the validity of an order dated 4-6-2004 issued by Railway

Board directing the Railway Recruitment Board to conduct a re-test for

recruitment for Group – D post for those candidates who had obtained

minimum qualifying marks in the first written examination against which

large scale irregularities were noticed. The court held that we therefore

hold applying the test of wednesbury unreasonableness as well as the

proportionality test the decisions taken by the Board in the facts and

circumstances of this case was fair, reasonable, well balanced and

harmonious54. The court also noticed that principle of proportionality is

more concerned with the aims and decisions of the decision maker and

whether the decision maker has achieved the correct balance. The

proportionality test may require the attention of the court to be directed to

the relative weight according to interests and considerations55.

Besides this in Charanjit Lamba v Commanding Officer, Southern

Command and Others56 the Supreme Court observed that the doctrine of

proportionality which Lord Diplock saw as a future possibility is now a

well recognised ground on which a court can interfere with the order of

punishment imposed upon an employees if the same is so outrageously

53. 2010 (6) S.C.C. 614. 54. Id. at para 37. 55. Id. at para 36. 56. (2010) 11 S.C.C. 314.

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disproportionate to the nature of misconduct, that it shocks conscious of

the courts57. The court also further asserted that the punishment imposed

upon a delinquent should commensurate to the nature and generally of the

misconduct is not only a requirement of fairness, objectivity and non-

discriminatory treatment which even those form quality of a

misdemeanour are entitled to claim but the same is recognised as being a

part of Article 14 of the Constitution. It is also evident from the long time

of decisions referred to above that the Courts of India have recognised the

principles of proportionality as one of the ground for judicial review58.

However the Supreme Court has expressed its view that the doctrine of

proportionality is not applicable in case of disputes under the Code of

Civil Procedure. Thus in Rasiklal Manik Chand Dhariwal and Another

v M/s M.S.S. Food Products59 the Supreme Court in its decision given on

25th November 2011 Justice R.M. Lodha observed that the doctrine of

proportionality has been expanded in recent times and applied to the areas

other than administrative law. However in our view its applicability to the

adjudicatory process for determination of ‘civil disputes’ governed by the

procedure prescribed in the code is not at all necessary. The code is

comprehensive and exhaustive in respect of the matters provided therein.

The parties must abide by the procedure prescribed in the code and if they

fail to do so they have to suffer the consequences60.

In Raghubir Singh v General Manager, Haryana Roadways, Hissar61

the Supreme Court held that having regards to the facts and

circumstances of the case we are of the view that it is important to discuss

the rule of doctrine of proportionality in ensuring the preservation of the

57. Id. at para 9. 58. Id. at para 15. 59. (2012) 2 S.C.C. 196. 60. Id. at para 70. 61. (2014) L.L.R. 1075 (S.C.)

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rights of workman. The doctrine of proportionality is a well recognized

one to ensure that the action of the employer against the

employee/workman does not infringe the fundamental and statutory

rights. The doctrine has to be followed by the employer/employers at the

time of taking disciplinary action against their employees/workman to

satisfy the principles of natural justice and safeguard the rights of

employees/workman62.

Further in Collector Singh v L.M.L. Limited. Kanpur63 while considering

that whether the punishment of dismissal from service of appellant is

disproportionate to the act of misconduct proved against the appellant the

Apex Court observed that “- - - but when any such order is challenged

before a Service Tribunal or a High Court the exercise of discretion by

the competent authority in determining and awarding punishment is

generally respected except where the same is found to be so outrageously

disproportionate to the gravity of the misconduct that the court considers

it to be arbitrary in that it is wholly unreasonable. The superior courts and

tribunal invoke the doctrine of proportionality which has been gradually

accepted as one of the facets of judicial review”64.

Thus the application of the principle of proportionality is used with an

object to provide the courts with the power to assess whether the actions

taken by the disciplinary authorities in service, labour or military laws or

in cases discretion exercised by the governmental authorities are

proportionate with the crime, offence, misconduct etc. or if they are in

conformity with the constitutional principles set out in the constitution

specially those of fundamental rights and freedoms.

62. Id. at para 35. 63. Civil Appeal No. 10125 of 12014 (arising out of S.L.P. (Civil) 37619/2012,

decided on 11th November 2014). www.nja.gov.in 64. Id. at para 12.

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3. Judiciary on Proportionality in Administrative

Discretion in India

Proportionality enjoys the distinction of being one of the most important

principles in today’s constitutional and administrative law. Its importance

in jurisprudence is possibly superior to that of principle of equality if their

respective spheres of action and influence are taken into account. The

principle is embedded in our legal system65.

The judicial control of administrative action is the judicial review of the

administration action by the courts using principles developed by the

court themselves. One of these principles is the principle of

proportionality. The need for the judiciary to control the administrative

discretion arises from the fact that not all the acts of the administration

can be bound by fixed rules. Many a times it is not possible to prescribe

intelligible standards for the administrator to follow. Thus the vesting of

discretionary power on the administrative field is very much necessary to

take care of individual cases. The Judiciary using the developed principle

of proportionality in India has sought to spell out some limits on

conferment of broad discretionary power by invoking the fundamental

rights guaranteed by the constitution. Moreover proportionality doctrine

is a post decisional review mechanism to ensure that the administrative

authorities discharge their function according to law and within the legal

limits whether express or implied66.

The Supreme Court of India consciously considered the application of the

concept of proportionality for the first time in Union of India v G.

65. Javier Barnes, “ The Meaning of the Principle of Proportionality for the

Administration: A Comparative View” , Comparative Administration Law in Asia, 2013 Workshop, cala.11as.sinica.edu.tw/2013.

66. blogspot.in/2010/08/administrative-law-discretionary powers.html, assessed on 21-11-2014.

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Gnanayutham67. This case was concerned with an appeal filed by the

Union of India and the Collector of Central Excise against the judgement

of Central Administrative Tribunal allowing the petition filed by the

respondent. The respondent was working as Superintendent of Central

Excise. On 14-11-1977 he was served with a memo of 8 charges and an

enquiry was conducted. The enquiry report was submitted by the Enquiry

Officer on 17-5-1978 proving and partly proving some charges. The

respondent retired from services on 31-5-1978. In 1982 he was issued a

show cause notice under Rule 9 of the Central Civil Services (Pension)

Rules, 1972 proposing withdrawal of full pension and gratuity admissible

to the respondent on the ground that the Government had suffered

substantial loss of revenue due to misconduct of the respondent68. The

Union Public Service Commission was consulted and on commissions

advise a penalty of withholding 50% of the pension and 50% of the

gratuity was awarded to the respondent on 8-5-1984. Against this a writ

petition was filedby the respondent in Madras High Court which was later

transferred to the Tribunal. The Tribunal held vide its judgement dated 5-

12-1986 that under Rule 9 of the rules the competent authority could not

withdraw any gratuity as the provisions provided for withholding of

pension and not gratuity. The Central Administrative Tribunal also said

that award of 50% withholding of pension was too severe and restricted

the withholding of 50% pension for a period of 10 years instead of on a

permanent basis69. Aggrieved by the decision of Tribunal the appeal was

filed in the Supreme Court by the Union of India.

The Supreme Court while holding the decision of the Tribunal to be

wrong regarding withholding of pension, considered the point as to

67. (1997) 7 S.C.C. 463. 68. Ibid. 69. Id.

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whether the powers of judicial review in administrative law permits the

High Court or the Administrative Tribunals to apply the principles of

proportionality. The Courts in detail discussed the judicial review of

administrative action referring to the Wednesbury case70 and the

C.C.S.U. case71. As regards proportionality principle the court referred to

the cases of Ranjit Thakur v Union of India72 and Ex. Naik Sardar

Singh v Union of India73. The cases of Tata Cellular v Union of India74

and State of Andhra Pradesh v MacDowell and Co.75 were also quoted.

In these cases the court observed that if the question arises whether our

courts while dealing with executive or administrative action or discretion

exercised under statutory powers where fundamental freedoms are

involved could apply proportionality and take up a primary role. So far as

our courts are concerned we do not propose to decide the questions in the

present case in as much as it is not contended before us that any

fundamental freedom is affected. When an executive act or an

administrative action taken in excess of statutory powers is alleged to

offend fundamental freedoms it will then be for this court to decide

whether the principle of proportionality applies in administrative law

spheres in our country and whether the courts will take up a primary role.

Thus the question of application of proportionality in administrative law

was left open in this case by the Supreme Court. However the court while

summing up the factors did lay down the current position of

70. 1948 (1) K.B. 223.

71. (1985) 1 A.C. 374.

72. Supra note 48.

73. Supra note 50.

74. 1994 (6) S.C. 651.

75. (1996) (3) S.C.C. 109.

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proportionality in administrative law in England and India. The court

observed that76:

(i) To judge the validity of any administrative order or statutory

discretion normally the wednesbury test is to be applied to find out if the

decision was illegal or suffered from procedural improprieties or was one

which no sensible decision- maker could on the material before him and

within the framework of law have arrived at. The court would consider

whether relevant matters have not been taken into account or whether

irrelevant matters had been taken into account or whether the action was

not bona fide. The court would also consider whether the decision was

absurd or perverse. The court would not however go into the correctness

of the choice made by the administrator amongst the various alternatives

open to him. Nor could the court substitute its decision to that of the

administrator. This is the wednesbury test.

(ii) The court would not interfere with the administrator's decision unless

it was illegal or suffered from procedural impropriety or was irrational in

the sense that it was in outrageous defiance of logic or moral standards.

The possibility of other test including proportionality being brought into

English administrative law in future is not ruled out.

Also in summing up the court observed that the position in our country in

administrative law where no fundamental freedoms as aforesaid are

involved is that the Courts/Tribunals will only play a secondary role

while the primary judgement as reasonableness will remain with the

executive or administrative authority77.

76. Supra note 68. 77. Ibid.

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The issue whether courts will apply the principle of proportionality where

administrative action affects fundamental rights was thus left open and

not decided78.

At this juncture if we examine the Article 14 of the Indian Constitution it

provides that the State shall not deny to any person equality before the

law or the equal protection of the laws within the territory of India. The

courts in India have interpreted this Article in a way that it may include

proportionality principle also. This is evident from the case of

Ameerumnissa Begum v Mahboob Begum79 or the case of Ram Krishna

Dalmiya v Justice S.R. Tendulkar80 where the courts interpreted Article

14 to mean that there will be no discrimination except where the

classification is founded on intelligible diffrentia and that diffrentia has

rational connection to the objective achieved by the Act thereby

approving the necessity, connectivity and balancing test or principle of

proportioanlity81.

