A DISSERTATION ON

DOCTRINE OF PROPOTIONALITY ITS NATIONAL AND

INTERNATIONAL ASPECTS
SUBMITTED FOR THE PARTIAL FULFILMENT OF THE
REQUIREMENT OF THE DEGREE OF B.A; LL.B

UNDER THE GUIDANCE OF

Dr.MANU SINGH
SUBMITTED TODr.MANU SINGH

SUBMITTED BYPRANJAL SRIVASTAVA

RESEARCH GUIDE

B.A; LL.B (H) (2011- 2016)

AMITY LAW SCHOOL

A8111111021

Page 1 of 104

DECLARATION
Title of Project Report- Doctrine of Propotionality- Its National and International Aspects
I understand what plagiarism is and am aware of the Universitys policy in this regard.
I declare that
(a) The work submitted by me in partial fulfillment of the requirement for the award of
degree B.A;LL.B (H) Assessment in this Dissertation- Doctrine of Propotionality- Its
National and International Aspects is my own; it has not previously been presented for
another assessment.
(b) I declare that this Dissertation - Doctrine of Propotionality- Its National and
International Aspects is my original work. Wherever work from other source has been
used, all debts (for words, data, arguments and ideas) have been appropriately
acknowledged and referenced in accordance with the requirements of NTCC regulations
and Guidelines.
(c) I have not used work previously produced by another student or any other person to
submit it as my own.
(d) I have not permitted, and will not permit, anybody to copy my work with the purpose of
passing it off as his or her own work.
(e) The work conforms to the guidelines for layout, content and style as set out in the
Regulations and Guidelines.
Date :23rd October, 2015
PRANJAL SRIVASTAVA
A8111111021
B.A;LL.B(H)
2011-2016

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CERTIFICATE
I hereby certify that
(a) PRANJAL SRIVASTAVA, A8111111021 Student of B.A;LL.B (H) & Batch ( 2011-2016) at
Amity Law School, Amity University Uttar Pradesh has completed the Project Report on
Doctrine of Propotionality- Its National and International Aspects, during Semester
9th under my supervision.
(b) The presented work embodies original research work carried out by the student as per the
guidelines given in University Regulations.
(c) The Research and writing embodied in the thesis are those of the candidate except where due
reference is made in the text.
(d) I am satisfied that the above candidates prima facie, is worthy of examination both in terms
of its content and its technical presentations relative to the standards recognized by the
university as appropriate for examination.
(e) I certify that in accordance with NTCC guidelines, the report does not exceed the prescribed
maximum word limit; or Prior approval has been sought to go beyond the word limit.
(f) Wherever work form other source has been used, all debts (for words, data, arguments and
ideas) have been appropriately acknowledge and referenced in accordance with the
requirements of NTCC Regulations and Guidelines.

Signature of the Faculty

Dr. Manu Singh
Assistant Professor

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ACKNOWLEDGEMENT
I would like to express the deepest appreciation to my Dissertation Guide Dr. Manu Singh who
rhas the attitude and the substance of a genius. She continually and convincingly conveyed a
spirit of adventure in regard to the research. Without her guidance and persistent help this
dissertation would not have been possible.
I would also express my deepest appreciation to my Administrative Law Faculty Mr. Panch Rishi
Dev Sharma, for building my interest in this topic- Doctrine of Propotionality- Its National
and International Aspects
I would also like to thank my friends and family without whose constant support and
appreciation this dissertation would not have been possible.

PRANJAL SRIVASTAVA

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ABBREVIATIONS

Honble Honourable

SC- Supreme Court

HC- High Court

.VS or v/s - Versus

&- and

Govt- Government

UOI- Union of India

AIR All India Report

SCC- Supreme Court Cases

Eg. Example

St. State

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TABLE OF CASES

R v. Secretary of State for the Home Department ex. p Brind(1991) 1 AC 696

Council of Civil Services v. Minister of Civil Services, 1985 AC 374

Hind Construction Co. v. Workman

Ranjit Thakur v. U.O.I. (1987) SC 611, 620

State of Orissa v. VidyaBhushanMahapatra

Union of India v. Parma Nanda

Dhirajlal v. CIT, AIR 1955 SC 271

State of Maharashtra v. B.K. Takkamore, AIR 1967 SC 1353

Zora Singh v. J.M. Tandon (1971) 3 SCC 834

Sardar Singh v. Union of India

Union of India v. G. Ganahyutham

R. v. Home Secretary exp. Brind

Tata Cellular v. Union of India

State of Andhra Pradesh v. McDowell & Co

Manohar Lal v. State of Punjab

B.C. Chaturvedi v. U.O.I

Om Kumar v. Union of India

R.M. Seshadri v. Distt. Magistrate Tanjore.

Union of India v. Mohan Picture Association.(1999) 6 SCC 150

S. Rangarajan v. P. Jagjivan Ram. (1989) 2 SCC 574

Malak Singh v. State of P & H. (1981) 1 SCC 420

BishambharDayalChandramohan v. State of U.P. AIR 1982 SC

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E.P. Royappa v. State of Tamilnadu

C.M.D. United Commercial Bank v. P.C. Kakkar

Dev Singh v. Panjab Tourism Development Corp

Canara Bank v. V.K. Awasthy

Food Corp. of India v. BhanuLodh

Teri Oat Estate (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130

Associated Provincial Picture Houses v WednesburyCoroporation

Beta-Muhle Joseph Bergmann KG v. Grows Farm Grubtt (1977

R v International Stock Exchange ex parte Else (1992) BCC 11

R v. Secretary of State for the Home Department ex p Hargreaves (1997) 1 All ER 397

R v Secretary of State for Defence ex parte Association of British Civilian Internees: Far
East Region (2003) QB 1397

R v Secretary of State for the Home Department ex parte Daly (2001) 2 WLR 1622

R v. Secretary of State for the Environment ex parte Alconbury (2001) 2 WLR 1389

R v Governors of Denbigh High School ex parte Begum (2007) 1 A.C. 100

Belfast City Council v Miss Behavin Ltd

Short v Poole Corporation

Minister for Aboriginal Affairs v Peko-Wallsend Ltd

Minister for Immigration and Multicultural Affairs v Eshetu

Attorney-General (NSW) v Quin

Nottinghamshire County Council v Secretary of State for the Environment [1986] AC

240 at 249

Lustig-Prean and Beckett v The United Kingdom

R (Daly) v Home Secretary

See State of UP v. SheoShanker, (2006) 3 SCC 276

UP State Road Transport Corporation v. Shivaji,AIR 2007 SC 322

Edore v. Secy. of State for the Home Dept

E. Royappa v. State of Tamil Nadu

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Om Kumar v. Union of India

Union of India V. R.K. Sharma

Bhagat Ram V. State of Himachal Pradesh

B.C. Chaturvedi v. Union of India

Union of India v. G. Gangayuthan, AIR 1997 SC 3387

U.P. State Road Transport Corporation v. Subash Chandra Sharma

Apparel Export Promotion Council v. A.K. Chopra

C.M.D. United Commercial Bank v. P.C. Kakkar

TABLE OF CONTENT
CHAPTER 1 Pg 11 -15

1.1 Introduction

1.2 Problem of Study

1.3 Objective of Study

1.4 Hypothesis

1.5 Research Methodlogy

CHAPTER 2.. Pg 16-27

2.1 Development of Indian Law

2.2 Application of Propotionality

2.3 Distinction between primary and secondary role

2.4 An appraisal of the recent judicial trend in proportionality

2.5 Application of the proportionality other than the case of judgement

CHAPTER 3 Pg 28 -37

3.1 Propotionality test in the U.K administrative law

CHAPTER 4. Pg 38 - 47

4.1 Reasonableness, Propotionality and Mrerit Review

CHAPTER 5.. Pg 48 -49

5.1 Wednesbury reformulated

CHAPTER 6.. Pg 50 - 51

6.1 Doctrine of Propotionality

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CHAPTER 7.. Pg 52- 53

Wednesbury unreasonableness
CHAPTER 8 Pg 54- 64

8.1 Indian View

8.2 Important Judgement

CHAPTER 9..Pg 65 - 70

9.1 Propotionality and USA

CHAPTER 10. Pg 71- 81

10.1 Propotionality in the US Constitution nad Abroad

CHATER 11 Pg 82- 99

11.1 Is the Supreme Court dispropotionately applying the Propotionality Principle

11.2 Wednesbury reasonableness: A ground for Judicial Review

11.3 Supreme Court on Propotionality

CHAPTER 12 Pg 100
12.1 Conclusion
BIBLIOGRAPHY. Pg 101

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ABSTRACT
The doctrine of proportionality is emerging as another new ground of judicial review of
administrative action. It is very well entrenched in the continental system of administrative law.
It is claimed that this doctrine is capable to control arbitrariness in the administrative action
effectively. Whether it replaces the outdated Wednesbury principle to determine the rationality
aspect of the reasonableness is an important debate in the juristic circle. The principle of judicial
review that court cannot go into the merit of the decision and the doctrine of proportionality that
allows the reviewing court to probe some aspect of the merits of the case is the matter of
reconciliation. Although the courts are still grappling with the fundamentals of this concept but
the analysis of the case laws has to bring out this dilemma of the court to correctly appreciate and
apply this novel principle of law. Being an important juristic principle and ground of judicial
review of administrative action the research on doctrine of proportionality is of great academic as
well as legal interest.

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CHAPTER 1
1.1 INTRODUCTION
The doctrineof proportionality is of European origin. The principleof proportionality has been
characterised as the mostimportant generallegal principlein theEuropean AdministrativeLaw. The
principleof proportionality envisages that a public authority oughtto maintain a senseof
proportion between his particular goals and the means heemploys toachievethose goals, sothat
his action impinges on theindividual rights tothe minimum extentto preservethe public interest.
This means that administrative action ought to bear a reasonable relationship to the general
purpose for which the power has been conferred.
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 administrativeaction. The Administration must draw a balancesheet
of the pros and cons involved in any decision of consequence to the public and to individuals.
The principle of proportionality envisages 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

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interests of persons and the purpose which it pursues. All in all, it means that the decision-maker
must have a sense of proportion
Proportionality is a general principle in law which covers several special (although related)
concepts. The concept of proportionality is used as a criterion of fairness and justice in statutory
interpretation processes, especially in constitutional law, as a logical method intended toassistin
discerning the correct balance between the restriction imposed by a corrective measure and the
severity of the nature of the prohibited act. Within criminal law, it is used to convey the idea that
the punishment of an offender should fit the crime. Under international humanitarian law
governing the legal use of force in an armed conflict, proportionality and distinction are
important factors in assessing military necessity.

European Union Law

In European Union law there are generally acknowledged to be four stages to a proportionality
test, namely,

there must be alegitimate aim for a measure

the measure must be suitable to achieve the aim (potentially with a requirement of evidence
to show it will have that effect)

the measure must be necessary to achieve the aim, that there cannot be any less onerous way
of doing it

the measure must be reasonable, considering the competing interests of different groups at
hand

Australia
While the European Union has placed a consistent focus on the proportionality test in the context
of policy issues, namely human rights, the proportionality test in the Australian contexts a matter
of constitutional interpretation with respect to legislative power under the Constitution. Unlike
Europe, the proportionality test as a means to characterize whether Commonwealth legislations
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falls under a head of power under s51 of the Australian Constitution has attracted divergent
viewpoints, in which Kirby J has remarked that the 'test has not enjoyed universal favor'.
However, Dixon CJ made clear that 'the question is essentially one of connation, not
appropriateness of proportionality, and where a sufficient connexion is established, it is not for
the Court to judge whether the law is inappropriate or disproportionate'.
Criminal Law
In criminal law, the principle of proportional justice is used to describe the idea tha the
punishment of a certain crime should be in proportion to the severity of the crime itself. In
practice, systems of law differ greatly on the application of this principle. In some systems, this
was interpreted as lextalion is (an eye for an eye). In others, it has led to a more restrictive
manner of sentencing. For example, all European Union countries have accepted as a treaty
obligation that no crime warrants the death penalty, whereas some other countries in the world
douse it.
In self-defense cases, the amount of force employed by the defender must be proportionate to the
threatened aggressive force. If deadly force is used to defend against non-deadly force, the harm
inflicted by the actor (death or serious bodily harm) will be greater than the harm avoided (less
than serious bodily harm). Even if deadly force is proportionate, its use must be necessary.
Otherwise, unlawful conduct will only be justified when it involves the lesser harm of two
harmful choices. If countering with non-deadly force or with no force at all avoids the threatened
harm, defensive use of deadly force is no longer the lesser evil of only two choices. Alternatives
involving still less societal harm are available.
In United States law, the United States Supreme Court proposed the Proportionality Doctrine in
three cases during the 1980s, namely Edmund v. Florida (1982),Solemn v. Halem (1983)
andTison v. Arizona (1987), to clarify this key principleof proportionality within the Crueland
Unuasual Punishment Clauseof the Eighth Amendment. The fundamental principle behind
proportionality is thatthe punishment should fitthe crime. In 1983, theU.S. Supreme Court ruled
that courts must dothreethings to decide whether a sentenceis proportionaltoa specific crime:
Comparethe natureand gravity of theoffenseand the harshness of the penalty,

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 Comparethe sentences imposed on other criminals in the same jurisdiction; i.e., whether
more serious crimes are subjecttothe same penalty or toless serious penalties, and
Comparethe sentences imposed for commission of the same crimein other jurisdictions.
Proportionality is also presentin other areas of municipallaw, such as civil procedure. For
example, itis embodied in Fed.R.Civ.P. 26(b)(2)(C), which considers whether the burden or
expenseof the proposed discovery outweighs its likely benefit. Proportionality is a key
consideration in the discovery process, and has been applied toe-discovery, whereit has been
attributed with significant cost-savings. Itis likely that proportionality will beapplied to new and
developing areas of law, such as thelaw of legaltechnology.

International Humanitarian Law

The harm caused to civilians or civilian property must be proportionaland notexcessivein relation
tothe concreteand direct military advantageanticipated by an attack on a military objective.Luis
Moreno-Ocampo was the Chief Prosecutor atthe International CriminalCourt whoinvestigated
allegations of war crimes during the 2003 invasion of Iraq. He published an open letter
containing his findings; in a section titled "Allegations concerning War Crimes".
The doctrineof proportionality is emerging as another new ground of judicial review of
administrativeaction. Itis very wellentrenched in the continental system of administrativelaw. Itis
claimed thatthis doctrineis capableto controlarbitrariness in theadministrativeaction effectively.
Whether it replaces theoutdated Wednesbury principleto determinethe rationality aspectof the
reasonableness is an important debatein the juristic circle. The principleof judicial review that
court cannot gointothe meritof the decision and the doctrineof proportionality thatallows the
reviewing courtto probe someaspectof the merits of the caseis the matter of reconciliation.
Although the courts are still grappling with the fundamentals of this concept buttheanalysis of
the caselaws has to bring outthis dilemmaof the courtto correctly appreciateand apply this novel
principleof law. Being an important juristic principleand ground of judicial review of

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administrativeaction the research on doctrineof proportionality is of greatacademic as wellas

legalinterest.
1.2 PROBLEM OF STUDY
With the rapid growth of administrative law and the need and necessity to control possible
abuse of discretionary powers by various administrative authorities, certain principles have
been evolved by the courts. If an action taken by any authority is contrary to law, improper,
unreasonable or irrational, a court of law can interfere with such action by exercising power
of judicial review. One of such modes of exercising power is the doctrine of proportionality.
1.3OBJECTIVE OF STUDY
The objective of the topic Doctrine of propotionality is that It is heartening that the courts
are making references to the Doctrine of Proportionality and such cases are growing in
number in the reports. However it is regrettable that this principle is not properly appreciated
and applied in letter and spirit
1.4 HYPOTHESIS
The critical appraisal of the recent decisions bring out this sad state of the principle. It is
hoped that in future the concept would be analysed and applied properly in the right
context. This principle has great utility in the judicial review of administrative action
and should be applied properly. We have a long way to go in this regard. In order to
determine whether a provision of community law is consonant with the principle of
proportionality it is necessary to establish, in the first place whether the means it
employs to achieve its aim correspond to the importance of the aim and, in the second
place, whether they are necessary for its achievements
1.5 RESEARCH METHODOLGY
Doctrine of propotionality-its national and international aspects, the research
methodlogy involved in making this dissertation is Doctrinal Research. Research
means where investigation of new things takes basically first hand experience. Doctrinal
Research means a research in the field of law where legal doctrines, case laws, legal
framework are analysised in order to bring out new things with extensive research of

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legal literature but no field work is involved in this research. This method is adopted
with the time period is short.

CHAPTER 2

2.1 DEVELOPMENT IN INDIAN LAW

InIndia Fundamental Rights form a partof theIndian Constitution, therefore, courts havealways
used the doctrineof proportionality in judging the reasonableness of a restriction on theexerciseof
fundamental rights .Thus whileexercising the power of judicial review court performs the
primary rolein Brinds1 senseof evaluating if a particular competing public interest justifies the
particular restriction under thelaw. This situation arises when the courtis deciding on the
constitutionality of alaw imposing unreasonable restriction on theexerciseof fundamental rights.
Theorigin of the concept may betraced in Persiain ninteenth century followed by Germany,
Franceand other Europeon countries. TheEuropean Courtof JusticeatLuxembourg and
theEuropean Courtof Human Rights at Strasbourg haveapplied the principle while judging the
validity of administrativeaction. TheSupereme Court has also been applying the principleof
proportionality

tolegistlativeactions

since

1950.

This

principleapplied

when

theadministrativeaction is attacked as discretionary under Article 14 of the constitution.

1. R v. Secretary of State for the Home Departmentex. p Brind(1991) 1 AC 696
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However, whereadministrativeaction is questioned as arbitrary under Article 14 then

theWednesburys 2principleapplied. So far as Article 14 is concerned, the courts in
Indiaexamined whether the classification was based on theintelligible differentiaand whether the
differentia had a reasonable nexus with theobjectof thelegislation. It mean thatthe courts
wereexamining the validity of the differenceand theadequacy of the difference. This is again the
principleof proportionality.
In India, in the case notinvolving fundamental freedoms, the roleof our courts/ tribunals in
administrativelaw is purely secondary and whileapplying Wednesburyand CCSU 3 principles
totestthe validity of executiveaction or of administrativeaction taken in exerciseof statutory
powers, the courts can only gointothe matter as a secondary reviewing courtto find outif
theexecutiveor theadministrator in their primary roles havearrived ata reasonable decision on
thematerial beforethem in thelightof Wednesburyand CCSUtests. The choiceof theoption
availableis for theauthority. The courts/tribunals cannot substitutethe view as to whatis
reasonable.
2.2APPLICATION

OF

PROPOTIONALITY

In Hind Construction Co. v. Workman4 conforming theorder of thetribunal, the Supreme

Courtobserved thattheabsence could have been treated as leave without pay. The workman might
have been warned and fined. Brief facts are: some workers remained absent from duty treating a
particular day as holiday. They were dismissed from service. TheIndustrialTribunal
setasidetheaction. Court further said, itis impossibletothink thatany reasonableemployer would
haveimposed theextreme punishmentof dismissalon its entire permanent staff in this matter.
In RanjitThakur5 case, TheApex Court had applied the doctrineof proportionality while
quashing the punishmentof dismissal from serviceand sentenceof imprisonmentawarded by the
court martialunder theArmy Act. Upholding the contention, following CCSU 6 casethe
courtobserved, The question of the choiceand quantum of punishmentis within the jurisdiction
2(1948)1 KB 223
3Councilof Civil Services v. Minister of Civil Services, 1985 AC 374
4AIR 1965 SC 917
5RanjitThakur v. U.O.I. (1987) SC 611, 620
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and discretion of the court martial. Butthe sentence has to suittheoffenceand theoffender. It
should not beindicativeor unduly harsh. It should not beso disproportionatetotheoffenceas to
shock the conscienceand amountin itself to conclusiveevidenceof bias. The doctrineof
proportionality, as a partof the conceptof judicial review, would ensurethateven as an aspect
which is, otherwise, within theexclusive provinceof the court martial, if the decision of the
courteven as to sentenceis an outrageous defianceof logic, then the sentence would not
beimmune from correction. Irrationality and perversity arerecognised grounds of judicial
review.
TheApex Court reinstated in the caseof B.C.Chaturvedithatthe punishmentis so strikingly
disproportionateas to call for and justify interference. It cannot beallowed to remain uncorrected
in judicial review. Consequently theorder and sentenceimposed by the court martialon
theappellant was quashed by the court. 7 The pointis thatall powers havelegallimits.
JudicialReview generally speaking, is not directed againsta decision, butis directed againstthe
decision making process.
In Stateof Orissa v. VidyaBhushanMahapatra,8 while dealing with a disciplinary matter of a
government servant, theApex court held thatif the High Courtis satisfied that some but notallthe
findings of theTribunal wereunassailable, then it had no jurisdiction to directthe disciplinary
authority to review the penalty. If theorder may be supported on any finding as to
substantialmisdemeanour for which the punishment can belawfully imposed, itis not for the
courtto consider whether that ground alone would have weighed with theauthority in dismissing
a public servant.
In Union of India v. Parma Nanda,9 the Supreme Courttook a very narrow view. Considering
the decision in BidyabhushanMahapatra10 and other cases11 court had made wider observation
and stated; If the penalty can lawfully beimposed and is imposed on the proved misconduct,
6Councilof Civil Service v. Minister of Civil Services, 1985, AC 374
7B.C. Chaturvedi v. Union of India, 1995 (6) SCC 749
8AIR 1963 SC 770: 1963 Supp. (1) SCR 648
9(1989) 2 SCC 177: AIR 1989 SC 1185
10Stateof Orissa v. BidyabhushanMahapatra, (1963) SC 779; 1963, Supp.(1) SCR 648
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thetribunal has no power to substituteits own discretion for thatof theauthority. Theadequacy of
penalty unless itis mala fideis certainly nota matter of theTribunalto concern itself with.
TheTribunalalso cannotinterfere with the penalty if the conclusion of theinquiry officer or the
competentauthority is based on evidenceeven if someof itis found to beirrelevantor extraneous
tothe matter.
Itis submitted thattheobservation made by the Supreme Court did notlay down the correctlaw in
as much as the doctrineof proportionality in awarding punishment has been recognized by
theIndian courts sincelong. Itis no doubttruethatin the facts and circumstances of the case, the
punishmentawarded could not be said to beexcessively high or grossly disproportionatetothe
charges leveled and proved against him. If the punishmentimposed is excessively harsh or
disproportionate, a High Courtor the Supreme Courtin exerciseof the powers under Articles 32,
226, 136 and 227 of the Constitution of Indian can interfere with it. If the
CentralAdministrativeTribunal could be said to be substitute of a High Court,
thetribunalundoubtedly possessed power tointerfere with theorder of punishment.
In Sardar Singh v. Union of India,12 ajawan serving in an Indian Army was granted leaveand
while going his hometown, he purchased eleven bottles of rum from army canteen though he was
entitled to carry only four bottles. In court martial proceedings, he was sentenced toundergo
rigorous imprisonment for three months and was also dismissed from service. His petition under
Article 226 of the Constitution was devised by the High Court. The petitioner then approached
the Supreme Court. The Supreme Courtobserved thatthe main submission and perhaps theonly
submission if we may say so, in this appealis thatthe sentenceawarded totheappellantis wholly
disproportionatetotheoffence committed by him. Court considered the caseof RanjitThakur13 in
the matter of awarding punishmentunder theArmy Act. Applying these principles tothis casethe
courtobserved thatthereis an elementof arbitrariness in awarding these severe punishments
totheappellant.

