Introduction
“Proportionality,” according to Sir John Laws, the adjudicator is interested in how the authoritative has prioritised his options.[1]
A direct engagement between Germany, France, and other European governments in nineteenth-century Persia gave rise to this idea[2]. Whenever a government action violates a right and the courts investigate administrative activity directly and bring a case to court, the principle of proportionality applies to such a situation. There is a quarry about the accuracy of the authority’s decisions.
You can’t shoot a sparrow with a cannon, so it’s not possible. And so, this philosophy seeks to strike a balance between means and goals. As a basis and genuine expectation, the Court created the “Wednesbury test[3]” to determine the “irrationality” of an administrative decision made by the administrative authority, provided that it is based on a reasonable basis. A decision that contradicts logic or established moral norms in such a way that no rational individual could make such a conclusion given the facts and circumstances is one that is beyond the reach of the law, is not supported by evidence and is dependent on extraneous considerations.
An agency’s actions must be in proportion to the object and the precise goals sought to be achieved, including the tools employed by its workers to achieve those objectives, in order to infringe on individual rights as much as feasible. As a result of the Proportionality Doctrine, courts may invalidate any administrative action that discriminates arbitrarily or uses excessive techniques to achieve the desired goals.
Three factors make up proportionality:
- Suitable goal
- A connection that is logical
- (Proportionality stricto sensu – sometimes known as ‘balance’) A correct relationship between the advantage received by achieving the legitimate goal and the harm caused to the constitutional right.[4]
Documental Change
It has been utilised by the Indian Supreme Court since 1950 to evaluate legislative acts based on proportionality an administrative decision is challenged as a discretionary power, as described in Article 14 of the Constitution. Using the Wednesbury principle, article 14 challenges administrative actions as “arbitrary.” India’s courts examined whether the classification was based on discernible characteristics and if they were related to the legislative goal in a fair manner under Article 14. In other terms, the courts were debating the legitimacy and appropriateness of this distinction. In this case, the concept of proportionality is being used.
The notion of proportionality can be found in Administrative Law and is employed in Judicial Review proceedings. A believable link must exist between the targeted goal and the measures followed to get there, according to the doctrine. The action adopted must not be egregiously out of proportion to the court’s knowledge, and it can be questioned through the judicial review process.
Judicial review of legislative and executive action is one of the most significant advances in public law in the past century. It wasn’t until after World War II, when democracy became the dominant political paradigm around the world, that the concept of judicial review began to be widely employed. Judicial Review’s range and scope have subsequently been a hot topic of debate in the field of administrative law.
A large amount of content has been added to the Judicial Review of Executive Action (Administrative Action) in the previous two decades. Modern welfare states and technology improvements have led to the legislative surrendering many of its tasks to the administrative authorities, as well as granting it extensive discretionary power.
Because of this, contemporary bureaucracy wields immense influence. This leads to him abusing the authority of discretion that has been given upon him, which prompts numerous court interventions. As a result of this approach, the Judiciary should not infringe on areas reserved for the Executive Branch. To prevent abuse of executive power, the scope and reach of the Judicial Review must be kept to a minimum. To fulfil Judicial Review’s limited goal, the common law and civil law systems developed different procedures. In common law jurisdictions, a secondary review was designed to counter the limited role of judicial review. If an administrative order violates Wednesbury’s unreasonableness, it will be overturned by a court under secondary review.[5]
When it comes to judicial review in civil law regimes, however, the idea of proportionality-based review (Primary Review) has been evolved. This principle dictates that administrative measures should not be more severe than necessary in order to achieve the desired outcome. Common law countries may favour a secondary review, but proportionality-based evaluation cannot be ignored forever. In addition to the benefits of proportionality-based assessment, this was due to the establishment of a European Court and the emergence of a distinct pan-European jurisprudence based on civil law notions.
The India Concept of Proportionality Doctrine
Proportionality in its broadest sense is still a new idea in India. So far, only a very limited version of it has been deployed. As a result, common-law judicial review practises are at odds with the broad premise of the case. Because administrative tribunals, which are not courts, are charged with being the primary reviewer of administrative activities in Europe, it is possible to follow the general principle of proportionality. An administrative decision’s merits are rarely scrutinised by a court under common law.
Courts in India use the idea of proportionality sparingly. Unlike in European administrative law, the principle is included into Article 14 of the Constitution rather than being a separate principle. The Wednesbury test[6] will be used to determine whether an administrative order is rational or reasonable when it is challenged as arbitrary under Article 14. Under this Article, arbitrary administrative decisions may be overturned.[7] Any action taken arbitrarily by an administrator is irrational and unjustifiable. As a corollary, administrative punishments are governed by a very severe interpretation of proportionality. To begin, a disciplinary authority’s decision on how much punishment to inflict on a government employee for misconduct at work is entirely up to them. Another argument is that due to the limitations imposed by Article 14, the punishment must be appropriate. Article 14 is violated if the punishment imposed is disproportionate. In cases where a sentence is clearly disproportionate, the court can weigh in. Due to a lack of sympathy or, because the penalty is disproportionate, the court will not intervene in the issue of punishment. The court would only intervene in extreme circumstances, such as those that appear to be twisted or unreasonable on the surface. As a result, the Wednesbury test[8] should be used in these situations.
