Doctrine of proportionality with case laws?

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.[1] 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.

OR

Proportionality means that the administrative action should not be more drastic than it ought to
be for obtaining desired result. Proportionality is sometimes explained by the expression ‘taking a
sledgehammer to crack a nut’. Thus this doctrine tries to balance means with ends.
Proportionality shares space with ‘reasonableness’ and courts while exercising power of review
sees, ‘is it a course of action that could have been reasonably followed’. Courts in India have
been following this doctrine for a long time but English Courts have started using this doctrine in
administrative law after the passing of the Human Rights Act, 1998. Thus if an action taken by
the authority is grossly disproportionate, the said decision is not immune from judicial scrutiny.
The sentence has to suit the offence & the offender. It should not be vindictive or unduly harsh.

SUPREME COURT CASES

1. 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

2. P. SRTC v. Hoti Lal.[7]

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.

3. In Sardar singh vs. Union of India,

a jawan, serving in the Indian Army was granted leave. While going to his home town, he
purchased 11 bottles of rum from the Army canteen, though he was entitled to carry only 4
bottles. In the Court Martial proceedings instituted against him on that ground, he was
sentenced to undergo R.I. for 3 months and was also dismissed from service. The Supreme
Court set aside the punishment & held the action taken against the appellant as arbitrary &
punishment as severe. The doctrine of Proportionality is an important principle. It enables
the Courts to check the possible abuse of discretionary power by the Executive. Though
there is much common substance in the principles of Irrationality & Proportionality, the
latter, however, requires the Court to judge whether the action taken was really needed as
well as whether it was within the range of courses of action that could reasonably be
followed.

What is public Interest Litigation? Explain the concept with HC and SC case laws?

The concept of public interest litigation (PIL) rests on the principle that any member of the public can
initiate legal proceedings on behalf of an aggrieved person, especially a person who is unable to
move to court on his or her own. Such proceedings can be initiated in either the High Court or the
Supreme Court for the enforcement of the constitution or legal rights of a person or a group of
person. The practice of PIL emerged on account of the liberal attitude of the Supreme Court, which
instead of insisting that only a person whose fundamental rights has been infringed can file a
petition, permitted public spirited citizen to move the court for the enforcement of constitutional
and legal rights of persons or groups who, because of their poverty or economically disadvantaged
position, were unable to approach the court for relief. It may be noted that key role in enunciating
the principle of PIL was played by Justice J. Bhagwati. He did not insist on observance of procedural
technicalities and even treated ordinary letters from public-minded individuals as writ petition.
To ensure that PIL is not misused, justice Bhagwati cautioned the court to satisfy itself that the person
bringing the case to the court was not doing so for personal gains or private profit or political
motivation or other oblique considerations. It is to be observed that the Supreme Court, by
permitting PIL or social action litigation, has considerably widened the scope of Article 32 of the
Constitution. In terms of principles of PIL, under Article 32, the Supreme Court can interfere
whenever and wherever any injustice is caused or being caused, by state action to the poor and
helpless person who cannot approach the court. By the exercise of this power, the court has
provided appropriate remedy to aggrieved persons.

ASPECTS OF PIL
1) Remedial in nature: Remedial nature of PIL departs from the traditional locus standi
requirements. It indirectly incorporated the principles enshrined in the Part IV of the Constitution of
India into Part III of the Constitution. By riding the aspirations of part IV into part III of the
Constitution, the Indian Judiciary had changed the procedural nature of the Indian law into a
dynamic welfare one. Bandhu Mukti Morcha v. Union of India, Unnikrishnan v. State of A.P., etc
were the obvious examples of this change in nature of judiciary.
 2) Representative Standing: Representative standing can be seen as a creative expansion of the well-
accepted standing exception which allows a third party to file a habeas corpus petition on the ground
that the injured party cannot approach the court himself. And in this regard the Indian concept of PIL
is much broader in relation to the American concept. PIL is a modified form of class action.
3) Citizen Standing: The doctrine of citizen standing thus marks a significant expansion of the court’s
rule, from protector of individual rights to guardian of the rule of law wherever threatened by official
lawlessness.
4) Non-Adversarial Litigation: In the words of the SC, in People’s Union for Democratic Rights v.
Union of India (AIR 1982 S.C. 1473)
“We wish to point out with all the emphasis at our command that public interest litigation…is a
totally different kind of litigation from the ordinary traditional litigation which is essentially of an
adversary character where there is a dispute between two litigating parties, one making claim or
seeking relief against the other and that other opposing such claim or resisting such relief”. Non-
adversarial litigation has two aspects.”

Case Laws

High Court

The Bombay High Court on 31 August, 2006 directed the broadcasters to give an undertaking
that they will abide by the Cable Television Network Act 1995 as well as the court's orders by
tomorrow, in view of larger public interest.

