PROJECT
CONSTITUTIONAL GOVERNANCE-I
On
DOCTRINE​ OF PROPORTIONALITY AS A TOOL FOR CONTROLLING
EXCESS STATE ACTION: A CRITICAL ANALYSIS

Submitted to:
MRS. RAJPUT SHRADDHA BHAUSINGH
Assistant Professor
Faculty of Constitutional Governance-I
Submitted by:
DIVYANSH MIMROT
Roll No. 62
Semester III, Section B
Submitted on:

8​th ​DECEMBER, 2020

HIDAYATULLAH NATIONAL LAW UNIVERSITY UPARWARA POST,

ABHANPUR, ATAL NAGAR, RAIPUR (C.G.)- 492002
 Declaration

I hereby declare that this research work titled topic “ ​Doctrine of proportionality as a tool
for controlling excess state action : A critical analysis ​” is my own work and represents
my ​own analysis of ideas, and where others’ ideas or words have been included, I have
adequately cited and referenced the original sources. I also declare that I have adhered ​to all
principles of academic honesty and integrity and have not misrepresented or ​fabricated or
falsified any idea/data/fact/source in my submission.

Divyansh Mimrot
B.A. LLB., III Semester

1
 Certificate

This is to certify that Mr. Divyansh Mimrot , Roll Number 62 , student of Semester III,
Section-B of B.A.LL.B (Hons.),Hidayatullah National Law University, New Raipur
(Chhattisgarh) has done the research work on the project titled “​Doctrine of
proportionality as a tool for controlling excess state action : A critical analysis ​” under
my guidance and supervision. The research work is fit for evaluation and submission.

Place - Raipur Mrs. Shraddha Rajput

​ Date - 30th Nov 2020 Faculty of Constitutional governance

2
 Acknowledgements

The practical realization of this project obligated the assistance of many persons. I
express my deepest regard and gratitude for Shraddha Rajput Ma’am. Her consistent
supervision, constant inspiration and invaluable guidance have been of immense help in
understanding and carrying out the nuances of the project report.

I would like to thank my family and friends who always supported and encouraged me,
this project would not have been a reality without them.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet. I would be grateful to
receive comments and suggestions to further improve this project report.

I feel highly elated to work on the topic “Doctrine of proportionality as a tool for
controlling excess state action : A critical analysis”.

Divyansh Mimrot
B.A. LLB., III Semester
 
 
 
 
 
 
 
 
 
 
 
 

3
 T​ABLE OF ​C​ONTENTS
S No. Particulars Page No.

1. Declaration of Originality i

2. Certificate ii

3. Acknowledgement iii

4. Introduction v

5. Research Methodology vii

a. Problem of the Study vii

b. Rationale of the Study vii

c. Objectives of the Study vii

d. Review of Literature vii

e. Concept and Variables vii

f. Hypothesis vii

g. Research Design- Nature of Study, Sources of vii

Study

h. Chapterization of the Study ix

i. Time Duration of the Study x

j. Limitations of the Study x

k. Contribution of the Study x

6. Chapterization xi

Chapter 1 Meaning of doctrine of proportionate xi

Chapter 2 xii

Chapter 3 xv

Chapter 4 xvii

7. Major Findings, Conclusion and Suggestions xxi

8. Bibliography xxiii

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 Introduction

The idea of proportionality in India is limited from the wide view as it doesn't accord
with the customary custom-based law legal survey. The rule of proportionality in India is
situated in the Constitution which guarantees the crucial rights instead of the legal
premise in England.Article 14 of the Constitution is one of the primary arrangement
under which a managerial activity can be surveyed. Under Article 14, the law or the
regulatory activity needs to fulfill the sensible test. On account of Maneka Gandhi v.
Association of India , citing himself from Royappa case , Justice Bhagwati has perused
the standard of sensibility in Article 14 by the words:

"Article 14 strikes at intervention in State activity and guarantees reasonableness and

balance of treatment. The rule of sensibility, which consistently just as insightfully, is a
basic component of equity or non-discretion overruns Article 14 like an agonizing
inescapability."

