DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

Doctrine of Proportionality

SUBJECT

Administrative Law

NAME OF THE FACULTY

Dr. P. Sri Devi

Name of the Candidate

Roll No. & Semester

B. RATNA SUPRIYA

2015018

SIXTH SEMESTER

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 TABLE OF CONTENTS

1. INTRODUCTION
2. EVOLUTION OF DOCTRINE OF PROPORTIONALITY
3. TWO MODELS OF PROPORTIONALITY
4. COMPARATIVE STUDY OF DOCTRINE OF PROPORTIONALITY IN INDIA
AND UK
5. PROPORTIONALITY AS A GROUND OF JUDICIAL REVIEW
6. APPLICATION IN INDIA
7. CONCLUSION

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 ACKNOWLEDGEMENT

I would sincerely like to put forward my heartfelt appreciation to our respected Administrative
Law professor, Dr. P. Sri Devi for giving me a golden opportunity to take up this project
regarding, “Doctrine of Proportionality” I have tried my best to collect information about the
project in various possible ways to depict clear picture about given project topic. I would also
like to thank Mam’ for eminent support and help in doing this project.

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CERTIFICATE OF DECLARATION

I hereby declare that this project titled “DOCTRINE OF PROPORTIONALITY” undertaken

by me is an original work and have duly acknowledged all the sources of statistics and other
relevant information. The project is free from any kind of plagiarism.

Date:

Place:

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 ABSTRACT

The ordinary meaning of proportionality is that the administrative action should not be more
drastic than it ought to be for obtaining desired result. It implies that canon should not be used to
shoot a sparrow. In other words, this doctrine tries to balance means with ends. Proportionality
shares platform with 'reasonableness' and courts while exercising power of review take into
consideration the course of action that could have been reasonably followed'. Indian courts have
been following this doctrine for a long time but English Courts have started using this doctrine in
administrative law after the passing of the Human Rights Act, 1998.

The scope of judicial review of administrative action has been the central theme of discussion in
administrative law. Initially common law countries including India adopted the Doctrine of
Wednesbury Reasonableness to review administrative action. But subsequently under influence
of civil law systems and Strasburg jurisprudence the Doctrine of Proportionality is being
gradually accepted as the standard of judicial review by the common law countries. The principle
of proportionality ordains that administrative measures must not be drastic than is necessary for
attaining the desired result. 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 evolved by courts. If an action taken by any authority is contrary to
law, improper, unreasonable or irrational, a court of law can interfere with such action by
exercising power of judicial review. One of such modes of exercising power is the doctrine of
proportionality.

Objective:

The objective of the study is to see the growth of the Doctrine of Proportionality in the Indian
Judiciary system.

Scope:

The research of the Doctrine of proportionality is limited to the countries- U.K and India.

Research Questions:

1. What are the causes for the growth of Doctrine of Proportionality?

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2. How far the Doctrine of Proportionality is accepted by the Indian Judiciary while dealing
with the cases?

Hypothesis:

The growth of Doctrine of Proportionality is benefit to the Indian Judiciary while dealing with
the cases.

Research Methodology:

Te research is purely based on primary sources and secondary sources. Primary Sources like
books, articles, journals, Harvard Law Reviews and Secondary Sources like online websites such
as Hein online, West Law, Manupatra etc.

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 INTRODUCTION

The rapid growth in administrative law has anticipated a threat of misuse and exaggerated use of
the power by administrative authority. The need and necessity to control possible abuse of
discretionary powers by various administrative authorities, certain principles have been evolved
by the courts. If an administrative action is contrary to law, improper, unreasonable or irrational,
a court of law can interfere with such action by exercising power of judicial review. One of such
modes of exercising power is the doctrine of proportionality.

