INTRODUCTION

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 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.

APPLICATION OF THE DOCTRINE

“’Proportionality’ is a principle where the Court is concerned with the process,
method or manner in which the decision-maker has ordered his priorities, reached
a conclusion or arrived at a decision.”It is a misconception that judicial review on
the basis of this doctrine is similar to appeal. In an appeal the appellate authority
is authorised to adjudge the whole matter again, whereas in the case when an
administrative action is challenged on the basis of doctrine of proportionality, the
appellate authority only ensures that whether the procedure was right or the
punishment given was the least restrictive way to fulfil its objective. In Indian
legal system a restrictive approach has been taken for this doctrine as if a broader
doctrine was adopted then the discretionary powers of the administration will
become redundant. It will allow the judiciary to encroach upon the powers of
executive. The judiciary cannot step into the shoes of executive and take actions
on its behalf. Hence the doctrine adopted in India is perfect to maintain this status.
The administrative tribunals deal with the matter of administrative actions, they
act as primary reviewer of these actions, courts only act as secondary reviewer.
This position was explained in R v. Secretary of State for the Home Department,
the Lord Bridge in this case held that when convention rights i.e. Fundamental
Rights are invoked then the court will act as a primary reviewer and if non-
Convention rights are involved, the court can only act as a secondary reviewer.
This arrangement does not allow the court to go into the merits of the
administrative action.
The Court will alter the punishment or measures taken by the administration only
if it is “Strikingly disproportionate” to the offence or misconduct.[4] The
punishment will only be reduced or reconsidered if it shocks the conscience of
the court. Only in rare case the court will reduce the punishment. The Apex Court
in Coimbatore District Central Coop. Bank v. Employees Assn[5] declared that
the Doctrine of proportionality is a vital organ of judicial review as with the
growth of administrative law and the wide discretionary power given to
administrative authorities there is need of a doctrine which can keep a check on
these powers, to prevent authorities from abusing them.

ANALYSIS OF SUPREME COURT CASES

Om Kumar v. Union of India

The Doctrine of Proportionality was adopted in Om Kumar v. Union of India.[6]
in this case the disciplinary authority had asked the SC to reconsider the quantum
of punishment given to four civil servants, the court refused to re-consider the
quantum of punishment as no principle of law was violated nor the punishment
was “Shockingly Disproportionate” to the mischiefs committed by the concerned
persons. This position of law was crystallised by the Supreme Court itself in later
cases

P. State Road Transport Corporation v. Subhash Chandra Sharma

The respondent in this case was charge-sheeted for disciplinary proceedings.
Three charges were registered against him, regarding grave misconduct, habitual
absence from duty, and abusing the cashier of the transport corporation. All the
three charges were proved against him and he was removed from the service.
Consequently, the respondent appeal against the decision of disciplinary
committee in the labour court. The court held that there was no infirmity in the
procedure used or in the findings of the committee, still the court set aside the
decision of the committee and reinstated him. The court did not give any reason
why the punishment was excessive. The Supreme Court held that the decision
passed by the labour court was arbitrary and whimsical. Further the court
observed that the punishment awarded by the disciplinary committee was not
“shockingly disproportionate” in any way to the charge proved against him as the
misconduct of the respondent was grave and intolerable. The court also observed
that the High Court failed to exercise its power under Art. 226 and omitted to
correct the decision of the labour court.