Any subjective activity of the organization will be struck down as illegal as it gives it
uncontrolled force and degree for separation. The activity of tact by the organization
should be guided by the organization itself. On the off chance that it isn't guided, at that
point the legal executive should implement or strike down certain activities of the
organization as invalid. While testing the legitimacy of the optional force under Article
14 due respect should be given to the significance of the sensibility and non-assertion of
the activity. In the event that the regulatory activity is irrational and self-assertive, it will
be struck down under Article 14 .

It could be expressed at the beginning that the Supreme Court has been applying the trial
of sensibility absurdly and the proportionality standard excessively. The choices
concerning regulatory law influencing major opportunities have consistently been tried
contrary to the rule of proportionality, despite the fact that it may not in every case
explicitly be expressed that the standard being embraced was that of "proportionality".

There have been numerous decisions which clarify the principle of proportionality in
Article 14 and Article 19 of the Constitution of India. Perhaps the soonest choice on
legal audit in managerial law was Ranjit Thakur v. Association of India and it was seen
that:

5
"The principle of proportionality, as a component of the idea of legal audit, would
guarantee that even on an angle which is, something else, inside the select area of the
court military, if the choice of the court even as to sentence is an absurd insubordination
of rationale, at that point the sentence would not be resistant from rectification.
Unreasonableness and backwardness are perceived grounds of legal survey."

6
 Research Methodology

a . Problem of the Study

The Project Title “Doctrine of proportionality as a tool for controlling excess state action
: A critical analysis”deals with the problems of proportionality to human rights and to
the punishment there should not be disproportionate of punishment and not a sever
punishment should e granted for a trivial mistake and the proportionality must be just
and reasonable

b . Rationale of the Study

The title of the project itself give the subject matter for discussion on Commutation of
Death Penalty and Life Imprisonment. The project is being studied because of the
disproportionate in the punishment or orders given by the authority this principle came
into force because there were disproportionate of punishment and giving Severe
Punishment for a small matter

c. Objectives of the Study

The objective of the study is to

(i) To know more about the doctrine of proportionate and its merit and demerit

(ii) To see how doctrine of proportionate works in the indian aspect and models of
proportionality

(iii) To analyse how this doctrine can be use as a effective tool for controlling excessive
action or disproportion of state

d. Review of Literature - ​This project is done with the critical analysis of a doctrine

and taking it as a tool for proportionality in the county and hence punishment should be

given according to the degree of the matter and there should be no severe punishment for

a small thing other wise this will be considered as disproportionality in the action and

vice-versa and no

7
small punishment should be given for a big crime in this project i have analysed the

doctrine of proportionality as a tool for excessive state control so there should be

proportionality in the decision by the state

e. Concept and Variables:

Doctrine- a belief or set of beliefs, especially political or religious ones, that are taught
and accepted by a particular group
Proportionality - ​the ​idea that a ​punishment for a ​particular ​crime must ​relate to how
serious​ the ​crime​ is , ​the quality of corresponding in size or amount to something else.
State control - ​controlled​ or ​paid​ for by the ​government​ of a ​country

f. Hypothesis:

The following study of doctrine of proportionality tells us that it is very important for us
to have a doctrine of proportionality because it can protect human rights by the
proportionality of punishment or orders given by the state following study of
doctrineWas done as a tool to control excessive actions of state this doctrine has two
models which is explained in this project and has a brief study of doctrine of
proportionality

g. Research Design

Nature of Study:​ The project is descriptive and analytical in nature.

​ oth primary and secondary sources of study is being used like books,
Sources of Study: B
online resources, dictionaries, websites, etc. Bluebook 19​th ​Edition is strictly followed
adhered to throughout the project.

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h. Chapterisation of the Study

Chapter 1 - meaning of doctrine of proportionality - ​Doctrine of proportion finds its place

within the law and is employed at the stage of review. The ism assets that there should be
an affordable nexus between the specified result and also the measures taken to succeed
in that goal. The action taken should not be shockingly disproportionate to the
consciousness of the court and also the same action will then be challenged by manner of
review.

