MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

TERM PAPER SUBMITTED TOWARDS FULFILMENT OF INTERNAL EVALUATION

IN THE SUBJECT OF ADMINISTRATIVE LAW

FINAL DRAFT

PROPORTIONALITY OF ADMINISTRATIVE ACTIONS IN INDIA AND ENGLAND:

COMPARATIVE ANALYSIS

SUBMITTED TO: SUBMITTED BY:

PROF. MILIND GAWAI ATHARVA NIKAM
SECTION- A
ROLL NO: 2019 056

B.A. LL. B. (HONS.), THIRD YEAR, FIFTH SEMESTER

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TABLE OF CONTENTS

1. Introduction ....................................................................................................................... 3

2. India’s Approach to the Proportionality’s Doctrine...................................................... 5

3. England’s Take on the Proportionality’s Doctrine ........................................................ 9

4. Comparative Analysis ..................................................................................................... 13

5. Conclusion ....................................................................................................................... 15

6. Bibliography .................................................................................................................... 16

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1. Introduction

With the exponential development of administrative law and the need to regulate potential
misuse by different administrative authorities of discretionary authority, such concepts have
emerged through the courts. If any conduct by any authority is in breach of the constitution,
inappropriate, unfair or irrational, it can be interfered by a court of law by exercising judicial
review authority. The theory of proportionality is one such way of exercising authority.

The proportionality doctrine finds its origin from Europe. The theory of proportionality was
characterized in European Administrative Law as the most relevant general legal principle. The
theory of proportionality provides that a public body should uphold a sense of proportion
between its specific objectives and the means of achieving those aims in order to minimize the
impact that its activities have on human rights, in the interest of the public. This implies that
administrative measures should be proportionate to the overall intent for which authority was
given.

The consequence of the proportionality principle is to weigh up the regulatory action's benefits
and drawbacks. The court can only uphold the disciplinary action if the balance is favorable.
The administration must weigh the advantages and disadvantages of any decision of impact on
the public and the people. The proportionality theory provides for disciplinary measures to be
abolished if they were disproportionate to the malice to which they were targeted. The actions
taken by the administration must be commensurate with the mission sought. An administrative
body must achieve the correct balance between any adverse consequences its action might have
on the rights, freedoms or desires of individuals, and the aim it is pursuing in the exercise of its
discretionary control. In summary, it implies a sense of proportion to the decision-makers.

Lord Diplock gave the classical definition of proportionality, when his Lordship rather
ponderously stated “you must not use a steam hammer to crack a nut if a nut cracker would
do”. Proportionality thus generally allows government policy to be no more invasive than is
required in order to achieve a significant public goal. But the capacity to set objective
parameters for consideration is the major benefit of proportionality as a mechanism for judicial
review.

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The formulation of administrative law of the theory of proportionality has not been fully and
ultimately solved and remains a debatable issue. Proportionality covers reasonability and sound
common ground. It is an action that should fairly have been taken which should not have been
unreasonable. Proportionality can be described as a principle where the court is “concerned
with the way in which the administration has ordered his priorities; the very essence of
decision-making consists, surely, in the attribution of relative importance to the factors in the
case. This is precisely what proportionality is about.”1

1
U.O.I. v. G. Ganayutham, (1997) 7 SCC 463, 473.

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2. India’s Approach to the Proportionality’s Doctrine

For the first time in the case of Union of India v. G. Ganayutham2, the Indian Court deliberately
considered the implementation of a rule of proportionality. The Supreme Court in this case,
after a thorough examination of the law on wednesbury, concluded that "wednesbury" is the
guiding principle in India, as long as constitutional rights do not apply. However, the Court did
not decide if the proportionality doctrine was to be enforced in cases involving fundamental
rights violations.3

