I.

TABLE OF CONTENTS

I. TABLE OF CONTENTS 1

II. INTRODUCTION TO A CRITICAL APPRAISAL OF PRINCIPLE OF PROPORTIONALITY

UNDER THE INDIAN CONSTITUTION 2

III. PROPORTIONALITY AND THE RULE OF LAW 10

IV. JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION IN INDIA 20

V. CRITICISM AGAINST THE PROPORTIONALITY PRINCIPLE 30

VI. FUTURE OF PROPORTIONALITY AND THE ALTERNATIVES 39

VII. CONCLUSION ON THE TEST OF PROPORTIONALITY 51

1
 II. INTRODUCTION TO A CRITICAL APPRAISAL OF PRINCIPLE OF
PROPORTIONALITY UNDER THE INDIAN CONSTITUTION

A. INTRODUCTION

Frequently, in administrative action cases, the criteria of proportionality is used as the

grounds for judicial review on the basis of its application. Originating in Europe, the theory
has now grown to become a significant component of European administrative law. “The
concept essentially states that the punishment should not be disproportionate in comparison to
the crime committed, and that the administrative procedures employed to achieve a specific
goal or result should not be more restrictive than is necessary to achieve that goal or result.” 1
Currently, administrative authorities have been given the authority to exercise discretionary
powers. Administrators have broad discretionary powers, but they cannot be exercised
arbitrarily; therefore, the concept of proportionality is used to keep these powers under tight
control, as previously stated.

It is important for a governmental entity to bear in mind the cause for which it is acting and
the means by which it is acting. If its actions stray from the object, are unjustified, are
discriminatory, or are disproportionate, they will be invalidated by a court under the law of
proportionality. India's Supreme Court of India accepted the concept of proportionality in the
case Om Kumar v. Union Of India, which was decided in 2011. It was emphasised in this
judgement by the Supreme Court of India that Indian courts have used this technique since
1950 in cases involving legislation that infringes fundamental rights guaranteed by Article 19
(1) of the Constitution. Despite the fact that India has adopted the Doctrine in a very
restricted manner. The European model has not been applied in its entirety. Under the
concept of proportionality, an organisation's actions and the rationale for which they were
granted must be in balance with one another.

According to Administrative Law, the notion of proportionality applies throughout the

Judicial Review process. “According to the idea, there must be a credible connection between
the desired goal and the activities taken in order to attain that conclusion. After determining
1
Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 (1) COLUMBIA
JOURNAL OF TRANSNATIONAL LAW 73 (2008).

2
that the action taken was not startlingly disproportionate to the court's awareness, a judicial
review process may be used to challenge that decision.”2 With the aid of an instance, it is
easier to comprehend. In the case of certain employees being absent from work, the
punishment must be proportionate; for example, the employer may treat it as unpaid leave
and issue a warning or perhaps a fine, but permanently firing them from service would be
disproportionate and unjustified. Sir John Laws described 'proportionality' as a legal theory in
which the court is concerned with the priority ordering made by the decision maker, as
defined by Sir John Laws.

An Indian Supreme Court precedent was set when the case of Union of India v. G.
Ganayutham was taken up. With respect to "wednesbury" unreasonableness and
proportionality in India, however, the Supreme Court declared that the English criterion of
"wednesbury" unreasonableness shall be followed as long as basic rights are not violated.
When considering whether or not to apply the concept of proportionality in cases involving
abuses of fundamental rights, the Court remained undecided. Om Kumar v. Union of India,3 a
major Supreme Court decision followed. “In this case, the Supreme Court of India agreed
with the application of the proportionality theory. The Supreme Court in this instance was
surprised to learn that Indian courts have routinely used proportionality since 1950 when
considering the validity of legislative activities impacting Article 19 (1) of the Indian
Constitution.”4

Previously, Indian courts had an opportunity to examine whether the constraints were
unreasonable in light of the circumstances and were not the least restrictive choice. Both
Article 14 (which identifies discrimination) and Article 21 of the Indian Constitution are
infringed upon by legislation that goes against their intent. When the Supreme Court of India
looked into whether the idea of proportionality could be used in administrative action, it came
to the same conclusion as the English court had. As the Supreme Court stated, even if the
concept of proportionality is not explicitly stated, in India, administrative measures harming
core freedoms (Article 19 and Article 21) are always examined on this basis. Since Articles
19 and 21 of India's Constitution are specifically addressed in this case, the Indian Supreme

2
Vicki Jackson, Constitutional Law in an Age of Proportionality, 124 YALE LAW JOURNAL 3094 (2015).
3
AIR 1951 SC 118.
4
(2016) 7 SCC 353.

3
Court said categorically that judicial review is applicable to administrative activities that
violate these two articles.

Article 14 of the Indian Constitution provides that when an administrative action is

challenged as discriminatory, the courts would conduct a Primary Review based on the idea
of proportionality that has been established by the Supreme Court. “The Wednesbury
Principle provides a supplemental review procedure that can be used when an administrative
agency's decision is questioned because it appears to be arbitrarily made. Moreover, pursuant
to Article 14 of the Indian Constitution, punishment in service law is frequently challenged as
arbitrary, leading the Supreme Court to rule that only Secondary Review based on the
Wednesbury principle would be relevant.”5

According to the Supreme Court, this is due to the fact that in matters involving service law
sanctions, there is no problem of basic freedom or discrimination under Article 14 of the
Indian Constitution to be considered or resolved. Although it has been a decade after the Om
Kumar case was resolved, no more progress has been made. As a result of the Om Kumar
decision, the rule controlling proportionality in India has remained virtually untouched. An
occasional fleeting mention of the concept of unreasonableness in a few subsequent decisions
that were subjected to the doctrine of proportionality could be considered a positive step
forward in the correct direction.

As a result, according to the Supreme Court of India, the scope of proportionality review with
respect to administrative action in India is severely limited. 6 This is due to the fact that much
administrative activity in India is challenged in court largely on the grounds of arbitrariness,
which may only be challenged under the Wednesbury unreasonableness doctrine. As a result,
the Om Kumar case had only a little impact on the scope and effectiveness of judicial review
in the country. According to the Supreme Court's decision in Om Kumar's case, there is no
explanation as to why the Wednesbury unreasonableness doctrine should be confined to
claims of arbitrariness in the first place.
B. LITERATURE REVIEW

5
AHARON BARAK, CONSTITUTIONAL RIGHTS AND THEIR LIMITS (2012).
6
Cora Chan, Proportionality and Invariable Baseline Intensity of Review, 33 (1) LEGAL STUDIES 1, 5 (2013).