Chapter 2 - evolution of Doctrine of proportionality - ​In this project there is a brief

study of evolution of doctrine of proportionality The doctrine of proportionality is of
European origin. The principle of proportionality has been characterised as the most
important general legal principle in the European Administrative Law. The principle of
proportionality envisages that a public authority ought to maintain a sense of proportion
between his particular goals and the means he employs to achieve those goals, so that his
action impinges on the individual rights to the minimum extent to preserve the public
interest.

Chapter 3 - models of proportionality -

The British model or the state-limiting conception of proportionality and The European
model or the optimising conception of proportionality Both models suggest different test
that the court must undertake to determine whether a decision set is proportionate or not.

​ octrine of
Chapter 4 - doctrine of proportionality and excessive state control - D
Proportionality relates to the principle of interpretation of statutory provisions
maintaining fairness and justice. It is a mode of restricting the administrative action from
being drastic, when it is used for obtaining desired results, so that a sense of proportion is
maintained between its goals along with preserving the public interest with minimal
effect on the individual rights.

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i. Time Duration of the Study

The time taken to complete this project work is four days.

j. Limitations of the Study

The study of the project is limited to the Doctrine of proportionality explaining meaning
of the doctrine of proportionality and stating its evolution as a doctrine and discussing it
in Indian context and in the world this doctrine can be scene in so many countries and
look into its origin how it became a doctrine And stating different models of the doctrine
of proportionality and at last sticking to the topic analysing the doctrine as a tool for
excessive state control

k. Contribution of the Study

The study of this research project is done with lots of efforts and hard work thereby
contribute to the knowledge gained by researcher along with the contribution towards the
whole society especially to the upcoming researchers who would refer this research
project for their academic work fulfilment and would thus act as an information source.

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 Chapterisation

Chapter 1 - Meaning of doctrine of proportionality

Doctrine of proportion finds its place within the law and is employed at the stage of
review. The ism assets that there should be an affordable nexus1 between the specified
result and also the measures taken to succeed in that goal. The action taken should not be
shockingly disproportionate to the consciousness of the court and also the same action
will then be challenged by manner of review.

Proportionality is one of the main reason for judicial review. It has been a ground for a
long time and has advanced from the idea of preposterousness2. The idea of
proportionality has been grown more as an overall standard of law by the appointed
authorities throughout the long term. This regulation of proportionality is settled and is
an expansive idea in the European managerial law.
In present day days specialists both legal and legislative – appreciate a wide scope of
optional forces. This force is notwithstanding, shackled by restrictions. It is to be
practiced out in the open interest and for the public great. The wide scope of specialists
and officials consulted with attentiveness adds to the force of the issue in as much as
often optional forces are wrongly practiced or in any case mishandled. In early
occasions, the courts have been administering the activity of optional forces via judicial
review. New improvements in organization made the Courts to receive new procedures
to train the activity of managerial carefulness however the legal executive was mindful in
practicing its capacity of judicial review.
"Customarily in India just as in England, courts have practiced poise in reviewing the
meaningful substance of the choice delivered by an authoritative body". In
precedent-based law the legal executive doesn't meddle in reviewing the regulatory
activities, making the courts an auxiliary reviewer of the activity. This is an aftereffect of
the connection among Parliamentary and Constitutional. One branch can't violate in to
the elements of the other offering significance to the freedom and the matchless quality
of each branch. Be that as it may, as of late with the presentation of common freedoms

1
​a connection or series of connections linking two or more things.
2
​contrary to nature
11
and the consideration of basic rights in the some Constitution's has changed this view. It
is presently founded on sound basic liberties and protected standards . The organization
has been abusing its forces and utilizing subjective intends to stay in the prevailing state.
Being a prevailing violator of key rights the courts have developed to review such
subjective regulatory activities.
In the trial of Proportionality the "courts will suppress exercise of optional forces in
which there is no sensible connection between the target which is looked to be
accomplished and the methods used keeping that in mind, or where disciplines forced by
regulatory bodies or substandard courts are completely messed up with regards to the
significant wrongdoing". So the regulatory activity which subjectively separates will be
subdued by the court. The ramifications of the guideline of proportionality is that the
court will weigh for itself the preferences and impediments of a managerial activity and
such an activity will be maintained as legitimate if and just if the equilibrium is points of
interest. If this activity is lopsided to the naughtiness then it will be subdued.

