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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
Doctor of Philosophy (Ph.D.) in Law
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
Doctor of Philosophy (Ph.D.) in Law
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
governing Ph.D. Degree known as University of Lucknow Ph.D.
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
Law of the University of Lucknow, Lucknow.
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
governing Ph.D. Degree known as University of Lucknow Ph.D.
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
Law of the University of Lucknow, Lucknow.
Dated:
May, 2015
(iii)
Dr. R.K. Verma
Associate Professor
CERTIFICATE OF THE SUPERVISOR
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
Law of the University of Lucknow, Lucknow.
(Dr. R.K. Verma)
FACULTY OF LAWUniversity of Lucknow
Second Campus, Sitapur Road,
CERTIFICATE OF THE SUPERVISOR
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)
List of Cases
A v Secretary of State for Home Department (2004) U.K.H.L. 56. 176
A.B.C. Laminpart Pvt Ltd. v A.P. Agencies Salem 1989 (2) S.C.R.I. 106,108 Abdullaziz, Cabales and Balkandali v United Kingdom, (1985) 7 E.H.R.R. 741.
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
Associated Provincial Picture Houses limited v Wednesbury Corporation (1948) 1 K.B. 223.
6, 66, 67, 170, 203
Association of British Civilian Internees For Eastern Region v Secretary of State for Defence (2003) 3 W.L.R. 80.
140
Attorney General of Quebec v Quebec Association of Protestants School Boards (1984) 2 S.C.R. 66.
180
Bandhuwa Mukti Morcha v Union of India (1984) 3 S.C.C. 161, 97 Barium Chemicals Limited and another v The Company Law Board and others A.I.R. 1967 S.C. 195.
46
Bela-Muhle Josefberjmann K.G. v Grows farm GMBH Co. K.G. 1977 E.C.R. 1211.
130
Belvedere Alberghiera v Italy. Application No. 31524/96, 160 Bhagat Ram v State of Himachal Pradesh and Others (1983) 2 S.C.C. 442.
195, 197
Board of Trustees of the University of Alabama v Garrett 531 U.S. 356 (2001).
168
Bombay Dyeing and Manufacturing Co. Ltd. v Bombay Environmental Action Group A.I.R. 2006 S.C. 1489,
190
Brij Mohan Singh Chopra v State of Punjab 1987 S.C.R. (2) 583. 47 Brind v Secretary of State for Home Department. (1991) A.C. 696, 171 Butcher v Petrocorp Exploration Ltd. (1991) 1 N.Z. L.R. 641. 99 Canara Bank v V.K. Awasthi 2005 (6) S.C.C. 231. 77, 247 Chairman and Managing Director, United Commercial bank and Others v P.C. Kakkar (2003) 4 S.C.C. 364.
207
Chairman Cum Managing Director, Coal India Limited and Another v Mukul Kumar Chowdhary and Others (2009) 15 S.C.C. 620.
209
Chairman, All India Railway Recruitment Board and Another v K. Shyam Kumar (2010) 6 S.C.R. 291.
79
Chairman, All India Railway Recruitment Board and Another v K. 198, 251
(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
Charanjit Lamba v Commanding Officer, Southern Command and Others (2010) 11 S.C.C. 314.
198, 251
Chennai Metropolitan Water Supply and Sewerage Board v T.T. Murali Babu (2014) 4 S.C.C. 108.
211
Chief Constable of North Wales Police v Evans (1982) 3 All. E.R. 141.
12, 99
Chintaman Rao v State of U.P. (1950) S.C.R. 759. 206 Chintaman Rao v State of Madhya Pradesh, A.I.R. 1951 S.C. 118. 10, 35 Clansey v New Foundland. 566 A.P.R. 1 (2000). 228 Coal India Limited v Mukul Kumar Chowdhary (2009) 15 S.C.C. 620 251
Coimbatore district Central Cooperative Bank v Coimbatore District Central Cooperative Bank Employees Association and Others (2007) 4 S.C.C. 669.
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.
212, 216
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
Dore v Barreaudu Quebec (2012) 1 S.C.R. 395. 180 Dr. Q v College of Physicians and Surgeons, (2003) 1 S.C.R. 226 (Canada).
230
Dudgeon v United Kingdom (1982) 4 E.H.R.R. 149. 161 Dudgeon v United Kingdom, Series A, No.45, decided on 22-10-1981.
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
Dwarka Prasad v State of U.P. A.I.R. 1954 S.C. 224 35, 37 E.P. Royappa v State of Tamil Nadu (1974) 4 S.C.C. 3. 205 E.P. Royappa v State of Tamil Nadu 1974 S.C.R. (2), 348. 10, 43 East Suffolk Rivers Catchment Board v Kent (1941) A.C. 74, 90. 64 Ellis v Dubowski (1921) 3 K.B. 621. 66 Eshugbayi Eleko v Government of Nigeria (1931) A.C. 662 P.C. 86 Estwick v City of London (K.B. 1647) Style 42. 60 Ex. Naik Sardar Singh v Union of India and Others 1991 S.C.R. (2) 676.