In E.P. Royappa v State of Tamil Nadu82 the Supreme Court had held

that if the act is arbitrary then it is violative of Article 14 of the

Constitution of India83. This was also reiterated by the Supreme Court in

the case of Maneka Gandhi v Union of India84 and in Ajay Hasia v

Khalid Mujib Sehravandi85.

The case of Om Kumar v Union of India86 which was concerned with the

proceedings arising out of an order of court proposing the reopen the

78. (1997) 7 S.C.C. 463 at p. 479. 79. 1953 S.C.R. 404. 80. 1959 S.C.R. 279. 81. Id. at para 18. 82. (1974) 4 S.C.C. 3. 83. Id. at para 85. 84. (1978) 1 S.C.C. 248 at p. 283-284. 85. (1981) 1 S.C.C. 722 para 16. 86. A.I.R. 2000 S.C. 3689.

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quantum of punishments imposed in departmental enquiries on certain

officers of the Delhi Development Authority who were connected with

the land of the authority allotted to M/s Skipper Construction Co. It was

proposed to consider imposition of high degree of punishments in view of

role of these officers in the matter.

The court examined the case in light of principle laid down by the

Supreme Court in Ganayutham case87 from the stand out of basic

principles like wednesbury and the doctrine of proportionality. The court

also examined the cases of Chintaman Rao v State of U.P.88 in which it

was held that ‘reasonable restrictions’ which the state could impose on

the fundamental rights ‘should not be arbitrary or of an excessive nature’

beyond what is required for achieving the objectives of the legislation and

State of Madras v V.S. Row89 in which Patanjali Shashtri C.J. had

observed that the court must keep in mind the nature of right alleged to

have been infringed, the underlying purpose of the restrictions imposed,

the extent and urgency of the evils sought to be remedied thereby and the

disproportion of the imposition in the prevailing conditions of the time.

The Supreme Court asserted that so far as Article 14 is concerned the

courts should examine whether the classification was based on

Intelligible differentia and whether the differentia had a reasonable nexus

with the object of legislation. Obviously when the court considered the

question whether the classification was based on intelligible differentia

then the courts were examining the validity of the differences and the

adequacy of the differences.

The court also considered the application of the principle of

proportionality in America, Canada and English Laws and decisions. The

87. Supra note 67. 88. (1950) S.C.R. 759. 89. (1952) S.C.R. 597.

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court held that now, under Articles 19(2) to (6) the restrictions on

Fundamental freedoms can be imposed only by legislation. In cases

where such legislations is made and the restrictions are reasonable yet if

the concerned statute permits the administrative authorities to exercise

power or discretion while imposing restriction in individual situations,

question frequently arises whether a wrong choice is made by the

administrator for imposing restriction or whether the administrator has

not properly balanced the fundamental right and the need for the

restriction or where he has imposed the least of the restrictions or the

reasonable quantum of restrictions etc. In such cases the administrative

action in our country has to be tested on the principle of proportionality

just as it is done in the case of the main legislation. The court went on to

say that the administrative action in India affecting fundamental freedoms

has always been tested on the anvil of proportionality in the last 50 years

even though it has not been expressly stated that the principle that is

applied is the ‘proportionality’ principle.The court thus concluded that“- -

- when administrative action is attacked as discriminatory under Article

14 the principle of primary review is for the courts by applying

proportionality. However, where administrative action is questioned as

arbitrary ‘under Article 14’ the principle of secondary review based on

wednesbury principle applies90”.

The principles developed by the court in the Ganayutham and Om

Kumar Cases were followed by the Supreme Court in many cases and

are being followed even today.

In Chairman and Managing Director, United Commercial bank and

Others v P.C. Kakkar91 the court relied on the Om Kumar and

90. Ibid. 91. (2003) 4 S.C.C. 364.

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Ganayutham cases and refused to go into the question of proportionality

because there was no contention of fundamental freedoms being effected

and that the punishment imposed was illegal or vitiated by procedural

impropriety. However the Supreme Court could have applied

proportionality since it was contended that the punishment was

discriminatory. Though the case of Om Kumar was referred to by the

court but the court failed to analyse if the discriminatory punishment had

any justification. The court merely observed that the punishment was not

shockingly disproportionate. The same principle was also applied by the

court in V. Ramana v A.P.S.R.T.C.92.

In Coimbatore district Central Cooperative Bank v Coimbatore District

Central Cooperative Bank Employees Association and Others93 the

Supreme Court considering the doctrine of proportionality assessed that

so far as the doctrine of proportionality is concerned there is no

gainsaying that the said doctrine has not only arrived in our legal system

but has come to stay. If an action taken by an authority is contrary to law,

improper, irrational or otherwise unreasonable a court of law can interfere

with such action by exercising the power of judicial review. One of such

modes of exercising power known to law is ‘doctrine of

proportionality’94. The court explaining proportionality said that

proportionality is a principle where the court is concerned with the

process, method or manner in which the decision maker has ordered his

priorities, reached a conclusion or arrived at a decision.

The very essence of decision-making consists in the attribution of relative

importance to the factors and considerations in the case. The doctrine of

92. A.I.R.2005 S.C. 3417. 93. (2007) 4 S.C.C. 669. 94. Id. at para 17.

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proportionality thus steps in focus to nature of exercise as the elaboration

of a rule of permissible priorities”95.

Citing the above cases the Supreme Court in Chairman Cum Managing

Director, Coal India Limited and Other v Mukul Kumar Chowdhary

and Others96 observed that the doctrine (of proportionality) has its

genesis in the field of administrative law. The Government and its

departments in administering the affairs of the country are expected to

honour their statements of policy or intention and treat the citizens with

full personal considerations without abuse of discretion. There can be no

‘pick and choose’, selective applicability of the government norms or

unfairness, arbitrariness or unreasonableness. It is not permissible to use a

‘sledge hammer to crack a nut’. As has been said many a time that where

paring knifes suffices, battle axe is precluded97.

The Court in the present case concluded that the doctrine of

proportionality is thus well recognized concept of judicial review in our

jurisprudence. What is otherwise within the discretionary domain and

sole power of the decision-maker to quantify punishment once the charge

of misconduct stands proved? Such discretionary power is exposed to

judicial intervention if exercised in such a manner which is out of

proportion to the fault. Award of punishment which is grossly in excess

to the allegations cannot claim immunity and remains open for

interference under limited scope of judicial review98.

The State of Bihar and Others v C.D. and C.M. Union and Another99

the facts of this case were that an appeal preferred under Clause 10 of the

Letter Patent of the High Court of Judicature at Patna against a judgement 95. Id. at para 18. 96. (2009) 15 S.C.C. 620. 97. Ibid. 98. Id. at para 26. 99. Letters Patent Appeal No. 167 of 2005, decided on 25th August 2010.

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passed by single judge of High Court vide which the writ petition filed by

respondents was allowed and a notification published by Government in

Bihar Gazette extraordinary issue dated 10-8-2002 was quashed and the

appellant was directed to issue a fresh notification allotting appropriate

shares of the commission to the registered cane Cooperative Society. In

this case the court observed that the narrow scope of interference in

exercise of judicial review enunciated in wednesbury which held the filed

for nearly 40 years has been considerably widened by the House of Lords

and has been christened as doctrine of proportionality. The same has been

approved by our own judicial system100. The court further remarked that

an executive discretion can now be tested on grounds of illegality,

irrationality, procedural impropriety and the doctrine of proportionality

etc.

The Delhi High Court also in Kshetra Pal Singh v N.C.T. Delhi and

Others101 relied on the judgement passed by Supreme Court in Sheel

Kumar Roy v Secretary, Ministry of Defence and Others102 wherein the

Supreme Court had held that fairness and reasonableness in the action of

the state whether in a criminal proceedings or otherwise are the hallmark

of Article 14 of the Constitution of India. Doctrine of proportionality is

one of the grounds on the basis of which the power of judicial review

could be exercised”103. The Delhi High Court asserted that there are also

many other judgements on the aspect of doctrine of proportionality and

the doctrine of proportionality is now well established in our

jurisprudence, and as per which the facts of each case have to be seen to

100. Id. at para 14. 101. W.P. (C) No. 631/1997 decided on 22nd January 2013. 102. (2007) 12 S.C.C. 162. 103. Id. at para 17.

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determine whether interference is called for in action of the Disciplinary

Authority for being violative of the doctrine of proportionality104.

In another recent case too the Delhi High Court relied on the principle of

proportionality and decided the case of M/s. Ashiana Cargo Services v

Commissioner of Customs (I & G)105.

Recently the Supreme Court in Chennai Metropolitan Water Supply and

Sewerage Board v T.T. Murali Babu106 considered the case of the

respondent who was appointed as a surveyor in Chennai Metropolitan

Water Supply and Sewerage Board and subsequently promoted as Junior

Engineer in 1989. From 28-8 1995 he remained continuously absent from

duty without any intimation to the employer and did not respond to

memoranda / reminders requiring him to explain his unauthorised

absence from duty and to rejoin duty. A chargesheet was issued on 11-9-

1996 under the Board Regulations. Though the charge sheet was received

by the respondent he chooses not to submit his explanation till 6-1-1997

much after the issue of charge sheet. An enquiry was conducted and on its

report the disciplinary authority passed order for his dismissal from

services.

The respondent preferred appeal which was rejected by the Board and

thereafter the respondent filed writ petition in High Court which directed

disciplinary authority to reconsider the appeal of the respondent. The

disciplinary authority on reconsideration dismissed the appeal again.

Another writ petition was then filed by the respondent and the High Court

by its impugned judgement held that the punishment was too harsh and

disproportionate.

104. Supra note 101 para 9. 105. Cus. AA 24/2012, C.M. Appl. 19694/2012, decided on 14-3-2014.

indiakanoon.org/doc/72245046, Delhi H.C. 106. (2014) 4 S.C.C. 108.

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The Supreme Court in special leave petition filed by the appellants’

Board quoting the Gunayatham and Coal India Cases noted that in those

cases regard being had to the obtaining factual matrix then the court

interfered with the punishment on ground of proportionality. But the facts

in present case are different. The Supreme Court said that from the

analysis made by the High Court it has given emphasis on past

misconduct of absence and first time desertion and therefore proceeded to

apply the doctrine of proportionality. As such the said approach is

incorrect107. Thus the Supreme Court held that the High Court has

erroneously interfered in the punishment and there is no shadow of doubt

that the doctrine of proportionality does not get attracted in such

circumstances108.