11Dhirajlal v. CIT, AIR 1955 SC 271; Stateof Maharashtra v. B.K. Takkamore, AIR 1967 SC

1353; (1967) 2 SCR 583; Zora Singh v. J.M. Tandon (1971) 3 SCC 834; AIR 1971 SC 1537
12(1991) 3 SCC 213
13AIR 1987 SC 2387
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Jayachandra Reddy J. further said that weare satisfied thatan interferenceis called for and the
matter has to be remanded on the question of awarding any of thelesser punishment. Accordingly
we setasidethe punishmentof three months rigorous imprisonmentand dismissal from serviceand
remand the matter tothe court martial which shallaward any of thelesser punishments having due
regard tothe natureand circumstances of the caseand in thelightof theaboveobservation made by
us.
In Union of India v. G. Ganahyutham 14,The respondent was working as Supdt. CentralExcise
whilein serviceon 14/11/77 charged with a memoof 8 charges. Inquiry officers found him guilty
of charges (except 4 & 8 partly). UPSC was consulted and held that charges 4 & 6 not proved but
concurred with Inquiry Officers Report. Respondent retired in 1978. A penalty of withholding
50% pension and 50% of gratuity was awarded in 1984. A writ petition was filed in High courtof
Madras, later on transferred to CAT which held thatthe punishmentawarded was too
severethatlapses were procedural. The withholding of the pension of 50% had to be restricted for
a period of 10 years instead of permanent basis. Secondly, pension does notinclude gratuity as
defined in Rule 3(1)(o). So withholding of gratuity is notallowed. TheUnion of India filed an
appeal. During pendency respondent died his Legal Representative have been broughton record.
Supreme Courtoverruled Tribunaland held that pension include gratuity as defined in R 3(1) (o).
TheWednesbury case15 was discussed, the CCSU Case16 was analysedas to futureadoption of
proportionality. RanjitThakur,17 as first decision on proportionality was also discussed which
treated proportionality as partof judicial review in administrativelaw. It was followed in
NaikSardar Singh case.18
De Smith, Woolf and Jowell19 pointoutthat proportionality used in human right contextinvolves a
balancing testand the necessity test. The balancing test means scrutiny of excessiveonerous
14AIR 1997 SC 3387
15(1948) IKB 223
16(1985) AC 374
17RanjitThakur AIR 1987 SC 2387
18Sardar Singh v. Union of India (1991) 3 SCC 213
19Judicial Review of Administration Action 5th Ed. (1995) pp. 101-105
Page 20 of 104

penalties or infringementof rights or interestand manifestimbalanceof relevant consideration. The

necessity test means thatinfringementof Human Rights in question must be by theleast
restrictivealternative.
R. v. Home Secretary exp. Brind20 was referred inTata Cellular v. Union of India21 and
Stateof Andhra Pradesh v. McDowell& Co.,22Supreme Court held thatitis debatable whether
proportionality is applicablein Indian law. Thus it struck a different note from thatof
RanjitThakur23 case. Supreme Courtobserved that McDowell, however makes it clear that so far
as the validity of a statute concerned, the same can be judged by applying the principleof
proportionality for finding out whether the restrictions imposed by the statuteare permissibleand
within the boundary prescribed by our Constitution. Soa statute can be struck down. The
principleof proportionality is applied in Australia& Canadatotestthe validity of statute.

2.3

DISTINCTION

BETWEEN

PRIMARY

AND

SECONDARY

ROLES

Human Rights Courts at Strasbourg exercises primary rolein enforcing European Human Right
Conventions. Butin theabsenceof incorporation of the convention in English Law (now
incorporated by 2002 Human RightAct), theEnglish Court would beleft with Wednesbury&
CCSUtests. Therethe courts role would only bea secondary one whilethe primary role would
remain with administrator. It meantthatin secondary roletheEnglish courts would only consider
whether theadministrator act reasonably to his primary decision on the material before him.
20(1991) IAC 696
21AIR 1994 SC 3344
22AIR 1996 SC 1679
23RanjitThakur v. Union of India, (1987) 4 SCC 611
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Margin of appreciation and judicial restraintapplied in Manohar Lal v. Stateof Punjab 24 cited
whiletesting the validity of legislative measures in the contextof Article 19(2) to (6). Position
summarized by the Supreme Court: To judgethe validity of any administrativeorder or statutory
discretion; normally theWednesburyTestis to beapplied. The possibility of other tests including
proportionality being broughtintoEnglish AdministrativeLaw in futureis not ruled out.
Thesearethe CCSU principles.
As Bugdaycay, Brind, Smith as long as convention is notincorporated intoEnglish Law,
theEnglish Courts exercised secondary judgement. If however, convention is incorporated in
England makes availablethe principleof proportionality, then theEnglish Courts will render
primary judgement.
The position in our country in administrativelaw where no fundamental freedoms as aforesaid
areinvolved, the courts/tribunals willonly play a secondary role whilethe primary judgementas to
reasonableness will remain with theexecutiveor administrativeauthority. The secondary
judgementof the courtis to be based on Wednesburyand CCSU principles as stated by Lord
Greeneand Lord Diplock.
Whether in the caseof administrativeor executiveaction affecting fundamental freedom, the
courts in our country willapply the principleof proportionality and assumea primary roleis
leftopen to be decided in an appropriate case where such action is alleged tooffend fundamental
freedom. It will be necessity to decide whether the courts will havea primary roleonly if the
freedom

under

Articles

19,

21

etc.

involved and not for Article 14.

In RanjitThakur this courtinterfered only after coming tothe conclusion thatthe punishment was
in outrageous defianceof logic and was shocking. It was also described as perverseand irrational.
In other words Wednesburyand CCSUtests were satisfied.
B.C. Chaturvedi v. U.O.I.25 followed and sothe Court would notinterveneunless punishmentis
wholly disproportionate. In the caseof Om Kumar v. Union of India,26 the proceedings arising
24AIR 1961 SC 418
25AIR 1995 SC 4374
26AIR 2000 SC 3684
Page 22 of 104

outof an order of Supreme Court dated 4-5-2000 proposing to reopen the quantum of
punishments

imposed

in

departmentalinquiries

on

certain

officers

of

the

Delhi

DevelopmentAuthority who were connected with theland of the DDAallotted to M/S Skipper
Construction Co. It was proposed to consider impositions of higher degreeof punishments in
view of the roleof theseofficers in the said matter. After directions were given by this courtthat
disciplinary action betaken and punishments wereawarded totheofficers in accordance with well
known principles of law. In this case courtobserved that so far as Article 14 is concerned, the
courts in Indiaexamined whether the classification was based on intelligible differentiaand
whether the differentia had a reasonable nexus with theobjectof thelegislation. It means courts
wereexamining the validity of the differences and theadequacy of the differences. This is nothing
butthe principleof proportionality.
In theIndian contexttheexistenceof a charter of fundamental freedom from 1950 distinguishes our
law and has placed our courts in a moreadvantageous position than in England so far as judging
the validity of legislativeas wellas administrativeaction. Under Article 19(2) to (6) restriction on
fundamental freedom can beimposed only by legislation. In cases where such legislation is
madeand

restriction

are

reasonable

yet,

if

the

concerned

statute

permitted

theadministrativeauthorities toexercise power or discretion whileimposing restrictions in

individual situation, question frequently arises whether a wrong choiceis made by
theAdministrator for imposing restriction or whether theAdministrator has not properly balanced
the fundamental rightand the need for the restriction or whether he has imposed theleastof the
restrictions or the reasonable quantum of restriction etc. In such case courtobserved that such
action has to betested on the principleof proportionality.
Administrativeaction in Indiaaffecting fundamental freedoms has been tested on theanvilof
proportionality in series of cases during last fifty years even though it has not been expressly
stated

the

principleof

proportionality27.In

allthese

cases

the

proportionality

of

administrativeaction affecting the freedoms under Article 19(1) or Article 21 has been tested by
the

courts

as

primary

reviewing

authority

27R.M. Seshadri v. Distt. MagistrateTanjore. ; AIR 1954 SC 747; Union of India v. Mohan

PictureAssociation.(1999) 6 SCC 150; S. Rangarajan v. P. Jagjivan Ram. (1989) 2 SCC 574;

Malak Singh v. Stateof P & H. (1981) 1 SCC 420; AIR 1981 SC 760 and
BishambharDayalChandramohan v. Stateof U.P. AIR 1982 SC
Page 23 of 104

and noton the basis of Wednesbury principles. It may bethatthe courts did not callthis
proportionality butit really was.
In India whereadministrativeaction is challenged under Article 14 as being discriminatory, equals
aretreated unequally or unequalsaretreated equally, the question is for the constitutional courts as
primary reviewing courts to consider correctness of thelevelof discrimination applied and
whether itis excessiveand whether it has a nexus with theobjectiveintended to beachieved by
theadministrator. Herethe courts deal with the merits of the balancing action of theAdministrator
and is, in essence, applying proportionality and is a primary reviewing authority.
But wherean administrativeaction is challenged as arbitrary under Article 14 on the basis of
Royappa28 (punishmentin disciplinary cases are challenged), the question will be whether
theadministrativeorder is rational or reasonable and thetestthen is theWednesburytest. The
court would then be confined only toa secondary roleand willonly haveto see whether
theadministrator has done wellin his primary role, whether he has acted illegally or has omitted
relevant factors from consideration or has taken irrelevance factors into consideration or whether
his view is one which no reasonable person could havetaken. If his action does not satisfy these
rules, itis to betreated as arbitrary. Thus, when administrativeaction is attracted as discriminatory
under Article 14, the principleof primary review is for the courts by applying proportionality.
However, whereadministrativeaction is questioned as arbitrary under Article 14, the principleof
secondary review based on Wednesbury principleapplies.
The court while reviewing punishmentand if itis satisfied thatWednesbury principles are violated,
it has normally to remitthe matter totheAdministrator for a fresh decision as tothequantum of
punishment. Only in rare cases wherethere has been long delay in thetimetaken by the
disciplinary proceedings and in thetimetaken in the courts, and in such extremeor rare cases can
be court substituteits own view as tothe quantum of punishments.

2.4ANAPPRAISAL OF THE RECENT JUDICIALTRENDSIN PROPOTIONALITY

28E.P. Royappa v. Stateof Tamilnadu (1974) 4 SCC 3: AIR 1974 SC 555

Page 24 of 104

Punishment Cases BeforeRanjitThakur29 in 1987, the Supreme Court had been applying the
principleof proportionality mostly in punishment cases as a general proposition notin
thetechnical modern sense. For the firsttime, theapex court madea passing referencetothe
doctrineof proportionality without delineating its nature, definition or scopein theRanjitThakur
case which was alsoa punishment case. Again in Ganayutham casein 1997, the question
whether the courts dealing with executiveor administrativeaction or discretion exercised under
statutory powers where fundamental rights areinvolved could apply the principleof
proportionality and takeup primary role was leftopen for future. Again the court did not gointo
detailed analysis of the concept. However, in 2000 in Om Kumar v. Union of India30
theApex Court gave someexplanation of the doctrineof proportionality and analysed someof
theEnglish decisions, especially, Brinds case. The position in England has undergone
substantially sinceBrinds case. The Human Rights Act, 1998 has comeinto forceand the courts
are compelled toapply proportionality in Human Rightand European Community law context.
Now itis being suggested by eminent jurists and judges toadoptauniform testof proportionality
even in domestic law alsoin lieuof Wednesburyor CCSU principles.
Therefore, in Om Kumar, the Supreme Court reconsidered the whole situation and laid down
some principles for futureapplication. The court held that so far fundamental right, exceptArticle
14, are concerned the principleof proportionality is applicableand in fact, the courts have been
applying it since 1950 after the commencementof the Constitution. So far Article 14 is concerned
itis divided into parts. In cases of discrimination i.e. cases of classification, proportionality
willapply. However, if theadministrativeaction is challenged as arbitrary and ordinary cases of
abuseof power under the statutory authority proportionality will notapply as such, the
reasonableness of theaction in such cases will be determined by Wednesburyor CCSU principles
unless theadministrativeaction shocks the conscienceof the courtor tribunalas in the caseof
RanjitThakur. When proportionality is applied, the courtexercises primary rolei.e. puts itself in
the same position as theauthority itself. But when Wednesbury principleis applied, the roleof the
courtis secondary and judicial review would apply under those conditions without going intothe
merits of the case. The Supreme Courtapplied theabove principleof Omkumarin C.M.D. United

29AIR 1987 SC 2387

30AIR 2000 SC 3689
Page 25 of 104

Commercial Bank v. P.C. Kakkar31 again in disciplinary punishments. The petitioner was
dismissed from the Bank services after the charges wereestablished against him. The High Court
setasidethe punishmentto beexcessiveand reduced ittoaloss of 75 per centof salary. Action was
challenged as arbitrary under Article 14 of the Constitution. Theapex court held, unless the
punishmentimposed by the Disciplinary Authority or theAppellateAuthority shocks the
conscienceof the courtor tribunal, thereis scope for interference. When the court feels thatthe
punishmentis shockingly disproportionateit must record reasons for coming to such a
conclusion. Mereexpression thatthe punishmentis shockingly disproportionate would not meetthe
requirementof law. The Supreme Court setasidethe decision of the High and sentthe matter back
for fresh consideration only on the question of the punishmentaspect.
However, in Dev Singh v. Panjab Tourism Development Corp. 32 is one case wherethe
Supreme Court did interfere with the punishmentof dismissalimposed on theappellant. The court
found the punishment too harsh totally disproportionatetothe misconductalleged and which
certainly shocks our judicial conscience. Again applying the principleof proportionately toa
case33 wheretheauthority in exerciseof its statutory powers resumed the property and also
forfeited the depositamount withoutestablishing dishonestintention or motiveon the partof
allottee, the court held that such a drastic measure was unwarranted on the ground of
proportionality. Thus the court firmly laid down thattheexerciseof statutory power of discretion
by theadministrativeauthority affecting fundamental rights should bein consonance with the
doctrineof proportionality.
In Canara Bank v. V.K. Awasthy, 34theApex Court had theopportunity of explaining the
scopeand ambitof the power of judicial review of administrativeaction relating tothe ground of
proportionality. Instead of breaking the new ground and analyzing the conceptthoroughly,
theApex Court simply restated the position as laid down in Om Kumar caseabove. In factin this
process, the court created more confusion rather than clarification when it said that where
departmental proceedings reveal severalacts of misconductand charges clearly establish failurein
31AIR 2003 SC 1571
32AIR 2003 SC 3712
33TeriOatEstate (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130
34(2005) 6 SCC 321
Page 26 of 104

dischargeof duties with utmostintegrity, honesty, devotion and diligence, the scopeof judicial
review on the ground of proportionality is highly limited to situation of illegality and
irrationality. It may be remembered whatis said in the beginning of this topic thatin applying
proportionality itis assumed thatthe grounds of illegality are notthere, sinceif those grounds
arethere, the decision will be setaside without going into proportionality. The principleof
proportionality replaces the second senseof Wednesburyor irrationality ground only. And even
when misconductand charges are clearly established thereis scope for proportionality in seeing
whether the punishmentimposed is suitableand also necessary in view of the gravity of
misconductor charges established. Itis regrettablethattheApex Courtis still groping in the
darkness so far as the scopeof proportionality is concerned.
TheApex Court has produced another controversial decision in Food Corp. of India v.
BhanuLodh,35wherethe courtobserved that while determining the constitutionality of delegated
legislation, no strait- jacketapproach is desirableand theintensity of review in public law depend
on the subject matter in each individual case. The courtemphasized thatthereis differencein
approach between thetraditional grounds of review of delegated legislation and proportionality
approach. Itis importantthatin cases involving serious violation of public interest proportionality
approach may produce better results. As a commenton theaboveobservation, firstof all
proportionality is applied primarily to determineunreasonableness or irrationality of
theexerciseof discretionary power in purely executiveor administrative decision. Itis not suitable
for delegated legislation. Thatis how itis understood in theEuropean law. Secondly, FCI being an
autonomous statutory body the governmentunder theAct could issueonly Policy instructions of
general natureand not routineinstructions in its day to day acts. Cancellation of irregular
appointment by such order is notauthorized by theAct. Illegalacts should have been checked not
by administrativeorder but by other remedies. Theapex court justifies the governmentaction on
the basis of serious violation of public intereston the ground of proportionality. This is
quiteunwarranted and outof scopeof the proportionality to say theleast.

2.5 APPLICATION OFPROPOTIONALITY TO THE CASESOF OTHER THAN

PUNISHMENT
35(2005) 3 SCC 618
Page 27 of 104

The principleof proportionality is inherentin cases of punishments. This is alsothe basis of

awarding punishments in the criminallaw. For the firsttime, in Union of India v. Rajesh,36 the
Supreme Courtapplied the principleof proportionality toan areaother than thatof punishments. In
this case 134 posts of constables wereto be filled up for which written testand viva voce were
held. As a resultof allegations of favoritism and nepotism in conducting the physicalefficiency
test, theentire selection list was cancelled. This was challenged in the High Courtthrough a writ
petition. Allowing the writ, the High Court found thatthere wereonly 31 specific cases of
irregularities. On appealthe Supreme Courtupheld the High Court. Applying the principleof
proportionality theApex Courtobserved thatthe competentauthority completely misdirected
itself in taking such an extremeand unreasonable decision of canceling theentire selections
wholly unwarranted and unnecessary even on the factual situation found too, andtotally in xcess
ofthe natureand gravity of what was at stake, thereby virtually rendering such decision to
beirrational.
It would not have been possible for the courton Wednesbury principleto setasidetheauthoritys
decision to canceltheentire selection, becausethe decision could not be characterized as soabsurd
that no sensible person could ever dream thatitlay within the powers of theauthority. Butthe
court held itto bearbitrary and not reasonable, thus adopting alower threshold of
unreasonableness than theWednesburyor the CCSUtest.

CHAPTER 3

3.1 THE PROPOTIONALITYTEST IN U.KADMINISTRATIVE LAW

36(2003) 7 SCC 285

Page 28 of 104

Traditionally, administrativeaction in theUK has been subjecttothree grounds of review. Lord

Diplock, in the GCHQ case, reiterated theseand labeled them proceduralimpropriety,
illegality and irrationality.37 Thetesttoestablish whether a decision was irrational had been
subjecttoa particularly largeamountof litigation and, consequently, debate. A definitiveanswer
tothe debate was laid down in 1947 by the Houseof Lords in Associated Provincial Picture
Houses v WednesburyCoroporation.38 Lord Greene MR ruled thattheexerciseof executive
discretion could beinvalidated if the decision was sounreasonablethat no reasonable body could
reach it.39 This rule was designed to makeitunusual for decisions to be successfully challenged
on this ground, and hence seta very high standard for invalidation. It was not generally
considered to be within the courts constitutional roleto criticizeexecutive decisions on their
merits they wereonly tointervenein the mostinequitableof situations. Proportionality, a
doctrineapplied as a ground of review across continentalEurope, necessarily grants judiciaries
wider powers to consider the merits of a decision. Broadly, it necessitates an assessmentof the
balance between interests and objectives. The decision made must be proved to have been
necessary to meetalegitimateaim, and the most reasonable way of doing so. Consequently itis a
far more stringenttest for irrationality thanWednesbury. SincetheUK joined theEuropean Union in
1973, judges have been required toapply the proportionality testin cases with aEuropean
dimension and increasing pressure has been placed upon the judiciary toincorporatethetestinto
domestic administrativelaw. This study willassess theorigins of the doctrines increased
influence, the present stateof thelaw, and thelikelihood thatit will beincorporated as a distinct
ground of review in the future.
The modern procedural definition of the proportionality testis relatively clear. Tom Hickman,
whileacknowledging various different models, identified the most common formulation as
athree-part procedure.40 The reviewing court must consider:

37Councilof Civil ServiceUnions v Minister for the Civil Service (1985) AC 374
38Associated Provincial Picture Houses v Wednesbury Corporation (1947) 1 KB 223
39Ibid.
40T. Hickman,

Proportionality: ComparativeLaw Lessons, J.R. 31 (2007)

Page 29 of 104

1) Whether the measure was suitabletoachievethe desired objective.

2) Whether the measure was necessary for achieving the desired objective.

3) Whether, even so, the measureimposed excessive burdens on theindividualitaffected.

Thethird elementis often termed proportionality strictasensa and is the provision that requires
balancing of interests. In theUK, the doctrine has often been defined in contrasttothe recognized
irrationality principleand thetest coined in Wednesbury. Lord Steyn argued thatalthough thereis
an overlap between irrationality and proportionality and most cases would be decided in the
same way, the intensity of review is greater.41
The doctrineof proportionality in its present form is of European origin. A productof
interpretation of Platonic and Ciceriantheory, the concept was firstapplied in Prussiain thelate
18th Century as thelaw was codified on Rechtsstaat (constitutional state) lines, and refined by
the German courts in the 19th Century.42 The principletook further hold in continentalEuropeafter
the Second World War, when proportionality becameembedded in the new German constitution.
It was then taken up by theEuropean Courtof Human Rights upon its founding in 1959, and later
by the fledgling European Community as a conceptual meta principleof judicial governance.43
In practice, thetest was firmly established within the centraltenets of Community Law by
theEuropean Courtof Justiceover the nexttwenty years. Proportionality was first confirmed as a
distinct ground of challengeto member states actions in Re: Watson and Belmann, an attempt by
the Belgian governmenttouseTreaty Article 48 (3) to deport workers who were citizens of other
countries if they failed to register their presence with the police. 44 TheECJ carefully applied
41R v Secretary of State for Home Departmentex parte Daly (2001) UKHL 2623
42T. Poole, Proportionality in Perspective, LSELaw, Society and Economy Working

Papers (2010)
43Sweet & Matthews, Proportionality, Judicial Review and Global Constitutionalism in

Bonglovanni, Reasonableness and Law (2009)

44Re Watson and Belmann Case 118 /75 (1976) ECR 1185
Page 30 of 104

thetripartitetest, ruling thatthe governments aim of accounting for workers was legitimateand
their requirementto force registration was alawful method tothis end. However, the punishment
was considered to beoverly severeand invalidated. A fine was suggested as a more
proportionate deterrent.45
The doctrine was extended a year later to cover review of the Councils actions. Beta-Muhle
Joseph Bergmann KG v. Grows Farm Grubtt (1977) - popularly known as skimmed milk
powder case concerned a regulation passed by council for the purposeof reducing the vastoversupply of skimmed milk powder.46 The regulation attempted to solvethe problem by forcing
farmers touse skimmed milk powder for animal feed instead of cheaper soya milk powder.
TheECJ ruled that, although the Council had the powers necessary toissue such a directive, and
that solving theover supply was alegitimateaim, the measures prescribed wereoverly
burdensomeon farmers, and hence disproportionatetothe problem.
After theUKs belated entry intotheEuropean Community in 1973, whenever theUK courts
haveaddressed thelegality of governmentaction within an areaof Community competence, it has
been necessary to recognize proportionality as a distinctand substantive ground of review.
Sincethe courts first began applying the doctrineacademic and judicial suggestions that
proportionality should bein some way incorporated into domestic UK law have been regular.
Moreover, pressure for reform has increased markedly sincetheassentof the Human Rights Act
(1998), which has required useof the doctrinein cases thatinvolvethe breach of ECHR rights. The
most common suggestion, and the subjectof this study, has been toestablish proportionality as a
separate full ground of judicial review.
Therearea number of clear advantages tothe proposal. Firstly, it has been suggested thatit would
be preferable for the sametestto beused to deal with claims arising under EULaw, the Human
Rights Actand allother domestic challenges. Duetothe wide scopeof the Human Rights Act, itis
currently common for two such claims to be presentin an application for judicial review, and
notuncommon for allthreeto be relevant. Itis further suggested that necessitating a judgmentof
which test should beapplied across differentaspects of a single caseis an unnecessary and
undesirable complication. Furthermore, thetest can, itis argued, beapplied with varying degrees
45Ibid.
46Bela-Muhle Josef Bergmann KG v Groes-Farm GmbH (1977) 25n26. 52/76
Page 31 of 104

of intensity toaccommodatethe differenttypes of decision subjectto judicial review. Different

weight can be prescribed to different reasons and factors, allowing the doctrineto be far more
flexiblethan theWednesbury test.
Conversely,

it

has

been

widely

counter-argued

thatit

can

be

dangerous

and

inappropriatetotransplantadministrative concepts from other jurisdictions, as Sir Otto KahnFreund noted in the 1973 Chorley Lecture.47 Heargued that theline which separates theuseof the
comparative method in lawmaking from its misuseis very fine. 48 Concepts should be viewed
only in contextof the fulltheoretical constitutional framework. While proportionality fits easily
within the constitutional natureof many continentalEuropean states, application in England could
resultin unclear lines of authority, and the regrettable situation of courts overruling the decisions
of bodies who derive power from democratically elected institutions. Allowing the courts
toempower themselves tooverrule decisions on their merits and substitutetheir own preferences
would lead to judicialassumption of quasi-executive power. This, itis argued, would be
constitutionally
inappropriate.
The growing debate has led several judges to consider incorporating proportionality by common
law as a new ground of review or modification of the Wednesbury test. In his aforementioned
judgmentin the GCHQ case, after outlining thethreetraditional grounds of review, Lord Diplock
suggested that development may add further grounds He had in mind particularly the
principleof proportionality.49 Diplocksobiter ensured thattheissue would haveto be considered
by the Houseof Lords atthe nextopportunity. In spiteof Lord Diplocks carefully worded
prediction, theEnglish judiciary maintained asceptical stanceon theincorporation of the doctrine.
In 1987, Millett J (as hethen was) described the principleas a noveland dangerous in Allied
Dunbar Ltd v Frank Weisenger, and suggested incorporation as a new head of review through
common law would bea constitutionalerror.50
47Kahn-Freund, On Uses and misuses of comparativelaw Chorley Lecture 1973,Modern Law