P. SRTC v. Hoti Lal.

The respondent was a conductor in the appellant’s corporation and he used to
misappropriate funds by not issuing tickets to passengers even after taking
money. The disciplinary committee found out and after conducting an enquiry
removed him from the service. The matter went to the High Court, and the
decision of the committee was overturned citing that the punishment was
disproportionate to the misconduct. The Corporation appealed in the Apex Court
on the ground that the punishment was just and fair as the relationship between
the corporation and conduction is a fiduciary one i.e. based on trust and the
conduct of the respondent is of such a grave nature that it breached their trust and
such person cannot be retained on these posts hence to maintain discipline and to
deter other conductors from committing breach of trust by misappropriating
money, he was removed from the post. The SC accepted this argument and said
that the punishment was not disproportionate and does not shock the conscience
of the court which would require the court to interfere in the matter.
The High Court again erred in deciding whether the punishment is
disproportionate enough to shock the conscience of the court.
Coimbatore District Central Coop. Bank v. Employees Assn.
The Apex Court in this case discussed the concept and applicability of the
doctrine extensively. The facts of the case are, the respondents were employees
of the bank and they went on a strike called by their union, the same was illegal
and unlawful. Disciplinary action was taken against them, the committee took a
liberal view and did not remove them from service although their 1-4 years of
cumulative increment was taken away, the matter went to labour court and it
upheld the charges against them and refused to set aside the punishment. In an
appeal to High Court single judge and subsequently division bench, the court
reduces their punishment saying that the same was disproportionate to the
misconduct and charges proved against them and considered it as harsh. Hence
an order was passed and of the disciplinary committee was set aside. This is again
a case where High Court failed to analyse the misconduct done by the respondent
and punishment awarded. The conduct of the respondent was grave and violative
of the code followed by the bank. The High court reduced the punishment on
compassionate grounds that they have a family and without these increments they
will not be able to sustain. The Doctrine of Proportionality is used when any
action taken by an administrative body is such that no reasonable authority would
have taken such measures to fulfil the objective or the punishment is so
disproportionate that it shocks the conscience of the court, in these kind of cases,
the court is empowered to review the quantum of punishment by itself or remit it
to tribunals for reconsideration. In the present scenario the court reduced the
punishment on compassionate ground which is not a valid ground for applying
doctrine of Proportionality and hence the decision of single judge and division
bench of the High Court were declared incorrect and the SC observed that HC
was not justified in reducing the punishment. the Court further observed that
discretionary powers have been given to administrative bodies and the High Court
cannot substitute the same by its own decision under Art. 226 of the Constitution.

Dev Singh v. Punjab Tourism Development Corporation

This is one of the cases where the SC reduced the punishment given by the
disciplinary committee by applying Doctrine of Proportionality. The appellant
was an employee of the corporation for 20 years and in his career there was not
even an allegation of misconduct against him. In the present case a disciplinary
enquiry was initiated against him for misplacing a file entrusted to him, which
amounted to a misconduct under by-law. The committee after completing its
enquiry concluded that this is a case where removal from the service would be
appropriate, accordingly he was removed from the post. He appealed in the High
Court which was dismissed and hence he appealed to the Supreme Court. The
Apex court agreed with the findings of the court. However, the Court refused to
accept that the misplacement of a file is such a grave misconduct as to remove
him from the service. The Court observed that he had been working with the
corporation for 20 years with no complaint of misconduct, and even this is not a
case of deliberately misplacing a file, it is only a case of negligence and to remove
him from service as a punishment is disproportionate and it is of such a nature
that shocks the conscience of the court. The Supreme Court further said that the
court will not interfere with the punishment imposed by the disciplinary
committee unless it is disproportionate to the misconduct, this is case which
satisfies the position. Therefore, the court to avoid further litigation reduced the
punishment itself.
This case is a perfect example of use of Doctrine of Proportionality. The doctrine
says that means used to fulfil the objective should be narrowly tailored and it
should be the least restrictive means. In this case the corporation wanted to deter
employees from acting negligently, hence it remove the appellant from service.
Even though there were other least restrictive means or punishment under bye-
law under which he was punished, but they were not used, the least restrictive
means was not employed, hence the court applied Doctrine of Proportionality in
this case and reviewed the quantum of punishment.