India and the Doctrine
Use of this concept can be seen in India when it comes to fundamental rights. Wednesbury principles are used by our courts and tribunals to examine the legitimacy of executive or administrative action taken in the exercise of statutory powers in circumstances that do not involve fundamental freedoms. Wednesbury tests can only be used by the courts as a secondary review court to determine if the executive or administrator in their primary duties made an appropriate decision.
However, the Court clarified that in order to conduct a judicial review of a decision-making process, it must first determine if the process was legitimate. An action cannot be justified based on the mere possibility of a certain point of view. This means that if a decision is found to be unconstitutional or unreasonable, the courts will not intervene.[9]
A paring knife would suffice, according to the Supreme Court. So before making or overturning a decision, courts should evaluate administrative goals and methods. There has been an attempt by the judiciary, however, to find a middle ground between this notion and the “flexibility theory.”[10]
The Apex court determined that proportionality is fully applicable in constitutional adjudication when a court must determine whether restrictions on essential rights are acceptable, in Union of India v. G. Ganayutham[11]. However, its application in administrative law is still in its infancy. In administrative law, the principle is no longer applicable, as the court cannot enquire into the administrator’s judgement and priority setting. Positivity implies, as everyone knows, a sense of balance between interests or goals, and a sense of an adequate ratio between means and results. This requires identifying and weighing related interests. An assessment of the appropriateness of the public body’s action could then be made. Typically, a three-type analysis will be used. Weight must be assigned to each of the interests that are intertwined. It would then be possible to determine whether or not the public body’s actions were proportionate. The most common formulation is a three-type analysis.[12]
- To what extent the measure was necessary to achieve the desired goal.
- Determine if the measure was effective in achieving the aim.
- No matter what, does it impose unreasonably high demands on the individual Proper proportionality refers to the last section of this study.
On top of that, the court alluded to its own past rulings, which held that the court’s ability to intervene in the punishment’s severity was only available in rare situations.[13]
After all, “verbal abuse may result in termination from employment,” says the court. The concept of proportionality is used by the Court in a limited way. Wednesbury unreasonableness is losing ground to proportionality in the current context, according to the court in the state of U.P. v. Sheo Shanker Lal Srivastava.[14]
Judges must take into account the alleged infringed right’s nature as well as its intended purpose, the scope and urgency with which the evil sought to be addressed, the imposition’s disproportion, and any prevailing circumstances at the time.
Conclusion
As a means of determining a public authority’s legal authority, it is highly effective. As a fundamental feature of our Constitution, judicial review is widely regarded as a must. Administrative law’s judicial review has become increasingly important as administrative authorities’ powers have grown. The main purpose of judicial review is to protect the interests of its citizens from the abuse of administrative powers or illegal actions of the administrative authorities.
In the absence of a single statutory provision or dedicated case law, a basic proportionality principle enumerating the significance of balancing rights against freedoms and punishments against the magnitude of the crime committed did not become a legal theory. Due to the fact that it protects an individual’s rights through regulated government activity, the proportionality theory has become an integral part of modern law.
As a result, India has a lot of potential and utility when it comes to applying the proportionality doctrine but the courts have not yet fully grasped the core components of the principle. Another indication of its broad applicability can be found in the fact that the courts are used as a secondary mechanism for evaluating administrative functions activities. Because this approach has not interfered with punishment severity, which is a matter of discretion for the administration or executive, it has been beneficial for the Indian judiciary. So, there is a good balance between the judiciary and the executive. Indian courts were given regulated power in the name of this philosophy. In addition, the doctrine had a very limited scope during its existence. A proper application of the theory, on the other hand, is essential in preventing administrative bodies from acting arbitrarily when they go beyond a reasonable requirement of reasonability.
References
[1] Kaushik Deo, the doctrine of Proportionality under the Indian Legal System, Indian Legal Solution International Journal of Law and Management, July 17, 2021 (https://ilsijlm.indianlegalsolution.com/the-doctrine-of-proportionality-under-the-indian-legal-system-kaushik-deo/) Accessed on 19 August 2021
[2] Dieter Grimm, “Proportionality in Canadian and German Laws”, 51 U, Toronto L. J, 383.
[3] Associated Provincial Picture House v. Wednesbury [1948] 1 KB 223, [1947] EWCA Civ 1
[4] Haron Barak Proportionality, Constitutional Rights and their Limitations (Cambridge UK; New York: Cambridge University Press 2012) at chap 7.
[5] Associated Provisional Picture Houses Vs. Wednesbury Corporation [(1947) 2 All ER 74 (CA)]
[6] R v. Secretary of State of Home Dept [(2002) 3 WLR 481]
[7] E. Royappa v. State of Tamil Nadu [AIR 1974 SC 555]
[8] R v. Secretary of State of Home Dept [(2002) 3 WLR 481]
[9] Association of Registration, Plates v. Union of India [(2004) 5 SCC. 364]
[10] Coimbatore District Central Coop Bank v. Employees Association [(2007) 4 SCC 669]
[11] (1997) 7 SCC 463
[12] Monika, Doctrine of legitimate expectations in India: emerging trends (Department of Law, Kurukshetra University) at chap 5, (http://hdl.handle.net/10603/39836) Accessed on 20 August 2021
[13] P.D. Aggarwal v. State Bank of India [(2006) 8 SCC 776]
[14] (2006) 3 SCC 276
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