4
1. Vikram Aditya & Jahnavi Sindhu, A historical argument for proportionality
under the Indian Constitution, 2 (1) Indian Law Rev. 311 (2012): As required
by the Indian Constitution, there are currently no standard conditions for
judicial review of state action in India. The Supreme Court has established
distinct standards of review for each of the various approved basic rights
clauses. It took considerable time and effort to ascertain the precise meaning
of constitutional terms such as "reasonable," "lawful process," and "equal
protection" in order to develop the criterion. As scholars have highlighted, a
sizable component of the judicial criterion is deferential to the state's
judgement of how fundamental rights may be curtailed. “This article argues
that the Framers of the Indian Constitution intended for the court to create
greater standards of judicial review than those already in effect. We argue that
the Indian Constitution, as formulated by the Framers, developed a
justification culture and that the proportionality test is the most effective
means of attaining the Constitution's objectives.”

2. Ashwita Ambast, Where's Waldo: Looking for the Doctrine of Proportionality

in Indian Free Speech Jurisprudence, 9 VIENNA J. on Const. L. 344 (2015) :
A term with widespread and developing worldwide applicability in the field of
constitutional rights adjudication, proportionality is a concept that has become
increasingly popular. The rule of law in India, including constitutional law, is
not an exception to this trend. This article examines the application of the
proportionality test by the Indian Supreme Court in cases involving the right to
freedom of expression in India. “While it is undeniable that the Supreme Court
employed the proportionality test, it is argued that the application was
selective and inconsistent in its application. Achieving a proper balance is
mandated by law, and it has evolved into an essential, indispensable
component of every constitutional instrument as well as a universal criterion
of constitutionality.” The concept of proportionality, in particular, may be
traced back to Robert Alexy's dissertation titled "The Theory of Constitutional
Rights," written in German.

3. Poonam Rawat, Doctrine of Proportionality: Expanding Dimensions of

Judicial Review in Indian Context, 3 (1) Dehradun Law Rev. 246 (2011) :
5
 Proportionality is increasingly being used as a new standard for judicial
review of administrative action. It is deeply ingrained in the continental United
States' administrative law system. It is believed that this concept is capable of
effectively decreasing arbitrariness in administrative action. When it comes to
evaluating the rationality component of reasonableness, the legal community
is divided on whether it advances beyond the archaic Wednesbury approach.
Both can be resolved. “The judicial review principle, which holds that the
reviewing court may not inquire into the merits of a decision, and the concept
of proportionality, which holds that the reviewing court may inquire into a
portion of the case's merits, are mutually exclusive. While the courts are
constantly debating the principles of this idea, a comprehensive examination
of the case law reveals the courts' difficulty in grasping and applying this
unique legal theory efficiently.” To grasp the notion of proportionality, which
serves as a fundamental legal principle and the bedrock of judicial review of
administrative activity, one must first grasp what it is.

4. Kai Möller, Proportionality: Challenging the critics, 10 (3) International

Journal of Constitutional Law 87 (2012): While proportionality has been the
key doctrinal tool in international constitutional rights law for decades,
constitutional theorists have only lately begun to develop theoretical
interpretations of the concept of proportionality in constitutional law. Recent
scholarship has called into doubt the doctrine's usefulness, focusing on its
apparent incapacity to correctly deal with moral difficulties as well as the
purported impossibility or impressionistic nature of balancing the two
extremes of a choice. This essay examines the arguments advanced by the
opponents and concludes that they have failed to make a convincing case
against the principle of proportionality.

5. Anand Byrareddy, Proportionality Vis-à-Vis Irrationality in Administrative

Law, SCC Online 1 SML L Rev 158 (2018): In discussing the issue
Proportionality vis-à-vis Irrationality as recognised in administrative law, the
author has taken into account that we must know the differences between the
scheme of things in England and India. It was noticed by the author that the
evolution of administrative law by reference to the decisions of the Supreme
6
 Court has been sculpted with the English textbooks and the rulings of the
English courts giving directions. In the Indian constitutional tradition,
proportionality and reasonableness are tightly intertwined as the
proportionality principle has always been regarded instrumental to the
reasonableness principle and the proportionality test is recognised as part of
the reasonableness test. Nevertheless, in most of the EU legal systems and
particularly in European case law, the reasonableness concept is independent.
The practise of the Indian court in engrafting the doctrine of judicial review as
part of Indian law in contrast with the development in England was being
often followed in India. Sometimes it was just following the English practise
at times it was not being accepted. It is about time that the Indian judiciary
create its own plan of action in this respect.

6. Namita Vashishtha, Principle  of  Proportionality  : Extent and Application in

Industrial Disputes, 1 SML L Rev 158 (2018): Public authorities must preserve
a sense of proportion between their specific purposes and the methods they use
to achieve those goals, ensuring that their actions only infringe on people'
rights to the extent required to defend the public interest. Administrative
activities must be fair relative to the overarching purpose. The proportionality
principle requires the court to weigh the pros and cons of an administrative
action. "Reasonableness" is a legal concept with several uses. It's a normative
phrase since it's used to analyse behaviours, decisions, norms, institutions, and
judgements. If the balance is favourable, the court will uphold the
administrative action. Any decision that will affect the public and specific
persons must be weighed. An administrative action may be rescinded if it was
disproportionate to the intended harm. Administration activities must match
the aim.

7. Ashish Chugh, Is the Supreme Court Disproportionately Applying the

Proportionality Principle?, (2004) 8 SCC J-33: Higher courts in India use a

proportionality test for addressing Article 14 violations (except when State
action is said to be arbitrary under Article 14). Some say the proportionality
test should be used to judge arbitrary conduct. The proportionality test is based

7
 on substance, not form. In Ranjit Thakur 7, the Supreme Court accepted the
proportionality test but adopted the "irrationality-based Wednesbury test." It
would be erroneous to imply that the proportionality test is employed when
judges declare a sentence "shockingly or excessively disproportionate," as this
is a result of the Wednesbury test. In Indian case law addressing Article 14,
proportionality has never been used to evaluate general policy choices, only
harsh administrative sanctions. This latter group is easier to consider since the
punishment serves as a standard for comparing administrative options. In
India, proportionality will be tested when political choices are criticised as
"disproportionate" rather than "arbitrary." Instead of merely repeating
"arbitrary" to wish away Acts of Parliament, the Court would have to consider
whether relevant concerns were fairly balanced or weighted (perhaps by using
the fourfold test).