197, 203
Express Newspapers Pvt. Ltd. & Others v Union of India 1985 S.C.R. Supl. (3) 382.
42
Familiapress v Bauer Verlag 1997 E.C.R. I -3689. 127 Federation Charbonniere de Belgique v High Authority Case 8 /55, (1954-56)E.C.R. 292.
155
Firm of Illuri Subbayya Chetty v The State of Andhra Pradesh 1964 S.C.R. (1) 752.
107
Firm Seth Radha Kishan v The Administrator, Municipal Committee, Ludhiana A.I.R. 1963 S.C.1547.
107
Florida Prepaid Post Secondary Education Expense Board v College Saving Bank 527 U.S. 627 (1999).
167
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
Hind Construction and Engineering Corporation v Their Workmen 1965 2 S.C.R. 85.
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.
155
International Transport Roth Gmbh v Home Secretary, (2002) E.W.C.A. Civ. 158
229
Isle of Anglesey County Council v Secretary of State for Works and Pensions (2003) E.W.H.C. 2518.
141
J.P. Bansal v State of Rajasthan (2003) 5 S.C.C. 134. 100 Jackson and others v Attorney General (2005) U.KH.L. 56. 150 Jacubowski v Germany (1995) 19 E.H.R.R. 64. 159 Jagan Nath v State of Orissa A.I.R. 1954 S.C. 400. 36 Jaichand Lal Sethia v State of West Bengal and Others (1996) S.C.R. 464
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,
7, 189
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
210
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
Leader v Moxon (1773) 2 Bl 929. 61 Life Corporation of India v V. S. Vasanthi Civil Appeal No. 7717 of 216
(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
83
M.A. Rashid v State of Kerala 1975 SCR (2) 96. 7, 188 M.P. Gangadharan and Another v State of Kerala and Others (2006) 6 S.C.C. 162.
192
M/s Bengal Bhatdee Coal Corp. v Shri Ram Prabash Singh and Others 1964 S.C.R. (1) 709.
194
M/s Krishna Bus Service Pvt. Limited v State of Haryana A.I.R. 1985 S.C. 1651.
37
M/s Kulja Industries Ltd. v Chief General Manager, W.T. Project, BSNL and Others Civil Appeal No. 8944 of 2013,
216
M/s Swastik Gases Pvt. Ltd. v Indian Oil Corporation Ltd. Civil Appeal No. 5086 of 2103 (arising out of S.L.P. no. 5595 of 2012) decided on 3rd July 2013.
108
M/s. Ashiana Cargo Services v Commissioner of Customs (I & G) Cus. AA 24/2012, C.M. Appl. 19694/2012,
211
Madras v V.G. Rao A.I.R. 1952 S.C. 196. 10, 36 Management of Coimbatore District Central Cooperative Bank v Secretary, Coimbatore District Central Cooperative Bank Employees Association and Other MANU/SC/2117/2007.
197, 250
Management of the Federation of Indian Chamber of Commerce v Their Workmen A.I.R. (1972) S.C. 763.
196
Maneka Gandhi v Union of India (1978) 1 S.C.C. 248 205 Manilal Gopalji v Union of India A.I.R. 1960 Bom. 83, 94 Marbury v Madison 2 L. ed. 60, 1 Cranch 137, 5 U.S. 137 (1803). 6, 87, 89 Marckse v Belgium, (1979) 2 E.H.R.R. 330. 136 Minerva Mills Ltd and Others v Union of India A.I.R. 1980 S.C. 1789.
96, 105
Ministry of Transport v Naort, (1992) 3 N Z.L.R. 260 (C.A.). 111 Mohammad Ishaque v State A.I.R. 1961, All. 552 para 5. 92 Moni Shankar v Union of India (2008) 3 S.C.C. 484 10
NAACP v Alabama Ex- rel Flowers 377 U.S. 288 (1964). 169 National Tobacco Corp of India Ltd. v Fourth Industrial Tribunal 1960 2 L.L.J. 175.
194
New Found land (Treasury Board) v N.A.P.E. (2004) 3 S.C.R. 381. 179
Nicolas Decker v Caisse de maladie des employes prives C-120/95, (1998) E.C.R.I. – 1831.
157
Nottingham County Council v Secretary of State for Environment (1986) A.C. 240.
99
Nottinghamshire County council v Secretary of State for the Environment 1986 (1) ALLER 199
83
O’ Keeffe v An Board Pleanala, (1993) 1 I.R. 39 at p. 72 (Ireland) 230 Officer Van Justitie v Adriaande Peijper Case No. 104/75, 1976 126
(xiv)
E.C.R. 613.