Review (1974)
48Ibid.
49Associated Provincial Picture Houses v Wednesbury Corporation (1947)
50Allied Dunbar Ltd v Frank Weisenger, TheTimes Law Reports, (17 November 1987)
Page 32 of 104

The Houseof Lords opportunity toincorporateor preventtheinfluenceof proportionality occurred

with R. v Secretary of State for the Home Departmentex parteBrind in 1991.51 Brind is
stilltheleading caseon proportionality in domestic law. The Home Secretary had issued directives
under the Broadcasting Act (1981) requiring the BBC to refrain from broadcasting interviews
with people who represented terroristorganizations. The prescription was limited to direct
statements from individuals, and its implication led to farcical dubbing of IRA members voices
on the news. Theapplicants soughtto challengethe decision on several grounds. Oneof them was
thatthe directives werea disproportionate responsetothe governments legitimateobjective.
The members of the judicial committeeof the Houseof Lords all rejected the proportionality
argument. They also rejected theincorporation of the doctrineas a head of review, although,
crucially, they did notexcludethe possibility thatit would be partof domestic law in future. Lord
Roskill stated thatit was nota casein which the first step can betaken and that, atany rate, in his
view, proportionality would forcethe court into substituting its own judgmentof what was
needed toachievea particular objective for the judgmentof the Secretary of Stateupon whom that
duty has been laid by parliament.52 Roskilltherefore saw theuseof proportionality as
necessitating an unlawfulimposition intoexecutive power. Judicial review would becomean
appealagainsta decision, rather than an assessmentof that decisions legality and legitimacy. This
had never been theobjectiveof review and it was beyond the courts authority to grant such an
extended power. Lord Lowry concurred with Lord Roskill, stating that there can be very little
room for judges tooperatethe proportionality doctrinein the space which is left between
conventional judicial review [Wednesbury] and the forbidden appellate jurisdiction.53 He
feltthe courts were not wellequipped by training or experience to balance factors in an
administrative decisions, and thatintroducing proportionality would increasethe number of
applicants for review, with a consequentialincreasein costs and courttime. Neither Lord Lowry
nor Lord Roskillexcluded the possibility that further reform could occur in time, however. Lord
Acknertook a different view, arguing thatan intensification of Wednesbury by proportionality
would mean that an inquiry into, and a decision upon, the merits cannot beavoided. He
51R. v Secretary of State for the Home Departmentex parteBrind (1991) UKHL 4
52Ibid.
53R.

v Secretary of State for the Home Departmentex parteBrind (1991) UKHL 4

Page 33 of 104

concluded that thereappears to be no basis upon which the proportionality doctrine can be
followed by the courts of this country.54
Following Brind, there have been several cases wherethe courts haveexplicitly refused to
consider proportionality as a criteria for review, instead applying the Wednesbury test strictly. In
theInternational Stock Exchange case, Popplewell J stated that proportionality is nota free
standing principlein domestic law and it would not be proper toapply it. 55 A severe reluctanceto
move beyond the strict provisions of Wednesbury can also be seen in the 1997 decision
in Hargreaves.56More recently in the ABICIFER case Dyson LJ followed Brind in the Courtof
Appealand reiterated that proportionality was strictly only applicableto cases with an EU
dimension or subjecttothe Human Rights Act.57
It had been the passing of the Human Rights Actin 1998 thattriggered a revivalof the
debateaboutincorporating proportionality, leading more judges toargue for full domestic useof
the doctrine. TheAct stipulates thatEnglish courts mustuphold the provisions of theEuropean
Convention on Human Rights. Many of thearticles contain the stipulation thatany breach of
convention rights must be necessary in a democratic society. 58 Across continentalEuropethis
construction has been, almost certainly intentionally, interpreted by national courts to
requirethem toapply the proportionality test. In Daly, Lord Steyn and Lord Bingham
acknowledged thatthe construction of theAct required the proportionality testto beapplied, and
confirmed thatthere was thereforea separate ground of review for Human Rights Actand EU
related decisions.59 They did not, however, condonetheapplication of proportionality toall
domestic irrationality review.

54Ibid.
55R v International Stock Exchangeex parteElse (1992) BCC 11
56R v. Secretary of State for the Home Departmentex p Hargreaves (1997) 1 AllER 397
57R v Secretary of State for Defenceex parteAssociation of British Civilian Internees: Far East

Region (2003) QB 1397

58Human Rights Act (1998)
59R v Secretary of State for the Home Departmentex parte Daly (2001) 2 WLR 1622
Page 34 of 104

Lord Cooke, withoutobjecting toLord Bingham or Lord Steyns judgments, went further,
suggesting thatthe Wednesbury test was unfortunately regressive and any decision should be
within the scopeof judicialintervention on its merits. Allowing judges to consider cases on their
merits seems materially closetothe proportionality doctrine, and certainly dismisses theobjections
of the Houseof Lords in Brind. In the same year Lord Slynnappeared to sharethis view in R v.
Secretary of State for theEnvironmentex parteAlconbury.60 He confidently asserted that
thetime has come to recognize proportionality as a full partof English administrativelaw,
notonly when judges are dealing with Community Acts. In his view, trying to keep
theWednesbury principleand proportionality in separate compartments is unnecessary and
confusing. Lord Slynns judgment suggested a fullapplication of the proportionality test for
irrationality, with theexception of matters of policy, which would fallunder Wednesbury. This
guidelineis unhelpful itis unclear which executive decisions would not result from a matter of
policy.

Executive

decisions

are,

by

definition,

policy.

Therefore,

in

thelightof Daly and Alconbury the current position of proportionality in domestic common law is
confused. There have been statements of intention but nota full judicial ruling.
Theexact natureof the proportionality testthat should beapplied toEUand HRA cases is also
subjectto confusion. In 2005, R v Governors of Denbigh High Schoolex parte Begum found
the Courtof Appeal faced with a challengetoa decision by a schoolto ban the wearing of a form of
Islamic dress known as thejilbab.61 The court differentiated between substantive proportionality
and procedural proportionality in its ruling. The school passed the substantive proportionality
test whether the means toachievealegitimateend werelegitimateand fair but failed the newly
conceived procedural proportionality test. The Courtof Appeal held thatin banning thejilbabthe
governors had not gonethrough the decision making process in a judicial fashion, considering the
students convention rights to freedom of religion and any alternatives. The failureof theorder to
removethejilbab was not becausethe measure was substantively disproportionate, but becausethe
procedure was not correctly considered. The court specifically acknowledged thattheuniform
policy could be reconciled with Article 9 of the Human Rights Act. Theapproach of Denbigh was
followed by a differently constituted Courtof Appealin Belfast City Council v Miss
BehavinLtd, wherethe Councils decision nottoallow a sex ship in an area was overturned
60R v. Secretary of State for theEnvironmentex parteAlconbury (2001) 2 WLR 1389
61R v Governors of Denbigh High Schoolex parte Begum (2007) 1 A.C. 100
Page 35 of 104

becauseit was not structured in a way that considered Article 10 rights. 62 Theacademic press
heavily criticized the creation of this new category of procedural proportionality. Tom Poole
madethe casethatit was totally impracticabletoexpectall decision makers in public authorities
toadopta judicialapproach.63 It was further asserted thatif the proportionality test was be
proceduralin nature, it was inappropriate for itto beapplied across domestic law as a new ground
of review.
Partially in reaction totheseobjections, the Houseof Lords overruled both cases unanimously in
2007. Lord Bingham declared thatthe Courtof Appeal misunderstood the scopeof the
proportionality principle. Heemphasized that, in any UK application of the doctrine, what
matters is the practicaloutcome, notthe quality of the decision making process. 64 Lord Bingham,
whilemot ruling outa full domestic application, considered itimperativethatthe nature
proportionality doctrine was limited in scope, and certainly notextended to procedure. Now
thatthis definitional problem has been resolved, the path onceagain seems clearer for a
potentialincorporation of a clearly defined, and practiced, doctrineintoour domestic law.
Despitethe firm ruling in Brind thatthe Wednesbury test stillapplies with strict forceto domestic
irrationality decisions and Dalys ratiothat proportionality is reserved for EUand HRA cases, the
courts have, in reality, implicitly moved towards the doctrine. The strictness of Lord
GreenesWednesbury test has been eroded and executiveaction is being routinely overturned
based on the merits of cases, especially when decisions arein defianceof moral standards.
Moreover, both beforeand since Brind, several decisions haveincluded reasoning that seems to
beanalogous tothe proportionality doctrine. The present status of thelaw, therefore, is complex
and confused.
Withoutany express approval, proportionality seems to beentering judicial review on a case by
case basis. Jowelland Lester haveidentified several cases wherethe courts haveincorporated
elements of proportionality into decision-making.65 Firstly, in Hall v Shoreham UDC, the
courtexplicitly labeled the councils policy as irrational becausethere were better ways for
62Belfast City Council v Miss BehavinLtd (2007) 1 W.L.R. 581
63T Poole,

Of headscarfsand heresies: The Denbigh High School Caseand public authority

decision making under the Human Rights Act, Public Law 685
64R v Governors of Denbigh High Schoolex parte Begum (2007) 1 A.C. 100
Page 36 of 104

toachieveits policies.66 Later, in his judgmenton R v Barnsley Metropolitan Borough Councilex

parte Hook, when considering the punishmentof a street seller who had urinated in public, Lord
Denning MR wrotethat In this case...I should havethoughtthe rightthing would have been totake
him beforethe magistrates under the byelaws, when some small fine should have been
inflicted.67 Itis quite wrong thattheBarnsley Council should inflictupon him the grave penalty of
depriving him of his livelihood. Denning here clearly applies the proportionality test
withoutacknowledging so. More recently Laws LJ has attempted tousetwo judgments toestablish
proportionality as a naturalelementof review. In R v Secretary of State for the Home
Departmentex

parteNadarajah, Laws

ruled

thata

public

body

could

resile

from

alegitimateexpectation only whereit had a duty to do so, or if it was a proportionate response

with regard toalegitimateaim in the public interest. 68Following that decision, Laws was
moreexplicitin R v Secretary of State for the Home Departmentex parte Walker, when he
deemed Wednesbury unreasonableness an old fashioned legal construct, arguing that, with the
Human Rights Act, the courts wereincreasingly accustomed totheapplication of proportionality,
and wereoften doing soin domestic law anyway.69 It seems that, given most judicial review cases
requirea consideration of proportionality atany rateas appended Human Rights Act claims are so
common, and that much judicialopinion seems to haveturned againstWednesbury, we may well
see further attempts toincorporatethe doctrineinto domestic law in the near future.
However, for the moment, the Supreme Court justices seem to feel constrained by the
constitutionalarguments outlined above. In 2007, the Houseof Lords ruled in Somerville v
Scottish Ministers (2008) that proportionality was nota standalone ground of review in Scottish
cases that did notinvolvethe breach of ECHR rights. 70 Although the ruling was in referencetoa
65J. Jowelland A. Lester, Proportionality and WednesburyUnreasonableness: TheInfluenceof

European Legal Concepts on UK Law, in M. Andenas (ed.), English Public Law and the
Common Law of Europe (1998)
66Hall& CoLtd v Shoreham by SeaUrban DC (1964) 1 W.L.R. 240
67R v Barnsley Metropolitan Borough Councilex parte Hook (1976) 1 W.L.R. 1052
68R v Secretary of State for the Home Departmentex parteNadarajah (2005) EWCACiv 1363
69R v Parole Board ex parte Walker (2007) EWHC 1835
70Somerville&Ors v Scottish Ministers (2008) UKHL 44
Page 37 of 104

Scottish case, Lord Hopeand Lord Rodgers decision evidences continued scepticismabout
judicialincorporation of the doctrine. More recently, in the ABCIFER case, Dyson LJ held that
proportionality was only applicabletoEU/HRA cases. 71 It was, in his opinion, not for Courtto
perform burial rites toWednesburytest. He did, nonetheless, statethat he saw little pointin
retaining Wednesbury. If, as perhaps is likely, the Supreme Court continueto feelitis
constitutionally incorrect for them to grantthemselves more power, the reform would haveto be
by statute. This, it seems, in the new eraof weak, divided, coalition government, is an unlikely
prospect. The government would beunderstandably reluctantto proposelegislation that would
allow the courts to challengetheir decisions with increased scrutiny and henceabrogate power.
In fact, the coalition governments actions may well havetheeffectin the futureof reducing
theinfluenceof the proportionality doctrine. David Cameron has repeatedly asserted thatitis the
governments intention tointroducea new UK Billof Rights. In the 2010 Conservative Party
manifesto, it was pledged thata Conservative government would protectour freedoms by
replacing the Human Rights Act with aUK Billof Rights.72 According toLord Woolf, writing
extra-judicially, the proposed Billof Rights would necessitate withdrawal from theECHR. The
debateon a Billof Rights would presenta stark choice, according to Woolf. If theUK does
withdraw from theECHR and adoptits own Billof Rights, itis unclear whattests would be
required for the judicial review of decisions. It may well bethatthis policy initiates a step back
from the possibleincorporation of the proportionality doctrine.

CHAPTER 4

4.1 REASONABLENESS , PROPOTIONALITY AND MERIT REVIEW

71R v Secretary of State for Defenceex parteAssociation of British Civilian Internees: Far East

Region (2003) QB 1397

72Conservative Party Manifesto (2010), available at:

www.martinhowe.co.uk/pubs/polit/cpmanifesto2010_billofrights.pdf
Page 38 of 104

On 10 November 1947 Lord Greene MR said something which every lawyer and law
studentknows. The casein which he said it was not, in itself, significant. The decision was hardly
reserved. The reasons cover less than eight pages. Theother Courtof Appeal judges agreed. Lord
Greene said this:
"Itis truethat discretion must beexercised reasonably. Now what does that mean? ... [T]here may
be something soabsurd that no sensible person could ever dream thatitlay within the powers of
theauthority. Warrington LJ in Short v Poole Corporation 73 gavetheexampleof the red-haired
teacher, dismissed because she had red hair. Thatis unreasonablein one sense. In another senseitis
taking into consideration extraneous matters. Itis sounreasonablethatit mightalmost be described
as being donein bad faith; and, in fact, allthesethings run intooneanother." 74
Alittlelater he said:
"Itis trueto say that, if a decision on a competent matter is sounreasonablethat no
reasonableauthority could ever have cometoit, then the courts can interfere. That, Ithink, is quite
right; butto provea caseof that kind would require something overwhelming, and, in this case, the
facts do not comeanywherenear anything of that kind." 75
He repeatedthe famous phraseonce more76before concluding his judgment.
With these words, perhaps partly becauseof their colourfulness, a ground of review of
administrative decision-making was settled for the common law.
In Germany, in the 1870's, a ground of review called Verhaltnismassigkeit was developed. We
would callit proportionality, though it was morethan that. The principle was adopted in French
law in the 1970's. It becamea principleapplied by theEuropean Courtof Human Rights and is
supported by theEuropean Convention for the Protection of Human Rights.

73[1926] Ch 66 at 90-91
74Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229

per Lord Greene MR

75Id at 230
76Id at 234
Page 39 of 104

The AdministrativeAppeals TribunalAct 1975 (Cth) cameinto forceon 1 July 1976. On that day,
for the firsttimein the world, review of administrative decisions on their merits
becameavailablein a forum exercising general jurisdiction.
This evening I wish toanalysethesethree bases for review of administrativeaction and to make
someobservations aboutthem which are relevanttoAustralia.
4.2 REASONABLENESS
Lord Greene, and Warrington LJ before him, described a ground of review which would rarely
beattracted. The plaintiffs wereunsuccessfulin both Wednesbury and Poole Corporation. Over the
years, however, the strictness of the rules cameto be relaxed, both in England and Australia. I
remember many times atthe bar telling judges that "however narrow thetest seems to be, itis
surprising how often judges hold thatitis satisfied". I was successful, for example, before Bergin
J in Ziade v Randwick City Council 77in which I remember using those very words. Her
Honour held thata Council decision to restrict parking to residents, in an areaadjacenttoa busy
cinema, was unreasonablein the Wednesbury sense. The same result might notoccur today. Bergin
J was ableto find:
"Iam satisfied thatthe May resolution was in breach of the Guidelines and thereforeinvalid and of
no forceor effect. Alternatively Iam satisfied thatthe May resolution was madein a manner which
failed to provide procedural fairness tothe plaintiff. Iam also satisfied thatthe May resolution was
one which, on the materialavailabletothe defendant, no reasonable person would have made." 78
This was oneof the more comprehensive victories I had atthe bar!
Theliberaltendency has continued in theUnited Kingdom, but notin Australia.
Australia

77(2001) 51 NSWLR 342

78Id at 375
Page 40 of 104

The Wednesbury principle

was

conclusively

adopted

in

Australia

by

the

High

Courtin Parramatta City Council v Pestell. 79The judgmentof Gibbs J says it most clearly. The
relevant passagealsoillustrates a particular aspectof the principle. Gibbs J said:
"If, in purporting to form its opinion, a council has taken intoaccount matters which theAct, upon
its proper construction, indicates areirrelevanttoits consideration, or has failed totakeintoaccount
matters which itought notto have considered, theopinion will not be regarded as validly formed.
Even if the council has noterred in this way an opinion will nevertheless not be valid if itis
sounreasonablethat no reasonable council could have formed it (see Associated Provincial
Picture Houses Ltd v Wednesbury Corporation, 80and seealso Bankstown Municipal
Council v Fripp. " 81
The passageillustrates theoverlap of the reasonableness ground with other grounds of judicial
review, particularly the grounds of acting on irrelevant, or notacting on relevant, considerations.
Italso supports theinferencethatthe ground adds something to, or is wider than, the more precise
grounds.
This is atheme which Mason J explained in Minister for AboriginalAffairs v PekoWallsendLtd 82where he suggested thatin cases in which thelegislation did not specify the
matters

to

betaken

intoaccountthe

preferable

form

of

review

was

by

referencetotheunreasonableness principle. It may betaken thatatthis timethe principle was stillin

its ascendancy.
In Re Minister for Immigration and MulticulturalAffairs ; Ex p. Applicant S20/2002 83the
broader view of theunreasonableness principle suffered a set-back. Gleeson CJ, adopting a
contrary position to Mason J, placed emphasis on identifying the preciselegal principle said to
have been offended against:
79(1972) 128 CLR 305
80Wednesbury, above n2 at 228-229 and 233-234
81(1919) 26 CLR at 403
82Pestell, above n7 at 327 per Gibbs J.
83(1986) 162 CLR 24 at 41
Page 41 of 104

"As was pointed outin Minister for Immigration and MulticulturalAffairs v Eshetu,84to
describe reasoning as illogical, or unreasonable, or irrational, may merely bean emphatic way of
expressing disagreement with it. If itis suggested thatthereis alegal consequence, it may
benecessary to be more preciseas tothe natureand quality of theerror attributed tothe decisionmaker, and toidentify thelegal principleor statutory provision thatattracts the suggested
consequence." 85
McHugh and Gummow JJ confined theunreasonableness principletotheexerciseof statutory
discretions. It did notapply to fact-finding. 86Kirby J appears to haveaccepted this limitation. 87
The present mood in Australiaappears tolimitthe principle both generally (by confining itto
something equating toits original strictures) and specifically (by confining ittotheexerciseof a
statutory discretion). I wantto concentrate for a momenton the firstof theselimitations.
Professors

Creykeand

McMillan

in Controlof

GovernmentAction: Text,

Cases

and

Commentary 88 haveidentified three pieces of supporting evidence. First (contrary to my habitual

submission), thereare not many decided cases in which the principle has been successfully
raised. Secondly, itusually overlaps with a more precise remedy. Thirdly, it needs to beapplied
againstthe significant division between merits review and judicial review.
In Attorney-General (NSW) v Quin 89 Brennan J noted that "Wednesbury unreasonableness
leaves the merits of a decision or action unaffected unless the decision or action is such as

84(2003) 198 ALR 59

85(1999) 197 CLR 611 at 626 [40]; 162 ALR 577 at 587 per Gleeson CJ and McHugh J.
86S20, above n12 at 61 per Gleeson CJ
87Id at 76
88Id at 87
89Creyke, R., and McMillan, J., Control of Government Action: Text, Cases and Commentary,

LexisNexis Butterworths, Sydney, 2005, pp. 724-741

Page 42 of 104

toamounttoan abuseof power 90". 91Murray Gleeson AC has distinguished between "review of the
merits of administrative decisions and judicial review based upon principles of legality.92
UNITED KINGDOM
In theUnited Kingdom things have gonetheother way. Oddly enough, the way was led by a New
Zealand judge who, I believe, is theonly judge born and educated in a Commonwealth country
whoultimately becamea fullLord of Appealin Ordinary. Lord Cookeof Thorndon was Presidentof
the New Zealand Courtof Appeal from 1986 to 1996. Sitting in the Houseof Lords, however,
after describingWednesbury as "apparently briefly-considered", he referred toits famous
proclamation

as

circumlocution".

93

"tautologous

formula"

representing

an

undesirable

"admonitory

He preferred the simpletest "whether the decision in question was one which

a reasonableauthority could reach."

94

Lord Cookealsotook the view thatEuropean concepts of

proportionality would producethe same resultas theapplication of English principles of

reasonableness. 95
In R v Ministry of Defence; Ex p. Smith 96the Courtof Appeal (Bingham MR, Henry and
ThorpeLJJ) accepted two propositions. First, thetestof unreasonableness was whether "the courtis
satisfied thatthe decision is unreasonablein the sensethatitis beyond the rangeof responses open
toareasonable decision-maker."

97

Secondly, becauseany human rights context was important,

"[t]he more substantialtheinterference with human rights, the morethe court will require by way

90(1990) 170 CLR 1

91Nottinghamshire County Council v Secretary of State for theEnvironment [1986] AC 240 at

249
92Quin, above n18 at 36 per Brennan J.
93Gleeson, M., Judicial Legitimacy' (2000) 20 Australian Bar Review 4 at 11.
94R v Chief Constableof Sussex; Ex ParteInternationalTrader's Ferry Ltd [1999] 2 AC 418 at

452 per Lord Cooke

95Ibid
96Ibid
97[1996] QB 517
Page 43 of 104

of justification beforeitis satisfied thatthe decision is reasonable".98The question was whether

possessing a homosexualorientation could justify dismissal from thearmed forces. The Court
decided, reluctantly, Ithink, and partly becausethe policy was supported by Parliament, thatthe
practice could not be determined to havethe requisite degreeof unreasonableness.
Smith was decided shortly beforethe European Convention on Human Rights 99was enacted
intolaw binding the Courts in theUnited Kingdom. Article 8 created limitations on interference
with a citizen's "rightto respect for his privateand family life, his homeand his correspondence."
100

The Court declined toaddress this article, however, becauseatthetimeof the decision thearticle

did not havethe forceof law in theUnited Kingdom.

