Federalism

This article is written by Kaustubh Phalke. The article explores all the peculiarities of the doctrine of proportionality and its application. As we dive into the article, we go through a brief introduction of the topic, its origin, the rise of this doctrine and its essentials, the models of proportionality, Wednesbury’s principle of unreasonableness, the application of the doctrine in India, case laws and the criticism of this doctrine, which are thoroughly discussed in this article. Let’s plot a route through the intricacies of the doctrine of proportionality together and understand the practical application of this concept and its importance as judicial review.

Introduction

The meaning of proportionality in layman’s terms denotes justice and reflects a balanced thought. It is interesting to note that the statute of justice can be seen holding weighing scales in hand, which symbolises proportion. The doctrine of proportionality propagates the idea that a punishment for an offence should be proportional to the gravity of the offence. Hence, this doctrine proved to be of immense significance in human lives.

The doctrine of proportionality is a doctrine of legal construction. It is a methodological and analytical doctrine that includes inclusive and deliberative methodology. The basic objective of this doctrine is to protect human rights in synchronisation with democracy. To get a better understanding of the doctrine of proportionality, the views of various critics and jurists have been taken into account while writing this article. It helps us to understand the concept from different perspectives. The viewpoints of critics have also been taken into account to understand alternate methods of interpretation of the doctrine of proportionality. The doctrine of proportionality has directed many political and legal scholars throughout the generations.

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Origin of the doctrine of proportionality

The origin of this doctrine takes us back into European history. It was first observed in 18th-century Prussia and later in the 19th century of Prussian history, it can be traced back to the German judicial system. After the Second World War, it was incorporated into the German Constitution and adopted by the European Convention on Human Rights in 1959. The further development of this doctrine can be traced from two classic Greek principles, which are:

  • ‘Justitia vindicativa’ which means corrective justice
  • ‘Justitia distributiva’ which refers to distributive justice.

Furthermore, the presence of this doctrine can also be seen in the Roman legal system and the Magna Carta 1215, which reflects that for petty offences, a free man shall be fined only in proportion to the degree of his offence and for a serious offence he must not be punished so gravely as to deprive him of his livelihood.

The historical roots of this doctrine can be found in German law history in the 18th century as a public law standard. Carl Gottlieb Svarez (1746-1798), was the draftsperson of the Prussian Civil Code of 1794, known as Allegmeines Landrecht fur die PreuBishen. It is found in the name of “Verhaltnismassigkeit” instead of proportionality in his writings. As per Svarez, the state may only limit the liberty of the offender to protect society and guarantee the safety and freedom of others. He promoted the thought of the minimum relationship to prevent hardship in society and limitations on one’s natural freedom. These were viewed to be the expressions of both reasonableness and justice.

Rise of the doctrine of proportionality

The doctrine is always read in consonance with human rights. It has been affirmed by several Constitutional Courts around the world, such as Europe, the UK, Israel, etc. Several constitutions in the world have incorporated the doctrine, such as the European Court of Human Rights. One of the major reasons behind the favouritism of this doctrine is its constructive approach, good practice and standard of right adjudication. Through the applicability of this doctrine, the courts can quash the discretionary powers of the authorities to impose an unreasonable punishment for the relevant misconduct. The basic objective of this doctrine is that the punishments imposed shall not be wholly out of proportion vis-a-vis the misconduct done. It helps in avoiding the chances of arbitrariness, which leads to discrimination. The court will declare an action valid only if the action is balanced. The US judicial system, which earlier formally rejected this doctrine, has now started to apply this doctrine in the cases filed before the US courts.

As per Moller, it is the prominent duty of the court to determine whether the action taken was objectively justifiable or not. According to him, the action can be upheld by the judiciary only when there is no other alternative that is less restrictive to achieving the objective.

It is pertinent to mention that there is no uniform method to apply this doctrine. The framework and application of this doctrine depends on how one understands and comprehends it. Basically, the aim of applying this doctrine is to maintain a check and balance between the interests of society and the rights of individuals. 

Essentials of the doctrine of proportionality

It is of immense importance to determine the essentials of the doctrine before applying it to the cases. The following are the essentials of the doctrine of proportionality:

  • There must be a rational nexus between the objective and the means used to attain it.
  • There is no alternative to achieving the goal other than using means that are restrictive of rights.
  • There must be some adequate balance between the social benefit obtained from the objective and the harm caused to the right. This is also known as stricto sensu or the proportionate effect.