Om Kumar v Union of India A.I.R. 2000 S.C. 3689. 136, 193,205, 247, 250
Oregon v Mitchell 400 U.S. 112 (1970) 167 P.R. Aqueduct and Sewer Auth. v Metcalf and Eddy 506 U.S. 139, 146 (1993).
168
Padfield v Minister of Agriculture (1968) A.C. 997. 4, 147 Pannalal Bingraj v Union of India, (1957) SCR 233 56 Pearlman v Harrow School (1979) Q.B. 56. 103 Pilling v Abergale Urban District Council (1950) 1 K.B. 636. 444 Pressos Compamia Naviera S.A. and Others v Belgium (1995)21 E.H.R.R. 301
163
Pretty v United Kingdom (2002) 35 E.H.R.R. 1. 128 Prolife Alliance, R (on the application of) v British Broadcasting Corporation (2003) U.K.H.L. 23.
149
PUCL v Union of India A.I.R. 2003 S.C. 2363. 101 Punjab National Bank Limited v Its Workmen A.I.R. (1960) S.C.160. 195 R (Alconbury Ltd.) v Secretary of State for the Environment (2001) U.K.H.L. 23.
9, 221
R (Association of British Civilian Internees Far East Region) v Secretary of State for Defence (2003) Q.B. 1397.
8, 150
R (Begum) v Governors of Denbigh High School (2006) U.K.H.L. 15 219, 224 R (Daly) v Secretary of State for the Home Department (2001) U.K.H.L. 26.
8, 128, 142, 146,218, 222
R (F) (by his litigation friend F) v Secretary of State for Home Department (2010) U.K. S.C. 17.
145
R (Mehmood) v Secretary of State of Home Department (2001) 1 W.L.R. 840.
137
R (On the application of Farrakhan) v Secretary of State for Home Department (2002) Q.B. 1391.
131
R (On the Application of Pro Life Alliance) v B.B.C. (2003) U.K.H.L. 23.
176
R v Big M. Drug Mart (1985) 2 S.C.R. 295. 180 R v Birmingham City Council Ex- Parte Dredger (1994) 6 Admin. L.R. 553.
141
R v Cheltenham Commissoners (1841) 1 Q.B. 467. 103 R v Education Secretary, Ex-Party Begbie (2000) 1 W.L.R. 1115. 73 R v Goldstein (1983) 1 W.L.R. 151, 109 R v Hickman Ex- Parte Fox (1945) to C.L.R. 598 H.C. (Australia). 105 R v International Stock Exchange of the United Kingdom and the Republic of Ireland Ex-Parte Else (1982) Ltd. (1993) Q.B. 534.
141
R v Intervention Board for Agricultural Produce Ex-Parte E.D. and F. Man (Sugar) Limited (1986) 2 All. E.R. 115
152
R v Lancashire C.C. ex-parte Huddleston, (1986) 2 All E.R. 941 236
(xv)
R v Medical Appeal Tribunal Ex-Parte Gilmore. (1957) 1 Q.B. 574. 102 R v Ministry of Defence Ex- Parte Smith (1996) Q.B. 517. 146, 246 R v Ministry of Defence, ex-parte Smith, (1996) Q.B. 517 (C.A.). 219 R v Oake’s (1986) 1 S.C.R. 103. 124, 177 R v Oakes (1986) 1 S.C.R. 103. 111 R v Oxford ex-parte Levey (1987) 151 L.G. Rev. 371 5
R v Secretary of State for the Environment Ex- Parte Alconbory (2001) 2 W.L.R. 1389.
142, 146
R v Secretary of State for the Environment Transport and the Regions, Ex-Parte Holding and Barnes and Others (2001)E.W.H.L 23.
174
R v Secretary of State for the Home Department Ex- Parte Nadarajah (2005) E.W.C.A. Civ. 1363.
143
R v Secretary of State for the Home Department Ex-Parte Brind (1991) 1 A.C. 696.
8, 11, 123, 139, 249
R v Secretary of State for the Home Department Ex-Parte Simms (1999) 3 W.L.R. 328.
13, 173
R v Secretary of State for the Home Department, Ex-Parte Daly (2001) 2 W.L.R. 1622.
174
R v Secretary of State for the Home Department, Ex-Parte Hargreaves (1997) 1 W.L.R. 906.
140
R v Secretary of State for the Home Department, Ex-Party Daly (2001) U.K.H.L., 26.
75
R v Secretary of State for Trade and Industry Ex- parte Lonrho Plc (1989) 2 All. E.R. 609.
99
R v Secretary of State of the Home Department, Ex-parte Daly (2001) 3 All. E.R. 433 (HL).
189, 191
R v Secretary of State of the Home Department, Ex-parte Walker (2000)1W.L.R. 806
143
R v Shayler (2003) 1 A.C. 247. 127 R v Wear Valley District Council Ex-Parte Binks (1985) 2 All. E.R. 699.