There was, however, a rightto seek review in theEuropean Courtof Human Rights wherethe
Convention did apply and to which there was an appealin Smith. That court passed over
theEnglish doctrineof reasonableness, apparently finding itto beunsatisfactory, and applied
theEuropean doctrineof proportionality. Itupheld the claim and awarded damages LustigPreanand Beckett v TheUnited Kingdom 101. Rejecting theapproach of the Courtof Appealand
applying the principlethatan interference with a human right protected by Art 8 will
beacceptableonly if theinterference "answers a pressing social need and, in particular, is
proportionatetothelegitimateaim pursued", 102the Court found a breach of Art 8 to be madeout.
4.3 PROPORTIONALITY
EUROPE
Theadoption of a proportionality test for the validity of administrativeaction firstemerged in
Germany in the 1870's. The German word isVerhaltnismassigkeit which literally means relativity.
Threetests areapplied, only oneof which involves proportionality as such. Thethreetests are:

The measure proposed must be suitable for the purpose;

98Id at 554
99Ibid
100Convention for Protection of Human Rights and Fundamental Freedoms1950
101Id, Art 8(1).
102[1999] ECHR 71; [2000] ECHR 382
Page 44 of 104

The measure must be necessary; and

The measure must not be disproportionate.

Proportionality emerged in French Law in the 1970's. It was welcomed first by French academic
and member of theConseild'Etat Guy Braibant. The French Conseild'Etat (Councilof State) is
France's highest court for matters of administrativelaw.
The principle was applied by theConseild'Etatin 1972 to strike down the conversion of a road toa
pedestrian precinct.

103

The measure was disproportionatetothe need. The principleis now

wellentrenched in French law whereitis associated with a conceptof gross error in fact finding
and is often explained by referencetoa balanceor balance sheet (lebilan).
UNITED KINGDOM
It must be fair to say thatthe decision of theEuropean Courtof Human Rights in LustigPrean softened up theEnglish courts for proportionality. The courts appeared to be ready for it,
however, even earlier. Someof the remarks in the Courtof Appealin Smith/Lustig-Prean, and even
more clearly, in the Divisional Courtin the case, are clear pointers in that direction.
The suggestion thatthe principle might beadopted in English law goes back to 1985 when Lord
Diplock raised the possibility directly Councilof Civil ServiceUnions v Minister for the Civil
Service (CCSU)104. That started the debate. The debate was fuelled by theappreciation that
proportionality was accepted in Community law. Although European human rights law, whereit
was found, was only binding in theUnited Kingdom on review in theEuropean Courtof Human
Rights, that was stilla significant matter. Moreover, it was recognisedthatthe principle would
becomeeven more compelling when theEuropean Convention on Human Rights cameto bind
English courts.
The principleof proportionality now sits alongsideunreasonableness in its application in England
(R (Daly) v HomeSecretary 105. Its useis generally confined, however, to human rights or similar
103Lustig-Prean [1999] ECHR 71 at [80] per Costa P, Bratza, Loucaides, Kuris, Fuhrmann,

Greve and Traja JJ, and Ms S. Dolle.

104Ville de Dieppe [1972] CE 8.
105[1985] AC 374 at 410 per Lord Diplock.
Page 45 of 104

issues. Lord Hope has explained the principlein a way which accords very much with the
German formulation, namely justification, fairness and proportionality. A measure claimed
toerode human rights must satisfy allthree.

106

As Lord Steyn said in Daly,itis unlikely thatthe

result will now be differentin English law whether the principleapplied be proportionality or
someother ground of review such as reasonableness. 107

AUSTRALIA
Proportionality has been recognisedas such in Australia. The High Court has used itto
determinethe validity of subordinatelegislation (South Australia v Tanner 108). Deane J, referring
to CCSU, tentatively associated it with grounds for judicial review in Australian Broadcasting
Tribunal v Bond. 109Spigelman CJ

110

and others haverecognisedthe relevanceof proportionality

to reasonableness butSpigelman CJ stated thatit was nota separate ground of review. 111
Sir Anthony Mason 112and thelate Brad Selway113 show noenthusiasm for any separate doctrine.
In a way the question is stillopen in Australia. However, Ithink thata number of factors
pointagainstthelikelihood of its adoption as a separate ground. First, it seems to beassociated
with a broadening of the grounds of review which is an approach that has not been adopted in
Australia. Secondly, its adoption in theUnited Kingdom is closely associated with its
geographicaland judicial proximity (atleaston questions of human rights) with Europe. Thirdly,
Australia has a sophisticated system of merits review of administrative decisions which has been
in place for morethan 20 years and the need toexpand judicial review is nota present concern.
106[2001] 2 AC 532.
107R v Shayler [2003] 1 AC 247 at 281 per Lord Hope
108Daly, above n34, at 547 per Lord Steyn.
109(1989) 166 CLR 161
110(1990) 170 CLR 321 at 367 per Deane J.
111Bruce v Cole (1998) 45 NSWLR 163 at 185 per Spigelman CJ
112Ibid
113Mason, A.,The Scopeof Judicial Review' (2001) 31 AIAL Forum 21 at 38.
Page 46 of 104

4.4 MERITS REVIEW

The conventionalanswer is thatitis review which is wider than correcting legalerror. Itextends toa
reconsideration of discretionary matters - of the merits of theoriginal decision. The process is
often described by saying thattheTribunal must reach "the corrector preferable" decision.

114

The

description, however, glosses over twoimportant components which goto makeup merits review.
The first componentis thatthe reviewing tribunal considers the merits of theissue; butthe second
componentis thatit substitutes its decision for the decision under review. Merits review and
judicial review can undoubtedly overlap butthe power of courts to substitutea decision is much
morelimited than is the power of merits review tribunals.
This point was brought hometo meata meeting of an internationalassociation of administrative
courts and tribunals in Madrid a few years ago. I was explaining theAustralian system and
suggesting thatit was unique. I referred to reconsideration of the merits of decisions. My
audience was unimpressed. Then I referred tothe substitution of our decision for the decision
under review. That madethem situp. "You mean you can makea fresh decision?",they said. "Yes",
I said. "Unheard of", they replied.
Theessenceof merits review is the power to substitutea decision. This is so both as a matter of
substanceand as a matter of form. Itis so, as a matter of substance, because substitution implies
the power toaddress allissues and leaves the reviewing tribunal, as theultimate decision-maker, in
no way bound by what has gone before. Itis so, as a matter of form, becausethatis what s 43 of
theAdministrativeAppeals TribunalAct says. Section 43, which has been adopted for
stateadministrative review tribunals, says nothing about discretion or merits. It simply empowers
theTribunalto setasidethe decision under review and substituteits own decision. Thatis the sole
sourceof power to consider the merits. Section 16 of the Administrative Decisions (Judicial
Review) Act 1977 (Cth), by contrast, does not permitany remaking of the decision under
consideration.
Very few administrativelaw systems permit substitution and never by a body with general
jurisdiction, apart from Australia. Specialisedtribunals in common law countries such as
theUnited Kingdom, Canadaand New Zealand do havethe power, butthe jurisdiction is
necessarily confined. Oneof thealmostaccidental consequences of theestablishmentof a
114Selway, B., The Principle behind Common Law Judicial Review of Administrative
Page 47 of 104

generaladministrativeappeals tribunalin Australiais the proliferation of its jurisdiction sothatit

now has very wide jurisdiction, under morethan 400 acts of the Commonwealth Parliament. The
mereexistenceof a general merits review tribunal has promoted growth in the matters which are
subjecttoits review. The Parliament does not havetolook for, or create, a new tribunal, with
consequenttroubleand expense, when itintroduces new legislation affecting rights - oneis already
available.

Reasonableness as a ground of judicial review of administrativeaction is wellestablished in

Australia. It provides a safety valve permitting truly irrational decisions to be setaside, but not
replaced. Proportionality can bean elementof such a claim, butit will notlead toa decision being
setasideunless itis both disproportionate, in particular, and extremely unreasonable, in general.
The gap in thelaw in this area, between theUnited Kingdom and Europeon theone hand, and
Australiaon theother, is bound to remain and even widen as the moreliberaltestof general
disproportionality erodes the stricter aspects of reasonableness in theUnited Kingdom tothe
pointat which thetestof reasonableness may reach the state, if it has notalready reached it,
thatthetestis oneof simpleunreasonableness. In Australia, the role performed by proportionality,
and more, will bethe function of merits review.

Page 48 of 104

CHAPTER 5
5.1 WEDNESBURY REFORMULATED: Proportionality and the Supreme Courtof India

Over the courseof thelast decade, the docketof the Supreme Courtof India has witnessed a
proportionality explosion. The doctrines of unreasonableness115and irrationality, itis said,
are giving way tothe doctrineof proportionality.116In administrativelaw cases, the Supreme
Courtof India rarely shies away from citing judgments of English courts alongsideits
own, and in its decisions, English authors like de Smith and Wadeareoften cited
alongsideIndian ones. Sometimes, theIndian authors are not cited atall.117

With theapplication of proportionality review by English courts in cases involving

European Community or European human rights law,118proportionality has not merely

115SeeM.P. Singh,The Constitutional Principleof Reasonableness, (1987) 3 SCC (Jour) 31

116SeeStateof UP v. SheoShanker, (2006) 3 SCC 276; UP State Road Transport Corporation v.
Shivaji,AIR 2007 SC 322
117Seee.g., Managementof Coimbatore District Central Co-operative Bank v. Secretary,

CoimbatoreDistrict Central Co-operative Bank Employees Association, (2007) 4 SCC 669

118H.W.R. WADEAND C.F. FORSYTH, ADMINISTRATIVELAW (10thed. 2009) 313; DE

SMITH, WOOLF ANDJOWELL, JUDICIAL REVIEW OF ADMINISTRATIVEACTION

(5thed. 1995) 600-606; TOM HICKMAN, PUBLIC
Page 49 of 104

arrived in Indias public law jurisprudence, butitis thereto stay.119

So how has the doctrineof proportionality been borrowed from the decisions of English
courts by the Supreme Courtof India? In the year 2000, the court held, for perhaps the
firsttimein its history, thatthe proportionality doctrine could beused totestthe validity of
certain kinds of administrative decisions, in an exerciseof judicial review.120

The courtlaid outa bifurcated framework to determinethe circumstances in which the

proportionality doctrine could beused and whatits parameters would be. However, in
subsequent cases, in an ostensibleexerciseof the new proportionality doctrine, the
Supreme Courtof India continued only toapply theold doctrines of judicial review with
which it was most familiar, particularly the doctrineof Wednesburyunreasonableness. In
fact, in 2008, the Supreme Court puzzlingly referred to proportionality as the
Wednesbury principleof proportionality.121

Proportionality and Wednesburyunreasonableness are different standards of review

LAW AFTER THE HUMAN RIGHTS ACT (2010) 173-193; Andrew Le Sueur, The Riseand
Ruin ofUnreasonableness? 10 JUD. REV. 32 (2005); MichaelTaggart, Proportionality,
Deference, Wednesbury,2008 NZ LAW REVIEW 423, 435-441; Margit Cohn, LegalTransplant
Chronicles: TheEvolution ofUnreasonableness and Proportionality Review of theAdministration
in theUnited Kingdom, 59 AM. J.COMP. L. 583 (2010); James Goodwin, TheLastDefenceof
Wednesbury, [2012] P.L. 445
119 Managementof Coimbatore District Central Co-operative Bank v. Secretary, Coimbatore

District Central Co-operative Bank Employees Association, (2007) 4 SCC 669

120Om Kumar v. Union, (2001) 2 SCC 386. See further, Ashish Chugh, Is the Supreme

CourtDisproportionately Applying the Proportionality Principle? (2004) 8 SCC (Jour) 33

121Deputy Commissioner of IncomeTax v. State Bank of India, (2009) 2 SCC 451 (following a

holding in an earlier decision, HarshadShantilal Mehta v. Custodian, (1998) 5 SCC 1). The court
was probably referring totheWednesbury principleof unreasonableness, articulated by Lord
Greenein Associated Provincial Picture Houses v. Wednesbury Corporation, [1948] 1 K.B. 223,
wherethe Courtof Appeal held thatit could interfere with a decision which was
sounreasonablethat no reasonableauthority could ever have cometoit.
Page 50 of 104

proportionality is more fatalthan Wednesbury, even anxious scrutiny 122typeWednesbury

review.123The proportionality testin India, however, is merely Wednesburyin disguise.
Though the Supreme Courtof India has transplanted thelanguageof proportionality
intoits decisions, perhaps to borrow from the globallegitimacy associated with the
proportionality doctrine, the courtapplies a veiled Wednesbury standard of review and
calls it proportionality. Using public sector employment cases decided before.

CHAPTER 6
6.1 DOCTRINE OF PROPOTIONALITY
Development in Britian
ln many cases in Britain, proportionality has been treated merely as an aspectof
the Wednesbury unreasonableness. The main reason for judicial reticencein Britain in adopting
proportionality as a distinct head of judicial review is thatit may involvethe courts in assessing
the merits of a discretionary decision taken by theAdministration, and for long, the courts have
been advocating the proposition thatthe courts do not probeintothe merits of a discretionary
decision but seeif thereis any flaw in the decisionmaking process and thatthis places the courts
in the roleof a secondary reviewer and nota primary reviewer.
This point was specifically made clear by LORD ACKNER in Brind.124 He reasoned thatif
proportionality weretoadd something toour existing law, then it must be by imposing a
moreintensive standard of review than thetraditional Wednesbury unreasonableness. This would
122Andrew Le Sueur, supra note 4, 39
123Seeinfranotes

23-29 and accompanying text. See further, H.W.R. Wadeand C.F.

Forsyth,supranote 4,312-314
124R. v. Home Ministry, Ex. p. Brind,(1991) 1 AC 696
Page 51 of 104

mean "thatan inquiry intoand a decision upon the merits cannot beavoided, in the sensethatthe
court would haveto balance
There have however been a few cases wherethe courts haveapplied proportionality expressly or
impliedly in the contextof challenges to penalty imposed by an administrativeauthority. This is
exemplified by Hook. Thelicenceof a stall holder was revoked for urinating in the streetand using
offensivelanguage. LORD DENNING struck down the decision to cancel his licence becausethe
penalty imposed on thelicensee was excessiveand outof proportion totheoffence committed by
him.125
After theenactmentof the Human Rights Act, 1998, the Houseof Lords has adopted a position
between proportionality and Wednesbury as regards judicial review under the HRA.7 The
Houseof Lords has evolved the "rationality test" with "heightened scrutiny". This testis
somewhat different from the proportionality test. Many cases may fall within both thetests, butin
proportionality theintensity of judicial review would be greater than under the rationality test.
Under the Proportionality test, the reviewing court may havetoassess the balance struck by the
decisionmaker, not merely whether it was within the rangeof reasonable decisions.
A Proportionality test would alsoobligatethe courtto pay attention tothe relative weightaccorded
to relevantinterests in a manner not generally doneunder thetraditionalapproach to judicial
review.
As a mere facetof Wednesbury unreasonableness, the principleof proportionality would remain
very much circumscribed, as the court willinterfereonly when theaction impugned is totally outof
proportion tothe mischief soughtto be curbed soas to border on theabsurd.

For sometime now, voices are being raised in Britain thata wider version of proportionality
beaccepted. Even the judiciary has asserted attimes that judicial review is not fossilized," and
that heads of judicial review are notexhaustive.
One caseis Edore v. Secy. of State for the Home Dept.Theappellantin theinstant case was a
Nigerian citizen entered Britain and stayed back after theexpiry of her visa. She had two children
born toa British citizen. The children were very much emotionally dependenton their father. If

125R. v. Barnsley MBC Exp. Hook, (1976) 1 WLR 1052, at 1057

Page 52 of 104

the children were madeto return to Nigeria, their relation with their father would cometoan end:
The courttrying to resolvethe conflict stated:
Wheretheessential facts were notin doubtor dispute, theadjudicators task was to determine
whether the decision under appeal was properly one within the decision-makers direction,
namely, thatit was a decision which could reasonably be regarded as striking a fair balance
between the competing interests in play. lf it were, then theadjudicator could not characteriseitas
a decision "notin accordance with thelaw "and soeven if he personally would have preferred the
balanceto have been struck differently, he could not substitute his preference for the decision in
facttaken. However, there would beoccasions whereit could properly be said thatthe decision
reached was outsidethe rangeof permissible responses open to him, in thatthe balance struck was
simply wrong."

CHAPTER 7
7.1 WEDNESBURY UNREASONABLENESS
In English law, Wednesbury unreasonableness is unreasonableness of an administrative
decision

thatis

soextremethat

courts

may

interveneto

correctit.

Theterm

derives

from "Associated Provincial Picture Houses v. Wednesbury Corporation" 126, wherethe court
stated thatit would only interveneto correcta bad administrative decision on grounds of its
unreasonableness if the decision was, as articulated in "Council of Civil ServiceUnions v.
Minister for the Civil Service" (the GCHQ case) [1985] AC 374, 410 per Lord
Diplock, "Sooutrageous in its defianceof logic or accepted moral standards that no sensible
person who had applied his mind tothe question to be decided could havearrived atit."
Facts of the case

126[1948] 1 KB 223
Page 53 of 104

"Associated Provincial Picture Houses" were granted alicence by the defendantlocalauthority

tooperatea cinema on condition that no children under 15 wereadmitted tothe cinemaon Sundays.
The claimants soughta declaration that such a condition was unacceptable, and outsidethe power
of the Wednesbury Corporation toimpose.
The court held thatit could notintervenetooverturn the decision of the defendant corporation
simply becausethe court disagreed with it. To havethe righttointervene, the court would haveto
form the conclusion that:
* the corporation, in making that decision, took intoaccount factors thatought notto have been
taken intoaccount, or
* the corporation failed totakeaccount factors thatoughtto have been taken intoaccount, or
* the decision was sounreasonablethat no reasonableauthority would ever consider imposing it.
The court held thatthe condition did not fallintoany of these categories. Therefore, the claim
failed and the decision of the Wednesbury Corporation was upheld. According toLord Greene
MR,
"Itis truethe discretion must beexercised reasonably. Now what does that mean? Lawyers
familiar with the phraseology commonly used in relation toexerciseof statutory discretions often
usethe word "unreasonable" in a rather comprehensive sense. It has frequently been used and is
frequently used as a general description of thethings that must not be done. For instance, a person
entrusted with discretion must, soto speak, direct himself properly in law. He must call his own
attention tothe matters which heis bound to consider. He mustexclude from his consideration
matters which areirrelevantto what he has to consider. If he does notobey those rules, he may
truly be said, and often is said, to beacting "unreasonably." Similarly, there may be something
soabsurd that no sensible person could ever dream thatitlay within the powers of theauthority.
Warrington L.J. in "Short v. Poole Corporation" [1926] Ch. 66, 90, 91 gavetheexampleof the
red-haired teacher, dismissed because she had red hair. Thatis unreasonablein one sense. In
another senseitis taking into consideration extraneous matters. Itis sounreasonablethatit
mightalmost be described as being donein bad faith; and, in fact, allthesethings run
intooneanother.
Useof this case
Thetestlaid down in this case, in allthreelimbs, is known as "the Wednesbury test". Theterm
"Wednesbury unreasonableness" is used to describethethird limb, of being sounreasonablethat no
Page 54 of 104

reasonableauthority could have decided that way. This caseor the principlelaid down is cited in
United Kingdom courts as a reason for courts to be hesitanttointerfereintothe decisions of
administrativelaw bodies.
In recenttimes, particularly as a resultof theenactmentof the Human Rights Act 1998, the
judiciary haveresiled from this strictabstentionistapproach, recognising thatin certain
circumstances itis necessary for them toundertakea more searching review of administrative
decisions. Indeed, theEuropean Courtof Human Rights now requirethe reviewing courtto
subjecttheoriginal decision to "anxious scrutiny" when an administrative measureinfringes a
Convention right. In order to justify such an intrusion, the Respondents will haveto show thatit
pursued a "pressing social need" and thatthe means employed toachievethis were
proportionatetothelimitation of the right.

CHAPTER 8
8.1 INDIAN VIEW
The principleof proportionality in its broad European sense has not so far been accepted in India.
Only a very restrictive version thereof has so far comeinto play. The reason is thatthe broad
principle does notaccord with thetraditions of common-law judicial review. TheEuropean version
of proportionality makes the courts as the primary reviewer of administrativeaction, whereas in
common-law, the courts have so far played the roleof the secondary reviewer. In
European DroitAdministratif review

of

administrativeaction

is

entrusted

toadministrativetribunals and nottoordinary courts and, therefore, the broad conceptof

proportionality can be followed.
In common-law, thetradition so far has been thatthe courts do not probeintothe merits of an
administrativeaction. This approach comes in the way of a full-fledged acceptanceof the
principleof proportionality, for, if accepted, it willturn the courts into primary reviewer of
administrativeaction.
Page 55 of 104

Accordingly, in India, the courts apply the principleof proportionality in a very limited sense.
The principleis applied notas an independent principle by itself as in European
AdministrativeLaw, butas an aspectof Article 14 of the Constitution, viz., an arbitrary
administrativeaction is hit by Article 14.Therefore, whereadministrativeaction is challenged as
arbitrary under Art. 14, the question will be whether theadministrativeorder is rational or
reasonable as thetesttoapply is the Wednesbury test127. As has been stated by the Supreme
Courtin E. Royappa v. Stateof TamilNadu 128, if theadministrativeaction is arbitrary, it could be
struck down under Art. 14. Arbitrary action by an administrator is described as onethatis
irrationaland unreasonable. Accordingly, a very restrictive version of proportionality is applied in
theareaof punishments imposed by administrativeauthorities.
The first proposition in this regard is thatthe quantum of punishmentimposed by a disciplinary
authority on a civil servant for his misconductin serviceis a matter of discretion of the
disciplinary authority.
The second proposition is thatthe punishment has to be reasonable becauseof the constraints of
Art. 14. This means thatif the punishmentimposed is unreasonable, Art. 14 is infringed. The court
can thus decideupon the proportionality of the punishment when itis strikingly disproportionate.
The court would notinterfere with the matter of punishmenton compassionate ground, or
becauseit considers the punishment disproportionate. The court would interfereonly in such
extreme cases which on their face show perversity or irrationality. The Wednesbury testis to
beapplied in such a case.
The Supreme Court has laid down the principlein Om Kumar v. Union of India 129 in these
words:
"...When an administrative decision relating to punishmentin disciplinary cases is questioned as
arbitrary under Art. 14, the courtis confined to Wednesbury principles as a secondary reviewing
authority. The court will notapply proportionality as a primary reviewing court. . ."