Thus the outlook of the courts is to interfere only in cases where it is felt

that the punishment imposed by the authorities or the actions taken by the

authorities while exercising its discretionary powers is in excess of what

is needed to achieve the objective or is highly disproportionate and

heavily effects the fundamental rights under the Constitution.

The recent judgement of Supreme Court in Deputy Commissioner,

Kendriya Vidyalaya Sangathan and Others v J. Hussain109 is of great

importance. Brief facts of the case are that the respondent was served

with charge memo under the provision of Rule 14 of the Central Civil

Services (CCA) Rules, 1965 and Rule 20 of the Central Civil Services

(Conduct) Rules, 1964. The allegation against him was that he had

forcibly entered into the office of Principal, Kendriya Vidyalaya

Sangathan, Tura in State of Meghalaya where he was posted as Upper

Division Clerk. The respondent was in fully drunken state. The

107. Id. at para 30. 108. Id. 109. 2013 (10) S.C.C. 106.

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respondent agreed to the entering of office in that state but contended that

he did not enter forcibly. The respondent offered unconditional apology

and requested the disciplinary authority to take a sympathetic view. The

authority passed the order on basis of his admission for removal from

services. A departmental appeal was also rejected by the appellate

authority. The respondent approached Central Administrative Tribunal

where his petition was rejected. He further filed a writ petition in High

Court. The High Court found the order of removal from services as

highly disproportionate to the gravity of misconduct and invoking the

doctrine of proportionality directed reinstatement of services of the

respondent110.

The High Court further directed that the respondent would not be entitled

to two annual increments without any cumulative effect and no back

wages for the intervening period would be paid to him. The High Court

felt that this penalty, instead of penalty of removal from services would

meet the ends of justice. The school filed civil appeal in Supreme Court

against the order of the High Court111.

The Supreme Court had to decide as to whether the penalty of removal

from services inflicted upon the respondent offends the principle of

proportionality i.e. whether the penalty was disproportionate to the

gravity of misconduct to the extent that it shocks the conscience of the

court and is violative of Article 14 of the Indian Constitution. The

Supreme Court observed that when the punishment is found to be

outrageously disproportionate to the nature of charge, principle of

proportionality comes into play. It is however to be borne in mind that

this principle would be attracted when it is in tune with doctrine of

110. Id. at para 2 111. Supra note 109, Civil Appeal No. 8948/2013 arising out of the S.L.P. (Civil

No. 18271 of 2006).

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wednesbury rule of unreasonableness only when in the facts and

circumstances of the case shows that the penalty imposed is so

disproportionate to the nature of the charge that it shocks the conscience

of the court and the court is forced to believe that it is totally

unreasonable and arbitary112.

But the Court mentioning the case of Ranjit Thakur v Union of India113

held that to be fair to High Court we may mention that it was conscious

of the narrow scope of the doctrine of proportionality as a tool of judicial

review and has stated so while giving lucid description of this principle in

the impugned judgement. However, we are of the view that it is the

application of this principle on the facts of this the case where the High

Court has committed an error while holding that the punishment was

shocking and arbitrary. Moreover while interfering therewith the High

Court has itself prescribed the punishment which according to it ‘would

meet the ends of justice’ little realizing that the court cannot act as a

disciplinary authority and impose a particular penalty. Even in those

cases where it is found that the punishment is disproportionate to the

nature of charge the court can only refer the matter back to disciplinary

authority to take appropriate view by imposing lesser punishment rather

than directing itself the exact nature of penalty in a given case114.

In allowing the appeal and upholding the decisions of the authorities for

removal from services of the respondent the Supreme Court laid down a

very important aspect of the application of the principle of

proportionality.

The court should be extremely cautious while applying the principle in

cases of punishments, service laws and administrative actions taken under

112. Supra note 109, para 7. 113. (1987) 4 S.C.C. 611. 114. Supra note 109, para 9.

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the discretionary powers. The courts must see that in applying the

principle they should not substitute their own view or ideas in place of

penalty imposed or action taken by the authorities. The courts in cases of

judicial review and in applying the principles of proportionality or

wednesbury unreasonableness are not required to go into the merits of the

case but they have only to see whether the action taken by the authorities

is arbitrary or in excess of what is required to attain the desired objective

or the punishment imposed is highly disproportionate to the gravity of

misconduct. The courts are only required to assess if in imposing

penalties, imparting punishments or in other administrative actions taken

under the discretionary powers of the executive whether any fundamental

right or freedom is being adversely effected or there is a violation of

principles of the constitution or not.

The views of Supreme Court in some of the recent cases as well as those

given in the Ganayutham and Om Kumar cases as well as the caution in

applying the principles of proportionality suggested by the Supreme

Court in various cases have also formed the basis for some of the very

important cases decided by the Central Administrative Tribunal, Delhi,

like the case of S.K.Trehan v General Manager, Northern Railway

Headquarters Office, Delhi115, Shri Shubash Chandra v The Chairman,

Indian Trade Promotion Organization116 and V.K. Nehru v Chairman

and Managing Director, I.T.D.C.117.

115. O.A. NO. 3129/2011, decided on 12th March 2013. indiakanoon.org/

doc/179245724

116. T.A. No. 02/2012, decided on 21 December 2012. indiakanoon.org/

doc/159176383

117. O.A. NO. 4424 /2011 decided on 21 December 2012. indiakanoon.org/

doc/119850643

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In the recent case of Life Corporation of India v V. S. Vasanthi118,

relying on the case of J. Hussain119 the Supreme Court held that the

Division Bench of Madras High Court in exercise of judicial review and

in its application of the principle of proportionality did not have the

jurisdiction to interfere with the quantum of punishment imposed by the

disciplinary committee. The Supreme Court further held that if the High

Court, felt that the quantum of punishment was disproportionate then it

should have remanded the matter back to disciplinary authority instead of

modifying the punishment on its own.

The extent of application of this principle by the courts in India have

gone even further and beyond the interpretation of the said doctrine in

English Law is much more clear and visible from the decision of

Supreme Court in recent case of M/s Kulja Industries Ltd. v Chief

General Manager, W.T. Project, BSNL and Others120 decided on 4th

October 2013. In this case the court ruled on the power of an authority to

blacklist a company on the basis of the terms of underlying contract. The

appellant industry was blacklisted by BSNL due to fraudulent payments

which were obtained by the contractor from the authority. The court set

aside the order of blacklist issued by the authority as it had the effect of

permanently affecting the business of the contractor industry. The ruling

clearly identifies the limits of powers of statutory authorities to take

coercive action against companies. The Supreme Court ensured that the

principles of reasonableness are incorporated in every action and

decisions of statutory authorities.

118. Civil Appeal No. 7717 of 2014, arising out of S.L.P. (Civil) No. 39113 of 2013,

decided on 14th August 2014.

119. Supra note 109.

120. Civil Appeal No. 8944 of 2013, arising out of S.L.P. (C) No. 20716 of 2011.

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The Supreme Court further said that the freedom to contract or not to

contract is unqualified in the case of private parties.But any such decision

is subject to judicial review when the same is taken by the state or any of

its instrumentalities. This implies that any such decisions will be open to

scrutiny not only on the touchstone of the principles of natural justice but

also on the doctrine of proportionality. The order itself being reasonable,

fair and proportionate to the gravity of the offence is similarly

examinable by a higher court.

From a brief study of cases discussed above it may be concluded that the

courts in India have applied the principle of proportionality since 1950 in

cases from virtually every field including labour law, servicelaw, criminal

jurisprudence, cases between individual and individual, cases between

individual and government as also in cases relating to interdepartmental

and different wings of government, though till late 1990 the word

proportionality did not expressly figure in the decisions. However the

spirit of the doctrine was followed and the courts in India may be said

have even to gone beyond the English or American Courts outlook.

However the cautions and factors to be borne in mind while deciding the

cases on basis of principle of proportionality have at all times been

explicitly or implicitly expressed by the Supreme Court and the High

Courts in India in its various decisions.

4. Application of Proportionality: Pros and Cons

Arguments in favour of embracing proportionality ‘in toto’ in the

common law world is not new121. Positive and negative proportion has

been advanced in support of an extension of proportionality. Proponents

of proportionality occasionally maintain that it is no more intrusive or 121. Paul Daly, “ Blown out of Proportion: The Case against Proportionality as an

Independent Ground of Judicial Review” quoted in Law and Outsiders by Cian. C. Murphy and Penny Green, Bloomsbury Publishing, 2011, p. 27.

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intensive form of review than wednesbury. In an extra judicial speech

prior to the enactment of the Human Rights Act, 1998, Lord Hoffman has

remarked that whether the courts ride into battle with proportionality or

rationality inscribed upon their banners the weapons they carry to defend

the citizen against the state are much the same proportionality is not a

new principle but another and sometimes better way of explaining how

we apply our existing principles. It may or may not enable a court to give

a more convincing explanation for the way it has applied established

principles in the particular case122.

Similarly Jowell and Lester also do not consider proportionality as

permitting intervention - - - to an extent greater than - - - wednesbury123.

One of the primary reasons that proportionality came to occupy such a

prominent place in law is because it is more intrusive form of review than

wednesbury. Lord Steyn was characteristically clear in R (Daly) v

Secretary of State for the Home Department124 wherein he declared that,

"there is a material difference between the wednesbury - - - grounds of

review and the approach of proportionality applicable in respect of review

where convention rights are at stake - - - most cases would be decided in

the same way whichever approach is adopted. But the intensity of review

is somewhat greater under the proportionality approach - - - First, the

doctrine of proportionality may require the reviewing court to assess the

balance which the decision-maker has struck not merely whether it is

within the range of rational or reasonable decisions. Secondly, the

proportionality test may go further than the traditional grounds of review

in as much as it may require attention to be directed to the relative weight

122. Lord Hoffman, “ A Sense of Proportion”, (1997) 32 Irish Jurist 49, p. 60-61. 123. J. Jowell and A. Lester, “ Proportionality: Neither Novel nor Dangerous”

quoted by Steven and Sons J. Jowell and D. Oliver (ed.), New Directions in Judicial Review, London, 1988, p. 68.