The two main elements of proportionality are legality and legitimacy. Legality in this context refers to the limitations imposed by law and legitimacy refers to the fulfilment of compliance with the need for proportionality. There must be an appropriate goal and an appropriate means to achieve it.

In the case of Justice K.S. Puttaswamy v. Union of India and Ors. (2018), the question at issue was whether the right to privacy is a fundamental right, and if yes, what are the permissible limits? A nine-judge Bench decided the case and held that the Constitution protects the right to privacy as a fundamental right. A test of proportionality was upheld in this case, which consists of four essentials:

  1. The action taken must not be derogatory to any law.
  2. The action must be the only option and necessary in a democratic society to achieve the legal objective.
  3. The extent of interference and the need for such interference must be proportionate.
  4. There must be procedural guarantees against the misuse of such interference.

Models of proportionality

Two models of proportionality have emerged over the last few decades. Both models suggest different tests pertaining to proportionality and whether the decision taken is proportionate to attaining the objective or not. The models of proportionality have been discussed below:

The British model

The British model was set forth by Lord Stynn in the case of Regina v. Secretary of State for the Home Department, Ex Parte Daly (2001). The concept was first ever expounded in the case of de Freitas v. Permanent Secretary of the Ministry of Agriculture, Fisheries, Land and Housing (1997). Lord Clyde propounded a test consisting of three stages for the application of this doctrine. These three stages were derived from African and Canadian jurisprudence.

A decision is proportionate if it passes the following three stages:

  1. An objective of the legislative or executive organ is equally important to limit fundamental rights.
  2. The means decided to attain this objective have a rational nexus between them.
  3. The means used to curb the right or freedom are not more than necessary to accomplish the objective.

Analysing a decision through these three tests would show that the main focus of the court would be to ensure that the decisions taken by the decision-making body are correct and proportionate. Hence, in this model, the aim is to attain the predetermined objective using the most efficient means or the least obtrusive means. It focuses more on necessity rather than balancing the action taken with the least violation of fundamental rights.

Such a concept of proportionality is also known as state limiting conception of proportionality. The idea of this model arises from the Common Law belief that the court exists to protect individuals from arbitrariness on the part of the legislature and executive. As per this model, only objectives of immense importance are permitted to curb fundamental rights. If the objectives of the legislature and executive are of the utmost importance, then the action taken in this regard is justifiable. The legislature and executive must carry out public objectives and hence the doctrine plays an important role as an oversight to check that unreasonable means are not used to attain these objectives if they can be attained using less restrictive means.

European model

The concept of proportionality has its origin in Prussia in the 19th century. It provided us with certain stages of the test of proportionality, which the European Court affirmed in the case of R v. Minister of Agriculture, Fisheries and Food, ex parte Federation Europeenne de la Sante Animale (FEDESA) (1998). The four stages of the proportionality test were:

Legitimacy

It refers to the question of the legitimacy of the objective targeting which the action is under review.

Suitability

In this context, suitability refers to the question of whether the act is competent to achieve the objective.

Necessity

Is the act the only alternative and least intrusive means to attain the desired objective?

Fair balance or proportionality

There must be a fair balance between the intrusive act and the gain obtained from the act to attain the objective. The above-mentioned stages give a clear view that the idea of proportionality is institutionally neutral and was not formulated with a clear aim to determine a clear relationship between the executive, legislature and judiciary. It does not compromise the rights of the individual in return for the objective that is to be attained.

As per the author’s own opinion, the European model was given more priority due to its objectivity.

Wednesbury unreasonableness and concept of proportionality

The principle of Wednesbury unreasonableness emerged in the case of Associated Picture House v. Wednesbury Corporation (1947) and therefore the principle was named Wednesbury unreasonableness. According to this principle, there must not be any arbitrary use of administrative discretion. 

A person with administrative discretion should not cross the boundaries of the law. If he crosses the said limits of the law, his actions will be called unreasonable. As per Lord Diplock, this principle applies to those decisions that appear to be very arbitrary and any sensible person would not have arrived at the same decision if he applied his mind to the same question that was to be decided. This principle was considered to be vague and, hence, was prevented from being applied universally.