127 Associated Provincial Picture House v. WednesburyCorpn., (1947) 2 AllER 680

128E. Royappa v. Stateof Tamil Nadu, AIR 1974 SC 555 : (1974) 4 SCC 3 : 1974 (1) LLJ 172.
129 Om Kumar v. Union of India, AIR 2000 SC 3689, at 3704: 2000 LIC 304: 2000 (7) Scale

524
Page 56 of 104

The court would thus intervenein the matter of punishmentonly when itis satisfied that
Wednesbury principle has been violated130. Below are given a few examples as to how this
proposition is applied to specific factual situations.
In Union of India V. R.K. Sharma 131,the Supreme court has again laid down the principleas
follows : The court cannot whileexercising power under Art. 32/226 interferes with the
punishment becausethe court considers itto be disproportionate. "Itis only in extreme cases,
which on their face show perversity or irrationality thatthere can be judicial review. Merely on
compassionate grounds a court should notinterfere".
The courtthus interferes when the quantum of punishmentis "shockingly disproportionate, or it
shocks the conscienceof the court. The following cases illustratethe point:
(i) Theappellant was removed from government serviceon the ground of misconduct. Taking the
kind of misconductin view, the Supreme Court characterised the punishmentof removal from
serviceas arbitrary and quashed theorder in question132.
(ii) The Supreme Court has observed in Bhagat Ram V. Stateof Himachal Pradesh133
Itis equally truethatthe penalty imposed must be commensurate with the gravity of the
misconduct, and thatany penalty disproportionatetothe gravity of the misconduct would
beviolativeof Art. 14 of the Constitution.
Prima facie, this was a broad statement which seemed toacceptthe principleof proportionality as
such. But sincethen the Supreme Court has qualified the statement. Instead of the
disproportionate, theexpression shockingly disproportionate has cometo be substituted.
(iii) In the contextof "unfair labour practice under Labour Law, the Supreme Court has observed
:134
130Stateof Tamil Nadu v. A. Rajapondian, AIR 1995 SC 561 : (1995) 1 SCC 216 : 1995 (1) LLJ

953
131Union of India v. R.K. Sharma, AIR 2001 SC 3053: JT 2001 (9) SC 76 : (2001) 5 SLR 731
132A.L. Kalra v. P&E Corporation of lndiaLtd, AIR 1984 SC 1361 : (1984) 3 SCC 316 : 1984

(2) LLJ 186

133Bhagat Ram v. Stateof HimachaI Pradesh, AIR 1983 SC 454 at 460 : (1983) 2 SCC 442 :

1983 (2) LLJ 186

134Hind Construction &Engineering Co. Ltd v. Their Workmen, AIR 1965 SC 917 : 1965 (2)

SCR 85 : 1965 (1) LLJ 462.

Page 57 of 104

"But, wherethe punishmentis shockingly disproportionate, regard being had tothe particular
conductand the past record or is such, as no reasonableemployer would ever imposein like
circumstances, theTribunal may treattheimposition of such punishmentas itself showing
victimization or unfair labour practice".
Accordingly, in several cases, the punishmentof dismissalimposed on workmen by their
employers have been quashed on the ground thatthe sameis grossly disproportionatetothe
natureof the charges held proved againstthe workman concerned.
In a number of cases, the Supreme Court has refused tointervene with the punishmentimposed by
the disciplinary authority as it was not found to be shockingly disproportionatetotheoffencein
question.135
For example, in B.C. Chaturvedi v. Union of India 136, a government servant was dismissed
from service because he was found to haveassets disproportionateto his known sources of
income. TheTribunaltaking in view his brilliantacademic record and 30 years of service,
substituted the punishmentof dismissal with compulsory retirement. The Supreme Court, on
appeal, setasidetheTribunalorder and restored theorder of dismissalimposed on him by the
disciplinary authority; The Court maintained thatthe disciplinary authority is invested with
discretion toimposeappropriate punishment keeping in view the magnitudeor gravity of
misconduct. The Courtobserved further in this connection:
"The High Court/Tribunal, whileexercising the power of judicial review, cannot normally
substituteits own conclusion on penalty and impose someother penalty. lfthe punishmentimposed
by the disciplinary authority or theappellateauthority shocks the conscienceof the High
Court/Tribunal,

it

would

appropriately

mould

the

relief

either

directing

the

disciplinary/appellateauthority to reconsider the penalty imposed, or to shorten litigation, it may

itself, in exceptionaland rare cases, imposeappropriate punishment with cogent reasons in
supportthereof.
In a concurring judgment, HANSARIA, J., emphasized that notonly the Supreme Court, buteven
a High Courtin a writ petition can apply its judicial mind tothe question of proportionality of
135Union of India v. G. Gangayuthan, AIR 1997 SC 3387: 1997 SCC (L&S) 1806: JT 1997 (7)

SC 572; Om Kumar v. Union of India, AIR 2000 SC 3689: 2001 (1) SLR 299
136AIR 1996 SC 484: (1995) 6 SCC 749; 1996 (1) LLJ 1231
Page 58 of 104

punishment. Butthen, while seized with this question as a writ courtinterferenceis

permissibleonly when the punishment/penalty is shockingly disproportionate.
8.2 IMPORTANT JUDGEMENT
(1) Union of India v. G.Ganayutham
The respondent who was working as the Superintendentof CentralExcise was subjected tothe
punishmentof withholding of 50% of the pension and 50% of gratuity. A writ petition was filed
in the High Court which was later moved totheAdministrativeTribunal. TheTribunal holding the
punishmenttoo severe reduced the same.
The matter then came beforethe Supreme Court by way of appeal. The Court setasidetheorder of
theTribunaland restored theoriginal punishment saying thatthe punishment was not irrational
according tothe Wednesbury test. The Courtobserved:
"In such a situation, unless the Court/Tribunalopines in its secondary role, thattheadministrator
was, on the material before him, irrationalaccording to Wednesbury the punishment cannot be
quashed."137
(2) U.P. State Road Transport Corporation v. Subash Chandra Sharma
After an inquiry intothe conductof the respondent, certain charges of misconduct were held
proved against him. Consequently, he was awarded the punishmentof removal from service.
TheLabour Court characterising the punishmentto beexcessive reduced the same. The Supreme
Court quashed theLabour Courts order and restored theorder passed by the disciplinary
authority. The Courtobserved:
lt could not be said thatthe punishmentawarded tothe respondent was in any way "shockingly
disproportionate" tothe natureof the charge found proved against him".
(3) ApparelExport Promotion Council v. A.K. Chopra
The respondentafter an inquiry was found guilty of sexually harassing a femaleemployee.
Consequently, his service was terminated (In a writ petition filed in the High Court, his

137Union of India v. G. Ganayutham, AIR 1997 SC 3387 ,at 3396: 1997 SCC (L&S) 1806.
Page 59 of 104

punishment was reduced by the court. The Supreme Courttook exception tothe High Courts
interference with theaward of the punishmentin theinstant case with the following observation:
"Even in so far imposition of penalty is concerned, unless the punishmentor penalty imposed by
the Disciplinary or the DepartmentalAppellateAuthority, is either impermissibleor such thatit
shocks the conscienceof the High Court, it should not normally substituteits own opinion and
impose someother punishmentor penalty".
Accordingly in theinstant case, the Supreme Court setasidetheorder of the High Courtand
restored the punishmentof removal from serviceof the respondentimposed by the disciplinary
authority.
(4) C.M.D. United Commercial Bank v. P.C. Kakkar
Disciplinary proceedings wereinitiated againstan employeeof a statutory bank. It was alleged that
he had committed severalacts of misconduct while functioning as theAssistant Manager of a
Branch of the Bank. He was placed under suspension and proceedings initiated against him
under the Rules of Conductof the Bank. Several charges were found to beestablished against him
and the punishmentof dismissal was imposed on him.
lna writ petition, the High Court held the punishmentto beexcessiveand reduced ittoaloss of 75%
of salary. The matter then camein appeal beforethe Supreme Court. The Court considered
atlength in C.M D. United Commercial Bank v. P. C. Kakkar 138, the question of scopeof
judicial review of disciplinary punishments. The Court referred toits earlier decision inOm
Kumar &Ors. v. Union of India 139 and held that where punishments in disciplinary cases are
challenged as arbitrary vis-avis Art. I4 of the Constitution the court would actas a secondary
reviewer. The question beforethe court would be whether theadministrativeorder is "rational" or
"reasonable" according tothe Wednesbury test. On this question, the Courtobserved:
"The courts would then be confined only toa secondary roleand willonly haveto see whether
theadministrator has done wellin his primary role, whether he has acted illegally or has omitted
relevant factors from consideration or has taken irrelevant factors into consideration or whether
his view is one which no reasonable person could havetaken. If his action does not satisfy these
rules, itis to betreated as arbitrary."

138 AIR 2003 SC 1571 : 2003 (2) LLJ 181 : (2003) 4 SCC 364
139AIR 2000 SC 3689 : 2000 LIC 304.
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lntheinstant case, it has not been contended thatany fundamental freedom has been affected. The
court should notinterfere with theadministrators decision imposing punishmentunless "it was
illogicalor suffers from proceduralimpropriety or was shocking tothe conscienceof the court, in
the sensethatit was defianceof logic or moral standards". "Unless the punishmentimposed by the
Disciplinary Authority or theAppellateAuthority shocks the conscienceof the court./tribunal,
thereis no scope for interference.
When the court feels thatthe punishmentis "shockingly disproportionate", it must record reasons
for coming to such a conclusion. Mereexpression thatthe punishmentis shockingly
disproportionate would not meetthe requirementof law. Also, in the normal course, if the
punishmentimposed

is

shockingly

disproportionateit

would

beappropriateto

directthe

Disciplinary Authority or theAppellateAuthority to reconsider the penalty imposed.

In theinstant case, the proceedings commenced in 1981. He was placed under suspension from
1983 to 1988, and was superannuated in 2002. He was acquitted in a criminal case. In these
peculiar circumstances of the case, the Supreme Court sentthe matter back tothe High Court for
fresh consideration only on the question of punishmentaspect.
(5) Union of India v. Rajesh PU, Pathuvalnikathu
Rajesh furnishes an exampleof application of the principleof proportionality toan areaother than
thatof punishments. ln Rajesh, applications wereinvited by CBI for filling up 134 posts of
constables. The selection process consists of a written examination and a viva vocetest. There
were someallegations of favouritism and nepotism while conducting the physicalefficiency test;
there werealso someirregularities committed during the written examination. As a resultthereof,
theentire selection list was cancelled. This was challenged in the High Courtthrough a writ
petition.
The High Courtafter reviewing the various reports and theentire process categorically rejected
theallegations of nepotism and favouritism. The Courtalso ruled thatthere was no justification for
cancelling theentirelist when theimpactof irregularities in theevaluation on merits could
beidentified specifically.
On a reconsideration of theentire record, the court found thatonly 31 specific candidates were
selected undeservedly. The High Courtallowed the writ petition.
Page 61 of 104

On appealthe Supreme Courtupheld the High Court. The Court ruled that when only 31 cases
weretainted, there was hardly any justification in law to deny appointments totheother selected
candidates whose selection was not vitiated in any manner. The Courtobserved on this aspectof
the case:140
"Applying aunilaterally rigid and arbitrary standard to canceltheentirety of the selections
despitethe firm and positiveinformation thatexcept 31 of such selected candidates, noinfirmity
could be found with referencetoothers, is nothing buttotal disregard, of relevancies and allowing
to be carried away by irrelevancies, giving a complete go-by to contextual considerations
throwing tothe winds the principleof proportionality in going farther than what was strictly and
reasonably to meetthe situation. In short, the competentauthority completely misdirected itself in
taking such an extremeand unreasonable decision of cancelling theentire selections wholly
unwarranted and unnecessary even on the factual situation found too, and totally in excess of the
natureand gravity of what was at stake, thereby virtually rendering such decision to beirrational.
An aspectof the principleof proportionality is thattheAdministration ought notto makean order
harsher than whatthe need of the situation demand. Itis to be noted thatthe court has notinvoked
the Wednesbury testin theinstant case. Theuseof theterm irrational seems to bein a sense
somewhat wider than the Wednesbury test. In theinstant case, the Supreme Courtis very nearly
playing the roleof a primary reviewer
Art 14. Discriminatory Action
However, if administrativeaction is challenged as discriminativeunder Art. 14, Proportionality
applies and itis primary review. Whereadministrativeaction is challenged as being discriminatory
under Art. 14, equals aretreated unequally or unequalsaretreated equally, the question is for the
constitutional courts to consider as primary reviewing courts. The courts consider correctness of
thelevelof discrimination applied and whether itis excessiveand whether it has a nexus with
theobjectiveintended to beachieved by theadministrator. Hence, the court deals with the merits of
the balancing action of theadministrator and is, in essence, applying the principleof
proportionality and is acting as a primary reviewing authority. Thus, the Supreme Court has
stated in Om Kumar: "If, under Art. 14 administrativeaction is to be struck down as
discriminatory, proportionality applies and itis primary review". Atanother place, in theinstant
140 Union of India v. Rajesh PU, Pathuvalnikathu, (2003) 7 SCC 285 at 289-90: AIR 2003 SC

4222
Page 62 of 104

case, the Court has stated: "Thus, when administrativeaction is attacked as discriminatory under
Art. I4, the principleof primary review is for the courts by applying proportionality."
Fundamental Freedoms
Again, in an administrativeaction affecting fundamental freedom, proportionality has to
beapplied. lnthis area, proportionality of administrativeaction is to betreated by the courts as a
primary reviewing authority. On this point, the Supreme Court has stated in Om Kumar:
Administrativeaction in Indiaaffecting fundamental freedoms has always been tested on
theanvilof proportionality in thelast fifty years even though it has not been expressly stated
thatthe principlethatis applied is the proportionality principle."
In this connection, the Supreme Court has observed further:141
"Thereare hundreds of cases dealt with by our courts. In allthese matters, the proportionality of
administrativeaction affecting the freedoms under Art. 19(1) or Art.21 has been trusted by the
courts as a primary reviewing authority and noton the basis of Wednesbury principles. It may
bethatthe courts did not callthis proportionality butit really was.
Also, whileassessing the constitutional validity of a statuteor an administrativeorder visa-vis
fundamental rights, the courtalways does the balancing act between a fundamental rightand
therestriction imposed thereon. A restriction which is disproportionateor excessive can always be
struck down.142
As theIsraeli ground incursion into Gaza continues, increased attention will be focused on the
notion of "proportionality" in both the number of casualties on both sides and the sophistication
of the weapons each side brings to bear. Britain's Deputy Prime Minister Nick Clegg
characterized Israel's operations against Hamas in languagethat came closetoan accusation of war
crimes. "I really dothink now theIsraeli responseappears to be deliberately disproportionate. Itis
amounting now toa disproportionate form of collective punishment." Even PresidentObama, who
has been a firm advocateof Israel's self-defensein this instance, told reporters that he
"encouraged" Prime Minister Netanyahuto "minimize civilian deaths."
An Israeli journalist called Israel's Iron Dome missile defense system "unsportsmanlike." He
wondered what FIFA would say "if Germany, with its superior economy and industry, wereto
141AIR 2000 SC 3689, at 3702 : 2000 (7) Scale 524
142Chintaman v. Stateof M.P., AIR 1951 SC 118
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replace ManuelNeuer with a bionic goalkeeper... capableof calculating whereeach Argentine ball
will come from, theexact position to stand in and amountof force needed to block it... On the
modern battlefield (Israel) is a bionic Germany."
How unsportsmanlike!
Even among Israel's friends and someIsraelis a "yes, but..." responseis common. "Yes"
Hamas started it; "Yes" Hamas puts military infrastructurein civilian neighborhoods; "Yes"
Israelis entitled to self-defense, "Yes" theIsraelis warn Palestinians. "But" morethan 240
Palestinians have been killed to dateand only oneIsraeli has died directly from rocket fire.
Isn'tthatthe definition of "disproportionate?" No. Itisn't.
Proportionality in internationallaw is notaboutequality of death or civilian suffering, or even
about firepower returned being equalin sophistication or lethality to firepower received.
Proportionality weighs the military necessity of an action againstthe suffering thattheaction
might causetoenemy civilians in the vicinity. A review of expertopinion noneof which was
written in relation toIsrael helps to clarify.
Prof. Horst Fischer, Academic Director of theInstitute for InternationalLaw of Peaceand Armed
Conflictatthe

Ruhr-University

Bochum

in

Germany,

and

Adjunct

Professor

at

ColumbiaUniversity, wrotein The Crimes of War Project:

The principleof proportionality is embedded in almostevery nationallegal system and underlies
theinternationallegalorder. Its function in domestic law is to relate means toends... In the
conductof war, when a party commits alawfulattack againsta military objective, the principleof
proportionality also comes into play whenever thereis collateral damage, thatis, civilian
casualties

or

damagetoa

non-military

objective...

attacks

are

prohibited

if

they

causeincidentalloss of civilian life, injury to civilians, or damageto civilian objects

thatis excessivein relation totheanticipated concreteand direct military advantageof theattack.
This creates a permanentobligation for military commanders to consider the results of theattack
compared totheadvantageanticipated.
Exactly as Israel does when itaborts missions after finding civilians used as human shields on
rooftops.
The Councilon Foreign Relations notes:

Page 64 of 104

According tothe doctrine, a stateis legally allowed tounilaterally defend itself and righta wrong
provided the responseis proportionaltotheinjury suffered. The response mustalso beimmediateand
necessary, refrain from targeting civilians, and requireonly enough forceto reinstatethe status
quoante.
What constitutes status quoante for Israel may be debatable but surely a return tothe period
before 75% of Israel's citizens wereterrorized by random rocket fire should bean acceptable
definition.
Luis Moreno-Ocampo, Chief Prosecutor attheInternational Criminal Court, investigated
allegations of war crimes during 2003 invasion of Iraq, and in 2006 published an open letter
containing his findings. Included was this section on proportionality:
Under international humanitarian law and the Rome Statute, the death of civilians during an
armed conflict, no matter how graveand regrettable, does notin itself constitutea war crime.
International humanitarian law and the Rome Statute permit belligerents to carry out
proportionateattacks against military objectives, even when itis known that some civilian deaths
or injuries willoccur.
A crimeoccurs if thereis an intentionalattack directed against civilians (principleof distinction) or
an attack is launched on a military objectivein the knowledgethattheincidental civilian injuries
would

be clearly

excessivein

relation

totheanticipated

military

advantage (principleof

proportionality).
Finally, Dr. Franoise Hampton, University of Essex (UK) wroteaboutthe conceptof "military
necessity."
Military necessity is alegal conceptused in international humanitarian law (IHL) as partof
thelegal justification for attacks on legitimate military targets that may haveadverse, even
terrible, consequences for civilians and civilian objects. It means that military forces in planning
military actions are permitted totakeintoaccountthe practical requirements of a military situation
atany given momentand theimperatives of winning.

Page 65 of 104

What constitutes a military objective will change during the courseof a conflict. As some military
objectives are destroyed, theenemy willuseother installations for the same purpose, thereby
making them military objectives and their attack justifiableunder military necessity. Thereis a
similarly variableeffecton the determination of proportionality. The greater the military
advantageanticipated, thelarger theamountof collateral damage - often civilian casualties - which
will be "justified" or "necessary."
Civilian casualties are much to be mourned, but what becomes clear absentthe
propagandaelementor a shaky notion of sportsmanship is thatIsrael has the rightand indeed
theobligation to defend its people, has the rightto "win" the war of self-defensethatitis fighting,
and has taken accountof the requirements of internationallaw regarding "proportionality" and
"military necessity." This, coupled with the willingness of IsraeltoaccepttheEgyptian-sponsored
ceasefire, acceptanceof aUN-sponsored humanitarian truce, and the continued provision of food,
medicine, and electricity tothe residents of Gaza, should help erasethe "buts" of fair-minded
people.

CHAPTER 9
9.1 PROPOTIONALITY AND THE UNITED STATES OF AMERICA
Proportionality is today accepted as a general principleof law by constitutional courts and
internationaltribunals around the world.143 Proportionality review, a structured form of
143In 2004, Canadian scholar David Beatty asserted that proportionality review was the

ultimate ruleof law for resolving constitutional questions about rights; as a positive matter, it
Page 66 of 104

doctrine, now flows across nationallines, a seemingly common methodology for evaluating many
constitutionaland human rights claims.144 TheUnited States is often viewed as an outlier in this
transnationalembraceof

proportionality

in

constitutionallaw.145 Yet

someareas

of

U.S.

constitutionallaw embrace proportionality as a principle, as in Eighth Amendment caselaw,146 or

contain other elements of the structured proportionality review widely used in foreign
constitutional

jurisprudence, including

theinquiry

into

narrow

tailoring

or

less

restrictivealternatives found in U.S. strict scrutiny.147Justice Stephen Breyer has suggested

thatthereareother areas in which theappropriate standard of judicial review would
involveexamining the proportionality of government regulation.148 For example, in United States
was the dominant method of constitutionalinterpretation in the world, and as a normative matter,
it was superior to such other methods as originalism or textualism. D AVID M. B EATTY ,
T HE U LTIMATE R ULEOF L AW 159-88 (2004). In 2005, U.S. legal scholar David Law identified
proportionality as a generic componentof constitutionaladjudication around the world. David
S. Law,Generic ConstitutionalLaw, 89 M INN . L. R EV . 652 (2005). On the roleof proportionality
in internationallaw and administrativelaw, see, for example, HCJ 2056/04
BeitSourikVill. Council v. Govtof Israel, 58(5) PD 807 [2004] (Isr.), translated in 2004 I SR . L.
R EP . 264. SeealsoGrinne deBrca, The Principleof Proportionality and its Application in EC
Law, 13 Y.B. E UR . L. 105, 113 (1993
144The German Constitutional Court has been particularly influential, as has the Canadian

Supreme Court, in developing proportionality review in ways thatinfluenceother countries. On

how seemingly similar approaches may beapplied or understood differently in different
countries, see J ACCO B OMHOFF , B ALANCING C ONSTITUTIONAL R IGHTS : T HE O RIGINS AND
M EANINGS OF P OSTWAR L EGAL D ISCOURSE (2013) (comparing U.S. and German
conceptions of balancing); and Dieter Grimm, Proportionality in Canadian and German
Constitutional Jurisprudence, 57 U. T ORONTO L.J. 383 (2007).
145See Moshe Cohen-Eliya&IddoPorat, The Hidden Foreign Law Debatein Heller: The

Proportionality Approach in American ConstitutionalLaw, 46 S AN D IEGO L. R EV . 367 (2009)

[hereinafter Cohen-Eliya&Porat, The Hidden Foreign Law Debate]; seealso M OSHE C OHEN E LIYA&I DDO P ORAT , P ROPORTIONALITY AND C ONSTITUTIONAL C ULTURE 14-16(2013)
[hereinafter C OHEN -E LIYA&P ORAT , P ROPORTIONALITY ].
146See, e.g., Graham v. Florida, 560 U.S. 48, 59 (2010); seealso cases cited infra notes 43-44
147See generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLAL. R EV . 1267

(2007).
148See S TEPHEN B REYER , ACTIVE L IBERTY : I NTERPRETING O UR D EMOCRATIC

C ONSTITUTION 49 (2006). Justice Breyers interestin proportionality as an approach

Page 67 of 104

v. Alvarez,149Justice Breyers concurrence, joined by Justice Kagan, associated proportionality

review with intermediate scrutiny and applied this standard toevaluatea FirstAmendment
challengetothe Stolen Valor Act. In his dissentin Districtof Columbia v. Heller,Justice Breyer
explicitly invoked theideaof proportionality as a guideto permissible regulation under the Second
Amendment.Thisexplicitinvocation of proportionality led some scholars to begin to consider,
critically, the prospects of proportionality review, as it has developed elsewherein the world,
being more fully embraced in theUnited States.
Given developments within and outsidetheUnited States, thetimeis ripetotakea fresh look at
proportionality, both as a general principlein constitutionalanalysis and as a structured doctrineof
potential benefitto discreteareas of U.S. constitutionallaw. In 1987, T. Alexander Aleinikoff
criticized U.S. constitutionallaw for its overrelianceon balancing in doctrines like strict scrutiny
and in cases like Tennessee v. Garner150 orMathews v. Eldridge, wherethe Courtaimed to strikea
balanceamong differentinterests. Other work soon followed, contrasting more categoricaland
rule-likeapproaches, on theone hand, and standards, on theother. The scholarship of thelate 1980s
may haveinfluenced caselaw in someareas towards more categorical rules. 17 Buttheseearlier U.S.
debates could not have been informed by the subsequent courseof proportionality review in other
countries. Foreign courts experience with proportionality review casts new lighton
theseenduring questions in ways that suggestthatU.S. constitutionallaw would benefit from a
moderateincreasein theuseof proportionality.
toanalyzing rights goes further back. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 535-41 (2001)
(Breyer, J., concurring); Nixon v. Shrink Mo. Govt PAC, 528 U.S. 377, 399-405 (2000) (Breyer,
J., concurring); United States v. Playboy Entmt Grp., 529 U.S. 803, 835-47 (2000) (Breyer, J.,
dissenting); seealso PaulGewirtz, Privacy and Speech, 2001 S UP . C T . R EV . 139, 157-66
(describing Justice Breyers concurrencein Bartnicki v. Vopperin which Justice Breyer
analyzed whether the challenged restrictions on speech . . . are disproportionateas
demonstrating a more flexible approach in recognizing competing constitutionalinterests
between privacy and free speech); cf. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 227 (1997)
(Breyer, J., concurring in part) (arguing that reviewing court should consider whether thereare
significantly less restrictive ways toachieve Congress over-the-air programming objectives,
and . . . whether the statute . . . strikes a reasonable balance between potentially speechrestricting and speech-enhancing consequences).
149132 S. Ct. 2537 (2012).
150471 U.S. 1 (1985).
Page 68 of 104