A division bench comprising Justices R M Lodha and S A Bobde were hearing a Public Interest
Litigation (PIL) filed by Professor Pratibha Nathani of St Xavier's College alleging that films
without certification by the Censor Board for Film Certification (CBFC) allowing 'free public
exhibition', were being shown on cable channels, which have a bad impact on children. Hence,
such films should not be shown and action be taken against those still running such content on
their channels.

The court on 23 August had allowed the cable operators and channels to screen only 'U' and
'U/A' certified films.

However, before that order, the police had taken action against the Multi-system operators and
seized their decoders due to which they could not telecast certain channels. Assistant
Commissioner of Police Sanjay Apranti told the court that they did not have a problem if the
channels provided the cable operators with new decoders.

Also, Zee Television and Star Television networks applied for the declaration in writing that they
would abide by the said Act and court orders.
The court also directed seven channels -- Star Movies, Star One, Star Gold, HBO, ZEE Movies,
AXN and Sony Max -- to furnish a list of all the films that they were to screen to the police.

Supreme Court

Directions to Preserve and Protect Ecology and Environment:

The second period of public interest prosecution began at some point in the 1980's and it identified
with the courts' advancement and inventiveness, where headings were given to ensure biology and
environment.
One of the most punctual cases conveyed in the witness of the Supreme Court identified with oleum
gas spillage in Delhi. With a specific end goal to keep the harm being done to environment and the
life and the soundness of the general population, the court passed number of orders. This is surely
understood as M.C. Mehta v. Union of India. The court for this situation has obviously set out that an
endeavor which is occupied with a risky or innately perilous industry which represents a potential
danger to the wellbeing and security of the persons working in the processing plant and living in the
encompassing territory owes an outright and non-delegable obligation to the group to guarantee
that no such damage results to anybody by virtue of unsafe or intrinsically hazardous nature of the
action which it has attempted.
Enviromental PIL has developed as a result of the court's translation of Article 21 of the Constitution.
The court in Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. watched that each resident
has principal right to have the pleasure in personal satisfaction and living as examined by Article 21
of the Constitution of India. Anything which imperils or weakens by behavior of anyone either in
infringement or in disparagement of laws, that personal satisfaction and living by the general
population is qualified for take plan of action to Article 32 of the Constitution. The instance of M.C.
Mehta v. Union of India, identifies with pollution brought about by the exchange effluents released
by companies into Ganga waterway in Kanpur. The court required the report of the Committee of
specialists and offered bearings to spare the earth and biology. In Vellore Citizens Welfare Forum v.
Union of India, this court decided that prudent guideline and the polluter pays rule are a piece of the
natural law of the nation. This court announced Articles 47, 48A and 51A (g) to be a piece of the
sacred order to secure and enhance nature.
In S. Jagannath v. Union of India, the Supreme Court managed an public interest appeal documented
by the Gram Swaraj Movement, a deliberate association working for the upliftment of the weaker
segment of society, wherein the candidate looked for the implementation of Coastal Zone Regulation
Notification dated 19.2.1991 and stoppage of concentrated and semi-escalated sort of prawn
cultivating in the biologically delicate beach front territories. The Court gave critical headings in the
instant case.

Parliamentary control over delegated legislation/ different forms of DL/ its importance in welfare
states/reasons for growth in India.

Parliamentary or Legislative Control

Under parliamentary democracy it is a function of the legislature to legislate, and it’s not only the
right but the duty of the legislature to look upon its agent, how they are working.
It is a fact that due to a delegation of power and general standards of control, the judicial control has
diminished and shrunk its area.
In India “Parliamentary control” is an inherent constitutional function because the executive is
responsible to the legislature at two stages of control.

1. Initial stage

2. Direct and Indirect stage

Initial stage: In case where there is a bill which provides of delegation of powers such a bill should be
accompanies by a legislation stating how much power has been delegated. The basic emphasis in
the initial stage is that whether the power has been validity delegated or not.

Second stage: (A) Direct Control, and (B) Indirect Control.

(A) Direct Control: In this the important aspect is the laying requirement which means that the rules
have to be placed before the Parliament. Laying comes into play after the rules are made and it
assumes three major forms depending on the degree of control which the legislative may like to
exercise.
(a) Simple laying (i.e. laying with no further direction): In this, the rules inform house come into
effect as soon as they are laid. It is simply to vides that the rules shall be laid before parliament as
soon as they are made or published. It is directory in nature.

(b) Negative laying or subject to annulment or modification: The rules come into force as soon as
they are placed before Parliament but cease to have effect if disapproved by the Parliament in
specified time i.e. within 40 days. It is directory in nature unless and until annulled by the
Parliament.