124. (2001) U.K.H.L. 26.

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accorded to interest and considerations." Thirdly even the heightened

scrutiny test developed in Smith125 is not necessarily appropriate to the

protection of human rights126.

Although the legitimacy and suitability wings of proportionality are no

more intrusive than wednesbury application of least restrictive

alternatives and balancing wings does amount to a more intrusive form of

review127. In applying the least restrictive alternative prong a court must

consider alternative avenues down which the decision maker might have

travelled. Nonetheless Lord Steyn has claimed that the ‘use of

proportionality does not mean that there has been a shift to merits

review’128. Lord Bingham has also taken the view that proportionality is a

more intrusive form of review than wednesbury but it nonetheless does

not amount to merits review as laid down in R (Begum) v Governors of

Denbigh High School129. However it has more fairly been put by Garreth

Wong that a test of proportionality that considers the merits of a decision

as a necessary prelude to a ruling on its legality is not trespassing on the

domain of the administration. The actual decision still lies in the hands of

the public body.130

However the Wong’s argument is fatally formalistic. He suggests that

there is no merits review as long as the decision- maker’s has the final say

regardless of how firmly the decision-maker’s hands are tied by the

court.On the contrary according to the theory of proportionality test the

amount of discretion granted to the administration can be so reduced in

125. R v Ministry of Defence, ex-parte Smith, (1996) Q.B. 517 (C.A.). 126. Supra note 124 at p. 26-27. 127. Tom Hickman, “ The Substance and Structure of Proportionality” , 2008, Public

Law 694, at p. 696-700. 128. Supra note 124, p. 28. 129. (2006) U.K.H.L. 15 at p. 30. 130. Garreth Wong, “ Towards the Nut Cracker Principle: Reconsidering the

Objections to Proportionality” , (2000) Public Law 92, at p. 102.

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scope by the proportionality principle that only a particular decisions will

remain legitimate131.Thus what Garreth Wong states would allow a court

in the course of applying the least restrictive alternative prong of a

proportionality test explicitly to rule out various courses of action that the

decision-maker might take and nonetheless claim that it was not engaged

in merits review and implausible proposition132.

In applying the balancing test of proportionality the court effectively

substitutes its view as to the correctness of the balance struck for the view

of the decision-maker i.e. it has full power to hold it proportionate or

disproportionate. It would stretch language beyond breaking point to

argue that an assessment of the balance struck does not require

consideration and possible reversal of the merits of the initial decision.

‘The decision as to whether a disadvantage is excessive will inevitably be

an evaluative one’.133

For Lord Hoffman was clear in the case of R (Begum) v Denbigh High

School134 that the ultimate determination of whether the balance between

a state interest and an individual convention rights was correctly drawn is

vested in courts which matters the result.135 At the very least

proportionality does entail some views about the merits since otherwise

the proportionality enquiry could not be undertaken.136

131. W. Van Gerven, “ The Effect of Proportionality on the Action of Member

States of the European Community: National View Point from Continental Europe” in E. Ellis (ed.), The Principle of proportionality in the Laws of

Europe, Oxford, Hart Publishing 1999, at 37-47. 132. J. Jowell, “ The Democratic Necessity of Administrative Justice”, (2006) Acta

Juridica 13, at p. 18-19. 133. Id. at 122. 134. Supra note 129. 135. Id. at para 68. 136. Craig P., Administrative Law, Sweet and Maxwell, London, 6th ed., 2008 p.

638.

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In some cases the commentators have argued that review for

reasonableness itself amounts to merits review.137 However the least

restrictive alternative and balancing test of proportionality require a much

more intrusive form of judicial review. A court employing proportionality

will go much further than merely assessing the reasonableness of the

decision under review.

Lord Slynn in R (Alconbury Ltd.) v Secretary of State for the

Environment138 held that it would be unnecessary and confusing to keep

proportionality and wednesbury apart in hermetically sealed containers.139

Craig has also argued in favour of proportionality on the basis that a

public body might have a particular ‘agenda’ which ought to be fleshed

out (or flushed out, as the case may be). ‘There is no transgression of the

proper limits of the judicial role where a measure is annulled for which

the public body can provide no convincing justification.’140

When we analyse the proportionality it seems that its test have nothing

new to offer to the existing laws and some test are not free of the defects

associated with wednesbury. The courts will only find in extreme

conditions that the aim of a state action is illegitimate or that the means

chosen for its implementation are unsuitable. However there may be

cases where the aim of state actions may be held to be illegal or the

express purpose of a legislation may be to infringe a fundamental right

like wise in the very recent case of Shreya Singhal v Union of India141

where Supreme Court of India held Section 66A of the Information

137. JosephP., Constitutional and Administrative Law of New Zealand, Sweet and

Maxwell, Wellington, 2007, at 824. 138. (2001) U.K.H.L. 23. 139. Id. at p. 51. 140. E. Ellis (ed.), The principle of Proportionality in the Laws of Europe, Oxford

Hart Publishing, 1999, 85 at 101. 141. W.P.(Criminal)No.167 of 2012 with W.P (Civil) Nos.21 of 2013, No.23 of

2013, No.97 of 2013, No.196 of 2014, No.758 of 2014.

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technology Act as being violative of freedom of speech which is a

fundamental right under the Constitution. But as a general rule if the

decision-maker is to avoid acting ultra-vires in the traditional sense of

exceeding stated powers by using the powers granted for improper

purpose the aim pursued must have been contemplated, implicitly or

explicitly by legislation. Leaving aside the unusual case where the aim is

itself illegal the use of power for an improper purpose causes a decision

maker to act ultra-vires by then the legitimacy test of proportionality adds

noting to the existing law.142

As a practical matter regards the suitability test it is unlikely that either a

legislature or a decision-maker will choose an unsuitable means to

achieve an aim. As a legal matter a decision-maker who did so would

presumably be subject to a holding of ultra-vires again in the sense of

using a power for an improper purpose. Much depends on how stringent

the test of suitability is? Arguably the test for suitability ought to be more

stringent where fundamental rights are infringed but the central point is

that the must state action must be suitable to achieve its ends. A court if it

concludes that a measure seems to have gone beyond what would have

suffice to achieve its purported legal aim it may be that the court suspects

that was not in fact the primary aim of legislation at all143.

Thus sometimes the means employed will cast doubt on the explanation

of the aim. However this is equally true of the explanation of the aim

under wednesbury. Usually a close connection will easily be established

between the legitimacy of the aim and the means chosen to achieve it. For

example in R (Daly) v Secretary of State for Home Deaprtment144 Lord

142. Cian. C. Murphy, Penny Green, Law and Outsiders: Norms, Process and

‘Othering’ in the 21st Century, Bloomsbury Publishing, 2011, p. 31. 143. Supra note 133 at p. 131. 144. (2001) U.K.H.L. 26.

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Bingham considered the ‘justifications’ offered by the Home Secretary

for a blanket policy on prison cell searches which was challenged as a

violation of Daly’s fundamental right to communicate with his legal

advisors. Without saying so expressly Lord Bingham conceded that the

policy had a legitimate aim. He said that it must be recognised that the

prison population includes a core of dangerous, disruptive and

manipulative prisoners hostile to authority and ready to exploit for their

own advantage or concession granted to them. Any search policy must

accommodate this inescapable fact145. It was then a short step to

concluding that the policy was suitable to achieve the aim by holding that

some examination may well be necessary to establish that privileged legal

correspondence is what it appears to be and is not a hiding place for illicit

materials or information prejudicial to security or good order146.

So the first two steps i.e. legitimacy test and suitability test of

proportionality add nothing to wednesbury. They do no more than restate

the traditional rule that a statute must be used for a proper purpose and

the delegated powers must be used further for the purpose of statute itself.

Coming to the least restrictive alternative test the assessment of fact that

whether there are alternative means less restrictive of the right or interest

in question thus require a more searching enquiry than wednesbury. The

point is that a reviewing court cannot hold that the least restrictive

method was not met without at the very least identifying an alternative

approach and as to why it would be less restrictive. In this sense

proportionality test does require a relatively more reasoned enquiry and

may require the courts to go into the merits of the case which is bound

and restricted in the scope of judicial review.

145. Id. at para 19. 146. Id. at para 17.

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As far as the balancing of interests test of proportionality is concerned

this test fails to provide a structure within which the balancing can take

place. The absence of a defined structure means that court may simply

identify the interest at stake and without more declare that the harm

caused was proportionate or disproportionate to the aim achieved. Thus

the balancing test is no less conclusory and contains no less ‘question

begging circulatory’ than wednesbury. The use of the term

‘proportionality’ instead does not mean that the real reasons for the

judicial intervention will be given147. A good example of this is the case

of R (Begum) v Governors of Denbigh High School148 the applicant here

was a student who had been refused permission to wear a jilbab a

garment worn by some female adherents to the Islamic faith because it

contravened the school’s uniform policy. She claimed that the restriction

on her choice of dress was an infringement of the freedom of religion. On

the question of proportionality Lord Bingham identified the relevant

factors to be weighed up and held that the school had reached a

conclusion that this restriction passed the proportionality test.

He held that the relevant factors identified by E.C.H.R. are the need in

some situations to restrict freedom to manifest religious belief the value

of religious harmony and tolerance between opposing or competing

groups and a pluralism and broad mindedness. The need for compromise

and balance the role of the state in deciding what is necessary to protect

the right and freedoms of others the variation of practice and tradition

among member states and the permissibility in some context of restricting

the wearing of religious dress - - - each school has to decide what uniform

if any will best serve its wider educational purpose. The school did not

147. S. Boyron, “ Proportionality in English Administrative Law : A Faculty

Translation” , Oxford Journal of Legal Studies, 1992, at p. 254. 148. (2006) U.K.H.L. 15.

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reject the respondents request out of hand, it took advice and was told that

its existent policy confirmed with the requirements of main stream

Muslim opinion on the agreed facts that the school was in my opinion

fully justified in acting as it did. It had taken immense pains to devise a

uniform policy which respected Muslim beliefs but did so in an inclusive

unthreatening and uncompetitive way - - - on further enquiry it still

appeared that the rules were acceptable to mainstream Muslim opinion. It

was feared that acceding to the respondents request would or might have

significant adverse repercussions. It would in my opinion be irresponsible

for any court, lacking the experience background and detailed knowledge

of the head teacher, staff and governors to overrule their judgement on a

matter as sensitive as this149.

