Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community for help and clear up your study doubts
Discover the best universities in your country according to Docsity users
Free resources
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
this is research paper on admin law. a detail study has been made in this assignment
Typology: Study notes
1 / 18
This page cannot be seen from the preview
Don't miss anything!
because of the advantages associated with proportionality based review but also because of the establishment of an European court and the consequential growth of a separate pan European jurisprudence primarily based on civil law concepts.
India, a former colonial state of British Empire, inherited from British India, the common law system. After Independence, India chose to retain the common law system without much change. Indian courts have always found it desirable to follow English precedents while deciding domestic cases. This has virtually been the case in the development of administrative law in India. In Spite of Article 226/Article 32 read with Article 13 of the Constitution of India giving the constitutional courts much wider scope to interfere with executive orders, the Indian courts have chosen to follow the English concept of wednesbury reasonableness. However, with the doctrine of proportionality fast gaining currency across the world including common law countries, the Indian legal system could not remain closed for long and in the case of Om kumar v Union of India the Indian Supreme Court accepted the doctrine of proportionality as a part of Indian law.
DOCTRINE OF PROPORTIONALITY^2
Doctrine of proportionality is a principle that is prominently used as a ground for judicial review in cases of administrative action. The doctrine was developed in Europe and it is a vital part of the European administrative law. The doctrine essentially signifies that the punishment should not be disproportionate to the offence committed or the means that are used by administration to obtain a particular objective or result should not me more restrictive than that are required to achieve it. We live in an age where administrative authorities have been empowered to exercise discretionary powers, the position holders in the administration exercise wide discretionary powers and these powers cannot be used arbitrarily, therefore to keep a check on them, the doctrine of proportionality is used. While exercising administrative action, the body should keep in mind the purpose it seeks to obtain and the means it is using to achieve it, and if its actions deviate from the object or are discriminatory or disproportionate then they would be quashed by the court by using the doctrine of proportionality. In India the doctrine of proportionality was adopted by the Supreme Court of India in the case of Om Kumar v. Union of India. In this case the Apex court observed that Indian courts have been using this doctrine since 1950, in cases of legislations violating fundamental rights enshrined in Article 19(1) of the constitution. Although
(^2) Om kumar v. Union of India AIR 2000 SC 3689.
the Doctrine has been adopted in India in a very restrictive manner. The European model has not been adopted fully. The doctrine of proportionality requires a body to maintain balance between its action and purpose for which the powers have been conferred.
The concepts of Proportionality and unreasonableness are fused together providing an adequate rubric for the judicial review of irrationality in administrative law. The principle of Proportionality can be treated as an aspect resulting out of Wednesbury unreasonableness. This is to say that the Wednesbury test was developed to review an action which is highly arbitrary and discriminatory. The judiciary seemed reluctant to enter into the administrative and review its actions. Later in the course of time the test of Proportionality came up to review an action which is not proportional to the desired goal to be achieved by that action. So this would mean that the administrative action to be arbitrary would have to be Wednesbury unreasonable first to be disproportionate. According to me, the two tests complement each other and in order to effectively scrutinize administrative action to achieve justice, equality and fairness. Wednesbury principle is a tool for challenging administrative action. The way in which such challenge is made is relevant; and in this respect, the Wednesbury principle is understood with respect to grounds of judicial review of administrative action. In relation to this, the ultra vires principle already exists. The ultra vires doctrine refers to an action which is in excess of the powers of decision making bodies, and the reasoning or implications of this principle are important insofar as they uphold the sovereignty of parliament, and the rule of law. The Case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. , is the source for this famous concept of Wednesbury Test. The Court of Appeal held that it could not intervene to overturn the decision of the defendant corporation simply because the court disagreed with it. To have the right to intervene, the court would have to form the conclusion that: The corporation, in making that decision, took into account factors that ought not to have been taken into account, or the corporation failed to take account factors that ought to have been taken into account, or the decision was so unreasonable that no reasonable authority would ever consider imposing it. The court held that the condition did not fall into any of these categories. Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld. The test
(^3) LawTeacher. November 2013. Proportionality As A Ground Of Judicial Review. [online]. Available from: https://www.lawteacher.net/free-law-essays/constitutional-law/proportionality-as-a-ground-of-judicial- review-constitutional-law-essay.php?vref=1 [Accessed 16 May 2019].