8. A.K. Sikri, Proportionality as a Tool for Advancing Rule of Law, (2019) 3

SCC J-1: The legal sources of proportionality, in this whole discussion, are
that it becomes a criterion for realisation of constitutional rights. Given that it
seeks to protect democracy, it is a democratic idea. Democracy is based on a
balance between constitutional rights and the public interest, which is
achieved through limitation clauses, which themselves are based on
proportionality. Democracy is constitutional, incorporates human rights, and is
based on balancing constitutional rights and the public interest. Proportionality
in this procedure is determined by "the rule of law," which is a constitutional
principle. Democracy, the rule of law, principle theory, and constitutional
interpretation may all be used to infer constitutional proportionality. One of
these four sources—or all four used together—can show proportionality's
constitutional status when the opposing principles are constitutional and the
legality of the limiting sub-constitutional regulation is contested. For the
liberties at stake and constitutional democracies in general, this is vital. The
rule of law is improved during this process via proportionality.

7
Ranjit Thakur v. Union of India, (1983) 2 SCC 442.

8
 9. Syed Shah Mohammed Quadri, “Judicial Review of Administrative Action”,

(2001) 6 SCC J-1: Proportionality is a new ground to overturn a ruling. This is

based on German law. It's used to evaluate administrative activities
worldwide. It means that excessive force should not be used to achieve a goal
and that criticism should be proportional to the situation or crime. To show
this, the verdict must be unreasonable. Section 11-A of the IDA accepts this
idea. This category includes cases when an employee was fired for a minor
offence, such as a conductor being fired for not giving a passenger a ticket. In
India, proportionality is part of Article 14, therefore the Supreme Court
declared in the Bhagat Ram case8 that any penalty must be equal to the crime;
otherwise, Article 14 would have been violated.
10. Proportionality in India: A Bridge to Nowhere? By Aparna Chandra9

The Supreme Court of India has maintained that a measure that limits a basic
right should bear a proportionate link to the right from the very beginning of
India's constitutional republic. However, the Court has only recently
developed a formal four-part proportionality test to examine the
constitutionality of rights restriction legislation, beginning in 2016 with
Modern Dental College and Research Centre v. State of Madhya Pradesh. I
discuss how the Supreme Court has used the notion of proportionality in its
recent case law in this paper. I contend that the Supreme Court's interpretation
of proportionality is riddled with conceptual ambiguity and is the result of the
Court's (erroneous) belief that proportionality has always been present in
Indian constitutional law and that, as a result, adopting the test necessitates
little change from the Court's current procedures for rights review. The Court's
strategy of incorporating proportionality into the pre-existing framework for
rights review has limited proportionality's disruptive potential in reshaping
legal culture, in realigning citizens' relationships with the State, and in
realigning the Court's relationships with other branches.

11. Arguments for proportionality of Navin Sinha10: -

8
Bhagat Ram v. State of Punjab, (1972) 2 SCC 170.
9
Aparna Chandra, Proportionality in India: A bridge to nowhere?, (2020) 3(2) UNIVERSITY OF OXFORD
HUMAN RIGHTS HUB JOURNAL 55-86.
10
Three Arguments for the Application of Proportionality in Rights Review in India, ECONOMIC AND POLITICAL
WEEKLY (2022), available at: https://www.epw.in/journal/2022/7/commentary/three-arguments-application-
proportionality-rights.html (last visited Jun 27, 2022).

9
 In recent years, the Supreme Court has relied more and more on the
proportionality concept to assess whether laws restricting basic rights are
constitutional. In cases involving individual autonomy (Navtej Singh Johar v.
Union of India, 2016), privacy rights (Puttaswamy v. Union of India), and the
definition of free expression and its restrictions, proportionality has played a
significant role (Anuradha Bhasin v Union of India, 2020). What, therefore, is
it about proportionality that has made it one of the contentious but popular
processes in review jurisprudence? Many people believe that proportionality is
a byproduct of the current trend of global constitutionalism (Sweet and
Mathews 2013). As Justice Chandrachud noted, proportionality is "an crucial
component of the safeguard against arbitrary governmental action." Its appeal
is due to both its ability to provide a theoretical underpinning for basic rights
and the simplicity with which it fits the institutional framework of review
jurisprudence.

12. Administrative action and doctrine of proportionality in India by Ajoy

P.B11.: -

The main topic of debate in administrative law has been the extent of judicial
scrutiny of administrative action. The idea of Wednesbury reasonableness was
first embraced by common law nations, particularly India, to assess
administrative conduct. However, over time, under the influence of civil law
systems and Strasburg jurisprudence, common law nations have begun to
increasingly adopt the notion of proportionality as the benchmark for judicial
scrutiny. The British Model, or the state limiting notion of proportionality, and
the European Model, or the optimizing thought of proportionality, are the two
models of proportionality. The European approach is favoured over the other
since it is more objective. In the year 2000, the Supreme Court of India
approved the proportionality principle. However, the idea is still not accepted
by the Indian legal system today. There are very few instances when the
theory has really been put into practice. Applying the proportionality principle
to administrative action reviews in India is urgently needed.
11
Ajoy, Administrative Action and the doctrine of proportionality in India, (2012) 1(6) IOSR JOURNAL OF
HUMANITIES AND SOCIAL SCIENCE 16-23.

10
 13. Proportionality and constitutional review by Paul Craig12: -

Aparna Chandra has written an informative and understandable examination

of how the Indian Supreme Court has utilized proportionality in certain recent
decisions. 1 A substantial amount of research has been done to examine how
proportionality is and ought to be employed when courts conduct
constitutional reviews. 2 This includes any material that questions the use of
this exam for review at all or is critical of it. Space prohibits a comprehensive
exegesis of these topics. This brief statement is intended to bring up and argue
a number of themes that are at the heart of these discussions.