(c) Affirmative Laying: The technique may take two shapes:

(i) That the rules have no effect unless approved by a resolution of both houses of parliament.

(ii) That the rules shall cease to have effect unless approved by affirmative resolution. This technique
necessitates a debate in every case thus one object of delegation (viz. saving the time of Parliament)
is to some extent defeated. This requirement is mandatory in nature because rules made in draft
form shall be placed before both the houses of parliament for approval and then they will come into
force after they have been approved. If this procedure is not followed it affects the legal validity of
rule.

Therefore this procedure is sparingly used and reserved to cases where the order almost amounts to
an Act by effecting changes which approximate to true legislation, and cases where the spending of
public money is affected or where the order replaces local Acts or provisional orders. Amongst all
three methods simple laying is hardly used and negative resolution is the commonest form of laying.

Legal consequences of non compliance with the laying provision

In India, the position is not categorical, the consequence of non compliance with the laying
provisions depend on whether the provisions in the enabling Act are mandatory or directory. Now,
the second stage consists of two different parts.

1. Direct control

2. Indirect control

Direct control

Laying is an important and essential aspect under direct control and it is laid down as per the
requirement which means that after making the rule it should be placed before the Parliament. It
includes three important part as per the degree of control needs to be exercised.

1. Simple Laying

2. Negative Laying

3. Affirmative Laying
And “test of Mandatory” & “Test of Directory” are two main test.

Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into
impact then in such a case laying need is mandatory.
Where the provision is mentioned that the rules should be drafted in a particular format then it
becomes mandatory to follow the format.
Test of Directory – Where the laying need is next to enforce the rule into operation then it
will be directory in nature.

Indirect control
This is a control exercised by Parliament and its committees. Another name for such type of
committee is Subordinate legislation. The main work of the committee is to examine

1. Whether rule are according to general object of the act.

2. It bars the jurisdiction of the court in direct or indirect ways.

3. Whether it has retrospective effect or not.

4. Whether it safeguard or destroy the Principle of Natural Justice.

5. Expenditure involved in it is from Consolidated fund.

Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the executive to
follow certain rules or procedure.
To follow a particular format it may take a long time which will definitely defeat the actual objective
of the act. Hence, procedural control means that under Parent act certain guidelines are given which
need to be followed while whether it is mandatory or directory to follow it or not. It includes three
components:
1. Pre publication and consultation with an expert authority,
2. Publication of delegated legislation.
3. Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:
1. Scheme of the Act.
2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
 And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal
Council.

Factors responsible for the rapid growth of Delegated Legislation

 Pressure on Parliament – The number of activities in states is expanding which requires law
and it is not possible for the Parliament to devote sufficient time to every matter. Therefore
for this, the Parliament has made certain policies which allows the executives to make laws
accordingly.
 Technicality – Sometimes there are certain subject matters which requires technicality for
which there is a requirement of the experts who are professional in such fields and members
of Parliament are not experts for such matters. Therefore, here such powers are given to
experts to deal with such technical problems like gas, atomic, energy, drugs, etc.
 Flexibility – It is not possible for the Parliament to look after each contingency while passing
an enactment and for this certain provisions are required to be added. But the process of
amendment is very slow as well as the cumbersome process. Thus, the process of delegated
legislation helps the executive authority to make laws according to the situation. In the case
of bank rate, policy regulation, etc., they help a lot in forming the law.
 Emergency – At the time of emergency, it is not possible for the legislative to provide an
urgent solution to meet the situation. In such case delegated legislation is the only remedy
available. Therefore, in the times of war or other national emergencies, the executives are
vested with more powers to deal with the situation.
 The complexity of modern administration – With the increasing complexity in modern
administration and the functions of the state being expanded and rendered to economic and
social spheres too, there is a need to shift to new reforms and providing more powers to
different authorities on some specific and suitable occasions. In a country like Bangladesh,
where control over private trade, business or property may be needed to be imposed, and
for implementation of such a policy so that immediate actions can be taken, it is needed to
provide the administration with enough power.
And so, therefore for immediate and suitable actions to be taken there has been an immense growth
of delegated legislation in every country and being that important and useful it becomes a non-
separable part in the modern administrative era.