Proportionality can beunderstood as alegal principle, as a goalof government, and as a particular

structured approach to judicial review. As a principleand as a goalof constitutional government,
proportionality is a preceptof justice, embodying theideathatlarger harms imposed by
government should be justified by more weighty reasons and that more severetransgressions of
thelaw be more harshly sanctioned than less severeones.Proportionalityas a principleis embodied
in a number of currentareas of U.S. constitutionallaw: for example, in Eighth Amendment
crueland unusual punishments and excessive fines caselaw; as alimitimposed by the Due
Process Clauseon theaward of punitive damages; and in Takings Clause cases requiring rough
proportionality between conditions on zoning variances and the benefits of the variancetothe
property owner. In each of theseareas, the principleof proportionality imposes somelimiton
otherwiseauthorized governmentaction, alimit connected toa senseof fairness toindividuals or a
desireto prevent governmentabuseof power. Proportionality is centrally concerned with how, in
a democratic society, . . . respect for the dignity of all men is central, reflected in our Nations
[longstanding] belief in the individuality and the dignity of the human being.
Proportionality as a structured legal doctrineis used by some (notall) courts thattreat
proportionality as a general principle. In countries like Germany, Canada, and Israel, courts usea
similar multi-part sequenced setof questions; elsewhere, such questions are considered butin
aless sequenced way.151 In Canada, for example, structured proportionality review begins with
attention tothe scopeof whata rightis intended to protect; if a right has been infringed, theinquiry
turns nexttotheauthority for theaction, and totheimportanceand legitimacy of the government
purpose. If an infringementon interests protected by a rightis shown, and if the challenged action
has been prescribed by law sufficiently precisely and for alegitimateand sufficiently important
purpose, then the constitutionality of the means used areexamined through athree-fold inquiry
into:
(a) rationality;

151See Niels Petersen, Proportionality and theIncommensurability ChallengeSomeLessons

from the South African Constitutional Court2 (NYU Sch. of Law, Pub. Law Research Paper No.
13-07, 2013),http://ssrn.com/abstract=2230454 [http://perma.cc/936Y-HTYG] (describing how
South Africa rejected the structured sequenced approach to hold thatthe factors listed in
Section 36 of its Constitution must be considered in an overallassessment (citation omitted)).
Page 69 of 104

(b) minimalimpairment; and

(c) proportionalityas such.24
Severalof these criteria correspond with elements in U.S. strict, intermediate, or rational
basis scrutiny: the need for a sufficiently importantor compelling government purpose; the
rational

connection

required

between

the

means

chosen

and

theend;

and

the

minimalimpairment inquiry into whether thereareless restrictive means towards the same goal.
Structured proportionality analysis in countries like Canada, Germany, or Israelincludes an
additional stageproportionality as such asking whether theintrusion on the challengers
rights can be justified by the benefits towards achieving theimportant public goal. This step calls
for an independent judicialevaluation of whether the reasons offered by the government,
relativetothelimitation on rights, are sufficientto justify theintrusion. Whilethis step is sometimes
referred toas involving balancing, the proportionality as such question in structured
proportionality doctrine differs from balancing tests thattend to focus primarily on
quantification of net social good, as in Dennis v. United States or Mathews v. Eldridge.
Take Canadaas an exampleof structured, sequenced proportionality analysis.
First, proportionality as such is a partof a doctrinethat, as a whole, prioritizes the right, putting
the burden of justification on the government. In this respect, structured proportionality analysis
differs from multi-factor analyses of proportionality, as one sees in some countries, including
South Africa, or from someU.S. striking a balance caselaw.
Second, Canadian-style proportionality review is alogically sequenced setof inquiries thatlimits
the need to consider whether the governmentinterests justify theintrusion on interests protected
by rights. It does so by firstexamining whether the challenged action is authorized by law, and
then whether the governments purposeis sufficiently importantto serveas a basis for limiting the
rightatall. If these firsttests are met, Canadian proportionality review examines the rationality and
necessity of the means chosen, all before reaching the final proportionality as such inquiry. In
this way, if the means chosen are not suitableor necessary toadvancethe governments interest,
the case can be resolved atoneof thesestages:the courts need not reach the proportionality as
Page 70 of 104

such question unless thereis a genuine conflict between the governments interestand
theinterests protected by the right.
Third, proportionality as such returns courts to considering both theinfringed-on rightand the
governments purposes, not justin terms of their theoretical gravity, butin terms of
the relative weightor

bearing

of

the

governments

reasons

in

relation

tothe

harm

tothechallengers rights, in a particular contextand in lightof constitutional values. In this way,

courts are not substituting their judgment for thatof thelegislature. They are playing a valuable
judicial rolechecking toassureappropriateattention to rights within a framework of
constitutional justice.
PartI provides background for considering proportionality in theUnited States. It notes
severalareas of U.S. constitutionallaw in which proportionality already is an elementof
constitutionalanalysis and argues thatoneof the goals of the Constitution was to producea just
government, onelikely toavoid arbitrariness and toact proportionately. As further background,
PartI goes on to describein more detailthe structured form of proportionality review as itexists in
several foreign countries, with special focus on Canada.
PartIIexplores why proportionality has not been used as a general principleof constitutionallaw in
theUnited States. It suggests thattheaversiveimpactof Lochner v. New York152 and Dennis v.
United States,153 as negative precedents, led toa search for categoricalapproaches to constrain
judicial discretion. Moreover, theageof the Constitution and related interpretive practices help
account for theabsenceof any generalembraceof proportionality. For example, the Constitutions
brevity and, relatedly, the relative dearth of rights thatare viewed as in tension with each other,
havetended to reinforcea view of rights either as trumps or as prohibited reasons for
governmentaction. These conceptions contrast with alternativeunderstandings of rights as
presumptive protections of human interestsor as values to beoptimized,which someleading
152198 U.S. 45 (1905).
153This is an ideaassociated with Ronald Dworkin, see R ONALD D WORKIN , T AKING R IGHTS

S ERIOUSLY xi, 90-100, 190-97 (1977), though perhaps contestably so, see Stephen
Gardbaum, A Democratic Defenseof Constitutional Balancing, 4 L AW &E THICS H UM .
R TS . 78, 85 n.29 (2010);seealso R OBERT N OZICK , ANARCHY , S TATE , AND U TOPIA 26-53
(1974) (discussing rights as side constraints).
Page 71 of 104

theoristslink with proportionality review. And, unlikeEuropean countries, which haveincentives

to harmonize national constitutionallaw with international rights regimes that rely on
proportionality, theUnited States has not been comfortabletreating its international human rights
obligations as judicially enforceabledomestically.
PartIII makes an affirmative case for greater useof proportionality as a principleand for
structured proportionality as a standard of review in theUnited States. I begin by looking
atdiscreteareas of U.S. constitutionallaw, starting with Fourth Amendment cases like Atwater v.
City of Lago Vista,154with rigid rules allowing policeto detain and search regardless of the
severity of theoffenserules that facilitate humiliating and badly intentioned police conduct.
Excluding proportionality considerations neither fulfills the purposeof the Fourth Amendment
nor promotes respect for the Constitution as law. Canadian caselaw on analogous rights offers an
alternativeapproach.

Ithen

consider

recent

FirstAmendment

case, Holder

v.

HumanitarianLaw Project, thatappears to depart from existing categorical rules. Applying

structured proportionality analysis in this case, I suggest, would require more disciplined
attention both to free speech and national security interests, in order to clarify which
considerations control.
Next, I discuss some general normativearguments in favor of structured proportionality review
and proportionality principles. First, Canadian-style proportionality review promotes structured
and transparent decisions through a stable methodological framework. Second, proportionality as
a principle helps bring constitutionallaw closer to constitutional justice. Third, proportionality
principles and structured proportionality review providea better bridge between courts and other
branches of government, offering criteria for constitutional behavior thatareusable by, and open
toinput from, legislatures and executives. Fourth, proportionality analysis can reveal process
failures, including departures from impartial governance, warranting heightened judicial scrutiny.
PartIV takes up severalobjections to proportionality reviewthatitis irrational, insufficiently
protectiveof rights, unduly intrusiveon legislatures, or overempoweringof courtsand responds
toeach. I give specialattention tothe concern that proportionality review might focus too much
154532 U.S. 318 (2001); seealso Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012),

discussed infra note 176.

Page 72 of 104

attention

on

governmental

justifications

for

its

means

and

notenough

on

deontologicalunderstandings of rights. I suggestthat more deontologicalunderstandings of rights,

and attention to particular constitutionaltexts and lines of cases, is appropriate both in initially
defining whether a right has been infringed and whatends arelegitimate, and alsoin evaluating
proportionality as such. PartIV also considers arguments from American exceptionalism that
would preclude greater useof proportionality review. Exceptionalist claims, however, cannot
bemadeor answered in broad brushstrokes; indeed, Iargue, U.S. history and experience support
greater useof proportionality.
Although some scholars view case-by-caseapplication of proportionality analysis as
almostalways normatively superior toother approaches to rights adjudication, Part V takes a
different view. Text, history, and precedent matter. Notall rights havethe same structure nor
servethe same purposes; free speech claims, which benefit from a presumptively categorical
structure, are different from police behavior or criminal sentences, both of which would benefit
from greater attention to proportionality. Even in adjudicating a single claim, differentissues may
call

for

differenttreatment.

In

equal

protection

law,

paying

moreattention

to

disproportionateeffects need notimply embraceof allelements of structured proportionality

doctrine. Moreover, sometimes the most proportionate results will beachieved through
categorical rules, especially when remedial frameworks are considered. Atleast someof these
rule-like regimes can be justified in terms of proportionality analysis atthelevelof the rule. Being
proportionalabout proportionality means recognizing that history and text have roles to play, and
that proportionality as a principleis notalways served by proportionality as a doctrine.

Page 73 of 104

CHAPTER 10
10 .1

PR OP ORTION ALI TY

IN

U .S.

C ON STI TU TI ON ALISM

AN D

AB ROAD
Proportionality as an elementof constitutional doctrine has already been recognized in
severalareas of contemporary constitutionallaw in theUnited States. This is not surprising, since
well-designed constitutions are generally intended to promote proportionate, non-arbitrary
government behavior. WhattheUnited States does not presently useis the structured
proportionality doctrine described in PartI.C.
Americans arealready familiar with thelegal principleof proportionality in constitutionallaw.
TheEighth

Amendments

disproportionatetothe

caselaw

severity

of

has

long

recognized

theoffenseare

that

prohibited

punishments
as

crueland

grossly
unusual

punishment,155 although the Courts willingness actually to scrutinizethe proportionality of

155See, e.g., Graham v. Florida, 560 U.S. 48, 59 (2010) (The conceptof proportionality is

centraltotheEighth Amendment.); Solem v. Helm, 463 U.S. 277 (1983) (assessing the
proportionality of a sentenceof lifeimprisonment); Enmund v. Florida, 458 U.S. 782 (1982)
(assessing the proportionality of a death penalty sentence); Weems v. United States, 217 U.S.
349, 367 (1910) (arguing thattheEighth Amendment ban on crueland unusual
punishmentembodies the preceptof justicethat punishment for crime should be graduated and
proportioned tooffense). Although the Justices making up the majority in Harmelin v. Michigan,
501 U.S. 957 (1991), were divided on whether proportionality review applies in non-capital
cases, Weems had applied such review toa punishmentof hard labor for aterm of years. In so
doing, Weemswas consistent with earlier Supreme Court comments on the meaning of theEighth
Amendment. See Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475, 480 (1867) (suggesting
thatEighth Amendment clauses as a whole prohibited punishments that were excessive, or cruel,
or unusual); cf. ONeil v. Vermont, 144 U.S. 323, 331 (1892) (quoting alower courtopinion
construing theEighth Amendmentand an analogous state constitutional provision to ban
excessive, oppressive, or unreasonably severe punishments, but for other reasons rejecting
an attack on alengthy sentenceimposing cumulativetimeon multiple counts);seealsoinfra notes
425-426.
Page 74 of 104

sentences has varied over timeand contexts.44 TheExcessive Fines Clauseof theEighth
Amendment has also been understood toimpose proportionality limits. Sincethe 1990s the Court
has invoked proportionality in severalother constitutional contexts. For example, under the Due
Process Clause, courts must now ensurethatthe measureof punitive damages in civil cases is
bothreasonableand proportionate totheamountof harm tothe plaintiff and tothe general damages
recovered.156 Under theTakings Clause, conditions for zoning permits must have rough
proportionality totheeffects of the proposed useof the property.47 Furthermore, the undue
burden standard is now the controlling inquiry in the Courts abortion cases, invoking in its
languageand application a concern for the reasonableness of regulations affecting womens
choices toaborttheir pregnancies prior to viability.48 Allof these standards invoke proportionality
in

resolving

individual

rights

questions,

as

do

Justice

Breyers

FirstAmendmentopinions.49 Moreover, the Court has extended proportionality standards to

federalism issues: as of 1997, legislation under Section 5 of the Fourteenth Amendment must
have congruenceand proportionality to conductthat Section 1 prohibits.157
As theseexamples suggest, U.S. courts have found the conceptof proportionality increasingly
attractivein resolving interpretive challenges, prompting scholars toidentify the roots of
proportionality doctrines in U.S. constitutionallaw. Richard Fallon, for example, has drawn
comparisons between European proportionality doctrineand U.S. strict scrutiny as itemerged in
the 1960s (and applied thereafter),whileAlec Stone Sweetand Jud Mathews see proportionality
review in nineteenth century Dormant Commerce Clause cases. Attraction to proportionality in
both the courts and theacademy is no surprise, sincean aspiration to proportionate government, as
an importantaspectof justice, is implicitin the constitutional design.

Proportionate Governmentas a Goalof Constitutional Design

156State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426 (2003) (emphasis

added). See generally BMW of N. Am. v. Gore, 517 U.S. 559 (1996) (limiting punitive damages
under the Due Process Clause).
157See City of Boerne v. Flores, 521 U.S. 507 (1997)
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The Constitutions Preamble states thatoneof its goals is to establish Justice, echoing the
defining commitments of leading state constitutionalinstruments of thetime. 158Justice has,
atleast sincethetimeof Aristotle, been associated with proportionality.Althoughthe Preamble does
not contain independently operative grants of power, it nonetheless provides important
background for understanding constitutional purposes relevanttotheinterpretation of theoperative
provisions that follow. Similarly, thereareallusions to proportionality in the Federalist Papers,
wherethe constitutional design is described more generally as aimed to producea wiseand wellbalanced government for a free people in a way that will help controlabuses and avoid
theexerciseof arbitrary and vexatious powers.
These sorts of commitments to governmentthatis just, and to proportionality in the governments
treatmentof citizens, have deep roots in antecedents totheU.S. Constitution, including the Magna
Carta. The Magna Cartas articles on Amercements plainly expressed a demand for
proportionality in theimposition of fines other provisions of the Magna Carta called for justice
to be provided through thelaw courts.159 As Dick Howard has shown, the Magna Cartas
influence was feltin theAmerican colonists demands for recognition of their rights as English
citizens in accordance with colonial charters; theinfluenceof the Magna Cartaand theEnglish
Billof Rights is further reflected in founding period state constitutions, in requirements that no
crueland unusual punishments nor excessive fines beimposed, as wellas in the righttoopen
courts. Both Massachusettss and Virginias post-revolutionary constitutions emphasized
158See A.E. D ICK H OWARD , T HE R OAD FROM R UNNYMEDE : M AGNA C ARTAAND

C ONSTITUTIONALISM IN AMERICA 454 (1968) ([N]o free government, or the blessings of

liberty, can be preserved toany people, but by a firm adherenceto justice, moderation,
temperance, frugality, and virtue, and by frequent recurrenceto fundamental principles.
(quoting V A . D ECLARATION OF R IGHTS 15 (1776))); id. at 458 (Everysubjectof the
commonwealth . . . oughttoobtain rightand justice freely . . . . (quoting M ASS . D ECLARATION
OF R IGHTS 1780 XI)); id. at 459 (A frequent recurrencetothe fundamental principles of the
constitution, and a constantadherencetothoseof piety, justice, moderation, temperance, industry,
and frugality, areabsolutely necessary to preservetheadvantages of liberty, and to maintain a free
government. (quoting M ASS . D ECLARATION OF R IGHTS 1780 XVIII)).
159See Magna Carta, ch. 40 (1215) reprinted in H OWARD , M AGNA C ARTA,supra note 59, at 45

(providing that justiceis to be neither for sale nor denied nor delayed); seealsoid. ch. 39 (stating
thata free man is not be prosecuted except by thelawful judgmentof his peers and by thelaw of
theland).
Page 76 of 104

justiceand

moderationas

among

the

first

virtues

of

the

governments

they

soughttoestablish. Similar requirements areevidentin most modern constitutions in constitutional

democracies, and even when notexplicit, the goalof proportionality is implicitin any constitution
thataims to produce justice by limiting as wellas empowering government.
Proportionality bears a special relationship to governmentin a constitutional democracy. For an
essentialideaof constitutional democracy is thatin confrontations between citizens and
government, governmentis restrained and avoids oppressiveand arbitrary action. The means
toachievethis goalare varied, but requiring proportionality of action is one way in which
theideaof limited governnment can be realized. Second, constitutional democracies legitimacy is
based on accountability tothe people, including but notlimited to majoritarian consent. Elections
provideone sourceof accountability, butensuring that government has justified reasons for action
(whether legislativeor executive) helps promoteaccountability on an onging basis.Third,
constitutional democracies are notonly limited governments; they aregovermentslimited by a
commitmentto fundamental human equality. Itis on that commitmenttothe normativeequality of
all members of the polity that democratic self-governance rests. Recognizing each person as
endowed with a quality of humanity equally deserving of respectarguably calls for reasoned
justification for theimposition of special burdens or intrusions.
Recognizing proportionality as a goalof constitutional government does not necessarily imply
that judicial review is the best method for achieving proportionate decision making. For
example, McCulloch v. Maryland concluded thatthe principal protection againstabusivetaxation
is thelink between representation and thetaxed constituency. Legislators and executiveactors may
beunderstood ordinarily to haveobligations toact proportionately, even if thoseobligations are not
justiciable. What, then, is the roleof judges in implementing the constitutional valueof
proportionality? I consider this question firstoutsidetheUnited States and then within it.

Proportionality Elsewhere: TheUnited States in Comparative Perspective

Page 77 of 104

Having suggested thatthe principleof proportionality is partof theU.S. Constitution, Iturn now to
proportionality as a structured doctrine developed in the post-World War II period in Germany,
Canada, Israel, and elsewhere. Although thereare differences in doctrinalterms and applications
among different courts, for purposes of comparison toU.S. approaches, I focus primarily on
Canada, drawing from other jurisdictions toillustrate particular points. In 1982, after along public
process, Canadaadopted as partof its constitution the Charter of Rights and Freedoms, which in
Section One guaranteed the rights set forth therein subjectonly to such reasonablelimits
prescribed by law as can be demonstrably justified in a freeand democratic society. 160 This
provision may be referred toas a limitations clause becauseit recognizes thatrights may
belimited by strong enough reasons, or as a savings clause, because statutes
otherwiseinfringing on rights may be preserved from invalidation by meeting the standards of
Section One. Canadian doctrine has developed a proportionality testto determine whether this
standard is met.Limitations clauses in other countries havealso been understood toinvite courts to
review the justifications for governmentaction through proportionality analysis.
In Canada, when governmentaction is challenged as violating a Charter right, the challenger
bears the burden of showing a rights infringement, and Canadian judges firstinquireintothe
scopeof theinterests thatthe right protects. In so doing, the courttypically adopts a generous view
of the scopeof whatis protected by the right. The courtthen considers whether the government
has shown thatitis acting under clear legalauthority and for reasons thatare pressing and
substantialin a freeand democratic society; if not, inquiry is atan end. If theinfringementof
rightis pursuantto governmentaction authorized by law and has a pressing and substantial
purpose, the Courtthen considers whether the government has shown thatthe challenged action is
demonstrably justified.
Atthis justificatory stage, the courts employ athree-partinquiry, focusing on themeans used
toadvancethe governments purposeand asking whether
(1) the means chosen are rationally related tothelegitimateobject;
(2) the means chosen minimally impair protected rights; and
160Canadian Charter of Rights and Freedoms 1, PartIof the Constitution Act,

1982, being Schedule B tothe CanadaAct, 1982, c. 11 (U.K.).