Proportionality

Lord Diplock explained the concept of proportionality through an example “You must not use a steam hammer to crack a nut if a nutcracker would do.” As per this concept, the action must not be more unnecessarily intrusive than is required to attain the public objective. It provided for the objective criteria analysis in the cases of judicial review. The doctrine can be applied only if the facts of the case pass certain tests of proportionality.

Nowadays, proportionality is accepted as a new head of judicial review within the concept of irrationality. Before, this proportionality was running parallel to the concept of Wednesbury unreasonableness but the concept of proportionality was more objective and this concept improved over a while and has now replaced the doctrine of unreasonableness.

Margin of appreciation

The concept of proportionality in judicial review is wholly different from the appeal because, in the appeal, the matter is decided and heard again. However, in judicial review, only the legal parameters of the case are taken into consideration. In judicial review, proportionality plays a role in ascertaining that the least intrusive means are used to achieve the public objective. A sensible balance has been made between the possible adverse effects on the rights, liberties and interests of the person affected by the decision. The administrator is given a fair choice to make discretionary decisions and if he has made the decisions rationally and within the decided area of discretion, then the court would not question the deliberate decision of the decision maker. The court will still check if the decision is not excessively intrusive. This area of discretion allowed to the administrator is called the margin of appreciation, as per the Strasbourg jurisprudence of the European Court.

In the UK, during the time of the emergence of the Human Rights Act of 1998, a consensus was drawn amongst individuals that there must be a domestic equivalent in the margin of appreciation. This margin of appreciation cannot be identical to that of the European courts because of the difference in the judicial systems of Europe and the UK. The European courts are international tribunals and hence there is a vast difference in both judicial systems. The English jurists and academicians use the words “margin of discretion” and “discretionary area of judgment.” Domestic equivalence refers to the relationship between the judiciary and the other organs of government for their assessment of proportionality.

As per Julian Rivers, the margin of discretion can be understood by dividing it into two aspects, i.e., ‘Judicial Deference’ and ‘Judicial Restraint’ and both of these can be used to determine the width of the margin of discretion. Judicial deference refers to the competence of the non-judicial body to determine proportionality. Judicial restraint refers to the non-interference of the court in the opted decision. If the person making the decision had choices to make the decision, all the decisions would have been correct. If the decision maker made a bonafide choice, then in such a case, the court would restrain from interfering in the decision, as the duty of the court is to secure rights instead of checking the correctness of the decision.

Concept of the doctrine of proportionality in India

The concept of doctrine of proportionality is not an alien concept for the Indian judiciary, the Supreme Court has been using this principle since 1950. When the Supreme Court looked into whether the concept of proportionality could be used in administrative actions in India or not, it concluded that even if this concept is unknown in India, administrative actions infringing fundamental rights were tested on this concept. The Supreme Court gave more emphasis to Article 19 and Article 21 while dealing with this concept.

The applicability of this doctrine was also observed in the case of Union of India v. GG. Ganayutham (1997), in which the Supreme Court affirmed that the Wednesbury principle would follow in the country on the condition that the fundamental rights of the citizens remain secured. The Court remained silent on the use of proportionality in cases where the rights of the individual have been infringed.

The European concept of proportionality, though, has not been completely affirmed in the Indian context. The proportionality doctrine is not a stand-alone doctrine in India, unlike the European judicial system; instead, it is read with Article 14 of the Constitution of India. On application of the Wednesbury test, when a decision is challenged, the question to be considered will be whether the decision taken was reasonably intrusive or non-intrusive. In the case, the Supreme Court stated that if the decision taken is arbitrary, then it will be knocked down under Article 14 of the Constitution of India. The administrative penalty imposed on the administrator for his misbehaviour during his service will be at the discretion of the disciplinary authority. If the court deems that the punishment is unreasonable, then the court may hear it to check its proportionality. The courts determined whether the decision was based on intelligible differentia and whether the differentia had a rational connection with the object of the legislation.

In India, the courts play a secondary role in deciding whether the decision taken by the authority with the material available to them was reasonable or not. The choice of options available is for the decision-making authority. The court cannot substitute a view as to what is more reasonable. The secondary role refers to the fact that the court will only check the reasonability of the decision; the primary decision would be made by the administrator.

This principle has always been challenged in India and different inferences have been drawn through judicial and administrative review of the concept. Since the rule of law is prevalent in India, there must be a rational nexus between the rule and its object. The concept is important from the Indian context, as the concept of proportionality finds its nexus with the roots of the Constitution of India.