14. Principle of proportionality and challenge to human rights by Juan

Cianciardo13: -

For the last 20 years, constitutional courts have used the proportionality
principle as a method to ensure that the state would fully uphold human rights
(or basic rights). Several nations, including the United States, Argentina,
Germany, Great Britain, Spain, Italy, France, Belgium, Denmark, Ireland,
Greece, Luxemburg, Holland, Portugal, and Switzerland, to name a few, as
well as the European Court of Human Rights, the Inter-American Court of
Human Rights, and the European Court of Justice, apply this principle in both
civil law and common law systems. The concept is often referred to as the
"principle of reasonableness" in common law systems. 3 You may locate court
rulings in those jurisdictions that apply the idea to civil law, administrative
law, criminal law, and other areas of law in addition to constitutional
concerns. According to the proportionality principle, any laws that have an
impact on human rights must be reasonable or proportionate. Adequacy,
necessity, and proportionality stricto sensu make up the three sub-principles
that make up the analysis of proportionality. Adequacy is the first sub-
principle, which states that a legislation that impacts a human right must be
appropriate to fulfill the intent of the legislature. In other words, the
interpretation must determine if the means are capable of accomplishing the

12
Supra note 9.
13
Juan Cianciardo, The principle of proportionality: the challenge of human rights, (2010) JOURNAL OF CIVIL
LAW STUDIES, available at:
https://www.researchgate.net/publication/216827143_The_Principle_of_Proportionality_the_Challenge_of_Hu
man_Rights (last visited Jun 27, 2022).

11
 objective after defining the end that the legislator sought to achieve and the
methods that the legislator had created to do so. Through the second sub-
principle, the interpreter determines whether the legislator selected the option
that restricts the fewest human rights out of all those that may have served the
same purpose. In other words, a standard will only satisfy the necessity test if
it is the one among options with equivalent effectiveness that restricts rights
the least.

15. Principle of proportionality in International law by Thomas Cottier,

Roberto Echandi, Rafael Leal-Arcas, Rachel Liechti, Tetyana Payosova,
Charlotte Sieber-Gasser14: -

Although the preservation of basic rights is without a doubt a priority, it is still

uncertain how far the concept of proportionality should be applied to other
areas of international law. Therefore, outside human rights, the study
investigates its function in a few areas of public international law. The
analysis proceeds with a look at the role played in the law of multilateral trade
regulation of the World Trade Organization and in bilateral investment
protection, starting with the traditional sphere of retaliation and marine border
delimitation. In our results, we create a distinction between horizontal and
vertical constellations of legal protection in an effort to explain variations in
resort to proportionality in the different domains. Different settings and kinds
of proportionality may be found in international law. Other areas use the
concept in a less complex and sometimes ambiguous way, despite the fact that
it plays a significant role in the protection of human rights, adopting
constitutional theories and often a three-tier test. It's noteworthy to note that
proportionality derives from the law of retaliation as well as the equity-based
notion of maritime border delimitation. The former sought to restrict
retaliation to what was necessary to accomplish certain aims, adopting the
standards of necessity in light of an uncontested government policy.

16. Principle of proportionality in modern Ius Gentium: -

14
Thomas Cottier, The principle of proportionality in International law, Working paper no. 2012/38, NCCR
TRADE REGULATION, available at: https://www.wti.org/media/filer_public/9f/1b/9f1bd3cf-dafd-4e14-b07d-
8934a0c66b8f/proportionality_final_29102012_with_nccr_coversheet.pdf (last visited Jun 27, 2022).

12
 The standards for a just and ideal balance of interests are referred to as the
proportionality principle. It has achieved institutional and academic
acceptability in the realm of international law and is often used in international
conflicts. Using an interdisciplinary approach to international law, this essay
seeks to investigate the principle's long-term implications. It upholds
proportionality's historical significance in the field of international law and
regards its well-known contribution to the introduction of legal flexibility
while adhering to its traditional meaning. The study also challenges its modern
ethos, which is historically predicated on its relationship to equality. In order
to do this, it looks at the idea's historical origins in the early modern law of
nations as well as how a generic theory like this should be seen as being
relevant to personal interactions. The goal is to reconsider the proportionality
concept in contemporary ius gentium in light of how public and private law
principles must be construed in relation to one another and continue to take on
new forms as a result of their common history. We may study the necessity for
equality in the international domain in this sense, which will be shown
specifically for three different areas where proportionality is dominant: the law
of war, the law of maritime delimitation, and international human rights
legislation.

17. Analysis of proportionality judgement by Raanan Sulitzeanu-Kenan,

Mordechai Kremnitzer and Sharon Alon: -

One of the most crucial rules for deciding between competing values is legal
proportionality. The variables that affect how perceptions of proportionality
are formed are, however, not well understood. Using a sample of 331 legal
specialists, this study delivers the first empirical investigation in this area
(lawyers and legal academics). The experiment's focus is on the anti-terrorist
military tactic of targeted murders, which has generated legal controversy. Our
experimental results indicate that judgements of proportionality are open to
data that are meaningful from a normative perspective. In support of the
impact of ideological preferences on such assessments, we also uncover
substantial correlational evidence. These findings hold true for both
proportionality theories. We contend that the case's facts and the experts'
preferred policies serve as a shared foundation for the proportionality

13
 conclusion. We discuss the implications of the results for the literature in
psychology and law.

18. Proportionality and variable intensity of review by Julian Rivers15: -

The Universal Declaration of Human Rights has a number of restrictions on

human rights in ARTICLES 29 and 30. In order to ensure proper recognition
and respect for the rights and freedoms of others as well as to uphold the just
standards of morality, public order, and the general welfare in a democratic
society, everyone shall only be subject to legal limitations that are determined
to be solely for those purposes. This is stated in Art. This limiting phrase is a
generic one. Domestic Bills of Rights from countries like Canada1, New
Zealand2, and South Africa all have comparable provisions. 3 The European
Convention on Human Rights, on the other hand, has particular exclusionary
provisions, most notably in paragraphs 8 through 11. In this instance, the text
refers to limitations on the exercise of the right that are "regulated by law and
required in a democratic society"4 to accomplish a variety of uniquely
customised legitimate state goals. Since these rights might be limited, they are
often referred to as "qualified" rights. Therefore, it is often a two-step
procedure to determine if a Convention right protected by the Human Rights
Act of 1998 has been infringed. In order to determine whether a right has been
limited at all, the court must first determine whether such restriction can be
supported. The collection of standards used to determine whether a right
restriction is reasonable is known as the theory of proportionality in the broad
sense. Limitations on rights that are reasonable are acceptable; those that are
excessive are not.