The landmark verdict in Omkumar v. Union of India4 came subsequently from the Supreme
Court. The Supreme Court acknowledged in this case the application of the doctrine of
proportionality in India. Strangely enough, however, in this case, the Supreme Court suddenly
found that Indian courts, as long as they dealt with the validity of laws in relation to laws
violating the fundamental freedom mentioned under Article 19.1 of the constitution of India,
had since 1950 applied the proportionality doctrine regularly. According to the Supreme Court,
in the past Indian courts have also examined whether the limitations are not the least restrictive
of the options, but are not disproportionate to the circumstance.5 Similarly, in relation to laws
which affect Article 14 (as discriminatory) and Article 21 of the Indian constitution.6 The
Supreme Court concluded in the same vein, after a thorough analysis of the situation in England,
with regard to the application of the doctrine of proportionality in administrative actions in
India. The Supreme Court held that in India administrative action affecting fundamental
freedoms has always been checked on the proportionality anvil (Article 19 and Article 21), even
though the concept of proportionality was not explicitly mentioned.7 Therefore, the court
categorically held that the doctrine of proportionality applies to the judicial review of
administrative proceedings which contravene Article 19 and Article 21 of the Indian
Constitution. As regards Article 14 of India's Constitution, the Supreme Court concluded that
the courts must conduct a primary investigation, using the proportionality doctrine, in the event

2
Ibid.
3
Id., p.479
4
AIR 2000 SC 3689.
5
Id., p. 3697
6
Id., p.3698
7
Id.,p.3702.

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of an administrative action being challenged as discriminatory. However, the principle of
secondary examination on the basis of the principle of wednesbury applies if administrative
action is challenged arbitrarily.8 The Supreme Court has also ruled that, under Article 14 of the
Constitution, punishment in service law will usually be questioned in arbitral ways.9 The reason
for this is that no question of fundamental liberty or prejudice under Article 14 is applicable in
certain matters relating to penalties under service law.10

However, no further progress was made even after a decade since the Omkumar verdict. In the
Omkumar’ case (supra), the rule concerning proportionality in India continues. A vague
observation that the doctrine of unreasonability is replacing the doctrine of proportionality can
be the only advance in a few subsequent judgements.11

In India, the scope for the review on proportionality in relation to administrative action is
therefore restricted under the current rule of law, as stated by the Supreme Court. This is
because many administrative measures are questioned in India mostly because of arbitrariness,
and only because it is wednesbury-unreasonable. This can be challenged. In reality, therefore,
in the case of Omkumar the reach of judicial examination in India has not dramatically
improved. There is no justification as such for the Supreme Court to apply the Wednesbury
doctrine to challenges solely under the head of arbitrariness in the case of Omkumar. At least
two explanations for this can be found, however. First, in England the Supreme Court actually
accepted a similar classification, which was only applicable to proportionality analysis if
convention rights were involved and when non-convention rights were involved the
wednesbury principle applied alone.12 Secondly, as Lord Lowry13, if the review threshold were
reduced, the Supreme Court might have expected a docket explosion.

The latter two factors cannot and should never be why a higher and more intensive level of
examination is not allowed. The number of cases will initially rise, but as it becomes clear to
decision-makers that the judiciary adopts a much more in depth revision standard, it will
reassess its decision-making process itself and put its decisions in line with the new revision
standard. As for the former reason, in the application of proportionality, the distinction between

8
Id.,p.3704
9
Ibid.
10
Id., p. 3705
11
See for e.g., Indian Airlines Ltd. v. Praba D. Kanan, AIR 2007 SC 548.
12
Brind v. Secretary of State for the Home Department, (1991) 1 All ER 720, p. 723.
13
Id., p. 739.

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convention and non-convention rights quickly disappears.14 Moreover, there is no conceptual
clear distinction between the Supreme Court based on arbitrariness. The premise behind this
classification is that an arbitrary administrative order can rarely violate or discriminate against
fundamental rights. In most instances, this is obviously wrong. For example, if an employee is
fired for attendance at a religious congregation under the laws of service, the order is not only
unconstitutional, but violates at least two of his constitutional rights, namely freedom of
religion15 and of assembly16. Similarly an administrative act that denies a sufficiently
experienced government official promotion and simultaneously promotes equally positioned
individuals would in itself not only be arbitrary but discriminatory. Secondly, if a plaintiff with
adequate locus standi contests an administrative act as unconstitutional, it only happens when
he has infringed one or another of his rights, which are fundamental, constitutional or common
law. The first challenge before the Court is to decide what form of right has been affected since
the classifications created by the Supreme Court have been adopted. This is not a simple job,
since there might be no clear divisions between fundamental and non-fundamental rights,
particularly if Article 21 of the Constitution of India was itself widely referred to by the
Supreme Court. This job becomes even harder when one recognizes that the normal violation
of many rights is an administrative act. Therefore, the essence of the right is wasted a lot of the
judicial time. Alternatively, the judiciary can be used efficiently to assess whether the policy
maker has adequately managed the interests during his decision-making. It seems obvious that
depending on the topic and the essence of the rights involved, a variable intensity of
proportionality scrutiny may be introduced - based on the principle of judicial deference and
judicial retraction.