From above decision it is difficult to identify the prongs of

proportionality test under consideration. But one may assess to a certain

extent that the legitimate aim of balancing the need for discipline with the

need to accommodate the religious beliefs the suitability of the policy to

achieve the aim the least restrictive alternative of permitting the wearing

of some religious garments and the proportionality of requiring a small

interference with the students choice of garments in order to foster a

harmonious educational environment. But far from being clearly spelled

out the four test are buried in a handful of paragraphs.

It is difficult to see how the learned court’s conclusion is any less

conclusory that one reached to a pursuant of wednesbury appraoch150.

Proportionality may sound more attractive than wednesbury but it suffers

from a lack of clarity. What exactly it is does it require to be 149. Id. at p. 32-34. 150. Paul Daly, “ Blown out of Proportion: The Case Against Proportionality as an

Independent Ground of Judicial Review” quoted inCian C. Murphy, Penny Green, Law and Outsiders : Norms, Process and Othering in the 21st Century, 2011, Bloomsbury Publishing, p. 35.

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proportionate to the relevant rights, interests, or duties, or liabilities, to be

identified? Proportionality per se does not answer these pressing

questrions151.

One other point which is also relevant in this respect is that under the

least restrictive alternative test of proportionality the court weighs

alternative means against the means chosen to ascertain whether

alternatives to those chosen would have caused less harm to individual

rights and interests. But in every case the legislature has affirmatively

chosen a particular course of action over others or has at least envisaged a

range of particular courses of action and delegated the choice between

them. K.C. Davis puts it more clearly in his own words that the typical

administrator or legislator long before he gets round to preparing rules on

a subject has formulated in his own mind and perhaps even in his files

some firm answer to significant hypothetical cases on each side of a line

that must eventually be drawn152.

Critically the delegation was to a body other than court. Naturally a

choice by the decision-maker outside the range envisaged by the

legislature would be ultra-vires and a reviewing court would be permitted

to intervene. However legislative intent cannot be taken to permit a court

to second-guess the ‘choice of means’ employed to achieve the

legislature’s aim. It only permits a court to say that the means chosen was

an improper use of statutory power. The basic constitutional principle that

effect be given by courts to the intention of the legislature is incompatible

with a least restrictive analysis under a proportionality test unless the

151. T. Hickman, “ The Substance and Structure of Proportionality” , 2008, Public

Law. 694 at p. 701-711. 152. Davis K.C., Discretionary Justice: A Preliminary Enquiry, Green Wood Press,

New Heaven, 1969, p. 60.

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legislature has manifested in legislation a desire that proportionality be

applied or employed.

There is also the problem of encountering of institutional difficulties in

applying the least restrictive alternative test by the courts. There is a

serious risk of ‘protected trials’ in which courts decide upon the most

appropriate means of achieving a complex or inherently political aim153.

The courts are ill equipped as compared to legislatures and administrative

bodies to engage in such decision-making. It has been well said that

deciding between alternative courses of action is paradigmatic of the

sought of polycentric decision where a court decision would pull on a

‘spider's web’ of interwoven policies, possibly causing the web to

unravel, or at least to cause avulsive changes in its shape, with attendant

unintended consequnece154. Thus the correct or appropriate forum for

making the complex decision between various means of achieving an aim

is the political one where competing interest can make their voices heard.

Numerous proposals can be suggested and expert administrators or

elected representatives can strike a proper balance between competing

interest and public good. It is indeed questionable whether courts can

shoulder this responsibility in the manner desired. It may be argued that

the difficulties created for the courts can be resolved by procedural

reforms155. However in such case the procedural reforms would come

before proportionality. If it is deemed appropriated to introduce

proportionality then a case can be made for procedural reform but

procedural reform ought not to be undertaken in order to smooth the path

for proportionality.

153. Supra note 140 at p. 102. 154. Fuller L., “ The Forms and Limits of Adjudication”, (1978) 92 Harvard Law

Review 353, at p. 995. 155. See also Griffith I.A.G., ‘Judicial Decision Making in Public Law’ , 1985,

Public Law 564.

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Another problem with proportionality is that it itself says nothing about

‘curial deference’. Curial deference is a way of expressing the notion that

when the legislature sets up a specialised tribunal invest it with broad

powers and incorporate a privative clause into enabling statute. It is

telling the courts that it intends the tribunal to have the rights because it

understands the subject matter better than judges do to make decisions

which the judges might think to be wrong decisions. Putting it another

way where, by the terms of its legislation, the legislature requires ‘curial

deference’ the courts are bound where no constitutional question arises to

obey the legislature and not subvert its intention156.

In Clansey v New Foundland157 Justice Puddester observed that the

concept of curial deference to the decisions of lower tribunals where

those tribunals are intended and considered to have a degree of expertise

and particular knowledge surrounding the issues on which they are

mandate to adjudicate.

The basics for this approach are the concept that administrative tribunals

are set up to replace courts in areas where specific experience are

required.

The court further explained that it has been recognised that a labour board

is a specialized tribunal which administers a comprehensive statute

regulating the complex field of labour relations. The courts are expected

to show deference to the expert knowledge and experience acquired by

the board through its involvement and participation in developing the

collective bargaining regime established by labour codes. If courts too

easily characterise powers accorded to the board as provisions which

156. www.duhaime.org/Legal Dictionary/c/Curial Deference.aspx, assessed on 27-

11-2014. 157. 566 A.P.R. 1 (2000).

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limit jurisdictions then courts effectively usurp the role which Parliament

after careful considerations accorded to the labour tribunal158.

It is respectfully submitted that this theory holds good for the labour

tribunals and administrative tribunals set up in India who possess expert

knowledge regarding issue of cases they deal.

The courts generally say nothing about curial deference except only that

it will be taken into account within the stages of proportionality

enquiry159. It has been said that proportionality permits variable standards

of review. The appreciation of the open textured nature of proportionality

is honest but it gives the lie to any notion that proportionality can replace

or obviate a free standing doctrine of curial deference.160 If curial

deference is to be built into proportionality test it remains necessary to

articulate a doctrine of curial deference. It can be said that as the

legislature treats different delegated decision-makers differently (in terms

of statutory language and structure) and because delegated decision-

makers are different in terms of relative institutional competence then the

courts must also treat them differently and apply variable standards of

review in order to give effect to the legislative intent161. The issue of the

elaboration of a doctrine of curial deference to guide judicial review is

not at all addressed by proportionality. Moreover much criticized

wednesbury is capable of accommodating curial deference in form of

variable standards of reveiw162. Moreover certain doctrines of curial

deference would not be compatible with proportionality. This is because 158. Ibid. 159. P. Craig, “ The Courts, The Human Rights Act and Judicial Review”, (2001)

117 Law Quarterly Review 589, at p. 595-596. 160. See alsoInternational Transport Roth Gmbh v Home Secretary, (2002)

E.W.C.A. Civ. 158 at 83-87. 161. Lacobucci F., “ Articulating a Rational Standard of Review Doctrine: A Tribute

to John Willis” (2002) 27 Queen’s Law Journal 859, at 872-873. 162. Ellitt M., “ The Human Rights Act 1998 and the Standards of Substantive

Review” , (2001) 60, Cambridge Law Journal 301, at p. 313.

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proportionality grants the courts alone the power to determine whether

the state action at issue survives the four tests of proportionality. While a

court in the final analysis must judge whether a decision of the authority

is proportionate or disproportionate. A doctrine of curial deference that

precludes certain judicial decisions compromises the judicial role. It

would flatly contradict the basis of proportionality if courts reviewed

decisions for proportionality while also applying standards of judicial

review that would only allow decisions to be quashed for ‘patent

unresaonableness’163 or where no relevant evidence164 was before the

decision-maker.

.Considering the deficiencies in application of proportionality as

discussed above it may be concluded that proportionality application by

the courts has its own problems and it has little to say about the most

important issues in the world of modern administrative law. The most

pressing problem facing administrative law today is how to develop an

appropriate relationship between the courts and the decision-makers or

administrative wing. At the end it would be fruitful to analyse the words

of a leading practitioner that whichever way you dress up the elements of

the proportionality test in the end knowledge of which judge (or judges)

will decide your case will tell you in advance whether you are likely to

win or lose.

163. Dr. Q v College of Physicians and Surgeons, (2003) 1 S.C.R. 226 (Canada). 164. O’ Keeffe v An Board Pleanala, (1993) 1 I.R. 39 at p. 72 (Ireland).

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CHAPTER-IX


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CHAPTER IX


Administrative discretion is an essential part of the modern administrative

state which takes on itself a lot of activities which touch the rights, life

and liberties of an individual citizen. The rule of law does not tend to

exclude it alltogether but it only seeks to control its exercise and maintain

it in order to prevent its abuse.

There are the developments in internal controls from within the

administration but inspite of this an independent control through judicial

system is an essential ingredient of rule of law.

The idea of discretion which is to be exercised should not be in a

capricious and impetuous way but in a disciplined and responsible

manner. It really represents a compromise between the ideas that people

who posse's power should be trusted with a free hand and not tied down

by narrow formulas and the competing notion that some contingent

control must be retained over them in case they act in an unreasonable

way. Discretion in public affairs is seldom absolute and is usually

qualified. The vesting of discretion per se would not be unreasonable.

Unreasonability is to be found in its exercise and not in existence. Even if

no guidelines are laid down for the exercise of discretionary powers, the

rules which confer the power need not be struck down but only the actual

exercise of power under it which is unreasonable on discriminatory will

be quashed.

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The judicial trend now is to uphold the conferment of discretion but

impose restraints on its unreasonable exercise. Most executive actions

have an element of discretion about it. Barring cases where the statutory

provision or uncodified law in issue is mandatory, the administrative

authority would be faced with the question 'to act or not, and if to act then

to act in what manner’. Courts are primarily concerned with the manner

of exercise of discretion and not with its matter unless the questions of

reasonableness are involved. The direction is of the authority and not the

Court. Administrative law builds up the unwritten rules that supplement

the written rules conferring the discretion. Its function is to define the

principles which demarcate the boundaries of discretion exercised

properly.