In the light of this case, the administrative power of discretion that has remained protected from judicial review unless challenged on the grounds of absurdity, irrationality or perversity was now open to the test of proportionality as enunciated by Prof. Jeffrey Jowell in his article titled “Beyond the Rule of Law: Towards Constitutional Judicial Review”. Professor Jowell describes the proportionality test to involve a „sophisticated four stage process‟ posing the following questions:- (1) Did the action pursue a legitimate aim? (2) Were the means employed suitable to achieve that aim? (3) Could the aim have been achieved by a less restrictive alternative? (4) Is the derogation justified overall in the interests of a democratic society? According to Professor Jowell, such a four-fold test can ensure that a prima facie violation of a fundamental democratic right is not lightly sanctioned while providing for a heightened scrutiny of a decision called into question.
The Indian Supreme Court consciously considered the application of the concept of proportionality for the first time in the case of Union of India v. G. Ganayutham. In that case the Supreme Court after extensively reviewing the law relating to wednesbury unreasonableness and proportionality prevailing in England held that the „wednesbury‟ unreasonableness will be the guiding principle in India, so long as fundamental rights are not involved. However the court refrained from deciding whether the doctrine of proportionality is to be applied with respect to those cases involving infringement of fundamental rights. Subsequently came the historic decision of the Supreme Court in Om kumar v. Union of India. It was in this case that the Supreme Court accepted the application of proportionality doctrine in India. However, strangely enough the Supreme Court in this case suddenly discovered that Indian courts had ever since 1950 regularly applied the doctrine of proportionality while dealing with the validity of legislative actions in relation to legislations infringing the fundamental freedom enumerated in Article 19 (1) of the Constitution of India. According to the Supreme Court the Indian courts had in the past in numerous occasions the opportunity to consider whether the restrictions were disproportionate to the situation and were not the least restrictive of the choices. The same is the position with respect to legislations that impinge Article 14 (as discriminatory), and Article 21 of the Constitution of India. With respect to the application of the doctrine of proportionality in administrative action in India, the Supreme Court after extensively reviewing the position in England came to a similar conclusion. The Supreme Court found that administrative action in India affecting fundamental freedoms (Article 19 and Article 21) have always been tested on the anvil of proportionality, even though it has not been expressly stated that the principle that is applied is the proportionality principle. Thus the court categorically held that the doctrine of proportionality is applicable to judicial review of administrative action that is violative of Article 19 and Article 21 of the Constitution of India. With respect to Article 14 of the Constitution of India, Supreme Court concluded that when an administrative action is challenged as discriminatory the courts would carry out a primary review using the doctrine of proportionality. However when an administrative action is questioned as arbitrary the principle of secondary review based on wednesbury principle applies. The Supreme Court also held that punishment in service law is normally challenged as arbitrary under Article 14 of the
(^4) IOSR Journal of Humanities and Social Science 2012.Administrative Action and the Doctrine of Proportionality in India.[online].Available from:http://www.iosrjournals.org/iosr-jhss/papers/Vol1- issue6/D0161623.pdf?id=
denying promotion for a sufficiently experienced government employee and at the same time promoting similarly placed persons will be per se not just arbitrary but also discriminatory. Secondly, when a petitioner having sufficient locus standi challenges an administrative act as arbitrary, he is doing so only because one or other of his rights - fundamental, statutory or common law - has been violated. If the classification made by the Supreme Court is adopted then the first task before the court is to determine which type of right has been affected. This is not an easy task for there can be no clear cut boundaries between fundamental rights and non fundamental rights particularly when the Supreme Court has itself given a very broad meaning to Article 21 of the Constitution of India. This task becomes even more difficult, when one considers the fact that usually an administrative act is violative of more than one right. Hence much of judicial time would be wasted in deciding the nature of the right. In the alternative, the judicial time could be effectively used in evaluating whether the decision maker has properly balanced the priorities while taking the decision. Obviously a variable intensity of proportionality review - based on the concept of judicial deference and judicial restraint - can be adopted depending upon the subject matter and the nature of the rights involved. Equally important is the consideration whether the administrative action challenged as arbitrary should remain within the purview of wednesbury principle. For this, it is pertinent to look at the meaning of the word „arbitrariness‟. It is never an easy term to define with precision and hence the Supreme Court in the case of Shrilekha Vidyarthi v. State of U.P57equated „arbitrariness‟ with „reasonableness‟
