Introduction:
Over the past century, one of the finest evolutions in the domain of public law has been the judicial review of legislative and executive action. The Doctrine of Proportionality is identified as the principle of the interpretation of legal provisions that maintain equality and justice. It is one of the main ground used in legal reviews of cases relating to the administrative action. Nowadays, both legal and governmental authorities enjoy greater electoral power. These powers ought to be utilized for the interest of the public but as the wide range of authorities and officials who have been given the power to see, often the power of perception is being misused.
It is the doctrine that the punishment imposed must not be as per the crime the person has committed or the methods used by the authorities to achieve a particular purpose or the consequences ought not to be beyond the limits required to achieve the same. In any such case where the administrative action performed by anybody is discovered to be so unreasonable that no rational professional can take those actions or apply the methods used, in such cases those functions are subject to debt and terminated by legal review using the proportionality doctrine.
Origin and Development: From Reasonableness to Proportionality
The doctrine of proportionality was established in Europe and is one of the most important parts of European governance. In Britain, the principle of long-term equality has been treated as part of Wednesday’s principle[1] of unreasonableness that has raised fundamental assumptions that should be followed by any civil society organization in their decisions, which means that if there is an unreasonable choice to the extent that no rational professional can take those actions or apply the methods used, in such cases those activities are subject to liability and are removed by legal review.
Various positions have been accepted by the court of law on Justice interventions in relation to judicial review while working on the doctrine of proportionality as part of Wednesday’s policy. It was noted that Wednesday’s principle includes the test of reasonability with heightened scrutiny.[2] This means that while applying this policy not only the decisions must be at the right limits but also that there must be a balance between good and bad in the outcome of administrative actions.[3]Because for the same reason the magnitude of the judicial review is as large and substantial as in the case of the proportionality test than in the case of the Comprehension test.
An Indian Scenario: Proportionality and Article 14 of the Constitution of India
The very idea of proportionality in India is severely restricted from a broader perspective because it doesn’t conform to the traditional customary law of the Judge’s review. Where the court of law is the second reviewer of decisions taken by administrative bodies. In the overall legal system, major reviews are made by administrative courts as they may interfere with the legitimacy of administrative decisions. While the courts act as a second reviewer and use the Proportionality Principle in an exceptionally restrictive sense since they are not permitted to evaluate the merits or failures of any administrative decisions.
In India, the proportionality principle is established in the constitution that guarantees basic human rights in contrast with the constitutional law of England. Article 14 of the COI is one of the most significant provisions in which the action that the governing bodies take can be reviewed. Appropriate assessment must be fulfilled by the administrative actions under article 14 of the COI. Justice P.N. Bhagwati has read the provision law under Article 14 as:
“The 14th strike strikes apartheid and guarantees fair treatment and equality. The principle of reasoning, logically and philosophically, is an important factor inequality or non-oppression in section 14 which is exactly the same as collapse. ”
Any blatant act committed by the governing body will be disregarded as it provides uncontrolled power and the extent of discrimination. The perception to be used by the administrator should be governed by the administrator itself. In the event that it isn’t controlled by the authorities, the court of law will enforce or impose a part of the actions that the authorities considered illegal. Appropriate leads should be given to the importance of consideration and dictatorship of actions taken by administrative bodies whenever testing the limit of the cognitive power under Article 14.
It can be contended that the Supreme Court used an unreasonable competence test and an equitable equity measurement process. Decisions regarding administrative law affecting fundamental human rights are often tested against the principle of proportionality, or it may not always be explicitly expressed that the principle of proportionality has been recognized by a court of law.
Numerous decisions have been passed by Indian courts explaining the principle of proportionality under paragraphs 14 and 19[4] of COI. In such a judgment passed by the court of law in the case of Ranjit Thakur v. Union of India,[5] the court found that:
“The doctrine of proportionality, as a major part of the idea of a judicial review, will ensure that, in any case, in a special jurisdiction of the military tribunal, if the court’s ruling on sentencing is serious, then the sentence would not be protected from correction. Irresponsibility and corruption are well-known reasons for court reviews. ”
Fundamental Freedoms
In such cases where the fundamental freedoms are confined by administrative action, in such cases, the doctrine of proportionality is used for the purpose of assessing the legitimacy of these restrictions. In Om Kumar v UOI[6] the SC considered that the limits set on basic freedom are always tested in an “equitable environment”, the SC even claimed that the courts of law have used this doctrine for testing the limits imposed by administrative actions since 1950.
The proportionality doctrine is applied in such cases where fundamental rights have been confined by administrators by their actions, the court of law in these cases attempts to find out if the body’s measurement is a barrier in achieving the goal otherwise the limit set by the administrative body will be violated using this doctrine. In such cases where the rights that are granted under Article 19 (1) & Article 21 of the COI are determined by the actions taken by the administrator, then the courts act as the principal reviewer and apply the doctrine of proportionality. It is contended that a court of law has jurisdiction to go into a valid case while applying the doctrine of proportionality in such cases relating to fundamental rights.
An International Perspective (Development In England)
Whether the action was accurate. The court of law could likewise consider whether the decision that is made by the authorities was invalid or corrupt. The decision taken may be one of the many decisions and the court will not change its opinion.[7] These same principles were as often as possible were followed in the UK when judging the authenticity of actions performed by administrative bodies. However, amidst further development in, 1985, in Union Council v. The Department of Public Works,[8] Lord Diplock had summarized the principle of review of administrative action as dependent on one or other illegal and inappropriate assumptions of procedure. Similarly, it pointed out, however, that the doctrine of proportionality as a system of judicial review can be obtained later similarly as that found in many member states of the European Economic Community.