Coal India Limited v. Mukul Kumar Choudhuri

The respondent was removed from his post for being remaining absent for six
months despite orders by higher authority. The facts of the case are that he was
absent for six months because of some personal reasons which he could not have
avoided in any circumstances, he even sent his resignation to the corporation
however it was rejected and he was asked to join back. Just after his joining
disciplinary enquiry was initiated and he was removed from his post. The decision
was upheld by the High Court saying that the punishment is no disproportionate.
The matter came before the Supreme Court and it held that during disciplinary
enquiry he accepted his guilt and gave reason as to why he was absent and also
that he was not deliberately absent but the circumstances were beyond his control
and he even sent his resignation which was rejected by the company. The court
held that it is a case in which “no reasonable employer would have imposed
extreme punishment of removal in like circumstances.” The court said the
punishment is harsh and strikingly disproportionate to the misconduct.
On the doctrine of Proportionality, the Apex Court observed that “the imposition
of punishment is subject to judicial intervention if the same is exercised in a
manner which is out of proportion to the fault. If the award of punishment is
grossly in excess of the allegations made, it cannot claim immunity and makes
itself amenable for interference under the limited scope of judicial review”. The
court reaffirmed the position taken by it in the previous judgements.
Union of India v. Rajesh PU, Puthuvalnikathu
We have observed that the Doctrine is mostly applied to cases relating to
disciplinary orders and punishments, this is a case where the doctrine was applied
to different scenario.
In the present case, applications for some vacant posts were invited by the CBI.
Allegation of “nepotism and favouritism” were brought up during physical
efficiency test. Also some irregularities were claimed during the written as a
result, the selection list was cancelled. This was challenged before the court. In
an enquiry conducted by HC it was revealed that the impact of nepotism and
irregularities can be identified and there was no reason to cancel the entire list of
selected candidates. The court found irregularities in 31 selected candidates, the
HC passed an order accordingly. The HC court order was challenged before the
Supreme Court and it accepted the position taken by the High Court and held that
the Doctrine of Proportionality states that the administrative authority should not
take action severer than required to meet the purpose. The Court said that in this
there was no reason to cancel the entire list, it was sufficient to only cancel the
selection of those 31 candidates in whose selection irregularities were found and
proved.

FUNDAMENTAL FREEDOMS
In cases where fundamental freedoms are being restricted by administration, the
doctrine of proportionality is applied to check the validity of such restrictions. In
Om Kumar v. Union of India, the Supreme Court observed that restriction on
Fundamental freedom have always been checked on the “anvil of
proportionality”, it further said that the courts have been using this doctrine since
1950 to test the validity of restrictions imposed by administrative actions. The
doctrine of proportionality is being used in cases where administration restricts
fundamental rights through its actions, in these cases the court sees if the measure
taken by the body are the least restrictive means to achieve the purpose if they are
not then the restriction imposed will be quashed by using this doctrine. In cases
where the rights provided under Art.19(1) and 21 are being restricted by
administrative actions, the courts act as a primary reviewer and uses the doctrine
of proportionality. This implies that the court can go into the merits of the case
while applying doctrine of proportionality in Fundamental rights cases.
CONCLUSION
From the above analysis of cases it can be concluded that there is a misconception
about the application of this doctrine in India. In most of the cases it has been
observed that the High court erred in deciding whether a punishment is
disproportionate or not, the Supreme Court has reversed the decision of High
courts in most of the cases that the author has covered in this article. From the
above analysis it can be said that the Doctrine of Proportionality is only applied
in rare cases only where the punishment given by the administrative body is not
in proportion to the misconduct and it is of such nature that it shocks the
conscience of the court. Also that the doctrine cannot be used to reduce the
punishment on compassionate grounds. In one of the cases the High Court
reduced the punishment on compassionate ground, and as a result its decision was
set aside by the Apex Court. The doctrine of Proportionality is not only restricted
to cases of disciplinary orders, penalty or fundamental freedom but also to cases
where the measure taken by any institution was not required and a least restrictive
measure was available.