Types of Delegated Legislation

Delegated legislation means giving power or authority to someone lower than his rank to make laws. So
there can be many ways in which this excess of power can be given to subsidiary rank people or an
Executive. These types are as follows:
 Orders in Councils: This type of Delegated legislation can be given by Queens or the Privy
Councils. This Delegated legislation allows the Parliament to make laws without going
through the Parliamentary proceedings. Today, its main use is that it gives legal effect to
European directives. When the order issued under the privilege of the Queen or the Crown
such order is subject to review by the courts. But order issued by the Parliament may or may
not be subject to review by the courts as it is made within the prescribed limits Act of
Parliament. In both the case the question can arises that if this legislation is the same as the
Executive legislative. The answer to this question is yes, it is equivalent to executive
legislative. There is no major difference between these orders and Executive legislative
almost they both are same. The meeting of Privy council in such case could simply means a
meeting of some Privy Councillors which includes three or four ministers, President, Councils
 and Clerk of Privy Councils. This shows that this order is issued by the Executive who
exercises powers of the Council.
 Rules of the Supreme Court and the County Courts: The Parliament by statutes bestow
some persons or authority with the power to make laws for a specific purpose. But it is
different in England where a Court has been given wide power to make laws. This task of
making law has been entrusted upon the Rules Committee of the Supreme Court and the
County Courts. Entrusting Judicial branch to control its Procedural law to a great extent has
an advantage as it is given to that authority who knows better about it than any person.
Procedure and cost that are drawn by Rules Committee of County Courts deals by the County
Courts itself. Such rules are not subject to the control of Parliament. When these rules used
to come into force? It comes into force when the Lord Chancellors with the consent of the
Rules Committee of the Supreme Court confirms it.
 Departmental or Executive instructions or regulations: When the power of legislature
directly delegated to the administration such as a Board, Ministers or a Committee, then the
exercise of that given power results in delegation through Departmental or Executional
Instructions or Regulations. Sometimes very wide powers are given to the administration or
the delegated person. But this wide delegation of legislation is not accepted by the judiciary
as it is difficult for them to control administrative action.

 Delegated legislation by laws: It can be given in two ways, firstly, it can be given by laws of
autonomous bodies, e.g., Corporation and secondly, it can be given by-laws of a local
authority.
o By-laws of autonomous bodies: These autonomous bodies have got the power to
pass by-laws on matters affecting them and other people in that locality or people
residing in a particular area. For example, they can make laws as public utility
authorities for light, water, etc. Usually, these authorities are given the power to
make rules for regulating their working. Such by-laws are subject to judicial review. It
can be reviewed to check that it must not be ultra vires the Parent Statute. These
autonomous bodies have the power to frame rules for themselves. One more
example of this autonomous body is an association of Employers. The rules of these
association are termed as voluntary but this is not so in reality. It is fictitious as in its
effect these rules are binding upon members like other rules such as rules of a
professional association, industrial organisation, etc.
 By-laws of the local authority: Parliament has the power to make new local bodies or it can
alter the existing body. It empowers such body with powers to make by-laws for themselves
for specific purposes. These authority exercises excess power for public health, safety, and for
good rule and governance. These by-laws incur a penalty on its breach.

Term Civil Service/Nature ,Classification, Function, powers /duties of UPSC.

The Civil Services of India can be classified into three types—the All India Services, the
Central Civil Services (Group A and B) and State/Provincial Civil Services.

The All India Services (AIS) comprises Civil Services of India, namely the Indian
Administrative Service (IAS), the Indian Forest Service (IFS) and the Indian Police Service
(IPS).[1] A common unique feature of the All India Services is that the members of these
services are recruited by the Centre (Union government in federal polity), but their services
are placed under various State cadres, and they have the liability to serve both under the
State and under the Centre.[1] Due to the federal polity of the country, this is considered one
of the tools that makes union government stronger than state governments. Officers of
these three services comply to the All India Services Rules relating to pay, conduct, leave,
various allowances etc.

Power, purpose and responsibilities

The All India Services Act, 1951 empowers the government of India to make, after
consultation with state governments, rules for the regulation of recruitment and conditions
of service of the persons appointed to an All India Service. All India Service is governed by All
India Service (Conduct) Rules,1968 which specifies the code of conduct for Civil Servant in
general. The All India Service (Conduct) Rules, 1968 were amended latest by Govt. of India
by notification published in official Gazette of India on 10 April 2015.

Nature of Work
Responsibilities as vary with the seniority of the civil servant. Junior officers begin with
probation and move up in the hierarchy. At the district level the responsibilities are
concerned with district matters as well as all developmental affairs while at the divisional
level the responsibilities focus on law and order also. Policy framing is carried on at the State
and Central levels.

The Central Civil Services (CCS) are concerned directly with the
administration and permanent bureaucracy of the Government of India.
Most of the specialized fields in civil services in India belong to the central
services.
The Central Civil Services are classified into Group A and Group B, both of
which are gazetted.

The Central Civil Services (Group A) are concerned with the administration of the Union
Government.[6] All appointments to Central Civil Services (Group A) are made by the
President of India.
For Group B posts, the Combined Graduate Level Examination (CGLE) is conducted by the
Staff Selection Commission (SSC). All appointments to Group B are made by the
authorities specified by a general or special order of the President.