Administrative Law and Regulatory State – module 3

Om Kumar v. UOI 2000 (7) SCALE 524

The doctrine of proportionality is a prominent principle used as a ground for judicial review of
administrative actions. It essentially signifies that the punishment or restrictive measures imposed by
the administration should not be disproportionate or more excessive than what is required to achieve
the intended objective or purpose.

The core idea behind the proportionality doctrine is that the administrative authority must maintain a
balance between its actions and the purpose for which the powers have been conferred. It acts as a
check to prevent the administration from imposing disproportionately harsh or restrictive measures
that go beyond what is necessary to accomplish the legitimate aim.

In the Om Kumar case, the Supreme Court was called upon to reconsider the quantum of punishment
imposed on certain civil servants involved in the Skipper Construction land allotment case. However, the
court refused to re-examine the punishment, as no principle of law was violated, and the punishment
was not found to be "shockingly disproportionate" to the misconduct committed by the concerned
individuals.

the court adopted the Wednesbury Principle Test, which is a deferential standard of judicial review
that allows interference with administrative decisions only if they are found to be unreasonable or
irrational to an extreme degree.

However, the court in Om Kumar also made an important observation that "restriction on Fundamental
freedom have always been checked on the 'anvil of proportionality'." This statement suggests that the
doctrine of proportionality has been a guiding principle in Indian administrative law when reviewing
restrictions imposed by the administration on fundamental rights and freedoms.

The doctrine of proportionality is particularly relevant in cases where the administrative action
restricts or infringes upon fundamental rights. In such instances, the court examines whether the
measures taken by the administrative body are the least restrictive means to achieve the intended
purpose. If the court finds that the restriction imposed is excessive or disproportionate, it can quash
the administrative action by invoking the doctrine of proportionality.

Specifically, the court had to determine whether the principle of proportionality should be applied
when administrative actions are challenged as discriminatory or arbitrary under Article 14. The
court's analysis and observations in this regard have had significant implications for the standard of review
employed in such cases.

The courts have held that when regulating the exercise of fundamental rights, the administration should
adopt the least restrictive choice of measures. This principle aims to ensure that any curtailment of
fundamental rights is minimal and proportionate to the objective sought to be achieved.

The Supreme Court has the discretion to determine whether the exercise of fundamental rights has been
infringed excessively by the administrative action.

It is reiterated that judicial review of administrative actions is limited, and the parameters of review
would be as laid down in the Wednesbury case (a seminal English case on administrative law). This
means that the courts will not substitute their own decision for that of the administration unless the
decision is unreasonable or irrational.

4. Scrutiny of Discrimination (Article 14): When reviewing administrative actions for violation of the right
to equality (Article 14), the courts will scrutinize the level of discrimination and its justification.
5. Arbitrariness Review (Article 14): When reviewing administrative actions for arbitrariness under Article
14, the courts will only look at whether the authority has acted illegally, omitted relevant factors,
considered irrelevant factors, or taken a decision that no reasonable person could have taken.

6. Proportionality vs. Reasonableness: The doctrine of proportionality will apply when the challenge to
the administrative action is on the grounds of discrimination under Article 14. However, the
Wednesbury principle of reasonableness will be applied when reviewing the action for arbitrariness
or unreasonableness.

7. Proportionality Test: The proportionality test involves four steps: (1) Whether the action pursued a
legitimate aim, (2) Whether the means employed were suitable to achieve that aim, (3) Whether the aim
could have been achieved by a less restrictive alternative, and (4) Whether the derogation from rights is
justified overall in the interests of a democratic society.

8. Margin of Appreciation: The courts may not interfere with the exercise of administrative discretion on
substantive grounds, save where the decision is unreasonable in the sense that it is beyond the range of
responses open to a reasonable decision-maker. However, the more substantial the interference with
human rights, the more the court will require justification before finding the decision reasonable.

The judgement of Om Kumar assumes that the doctrine of proportionality is the same as strict scrutiny. However, both aren’t the
same. Strict Scrutiny is used in human rights adjudication (e.g., death penalty), and according to the test, nothing can justify
taking of certain rights like the right to life. There is no weighing and balancing involved, unlike proportionality. This right can
never be taken away. In the test of proportionality, you must weigh and balance the measures in terms of interest it wishes to
advance and the infringement of the right. Whether the right trumps the measure or vice versa, and upon weighing both sides, the
Courts must see which one outweighs the other before deciding on whether to uphold the regulation or not

• Bugdaycay v. Secy. of State for the Home Deptt.,

• R. v. Secy. of State for the Home Deptt., ex p Brind,

• Strict Scrutiny v. Wednesbury Test

• The strict scrutiny standard and the Wednesbury test (or Wednesbury unreasonableness) are two
different levels of judicial review applied by courts when examining the validity of administrative
or governmental actions. Here's an explanation of each:

Strict Scrutiny:
• The strict scrutiny standard is the highest level of judicial review applied by courts, typically in cases
involving fundamental rights or suspect classifications like race, religion, or national origin. Under
strict scrutiny, the government action or policy must:

