Doctrine of proportionality

Introduction

The rapid growth in administrative law has anticipated a threat of misuse and exaggerated use
of the power by administrative authority. 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 administrative action 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. It is a course of action
which could have been reasonably followed and should not be excessive. 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.

Within municipal law it is used to convey the idea that the punishment of an offender should
fit the crime1. Under international humanitarian law governing the legal use of force in an
armed conflict, proportionality and distinction are important factors in assessing military
necessity.

The doctrine has always stands as a shield against the administrative action affecting
fundamental freedoms. By proportionality it is meant that the question whether, while
regulating exercises of fundamental rights, the appropriate or least restrictive choice of
measuring has been made by the legislature or the administrator so as to achieve the object of
the legislation or the purpose of administrative order, as the case may be. Under the principle
court will see that the legislature and the administrative authority maintain a proper balance
between the adverse effects which the legislation or the administrative order may have on the
rights, liberties or interests of persons keeping in mind the purposes which they were intended
to serve‖. The legislature and the administrative authority are given an area of discretion or a

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range of choice but as to whether the choice made infringes the rights excessively or not is for
the court to decide. This is the principle of proportionality.

How Doctrine of Proportionality is used in India?

The case not involving fundamental freedoms, the role of our courts/ tribunals in administrative
law is purely secondary and while applying Wednesbury and CCSU 2principles to test the
validity of executive action or of administrative action taken in exercise of statutory powers,
the courts can only go into the matter as a secondary reviewing. The choice of the option
available is for the authority. The courts/tribunals cannot substitute the view as to what is
reasonable.
In Hind Construction Ltd. v. Workmen3, the Supreme applied the doctrine of proportionality
and held that an employer could not impose a harsh punishment like dismissing a permanent
employee from job when he remained absent from duty treating a particular day as holiday.
Upholding the contention, following CCSU4 case the court observed, “The question of the
choice and quantum of punishment is within the jurisdiction and discretion of the court martial.
But the sentence has to suit the offence and the offender. It should not be indicative or unduly
harsh. It should not be so disproportionate to the offence as to shock the conscience and amount
in itself to conclusive evidence of bias. The doctrine of proportionality, as a part of the concept
of judicial review, would ensure that even as an aspect which is, otherwise, within the exclusive
province of the court martial, if the decision of the court even as to sentence is an outrageous
defiance of logic, then the sentence would not be immune from correction. Irrationality and
perversity are recognized grounds of judicial review”.

In Sardar Singh v. Union of India,5 a jawan serving in an Indian Army was granted leave and
while going his home town, 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 to
undergo rigorous imprisonment for three months and was also dismissed from service. His

3
AIR 1965 SC 917

5
(1991) 3 SCC 213

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petition under Article 226 of the Constitution was devised by the High Court. The petitioner
then approached the Supreme Court. The Supreme Court observed that the main submission
and perhaps the only submission if we may say so, in this appeal is that the sentence awarded
to the appellant is wholly disproportionate to the offence committed by him. Court considered
the case of Ranjit Thakur6 in the matter of awarding punishment under the Army Act. Applying
these principles to this case the court observed that there is an element of arbitrariness in
awarding these severe punishments to the appellant.

Jayachandra Reddy J. further said that we are satisfied that an interference is called for and the
matter has to be remanded on the question of awarding any of the lesser punishment.
Accordingly, we set aside the punishment of three months rigorous imprisonment and dismissal
from service and remand the matter to the court martial which shall award any of the lesser
punishments having due regard to the nature and circumstances of the case and in the light of
the above observation made by us.