In the matter of administrative law there have been tremendous changes

in last decades. Though the rights of superior court to invoke judicial

review is guaranteed by the Constitution of India its content, reach and

power and the balance between various principles are not incorporated in

any provisions of the Constitution. In this field various principles have

been enunciated on basis of notions of fairness which are the heart of the

principles of the Constitution. The 'Principles of Proportionality' have

given way to Wednesbury principles and the outlook of judiciary has also

accordingly changed. Unreasonableness is struggling to survive as a

coherent and useful ground of review. Its days are surely numbered as a

tool for dealing with Constitutional and Convention Right Claims i.e.

proportionality or merits review have already stepped in. Even in relation

to domestic law judicial review too much seems to be required of the

unreasonableness ground. Without developing a robust set of principles to

guide it, the appratus for variable intensity seems less than clear in

practice.

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The traditional theory of ‘laissez-faire’ has been given up by the state and

the old ‘police state’ has now become a ‘welfare state’. Due to increase in

governmental functions, the administrative authorities have acquired vast

discretionary powers and generally the exercise of those powers is left to

the subjective satisfaction of the administration without proper lying

down of statutory guidelines or imposing conditions.

The modern state functioning involves lots of activities which affect the

rights, liberties and freedoms of individual and administrative discretion

is a necessity for functioning of a modern welfare state. Conceptually or

otherwise by rule of law, the exercise of discretion by the administration

is not forbidden but it is felt that arbitrary or uncontrolled discretion

would disbalance the very concept of welfare state hence some control on

exercise of discretion is necessary.

The degree of administrative discretion should often be more restricted.

Some of the restrictions can be put by legislators but most of this task

must be performed by administrators. Discretion is derived from

legislation or regulations but it did not stop there. The degree of

discretion depends not only on grants of authority to administrators but

also on what they do to enlarge their powers.

Even when rules can be written, discretion is always better. Rules without

discretion cannot fully take into account the need for tailoring results to

unique facts and the circumstances of a particular case. The justification

for discretion is often the need for individual justice. Every governmental

and legal system in world history has involved both rules and discretion.

No government has ever been a government of laws and not of men in the

sense of eliminating all discretionary powers.

The gamuts of activities that are being left to administrative control are

ever increasing. More and more discretion is being given to

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administrative authorities to arrive at decisions without interference from

other bodies. It has the freedom to decide between alternative approaches

as per its best judgement. Such wide powers conferred in administrative

authorities is likely to invite the abuse of discretionary powers like

exercising the powers in bad faith for improper purposes or where the

authorities may take into considerations and irrelevant grounds or fail to

take into consideration and relevant grounds etc. Thus a mechanism

which is neutral and independent like the judiciary is necessary for

controlling the abuse of discretion.

Despite the seemingly wide freedom the Courts in India have taken a

leave from English Courts in that they have curtailed the discretionary

power by ensuring that it is within the limits prescribed by the statute is

fair, just and based on relevant grounds and good faith. It is true that

judicial control of abuse of discretionary powers is controlled by way of

judicial review and the courts as a basic principle cannot go into the

merits of the case. But the courts do ensure that the discretionary power is

in line with the statute or legislation that creates such power and even in

absence of it, the general rules of natural justice are brought into

consideration by the courts.

If the purpose of the rules of natural justice is to prevent miscarriage of

justice, one fails to see why those rules should not be made applicable to

administrative proceedings also. Especially when it is not easy to draw

the line that demarcates administrative enquiries from quasi-judicial ones

and an unjust decision in an administrative enquiry may have a more far

reaching effect than a decision in a quasi-judicial enquiry.

Judicial review is of prime importance in dealing with the malignancy in

the exercise of power. However, in the changed circumstances of socio-

economic development in the country, the court is emphasizing self-

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restraint. Unless the administrative action is violative of law or the

Constitution or is mala fide or arbitrary, Courts should not interfere in

administrative decisions. Moving in this direction, normally the courts

should not interfere in policy matters which are within the purview of the

Government unless it is shown to be contrary to law or inconsistent with

the provisions of the Constitution. This principle of judicial review is not

a matter of exclusion of the power of judicial review but of judicial ‘self-

restraint’.

There are various instances where administrative action lapses have

resulted in great loss to the country.

The case of coal scam in which the government extended undue benefits

totalling a mind blogging Rs. 10.67 Lakh Crore to commercial entities by

giving them 155 Coal acreages without auction between 2004 to 2009.

Then another example is the 2-G spectrum case where 2-G license were

issued to private telecom players at throwaway prices in 2008. No proper

bids were invited, procedures were not followed and rules were changed.

Judicial review of administrative discretion is inherent in all written

Constitutions which are based on rule of law and separation of powers

including India. It is considered as the basic feature of our Constitution

which cannot be abrogated even by exercising the constituent power of

Parliament. It is the most effective remedy available against the

administrative excesses. It is positive sense among the masses that if the

administration under takes any work it is acting under discretionary

power conferred upon it either by statutory rules or under the provisions

of the Constitution. If there is failure to exercise discretion or there is

abuse of discretionary power to settle its score or gain any private profit,

then there is option before the public to go to judiciary under Article 32,

136 or 226 of the Constitution of India.

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The main purpose of judicial review is to ensure that the laws enacted by

the legislature confirm to the rule of law and that there is no abuse of

power by the legislature or the executive body. It is for the executive to

administer the law and the function of judiciary is to ensure that

government carries out its duty in accordance with the provisions of the

Constitution of India.

It is not proper to think that administrative law is necessarily antagonistic

to efficient government. Intensive administration will be more tolerable to

the citizen and the Government’s path will be smoother where the law

can enforce high standards of legality, reasonableness and fairness. Nor

should it be supposed that the continuous intervention of the courts,

which is so conspicuous means that the standard of administration is low.

It was well observed by Sir John Donaldson M.R. in the case of R v

Lancashire C.C. ex-parte Huddleston, [(1986) 2 All E.R. 941] that

notwithstanding that the courts have for centuries exercised a limited

supervisory jurisdiction by means of the prerogative writs, the wider

remedy of judicial review and the evolution of what is, in effect, a

specialised administrative or public law court is a past war development.

This development has created a new relationship between the court and

those who derive their authority from public law, one of partnership

based on a common aim namely the maintenance of the highest standards

of public administration.

With a few exceptions all public authorities conscientiously seek to

discharge their duties strictly in accordance with public law and in

general they succeed. But it must be recognised that complete success by

all authorities at all times is a quiet unattainable goal. Errors will occur

despite the best of endeavours. The courts for their past must and do

respect the fact that it is not for them to intervene in the administrative

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field unless there is reason to enquire whether a particular authority has

been successful in its endeavours. The court must recognize that where

errors have or are alleged to have occurred it by no means follows that the

authority is to be criticized. In proceedings for judicial review the

applicant no doubt has an axe to grind. This should not be true of the

authority. The contribution that the law can and should make is creative

rather than destructive.

The connecting thread which runs throughout is the quest for

administrative justice. At every point the question is, how can the

profession of the law contribute to the improvement of the technique of

government? It is because all the various topics offer scope for this

missionary spirit that they form a harmonious whole. Subject as it is to

the vast empires of executive power that have been created, the public

must be able to rely on the law to ensure that all this power may be used

in a way comfortable to its ideas of fair dealing and good administration.

As liberty is subtracted, justice must be added. The more power the

government wields, the more sensitive is public opinion to any kind of

abuse or unfairness. The work of judiciary and administration amounts to

an extensive system of protection in a welfare state.

This view can be supported the decision on given in Tata Cellular v

Union of India [(1994) 6 S.C.C. 651] the court laid down some important

principles namely the modern trend points to judicial restraint in

administrative action; the court does not sit as a court of appeal over

administrative decisions, but merely reviews the manner in which the

decisions are made; the court does not have the expertise to correct

administrative decisions. If a review of administrative decisions is

permitted it would be substituting its own decisions without the necessary

expertise, which itself may be fallible; he government must have freedom

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of contract. In other words, a fair play in the joints is a necessary

concomitant for the administrative functioning; and however, the

administrative decisions can be tested by application of the Wednesbury

principle of reasonableness and must be free from arbitrariness, bias or

mala fides.

The control on discretionary powers of the administration is of two kinds.

The first is the statutory control. These are given in the statute or the rules

or regulations made under the statute. Any executive action in violation

of same will be declared illegal by the court by applying the doctrine of

ultra-vires. An executive authority may also act unlawfully where it fails

to perform a duty imposed upon it by a statute such as maintenance of

civic services like sewage, drainage and water supply etc., by the

municipalities or other local bodies whose duty under the statute is to

maintain such services.

Next, there are non-statutory controls, in which by way of powers of

judicial review conferred on the courts. The courts in order to control the

excesses and abuses of powers of administrative discretion by the

executive authorities have developed some principles in order to assess

the amount of misuse and the extent of misuse if any by the authorities.

Some of the important principles are the Wednesbury principle and the

principle or doctrine of proportionality.

Up to 1947 the law in England was that the courts could interfere only

with judicial or quasi-judicial decisions and not with administrative

decisions.

The legal position changed after the decision of Lord Greene in

Wednesbury case in which it was said that a person entrusted with

discretion must direct him self properly in law. He must call his attention

to matters which he is bound to consider. He must exclude from his

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consideration, matters which are irrelevant to what he has to consider. If

he does not obey those rules he may truly be said to be acting

unreasonably. Similarly there may be something so absurd that no

sensible person could ever dream that it lay within the power of authority.

The courts often intervene to quash as illegal the exercise of

administrative discretion on the ground that it suffers from Wednesbury

unreasonableness.

The Wednesbury principle is often misunderstood to mean that any

administrative decision which is regarded by the court to be unreasonable

must be struck down. As rightly observed by Lord Diplock in CCSU

[(1984) 3 All E.R. 935 (HL)] case, a decision will be said to suffer from

Wednesbury unreasonableness if it is so outrageous in its defiance of

logic or of accepted moral standards that no sensible person who had

applied his mind to the question to be decided could have arrived at it.

The common law as well as the Indian Law has significantly evolved

since the decision in the CCSU case. The principle or doctrine of

proportionality evolved wherein the administrative decisions begin to be

scrutinised by the courts on the threshold of balancing of the decisions of

the administration. This principle involves the theory that for attaining the

desired result, the administrative action taken must not be in excess of

what is necessary. It involves various tests like the legitimacy test of the

measures taken by the authority, the suitability test to determine the

extent to which the protection of right and the legitimate goal clash, the

necessity test to enquire about the use of least restrictive means and

finally the balancing test where the court weighs the benefit of action

against the infringement of rights. This principle was liberally adopted

and is being adopted till date by the courts in deciding the legitimacy of

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exercise of the discretionary powers by the administration all over the

world including India.