141
R. Patnakar Rao v Andhra Pradesh (1996) 5 S.C.C. 359. 34 R.J.R. Macdonald I.N.C. v Attorney General of Canada (1995) 3 S.C.R. 199.
179
R.K. Jain v Union of India, (1993) 4 S.C.C. 119, 97 R.L. Arora v State of U.P. A.I.R. 1964 S.C. 1230. 45 R.M. Sheshadri v District Magistrate, Tangore A.I.R. 1952 Mad. 120.
35
R.S.D.V. v Finance Co. Pvt Ltd. v Vallabh Glass works Ltd 1993 S.C.R. 1 455.
107
Raghubir Singh v General Manager, Haryana Roadways, Hissar (2014) L.L.R. 1075 (S.C.),
199
Ram Krishna Dalmiya v Justice S.R. Tendulkar 1959 S.C.R. 279. 205 Ram Krishna v Justice Tendulkar A.I.R. 1958 S.C. 538. 33
(xvi)
Ram Sahib Ram Jawaya Kapoor Sons v State of Punjab A.I.R. 1955 S.C. 549.
30, 31
Rameshwar Prasad v Union of India A.I.R. 2006 S.C. 980. 77 Rampur Distillery Company Limited v Company Law Board and Others 1970 A.I.R. 1789.
47
Ranjit Singh etc. v Union of India A.I.R. 1981 S.C. 461. 50
Ranjit Thakur v Union of India and Others A.I.R. 1987 S.C. 2386. 11, 196, 203, 214, 248
Rasiklal Manik Chand Dhariwal and Another v M/s M.S.S. Food Products (2012) 2 S.C.C. 196.
199
Raymond Kohll v Union Des Caisses de maladie, C- 158/96, (1998) E.C.R.I. – 1931.
157
Regina v Barnsley Metropolitan Borough Council Ex-Parte Hork (1976) 1 W.L.R. 1052.
141
Registrar of Trade Marks v Ashok Chandra Rakhit 1955 S.C.R. (2) 252.
53
Rewe-Zentral A.G. v Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon) Case /20/78, (1979) E.C.R. 649.
155
Roberts v Hopwood (1925) A.C. 578. 63 Rohtas Industries v S.D. Agarwal A.I.R. 1969 S.C. 707. 7, 46, 55, 188 S. Paratap Singh v State of Punjab1964 S.C.R. (4) 733. 41 S.A.S. v France (2014) E.C.H.R. 695, 12, 164 S.K.Treham v General Manager, Northern Railway Headquarters Office, Delhi O.A. NO. 3129/2011,
215
S.R. Bommai v Union of India (1994) 3 S.C.C. 1. 98 S.S. Bola v B.D. Sharma A.I.R. 1997 S.C. 3127. 95 Saint Paul Luxembourg S.A. v Luxembourg Case No. 26419/10, decided on 18th April, 2013.
161
Satwant Singh v Assistant Passport Officer A.I.R. 1976 S.C. 1836. 33 Seco v Establishment d’ Assurance Joint Cases 62/81 and 63/81, (1982) E.C.R. 223,
125
Seminole Tribe of Fla. v Florida 517 U.S. 44 (1996). 168 Sharp v Wakefield (1891) A.P. Cases 173 2, 23
Shearer v Shields (1914) A.C. 808. 44 Sheel Kumar Roy v Secretary, Ministry of Defence and Others . (2007) 12 S.C.C. 162.
210
Sheffield and Horsham v United Kingdom (1999) 27 E.H.R.R. 163. 159 Sheonath Singh v Appellate Assistant Commissioner A.I.R. 1971 S.C. 2451.
55
Shibban Lal Saxena v The State of U.P. and Others A.I.R. 1954 A.I.R. 179.
48
Shreya Singhal v Union of India W.P.(Criminal)No.167 of 2012 231 Shri Lekha Vidyarthi v State of U.P., A.I.R. 1991 S.C. 537, 97 Shri Shubash Chandra v The Chairman, Indian Trade Promotion 215
(xvii)
Organization T.A. No. 02/2012, Sita Ram Sugar Co. Ltd. v Union of India (1990) 3S.C.C. 223 3
Sky Osterreich GmbH v Osterreichischer Rundfunk Case C-283/11, Judgement 21.01.2013
157
Smith and Grady v U.K. (1999) 29 E.H.R.R. 493. 146 Smt. S.R. Venkataraman v Union of India & Others 1979 S.C.R. (2) 202.
44
Smt. Somavanti and Others v The State of Punjab and Others 1963 A.I.R. 151.
51
Society for the Protection of Unborn Children Ireland Ltd. v Stephen Grogan et al C-159/90, (1991) E.C.R. I- 4685.
