Introduction:
The doctrine of proportionality, the terminology has its true connection with Administrative Law and has its prior usage at the point or question of judicial review. The doctrine states or points that; there should be a cord or a connection between the result we are expecting and the measures or steps taken to accomplish the set goal. One must keep in mind that the steps taken should not be uneven to the aspect that the court embarks and the action taken can be challenged for the judicial review anytime. The whole matter can be well understood with the help of an example as if on a certain place of work or factory the workers were not present for the performance of their duty then the punishment given for this must be commensurable as here employer could treat it as the leave for which payment will not be issued or can alert them to not repeat this again or even can charge some fine from them but taking an extreme step by firing them from their term of service is injustice or disproportional.
Sir John Lawes defined the meaning of proportionality in a very important aspect as this is a principle where the court is worried about how a decision has been pronounced or to whom priority has been given while adjudging.
Not only this, Sir Diplock while adjudicating the famous case R v. Goldstein[1] in 1983 said some specific lines about proportionality which were, This was a sledgehammer used to crack a nut, basically proportionality involved the balance test which keeps examining the all excess or arbitrary punishments up to all the necessary tests, which usually takes into consideration all other bitless alternates. This must be kept in mind that the judicial review of all the executive and legislative actions is termed as one of the most important developments determined in the last century. But the whole aspect and concept of judicial review was developed much back in 1803, basically in the famous case of Marbury v. Madison[2] and it has due recognition in the later periods of 20th century so in the repercussions of World War II democracy shines as the most important governing principle in many countries of the world. By then the theme of judicial review was in consideration as well as in discussion, and also termed as central theme to discuss in ambit of administrative law.
While comparing Executive and Legislative actions it’s the judicial review of executive action that stimulated and enriched content, and going more specifically this change had vast impact from last two decades. Basically due to the growth of modern state or societies accompanied with new technological advances the need raised for the legislature to not only leave all such big areas of jurisdiction for the administrative authority but also impacts to drop its several powers and functions as well.
Though all these changes lead modern-day bureaucrat converting more powerful. All this has resulted in the misuse of powers and functions vested in the hands of it also be demanding or enforcing frequent judicial interventions in it. But this thing should be kept in mind that this intervention should never lead to the consequences where judiciary would encroach the areas which were solemnly reserved for executive. That’s why the rules should be made keeping in mind that jurisdiction of judicial review should be up to the mark where it can prevent arbitrariness or abuse of discretion that has been mentioned for the executive. Talking about the limiting function, basically to achieve his function common law and civil law countries adopted different processes for this.
While talking about the common law countries they have adopted the new concept of secondary review and were developed with keen intention to achieve limiting function mentioned for judicial review. Within this mentioned concept the courts use to intervenes or set aside all executive orders only if it suffers or relates the unreasonableness of Wednesbury, so this was a landmark judgment named Associated provisional Pictures Houses v. Wednesbury Corporation[3], 1947 which simply means or states that the order should be so preposterous that no conscious observant could ever dream that this particular thing lays in the hands of any administrative authority.
Speaking about all Civil law countries, so these countries developed the concept of proportionality based review or Primary review which is termed as a more exquisite form of judicial review. So principle of proportionality means that all administrative measures should not be drastic than a limit or necessity which is necessary for a specific result. While common law countries prefer or adopt Secondary review, they cannot ignore review based on proportionality. This rule is not only because of the perks which are associated with review based on proportionality but somehow because of the establishments or decisions of European Courts. [4]
India, which was back then the colonial state of the British Empire, adopted the common law systems that have been originated from the British Empire. So when India achieved independence and became independent the government decided to adopt the common law system and not to change its ingredients or framework as well. Indian courts have always given values for the precedents passed by the British Courts while deciding all domiciliary disputes. This involvement had made this possible for India to develop Administrative Law.
Even with having the power of Article 32 and Article 226 read with Article 13 where the Constitution of India has already given a lot of power to the judiciary to intervene in administrative actions, still Indian Courts have adopted the concept enshrined in Wednesbury’s case. Nevertheless while looking up to all fast-growing countries in the world with the doctrine of proportionality which had some common law countries as well, the Indian Legal system has also finally adopted the concept with the landmark judgment of Omkumar v. Union of India, where the Supreme Court with its judgment recognized doctrine of proportionality as part of Indian Constitution.
India’s outlook on Doctrine of Proportionality
While looking through the viewpoint of the Indian Supreme Court about Doctrine of Proportionality, so Indian Supreme Court dealt first time with the application in reference to Doctrine of Proportionality in the landmark judgment of Union of India v. G. Ganayutham[5], 2006. In the particular case, Supreme Court very minutely reviewed the laws which are related to Wednedbury’s unreasonableness and the proportionality that prevails in England, and by a due discussion held that Wednesbury’s principles will be applicable in India and will act as a guiding principle but up to an extent where fundamental rights don’t involve. But the court also decided to set out from an argument where the case involves the facts relating to the infringement of Fundamental Rights of citizens.
Succeeding the Supreme Court came up with the historic decision in the Omkumar v. Union of India[6]. Also, this was the case when the Court involved application related to the Doctrine of Proportionality in India. This was the sudden discovery faced or come up in front of Supreme Court while discussing on the matter that Indian Courts have already been applying all the principles related to Doctrine of Proportionality since 1950 while they deal with the validity of all legislative measures, specifically in legislations infringing or barding the fundamental freedom of citizens mentioned in Article 19(1) of Constitution of India.