The question of whether the administrative action challenged as arbitrary should remain subject
to the wednesbury principle is equally relevant. To do so, the context of the word 'arbitrariness'
is important. In the case of Shrillekha Vidyarthi v. State U.P.17, the word can never be described
precisely. The Supreme Court is therefore equated with ‘arbitrariness’ with ‘reasonableness’18

The decision maker avoids grave judicial scrutiny by combining arbitrariness and wednesbury
unreasonableness. But it's evolving quickly. In several recent cases, proportionality is rapidly

14
See R (AlConbury Developments Ltd.) v. Secretary of State for Enviroment, Transport and Regions, (2001) 2
All ER 929.
15
Article 25 of the Constitution of India.
16
Article 19 (1) (b) of the Constitution of India.
17
AIR 1991 SC 537.
18
Id., p.554.

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replacing the reasonableness found by the Supreme Court itself 19. After all, in a liberal
democratic society, there is nothing wrong if the court considers whether the decision-maker
align the interests equally when taking a decision. In any event, according to the subject matter
and the scope of rights concerned, the intensity of the proportionality analysis varies.

19
See for e.g., State of U.P. v. Sheo Shankar Lal Srivastava, (2006) 3 SCC 276.

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3. England’s Take on the Proportionality’s Doctrine

Two important conceptions or proportionality models have arisen over the last few decades.
The two models can be called tentatively as

I. The British model, or Proportionality Limiting design20 and

II. The European model or Proportionality Optimization 21.

In both models, the Court has to conduct a separate test to decide if a decision is or is not
proportionate.

British Model

In the judgment of the Privy Council in de Freitas v. Permanent Secretary of the Ministry of
Fisheries, Land & Housing22, the UK model as explained by Lord Stynn, in R v. Exparte
Secretariat of the State for the Home Department, Daly23. Lord Clyde used South African and
Canadian jurisprudence for the formulation of a three-stop proportionality assessment when
agreeing on a recourse from Antigua and Barbuda.

A decision is commensurate if:

i. The legislative (or executive) purpose is essential enough for a fundamental right to be
restricted.
ii. The actions to achieve the legislative (or executive) goal are rationally linked with this
goal.
iii. In order to achieve Objective24 the means used to infringe the right or freedoms are
only required.

An interpretation of the above-mentioned trial would demonstrate that the Court's main
objective was to ensure that the decision-making authority took the right decision on the least
intrusive method. In this model, therefore, proportionality does not mean optimizing costs and
benefits, but the pursuit by the most effective (or least intrusive) means of the pre-determined

20
Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 (1) C.L.J.174, p. 176.
21
Ibid.
22
(1999) 1 A.C. 69.
23
(2001) 3 All ER 433 (HL).
24
Supra n. 22 at p. 80.

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goals. It raises no question of the extent of the study, but only in relation to need or productivity
imposes the judicially criticized correctness. This test therefore considers necessity as the final
phase of the balance assessment and removes the balanced element25.

The widespread legal belief that courts exist to shield persons and groups from other branches
of government, namely legislature and the executive, is what this conception of proportionality,
known as the state-limiting concept26. Consequently, courts maintain a legal rights system that
establishes limitations on freedom of action for legislative and executive bodies. In that context,
the exercise of rights is limited only by sufficiently relevant public goals (i.e., first of the tests
described above). This means that valid public purposes are not sufficiently necessary to restrict
rights. The court's task here is to serve as a gate guard. However, any State action rationally
linked to the objective and required to achieve it is justified if an objective is sufficiently
essential to the public (i.e., second and third test described above). The responsibility of the
legislature and of the executive is therefore to achieve important public targets. Everything the
Court does is to ensure that there are no unnecessary costs to rights by maintaining efficiency-
based monitoring to ensure sled hammers are not used to crack nuts or rather, sled hammers are
only used if nut crackers show that they are impotently27. The court must have more latitude in
the requisite test stage to satisfy the decision-margin maker's of discretion. Justice deference
and judicial retention are also taken into consideration at the appropriate level.

European Model

In Prussia in the 19th century the very conception of proportionality arose28. The Prussian
ideology of the 19th century prescribed different examinations. Those were accepted by the
European Court of Justice in R v. Minister of Agriculture, Fisheries and Food, ex parte
Federation Europeenne de la Sante Animale (FEDESA)29.