R. V. Home Secretary ex part Brind,[9] The House of Lords is not ready to acknowledge that this concept still stands for a separate and different theme of Judicial review. Recognizing that proportionality was a separate subject under review under the European Convention on Human Rights, Lord Ackner decided:
“Unless Parliament has enacted this convention in domestic law … it seems that at the moment there is no reason why the doctrine of proportionality used by the European Court cannot be followed by the courts of this country.”
However, judges appear to be using various forms of this doctrine and while it seems that it is agreed that proportionality isn’t a portion of English law, proportionality can be used to find out if a decision was unreasonable or not. For instance in Brind’s case, Lord Ackner sadly asked if the Secretary of State had used a sling hammer to break us ’. In most cases, it’s very clear that the doctrine of proportionality has been used by the court of law but without making clear indications of that. For example in R. v. Barnsley Metropolitan Borough Council ex parte Hook,[10] The store owner’s license was revoked due to public urination. The decision was marginally overturned by Lord Denning MR because the fine – loss of license – was not commensurate with the ‘offense’.
In the year 1996, in R. V. Ministry of Defense ex parte Smith,[11] the same law was reiterated. Lord Bingham had explained that for the instant case the rights of the passers-by as the right persons in the court case could be pushed by the court rather than the chief executive.
In such a manner, it seems that the doctrine of proportionality as a reason for reviewing administrative measures is not yet available but may be available later on when the European Human Rights Convention is enacted in England’s domestic law.
Cases Laws
In Om Kumar compared to UOI[12], the limited application of the Proportionality Doctrine was approved by SC. The SC explained the concept that the administrative action could be attributed to compelling reasons under Article 14 of the COI and the size couldn’t be utilized by the court of law as the primary observer. Wednesday’s policy ought to be used by the Court of law as a second observer. This implies the courts can only negotiate measures that are taken by administrative bodies in the case of contravention of Wednesday’s policy.[13]
A similar principle was even emphasized by the high court in the bank of Canara v. V.K. Awusthy.[14] The court had held that a court of law couldn’t interfere with an administrative action because it was inconsistent unless it was the first case of ambiguity or corruption. It can’t be used for compassionate reasons, taking it as an unequal punishment.[15] High levels of uniformity ought to be followed.
In Indian Airlines Ltd. V. Prabha D. Kannan, Court had held that where no appeal has been lodged against an administrative order, a legal review of such cases may be maintained. Besides the high court while exercising its jurisdiction under section 226 of the COI, to take such a review doesn’t need to restrict itself to the usual tests of review i.e. illegality, ambiguity, and improper procedure.
The bench even held that in such instances of legal review the court of law required it to consider the issue in-depth and place those orders in an in-depth investigation that goes beyond the three above tests. S.C. In some cases, it is expected to go into the unity of a specific set of rules and the power of legal review for those administrative actions. The Supreme Court of India, while dealing with this issue, noted that the latter was indeed changing the status quo, in particular, the removal of sovereign activities by the state; S.C has been raising the degree of legal review. Bench even said that “the doctrine of irrationality has now replaced the doctrine of proportionality”.
Conclusion
The Indian courts were provided with the regulatory forces in the very name of this doctrine of proportionality. The Doctrine has adopted an extremely narrower approach in its existence. It is exceptionally important that the doctrine ought to build up itself in its legitimate way and must be applied to restrict the administrative actions in the chains of proportionality in such cases when they surpass the prerequisite of reasonability came into the framework of being arbitrary. In spite of the fact that it is the obligation of the courts to respect the position of the administrative body, it’s very vital to study that the doctrine isn’t to decide the position of any of the administrative bodies yet so as to look after each action so that none of the action taken by anybody ought to be beyond the current extent of the principle of law.
Eventually, the Indian courts should actively consider the usages of proportionality doctrine in every case that comes before the courts irrespective of whether the fundamental or ordinary rights of the masses are in question. The reason for this is the way in which human rights jurisprudence that has come to influence the legal framework incorporates the fundamental rights as well as the other rights of the masses
References:
[1] The Wednesbury’s principle was laid down in Associated Provincial Picture House v. Wednesbury Corporation, 1 K.B. 223(1948).
[2] R v. Secretary of State for Homes Department, (2001) 2 A.C. 532 (India).
[3] Abhinav Chandrachud, Wednesbury Reformulated; Proportionality and the Supreme Court of India, 13 OXFORD U. COMMONWEALTH L. J. 191-208 (2013)
[4] State v. Baboo Lai, AIR 1956 All 571; Hamam Singh v. Punjab, AIR 1958 Punj. 243
[5] 1988 SCR (1) 512
[6] Om Kumar v. Union of India, AIR 2000 SC 3689.
[7] Associated Provincial Picture House v. Wednesbury Corpn. (1948)1 KB 223
[8] (1985) AC 374
[9] (1991)1 AC 696;
[10] (1976)1 WLR 1052.
[11] (1996)1 All ER 257
[12] A.I.R. 2000 S.C. 3689(India).
[13] Union of India v. R K Sharma, A.I.R. 2001 S.C. 3053 (India).
[14] A.I.R. 2001 S.C. 3053 (India).
[15] Mubashshir Sarshar, The Doctrine of Proportionality, (Aug. 01, 2018, 10:AM), http://works.bepress.com/mubashshir/20/.
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