• a) Serve a compelling governmental interest

• b) Be narrowly tailored to achieve that interest
• c) Use the least restrictive means to achieve the desired end

• The burden is on the government to prove that the action satisfies all three prongs of the strict
scrutiny test. This is a very stringent standard

Wednesbury Test (Wednesbury Unreasonableness):

• The Wednesbury test, derived from the English case Associated Provincial Picture Houses Ltd. v.
Wednesbury Corporation (1948), is a more deferential standard of judicial review applied to
administrative actions. Under the Wednesbury test, a court will only interfere with an
administrative decision if it is:

• a) Illegal (violates the law)

• b) Irrational or unreasonable (no reasonable decision-maker could have reached that conclusion)
• c) Procedurally improper

• This test grants a significant margin of appreciation or discretion to administrative authorities and
their decisions unless they are clearly unreasonable or unlawful.

• The key difference is that strict scrutiny places a heavy burden on the government to justify its
actions, while the Wednesbury test starts from a position of deference to the government's
decision, intervening only in egregious cases of unreasonableness.

• Strict scrutiny is typically applied in cases involving fundamental rights or suspect classifications,
while the Wednesbury test is used for reviewing administrative actions on grounds of
reasonableness or procedural propriety The choice of the applicable standard of review can
significantly impact the outcome of a case, with strict scrutiny being a much higher threshold for
the government to meet compared to the more deferential Wednesbury test.

• The Alconbury case (2001) touched upon the debate of keeping the Wednesbury principle and
proportionality as separate compartments, which the court found unnecessary and confusing.It
highlighted that there is a difference between the principle of proportionality derived from EU law
and the approach taken by English courts in the Wednesbury case on reasonableness review.
There is an argument that the proportionality test should also be used to review state actions
considered arbitrary, not just discriminatory actions.

• The crux is that it is the substance, not the form, that determines the applicability of the proportionality
test.
• The real test for proportionality in the Indian context will arise when policy decisions are
challenged as "disproportionate" as opposed to merely "arbitrary”. In such situations, courts
would have to carefully consider if relevant factors were properly weighed/balanced, potentially
by applying the four-fold proportionality test, rather than simply invoking the term "arbitrary" to
invalidate legislative provisions.

IS THE SUPREME COURT DISPROPORTIONATELY APPLYING THE PROPORTIONALITY

PRINCIPLE?,

Om Kumar case dealt with the applicability of the proportionality principle to administrative actions
challenged as discriminatory under Article 14, in contrast to the traditional Wednesbury unreasonableness
standard for arbitrariness review.The court held that when testing for discrimination under Article 14,
Indian courts are effectively applying a proportionality analysis akin to the European Court's
approach under Article 14 of the European Convention on Human Rights.

However, for arbitrariness review under Article 14, the court stated that the Wednesbury unreasonableness
standard still applies, which the author argue may be an incorrect separation. it highlights the critique of
the Wednesbury test as being tautologous, exaggerated and providing judges too much leeway to
obscure their reasoning through vague standards.

The alternative proportionality test advocated by scholars like Jowell provides a more transparent
four-fold analysis focused on legitimate aims, suitability of means, necessity, and overall balancing..
While the court in Om Kumar equated the strict scrutiny standard in English law with
proportionality, the author clarify that strict scrutiny was still distinct from proportionality as per
European court rulings.

Recent English cases like Alconbury suggest moving towards applying proportionality even in non-
Convention, domestic law cases rather than maintaining an artificial separation from Wednesbury
unreasonableness. the author argue that given the increasing disfavour towards Wednesbury in
England, it may be absurd for Indian courts to retain it when reviewing Article 14 arbitrariness
claims, instead of adopting a unified proportionality approach.

Subsequent cases like Hoti Lal and P.C. Kakkar highlighted inconsistencies in the Supreme Court's
approach, with the latter case appearing to deviate from Om Kumar's guidance on reviewing
discriminatory actions through a proportionality lens. the author critically analyze the court's
conflation of the strict scrutiny standard from U.S. equal protection jurisprudence with the
proportionality principle, which led to misconceptions in cases like Balram Kumawat and Saurabh
Chaudri.

the author argue that the Supreme Court's occasional invocation of terms like "shockingly
disproportionate" is merely a repackaging of the Wednesbury unreasonableness standard rather than
a genuine application of proportionality review.While the courts apply proportionality-equivalent
principles when reviewing violations of specific fundamental rights under Articles 19 and 21, there is
a gap in extending this rigorous review to discriminatory actions and arbitrary policies challenged
under Article 14.

The real test of proportionality in India, the author contend, will arise when general policy decisions
are challenged as disproportionate, requiring courts to engage in a transparent weighing and
balancing exercise rather than mechanically invoking the term "arbitrary. “Overall, the author
analysis underscores the need for Indian courts to adopt a consistent, rigorous, and substantive
proportionality review across the board, particularly when adjudicating claims of discrimination and
disproportionate policies under Article 14.