The Doctrine of Proportionality relates to the principle of interpretation of statutory provisions

maintaining fairness and justice. It is a mode of restricting the administrative action from being
drastic, when it is used for obtaining desired results. The principle of proportionality stricto
sensu means that the application of a given instrument or means to achieve a given end or
objective should not be unreasonable in its reciprocal relationships. Further it envisages that a
public authority ought to maintain a sense of proportion between his particular goals and the
means he employs to achieve those goals, so that his action impinges on the individual rights to
the minimum extent to preserve the public interest.

It is a course of action which could have been reasonably followed and should not be excessive.
“Proportionality can be described as a principle where the court is concerned with the way in
which the administration has ordered his priorities; the very essence of decision-making consists,
surely, in the attribution of relative importance to the factors in the case. This is precisely what
proportionality is about.1”

Within municipal law it is used to convey the idea that the punishment of an offender should fit
the crime2. Under international humanitarian law governing the legal use of force in an armed
conflict, proportionality and distinction are important factors in assessing military necessity.

1
U.O.I. v. G. Ganayutham (1997) 7 SCC 463, 473.
2Tor-Inge Harbo, “The Function of the Proportionality Principle in EU Law”, European Law Journal,
Vol. 16, No. 2, March 2010, pp. 158–185

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In India Fundamental Rights3 form a part of the Indian Constitution, therefore, courts have
always used the doctrine of proportionality in judging the reasonableness of a restriction on the
exercise of fundamental rights. The doctrine has always stands as a shield against the
administrative action affecting fundamental freedoms. By proportionality it is meant that the
question whether, while regulating exercises of fundamental rights, the appropriate or least
restrictive choice of measuring has been made by the legislature or the administrator so as to
achieve the object of the legislation or the purpose of administrative order, as the case may be.
Under the principle court will see that the legislature and the administrative authority maintain a
proper balance between the adverse effects which the legislation or the administrative order may
have on the rights, liberties or interests of persons keeping in mind the purposes which they were
intended to serve. The legislature and the administrative authority are given an area of discretion
or a range of choice but as to whether the choice made infringes the rights excessively or not is
for the court to decide. This is the principle of proportionality.

EVOLUTION OF DOCTRINE OF PROPORTIONALITY

The origin of this doctrine may be traced in Persia in nineteenth century, further by Germany4,
France and other European countries. The European Court of Justice at Luxembourg and the
European Court of Human Rights at Strasbourg have applied the principle while judging the
validity of administrative action. The Supreme Court has also been applying the principle of
proportionality to legislative actions since 1950. This principle applied when the administrative
action is attacked as discretionary under Article 14 of the constitution. However, where
administrative action is questioned as ‘arbitrary’ under Article 14 then the Wednesbury’s
principle applied.

Associated Provincial Picture Houses Ltd. v Wednesbury Corporation (1948)1 KB 223;

English law case which set down the standard of unreasonableness of public body decisions
which render them liable to be quashed on judicial review. This special sense is accordingly
known as Wednesbury unreasonableness.

3
Part III, Constitution of India.
4
Dieter Grimm, “Proportionality in Canadian and German Laws”, 51 U, Toronto L. J, 383,

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The court stated three conditions on which it would intervene to correct a bad administrative
decision, including on grounds of its unreasonableness in the special sense later articulated
in Council of Civil Service Unions v Minister for the Civil Service by Lord Diplock: “So
outrageous in its defiance of logic or accepted moral standards that no sensible person who had
applied his mind to the question to be decided could have arrived at it.”

So far as Article 14 is concerned, the courts in India examined whether the classification was
based on the intelligible differentia and whether the differentia had a reasonable nexus with the
object of the legislation. It means that the courts were examining the validity of the difference
and the adequacy of the difference. This is again the principle of proportionality.