12
 Chapter 2 - Evolution of doctrine of​ ​proportionality

The 'Doctrine of proportionality' is an European beginning. It is assimilated in the

European Droit Administratif3 and is one of the main legitimate standards in the
'European Authoritative Law'. In Britain, the 'Rule of Proportionality' has, for such a
long time, been treated as a piece of the Wednesbury's principle 4of irrationality which
proposed the fundamental norm of sensibility that should be trailed by a public body in
its choices. It expressed that if a decision is so preposterous to the point that no
reasonable master would actually take those activities or utilize the strategies received, at
that point such exercises are liable to be at risk and subdued through legal audit.

In spite of the fact that the 'Doctrine of Proportionality' has been managed as a piece of
the Wednesbury's rule, the Courts have embraced an alternate position with regards to
the legal mediation as far as legal audit. It has been held that the guideline involves the
sensibility test with an elevated scrutiny. All in all, to apply this doctrine, not just the
choices must be inside the restrictions of sensibility, yet just, there must be a balance
between the favorable position and impediment in the result that has been accomplished

through the regulatory action.

Thusly, the degree of legal audit is more extreme what's more, more noteworthy by
virtue of 'proportionality' test than the 'sensibility' test. Moreover, the court while
applying the standard of proportionality will consider people in general and person
interest in the issue which isn't done while applying the Wednesbury's rule of
preposterousness as also for the first time nominated for the Nobel Prize in Literature.
He was nominated again for the prize 11 years later.

In India Fundamental Rights structure a piece of the Indian Constitution, hence, courts
have consistently utilized the doctrine of proportionality in making a decision about the
sensibility of a limitation on the activity of key rights. In this manner while practicing
the intensity of legal survey court plays out the essential function in Brand's feeling of

3
  ​the rules of continental European administrative law exempting governmental agents
from liability in other than administrative tribunals
4
​Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948]
13
assessing if a specific contending public interest legitimizes the specific limitation under
the law. This circumstance emerges when the court is choosing the lawfulness of a law
forcing absurd limitation on the activity of crucial rights.

The guideline of proportionality started in Prussia in the nineteenth century what's more,
has since been received in Germany, France and other European Countries. The
European Court of Justice at Luxembourg and the European Court of Human

Rights at Strasbourg have applied the guideline while making a decision about the
legitimacy of managerial activity. However, even well before that the Indian Supreme
Court has applied the standard of proportionality to administrative activity since 1950.

This standard applied when the managerial activity is assaulted as optional under Article
14 of the constitution. Anyway where authoritative activity is addressed as 'subjective'
under Article 14 then the Wednesbury's standard applied. Undoubtedly the courts in
India inspected whether the order depended on the clear differentia and whether the
differentia had a sensible nexus with the object of the enactment. It imply that the courts
were analyzing the legitimacy of the distinction and the ampleness of the distinction.
This is again the rule of proportionality. In India, for the situation not including basic
opportunities, the part of our courts in regulatory law is absolutely optional and keeping
in mind that applying Wednesbury

14
 Chapter 3 - models of proportionality

1) The British model or the state-limiting conception of proportionality and

2) The European model or the optimising conception of proportionality

Both models suggest different test that the court must undertake to determine whether a
decision set is proportionate or not.

British Model The British model as expounded by Lord Stynn in R v. Secretary of State
for the Home Department ex parte Daly finds its origin in the judgment of the Privy
Council in de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Land
and Housing. 5In that case, Lord Clyde6 while deciding an appeal from Antigua and
Barbuda, used South African and Canadian jurisprudence to formulate a three stage test
for proportionality review.

A decision is proportionate if :

I. The legislative (or executive) objective is sufficiently important to justify limiting a

fundamental right.