This has been said by the Honourable Supreme Court of India that there were many instances in which there could be restrictions or rules that were disproportionate according to the situation but also less restrictive of some choices. The same position was related to legislations that were in influence of Article 14 and also Article 21 of the Constitution of India.[7] After reading the draft of Doctrine of Proportionality of England in length and breadth Supreme Court decided to apply the similar aspects in India as well and being in the same position.
By the deep research of various committees, this was found that all the administrative actions in India that affect fundamental freedoms mentioned in Article 19 and Article 21 and always have been tested for the farrier of proportionality, even this was not clearly mentioned or we can say expressly mentioned that principle which is mentioned is a complete proportionality principle. This must be kept in mind that the Doctrine of Proportionality is always applicable to the Judicial Review of all the administrative action that is similarly violative of specific provisions like Article 19 and 21 of the Constitution of India.
According to Article 14 of the Constitution of India’s Supreme Court specifically mentions that when certain administrative actions are confronted as discriminatory, at that particular time courts would say or carry out a Doctrine of Proportionality using a Primary Review. Although this is a set rule that whenever an administrative action is questioned as capricious, here the principle of Secondary review based on all Wednesbury principle applies. Supreme Court also mentions that the specified punishment in service law is often challenged as capricious under Article 14 of the Constitution of India, though only secondary review based on the Wednesbury principle applies.[8]
Inquisitively, the Principle of Proportionality has two aspects of decisions:
- This has to be measured that aspects of different objectives were correctly or fairly balanced or not?
- The measure which is in question was circumstantially cramped or putting unnecessary pressure on all affected persons.
In all the cases like these court will not be concerned about the faultlessness of the decisions but we’ll be more focused on the method adopted to reach the decision. Usually, the decision-making process gives less importance to other aspects of the case, and at that particular point basically doctrine of proportionality set foot in.[9]
Taking into consideration the famous case Ranjit Thakur V. Union of India[10], in this particular case, an Army officer simply defy the orders of his senior by not eating the food offered to him. Following the proceedings started in the Court Martial and then he was sentenced to 1 year of rigorous punishment and also dismissed from the job or service and attained the tag for not being qualified for any future employment or services. In this case, particularly held that judicial review is needed but not for the decision but against the decision making process.
The question that was asked for the choice or quantum of the punishment was purely right or correct and within the jurisdiction of Court Martial but the real aspect that was in question is the offense and the punishment for the offense to offender must be in parity. This must be noted that they must not be vengeful or excessively brutal. In any case, it should not be of the level that it causes or being termed as disproportionate or being termed as decision consists of the essence of business. Doctrine of proportionality is the part of the concept of judicial review, and the concept will also take care of the aspect in which court has given its sentence which outrageous of logic and in that particular point of time decision has to go from the clearance of judicial review as this is proved that all powers have their set legal limits.
Conclusion
From the above study, it has been clear that the concept of Wednesbury unreasonableness is a failure or has been declined in the present scenario. Moreover, it will be so soon that the concept will be replaced by the doctrine of proportionality which is a much wider and an impactful concept. The concept looks into an account like whether the decision-maker has properly balanced or not all the factors that he must have to take into account while delivering or pronouncing a judgment. And then there are two models which come into the picture which are British and European model. And through the above analysis and the facts, the European model is much more effective.
While speaking about the Indian scenario, so the in Indian context it is clear that even if the proportionality has been made or termed as an important part of the Constitution in early 2000, there is hardly any significant use of the concept. Indian Courts also have some related power designed in the name of this doctrine and have a very narrow or short approach in its extant. But in my opinion, it is highly recommended that courts should establish adequately and must apply the principles in order to prevent harsh decisions of administrative bodies specifically in the cases where they exceed the requirement and performs or comes in the ratio of capriciousness. So it’ll be the duty of the courts to regard the position of executive bodies but need to understand that doctrine specifically doesn’t about to regulate the position of any executive authority but specifically meant to regulate every action of the administrative body. This will not only for the development of a just legal system but also for the protection of rights and freedoms of every single citizen of the country. But this is a theory of various jurists that sooner or later India will have to consider implementation of proportionality principle actively as human rights jurisprudence that comes in picture to influence legal system not only includes fundamental rights but some other rights also.
References:
[1] R V. Goldstein 1983 (1) WLR 151.
[2]Marbury V. Madison, 5 US 137 (1803).
[3] Associated Provisional Picture Houses Vs. Wednesbury Corporation (1947) 2 All ER 74 (CA).
[4] For e.g., See John Adler, General Principles of Constitutional and Administrative law, (4th ed., 2002) p. 368.
[5] Union of India Vs. G. Ganayutham, (2006) 65 (1) C.L.J.174, p. 175.
[6] Om Kumar v. Union of India AIR 2000 SC 3689.
[7] Ibid.
[8] Justice Anand Byrareddy, Proportionality vis-à-vis irrationality in administrative law, (2008) 7 SCC J-29.
[9] Maharashtra Law Development Corporation V. State of Maharashtra, (2011) 15 SCC 616.
[10] Ranjit Thakur V. Union of India, 1987 4 SCC 611.
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