By equating arbitrariness with wednesbury unreasonableness, the decision maker escapes serious judicial review. But this is fast changing. Proportionality is fast replacing wednesbury reasonableness which the Supreme Court itself has observed in a large number of recent cases. After all there is nothing wrong in a modern democratic society if the court examines whether the decision maker has fairly balanced the priorities while coming to a decision. At any rate, the intensity of proportionality review is variable depending upon the subject matter and the nature of rights involved. The next question to be addressed is regarding which model - British or European - is to be adopted in the Indian context. A review of the various judgments of the Supreme Court would show that the Supreme Court has hardly given any consideration to this issue. This is primarily because the Supreme Court has never had a real opportunity to apply the doctrine of proportionality in judicial review of administrative action. Till now the Supreme Court has been
merely stating the legal position of the doctrine of proportionality in the Indian legal system without actually applying the doctrine of proportionality in the sense it is today understood internationally. After the conscious adoption of the doctrine of proportionality into Indian law in the Omkumar‟s case the only case where the Supreme Court has expressly adopted the doctrine of proportionality is the case of Sandeep Subhash Parate v. State of Maharastra. In that case a student obtained admission to engineering course based on a caste certificate, which was subsequent to the admission, invalidated. However, he completed the course based on an interim order of the High Court. Yet the university refused to grant him the degree. This action of the university was held to be correct by the High Court. The Supreme Court in appeal directed the university to grand him degree subject to the appellant making a payment of Rupees one lakh, to re-compensate the state for the amount spend on imparting education to him as a reservation candidate. This, the Supreme Court claimed was done having regard to the doctrine of proportionality. But the Supreme Court did not come to a finding that the university had failed to balance the various considerations before refusing to grant the appellant the degree. Also, the Supreme Court apart from mentioning the facts of the case failed to explain how it came to the conclusion regarding proportionality. At any rate the Supreme Court itself admitted that it was taking the decision under Article 142 of the constitution. Hence the choice between the European model and the British model in the Indian context will be a purely academic exercise. As suggested by Julian Rivers the choice would be in favour of the European model. Further such a selection gets some judicial backing from the decision of the Supreme Court in Omkumar‟s case wherein the Court while defining proportionality held that the legislative and administrative authority must be given a range of choice, but the courts can decide whether the choice infringes the rights excessively or not64 .This would indicate that the Supreme Court does intent that the fair balance stage (last stage) of the European model must be part of proportionality review. Hence the conclusive argument would be that the European conception of proportionality review should be the appropriate test that should be applied in the Indian context.
changes can be accommodated and neatly housed within Lord Diplock‟s tripartite classification. Lord Diplock has himself very neatly defined all the three structures within his classification – namely illegality, irrationality and procedural impropriety but it is the concept of irrationality that is of importance in this work. 5 Irrationality and Wednesbury Unreasonableness^6 While defining irrationality Lord Diplock equated it with „wednesbury unreasonableness‟10. The concept of‟ „wednesbury unreasonableness‟ was developed in the case of Associated Picture House v. Wednesbury Corporation and hence the name „wednesbury unreasonableness‟. It simply means that administrative discretion should be exercised reasonably. Accordingly, a person entrusted with discretion must direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the subject he has to consider. If he does not obey those rules he can be said to be acting unreasonably. Lord Diplock beautifully sums up „wednesbury unreasonableness‟ as a principle that applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it13. Quite obviously the concept of wednesbury unreasonableness is extremely vague and is not capable of objective evaluation. Hence wednesbury unreasonableness cannot be defined in the form of standard tests for universal application.
Proportionality The classical definition of proportionality has been given by none other than Lord Diplock when his Lordship rather ponderously stated “you must not use a steam hammer to crack a nut if a nutcracker would do”14 Thus proportionality broadly requires that government action must be no more intrusive than is necessary to meet an important public purpose. However the greatest advantage of proportionality as a tool of judicial review is its ability to provide objective criteria for analysis. It is possible to apply this doctrine to the facts of a case through the use of various tests. Lord Diplock even while giving the tripartite classification admits that proportionality in the future would be an additional ground of review16. However, today most authors accept proportionality as an additional head of judicial review within the concept of irrationality. Thus proportionality and wednesbury unreasonableness is seen as the two aspects of irrationality. Initially proportionality was only a competitor with wednesbury unreasonableness but because of
(^5) IOSR Journal of Humanities and Social Science 2012.Administrative Action and the Doctrine of Proportionality in India.[online].Available from:http://www.iosrjournals.org/iosr-jhss/papers/Vol1- issue6/D0161623.pdf?id=5628 6 Justice C.K. Thakkar, Lectures on Administrative Law, (Lucknow: Eastern Book Company, 2003).
the high degree of objectivity associated with proportionality and the vast improvements that the concept has undergone in the last decade and a half, it is seeking to totally replace Wednesbury unreasonableness as the only sub-head of review under the concept of irrationality.