II. The measures designed to meet the legislative (or executive) objective are rationally
connected to it.

III. The means used to impair the right or freedoms are no more than necessary to
accomplish the

objective

An analysis of the above three stage test would show that the main focus of the court
would be to ensure that the decision making body takes the correct decision as regarding
the least intrusive means. Hence in this model, proportionality is not about optimising
costs and benefits, but about the pursuit of pre determined goals by the most efficient (or
least intrusive) means. It does not raise question about the intensity of review, but only
imposes a judicially generated criticism of the correctness in respect of necessity or
efficiency. Thus this test treats necessity as the final stage of proportionality review and
suppresses the balancing element Such a conception of proportionality, called the state

5
Council in de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries,
Land and Housing. In that case, 30th june 1998 UKPC30
6
​James John Clyde, Baron Clyde, PC (29 January 1932 – 6 March 2009)
15
limiting conception of proportionality, arises from the common law belief that courts
exists to protect individuals and groups from other branches of the government namely
legislature and executive. Courts therefore maintain a framework of legal rights which
sets limits to the freedom of action of legislative and executive bodies. Within such a
framework, only sufficiently important public objectives are permitted to limit the
enjoyment of rights (i.e., first of the tests described above).

This implies that there are legitimate public objectives that are not important enough to
warrant limiting the enjoyment of rights. It is the responsibility of the court to act as a
gate keeper here. However if a public objective is sufficiently important, any state action
rationally connected to the objective and necessary to fulfill it is justified (i.e., second
and third test described above). Thus carrying out important public objectives is the duty
of the legislature and executive. All that the court does is to maintain an efficiency based
oversight to ensure that there are no unnecessary costs to rights, that sledge hammers are
not used to crack nuts or rather that sledge hammers are only used when nut crackers
prove impotent. Further at the necessary test stage the court will have to provide latitude
to accommodate the margin of discretion of the decision maker. Thus judicial deference
and judicial restraint are accommodated at the necessary stage

European Model The very concept of proportionality originated in nineteenth century

Prussia. This nineteenth century Prussian concept prescribed various tests. Those were
accepted by the European Court of Justice in R v.Minister of Agriculture7, Fisheries and
Food, ex parte Federation Europeenne de la Sante Animale (FEDESA)Based on this case
Julian Rivers outlines a four stage test as:

1. Legitimacy: Does the act (decision, rule policy etc) under review pursue a legitimate
general aim in the context of the right in question?

2. Suitability: Is the act capable of achieving that aim?

3. Necessity: Is the act the least intrusive means of achieving the desired level of
realisation of the aim?

4. Fair balance or proportionality in narrow sense: Does that act represent a net gain,
when the reduction in enjoyment of rights is weighted against the level of realisation of
the aim?From the analysis of the above formulation it is apparently clear that the said

7
R v Minister of Agriculture, Fisheries and Food, ex parte Anastasiou (Pissouri) Limited
and others (Transcript), [1999] 3 C.M.L.R. 469

16
formulation is institutionally neutral. It is not defined to help courts determine its
relationship with other organs of the government. It more importantly focuses on
optimising or balancing the rights (which is seen as protected interest and which is being
limited by the proposed action) with the public interest or aim (which the proposed
measure seeks to achieve). Hence it is called as the optimisation conception of
proportionality.Even under this model the court has to allow latitude to accommodate the
margin of discretion of the decision maker.

i) Judicial restraint: This latitude is taken into consideration only at the final stage of
proportionality review namely the fair balance stage. This range of discretion is variable
depending upon the subject matter and then nature of the affected rights. A large degree
of restraint means that the court will be very unwilling to question the view of the
decision maker that what is necessary to achieve a certain level of public interest is also
balanced. A moderate degree of restraint means that the court will want to check that the
costs and gains are indeed roughly commensurable8. A small degree of restraint will
reduce the set of necessary decisions to a minimum; the court will need to be convinced
itself that the decision, rule or policy in question, even though necessary, really is the
best way of optimising the relevant rights and interests