TWO MODELS OF PROPORTIONALITY

Over the last few decades, two prominent conceptions or models of proportionality has emerged.
The two models can be tentatively named as
1. The British model or the state-limiting conception of proportionality27 and
2. The European model or the optimising conception of proportionality28 .
Both models suggest different test that the court must undertake to determine whether a decision
set is proportionate or not.
 British Model
The British model as expounded by Lord Stynn in R v. Secretary of State for the Home
Department exparte Daly5 finds its origin in the judgment of the Privy Council in de Freitas v.
Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing6. In that case,
Lord Clyde while deciding an appeal from Antigua and Barbuda, used South African and
Canadian jurisprudence to formulate a three stage test for proportionality review.
A decision is proportionate if:
I. The legislative (or executive) objective is sufficiently important to justify limiting a
fundamental right.
II. The measures designed to meet the legislative (or executive) objective are rationally
connected to it.

5
(2001) 3 All ER 433 (HL)
6
(1999) 1 A.C. 69

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 III. The means used to impair the right or freedoms are no more than necessary to
accomplish the objective.
An analysis of the above three stage test would show that the main focus of the court would be to
ensure that the decision making body takes the correct decision as regarding the least intrusive
means. Hence in this model, proportionality is not about optimising costs and benefits, but about
the pursuit of pre determined goals by the most efficient (or least intrusive) means. It does not
raise question about the intensity of review, but only imposes a judicially generated criticism of
the correctness in respect of necessity or efficiency. Thus this test treats necessity as the final
stage of proportionality review and suppresses the balancing element.
Such a conception of proportionality, called the state limiting conception of proportionality,
arises from the common law belief that courts exists to protect individuals and groups from other
branches of the government namely legislature and executive. Courts therefore maintain a
framework of legal rights which sets limits to the freedom of action of legislative and executive
bodies. Within such a framework, only sufficiently important public objectives are permitted to
limit the enjoyment of rights (i.e., first of the tests described above).
This implies that there are legitimate public objectives that are not important enough to warrant
limiting the enjoyment of rights. It is the responsibility of the court to act as a gate keeper here.
However if a public objective is sufficiently important, any state action rationally connected to
the objective and necessary to fulfill it is justified (i.e., second and third test described above).
Thus carrying out important public objectives is the duty of the legislature and executive.
All that the court does is to maintain an efficiency based oversight to ensure that there are no
unnecessary costs to rights, that sledge hammers are not used to crack nuts or rather that sledge
hammers are only used when nut crackers prove impotent.
Further at the necessary test stage the court will have to provide latitude to accommodate the
margin of discretion of the decision maker.
Thus judicial deference and judicial restraint are accommodated at the necessary stage.
 European Model
The very concept of proportionality originated in nineteenth century Prussia. This
nineteenth century Prussian concept prescribed various tests. Those were accepted by the
European Court of Justice in:

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 R v. Minister of Agriculture, Fisheries and Food, ex parte Federation Europeenne de la Sante
Animale (FEDESA)7.
Based on this case Julian Rivers outlines a four stage test as:
1. Legitimacy: Does the act (decision, rule policy etc) under review pursue a legitimate
general aim in the context of the right in question?
2. Suitability: Is the act capable of achieving that aim?
3. Necessity: Is the act the least intrusive means of achieving the desired level of realisation
of the aim?
4. Fair balance or proportionality in narrow sense: Does that act represent a net gain,
when the reduction in enjoyment of rights is weighted against the level of realisation of
the aim?
From the analysis of the above formulation it is apparently clear that the said formulation is
institutionally neutral. It is not defined to help courts determine its relationship with other organs
of the government. It more importantly focuses on optimising or balancing the rights (which is
seen as protected interest and which is being limited by the proposed action) with the public
interest or aim (which the proposed measure seeks to achieve). Hence it is called as the
optimisation conception of proportionality. Even under this model the court has to allow latitude
to accommodate the margin of discretion of the decision maker.
i. Judicial restraint: This latitude is taken into consideration only at the final stage of
proportionality review namely the fair balance stage. This range of discretion is variable
depending upon the subject matter and the nature of the affected rights. A large degree of
restraint means that the court will be very unwilling to question the view of the decision
maker that what is necessary to achieve a certain level of public interest is also balanced. A
moderate degree of restraint means that the court will want to check that the costs and gains
are indeed roughly commensurable. A small degree of restraint will reduce the set of
necessary decisions to a minimum; the court will need to be convinced itself that the
decision, rule or policy in question, even though necessary, really is the best way of
optimising the relevant rights and interests.
ii. Judicial deference: This aspect of the margin of discretion is much more complex because it
is a question of relative institutional competence and the court’s acceptance that its judgment