19. Proportionality and supreme court of India by Abhinav Chandrachud: -

The Supreme Court of India declared in a judgement decided in 2000 that the
proportionality theory might be used to evaluate the legality of certain
categories of administrative actions, perhaps for the first time in the court's
history. However, in following decisions, the Supreme Court of India has
continued to solely use the antiquated judicial review principles with which it
is most aware, notably the Wednesbury unreasonableness concept, in an

15
Id.

14
 apparent exercise of the new proportionality theory. This study makes the
point that the proportionality doctrine in India is not truly what it is elsewhere
by empirically examining a collection of cases in which the Supreme Court of
India has most often used the "proportionality" doctrine—public sector
employment decisions. The Oxford University Commonwealth Law Journal
published a refined version of this essay in 2013.

20. Doctrine of proportionality by Ram Pandit16: -

In every community, the goal of the law is to distribute authority while

limiting its excess. Power must be exerted within the Four Walls of Law and
within the Prescribed Legal Limits. This is especially true when such power is
utilized at the discretion of an Administrative Authority. These powers may be
misused, thus they must pass the stringent scrutiny of judicial review. In the
past, the courts only had control over the scope and authority of the power
deployed. However, as the concepts were developed via case law, courts also
began to regulate how an administrative entity may use such a jurisdiction.
The courts have therefore developed a number of doctrines and principles that
enable them to interfere in an administrative discretion when it is irrational,
unreasonable, or involves abuse of power. This is due to the rapid
development of administrative law and the need to control the misuse of
discretion granted to the exercising authority. The "Doctrine of
Proportionality" is one such rule. According to the idea of proportionality, an
administrative decision that is made with the use of discretionary authority
must take into account the ramifications of its implementation.

21. Proportionality as a constitutional doctrine by Dimitrios Kyritsis 17: -

According to The Global Model of Constitutional Rights According to Kai
Möller, a broad moral right to autonomy underpins the proportionality test.
Everything that enhances one's self-concept is protected by this purported
right. Of course, it may be constrained when weighed against other factors like
other people's rights. However, it always places a burden on the state to
explain the restriction. Möller argues further that the best way to understand

16
Ram Pandit, Doctrine of proportionality, (2018) 1(1) LAW AUDIENCE JOURNAL, available at:
https://www.lawaudience.com/doctrine-of-proportionality (last visited Jun 27, 2022).
17
Id.

15
 the use of proportionality is as a means of defending the right to autonomy.
The key points of Möller's hypothesis are outlined in this review article, along
with two criticisms. It first questions if there is a universal right to autonomy
since it would create an intolerably onerous burden on others. Second, it
contends that the key elements of the practice of proportionality may be
explained and justified without resorting to a right to autonomy. Like other
constitutional theories, proportionality is defendable if it is based on practical
concerns about how to improve overall rights compliance, namely institutional
and epistemic ones. These factors stand apart from any substantive theories of
rights.

22. The Limited Usefulness of the Proportionality Principle by Yun chein

Chang-

Around the globe, constitutional law and administrative law both use the
proportionality concept. We contend that this doctrinal approach is both
practically ineffective and philosophically unsound. Our main reasons are that,
first, the proportionality principle, which essentially amounts to an incomplete
version of cost-benefit analysis since it deliberately excludes certain costs and
benefits, is an inappropriate instrument for legislative and administrative
decision-making. As a consequence, welfare-maximizing policies could not
satisfy the proportionality analysis test. Second, the German theorist Robert
Alexy's prominent Paretian articulation of the proportionality principle renders
it either ineffective or lethal, which is indicative of legal academics' attempts
to analyze proportionality. When comparing various means, Alexy's weight
calculation is useless. Third, the proportionality concept may be used by
courts to constitutional review in ways that are unintended ex ante and may
succumb to its intrinsic loss aversion, which is difficult to prevent by
rephrasing.

23. Constitutional law in age of proportionality by Vicki J Jackson18: -

Many nations recognize proportionality as a fundamental element of

constitutional law, which calls for government restrictions on freedoms to be

18
Vicki Jackson, Constitutional Law in an Age of Proportionality, YALE LAW JOURNAL (2022), available at:
https://www.yalelawjournal.org/article/constitutional-law-in-an-age-of-proportionality (last visited Jun 27,
2022).

16
 justified, stronger reasons for larger restrictions, and penalties that are
proportionate to how serious a crime was. The idea of proportionality, which
was created by courts in countries like Canada, has given decision-making
concerning hotly disputed constitutional principles an organized, clear
framework. Other advantages of proportionality include its capacity to bring
constitutional law and constitutional justice closer together, to provide all
levels of government a shared dialogue about rights, and to help uncover the
types of democratic process flaws that call for more judicial scrutiny. The
merits of structured proportionality theory and recent comparative experience
with it were not included in earlier U.S. discussions over "balancing." The
concept of proportionality analysis is present in several areas of U.S.
constitutional law. Here, I make the case for increased use of proportionality
theory and principles while simultaneously making the case that not all
constitutional rights issues can be resolved via proportionality analysis.
Categorical presumptions may be advantageous for free expression, but
proportionality may be important in how they are used and created. More
case-by-case evaluation of the "unreasonableness" or "disparity" of police
conduct would better protect rights and the rule of law. The Fourth
Amendment, which guarantees a "right" against "unreasonable searches and
seizures," is replete with categorical rules protecting police conduct from
judicial review. The Eighth Amendment review of prison sentences might
benefit from greater application of proportionality principles; "disparate
effect" equality arguments may be better handled by more proportionate
review criteria. The U.S. Constitution's ability to both safeguard rights and
promote efficient democratic self-governance would be improved by
understanding the benefits and limitations of proportionality.

24. An eye for an eye: Proportionality and Surveillance by Kevin Macnish19: -

Although it is often said that monitoring should be appropriate, it is never

made explicit what proportionate surveillance would entail beyond an intuitive
feeling of an act being excessive. In order to support my claim that monitoring
should actually be reasonable, I reference Thomas Hurka's work on
proportionality in war. After making a distinction between the proportionality
19
Id.

17
 of monitoring as a whole and surveillance as a specific act, I address criticisms
of adopting proportionality as a valid ethical metric. From there, I contend that
any measure of proportionality should only take specific advantages and
drawbacks into account. Finally, consider how a particular type of
surveillance's proportionality may be impacted by the situation. In conclusion,
I maintain that proportionality is not only an important moral standard by
which to judge surveillance, but also one that must be met. Furthermore, even
if it is challenging to examine, we shouldn't let that stop us from attempting to
do so.