ii) Judicial deference: This aspect of the margin of discretion is much more complex
because it is a question of relative institutional competence and the court‟s acceptance
that its judgement is more likely to be correct if it relies on some other authority‟s
assessment of some relevant matter. Hence this latitude can be accommodated at any or
all of the stages of proportionality review depending upon the subject matter, nature of
the affected right and the confidence that the court reprises on the competence of the
decision making body involved. The court could simply accept the assertion of the
public authority; or it could demand such assertions under oath or it could require the
authority to reveal the factual basis for its judgments and so on. In short, the degree of
deference means the extent to which the court will demand that the authority put
procedural resources into answering the relevant questions reliably and expose that
process to judicial scrutiny Julian Rivers after carrying out an extensive analysis of the
two models came to the conclusion that it is the European model that must be given
preference over the British model due to fact that the European model has a higher
degree of objectivity

8
​measurable by the same standard.
17
Chapter 4 - Doctrine of proportionality and excessive state control

Doctrine of Proportionality relates to the principle of interpretation of statutory

provisions maintaining fairness and justice. It is a mode of restricting the administrative
action from being drastic, when it is used for obtaining desired results, so that a sense of
proportion is maintained between its goals along with preserving the public interest with
minimal effect on the individual rights.

At the most basic level, the principle of proportionality captures the commonsensical9
idea that, when the government acts, the means it chooses should be well adapted to
achieve the ends it is pursuing. The proportionality principle is an admonition, as German
administrative law scholar Fritz Fleiner famously wrote many decades ago, that “​the
police should not shoot at sparrows with cannons” (Fleiner 1928, 404). Courts
instantiate the principle through a form of review that typica​ lly passes a challenged legal
measure through a prescribed sequence of increasingly stringent legal tests, in order to
determine whether the measure in fact impinges disproportionately on the rights or
interests of a party. The global spread of proportionality is one of the worst-kept secrets
in comparative law. As proportionality has become a fixture in numerous national and
international legal regimes over the past few decades (Stone Sweet and Mathews 2008), it
has also attracted a substantial amount of scholarly attention, and more than a little
criticism. But the lion’s share of attention has focused on the use of proportionality in the
realm of constitutional law, as a technique for adjudicating constitutional rights claims.
Less has been said about proportionality’s role within administrative law.
If the use of proportionality review in administrative law is widespread, it is also
characterized by significant national differences. This chapter aims to survey that
diversity, and to help make sense of it, by organizing it and offering hypotheses about
some of the sources of the variation that we observe. I draw on examples from several
jurisdictions, but I do not claim that this account is remotely comprehensive or definitive.
The use of proportionality review in administrative law is a topic that deserves more
thorough and systematic study. Further empirical work would permit, among other
things, testing of the hypotheses tentatively offered here.

9
​the ​basic ​level of ​practical ​knowledge and ​judgment that we all need to ​help us ​live in a
reasonable​ and ​safe​ way
18
The implication of the principle of proportionality is that the court will weigh for itself,
the advantages and disadvantages of an administrative action. Only if the balance is
advantageous, will the court uphold the administrative action. The Administration must
draw a balance—sheet of the pros and cons involved in any decision of consequence to
the public and to individuals. The principle of proportionality envisages10 that an
administrative action could be quashed if it was disproportionate to the mischief at which
it was aimed. The measures adopted by the Administration must be proportionate to the
pursued objective. An administrative authority while exercising a discretionary power
should maintain a proper balance between any adverse effects which its decision may
have on the rights, liberties or interests of persons and the purpose which it pursues. All
in all, it means that the decisionmaker must have a sense of proportion.
In the Indian context it is amply clear that even though proportionality was made part of
the Indian law as early as 2000, there is hardly any significant use of doctrine in India.
Not only has the doctrine as adopted by the Supreme Court, limited application, but even
within that applicable range, it has hardly been used.
However sooner or later courts in India will have to actively consider implementing the
doctrine of proportionality in all cases coming before it irrespective of whether
fundamental or ordinary rights of citizens / persons are involved. This is because of the
fact that human rights jurisprudence that has come to dominate the legal system includes
not just fundamental rights but other rights also. Hence the urgency of adopting the
doctrine of proportionality cannot be overlooked for otherwise steam hammers would
increasingly be used to crack nuts even if nut crackers are sufficient.
The principle of proportionality prescribes that all statutes that affect human rights
should be proportionate or reasonable. The analysis of proportionality is made up of
three sub-principles: adequacy, necessity, and proportionality stricto sensu11. The first
sub-principle is that of adequacy, which establishes that the statute which affects a
human right must be suitable to achieve the purpose that was sought by the lawmaker.
That is to say, once the interpreter has defined the end that the legislator aimed for and
the means that the legislator has designed to obtain such end, then the interpreter must
verify if the means are capable of achieving such end.
Hence doctrine of proportionality can be used as a tool for controlling excess state action
because there should be proportionality in decisions making of state and state cannot take