7
(1991) 1 C.M.L.R. 507

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 is more likely to be correct if it relies on some other authority’s assessment of some relevant
matter. Hence this latitude can be accommodated at any or all of the stages of proportionality
review depending upon the subject matter, nature of the affected right and the confidence that
the court reprises on the competence of the decision making body involved. The court could
simply accept the assertion of the public authority; or it could demand such assertions under
oath or it could require the authority to reveal the factual basis for its judgments and so on. In
short, the degree of deference means the extent to which the court will demand that the
authority put procedural resources into answering the relevant questions reliably and expose
that process to judicial scrutiny. Julian Rivers after carrying out an extensive analysis of the
two models came to the conclusion that it is the European model that must be given
preference over the British model due to fact that the European model has a higher degree of
objectivity.

COMPARATIVE STUDY OF DOCTRINE OF PROPORTIONALITY IN INDIA AND

UK

As per David M. Beatly, proportionality has now attained a position of a central element of the
“new constitutionalism”, spreading in all parts of Europe8. In many cases in Britain,
proportionality has been treated merely as an aspect of the Wednesbury unreasonableness. The
main reason for judicial reticence in Britain in adopting proportionality as a distinct head of
judicial review is that it may involve the courts in assessing the merits of a discretionary decision
taken by the administration, and for long, the court have been advocating the proposition that the
courts do not probe into the merits of a discretionary decision but see if there is any flaw in the
decision-making process and that this places the court in the role of second reviewer and not a
primary reviewer.

There have however been a few cases where the court have applied proportionality expressly or
impliedly in context of challenges to penalty imposed by the administrative authority. However

8 David M Beatly, The Ultimate Rule of Law, Chap 5, 2004.

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after the enactment of the Human Rights Act, 1998, the House of Lords have adopted a position
between proportionality and Wednesbury as regards judicial review under the HRA.9

In India though, the principle of proportionality in its broad European sense has not so far been
accepted in India. Only a very restrictive version thereof has so far come into play. The reason in
that the broad principle does not accord with the traditions of common-law judicial review. The
European version of proportionality makes the court as the primary reviewer of administrative
action is entrusted to administrative tribunals and not to ordinary courts, and therefore the broad
concept of proportionality can be followed. In common law, the tradition so far has been that the
court does not probe into the merits of an administrative action. This approach comes in the way
of a full-fledged acceptance of the principle of proportionality, for, if accepted, it will turn the
courts into primary reviewer of administrative action.

Accordingly in India, the courts apply the principle of proportionality in a very limited sense.
The principle is applied not as an independent principle by itself as in European administrative
law, but as an aspect of Article 14 of the Constitution, viz., an arbitrary administrative action is
hit by Art. 14. Therefore, where administration action is challenged as arbitrary under Art 14, the
question will be whether administrative order is rational or reasonable‘as the test to apply is the
Wednesbury test.
As has been stated by the Supreme Court in Royappa10, if the administrative action is arbitrary, it
could be struck down under Art. 14. Arbitrary action by an administrator is described as one that
is irrational and unreasonable. Accordingly, a very restrictive version of proportionality is
applied in the area of punishments imposed by administrative authorities. The first proposition in
this regard is that the quantum of punishment imposed by a disciplinary authority on a civil
servant for his misconduct in service is a matter of discretion of the disciplinary authority. The
second proposition is that the punishment has to be reasonable because of the constraints of Art.
14. This means that if the punishment imposed in unreasonable, Art 14 is infringed. The court
can thus decide upon the proportionality of the punishment when it is strikingly disproportionate.
The court would not interfere with the matter of punishment on compassionate ground or

9 R v. Secretary of State of Home Dept (2002) 3 WLR 481.

10 E. Royappa v. State of Tamil Nadu, AIR 1974 SC 555

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because it considers the punishment disproportionate. The court would not interfere only in such
extreme cases which on their face show perversity or irrationality. The Wednesbury test is to be
applied in such cases.