156
Somerville and Others v Scottish Ministers (2008) U.K.H.L. 44. 143 Sporrong and Lonnoth v Sweden (1982)5 E.H.R.R. 85 162, 164 State of Andhra Pradesh v MacDowell and Co. (1996) (3) S.C.C. 109.
203
State of Kerala v Mathai Verghese, 1986 (4) S.C.C. 746. 100 State of Kerala v Rama Swami Iyer and Sons A.I.R. 1966 S.C.1738. 107 State of Madhya Pradesh and Others v Hazarilal (2008) 3 S.C.C. 273.
10, 192, 250
State of Madras v V.G. Row and others 1952 S.C.R. 597 95, 206 State of Maharashtra v Kamal S. Durgule A.I.R. 1985 S.C. 119. 34 State of Punjab v V.K. Khanna & Others (A. No. 6963 of 2000 43 State of Rajasthan v Union of India A.I.R. 1977 S.C. 1361. 96 State of U.P. v Nand Kishore A.I.R. 1996 S.C. 1561 248
State of U.P. v Sheo Shankar Lal Shrivastava and Others (2006). 3 S.C.C. 276.
189, 192
Stran Greek Refineries and Stratis Andreadis v Greece. Commission Report of 12th May 1993, A.301-B,
163
Sunday Times v United Kingdom, Series A, No. 30, 2 E.H.R.R. 245, 136 Syed T.A. Naqshbandhi v State of J & K (2003) 9 S.C.C. 592. 100
Tata Cellular v Union of India 1994 (6) S.C. 651. 99, 101, 203, 237
Tennessee v Garner 471 U.S. 1 (1985). 124 Teri Oat Estates Pvt. Ltd v Union Territory of Chandigarh (2004) 2 S.C.C. 130.
10, 186
Tesco Stones v Secretary of State for Environment (1995) 1 W.L.R. 759.
147
The Chartered Bank, Bombay v The Chartered Bank Employee Union A.I.R. 1960 S.C.919.
195
The City of Boerne v Flores 521 U.S. 507 (1997). 167 The Handyside Case Series A, NO. 24, 1 E.H.R.R. 737. 161
The Queen Ex-Parte Yvonne Watts v Bedford Primary Case Trust and Secretary of State for Helath C- 372/04, (2006) E.C.R.I. – 4325.
157
The Queen v Minister of Agriculture, Fisheries and Food & Secretary of State for Health Ex-Parte: Fedesa et al Case C-331/48
156
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(1990) E.C.R. I-4023. The State of Bihar and Others v C.D. and C.M. Union and Another
Letters Patent Appeal No. 167 of 2005, 209
Theatre de Luxe (Halifax), Limited v Gledhill (1915) 2 K. 849. 64 Thomas Bonham v College of Physician’s, 8 C.O.Rep.107. 89
Thomas v Baptiste 91. (1999) 3 W.L.R. 249. 144
U.P. Shramic Mahasangh v State of U.P. A.I.R. 1960 All. 45, 94 Union of India v Deoki Nandan Agarwal, A.I.R. 1992 S.C. 96 100
Union of India v G. Gnanayutham (1997) 7 S.C.C. 463. 121,202, 206, 248
United States v Bajakajian 524 U.S. 321 (1998). 169 United States v Morrison 529 U.S. 598 (2000). 167 United States v O’Brien, 391, U.S. 367 (1968). 129 United States v Robel 389 U.S. 258 (1967). 170 V. Ramana v A.P.S.R.T.C. A.I.R. 2005 S.C. 3417. 208 V.K. Nehru v Chairman and Managing Director, I.T.D.C. O.A. NO. 4424 /2011
215
Vereinigung Demokratischer Soldaten Osterreichs and Gubi v Austria (1995) 20 E.H.R.R. 56.
160
Vernon v Vestry of St. James, West Minister (1880-81) LR 16 ch D. 449,
61
Vesilescu v Romania (1998) 28 E.H.R.R. 241 163 W.M. Agnani v Badri Das and Others (1965) 1 L.L.J. 684. 196 West Bengal v Anwar Ali Sarkar (1952) S.C.R. 284. 33 Westminster Corporation v London and North Western Railway (1905) AC 426, H.L. (U.K.).
62
Wheeler v Leicester City Council (1985) 1 A.C. 1054. 74 Y. Mahaboob Sheriff and Others v Mysore State Transport Authority and Others 1960 S.C.R. (2) 146.
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
(xx)
(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 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
(2)
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
(3)
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
(4)
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.
(5)
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
(6)
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
(7)
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.
(8)
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
(9)
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
(10)
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
(11)
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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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.
(35)
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.
(36)
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.
(41)
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.
(45)
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.
(46)
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.
(49)
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
(57)
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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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.
(61)
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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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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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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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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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
PROPORTIONALITY AND INTERNATIONAL PERSPECTIVE
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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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
CONCLUSION AND SUGGESTIONS
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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BIBLIOGRAPHY
Books Abraham, HernyJ The Judicial Process 4th ed., Oxford University Press,
1980.