25. Proportionality and constitutional culture by David Schneiderman20: -

Without a doubt, the world's predominant method for settling public law
conflicts at the moment is proportionality. We may argue that proportionality
has reached a global scale. High courts throughout the globe are using its
techniques. Its techniques are advised as a balm to provide credibility to novel
and contentious modalities of conflict settlement if they haven't already been
adopted. 1 Claims concerning the universality of proportionality are usefully
challenged by Cohen-Eliya and Porat. They do this by concentrating, in the
manner of Montesquieu, on the uniqueness of national constitutional cultures.
With an emphasis on Germany and the United States, the authors provide a
trans-systemic analysis of proportionality in constitutional law. There are extra
quick trips to Canada and Israel. To what extent can it be argued that legal
systems are convergent toward a single standard of review in constitutional
cases? That is the question that Cohen-Eliya and Porat seek to answer. On the
other hand, they assist us in comprehending the degree to which various ive
constitutional cultures may obstruct such convergence. This is a condensed
book with laudable goals on a big topic.

C. RESEARCH QUESTION

● What are the different primary and secondary rules surrounding the doctrine of
proportionality and how to differentiate between them?

20
Moshe Cohen-Eliya & Iddo Porat, Proportionality and Constitutional Culture, CAMBRIDGE UNIVERSITY
PRESS, 2013.

18
 ● What has been the recent judicial trend in applying the doctrine of proportionality
especially w.r.t. Punishment cases?

● How has the application of proportionality been to cases other than punishments?

● What are the constitutional challenges currently plaguing the doctrine of

proportionality?

D. RESEARCH OBJECTIVE

To make the readers aware of the historical underpinnings under Indian law that deal with the
doctrine of proportionality.

● To differentiate between primary and secondary rules.

● To appraise the recent judicial trend in proportionality in punishment cases.

● To check the application of proportionality to other cases than punishments.

● To identify the constitutional challenges currently plaguing the doctrinally of

proportionality.

E. STATEMENT OF PROBLEM

The Wednesbury principle is on the approach of extinction on a worldwide basis, according

to some experts. A much more rigorous style of evaluation that evaluates whether the
decision maker adequately balanced the multiple factors he must consider before making a
choice is swiftly replacing it. The philosophy of proportionality is gradually replacing it.
Furthermore, there are two competing proportionality models: the European model and the
British model, both of which are used in the United Kingdom. In terms of efficiency and
objectivity, the European approach is the more efficient and objective of the two approaches.

19
In the Indian context, it is abundantly clear that, despite the fact that proportionality was
incorporated into Indian law as early as 2000, the principle is not widely used in the country.
Although the theory, as accepted by the Supreme Court, has a limited range of application, it
has also been used only infrequently within that range. “Indian courts were granted regulated
authority in the name of this philosophical framework. Furthermore, the philosophy
maintained a rather narrow focus throughout its history. However, it is vital that the theory be
correctly developed and that it be put into practise in order to keep the activities of
administrative organisations within the confines of proportionality when they surpass the
requirement of reasonability and enter the realm of arbitrariness.”21

The doctrine's goal is not to undermine an administrative body's position, but rather to control
all activities in order to ensure that no administrative body's action crosses the line into the
territory of established legal standards.22 It is vital to remember this. A range of causes,
including the improvement of the legal system and the preservation of citizens' rights, have
contributed to its development. Indeed, Indian courts will be required to actively consider
implementing the law of proportionality in all instances, regardless of whether the cases issue
basic or ordinary rights of people / individuals in question. “In part, this is due to the fact that
human rights jurisprudence, which has taken root in the legal system, embraces not just
fundamental rights but also non-fundamental rights, as well as fundamental rights. Because of
this, the proportionality criterion must be implemented, because otherwise, the use of steam
hammers to split nuts will increase, even when nut crackers are sufficient.”
F. RESEARCH METHODOLOGY

The author will make every effort to incorporate data gathered indirectly from third-party yet
authoritative sources that have already done and published research studies and surveys on
the subject. Additional sources may include newspaper articles, independent case studies, and
market observer reports.

G. SIGNIFICANCE OF THE STUDY

21
Sujit Choudhry, So What is the Real Legacy of Oakes?: Two Decades of Proportionality Analysis under the
Canadian Charter’s Section 1, 35 SUPREME COURT LAW REVIEW 501 (2006).
22
Aileen Kavanagh, Defending Deference in Public Law and Constitutional Theory, 126 LAW QUARTERLY
REVIEW 222 (2010).

20
It has been the Supreme Court of India's position since the country's constitutional republic's
foundation that any restriction on a fundamental right must be proportionate to the right in
question. Only recently, beginning with the case of Modern Dental College and Research
Centre v. State of Madhya Pradesh23 in 2016, has the Supreme Court formalised a four-part
proportionality test for determining the constitutionality of rights-restricting legislation in
order to examine the constitutionality of such legislation.

Due to the far-reaching repercussions of the Supreme Court's approach to the idea of
proportionality, this analysis is essential to understanding the case. When it comes to
proportionality, the Supreme Court's approach is riddled with conceptual ambiguity. “This is
due to the Court's (erroneous) assumption that proportionality has always existed in Indian
constitutional law and that adopting the test necessitates the Court doing nothing more than
what it already does in its rights review practises. The Court's method of incorporating
proportionality into the pre-existing framework for rights evaluation has lessened the
disruptive potential of proportionality in terms of transforming legal culture and realigning
citizens' ties with the state, as well as the Court's connections with other branches of
government, as demonstrated by its decisions.”24 The importance of this work is underscored
by the fact that there are such intricate difficulties around the proportionality concept.

23
AIR 2016 SC 121.
24
Vikram Aditya Narayan & Jahnavi Sindhu, A Historical Argument for Proportionality under the Indian
Constitution, 2 (1) INDIAN LAW REVIEW 51 (2018).