PROPORTIONALITY AS A GROUND OF JUDICIAL REVIEW

Proportionality is one of the most important grounds for judicial review. It has been a ground for
many years and has evolved from the concept of unreasonableness. The concept of
proportionality has been developed more as a general principle of law by the judges over the
years. This doctrine of proportionality is well established and is a broad concept in the European
administrative law.

In modern days authorities both statutory and governmental - enjoy a wide range of discretionary
powers. This power is however, fettered by restraints. It is to be exercised in public interest and
for the public good. The wide range of authorities and officers conferred with discretion adds to
the intensity of the problem in as much as quite frequently discretionary powers are wrongly
exercised or otherwise abused. In early times, the courts have been overseeing the exercise of
discretionary powers by way of judicial review. New developments in administration made the
Courts to adopt new techniques to discipline the exercise of administrative discretion but the
judiciary was very cautious in exercising its power of judicial review.

“Traditionally in India as well as in England, courts have exercised self-restraint in reviewing the
substantive content of the decision rendered by an administrative body.” In common law the
judiciary does not interfere in reviewing the administrative actions, making the courts a
secondary reviewer of the action. This is a result of the relation between Parliamentary and
Constitutional. One branch cannot transgress in to the functions of the other giving importance to
the independence and the supremacy of each branch. But recently with the introduction of human
rights and the inclusion of fundamental rights in the some Constitution’s has changed this view.
It is now based on sound human rights and constitutional principles. The administration has been
misusing its powers and using arbitrary means to remain in the dominant state. Being a dominant
violator of fundamental rights the courts have evolved to review such arbitrary administrative
actions.

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In the test of Proportionality the “courts will quash exercise of discretionary powers in which
there is no reasonable relation between the objective which is sought to be achieved and the
means used to that end, or where punishments imposed by administrative bodies or inferior
courts are wholly out of proportion to the relevant misconduct.” So the administrative action
which arbitrarily discriminates will be quashed by the court. The implication of the principle of
proportionality is that the court will weigh for itself the advantages and disadvantages of an
administrative action and such an action will be upheld as valid if and only if the balance is
advantages. If this action is disproportionate to the mischief then it will be quashed.

APPLICATION IN INDIA

The application of this principle can be seen in India with respect to cases involving fundamental
rights. The case not involving fundamental freedoms, the role of our courts/ tribunals in
administrative law is purely secondary and while applying Wednesbury and CCSU 11principles to
test the validity of executive action or of administrative action taken in exercise of statutory
powers, the courts can only go into the matter as a secondary reviewing court to find out if the
executive or the administrator in their primary roles have arrived at a reasonable decision on the
material before them in the light of Wednesbury and CCSU tests. The choice of the option
available is for the authority. The courts/tribunals cannot substitute the view as to what is
reasonable.
The Indian Supreme Court consciously considered the application of the concept of
proportionality for the first time in the case of Union of India v. G. Ganayutham12. In that case
the Supreme Court after extensively reviewing the law relating to wednesbury unreasonableness
and proportionality prevailing in England held that the „wednesbury‟ unreasonableness will be
the guiding principle in India, so long as fundamental rights are not involved. However the court
refrained from deciding whether the doctrine of proportionality is to be applied with respect to
those cases involving infringement of fundamental rights.
Om Kumar v. Union of India, the proceedings arising out of an order of Supreme Court dated 4-
5-2000 proposing to reopen the quantum of punishments imposed in departmental inquiries on
certain officers of the Delhi Development Authority who were connected with the land of the
11
Council of Civil Services v. Minister of Civil Services, 1985 AC 374
12
Union of India v. G. Ganayutham (1997) 7 SCC 463

