Administrative Law- Class Presentation

Doctrine of Proportionality

By Rajesh Mishra
LLM [2018-19]
 Introduction
•The doctrine of proportionality is of Prussian origin

•The term Proportionality means an administrative action must not be

more intrusive than is required to meet a particular purpose

• To put it another way it means that the public authority must maintain
a balance between the end and the means applied to reach that end.

• The implications of the doctrine of proportionality is that the court

would weigh the advantages and the disadvantages of an administrative
action and only if the advantage would outweigh the disadvantage
would the court uphold the administrative action
•In the words of Lord Diplock the doctrine is that “you must not use a
sledgehammer to crack a nut if a nut cracker would do
 Evolution of the Doctrine of Proportionality
•The growth of modern welfare state coupled with the technological
advances has resulted in the legislature not only leaving wide areas of
discretion to the administrative authority but also even delegating many
of its powers and functions. This has resulted in the modern day
bureaucrat becoming extremely powerful. This often leads to misuse of
discretion vested in him there by requiring frequent judicial intervention
•Thus judicial review has become a matter of necessity in today times
with different jurisdiction reacting differently whereas the common law
countries developed the system of secondary review through the system
of Wednesbury Unreasonableness the civil law countries came up with
the doctrine of proportionality
 Evolution of the Doctrine of Proportionality

• Hence the civil law countries have taken a more activist role
becoming the primary reviewing authority in case of administrative
action

• Though the common law countries initially ignored the test of

proportionality they gradually tried to replicate the model when they
found it to be successful in civil law countries of Europe

• India being a colonial country and having adopted the common law
system follows the model of common law countries especially the U.K
 Development in Britain
•In many cases in Britain Proportionality was merely treated as a rival
of the doctrine of the Wednesbury Principle of Unreasonableness.

• The reason for such reluctance being that the judiciary did not want to
go into the merits of the decisions of the administrative authorities as it
would interfere with the discretionary powers that are given to them

• However the critics of the Wednesbury Principle contended that the

test is too weak to control an unreasonable action and hence have
advocate for the test of Proportionality

• Lord Diplock in the famous case of Council of Civil Service Union vs.
Minister of Civil Services envisaged the test of proportionality as a
future consideration in determining the validity of the administrative
action
 Development in Britain
In the case of R vs. Barnsley the license of a small stall owner was
cancelled for urinating in the street and for using offensive language.
The Court struck down the cancellation of the license as the action was
found to be out of proportion and excessive to the offence committed
by the person

In the case of R vs. Home Secretary ex p. Brind- it was held that in case
of proportionality it is required of the court to judge whether the action
taken was really needed as well as whether it was within the range of
actions to be followed. It was held that such a test has to be rejected as
it resulted in the court to substitute judgment of proper authority
 Development in Britain
Test for proportionality

The test of proportionality was laid down for the first time in the case of
De Freitas vs. Permanent Secretary of Ministry of Agriculture, Fisheries,
Land and Housing and later reiterated in the case of R( Daly) vs. Home
Secretary. It was regarding the questions the court must ask itself before
applying this doctrine

1) whether the legislative objective is sufficiently important to justify

limiting a fundamental right
2) the measure designed to meet it are rationally connected to it
3) the means used to impair the right or freedom are no more than is
necessary to accomplish the objective
 Difference between Wednesbury Principle and
Proportionality

The two rival doctrines of Proportionality and Wednesbury principle

were considered by the court in the case of R (Daly) vs. Home Secretary
were the differences between the two doctrines were laid down as
follows-

1. Unlike the test of reasonableness in the Wednesbury Principle the

courts have to assess the balance which the decision maker has
sought

2 Secondly the proportionality test has to go further than the

traditional grounds for review such as the Wednesbury Principle
 Position in India

The broad principle of proportionality had not been so far accepted in

India and only a restricted version of such a right has come into play in
India being a common law country

• The European version of Proportionality makes the court the primary

reviewer whereas in India they are only secondary reviewers

• In India the courts apply the test of proportionality as an aspect of

Article 14,19 and 21 of the Indian Constitution

• If an action of the administration is arbitrary in nature it can be struck

down
 Position in India
• In the case of Om Kumar vs. UOI it was held that “ when an
administrative decision relating to the punishment in disciplinary cases
is questioned as arbitrary the court would be confined to Wednesbury
Principle as a secondary reviewing authority. The court will not apply
proportionality as a primary reviewing authority.

•In the case of UOI vs. R.K Sharma it was held that it is only on extreme
cases which on the face of it shows perversity or irrationality that the
court can interfere solely on compassionate grounds a court cannot
interfere in case of punishment by administrative action
 Case Illustrations

In the case of Union of India vs. G Ganyutham the respondent was

working as a Superintendent of Central Excise was subjected to the
punishment of withholding 50% of the pension and 50% of the gratuity.
The Administrative Tribunal holding the punishment too severe reduced
the same. The matter came before the Supreme Court which applied
the Wednesbury Principle and observed that court cannot substitute
the judgment of the administrative authority hence upholding the
original punishment
 Case Illustration
• In the case of Om Kumar and Ors vs. Union of India the court drew a
distinction between an administrative action that violates the provisions of
Article 14 and those that violate the provisions of Article 19 and 21

• It was held that if the provisions of Article 19 and 21 are violated the court
can apply the proportionality test by way of primary review

• In case of Article 14 if an action is found to be discriminative then the court

under primary review will apply the doctrine of proportionality whereas in
case of arbitrariness the court will apply the test of Wednesbury principle as
a secondary review
 Case Illustration
In the case of Ram Pal vs. Hon’ble Speaker Lok Sabha where a M.P was
expelled on the charges of corruption by the Speaker and he challenged
it on the ground of it being disproportionate it was held that the
doctrine of proportionality does not apply to parliamentary proceedings
as they do not sit in appeal over the decision of the legislative chamber
In the case of Commissioner of Police vs. Syed Hussain the respondent
was a police constable who stood surety for a criminal even though he
knew that the criminal was a repeat offender was dismissed from
service. He challenged the action on the ground of being
disproportionate however it was not accepted by the court considering
that the occupation of the respondent was to uphold the law
 Case Illustration

• In the case of Modern Dental College vs. State of M.P it was held
that the doctrine of proportionality is contained in Article 19 of the
Indian Constitution through 19(2) to 19(6) that detail the various
restrictions on individuals right and liberty
 Conclusion

•The doctrine of proportionality and Wednesbury Principle both are

tests for reasonableness of administrative action

• Whereas in case of doctrine of proportionality the court considers

whether the decision in merit in case of Wednesbury the courts limit
themselves to whether a particular action is reasonable or not

• The courts in various cases have applied the doctrine of

proportionality for the violation of the rights under Article 19 and 21 of
the Indian Constitution though not explicitly