Landmark case laws surrounding doctrine of proportionality

Omkar v. Union of India (2000)

Facts of the case

The case concerns Justice O. Chinnappa Reddy, a retired Supreme Court judge who was asked to investigate the matter of the conduct of officials of the Delhi Development Authority and its then-chairman for handing over the possession of the suit land to M/s. Skipper Construction Pvt. Ltd. before receiving complete consideration. The officials were also involved in the construction and advertisement of the disputed building for bookings. The learned judge was also asked to look into the legality and propriety of the order passed by the chairman and the directions given by the central government under Section 41 of the Delhi Development Act, 1957. As per the reports submitted by Justice Reddy, the Court ordered the Department of Personnel to initiate disciplinary proceedings against five officials namely, (i) Sri V.S. Ailawadi, IAS (retired), (ii) Sri K.S. Baidwan, IAS, (iii) Sri Virendra Nath, IAS, (iv) Sri R.S. Sethi, IAS and (v) Sri Om Kumar, IAS.

The Court stated that Sri Om Kumar must be given minor punishment. The matter was referred to the UPSC as per the All India Service (Discipline and Appeal) Rules, 1969; further, the matter was reconsidered by the Department of Personnel as there was a difference in opinion between the UPSC and the competent authority.

Issues 

The issue was regarding the applicability of the doctrine of proportionality in consonance with Article 14 of the Constitution of India.

Judgement 

When an administrative decision is questioned for its arbitrariness regarding punishment in disciplinary cases under Article 14, the court is bound by Wednesbury’s principle as a second reviewing authority. The concept of proportionality will not be applicable here, as fundamental rights or discrimination are not in question in such cases. The primary review would be carried out based on the doctrine of proportionality and the secondary review would be considered based on Wednesbury’s principle. If the court deems that Wednesbury’s unreasonable concept has been violated, it can ask the administrator to reconsider its decision regarding the quantum of punishment.

Union of India and Ors. v. G. Ganayutham (Dead) by Lrs. (1997)

Facts of the case

The facts of the case are that G. Ganayutham was serving as superintendent of Central Excise. He was served with a memo with eight charges and an inquiry was conducted. After the inquiry, a report was submitted by the officer, which stated that charge no. 4 was not proved, charge no. 8 was partly proved and other charges were held to be proved. Thereafter, the respondent retired and a show-cause notice was sent to him stating that his full pension and gratuity were withdrawn due to his misconduct, which led to heavy revenue losses for the government. He duly submitted an explanation for this. The UPSC was consulted regarding the matter, which suggested that only 50% of his gratuity and pension should be awarded to him. Questioning the same, a writ petition was filed by the respondent in the High Court of Madras, which was later transferred to the tribunal. The forum, after seeing the previous record of the petitioner, held that the punishment awarded was too severe and that his pension shall be withheld for 10 years rather than permanently, with the gratuity remaining the same. An appeal was made by the Union of India, the collector and Central Excise regarding the matter in the Supreme Court of India.

Issues 

Whether it is permissible for the court or tribunal to interfere with the quantum of punishment imposed by the competent authority on the ground that it was too severe and hence ‘disproportionate’ to the gravity of the charges proved?

Judgement 

The Court restrained from stating anything regarding the use of the doctrine of proportionality in cases in which the fundamental rights of an individual have been infringed. The Apex Court affirmed the principle of Wednesbury reasonableness, provided that the fundamental right of any individual is not violated. The Court set aside the tribunal’s order, which interfered with the quantum of punishment decided by the competent authorities. The quantum of punishment was restored.

Hind Construction and Engineering Co. Ltd. v. Their Workmen (1964)

Facts of the case

The case concerned the dismissal of the 11 workmen working for the appellant company. As per the normal practice of the company, 14 days in a year were considered holidays. They included the 1st of January. If a holiday fell on Sunday, the practice was to make the following day a holiday, and that is how a dispute arose over the 2nd of January, which followed a Sunday in 1961. The union argued that 11 workmen didn’t go to work on 2nd January treating it as a holiday, whereas the company argued that the workers were directed to be present on 2nd of January because of the burden of work and that a compensatory holiday would be given the  following day. The absent workmen were dismissed following an enquiry. They were suspended before the conduct of the enquiry, the labour officer tried for conciliation, which utterly failed. The government of West Bengal sent the matter to the labour tribunal.