Julian Rivers sets out a four-step test based on this case:

i. Legitimacy: does the Act under review follow a valid general objective (decision, rule
policy etc.) in the form of that right?
ii. Suitability: will the action achieve its objective?

25
Supra n. 20 at p. 179.
26
Id., p. 176
27
Id., p. 180.
28
Id., p. 3696.
29
(1991) 1 C.M.L.R. 507.

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iii. Necessity: Does the act constitute the least intrusive means of achievement of the
desired objective level?
iv. Fair balance or in narrow sense proportionality: is this act a net benefit if weighing down
rights-enjoyment is compared with the degree of achievement of the objective?30

It is apparently evident from the study of this formulation that it is institutionally neutral. It is
not designed to assist courts in determining their relationship with other governmental bodies.
It focuses more on the optimization or balancing of the rights with the public interest (which
the proposed measure aims to achieve), which is considered to be the protected interest and
which is restricted by the proposed measure. It is also known as the proportionality optimization
principle31. The courts must allow the discretion of the decision-maker to be accommodated
even under this model.

I. Judicial retention: only the final stage of the assessment of proportionality, called the
equal balance stage, takes account of this latitude. Depending on the subject and
existence of the rights in question, this discretion is variable. The court is very reluctant
to challenge the decision-view maker's that what is needed to reach a certain public
interest is often balanced with a great degree of restriction. A moderate level of restraint
means that the court wants to ensure that costs and benefits are actually approximately
adequate. The Court would have to be persuaded that, while the judgment, rule or policy
in question is required, the best way to optimize relevant rights and interests, is indeed
the decision, rule or policy.32
II. Judicial defense: this component of the margin of discretion is far more nuanced because
the Court's acceptability of its judgment is more likely to be right if it depends on the
assessment by some other body of some of the relevant matters. Thus, this latitude can,
according to the subject matter or the character of the affected right and the confidence
of the Court in its competence to decide, be accommodated in any or all stages of
proportionality reviews. The Court may only acknowledge the public authority's claim,
or it may request these statements under oath, or it might compel the authority to report
its conclusions on factual basis. In summary, the degree of deference refers to the extent

30
Supra n. 20 at p. 181.
31
Id.,p.174.
32
Id.,p. 203.

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to which the Court demands that proceedings be reliably answered and the authorities
make this procedure accessible to judicial review.33

33
Ibid

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4. Comparative Analysis

Now with the understanding the application of doctrine of proportionality by these two nations,
the next question thing to understand which model of this doctrine as it has originated from
European has to be adopted by India. A study of the Supreme Court's numerous decisions shows
that this topic has been scarcely considered by the Supreme Court. This is mostly because in
the judicial review of regulatory action the Supreme Court never had a genuine possibility to
enforce the doctrine of proportionality. Until now, without applying the proportionality doctrine
in the sense it is known internationally, the Supreme Court has merely stated the legal role of
the proportionality doctrine in the India legal framework.

In the Omkumar case (supra), the only case where the Supreme Court explicitly accepted the
doctrine of proportionality is the Sandeep Subhash Parate v. State of Maharastra34, following
deliberate acceptance of the doctrine of proportionality in Indian law. In this case, a student was
invalidated for engineering on the basis of a caste certificate following entry. However, he
finished the class on the basis of a High Court interim order. The university declined, however,
to enhance him. The High Court considered this conduct of the university to be correct. In an
appeal, the Supreme Court instructed the university to re-compensate the state with the money
it spend on education for the complainant, subject to payment of one lakh of Rupees. In the
light of the doctrine of proportionality,35 the Supreme Court said it was finished. However, the
Supreme Court found that before the appellant refused to award his degree, the university had
not balance the various issues. Furthermore, the Supreme Court did not clarify how it came to
a conclusion about proportionality, apart from listing the facts of the case. In any event, in
accordance with Article 142 of the constitution36, the Supreme Court itself admitted to taking
the decision.

The choice from the European model to the British model will therefore be a strictly scholarly
exercise in the Indian context. As Julian Rivers37 has suggested, the option will be in favor of
European model. Moreover, this selection receives some court support from the Supreme

34
(2006) 1 SCC 501.
35
Id., p.508.
36
Id., p.507.
37
Supra n. 20.