Page 78 of 104

(3) the benefits towards achieving the governments objectiveare sufficientto warrantthe harm
tointerests protected by rights (a step called proportionality as such). The rationality step is
similar toU.S. rational basis review. Although this elementis normally found to be satisfied,
in Oakes the Canadian Supreme Court concluded thata rebuttable presumption thatone who
possessed any amountof a drug was alsotrafficking in the drug was not rational.
If the statuteis found (as mostare) to bea rational means of advancing the governments
purpose, the courts goon to consider whether itimpairs the right as littleas reasonably possiblein
order toachievethelegislativeobjective. This minimalimpairment step has sometimes been
described as a cognatetesttotheU.S. least restrictivealternative requirementin strict scrutiny;
this second step is sometimes described in scholarly literatureas a necessity test. 161 However,
the minimalimpairmenttest does not necessarily imply thatif any less restrictiveapproach can
beimagined, thelaw is invalid; the government is not required to pursuetheleast drastic means of
achieving its objective, solong as it adopt[s] a measurethat falls within a rangeof
reasonablealternatives. The Canadian courts willlook to see whether thereis an obvious and
workablealternative, sometimes drawing on approaches already in use by governments, as in a
recent

caseinvolving

procedures

for

secretevidencein

immigration

proceedings. Chief

JusticeMcLachlin has emphasized thatthe important point is whether proposed alternative (and
less rights-impairing) means would be less effective in advancing the governments goal.162
161Stone Sweet& Mathews, supra note 37, at 75, 78-79 (describing, generically, the steps of

proportionality analysis).
162Quebec (Atty Gen.) v. A., [2013] 1 S.C.R. 442; see supra note 87.Quebec (Attorney

General) v. A. involved a Charter challengeto Quebecs failuretotreat de facto marriages as

carrying the full rangeof property rights and supporton termination as did formalized marriages
or civilunions. Four justices found no violation of Charter equality rights; five justices found a
violation of Section 15 equality rights. However, Chief JusticeMcLachlin (oneof the five)
concluded thatthe statute could nonetheless be salvaged under Section 1. For Chief
JusticeMcLachlin, the goalof the Quebec scheme was choiceand autonomy for all Quebec
spouses . . . to structuretheir relationship outside . . . the mandatory regimeapplicableto married
and civilunion spouses, [2013] 1 S.C.R. 435 (McLachlin, C.J.), supported by considerations of
federalism, id. 439-49; seeid. 447 (describing Quebec as seeking to maximiz[e] autonomy
and choice). Threeother justices who found a Section 15 violation would haveupheld all butthe
support provisions under Section 1. JusticeAbella, whoalone found noneof theequality violations
to be justified under Section 1, disagreed with the Chief Justiceas to minimalimpairmentand
proportionality as such, see id. 358-80 (Abella, J., dissenting) (arguing thatan optout
Page 79 of 104

In cases involving more polycentric interests, minimalimpairment scrutiny can allow

considerablelatitudetolegislative choices. In Edwards Books, the Canadian Supreme Courtupheld
an Ontario statuteestablishing Sunday as a common day of recreation in which most retail
businesses had to close. The statute had an exception for employers who closed for Sabbath on
Saturday and had fewer than seven employees working on Sunday, but severalOntario retailers,
including someowned by observant Jews, challenged the statute. They argued thatthe
differentapproach taken in New Brunswick was less impairing of religious freedom rights; New
Brunswick provided an exemption for any retailer with a sincere religious belief thatit needed to
closeon a day other than Sunday. The Court was not persuaded that New Brunswicks approach
was less impairing: New Brunswick madetheexemption available regardless of the number of
employees, butOntario did not requiretheemployer to claim a sincere religious belief. Soa small
shopkeeper employing observant Jews could benefit from theexemption regardless of
theemployers beliefs. Likewise, the Court found, another proposed alternativeallowing an
exemption to beinvoked by individualemployeeswas not necessarily more minimally
impairing, becauseof subtle social pressures on employees nottoassert such claims. Given the
complexity of the rights-holders interestsas owners, employees, and consumersthe Court
could not concludethatoneapproach was less impairing of rights than another; theinfringementon
religious freedoms was found not disproportionatetothelegislatures objective; and soOntarios
law stood.
Thelast stageof analysis is sometimes called proportionality as such. In this phase, the
courtasks whether the governments reasons for regulating and the degreeto which they arelikely
to be served can justify the harm to constitutionally protected interests. By going beyond
rationality and minimalimpairment, the proportionality as such test can makethe doctrine more
approach, with presumptiveapplication of the same rules to de factoas to formal marriage, was
less impairing becauseit would better protecttheeconomically vulnerable partner and would
equally advancethe purpose). Their disagreement may illustratethe significanceof how the
governments purposeis articulated. For JusticeAbella, the goal was simply freedom of
choice, id. 358, a goalthat could be served as well, with less harm totheeconomically weaker
partner, by theopt-outapproach, id. 377-79. On the risks of accepting maximization as partof
a government goal, see Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2
S.C.R. 567, 147, 149 (Abella, J., dissenting); and id. 195 (LeBel, J., dissenting). These
disagreements might beunderstood as about defining the government purpose, or as about whata
reasonablealternative is for minimalimpairment purposes.
Page 80 of 104

rigorous than U.S. strict scrutiny, which ends after the least restrictive means test. In Oakes,
Chief Justice Dickson explained that:
Somelimits on [Charter] rights and freedoms . . . will be more serious than others in terms of
the natureof the rightor freedom violated, theextentof the violation, and the degreeto which
the measures which imposethelimittrench upon theintegral principles of a freeand democratic
society. Even if an objectiveis of sufficientimportance, and the firsttwoelements of the
proportionality testare satisfied, itis still possiblethat, becauseof the severity of the deleterious
effects of a measureon individuals or groups, the measure will not be justified by the purposes
itis intended to serve. The more severethe deleterious effects of a measure, the
moreimportanttheobjective must beif the measureis to be reasonableand demonstrably
justified in a freeand democratic society.163
Minimalimpairmentanalysis is defined by the scopeof the governments objective; only
proportionality as such takes fullaccountof the severity of the deleterious effects of a
measureon individuals or groups.
Canadian cases rarely turn on this third step, generally finding laws unconstitutionalon
minimalimpairment grounds. Other jurisdictions, however, sometimes find thata statutethat
passes minimalimpairment nonetheless fails proportionality as such. In Germany, for example,
proportionality as such has been used moreoften than in Canada.
While proportionality review requires an initial determination of whether the governments
purposeis

sufficiently

importantto

warrant

restricting

rights

atall,

in

the

final

stagethe relative strength of thatinterestis evaluated in relation tothe specific harm to rights; the
greater theintrusion on rights, the greater must bethe need and justification for the challenged
measure. Consider an example from Israel, whose caselaw sometimes adopts a particularly
rigorous form of analysis of this last prong. In theBeitSourik case, theIsraeli High Courtof
Justice found thatthe government had alegitimate purposein building a fenceto protectIsraelis
from violentattacks from occupied territory. The Court found thatthe governments choice for the
fencelocation, near thetop of a mountain, was a rational step towards the goals of surveillanceand
163R. v. Oakes, [1986] 1 S.C.R. 103, 139-40 (Can.) (emphasis added).
Page 81 of 104

protecting security forces and travelers on a nearby highway. Theline drawn was also minimally
impairing of the rights of Palestinians fenced off from their lands because noother route could
achievean equivalentlevelof security. The courtexplained thata less restrictive means referred
only

toan

alternativethatequally

advances

thelaws

purpose

whileintruding

less

on

rights.109 However, the Court held, the fence had to be moved toaless elevated location,
allowing Palestinians moreaccess totheir lands, becausetheinitiallocation failed the final,
proportionality as such test: the marginalimprovementto securityand protection of thelifeof
theIsraeli civilianfrom thelinethatthe military chose, as compared toalinein alower location,
was, in the Courts view, far less than the marginally greater intrusions on Palestinian
humanitarian rights.
Not surprisingly, theU.S. caselaw on less restrictive means sometimes obscures the distinction
between less restrictive means thatareas effectiveand thosethatare not, in part becauseof
theabsenceof any separateanalysis of proportionality as such. Differing formulations can elide
whether a less restrictive means must beonethatachieves equivalent progress towards the
governments legitimate goal. Indeed, U.S. courts referring to least restrictivealternatives tend
notto specify whether this analysis requires thatthe measures being compared equally advance
the compelling governmentinterest. In United States v. Alvarez (the Stolen Valor Act case), the
plurality accepted thatan online databaseagainst which false claims could be checked was less
restrictivethan a criminal prohibition on lying about receiving the Medalof Honor. Theanalysis
leftunclear whether the plurality had concluded thata database would be equally effective in
carrying outthe governments legitimately relevantinterests, or instead thateven if the database
wereless effective, the database would bea sufficientalternative given the relatively greater
importanceof free speech concerns.Similarly, in McCullen v. Coakley,164 theU.S. Court, in
concluding thatathirty-five-foot buffer zone was not sufficiently tailored toachievethe
governments legitimate goalof maintaining public safety and preserving access toabortion
clinics,

leftunclear

whether

there

wereequally

effectivealternatives

or

whether

the

marginaladditional benefittowards the governments goalunder the statute, as compared

toalternatives, was unjustified in lightof the degreeof intrusion on rights. By contrast, the

164134 S. Ct. 2518 (2014).

Page 82 of 104

relativeimportanceof the rights and values at stake can be distinctly evaluated in structured
proportionality analysis atthe proportionality as such stage.
A striking featureof Canadian jurisprudence has been the stability of the proportionality
doctrineand its utility as a method for a structured decisionalanalysis in which the Justices
generally focus on the same questions in the sameorder. (As we shall see, Canadian concerns for
proportionality are found notonly in formal Section 1 analyses butalsoin definitions of the
scopeof certain rights).Although thethree doctrinal components of proportionality review of
means are similarly framed in most jurisdictions thatusethe doctrine, theseelements may
beapplied somewhat differently by different courts or judges. Nonetheless, proportionality
doctrine

has

shown

itself

capableof

providing

stable

framework

across

many

controversialissues, in jurisdictions widely recognized as freeand democratic constitutional

states.
10.2 ACANADIAN COMPARISION
For comparison, lets turn briefly toa recent Canadian decision165 concerning the Canadian
Charters constitutional protections of the rightto be secureagainstunreasonable search or
seizure and the right notto bearbitrarily detained or imprisoned. In Aucoin, a Canadian
policeofficer madeatraffic stop becauseof alicense plateirregularity; on questioning the nineteenyear-old driver, theofficer found that he had consumed alcoholin violation of traffic laws
prohibiting new drivers from drinking. Having decided to givethe driver aticket, theofficer also
decided to placethe driver in the back of the police car while he wroteup the citation. For safety
reasons, theofficer conducted a pat-down search before putting the driver in the back of the
patrol car and during that search discovered illegal drugs. The parties and the Courtagreed
thattheinitial detention of the driver in thetraffic stop was lawful. The question was whether the
decision to putthe driver in the back seatof the patrol car was a reasonableexerciseof theauthority
to detain.
In the Canadian Courts words, theissue was not whether there was authority to detain, but
whether theofficer was justified in exercising theauthority as hedid.It was the shiftin the
165R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408 (Can.)
Page 83 of 104

natureand extentof . . . detention for two relatively minor motor vehicleinfractions that
created the constitutional violation.166 Placing the driver in the back seatof the police car,
especially with theaccompanying pat-down, increased restrictions on theappellants liberty
interests . . . [and] altered the natureand extentof theappellants detention in a fairly dramatic way
especially when one considers thattheinfractions for which he was being detained consisted of
two relatively minor motor vehicleinfractions. Given the minor character of theoffense, the
decision to detain in the car did not meetthetestof being reasonably necessary under allthe
circumstances, and sothe detention and accompanying pat-down were not constitutional. The
Canadian Court was unanimous in this holding.199
Canadian law thus adopts an alternativeapproach, insisting on a more case-by-caseapproach
toexamining whether a policeauthority has been exercised in a reasonableand proportionate
way. A comparison with Atwater suggests that some form of moreindividualized proportionality
analysis may produce decisions thatare both better reasoned andmore protectiveof rights than the
categoricalapproach employed by theU.S. Court.

CHAPTER 11
11.1

IS THE SUPREME COURT DISPROPORTIONATELY APPLYING THE

PROPORTIONALITY PRINCIPLE?
Substantive review has always been considered an anathemain judicial review proceedings.
When Lord Denning, M.R. stated:
"I go further. Notonly must he be given a fair hearing, butthe decision itself must be fair and
166Aucoin, [2012] 3 S.C.R. 34.
Page 84 of 104

reasonable."
On appealLord Chancellor and Lord Brightman lost noopportunity to rebuke such a proposition
on the ground thatit wentagainstthe well-established principles of judicial review viz. that
judicial review is not concerned with the decision but with the decision-making
process.167 Traditionally in Indiaas wellas in England, courts haveexercised self-restraintin
reviewing the substantive contentof the decision rendered by an administrative body. In England,
however, it seems thatonly with theadventof the Human Rights Act, 1998 (HRA) this proposition
has become bleary with courts and commentators alike grappling to cometoterms with the
proportionality test.
With theintroduction of the HRA, itis said thatthe British system stands "atan intermediate stage
between parliamentary supremacy and constitutional supremacy" and even though "Parliament
remains the sovereign legislature" itis aptto say that "the common law has cometorecogniseand
endorsethe notion of constitutionaland fundamental rights".168 The proportionality testis a
consequenceof

such

constitutionalism.

Itensures

that

Stateaction

is

not

disproportionatetothelimitation of a constitutional right.

Thethemeof this article relates tothe doctrineof proportionality and its application toArticle 14 of
the Constitution. In particular the decision of the Supreme CourtinOm Kumar v. Union of
India169 and its effecton subsequent decisions will beextensively dealt with. However,
beforethatitis imperativethatone details the common and well-treaded ground.
11.2 WEDNESBURY REASONABLENESS: AGROUND FOR JUDICIAL REVIEW
In Associated Provincial Picture Houses Ltd. v. WednesburyCorpn.170 Lord Greene, M.R. in
a classic and oft-quoted passage held that when a statute gave discretion toan administrator
totakea decision, the scopeof judicial review would remain limited. He said thatinterference was
167Chief Constableof North Wales Police v. Evans, (1982) 1 WLR 1155 at pp. 1160 and 1174
168 InternationalTransport GmbH v. Secy. of State for the HomeDeptt., 2002 EWCACiv 158 at

para 71 per Laws, L.J. Seehowever, Lord Irvine: "TheImpactof the HRA: Parliament, the Courts
and theExecutive", (2003) PL 308 at 310. The former Lord Chancellor does notendorsethis view
and considers thatthe HRA was "crafted as a settlement" and represents the "reconciliation of
effective right protection with parliamentary sovereignty"
169(2001) 2 SCC 386 (per Jagannadha Rao, J.)
170 (1947) 2 AllER 680 (CA)
Page 85 of 104

not permissibleunless oneor theother following conditions were satisfied viz. theorder was
contrary tolaw, or irrelevant factors were considered, or relevant factors were not considered or
the decision was onethat no reasonable person could havetaken. The pertinent question then is
whois a reasonable man? As correctly pointed out by Justice M.N. Venkatachaliahin G.B.
Mahajan v. Jalgaon Municipal Council171 thetestof a reasonable man or "the man on
theClaphamomnibus"

as

known

in

thelaw

of

torts

is

notapplicablein

cases

of

Wednesburyunreasonableness. Hencein condemning unreasonableadministrativeaction the

courtinquires whether the decision is one which a reasonable body could have reached. In other
words, the courtallows somelatitude for the rangeof differing opinions which may fall within the
bounds of reasonableness.
Itis submitted thatthelatent defectin theWednesburytestis its acceptanceof degrees of
unreasonableness i.e. a particular person may find the decision unreasonable butthatis notenough
for the courtto strike down an administrativeaction. Itis however only in thoseextremeand limited
cases of unreasonableness i.e. where no reasonable person can find the decision reasonable, does
Wednesbury permitthe courttointerfere with the decision.
Meaning of proportionality
According to De Smith, Woolf and Jowellon Judicial Review of AdministrativeAction,
therearethree principal formulations by which proportionality is tested.
The principleof proportionality evaluates twoaspects of a decision:
(1) whetherthe relative merits of differing objectives or interests wereappropriately weighed or
"fairly balanced"?
(2) whetherthe measurein question was in the circumstances excessively restrictiveor inflicted an
unnecessary burden on affected persons?
11.3 SUPREME COURT ON PROPOTIONALITY

171(1991) 3 SCC 91 at 110

Page 86 of 104

It must be clarified that noneof the decisions thatare referred toin this section can be considered
tolay down per se thatthe proportionality test (as is known in theEuropean human rights context)
apply in India. However, these cases areessentialin one sensethey gave supporttothe Supreme
Courtin Om Kumarin explaining the natureand functioning of the proportionality testin India. It
may perhaps seem coincidentalthat proportionality has only been analysedin the contextof
misconductin service matters in India.
In Bhagat Ram v. Stateof H.P.172 a forest guard allowed K to cut 21 trees (17 in forestland and 4
in privateland of K). K paid compensation for theillegal felling buta disciplinary inquiry was
initiated againstthe forest guard for (i) illicit felling of trees causing loss tothe Government, and
(ii) negligencein performing his duties. He was removed from serviceafter charges were proved
against him. The High Court dismissed his writ petition. On appealthe Supreme Courtobserved
that
"the penalty imposed must be commensurate with the gravity of the misconduct, and thatany
penalty disproportionatetothe gravity of the misconduct would beviolativeof Article 14".
Thereforea minor penalty was ordered keeping in view the natureof misconduct, gravity of
charges and no consequentialloss.
In RanjitThakur v. Union of India a signalman in theArmy was already serving a 28-day
punishment for insubordination. During this period he refused toeat his food even though directly
ordered to do so. This further actof insubordination made his Commanding Officer try him for
summary court martial. He was subsequently removed from service. The High Court dismissed
his writ petition. The Supreme Courtafter referring toLord Diplock's classic statementon judicial
review in Council for Civil Services Union v. Minister of CivilServiceand Bhagat Ramheld:
Thata sentence should not beso disproportionatetotheoffenceas to shock the conscienceand
thatthe doctrineof proportionality would ensurethatif a decision of the courteven as to sentenceis
an outrageous defianceof logic, then it was notimmune from correction.

172(1983) 2 SCC 442

Page 87 of 104

Sorabjee has argued thatthe decision in RanjitThakur10 "lays the seeds of the proportionality
principlein Indian administrativelaw without recoursetoany constitutionalprinciple".However, on
the contrary it seems evidentthatin view of theextremely limited scope for judicialintervention
viz. wherethe decision shocks the conscienceof the Courtor is in outrageous defianceof logic, the
Supreme Court was applying theWednesburytestin the guiseof referring toitas "proportionality".
This view has subsequently been endorsed by Jagannadha Rao, J. in Union of
India v. GanayuthamIndeed

the

Supreme

Courtin Stateof A.P. v. McDowell&

Co.still

considered "theapplicability of the doctrineof proportionality in theadministrativelaw sphere ...

debatable".
In Ganayuthama Centralexciseofficial was charged for substantialloss of revenuetothe
Government dueto his misconduct. Subsequently he retired and a penalty was imposed by the
disciplinary authority of withholding 50% of his pension and gratuity. On judicial review the
punishment was interfered with on the ground thatit was too severeand should be restricted. The
Supreme Courtallowed thatappealand held thatonly "in exceptionaland rare cases" wherethe
"punishmentimposed by the disciplinary authority shocks the conscienceof the court" can the
courtinterfere

with

thepunishment.However,

the

Courtin

that

case

went

further

toanalysetheapplicability of the doctrineof proportionality in Indian law butleftopen theissue

whether courts willapply the principles of proportionality whereadministrativeaction affects
fundamental rights.
Om Kumar caseis an unfortunate partof the Skipper Construction fiascoin Delhi. Briefly stated,
departmentalinquiries wereinitiated against certain officers of the Delhi DevelopmentAuthority
(including Om Kumar) who were connected with theland allotmentto Skipper Construction,
which subsequently went bustafter defrauding thousands of investors. After the penalties had
been imposed on theseofficers, the Supreme Court by an order dated 4 May, 2000 proposed to
reopen theissueof quantum of punishment meted outtotheseofficers. Itis in this contextthatthe
principleof proportionality was analysed.
It must be clarified thatthe main issueatthe forein Om Kumar3 was theapplicability of the
principleof

proportionality

with

respecttoArticle

14

of

the

Constitution

of

India.

JusticeJagannadha Rao held thatthe principleof proportionality already applied tolegislation and
Page 88 of 104

administrativeorders when challenged as violativeof Articles 19 and 21 of the Constitution of

India.In Om Kumar3 after due deliberation, JusticeJagannadha Rao concluded that:
". Administrativeaction in Indiaaffecting fundamental freedoms has always been tested on
theanvilof 'proportionality' in thelast fifty years even though it has not been expressly stated
thatthe principlethatis applied is the 'proportionality' principle."
Atthis juncture we mustthereforeexaminethe natureand ambitof Article 14 and scrutinise how the
courts decide claims said to beviolativeof this fundamental rightand thereafter seeif the courts in
Indiaask the same questions as their European and English counterparts. Theapplicability of the
proportionality test when Articles 19 and 21 areengaged is beyond the scopeof this article.
11.4 ARTICLE 14 AND PROPOTIONALITY
Article 14 states as:
The State shall not deny toany person equality beforethelaw or theequal protection of thelaws
within theterritory of India.
Before proceeding further, itis vitalto comprehend thatthe structureof an article cannot be
considered determinativeof the fact whether proportionality may or may notapply.
Recoursemustalso betaken to see how the courts interpretand apply the said article. In other
words, just becausean articleappears to be drafted in "absoluteterms" does not conclusively mean
that courts apply "merits review" only.
A striking exampleis Article 14 of theEuropean Convention on Human Rights. Itappears to be
drafted withoutany limitation whatsoever but does that mean thatthe principleof proportionality
does notapply tothe said article? On the contrary, it has been held that for the purposes of Article
14 of the Convention a differenceof treatmentis discriminatory if it "has noobjectiveand
reasonable justification", thatis, if it does not pursuea "legitimateaim" or if thereis nota
"reasonable relationship of proportionality between the means employed and theaim soughtto
berealised". In Abdulaziz v. United Kingdom theEuropean Courtof Human Rights (ECHR) held
thatthe Government's responsein refusing permission tothe husbands of women settled in
Page 89 of 104

theUnited Kingdom was withoutany reasonableand objective justification and that "there had
been discrimination on the ground of sex, contrary toArticle 14, in securing theapplicants' rightto
respect for family life, theapplication of the relevant rules being disproportionate tothe purported
aims".
Similarly in India, Article 14 of the Constitution is applied by the courts in the following manner:
There shall be no discrimination except (i) wherethe classification is founded on intelligible
differentia, and (ii) such differentia must havea rational nexus totheobject soughtto beachieved
by theAct.24
This is fundamentally how a Stateaction would be challenged as being discriminatory under
Article 14.
The "activistapproach" of Article 14
In 1974, the Supreme Courtin E.P. Royappa v. Stateof T.N.formulateda "new dimension"
toArticle 14. Bhagwati, J. after observing that "from a positivistic pointof view, equality is
antithetic toarbitrariness" held that "wherean actis arbitrary, itis implicitin itthatitis unequal both
according to politicallogic and constitutionallaw and is thereforeviolativeof Article14". This
"activistapproach" crystallised further in Maneka Gandhi173 whereBhagwati, J. justified his
approach inRoyappaon the basis that "equality is a dynamic concept with many aspects and
dimensions" thereforeit "must not be subjected toa narrow, pedantic or lexicographic approach".
Hence "an essentialelementof equality or non-arbitrariness pervades Article 14 likea brooding
omnipresence".
In subsequent cases, the purposeof this "new dimension" of Article 14 has been described as to
"strikeatarbitrariness in Stateaction and ensure fairness and equality of treatment" 174which
"immediately springs intoaction and strikes down Stateaction " and is therefore considered to
bethe "golden thread which runs through the wholeof the fabric of the Constitution".175
173Maneka Gandhi v. Union of India, (1978) 1 SCC 248 at pp
1743-84, para 7
175RamanaDayaram Shetty v. InternationalAirportAuthority of India, (1979) 3 SCC 489 at 511
Page 90 of 104

Thereis obviously thelogical fallacy of equating arbitrariness with equality.176 A striking

exampleof the fallacy in equating arbitrariness with equality is given by T.R. Andhyarujina:
"The Queen in Alicein Wonderland acted quite capriciously when sheordered anyone's 'head to
betaken off' whoirritated her butthere was no question of her acting unequally. Similarly, one can
act quite 'arbitrarily' toa person or body without violating any conceptof equality as when
permission is refused toa soleapplicanton the ground thattheapplicant has red hair. No caseof
inequality alsoarises if alltheapplicants have red hair and are capriciously refused permission on
the ground thatthey have red hair. Itis only when permission is refused capriciously on the
ground that some have red hair and is granted toothers becausethey have black hair thata
question of unequaltreatmentarises, in which caseitis theold theory of theabsenceof a rational
reason for the distinction madethat comes intooperation."177
So "all-embracing" has judicial scrutiny been that Sir William Wade has observed thatthis
"highly imaginativeinterpretation" may be compared "with the discredited policy of theAmerican
Supreme Courtin the 1930s when itinvented the doctrineof substantive due process".178
Putting the brakes on the "activistapproach"
Conscious of the criticism tothis "dynamic conceptof equality" the Supreme Courtin recenttimes
has tried to diluteits effect. In G.B. Mahajan v. Jalgaon Municipal Council5 a schemeof
financing of a project by the Municipal Council contemplating a "developer" was challenged as
arbitrary and unreasonableand thereforeviolativeof Article 14. In this context Justice M.N.
Venkatachaliahobserved thatthe Courtis notto decide such cases by using thetestof a reasonable
man

or

"the

man

on

theClaphamomnibus"

but

by

applying

thetestof

Wednesburyunreasonableness.