As far as the British Courts are concerned they impose one standard of

review for administrative action that impacts on rights protected by the

European Convention on Human Rights and a less stringent standard for

other decisions. The current position can be summed up as we are

witnessing a reconfiguration in the law of judicial review and intimation

which can be found on the surface of both the cases and the commentary.

The language of wednesbury unreasonableness and ultra-vires

increasingly gives way to talk about rights, proportionality and

dereference. This semantics recasting of judicial review reflects deeper

mutations that go to the very heart of the discipline.

The U.K. position is somewhat complicated by the fact that the Human

Rights Act, 1998 has incorporated the European Convention on Human

Rights into U.K. law. The result has been that substantive review of

administrative decision - making in U.K. is expressed to be on different

bases depending on the type of law in question. While considering that

E.U. laws applicability in the U.K., or U.K. laws expressly implementing

E.U. laws in Britain (Such as the Human Rights Act), British courts have

undertaken a form of proportionality review common to European legal

systems. In cases not involving any form of E.U. law, British courts have

moved to a ‘sliding scale’ of reasonableness. Ian Turner comments that

the proportionality test is clearly a searching method of review and

project courts more into the role of the primary decision-maker than the

irrationality test which simply requires the decision-maker to remain

within an area of reasonable response.

It was judicially recognised by the House of Lords in Daly case where it

was stated that the acceptance of proportionality review for Human

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Rights Act issues does not mean that there has been a shift to merits

review. But surely any kind of review on the basis of unreasonableness or

even patent unreasonableness is a form of merit review. In any such case,

the court is examining the substance of the decision and determining

whether it meets a minimum level of reasonableness. This is so regardless

of the degree of deference to be given to the primary decision-maker.

The view that there is no real difference between merits and

proportionality review has also been taken up by a number of

commentators. Bradley Selway has noted that the new English approach

(proportionality) clearly permits merit review subject only to whatever

forbearance to the judge as a matter of policy, is prepared to give.

Michael Taggart has made similar comments that first, by definition,

proportionality review is much closer to merits review than variable

intensity unreasonableness review, notwithstanding British denials.

Secondly, the proportionality methodology is best powered by a list of

enumerated rights otherwise it loses much of its much admired, analytic

and structuring qualities. Ian Turner has also argued that there is no real

distinction between proportionality or indeed ‘variable intensity

irrationality’ review but comes to the conclusion that the court would be

best off turning to the Wednesbury kind of analysis as a result. Those

individuals who supports for a greater degree of intensity of review by the

courts over administrative decision-making arguably do not wish to

witness a complete merger of the judicial and executive functions. There

must still be a threshold over which a supervisory court is not permitted

to step. But it is the identification of such a threshold as the judicial

substitution of executive judgement. The author of this study does not

believe so that the court should prevent to more orthodox principle of

public law.

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Unreasonableness is an apparently straight forward and simple test may

fail in objectively assessing what would amount to 'unreasonable'. There

is also an inherent complexity in a large amount of subjectivity playing a

major role in identifying unreasonableness.

The future of Wednesbury unreasonableness as a ground of review looks

uncertain. The adoption of proportionality as a ground of review has

made Wednesbury unreasonableness almost unnecessary as almost

anything which is Wednesbury unreasonable would automatically be

disproportionate.

However the concept of unreasonableness is surrounded by scope to more

act and also of freedom to choose which gives enough scope for judicial

innovation and application of judicial wisdom. Thus the concept of

unreasonableness is open ended and has enough scope for developing

various principles and standards depending on the circumstances

prevailing at any time. The categories of unreasonableness are never

ending and shall be in existence at any given time.

Time has yet not come to say goodbye to Wednesbury for ever.

Wednesbury even today finds it presence in domestic law where the

violations of ordinary right of citizens are concerned both in United

Kingdom as well as in India. Despite numerous criticisms of the

restrictive and unrealistic high thresholds set by the Wednesbury test it

would continue to exist and be used would over.

The problem is that even the orthodox Wednesbury approach is really a

form of merits review with degree of deference given to the decision-

maker than the proportionality approach. It is simply impossible to

identify a bright line delineating reasonableness, proportionality and

merits review.

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While it is important to distinguish between judicial and merits review.

The difference is really only one of degree that degree being the degree of

deference given to the decision-maker. It can also be supported by Mark

Aronson comments that judicial review’s professed indifference to the

substantive merits of the impugned decision is not always convincing,

and not ultimately reconcilable.

It is true that the courts have wide powers of judicial review of

constitutional and statutory provisions. These powers however must be

exercised with great caution and self-control. Judicial review has some

inherent limitations. It is suited more for adjudication of disputes than for

forming administrative and legislative functions. Each branch of State is

assigned its duties that is executive to administer the law, legislative to

enact the law and the prime function of judiciary is to ensure that the

Government carries out its duties in accordance with the provisions of the

Constitution.

The courts are not supposed to interfere with the functions carried out by

the executive or legislative body, just on the idea that the decision or

action of those bodies are not according to the perception of the judiciary.

In fact the intervention of the courts is only required in cases where the

actions and decisions of those bodies are violative of Constitutional

provisions or where the decision is not taken according to defined

procedures or those bodies have acted unreasonably, arbitrarily or in an

unfair manner. The main idea is that the court has to keep a distinction

between an appeal an judicial review. Where there is no provision of an

appeal the courts are free to exercise judicial review unless and until such

review has been specifically barred by the legislation. The merit of the

case the decision reached by the administrative bodies etc. is generally to

be kept outside the scope of judicial review. The judicial review should

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only be concerned about the legality of the action or decision. The

appellate bodies have the function and they can substitute the decision or

action of an executive body with their own decisions. This is the basic

reason sometimes legislature in some cases gives no right to appeal on the

decision of the executive body and in such cases the court has no right to

interfere. Thus judicial review has to have its own limits and limitations.

Thus it is an integral principle of our constitution that no one, how so

ever highly placed and no authority what so ever can claim to be sole

judge of its power under the Constitution. Rule of law directs that the

exercise of powers be it by the executive or the legislation or even the

judiciary must be conditioned by the Constitution. Judicial review is the

touch stone and repository of supreme law of the land.

In recent times, the scope of judicial review has extensively increased.

The state activities have become pervasive and giant public corporation

has come in existence. Thus a more intensive and wider judicial control is

the requirement of today.

Review for reasonableness for e.g. clearly involves an examination of

impugned decisions, merits and albeit from a perspective of a large

degree of deference. But even though the difference between judicial

review and merits review may at places be only one of degree and it is

important to maintain that difference. Judicial deference to the views and

actions of the primary decision-maker is in one sense the essence of

judicial reviews technique. That difference is underpinned by a political

sense of the courts secondary role in relation to the primary decision-

maker and by the practical sense of the later institutional competence in

the substantive issues related to that of the court.

The former Chief Justice of High Court of Them, Australia Sir Anthony

Mason has expressed the similar view that one aspect of proportionality is

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the tendency to offer a margin of appreciation to the executive in its

weighing of the competing claims of individual and the public interest. It

is the existence of this margin of appreciation accorded to the decision-

maker that distinguishes proportionality from merits review. It is

preserved area of residual discretion to the decision-maker so that

proportionality does not lead to the court deciding whether the impugned

decision is correct.

Julian Rivers also argues that a properly formulated standard of

deference will also prevent a court from engaging in merits review. He

says that this (a proportionality approach) does not mean that the court

increasingly displaces the executive and the legislature in matters of

factual expertise and policy choice. Rather, it means that the more serious

a limitation of rights is the more evidence the court will require that the

factual basis of the limitation has been correctly established and the more

argument it will require that alternative less intrusive policy choices are

all things considered less desirable.

Proportionality is now a global phenomenon. It is considered as the main

pillar of constitutional adjudication worldwide and a defining feature of

global constitutionalism. David M. Beaty argues that proportionality has

a universal value. He finds that proportionality is a neutral principle

which, when applied properly, requires judges to assess the decision in

question from the stand pint of those who derive its greatest benefits and

those to stand to lose the most.

The Proportionality principle in nowhere expressly contained or

referenced in the text of a Constitution but has been implied by the Court

as the proper methodology for applying textual limitation clause.

Proportionality principle determines whether the means employed by the

government to promote its conflicting public policy objective are

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justified. Most countries also apply a prior or threshhold test to the

objective itself. For example, under the Oakes test, the Supreme Court of

Canada first asks whether the government objective in question is of

‘sufficient importance to warrant overriding a constitutionally protected

right on freedom’ and that it is necessary, at a minimum that an objective

relate to concerns which are pressing and substantial in a free and

democratic society before it can be characterized as sufficiently

important.

Although the proportionality test is fairly uniform, it is applied with

variations by court in different countries. Court of certain countries like

Canada and Germany employ a more formalized version in which the test

are considered separately and in order i.e. only when previous test is

satisfied, only then the court moves to next test. By contrast, the South

African Constitutional Court and the European Court of Human Right

tend to employ a more, all-things- considered version without breaking

down the test into parts. The United States does not apply the test for

determining limits on Constitutional right are justified.

However, though it has transcended borders, proportionality does not

mean the same thing across those borders. There are national differences

in the proportionality doctrine. Across the globe the national Supreme

Courts derive their understandings of proportionality from their own

domestic constitutional text and values.

In Canada, Israel and South Africa e.g., proportionality is entrenched in

ideas of pluralism and democracy, whereas the European court of Human

Rights and, to an extent the Supreme Court of India find proportionality

embedded in the right to equality.

In India proportionality is not a structured test. The Indian formulation of

public law proportionality resembles Wednesbury review Proportionality

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under the eighth amendment to the U.S. Constitution or the

proportionality approach ordinarily seen in criminal law. While invoking

the proportionality doctrine in public law sphere in India the Supreme

Court of India uses proportionality doctrine in a very different sense from

that used in U.K.

From a brief study of cases discussed above it may be concluded that the

courts in India have applied the principle of proportionality since 1950 in

cases from virtually every field including labour law, service law,

criminal jurisprudence, cases between individual and individual, cases

between individual and government as also in cases relating to

interdepartmental and different wings of government, though till late

1990 the word proportionality did not expressly figure in the decisions.