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Court's decision in the Omkumar case, where the Court, when defining proportionality, found
that a number of choices had to be provided to the legislative and administrative authorities, but
the courts could determine whether or not to infringe the rights too far38.

That would suggest that the Supreme Court intends to include in a proportionality analysis the
equal balance stage (last stage) of the European model. The definitive claim would therefore be
that a suitable test that should be applied in the Indian context should be the European concept
of proportionality analysis.

As the approach in India and England is different as the latter being the originated has been
using this doctrine in full-fledge by the English courts in order to provide effective justice but
the former being a borrower has not necessarily implemented the doctrine, although the Indian
Courts have paved its path to its implementation just the model apt from of the country
according to the scholars would be different.

38
Supra n. 4.

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5. Conclusion

With the rise in administrative actions, as it is a vital part of today’s world, the judicial scrutiny
over these actions becomes even more important. The doctrine of proportionality stands an
essential doctrine in the administrative jurisprudence for equating and just trails. It is quite
evident in the Indian context that, while proportionality had become included in Indian law in
2000, doctrine was hardly applied in India. It is not only limited in the Supreme Court's adoption
of the doctrine, but it is also seldom used within that context.

However, sooner or later in Indian courts, irrespective of whether fundamental or ordinary

rights are involved, the doctrine of proportionality must be vigorously considered. This is
because the case law on human rights that dominates the legal system not only covers basic
rights but also other rights. Therefore the importance of implementing the proportionality
doctrine cannot be ignored because otherwise steam hammers will be used progressively to
crack nuts, even though nut crackers are adequate.

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6. Bibliography

Legislations Referred

1. The Constitution of India, 1950.

Cases Referred

• U.O.I. v. G. Ganayutham, (1997) 7 SCC 463, 473.

• Omkumar v. Union of India, AIR 2000 SC 3689.
• Indian Airlines Ltd. v. Praba D. Kanan, AIR 2007 SC 548.
• Brind v. Secretary of State for the Home Department, (1991) 1 All ER 720.
• R (AlConbury Developments Ltd.) v. Secretary of State for Enviroment, Transport and
Regions, (2001) 2 All ER 929.
• Shrillekha Vidyarthi v. State U.P, AIR 1991 SC 537.
• State of U.P. v. Sheo Shankar Lal Srivastava, (2006) 3 SCC 276.
• De Freitas v. Permanent Secretary of the Ministry of Fisheries, Land & Housing, (1999)
1 A.C. 69.
• R v. Exparte Secretariat of the State for the Home Department, Daly, (2001) 3 All ER
433 (HL).
• R v. Minister of Agriculture, Fisheries and Food, ex parte Federation Europeenne de
la Sante Animale (FEDESA), (1991) 1 C.M.L.R. 507.
• Sandeep Subhash Parate v. State of Maharastra, (2006) 1 SCC 501.

Articles and Journals Referred

1. Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 (1)

C.L.J.174.
2. Justice Anand Byrareddy, Proportionality vis-à-vis irrationality in administrative law,
(2008) 7 SCC J-29

3. Dr. Poonam Rawat, Doctrine Of Proportionality: Expanding Dimensions of Judicial

Review in Indian Context¸ Dehradun Law Review (Vol. 3, Issue 1, Nov’ 2011),

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http://www.dehradunlawreview.com/wp-content/uploads/2020/06/7-Doctrine-of-
proportionality-expanding-dimensions-of-judicial-review-in-Indian-context.pdf.
4. Jud Mathews, Proportionality Review in Administrative Law, Yale University (Last
visited: 11th May’ 2021),
https://law.yale.edu/sites/default/files/area/conference/compadmin/compadmin16_mat
hews_proportionality.pdf.
5. Ajoy P.B., Administrative Action and the Doctrine of Proportionality in India, IOSR
Journal of Humanities and Social Science (Vol. 1, Issue 6, Sep-Oct. 2012),
http://www.iosrjournals.org/iosr-jhss/papers/Vol1-issue6/D0161623.pdf., pp. 16-23.
6. Doctrine of Proportionality - Legitimate Expectation - Public Accountability (Last
visited: 11th May’ 2021), https://www.cusb.ac.in/images/cusb-
files/2020/el/law/w2/Doctrine%20of%20Proportionality_VI%20Sem.pdf.
7. Ashwani Aman, Doctrine of Proportionality, COLS, UPES (2013),
https://www.scribd.com/doc/128380354/Doctrine-of-Proportionality.

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