Adler John,General Principals of Constitutional and Administrative Law
2002, 4thed.
Alexy Robert,A theory of Constitutional Rights, Oxford University press,
2002.
Andreescu Dana Apasstal, The Discretionary Power and Excess of
Power of the Public Authorities, All Beck Publishing House,
Bucharest, 1999.
Beaston, Mathews and Elliot’s Administrative Law: Text and Materials,
3rd ed., Oxford University Press.
Bent,Greeme Broad,Public Law Directions, Oxford University Press,
2009
Best G.,War and Law Since 1945, Oxford University Press, Oxford,
1994.
Bickel, Alexander, The Least Dangerous Branch,1962, Indianapolis:
Bobby Merrill, ISBN; 978 -0-300-03299-4.
BrierlyJ.,The Law of Nations,Clarendon Press, Oxford, 1928.
Cian. C. Murphy, Penny Green, Law and Outsiders: Norms, Process and
‘Othering’ in the 21st Century, Bloomsbury Publishing, 2011.
Ciccheti, Anna. Frosini, Justino. Gola, Marcello, Public Law and
Regulation, Collected Essays, Maggioli ed. 2011.
Clayton R. and Tomlinson H., The Law of Human Rights, Oxford
Press,2000.
(ii)
Craig P., Administrative Law, Sweet and Maxwell, London, 6th ed., 2008.
Craig Paul. P.,Administrative Law, Sweet and Maxwell, 2008.
Craig, P. D. Burca G., E.U. Law, Oxford University Press, 1998.
Danian Chalmers, European Union Law: Text and Materials, Cambridge
University Press, 2006.
Davis K.C., Discretionary Justice: A Preliminary Enquiry, Green Wood
Press, New Heaven, 1969.
Dicey, A.V. - Introduction to the Study of Law of the Constitution,
(MacMillan and Co.), 1885.
E. Ellis (ed.), The principle of Proportionality in the Laws of Europe,
Oxford Hart Publishing, 1999.
Elliott Mark, Beaston Jack and Mathews Martin, Administrative Law:
Text and Materials, 3rd ed., Oxford University Press.
Ellis Evelyn,The Principle of Proportionality in the Laws of Europe, Hart
Publishing, 1999.
Freund, Ernst Administrative Powers Over Persons and Property: A
Comparative Survey, Publisher B. Franklin 1928.
GardamJudith,Necessity, Proportionality and the Use of Force by States,
2004, Cambridge University Press.
Guibal M., De la Proportionalite, (1978) A.J.D.A.
Hanau,Hans Proportionality as an Element of Legal Concept, 2004, ed.
14.
Handler, Joel.F.,Protecting the Social Service Client: Legal and
Structural Controls, Academic Press, ed. 2014
Hickman, Tom Public Law after the Human Right Act, Bloomsbury
Publishing, ed. 2010.
HuscroftGrant,Miller W.Bradley, WeberGregoine, Proportionality and
Rule of Law, Cambridge University Press, 2014.
(iii)
Jain M.P., Principle of Administrative Law, ButterworthsWadhwa,
Nagpur, 2011.
Jain M.P.,Constitutional Law of India,Wadhwa and Co. Law Publishers,
Nagpur, 1993.
Jalowicz H.F. andNicals Barry,A Historical Introduction to the Study of
Roman Law, 3rd ed., 1972.
JesemyMcbride, 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.
Joseph P., Constitutional and Administrative Law of New Zealand, Sweet
and Maxwell, Wellington, 2007.
Jowell Jeffrey L. and Cooper Jonathan,Understanding Human Rights
Principles, Hart Publishing, 2001.
Keen M.,The Laws of War in the Late Middle Ages,Routledge, London,
1965, p. 66-67.
Kullick Andreas, Global Public Interest in International Investment Law,
Cambridge University Press, 2012.
KummMattias,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.
Lester and Pannick, Human Rights Law and Practice, 2nd ed., Lexis
Nexus Butterworth’s, 2000, para 3.19 note 3.
Markose, A.T., Judicial Control of Administrative Action in India, 406
(1956).
Messey I.P., Administrative Law, 7th ed., Eastern Book Company.
Montesquieu, Baron Charles deThe Spirit of Laws. Published in 1748,
Translated in French 1977, London.
(iv)
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.
Rao K.V.,Parliamentary Democracy of India,The World Press Pvt.
Calcutta,1961.
Saxena, Manju and Chandra, Harish, Law and Changing Society, Deep
and Deep Publication, ed. 1999
Scarman Sir Leslie, English law-The New Dimension, Hamlyn Lectures,
Twenty Sixth series, London, St. Evens and Sons Ltd, 1974.
Schwarth Bernard, Administrative Law , 2nd ed.