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DDA allotted to M/S Skipper Construction Co. It was proposed to consider impositions of higher
degree of punishments in view of the role of these officers in the said matter. After directions
were given by this court that disciplinary action is taken and punishments were awarded to the
officers in accordance with well known principles of law. In this case court observed that so far
as Article 14 is concerned, the courts in India examined whether the classification was based on
intelligible differentia and whether the differentia had a reasonable nexus with the object of the
legislation. It means courts were examining the validity of the differences and the adequacy of
the differences. This is nothing but the principle of proportionality.

 It was in the Om Kumar’s case that the Supreme Court accepted the application of
proportionality doctrine in India. However, strangely enough the Supreme Court in this case
suddenly discovered that Indian courts had ever since 1950 regularly applied the doctrine of
proportionality while dealing with the validity of legislative actions in relation to legislations
infringing the fundamental freedom enumerated in Article 19 (1) of the Constitution of India.
 According to the Supreme Court the Indian courts had in the past in numerous occasions the
opportunity to consider whether the restrictions were disproportionate to the situation and
were not the least restrictive of the choices.
 The same is the position with respect to legislations that impinge Article 14 (as
discriminatory), and Article 21 of the Constitution of India. With respect to the application of
the doctrine of proportionality in administrative action in India, the Supreme Court after
extensively reviewing the position in England came to a similar conclusion.
 The Supreme Court found that administrative action in India affecting fundamental freedoms
(Article 19 and Article 21) have always been tested on the anvil of proportionality, even
though it has not been expressly stated that the principle that is applied is the proportionality
principle. Thus the court categorically held that the doctrine of proportionality is applicable
to judicial review of administrative action that is violative of Article 19 and Article 21 of the
Constitution of India.
 With respect to Article 14 of the Constitution of India, Supreme Court concluded that when
an administrative action is challenged as discriminatory the courts would carry out a primary
review using the doctrine of proportionality. However when an administrative action is
questioned as arbitrary the principle of secondary review based on wednesbury principle

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 applies. The Supreme Court also held that punishment in service law is normally challenged
as arbitrary under Article 14 of the Constitution, and hence only secondary review based on
wednesbury principle would apply. This according to the Supreme Court is because in such
matters relating to punishments in service law, no issue of fundamental freedom or of
discrimination under Article 14 applies.

However even after a decade since the decision in Omkumar‟s case, no further progress has been
made. The law regarding proportionality in India remains at what has been stated in Omkumar‟s
case. The only advancement could be the vague observation in a few subsequent judgments that
the doctrine of unreasonableness is giving way to the doctrine of proportionality.
Thus, in India, under the current state of law, as declared by the Supreme Court, proportionality
review with respect to administrative action has only limited scope. This is because, in India
much of the administrative action is challenged before the courts primarily on the ground of
arbitrariness and this can be challenged only on the ground of wednesbury unreasonableness.
Thus in reality the decision in Omkumar‟s case has not significantly enhanced the scope of
judicial review in India. No reason as such is given by the Supreme Court in Omkumar‟s case as
to why doctrine of wednesbury unreasonableness alone should be applied to challenges under the
head of arbitrariness.
After the conscious adoption of the doctrine of proportionality into Indian law in the Omkumar‟s
case the only case where the Supreme Court has expressly adopted the doctrine of
proportionality is the case of Sandeep Subhash Parate v. State of Maharastra13. In that case a
student obtained admission to engineering course based on a caste certificate, which was
subsequent to the admission, invalidated. However, he completed the course based on an interim
order of the High Court. Yet the university refused to grant him the degree. This action of the
university was held to be correct by the High Court. The Supreme Court in appeal directed the
university to grand him degree subject to the appellant making a payment of Rupees one lakh, to
re-compensate the state for the amount spend on imparting education to him as a reservation
candidate. This, the Supreme Court claimed was done having regard to the doctrine of
proportionality. But the Supreme Court did not come to a finding that the university had failed to
balance the various considerations before refusing to grant the appellant the degree. Also, the