Traditional Wednesbury Principle and Proportionality The courts could persist with Wednesbury principle as basis for review outside those areas where they have to apply proportionality. Different grounds of challenge would be dealt with under different heads of review, and Wednesbury principle would be interpreted in the traditional sense that the applicant would have to show that the public body's action really was so unreasonable that no reasonable body would have made it. It would, however, be accepted that this standard of review could vary in intensity, as exemplified by the application of the test in cases concerned with human rights. (^7) Allan T.R.S., Human Rights and Judicial Review: A Critique of “Due Deference”, (2006) 65 (3) C.L.J 671
The essential premise of Lord Cooke's thesis is undoubtedly correct. His Lordship argued that the proper boundaries between courts and administration could be secured by a test which was less exaggerated than the traditional Wednesbury formulation. To be sure, the courts should not substitute their judgment on the merits for that of the administration, but this could be avoided even where the reasonableness test was formulated in the manner articulated by Lord Cooke.
The instability of this option becomes apparent once it is probe a little further. It should be recalled that the "virtue" of the traditional Lord Greene reading of the test was that there was no need to press further. The really outrageous decision would be all too evident and indefensible. If it is shifted to Lord Cooke's reading of the test this no longer holds true. It would be incumbent on the judiciary to articulate in some ordered manner the rationale for finding that an administrative choice was one which could not reasonably have been made, where that choice fell short of manifest absurdity. If the courts are not obliged to explain their own findings in this manner then the new test will create unwarranted judicial discretion. It is, however, difficult to see that the factors which would be taken into account in this regard would be very different from those used in the proportionality calculus. The courts would in some manner, shape or form want to know how necessary the measure was, and how suitable it was, for attaining the desired end. These are the first two parts of the proportionality calculus. It is also possible that under Lord Cooke's formulation a court might well, expressly or impliedly, look to see whether the challenged measure imposed excessive burdens on the applicant, the third part of the proportionality formula.
If these kinds of factors are taken into account, and some such factors will have to be, then it will be difficult to persist with the idea that this is really separate from a proportionality test. There will then be an impetus to extend proportionality from the areas where it currently already applies, the European Conventions and the Human Rights Act, 1998, to general domestic law challenges.
Proportionality should neither be regarded as a panacea that will cure all ills i.e. real and imaginary, within our existing regime of review, nor should it be perceived as something dangerous or alien. It seems likely that it will be recognised as an independent ground of review within domestic law. This is because the courts are already applying the test directly or indirectly in some areas. The Wednesbury test itself is moving closer to proportionality; the European
Conventions and the Human Rights Act, 1998 will acclimatise our judiciary to the concept; and the concept is accepted in a number of civil law-countries. It might therefore be of help to pull together some of the advantages and alleged disadvantages of this criterion.
(1) A corollary is that proportionality facilitates a reasoned inquiry of a kind that is often lacking under the traditional Wednesbury approach. This is brought out forcefully by Laws J. who stated that under proportionality "it is not enough merely to set out the problem, and assert that within his jurisdiction i.e. the Minister chose this or that solution, constrained only by the requirement that his decision must have been one which a reasonable Minister might make". It was rather for the court to "test the solution arrived at and pass it only if substantial factual considerations are put forward in its justification: considerations which are relevant, reasonable and proportionate to the aim in view". It will often only be possible to test the soundness of an argument by requiring reasoned justification of this kind.
The experience with proportionality in European Conventions law shows full well that the concept can be applied with varying degrees of intensity so as to accommodate the different types of decision subject to judicial review.
On the other hand, it is argued, that proportionality allows too great an intrusion into the merits and demands that the court undertakes a balancing exercise for which it is ill-suited. It is important to address the matter directly since fears in this regard have been so prominent in the debate about proportionality. It should be made absolutely clear at the outset that advocates of proportionality do not favour substitution of judgment on the merits by the courts for that of the agency. It is not the task of the court to decide what it would have done if it had been the primary decision maker, and, as it has recognised, there is nothing in the concept of proportionality which entails this. It is true that proportionality does entail some view about the merits, since otherwise the three-part inquiry could not be undertaken. The way in which Lord Greene's test has been applied in practice to strike down agency action falling short of the absurd, also demands some view of the merits. The same can be said a fortiori about the revised meaning of the reasonableness test proposed by Lord Cooke.
There are said to be difficulties if we apply proportionality, particularly in those cases which have nothing to do with fundamental rights or penalties. It is' right to acknowledge such