21
 III. PROPORTIONALITY AND THE RULE OF LAW
A. INTRODUCTION
As discussed in previous chapter, the principle of proportionality has always been in
challenge in India and different interpretations have been enumerated through judicial and
administrative review of the principle. As the basic principle of the Constitution of India
there must be connection between the rule and its object. The principle of proportionality
emanates its importance as it goes to the root of the fundamental principles of the
constitution. The wednesbury principle, as discussed above, cannot help india in deciding a
subjective issue like the proportionality principal as being an English principle having a
totally different circumstances than India. It is evident from the above literature review that
judiciary has enlarged its arms to set wrong things right in order to correct the overarching
laws that disturb the basic rights of a person. As rightly said that you cannot shoot a sparrow
with a canon. The interpretation of the principle has great impact on a general public at large.
As discussed in the last chapter that power must be exert within the four walls of law.
To ensure that administrative authorities do not misuse their discretionary powers, courts
have developed a set of guidelines. Courts have the power of judicial review whenever an
action performed by any authority is contrary to the law, inappropriate, unreasonable, or
illogical. The notion of proportionality is one such method of wielding authority.
Administrative law's application of the principle of proportionality is a contentious question
that has yet to be resolved. Proportionality provides a level of rationality that covers all the
bases. It is a reasonable course of action that should not be seen as excessive.
"Proportionality" may be regarded as a concept in which the court is "concerned with the
method in which the administration has arranged his priorities; the very basis of decision-
making lies obviously, in the assigning of proportional weight to the facts in the case.
Proportionality is all about this."25
The necessary test and a balancing act go hand in hand with the proportionality theory in the
context of basic rights. There must be an examination of disproportionate punishments or
violations of rights or interests, as well as a clear imbalance in the relevant considerations.
According to the "necessity test," a constitutional right must be violated via the least intrusive
method possible.26

25
U.O.I. v. G. Ganayutham, (1997) 7 SCC 463, 473.
26
. De Smith, Woold and Jowell; Judicial Review of Administrative Action, (1995) 601-605.

22
Therefore, courts in India have always utilised proportionality to determine whether or not a
limitation on a basic right is justifiable in the context of Indian constitutional law. That's why
courts play an important role in Brind's understanding of Brind's6 evaluation of the
contending public interests under consideration while performing judicial review. When the
court is determining on the legality of a statute that imposes unjustified restrictions on the
enjoyment of basic rights, this scenario emerges.
Originally developed in Prussia, the notion of proportionality has subsequently spread to
Germany, France, and other European nations. If an administrative action is found to be
lawful, courts throughout Europe, including Luxembourg and Strasbourg, have adopted this
concept in their rulings. The Indian Supreme Court, on the other hand, has been using the
notion of proportionality since 1950.

Article 14 of the Constitution challenges the discretionary nature of an administrative

decision, and this concept applies. The Wednesbury's27 concept, on the other hand, is adopted
when official action is questioned as "arbitrary" under Article 14. Regarding Article 14,
Indian courts considered whether the categorization was based on a comprehensible
difference and if the difference had a reasonable connection to what the legislature was trying
to accomplish. It implied that the courts were looking at the legitimacy and adequacy of the
difference. The notion of proportionality is once again at play here. To determine whether
executive or administrative action taken in the exercise of statutory powers is valid, the courts
can only act as a secondary reviewing court to determine if the executive or administrator, in
their primary roles, has arrived at an appropriate conclusion by applying Wednesbury and
CCSU principles. The authority has the power to choose from among the available options.
The notion of what is reasonable cannot be substituted by the courts or tribunals.
B. RULE OF LAW
“The state is ruled by law, not by its ruler or the elected representatives of its people. The
Grundnorm28 of the country, or even the basic and core law from which all law derives its
authority, is the supreme authority of the state in a country that adheres to the rule of law.
The monarch or republican representatives are subject to Grundnorm's laws and their
authority is constrained by those same rules. When it comes to king and law, there's no such
thing as a monarch”.29
27
7(1948)1 KB 223
28
Mridushi Swarup, Kelsen’s Theory of Grundnorm, MANUPATRA
http://manupatra.com/roundup/330/Articles/Article%201.pdf.  
29
THOMAS PAINE, COMMON SENSE, (July 4th, 1994).

23
Several mediaeval European scholars, including as Hobbs, Locke, and Rousseau, championed
the Rule of Law notion, which may be traced back to Ancient Rome during the creation of
the first republic. Philosophers on the Indian subcontinent have also advocated the rule of law
doctrine in their own manner, stating that the King should be ruled by a written constitution.
Edward Coke is credited with coining this phrase, which meaning "the basis of legality,"
from the French phrase "La Principia Legalite," or "The Principle of Legality." An A. V.
Dicey's perspective on the rule of law is the most widely accepted. "A government should be
built on principles of law and not on men," according to Dicey's idea, which includes three
pillars:
a. Supremacy Of Law
This has always been the underlying principle of the rule of law, which states that the law
governs everyone, even those who enforce it. Legislators must justify their actions under the
law when they use their legislative and judicial responsibilities.
b. Equality Before The Law
Equal before the law ensures that the law is implemented and enforced in a fair way, while
the concept of supremacy of law places checks and balances on the government's ability to
make and administer the law. Not only must the legislation be fair, but it must also be
implemented fairly. The legislation cannot be used to discriminate on the basis of sex,
religion, colour, or any other factor. “Article 14 of the Indian Constitution and Article 7 of
the Universal Declaration of Human Rights codify this idea of the rule of law, respectively.”
c. Pre-Dominance Of Legal Spirit
A rule of law state is one in which the principles of the rule of law are being observed,
according to Dicey's opinion, and this is why he included this as an additional criteria in his
definition of rule of law. Dicey was certain that the courts could provide this enforcing
power. As enforcers of the law, courts must be completely independent of any outside
pressures. As a result, judicial independence is a crucial tenet of a free society.

In current language, the rule of law is defined as a system that provides protections against
government arbitrariness, avoids anarchy, and enables individuals to plan the legal
repercussions of their acts.

Many have argued that India's Rule of Law is only a theoretical construct with no real-world
implementation. “According to World Justice Project data, India ranks 37th out of 97
countries surveyed worldwide, first in its region, and second among 23 lower-middle-income

24
countries in the category of limited government powers, which evaluates the checks on
government.” There are times when written rules of law don't hold up in the real world. India
does low in terms of procedural effectiveness. India is ranked 83rd out of 196 countries for its
lack of corruption and 96th for its level of law and order.30

In addition to the corruption in India's lawmaking and justice delivery institutions, there is
also the issue of obsolete laws staying in force. There is no such thing as a "sunset" provision
in Indian law, and the Indian Independence Act of 1947 stipulated that all legislation passed
during the colonial era would remain in effect under the new government until the parliament
specifically abolished them.

Some of these laws were written to fit the context of their period, which makes them difficult
to understand in the contemporary context. As a result of the resulting uncertainty, several
lawsuits have been filed in an effort to clarify the rules.