In Canara Bank v. V.K. Awasthy7, the Apex Court had explained the scope and ambit of the
power of judicial review of administrative action relating to the ground of proportionality.
Instead of breaking the new ground and analyzing the concept thoroughly, the Apex Court
simply restated the position as laid down in Om Kumar case8. In fact in this process, the court
created more confusion rather than clarification when it said that where departmental
proceedings reveal several acts of misconduct and charges clearly establish failure in discharge
of duties with utmost integrity, honesty, devotion and diligence, the scope of judicial review
on the ground of proportionality is highly limited to situation of illegality and irrationality. It
may be remembered what is said in the beginning of this topic that in applying proportionality
it is assumed that the grounds of illegality are not there, since if those grounds are there, the
decision will be set aside without going into proportionality. The principle of proportionality
replaces the second sense of Wednesbury or irrationality ground only. And even when
misconduct and charges are clearly established there is scope for proportionality in seeing
whether the punishment imposed is suitable and also necessary in view of the gravity of

6
AIR 1987 SC 2387

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misconduct or charges established. It is regrettable that the Apex Court is still groping in the
darkness so far as the scope of proportionality is concerned.

The principle of proportionality is inherent in cases of punishments. This is also the basis of
awarding punishments in the criminal law. This doctrine is applied in special situations where
an administrative action invades fundamental rights. This doctrine is also applied where a
question of quantum of punishment imposed by the administrative authority is involved. Thus
in the Om Kumar case proportionality was held to mean whether while regulating the exercise
of fundamental rights, the appropriate or least restrictive choice of measures have been adopted
by the legislature or the administrator so as to achieve the object of the legislation or
administrative order. And that it was for the superior Courts to decide whether the choice made
by the legislature or the administrative authorities infringed the rights excessively. This to my
mind is the essence of the doctrine of proportionality. In State of U.P. v. Sheo Shanker Lal
Srivastava and Ors, the Supreme Court has supplied further credence to ex-parte Daly.

Courts follow the principle that though the decision regarding quantum of punishment is within
the jurisdiction of the administrative authority but arbitrariness must be avoided. One must also
refer to the case of Commissioner of Police v. Syed Hussain where a similar endorsement was
made. For the first time, in Union of India v. Rajesh,9 the Supreme Court applied the principle
of proportionality to an area other than that of punishments. In this case 134 posts of constables
were to be filled up for which written test and viva voce were held. As a result of allegations
of favouritism and nepotism in conducting the physical efficiency test, the entire selection list
was cancelled. This was challenged in the High Court through a writ petition. Allowing the
writ, the High Court found that there were only 31 specific cases of irregularities. On appeal
the Supreme Court upheld the High Court. Applying the principle of proportionality the Apex
Court observed that the “competent authority completely misdirected itself in taking such an
extreme and unreasonable decision of cancelling the entire selections wholly unwarranted and
unnecessary even on the factual situation found too, and totally in excess of the nature and
gravity of what was at stake, thereby virtually rendering such decision to be irrational”.

In the case of Indian Airlines Ltd. v. Prabha D. Kannan, it was held that where no appeal is
provided for against an administrative order, judicial review of such an order would be
maintainable. Further, that the High Court in exercise of its jurisdiction under Article 226 of

9
(2003) 7 SCC 285.

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the Constitution while undertaking such review need not confine itself to the traditional tests
of review viz illegality, irrationality, and procedural impropriety.

It would not have been possible for the court on Wednesbury principle to set aside the
authority’s decision to cancel the entire selection, because the decision could not be
characterized as “so absurd that no sensible person could ever dream that it lay within the
powers of the authority”. But the court held it to be arbitrary and not reasonable, thus adopting
a lower threshold of unreasonableness than the Wednesbury.

CONCLUSION

The doctrine of proportionality has got a lot of utility and scope in India. The essential
ingredients of the principle have not yet been properly appreciated by the courts. We can also
see that the courts act as secondary means to review the action of administrative functions,
which evidentially proves that applicability of this doctrine has not to a satisfying limit. The
positive part of the Indian Judiciary regarding this doctrine is that except in few cases the
judiciary has not interfere with the quantum of punishment as it a discretionary matter for the
administration or the executive. This shows the balancing of powers and functions between
judiciary and the executive in a harmonious manner.

Bibliography –

1. legalbites.in
2. lawaudience.com
3. lawteacher.net
4. racolblegal.com
5. legalbites.in
6. C.K.Takwani, Lectures on Administrative Law (Eastern Book Company 6th Edn 2018)
7. P. Massey, Administrative Law (Eastern Book Company)