Sharpe R.J. and Roach K., Brind Dickson – A Judges Journey, University
Toronto Press, 2003 ed.
Sir Wade William and Forsyth Christopher, Administrative Law, 10th ed.,
Oxford University Press.
Takwani C.K., Lectures on Administrative Law, Eastern Book Company,
ed. 2007.
Tom Ginsburg, Rosalind Dixon, Comparitive Constitutional Law,
Edward Elgar Publishing, 2011.
Wade H.W.R.and Forsyth C.F., Administrative Law, 10th ed., Oxford
University Press, 2009.
William A Robson, Justice and Administrative Law, Sleven and Sons,
London, 1955, 3rd edition.
William Wade and Christopher Forsyth, Administrative Law, Oxford
University Press, 9th ed., 2004.
Articles
Anderson,Jack.,“Leading Cases in Sports Law”,Springer Science and
Business Media, 2013.
(v)
Andrew Le Sueur, "The Rise and Ruin of Unreasonableness", a.
lesueurebham. ac. uk, 2004.
Constitutionalism”, 2008, Yale Law Schools Faculty Scholarship Series,
2008.
Craig, Paul P., “ Proportionality, Rationality and Review”, Faculty of
Law, University of Oxford, 2010, New Zealand Law Review.
Crawford E., “ Proportionality In”, ed. by R.Wolfrum in, TheMase Planck
Encyclopedia of Public International Law, Vol. 8th, 2012.
D. Burca, G, “ Proportionality and Wednesbury Unreasonableness: The
Influence of European Legal Concepts on U.K. Law” , European
Public Law, 1997.
Dr.Andreescu Marius, “ Proportionality- A Constitutional Principle”,
January 2010, Article; Source: International Conference: CKS.
Ellitt M. , “ The Human Rights Act 1998 and the Standards of Substantive
Review” , (2001) 60, Cambridge Law Journal 301.
Engle Eric, “The History of the General Principle of Proportionality; an
Overview”, The Dartmouth Law Journal, Vol. 10th 1.
Evan H. Carninker, “ Appropriate Means Ends Constraint on Section 5
Powers” , 53 Stan.L.Rev.1127 (2001).
Frank T.M., “ On Proportionality of Counter Measures in International
Law”, American Journal of International Law, Vol. 102, No. 715,
2008.
Fuller L., “ The Forms and Limits of Adjudication”, (1978) 92 Harvard
Law Review 353.
Garreth Wong, “ Towards the Nut Cracker Principle: Reconsidering the
Objections to Proportionality” , (2000) Public Law 92.
Gupta, R.S., “ Administrative Discretion and Judicial System” Indian
Journal of Public Administration, 1980.
Hickman Tom,“ The Substance and Structure of Proportionality”,Public
Law, 2008.
(vi)
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.
J. Jowell and A. Lester, “ Proportionality: Neither Novel nor Dangerous”
quoted bySteven and Sons J. Jowell and D. Oliver (ed.), New
Directions in Judicial Review, London, 1988.
J. Jowell, “ The Democratic Necessity of Administrative Justice”, (2006)
ActaJuridica 13.
Jans H. Jans, “ Proportionality Revisited”, Legal Issues of Economic
Integration, Vol. 27, No. 3.
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.
Jowell and Lestor,“Beyond Wednesbury: Substantive Principles of
Administrative Law”, 1987, Public Law 368.
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.
Julian Rivers, “ Proportionality and Variable Intensity of Review” ,
Cambridge Law Journal, Volume 65, issue 01, 2006.
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.
Lacobucci F., “ Articulating a Rational Standard of Review Doctrine: A
Tribute to John Willis” (2002) 27 Queen’s Law Journal 859.
Lord Hoffman, “ A Sense of Proportion”, (1997) 32 Irish Jurist 49.
Marine Kunnecke, “ Tradition and Change in Administrative Law: An
Anglo-German Comparison”,Springer Science and Business Media,
2007.
(vii)
MubashshirSarshar, Monalisa Singh, MohitShripat and Mohit Sharma,
“ The Doctrine of Proportionality” ,Journal of National Law
University, Delhi, 2010.
P. Craig, “ The Courts, The Human Rights Act and Judicial Review”,
(2001) 117 Law Quarterly Review 589.
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.
Plowden P. and Kerrijan K., “Juridical Review- A New Test?”, 2001,
New Law Journal, 1291.
Raman M.S., “ Discretion” , The Cuttack Law Times, Vol.88, 1999
S. Boyron, “ Proportionality in English Administrative Law : A Faculty
Translation” , Oxford Journal of Legal Studies, 1992.
SchwarzeJurgen,“ European Administrative Law"Office for Official
Publications for European Communities 2006.
Griffith I.A.G., ‘Judicial Decision Making in Public Law’ , 1985, Public
Law 564.