10
​contemplate or conceive of as a possibility or a desirable future event.
11
​in the strict sense
19
any action that is disproportionate to the Mischief at which it was aimed And it is also so
effective that there should be no harm to human rights by any action of the state

20
 Conclusion

The Indian courts were given regulated power in the name of this doctrine. And the
doctrine took a very narrow approach in its existence. But it is highly required that the
doctrine should establish itself in its proper manner and should be applied in order to
curb the actions of the administrative bodies in the chains of proportionality in the cases
when they outreach the requirement of reasonability and came in the framework of
arbitrary. Though it is the duty of court to respect the position of the administrative body,
but it is important to analyse that that doctrine is not to undermine the position of any
such administrative body but to regulate every action so that no action of anybody should
be beyond the purview of the principles of law that are existing. This is not only for the
development of the legal system of the country but also for the ‘Protection of the Rights’
of the citizens of the country.A. “Doctrine of proportionality” is a theory, which has
great practical and social significance in India. The said doctrine originated as far back as
in the 19th century in Russia and was later adopted by Germany, France and other
European countries. By proportionality, it is meant that the question whether while
regulating the exercise of fundamental rights, 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 legislation or the
administrative order may have on the rights, liberties or interests of persons keeping in
mind the purpose for which they were intended to serve. Ever since 1952, the principle
of proportionality has been applied vigorously to legislative and administrative action in
India. While dealing with the validity of legislation infringing fundamental freedoms
enumerated in Article 19(1) of the Constitution of India, this Court had occasion to
consider whether the restrictions imposed by legislation were disproportionate to the
situation and were not the least restrictive of the choices. In cases where such legislation
is made and the restrictions are reasonable yet, if the statute concerned permitted
administrative authorities to exercise power or discretion while imposing restrictions in
individual situation, question frequently arises whether a wrong choice is made by the

21
administrator for imposing the restriction or whether the administrator has not properly
balanced the fundamental right and the need for the restriction or whether 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 main legislation. This, in fact, is being
done by the courts. Administrative action in India affecting the Fundamental Freedoms
had always been tested on the anvil of the proportionality in the last 50 years even
though it has not been expressly stated that the principle that is applied is the
proportionality principle.

22
 References

Online Sources:
• SCC Online

• Manupatra

• EBC Reader

Webliography :
● https://www.lawteacher.net/free-law-essays/constitutional-law/proportionality-as-a

-ground-of-judicial-review-constitutional-law-essay.php#:~:text=The%20principle

%20of%20proportionality%20envisages,extent%20to%20preserve%20public%20i

nterest.

● https://racolblegal.com/doctrine-of-proportionality-an-analysis-of-supreme-court-cas

es/#:~:text=In%20India%20the%20doctrine%20of,Union%20of%20India.&text=Th

e%20doctrine%20of%20proportionality%20requires,the%20powers%20have%20be

en%20conferred.

● https://www.researchgate.net/publication/216827143_The_Principle_of_Proportiona

lity_the_Challenge_of_Human_Rights

● https://law.yale.edu/sites/default/files/area/conference/compadmin/compadmin16_m

athews_proportionality.pdf

● http://www.iosrjournals.org/iosr-jhss/papers/Vol1-issue6/D0161623.pdf

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