176Ajay Hasia v. Khalid MujibSehravardi, (1981) 1 SCC 722 at p. 741, para 16

177 See a moreelaborate discussion on this pointin H.M. Seervai: ConstitutionalLaw of India,

4th Edn., 1991 at pp. 436-42

178Public Law in Britain and India, Tripathi, 1992 at pp. 41-42; quoted by T.R. Andhyarujinain

"Evolution of the Due Process of Law" in Supreme But NotInfalliable (Oxford, 2000) at p. 209
Page 91 of 104

The Supreme Court was clearer on this pointin Stateof A.P. v.McDowell15. Therethe
constitutional validity of theA.P. Prohibition Act, 1995 was challenged as it "arbitrarily"
prohibited the manufactureand production of liquor (amongstother grounds). Justice B.P. Jeevan
Reddy succinctly stated:
"Noenactment can be struck down by just saying thatitis arbitrary or unreasonable. ... Itis
onething to say thata restriction imposed upon a fundamental right can be struck down if itis
disproportionate, excessiveor unreasonableand quiteanother thing to say thatthe court can strike
down an enactmentif itthinks itunreasonable, unnecessary or unwarranted."
However, the remnants of the practiceof challenging statutes on the ground of "arbitrariness"
stilllinger. In MalpeVishwanathAcharya v. Stateof Maharashtra179 the Bombay Rents, Hoteland
Lodging House Rates ControlAct, 1947 was held to be "arbitrary" but was not struck down as
theAct was duetolapsein a few months. Recently, the Supreme CourtinMardia Chemicals
Ltd. v. Union of India180 struck down Section 17(2) of theSecuritisationAct, 2002 which provided
for a pre-depositof 75% of theamount claimed beforean application can be preferred by the
borrower tothe DRTon the ground thatit was unreasonableand arbitrary.
Conclusions drawn regarding Article 14 in Om Kumar
In Om Kumar3 JusticeJagannadha Rao cametothe conclusion that "when administrativeaction is
attacked as discriminatory under Article 14" the "courtis applying proportionality" but when
"administrativeaction is questioned as arbitrary, the principleof secondary review based on
Wednesbury principles applies".181
It has been seen abovethatthe discriminatory testunder Article 14 of the Constitution is very
similar tothetestused by ECHR under Article 14 of theEuropean Convention, thereforethe first
partof JusticeJagannadha Rao's observations is indeed correct. However, it may well beargued
thatthe second partis unaptin principle. Fundamentally, thereis a distinct differencein using
179(1998) 2 SCC 1
180 (2004) 4 SCC 311 at 354
181(2001) 2 SCC 386 at para 68
Page 92 of 104

theadverb "arbitrarily" which is used in conjunction with a fundamental right such as "arbitrarily
deprived of liberty"182 and applying the noun, which signifies a fundamental rightof nonarbitrariness.183 Thelatter obviously encompasses alarger areaand is not confined toany particular
fundamental freedom. The reason thatthe Supreme Court could employ the "activistapproach" of
Article 14 in such an "all-embracing manner" is becauseit was not confined or restrained by any
testor limitation. Indeed it was whatthe Courtthought "arbitrary" that could invalidatea
Stateaction under Article 14. G.B. Mahajanand subsequent cases seemed to have diluted this raw
power by adopting the standard of Wednesburyunreasonableness when a Stateaction was
challenged as "arbitrary". Butthatis a job only half done. It would be foolhardy to believethatthe
Court cannotuseits "activistapproach" when applying theWednesburytest. The briefest
glanceatEnglish public law would be sufficientto provethis beyond doubt. Lord Cookeof
Thorndon

has

described

theWednesburytestas

"tautologousand

exaggerated" and

"an

unfortunately retrogressive decision in English administrativelaw, insofar as it suggested

thatthereare degrees of unreasonableness and thatonly a very extreme degree can bring an
administrative decision within thelegitimate scopeof judicialinvalidation".
This strong rebukeis thelogical conclusion of an enduring debate regarding the redundancy of
theWednesburytest. Theimpetus was of course given by Jowelland Lester in 1987.The writers
observed that "justification by referenceto principleis intellectually honest, avoiding as it must
betheobscurity of a vaguetestand openly revealing thetrue reasons for intervention". They
basically argued thattheWednesburytest was faulty on several grounds and advocated
theintroduction of the proportionality test. Primarily, it was urged by them thattheWednesburytest
was unrealistic as the courts hardly applied thetestin theextreme senseit was initially used in.
This obviously allowed judges to "obscuretheir socialand economic preference moreeasily"
under the "bluntWednesburytool". According to Jowell, the courts exercise substantive review in
the guiseof theWednesburytest soas "to cover their tracks by laying false clues and donning
elaborate camouflage". He has thereforeadvocated a moretransparent fourfold proportionality
test viz.:
182In the senseused by ECHR in Winterwerp v. Netherlands, (1979) 2 EHRR 387 and the

Houseof Lords in R. v. Parole Board, ex p Giles, (2003) UKHL 42 at para 3.

183That seems to betheeffectof the decisions from E.P. Royappa onwards
Page 93 of 104

(1) Did theaction pursuealegitimateaim?

(2) Werethe means employed suitabletoachievethataim?
(3) Could theaim have been achieved by aless restrictivealternative?
(4) Is the derogation justified overallin theinterests of a democratic society?184
In

theIndian

context,

the

fourfold

testtherefore

may

arguably

bethe

mostappropriatetesttotacklethe "highly activist magnitude" of Article 14 and oughtto beemployed

in deciding claims where Stateaction is challenged as "arbitrary".
Error in Om Kumar: equating "strict scrutiny with proportionality"
In Om Kumar JusticeJagannadha Raoobserved:
" The developmentof the principleof 'strict scrutiny' or 'proportionality' in administrativelaw in
England

is,

however,

recent.

Administrativeaction

was

traditionally

being

tested

onWednesbury grounds. Butin thelast few years, administrativeaction affecting the freedom of
expression or liberty has been declared invalid in several cases applying the principleof 'strict
scrutiny'. In the caseof these freedoms, Wednesbury principles are nolonger applied."
WhiletheWednesbury principle nolonger applies in England in cases where Convention rights
areinvolved after 2-10-2000, it must be noted thatthe decision in Om Kumaris merely a month
after the commencementof the HRA. Itis trite knowledgethattoovercomethe defectiveness of
theWednesburytestand theever-so-common hauling up by theEuropean Courtof Human Rights
for human right violations led theEnglish courts tousea modified "anxious scrutiny" testas
formulated

by

Lord

Bridgeof

Harwich

in Bugdaycay185and

subsequently

adopted

184J. Jowell: "Beyond the Ruleof Law: Towards Constitutional Judicial Review", (2000) PL 671

at 679.
185Bugdaycay v. Secy. of State for the HomeDeptt., (1987) 1 AllER 940 at 952
Page 94 of 104

in Brind186 In R. v. Ministry of Defence, ex p Smith187 the Courtof Appeal formulated the strict
scrutiny test based upon theobservations of Lord BridgeinBugdaycay48 and Brind49. Thetest
was stated to be:
"The court may notinterfere with theexerciseof an administrative discretion on substantive
grounds save wherethe courtis satisfied thatthe decision is unreasonablein the sensethatitis
beyond the rangeof responses open toa reasonable decision-maker. Butin judging whether the
decision-maker has exceeded this margin of appreciation the human rights contextis important.
The more substantialtheinterference with human rights, the morethe court will require by way of
justification beforeitis satisfied thatthe decision is reasonablein the senseoutlined above."
Itis submitted thateven by applying this strict scrutiny test, the Courtof Appeal could find no
faultin the Ministry of Defence's policy banning homosexuals from thearmed forces. However,
when the case cameto Strasbourg, ECHR noted that:
"Thethreshold at which the High Courtand the Courtof Appeal could find the Ministry of
Defence policy irrational was placed so high thatiteffectively excluded any consideration by the
domestic courts of the question of whether theinterference with theapplicants' rights answered a
pressing social need or was proportionatetothe national security and public order aims pursued,
principles which lieatthe heartof the court's analysis of complaints under Article 8 of the
Convention."
This clearly shows thatthe strict scrutiny test could not beequated to proportionality. Sincethen,
the Houseof Lords has cometorecognisethis and has considered three predominant characteristics
of proportionality. First, the doctrineof proportionality may requirethe reviewing courttoassess
the balance which the decision-maker has struck, not merely whether itis within the rangeof
rationalor reasonable decisions. Secondly, the proportionality test may go further than
thetraditional grounds of review inasmuch as it may requireattention to be directed tothe relative
weightaccorded tointerests and considerations. Thirdly, even the heightened scrutiny test
186R. v. Secy. of State for the HomeDeptt., ex p Brind, (1991) 2 WLR 588 : (1991) 1 AllER 720

(HL)
187(1996) 2 WLR 305 : (1996) 1 AllER 257 (CA)
Page 95 of 104

developed in R. v. Ministry of Defence, ex p Smithis not necessarily appropriatetothe protection

of human rights. Even the recent decision of the Houseof Lords in R. v. BBC, ex p
ProlifeAlliance confirms thatthe "(W)ednesburytest was quite strongly reaffirmed, on a human
rightissuein ex parte Smith".
JusticeJagannadha Raoin Om Kumar3 opined that
principleof "strict scrutiny" or "proportionality" for review of administrativeaction touching
fundamental freedoms, leavingWednesbury principles toapply toother non-Convention cases had
crystallisedin England188
andtherefore had troublein appreciating the ITF decision and considered itto have "deviated both
from proportionality and Wednesbury".189 This may perhaps seem so becauseinITF40 Lord
Slynnobserved that "Wednesbury reasonableness and proportionality in practice may yield the
same result" and Lord Cookeadvocated theuseof a simpler test rather than the "tautologousand
exaggerated Wednesbury".
Itis submitted thattothe contrary, ITF case has never been considered as a "deviation" butan
authority unbottlingalarger issue viz. should proportionality beused as a ground for review in
domestic law in non-Convention cases.
Lord Cooke's subtleattack on Wednesbury has been construed to mean "thatthe separation of
powers principle can be properly respected withoutthe need to castthe (Wednesbury) testin the
very restrictive formatarticulated by Lord Greene". 190The modified testurged by Lord Cookeis
considered to givea "changeof emphasis which would providea moreintensiveand adequate
standard of review".
Moreimportantly, Lord Slynn's remarks in ITF case have now to be read conjointly with his
observations in AlconburyIn Alconbury59 thelearned Law Lord observed:
188 (2001) 2 SCC 386 at p. 407, para 48
189 (2001) 2 SCC 386 at para 50
190P. Craig and S. Schonberg: "SubstantiveLegitimateExpectations after Coughlan", (2000) PL

684 at 695
Page 96 of 104

"Thereis a difference between that principle proportionality and theapproach of theEnglish courts
in the Wednesbury case4. Butthe differencein practiceis notas greatas is sometimes supposed.
The cautious approach of the courts of justicein applying the principleis shown inter alia by the
margin of appreciation itaccords totheinstitutions of the community in making economic
assessments.

consider

thateven

without

referencetothe

1998

Actthetime

has

cometorecognisethatthis principleis partof English administrativelaw, notonly when judges are

dealing with community acts butalso when they are dealing with acts subjectto domestic law.
Trying to keep theWednesbury principleand proportionality in separate compartments seems to
meto beunnecessary and confusing."
It may not beoutof placeto mention thatin a recent Courtof Appeal decision in Assn. of British
Civilian Internees, Far Eastern Region v. Secy. of Defence191 Mr David Pannick, Q.C. argued
on a preliminary point, that proportionality exists as a separate ground of review even in cases
which do not concern community law or human rights protected by theEuropean Convention on
Human Rights. In other words MrPannick relying upon the comments of Lord Cookein Daly41
and Lord Slynnin Alconbury59, argued thatthetime had cometousher in the proportionality
testeven in domestic law. Whilethe Courtof Appeal did rejectthatargumentit, however,
concedingly held:
"We have difficulty in seeing what justification there now is for retaining the Wednesbury test.
But we consider thatitis not for this Courtto perform its burial rites. The continuing existenceof
the Wednesbury test has been acknowledged by the Houseof Lords on morethan oneoccasion."
A fortiori itappears to beabsurd for the courts in Indiato retain theWednesburytest when its
futurein England is so precariously placed.
Post-Om Kumar: losing track

191 (2003) EWCA 473 decided on 3-4-2003 beforeLord Philips, M.R., Schiemannand Dyson,

L.JJ.
Page 97 of 104

Subsequentto Om

Kumar,

the

Supreme

Court

has

decidedRegional

Manager, U.P.

SRTC v. HotiLal192 and Chairman and Managing Director, UCO Bank v. P.C. Kakkar.193
HotiLalwas really a follow-up to Om Kumar. In HotiLalthere was no question of discrimination
in awarding punishment. A bus conductor was found guilty of misconduct for misappropriating
funds by notissuing tickets to passengers. His service was terminated in 1991. A Division Bench
of the High Court, however, setasidethe punishmentand directed the disciplinary authority
toaward any punishmentother than removalor termination of service. The Supreme Courtafter
referring to Ganayutham14 and Om Kumar3 held thatonly in "rareand exceptional cases" should
the High Courtinterfere whileexercising judicial review and thattooonly if the punishment was
"shockingly or grossly disproportionate".194P.C. Kakkar, however, oughtto have been
distinguished by the Supreme Courton the ground thatthe punishment was challenged as
discriminatory. In that case disciplinary proceedings wereinitiated by UCO Bank against P.C.
Kakkar for allegedly committing severalacts of misconduct while functioning as Assistant
Manager. He was placed under suspension from 6-7-1983. On the basis of findings recorded by
theinquiry officer and endorsed by the disciplinary authority an order of dismissal was passed on
16-8-1988. Theappealand review were dismissed. However, the High Courtinterfered with the
matter on the basis thatin a similar situation, lesser punishment was imposed on one M.L.
Keshwanialthough theallegations against him wereof a more serious nature. The High Court held
thatthereoughtto be no discrimination in matters of punishment.
Curiously, even after replicating severalobservations in Om Kumarand also referring to various
other authorities (including RanjitThakur v. Union of India10 and B.C. Chaturvedi v. Union of
India195), the Supreme Court held thata court could notinterfere with the quantum of
punishmentunless it was shockingly or grossly disproportionate.

192(2003) 3 SCC 605 (per ArijitPasayat, J.)

193(2003) 4 SCC 364 (per ArijitPasayat, J.)
194See fn 63 at pp. 613-14
195 (1995) 6 SCC 749
Page 98 of 104

This seems inconsistent with Om Kumar

becauseinstead of analysing whether the

"discriminatory" punishment had any "reasonableor objective justification", the Supreme Court
merely stated its non-interference becauseit was not shown thatthe punishment was "shockingly
or grossly disproportionate". While such a reason may beappropriate (in lightof Om Kumar3)
where decisions are challenged as "arbitrary" ("shockingly or grossly disproportionate" being
equated to "outrageous defianceof logic"), itis atleast completely unwarranted wherea decision is
challenged as discriminatory.
Oneaspectof the decision of the Supreme Courtin Indian Handicrafts Emporium v. Union of
India196 is quite puzzling. Herethe constitutional validity of the 1991 amendmenttothe Wild Life
(Protection) Act, 1972 was challenged as violativeof Article 19(1)(g) as it was nota reasonable
restriction provided by Article 19(6). In effectthe 1991 amendment banned thetradeof imported
ivory. The Supreme Court rightly repelled the challenge by holding theamendmentas a
"reasonable restriction" under Article 19(6). The mystifying partof Justice S.B. Sinha's
judgmentis theone-line paragraph "theamending Actalso satisfy the strict scrutiny test". The false
premiseon which thelearned Judge based this observation is clearly evidentin the connected
caseof BalramKumawat v. Union of India197 In Balram Kumawat70 the primary question
raised was whether "mammoth ivory" would beincluded within theterm "ivory" soas to come
within the purview of prohibited tradeunder the 1991 amendment (presupposing theamendmentto
be constitutionally valid). In this case, Justice S.B. Sinha records thata submission was made by
the counselthatthe doctrineof proportionality should beapplied in his case. Repelling
theargumentand after referring to Om Kumar3, thelearned Judge goes on to hold:
"As indicated in Indian Handicrafts Emporium68 this Court while construing the provisions of
theAct vis-...-vis restrictions imposed in terms of clause (6) of Article 19 of the Constitution of
India has cometothe conclusion thatthe provisions of theamending Acts satisfy even the strict
scrutiny test."
Apparently the mistakeof JusticeJagannadha Raoin Om Kumarin equating strict scrutiny with
proportionality has been perpetuated. The correctapproach oughtto have been to statethatthe
196(2003) 7 SCC 589
197 (2003) 7 SCC 628
Page 99 of 104

doctrineof proportionality is inherentin Article 19 and therefore principles equivalenttothe

proportionality test werealready being applied. Buton the contrary for the firsttimein Indian
constitutionallaw a statute has passed the "strict scrutiny" test when challenged as violativeof
Article 19 even though such statutes have been scrutinisedupon principles equivalenttothe
proportionality test since 1950.
Recently a Constitution Bench in Saurabh Chaudri v. Union of India198 considered the
constitutional validity of reservations based on domicileor institution in the matter of admissions
into postgraduate courses in Government-run medical colleges. Oneof the contentions raised by
the petitioners was that such reservation is prima facie impermissible having regard tothe
constitutional scheme, the same would fall within the purview of "suspected classification" and
thus must pass the "strict scrutiny test" as applied by theUS courts.
Negating theargumentand upholding the validity of such reservation, the majority judgment
delivered by Chief Justice V.N. Khare proceeded on the footing thatthe maxim "ut res
magisvaleat quam pereat" induces a courtto presumethe constitutionality of a statuteand
thereforethe strict scrutiny test could not beapplied in India. In a concurring judgment, Justice
S.B. Sinhaapproached theissue differently and observed:
"MrNariman contended that provision for reservation being a suspectlegislation, the strict
scrutiny test should beapplied. Even applying such atest, we do notthink thattheinstitutional
reservation should be doneaway with having regard tothe present-day scenario. We may
noticethat

such

atest

has

been

applied

for

upholding

statute

recently

in BalramKumawat v. Union of India."

Itis submitted thatthis approach is clearly wrong and is based on a misconceived notion of the
"strict scrutiny" testas applied by theUS courts.
The strict scrutiny testin theUnited States is partof athree-tier standard of review used by theUS
courts in equal protection cases. The mostlenient standard of review is the "rational basis"
review. US courts will first determineif the policy has a "reasonable purpose" or "rational basis"
for being enacted by thelegislature. If theanswer is yes, the policy is deemed to be "legitimate".
198(2003) 11 SCC 146
Page 100 of 104

The court willthen determineif the policy is "reasonably related" toattaining theidentified
legitimateend. If theanswer is yes, the court will go no further and the policy will beupheld.199
Intermediate scrutiny is primarily adopted as a standard of review wherea policy makes a genderbased classification. US courts consider a gender-based classification permissibleif thereis an
"exceedingly persuasive justification" for thataction. To meetthe burden of justification, a State
must show "atleastthatthe challenged classification serves important governmentalobjectives and
thatthe

discriminatory means

employed

are

substantially related

totheachievementof

thoseobjectives".200
On theother hand, strict scrutiny is adopted as a standard of review only in cases wherethereis a
suspect classification. A suspect classification occurs when a policy treats people differently
becauseof raceor ethnicity. However, when race-based action is necessary to further a
"compelling governmentinterest", such action has been held notto violatethe constitutional
guaranteeof equal protection solong as the narrow tailoring requirementis also satisfied.
Seen in this light, itappears self-evidentthat domicileor institutional reservation in Saurabh
Chaudri73 was not based on raceor ethnicity and therefore could not be considered as a suspect
classification. It would follow as a natural consequencethatthe strict scrutiny test could not
beapplied by the Supreme Court (even if assuming that such atest was atallapplicablein India).
Sinha, J. seems to haveobfuscated the "strict scrutiny" test (again confused for proportionality)
under English public law as a ground for judicial review with the strict scrutiny testapplied by
theUS courts in equal protection cases. For that matter neither Balram Kumawat70 nor Indian
HandicraftEmporium68 dealt with a matter that could be classified as a suspect classification (as
seen above) and it would therefore not be correctto have held thatthe strict scrutiny test has been
applied for upholding a statutein BalramKumawat.

199 See the classicalexampleof Williamson v. LeeOptical Co., (1955) 348 US 483 wherethe

Supreme Courtupheld alaw granting optometrists but notopticians the rightto replaceeyeglass
lenses, even though opticians were perfectly capableof doing so. Still, the Courtupheld thelaw
becauseit believed a non-insanelegislature might have believed thatoverall, the more highlytrained optometrists might perform this simple function better.
200 See Craig v. Boren, 429 US 190 (1976) and United States v.Virginia, 518 US 515 (1996)
Page 101 of 104

Fresh look
Indeed theanalysis of the judgmentin Om Kumar has proved so cumbersomethatin another recent
decision of Dev Singh v.PunjabTourism DevelopmentCorpn. Ltd.201 the Supreme Court reached
the same conclusion viz. thatthere should be nointerference with punishmentunless itis
shockingly

or

grossly

disproportionate

by

simply

referring

to Bhagat

RamandRanjitThakur. Ganayuthamand Om Kumarare conspicuous by their absencein the

judgmentand it can only be speculated if the Supreme Court has finally realisedthat Om Kumar
and Ganayuthaminsomuch as they refer extensively tothe principleof proportionality in European
human rights law and the "strict scrutiny" testin English public law werea pointless exercise.

201 (2003) 8 SCC 9 at 11-12 per N. Santosh Hegde, J. decided on 2-9-2003

Page 102 of 104

CHAPTER 12
12.1 CONCLUSION
It has been seen that the superior courts in India do apply principles equivalent to the
proportionality test when dealing with claims in which State action is said to be volatile of
Article 14 (except when State action is said to be arbitrary under Article 14). It has been argued
that the proportionality testought to also be used to test State action considered being arbitrary.
Most importantly it seems imperative to appreciate that it is not the form but the substance that
determines the proportionality test. It has been seen that in RanjitThakurthe Supreme Court
expressly approved of the proportionality test but in effect was applying the "irrationality-based
Wednesburytest". Similarly the term "shockingly or grossly disproportionate" can only be
considered to be a product of theWednesburyte stand it would be deceptiveto believet hat the
proportionality test is being applied when courts consider a punishmentto be "shockingly or
grossly disproportionate".
Case-law in India suggests that whereArticle 14 is engaged, proportionality has never been used
in evaluating general policy decisions but has exclusively been considered in cases relating
toexcessiveadministrative sanctions. This latter category is simpler to consider becausethe
penalty serves as a yardstick to compare similar administrative decisions. However, the realtest
for proportionality in theIndian context will be when policy decisions are challenged as
"disproportionate" as opposed to "arbitrary". In such a situation, the Court would haveto
carefully consider whether relevant considerations have been properly weighed or balanced
(possibly by applying the fourfold test) rather than merely chanting the magical word "arbitrary"
to wish away provisions in Acts of Parliament.

Page 103 of 104

BIBLIOGRAPHY

Craig, P.P., Administrative Law (London: Sweet & Maxwell, 1994).

HWR Wade and CF Forsyth, Administrative Law (Oxford: Oxford University Press,
2004).

John Alder, General principles of Constitutional Law and Administrative Law,

(Hampshire: Palgrave Macmillan, 2002).

Justice C.K. Thakkar, Lectures on Administrative Law, (Lucknow: Eastern Book

Company, 2003).

Allan T.R.S., Human Rights and Judicial Review: A Critique of Due Deference, (2006)
65 (3) C.L.J 671.

Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 (1) C.L.J.174.
Justice AnandByrareddy, Proportionality vis--vis irrationality in administrative law,
(2008) 7 SCC J-29.

Mark Elliott, The Human Rights Act, 1998 and the Standard of Substantive Review,
(2001) 60 (2) C.L.J. 301.

Paul Craig, The Courts, The Human Rights Act and Judicial Review, (2001) 117 L.Q.R.
589

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