13
Sandeep Subhash Parate v. State of Maharastra (2006) 1 SCC 501

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Supreme Court apart from mentioning the facts of the case failed to explain how it came to the
conclusion regarding proportionality. At any rate the Supreme Court itself admitted that it was
taking the decision under Article 142 of the constitution.
Hence the choice between the European model and the British model in the Indian context will
be a purely academic exercise. Further judicial backing from the decision of the Supreme Court
in Omkumar’s case wherein the Court while defining proportionality held that the legislative and
administrative authority must be given a range of choice, but the courts can decide whether the
choice infringes the rights excessively or not. This would indicate that the Supreme Court does
intent that the fair balance stage (last stage) of the European model must be part of
proportionality review.
Hence the conclusive argument would be that the European conception of proportionality review
should be the appropriate test that should be applied in the Indian context.

In Hind Construction Ltd. v. Workmen14, the Supreme applied the doctrine of proportionality
and held that an employer could not impose a harsh punishment like dismissing a permanent
employee from job when he remained absent from duty treating a particular day as holiday. In
Ranjit Thakur15 case, The Apex Court had applied the doctrine of proportionality while
quashing the punishment of dismissal from service and sentence of imprisonment awarded by the
court martial under the Army Act. Upholding the contention, following CCSU16 case the court
observed:
“The question of the choice and quantum of punishment is within the jurisdiction and
discretion of the court martial. But the sentence has to suit the offence and the offender. It should
not be indicative or unduly harsh. It should not be so disproportionate to the offence as to shock
the conscience and amount in itself to conclusive evidence of bias. The doctrine of
proportionality, as a part of the concept of judicial review, would ensure that even as an aspect
which is, otherwise, within the exclusive province of the court martial, if the decision of the
court even as to sentence is an outrageous defiance of logic, then the sentence would not be
immune from correction. Irrationality and perversity are recognised grounds of judicial review.”

14
Hind Construction Ltd. v. Workmen, AIR 1965 SC 917
15
Ranjit Thakur v. U.O.I. (1987) SC 611, 620
16
Council of Civil Service Union v. Minister of Civil Services, 1985, AC 374

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In Sardar Singh v. Union of India,17 a jawan serving in an Indian Army was granted leave and
while going his home town, he purchased eleven bottles of rum from army canteen though he
was entitled to carry only four bottles. In court martial proceedings, he was sentenced to undergo
rigorous imprisonment for three months and was also dismissed from service. His petition under
Article 226 of the Constitution was devised by the High Court. The petitioner then approached
the Supreme Court. The Supreme Court observed that the main submission and perhaps the only
submission if we may say so, in this appeal is that the sentence awarded to the appellant is
wholly disproportionate to the offence committed by him. Court considered the case of Ranjit
Thakur18 in the matter of awarding punishment under the Army Act. Applying these principles to
this case the court observed that there is an element of arbitrariness in awarding these severe
punishments to the appellant.

Jayachandra Reddy J. further said that we are satisfied that an interference is called for and the
matter has to be remanded on the question of awarding any of the lesser punishment.
Accordingly we set aside the punishment of three months rigorous imprisonment and dismissal
from service and remand the matter to the court martial which shall award any of the lesser
punishments having due regard to the nature and circumstances of the case and in the light of the
above observation made by us.

In Canara Bank v. V.K. Awasthy19, the Apex Court had explained the scope and ambit of the
power of judicial review of administrative action relating to the ground of proportionality.
Instead of breaking the new ground and analyzing the concept thoroughly, the Apex Court
simply restated the position as laid down in Om Kumar case20.