However, the spirit of the doctrine was followed and the courts in India

may be said have even too gone beyond the English or American Courts

outlook. However the cautions and factors to be borne in mind while

deciding the cases on basis of principle of proportionality have at all

times been explicitly or implicitly expressed by the Supreme Court and

the High Courts in India in its various decisions.

The Supreme Court of India’s largest set of proportionality decisions in

public law spheres deal with public sector employment especially with

the cases of government employees who have been dismissed from

services. Some examples are Om Kumar v Union of India [(2001) 2

S.C.C. 386], Ranjit Thakur v Union of India [(1987) 4 S.C.C. 611],

Canara Bank v V.K. Awasthi [(2005) 6 S.C.C. 321] and Government of

India v George Philip [AIR 2007 S.C. 322] etc. In each of such cases the

government as employer dismissed the employee for misconduct. The

employee submitted to the Supreme Court that his order of dismissal was

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not proportional to the misconduct committed. In all these cases the

employee claimed a violation of his right to equality under Article 14 of

the Constitution of India.

Before the year 2000, the Supreme Court of India was having mixed

feelings about the use of proportionality doctrine in India in public law.

In Ranjit Thakur v Union of India [(1987) 4 S.C.C. 611], the court

referred to Lord Diplock’s opinion in CCSU case [(1985) A.C. 374]

where the possible adoption in future of the principle of proportionality

was not ruled out. The court articulated a proportionality test for India

that sounded very similar to the Wednesbury test. The government’s

decision under challenge would be invalidated if it was so

disproportionate to the offence as to shock the conscious of the court.

The ambivalence of the court towards proportionality became apparent

by the end of 1990’s. In State of U.P. v Nand Kishore (AIR 1996 DS.C.

1561) is the single case where the court categorically held that the

proportionality doctrine did not apply in an administrative law case but a

year later in the case of Union of India v G. Ganayutham (1997 7 S.C.C.

463) it avoided deciding whether the proportionality doctrine applied in

public law cases altogether leaving the question open for the future.

The appropriate case came in the year 2000 i.e. the case of Om Kumar v

Union of India [(2001) 2 S.C.C. 386] in which the court was looking into

punishments imposed on certain employees of the Delhi Development

Authority. In this case it was held that since India had a chapter on

fundamental rights in the written Constitution. Some form of means-end

analysis resembling proportionality had existed in Indian Public Law

since 1950, and that proportionality had been vigorously applied in India

to both legislative and administrative action.

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Moreover, referring to Lord Bridge’s opinion in R v Secretary of State

for the Home Department ex-parte Brind [(1991) 1 A.C. 696] the court

observed that where convention rights were in question, the English

Courts exercised power of ‘primary review’, and where ‘non-convention

rights’ were involved, they exercised powers of secondary review based

on Wednesbury unreasonableness. The court acknowledged that

proportionality was a more fatal test than Wednesbury unreasonableness.

Using this analysis, the court developed a bifurcated framework for

applying the proportionality doctrine in India. In cases where

administrative action was challenged for being discriminatory (i.e.

directly violating the right to equality under Indian Constitution), the

court was to apply the proportionality test as a primary reviewing

authority but where an administrative action was challenged as being

merely ‘arbitrary’ (i.e. for indirectly violating the right to equality) the

court was to apply Wednesbury test, and plays secondary role. Since

public sector employment cases where the quantum of punishment is in

question are typically considered ‘arbitrariness’ cases, the Court held that

proportionality doctrine would not apply in such cases.

Following this decision any reference to phrase shockingly

disproportionate in Supreme Court decisions concerning public sector

employment must be therefore be taken as references to Wednesbury

unreasonableness and not proportionality. After this case, the Supreme

Court of India used ‘shockingly disproportionate’ reformulation of

wednesbury unreasonableness in many cases like Dev Singh v Punjab

Tourism Development Corporation[(2003) 8 S.C.C. 9] and Damoh

Pamna Sagar Rural Regional Bank v Munna Lal Jain [(2005) 10

S.C.C. 84] etc. In none of these cases the Court applied the

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proportionality doctrine. What was being applied was a reformulation of

Wednesbury unreasonableness.

Later however, in Commissioner of Police v Syed Hussain [(2006) 3

S.C.C. 173] the court held that a public authorities decision would be said

to have complied with the proportionality doctrine if the decision was not

‘wholly disproportionate’. Also in Management of Coimbatore District

Central Cooperative Bank v Secretary, Coimbatore District Central

Cooperative Bank Employees Association [(2007) 4 S.C.C. 669] the

court without even citing Om Kumar case held that proportionality had

not only arrived in Indian legal system but it had come to stay. But the

court held that doctrine of proportionality in India was different-not

balancing and necessity, but words to the effect of shockingly

disproportionate. The court observed that so far as our legal system is

concerned, the doctrine of proportionality is well settled. Even prior to

CCSU, the court has held that if punishment imposed on an employee by

an employer is ‘grossly excessive, disproportionately high or unduly

harsh’, it cannot claim immunity from judicial scrutiny, and it is always

open to a court to interfere with such penalty in appropriate cases.

It was evident in Om Kumar case that the words ‘shockingly

disproportionate’ were not a reference to proportionality doctrine but a

reformulation of Wednesbury unreasonableness. Now without even citing

Om Kumar case the Supreme Court of India held that the ‘shockingly

disproportionate’ reformulation was in reality the proportionality doctrine

all along not Wednesbury unreasonableness.

This theory was repeated in State of M.P. v Hazarilal [(2008) 3 S.C.C.

273]. Where the court not merely held that ‘shockingly disproportionate’

test was the proportionality doctrine itself but that Wednesbury principle

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of unreasonableness had been altogether replaced by the proportionality

doctrine in India.

What was once an irritation of Wednesbury unreasonableness is now

masquerading as the proportionality doctrine in India. The Supreme Court

of India is clearly not structuring its analysis through the prism of the

systematic four pronged test of proportionality or intrusively seeking out

whether the government actions were ‘disproportionate’ in comparison

with the offence or misconduct or even infringement of rights and

freedoms. The proportionality doctrine in India sounds remarkably close

and similar to the doctrine of Wednesbury unreasonableness. This has

aptly been demonstrated in cases like Coal India Limited v Mukul

Kumar Chowdhary [(2009) 15 S.C.C. 620] Chairman All India Railway

Recruitment Board v K. Shyam Kumar [(2010) 6 S.C.C. 614] and

Charanjit Lamba v Commanding Officer [(2010) 11 S.C.C. 314] etc.

Considering the deficiencies in application of proportionality as discussed

above it may be concluded that proportionality application by the courts

has its own problems and it has little to say about the most important

issues in the world of modern administrative law. The most pressing

problem facing administrative law today is how to develop an appropriate

relationship between the courts and the decision-makers or administrative

wing. At the end it would be fruitful to analyse the words of a leading

practitioner that whichever way you dress up the elements of the

proportionality test in the end knowledge of which judge (or judges) will

decide your case will tell you in advance whether you are likely to win or

lose.

Wednesbury unreasonableness is a firmly entrenched part of legal culture

of the Supreme Court of India and this culture cannot easily be changed.

To make the court change its way of thinking, to make it shift from a

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deferential Wednesbury standard of review to an intrusive proportionality

standard of review in administrative law, cases would entail a significant

shift in the culture of the Indian Courts.

On the above study the researcher would like to suggest that:

1. The legislation must necessarily provide that before the exercise of

administrative discretion, the concerned authority must give an

opportunity of hearing to the party whose rights or freedoms are

being affected by the decision.

2. Even if the statute or legislation does not expressly provide

opportunity of hearing, it should be given and the administrative

authority as a rule must give this opportunity.

3. Where the courts in India have vide powers of judicial review of

administrative discretion find that in the concerned case no

opportunity of hearing has been given to the party instead of

deciding the case, the courts must remand the case back to the

government authorities to give such opportunities and then apply

the powers of discretion.

4. The administrative decision must compulsorily make mandatory

that it must be a speaking order or decision. If the discretionary

decision of authority is not a speaking order, the courts must

remand the same back for re-decision with all relevant factors

considered as well as specifically pointed out in the decision.

5. The basic Constitutional principle of ‘separation of powers’ must be

maintained by the courts and the courts must not interfere in policy

decisions, maintenance of law and order etc. which are solely

executive functions and authorities have expertise in the same.

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6. In cases such as award of public contracts, the executive authority

must be directed to follow fixed standards and such decisions or

grants must be made by public auction or tenders after due process

are followed.

7. The State must be made liable for actions in tort by enacting

legislation to this effect and the citizens must be enabled to sue the

State under tort legislation. If the citizen suffers in any way through

negligence of state and administrative authorities in performance of

its duties, he must be able to bring a case against the same under tort

legislation.

8. The courts, while exercising the constitutional powers of judicial

review for administrative actions must not cross the line of their

marginal role in exercise of its powers. They must not go into the

merits of the case. An analysis of such cases decided by the courts

how that the courts take upon themselves to fill in the gaps in the

enabling act and determining the parameters within which such

discretion should have been exercised. The courts must also be

selective in such cases because interfering in every decision of the

authorities of state would mean taking away the very essence of the

grant of the powers of discretion.

9. The courts whether applying the Wednesbury principle or the

proportionality test must not every time cite or follow the English

case laws. In U.K. or U.S.A., the circumstances and structure is

different from our country. In applying proportionality, the courts

must in its order specify the application of all the test of

proportionality to make the parties and the public to understand

what proportionality is all about.

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10. While applying the test of proportionality, the courts must always

keep in mind that the administrative authority or the tribunals

specially created for such purpose have the expertise and knowledge

of the kind of issue in question on which the decision has been

taken. The Courts should only see the proportion in means and end.

If they are proportionate, the courts must stop there and not give it

own ideas and views on the subject.

11. If operated with a genuine deference to the special competence of

the decision-making authority in its own field, the principle of

proportionality can allow a greater degree of independent judicial

scrutiny than is permissible under the Wednesbury wrong

considerations approach but without amounting to merits appeal.

12. A court or tribunal must keep itself confined to correction of error

of law by applying proportionality and in maximum cases must

identify the incompatibility or disproportionality and remit the case

back to the decision-maker for correcting the error and giving

decisions on the correct basis with correct factors taken into

consideration.

13. Greater deference should be given to decision – maker while

applying principle of proportionality to cases concerning broad

policy decisions in area of those constitutional rights which are

expressed to be subject to restrictions necessary in a democratic

society than to decision in individual cases threatening an

unqualified right.

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