SirLaws J., “Is the High Court the Guardian of Fundamental
Constitutional Rights”, (1993) P.L. 59.
Stone Sweet and J Matthewes, “ Proportionality by Balancing and Global
Constitutionalism,” (2008) 47 Columbia Journal of Trasnational Law
72.
T. Owen, “ Fair Trials Rights, Due Deference and the Wider Impact of the
Human Rights Act in Administrative Law” quoted in J. Jowell and
Cooper J. (ed.), Delivering Rights : How the Human Rights Act is
Working, Hart Publishing, Oxford, 2003.
Tarun Krishna Kumar, “ The Wednesbury Principles: Formulation,
Evolution and Demise” , Comparative Constitutional Law and
Administrative Law Quarterly, Vol. 1, Issue 1, April 2013.
(viii)
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.
Tom Hickman, “ The Substance and Structure of Proportionality” , 2008,
Public Law 694.
TreanorWilliam,“Judicial Review Before Marbury” , 58, Stanford Law
Review, 455, 457-58, (2005) 17.3 U.S. (3 Dall) 171 (1796).
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.
Wolf Sauter, “Proportionality in E.U. law: A Balancing Act”, TILEC
Discussion Paper No. DP-2013-003, available at SSRN, pdfid No.
2208467
Yutaka Arai, Yukata Arai Takahashi, “ The Margin of Appreciation
Doctrine and Principle of Proportionality in the Jurisprudence of the
E.C.H.R.”, Intercentianv, 2002.
e-articles
Aristotle, The Nicomachean Ethics, Book 3rd , Chapter 10-12. Translated
by Anthony Kenny, Kindle Edition, 2011, Oxford World Classics.
http://www.amazon.in
Barclay Theo, “The Proportionality Test in U.K. Administrative Law”,
www.sjol.co.uk/issue-3/proportionality.
Barclay Theo, ‘‘ The Proportionality test in U.K. Administrative Law-a
New Ground of Review, or a fading Exception’’ www.sfd.co.uk.
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.
(ix)
Hunter Steven, “Proportionality: A Creep Towards Merit Based Review”,
Article Dated 9-6-2013, University of Bristol, available at
stevenhunter.me.
IHL Resource Centre, 30-10-2013, “Basic Principles of
IHL”.http://www.icrc.org/en/war-and-law/ihl-other-legal-regmies/
Justice Lady Arden, “ Proportionality The Way Ahead”, Speech at the
United Kingdom Association of European Law Annual Address, 12
November. 2012, www.judiciary.gov.uk.
Karjee, ShankarKumar.blogspot.in/2012/04/colourable-exercise- of
power.html.
Kumar, Laksheyender “ Abuse of Administrative Discretion” , 2011,
www.legal services.com.
Kumar, TarunKirshna. "The Wednesbury Principles: Formulaiton,
Moller Kai, “Proportionality: Challenging the Critic”, 2012, I.Con
(2012) Vol. 10.
NabulsiKarma,“ Jus Ad Bellum/Jus In Bello”, www.crimesofwar.org.
Prof.TaskovskaDobrinka, “On Historical and Theoretical Origins of
Proportionality Principle”,www.law-reveiw, mk/ pdf, p. 1 and.
Rajan Varghese, "The Relevance of Wednesbury Unreasonableness",
www.iipa.org.in/g-rajan. pdf at p. 91.
Yeung, Karen “Better Regulation and Administrative Sanctions and
Constitutional Values,” 25th October 2012
Web links
cifo.in/uploads/administrative.
en.wikipedia.org/wiki/judicial-review#cite-ref-1.
en.wikipedia.org/wiki/Judicial-review-in-English-law.
en.wikipedia.org/wiki/Marbury-v-Madison.
(x)
en.wikipedia.org/wiki/margin-of-appreciation.
en.wikipedia.org/wiki/ouster – clause.
Europa.en/legislation-summaries/glossary/proportioabnlity-en.htm.
http//permin.gov.in.
http://oll.libertyfund.org/title/533/90737/2052898.
http://www/ccel,org/a/Aquinas/summa/ss.html.
indiakanoon.org/doc/234426.
Kalyan-city.blogspot.com.
legal-dictionary.reference.com/browse/discretion.
legal-dictionary.reference.com/browse/discretion.
Shodh Ganga.inflibnet.ac.in:8080/jspui/bitstream.
www.corteidh.or.cr/r30064.pdf
www.corteidh.or.cr/tableas/r30064.pdf.
www.dutaime.org/legaldictionary/j/judicialreview.aspx.
www.internatiaonal seminar. org. pdf.
www.iosrjournals.org.
www.justis.com/titles/iclr-54821028.html, and oxycheps. new. ox.ac.
uk/casebook/resources/ASSOCI-DOC.pdf.
www.lawteacher.net/free-law-essays.
www.uab.ro/reviste-recumoscute/reviste-drept/amales.pdf.