Issues 

  • Whether the dismissal of the workmen is justified. What relief, if any, are they entitled to?
  • Whether the tribunal was justified in interfering in the punishment for dismissal after it had concluded that the workmen had gone on a strike even though the strike was not illegal? 

Judgement 

The labour tribunal set aside the order of dismissal, claiming it to be victimisation of employees and unjustified. The matter was referred to the Supreme Court due to the lack of information with the tribunal regarding the matter, as the matter was originally before the court of appeals. The punishment was observed to be unreasonable by the court, the court didn’t find anything special on the disputed day to shift the leave to the subsequent day. Even if there was such a reason to shift the leave, the punishment was treated to be unreasonable and could have been treated as leave without pay, the workmen might even have been warned and fined. The tribunal should interfere only in cases where the punishment imposed is too severe and in the instant case, the punishment was unreasonable, hence the interference of the tribunal was held to be justified. The appeal therefore failed and was dismissed with costs.

Critical analysis of the doctrine of proportionality 

The doctrine of proportionality has been criticised for its applicability in India and is hence applied partly in India. Majorly it faces the criticism in differences of opinion in deciding whether the action is proportional or not. These divergent opinions may lead to inconsistency and potential abuse of this doctrine. There are no specific parameters to calculate the proportionality of any decision and ambiguity in applying proportionality in such cases leads to unfair and arbitrary results. The decision-makers will not feel free to make necessary decisions as there are no specific parameters as to what is proportionate and what is unproportionate. There may be decisions that are the need of hour and decision makers avoid them to abide by the rule of proportionality. The doctrine can be misused by the parties by justifying any decision to be unproportionate and arbitrary, even if the decision was necessary. The decision made can be against the concept of equality, as the decision for one may be fair and may be unfair for the other. 

Conclusion

The judiciary and the legislature work hand in hand to make the system run smoothly. In this context, the doctrine of proportionality does not undermine the decision made by the authority but rather keeps a check on the decision, saying that it should be in consonance with the law. The decision should not be too intrusive to violate the rights of the individuals and any crucial decision should not be avoided to uphold the doctrine of proportionality. 

As compared to Wednesbury’s unreasonable rule, the doctrine of proportionality is given more priority these days in countries like the UK. The concept of proportionality maintains a proper balance between the factors that influence administrative actions; it is a more intense form of judicial review.

The European model is considered the more effective and efficient of the two models of proportionality; however, it is still unclear which model is applicable in India, as per the author’s own analysis European model is considered to be used more than the British model. The concept has been known to India for more than twenty years but no significant development or changes can be seen in the application. The judiciary has still failed to use the full potential of this concept, even after having the power to apply it. We still partly apply the doctrine. The concept of proportionality is of immense importance in safeguarding the rights of individuals against the unreasonable actions of administrative officers.  The doctrine must be applied efficiently to avoid the violation of fundamental rights and also to keep a check on the decisions of the administrators. For the effective implementation of this doctrine, the judiciary will have to keep a broad view in order to approve some decisions that are essential but contradictory to the concept of proportionality. Specific parameters should be developed for the effective implementation of this doctrine. 

Frequently Asked Questions (FAQs)

What are the main elements of the doctrine of proportionality?

The main elements of the doctrine of proportionality are the following:

  • Suitability: the actions must be suitable and appropriate for achieving the objectives.
  • Necessity: there must be grave necessity to take an intrusive action and no other alternative should be available other than that.
  • Proportionality in the strict sense: the benefit arising out of the action must outweigh the cost of violation of the rights.
  • Fair balance: the balance between the general interest of society and the individual rights concerned must be fairly maintained.

According to Aristotle, what was the concept of proportionality?

Aristotle discussed the idea of proportionality in his book, Aristotle’s Nichomacean Ethics, Book 8. His idea of proportionality can be said to be a recta ratio, which means the right reasons or the right relationship between the state and the citizens as adjudicated by the rule of law.

What is the doctrine of proportionality in the adjudication of fundamental rights?

As per this doctrine, it is determined whether there is a rational nexus between the desired result and the action taken to achieve it. The action taken shall not be too intrusive to violate the fundamental rights of any individual.

References

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