In fact in this process, the court created more confusion rather than clarification when it said that
where departmental proceedings reveal several acts of misconduct and charges clearly establish
failure in discharge of duties with utmost integrity, honesty, devotion and diligence, the scope of
judicial review on the ground of proportionality is highly limited to situation of illegality and
irrationality. It may be remembered what is said in the beginning of this topic that in applying

17
Sardar Singh v. Union of India (1991) 3 SCC 213
18
Ranjit Thakur v. U.O.I. AIR 1987 SC 2387
19
Teri Oat Estate (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130
20
Om Kumar v. Union of India, (AIR 2000 SC 3684)

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proportionality it is assumed that the grounds of illegality are not there, since if those grounds are
there, the decision will be set aside without going into proportionality. The principle of
proportionality replaces the second sense of Wednesbury or irrationality ground only. And even
when misconduct and charges are clearly established there is scope for proportionality in seeing
whether the punishment imposed is suitable and also necessary in view of the gravity of
misconduct or charges established. It is regrettable that the Apex Court is still groping in the
darkness so far as the scope of proportionality is concerned.

The principle of proportionality is inherent in cases of punishments. This is also the basis of
awarding punishments in the criminal law. For the first time, in Union of India v. Rajesh,21 the
Supreme Court applied the principle of proportionality to an area other than that of punishments.
In this case 134 posts of constables were to be filled up for which written test and viva voce were
held. As a result of allegations of favoritism and nepotism in conducting the physical efficiency
test, the entire selection list was cancelled. This was challenged in the High Court through a writ
petition. Allowing the writ, the High Court found that there were only 31 specific cases of
irregularities. On appeal the Supreme Court upheld the High Court. Applying the principle of
proportionality the Apex Court observed that:

“competent authority completely misdirected itself in taking such an extreme and

unreasonable decision of canceling the entire selections wholly unwarranted and unnecessary
even on the factual situation found too, and totally in excess of the nature and gravity of what
was at stake, thereby virtually rendering such decision to be irrational”.

It would not have been possible for the court on Wednesbury principle to set aside the authority’s
decision to cancel the entire selection, because the decision could not be characterized as “so
absurd that no sensible person could ever dream that it lay within the powers of the authority.”
But the court held it to be arbitrary and not reasonable, thus adopting a lower threshold of
unreasonableness than the Wednesbury or the CCSU test.

21
Union of India v. Rajesh (2003) 7 SCC 285

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 CONCLUSION

From the above analysis it is patently clear that at the international level wednesbury
unreasonableness is on a terminal decline. It is fast being replaced by the doctrine of
proportionality which is a much more intense form of review which seeks to see whether the
decision maker has properly balanced the various factors that he has to take into consideration
before rendering a decision. Further there are two competing models of proportionality, namely,
European model and the British model. Of the two the European model is more efficient and
objective.
In the Indian context it is amply clear that even though proportionality was made part of the
Indian law as early as 2000, there is hardly any significant use of doctrine in India. Not only has
the doctrine as adopted by the Supreme Court, limited application, but even within that
applicable range, it has hardly been used.
The doctrine of proportionality has got a lot of utility and scope in India. The essential
ingredients of the principle have not yet been properly appreciated by the courts. We can also see
that the courts act as secondary means to review the action of administrative functions, which
evidentially proves that applicability of this doctrine has not to a satisfying limit.
The positive part of the Indian Judiciary regarding this doctrine is that except in few cases the
judiciary has not interfere with the quantum of punishment as it a discretionary matter for the
administration or the executive. This shows the balancing of powers and functions between
judiciary and the executive in a harmonious manner.
However sooner or later courts in India will have to actively consider implementing the doctrine
of proportionality in all cases coming before it irrespective of whether fundamental or ordinary
rights of citizens/persons are involved. This is because of the fact that human rights
jurisprudence that has come to dominate the legal system includes not just fundamental rights but
other rights also. Hence the urgency of adopting the doctrine of proportionality cannot be
overlooked for otherwise steam hammers would increasingly be used to crack nuts even if nut
crackers are sufficient.

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