In spite of these issues, it is crucial to remember there are enough protections in place to
ensure that the rule of law will always exist in some form. The role of the courts in
interpreting the law is one of the most essential components in preserving the rule of law. In
Union of India v. Raghubir Singh31, the Supreme Court correctly emphasised that the
decisions of the higher courts have a significant impact on people's daily lives and
government operations.

It is well known that the Indian Supreme Court 32 has ruled that the government cannot wield
authority in an arbitrary way or make laws that are in direct conflict with the rule of law.
Additionally, constitutional mechanisms provide independent watchdogs to ensure that
justice is administered fairly and consistently. There have been countless scams in the
previous few years, but it is equally important to highlight that these scams have been
exposed and the legal system has been put in place against the culprits.33 

30
Arnav Shastri, Critical analysis of ‘Rule of law’ and its application in Indian judiciary, (2021) RACOLB
LEGAL, available at: http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=61fb07af-8c80-4868-
b707-b9939e9dae87&txtsearch=Subject:%20Administrative%20Law.   
31
1989 AIR 1933
32
AIR 1978 SC 597
33
Ibid.

25
To their credit, the “Central Vigilance Commission and the Comptroller and Auditor
General” have brought these inconsistencies to light, demonstrating how the law has
provided for its own protection by implementing numerous tiers of safeguards to guarantee
that it is effective to some degree. A constitutional authority in India, the Election
Commission, has also been doing its part to ensure free and fair elections.

C. PROPORTIONALITY IN INDIA
It was noted by the Supreme Court in the case of Hind Construction Co. v. Workman 34 that
the absence may have been considered leave without pay. The worker may have received a
warning and a monetary penalty. Some employees stayed home from work on a given day
because they saw it as a day of rest, according to the facts. They were kicked out of the
military. The case was thrown out by the Industrial Tribunal. There are no rational employers
who would have punished their whole permanent workforce with firing in this case, the court
said.
Supreme Court used the principle of proportionality to overturn Ranjit Thakur's35 expulsion
from service and jail term under the Army Act, which had been imposed by an Army court
martial, in the case. The circumstances of the case are as follows: an army officer refused to
consume meals provided to him by his higher officer. A one-year term of solitary
confinement was handed out by a court martial. He was also expelled from the military and
barred from applying for any future positions as a result of his ineligibility. The order in
question was contested on the grounds that the penalty was too harsh.
Supreme Court in B.C.Chaturvedi36 case reiterated that the sentence is so startlingly excessive
that it justifies and calls for involvement. " In judicial review, it cannot go unchecked. It was
for this reason that the court of appeals reversed the court martial's decision and sentence
against the appellant. Because every power has a legal limit, this is the main argument. In
general, judicial review is not aimed at a specific judgement, but rather against the "decision-
making process" itself.
If the High Court is satisfied that some but not all of the Tribunal's conclusions are
impregnable, then it has no jurisdiction to require the disciplinary body to examine the
sentence, the Apex court said in State of Orissa v. Vidya Bhushan Mahapatra 37. Even if a
finding of serious wrongdoing may support the order, the court ruled that it was not for it to
34
AIR 1965 SC 917
35
Ranjit Thakur v. U.O.I., (1987) SC 611, 620.
36
B.C. Chaturvedi v. Union of India, 1995 (6) SCC 749.
37
AIR 1963 SC 770: 1963 Supp. (1) SCR 648.

26
evaluate whether that finding alone would have been sufficient to justify terminating a public
employee.
Even when applying the concept of proportionality to a situation in which the authority, in the
course of exercising its legal authority, took possession of property and also lost a deposit,
the court found that such a dramatic approach was unjustified according to the principle of
proportionality. As a result, the court38 made it clear that the administrative authority's use of
legislative discretion with respect to basic rights must be in accordance with the notion of
proportionality.
“In Food Corp. of India v. Bhanu Lodh39, the Supreme Court noted that when determining
the constitutionality of delegated legislation, no straight-jacket approach is desirable and
that the intensity of review in public law depends on the subject matter in each individual
case.” This decision was controversial. Proportionality is a distinct approach to delegated
legislative review, according to the Supreme Court, which highlighted this point. Using a
proportionality approach may provide better outcomes in circumstances when the public
interest is endangered. First and foremost, proportionality is used to establish the
unreasonableness or irrationality of the use of discretionary authority in a purely executive or
administrative decision-making context. Delegated legislation cannot be used for this.
European law, on the other hand, sees it that way. As a government agency, the FCI could
only receive "Policy Orders" of a broad character under the Act, not day-to-day instructions.
In accordance with the provisions of the Act, it is not permissible to cancel an irregular
appointment by such an order. Instead of enforcing an administrative order, alternative
remedies could have been used to stop illegal activities. Due to the seriousness of the breach
of the public interest, the Supreme Court finds that the government's actions are
proportionate. This is completely unjustified and out of proportion, to put it mildly.
D. PROPORTIONALITY IN USA
Proportionality review is not a legal term in American Administrative Law, although it is
used in practise. Proportionality is not recognised as a general head of review in the
Administrative Act (APA) of 1946, the fundamental legislation for administrative law. Prior
to or during the establishment of the APA, American courts had never adopted a judge-made
theory of proportionality.40

38
Teri Oat Estate (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130.
39
(2005) 3 SCC 618.
40
Jud Mathews, Searching for Proportionality in U.S. Administrative Law, Pem State Law, The Pennsylvania
State University, The Dickinson School Law, Legal Studies Research Paper No. 1-2015, p. 1.

27
When the government adopts measures that are out of proportion to the goals it hopes to
accomplish, this is referred to as an overreach and may be corrected and detected using a
classical proportionality review. In Oregon v Mitchell41, Justice Black noted that Congress'
enforcement authority is limited and that there must be consistency between the methods
employed and the goals to be attained in order to preserve the five-year countrywide
prohibition on literacy tests and comparable voting requirements for registering to vote.
Referencing The City of Boerne v. Flores 42, Justice Kennedy said that legislation passed by
Congress cannot be so disproportionally large in comparison with the intended remedial or
preventative effect that it cannot be regarded as responding to or meant to deter illegal
behaviour.43
In Florida Prepaid Post-Secondary Education Expense Board v. College Saving Bank 44, a
case involving the Patent Remedy Act, the congruence and proportionality test was used to
determine that the Patent Remedy Act is particularly incongruous in light of the only little
support for unconstitutional conduct since the Boerne case.45
Except for a tiny but vocal minority, the majority of American Legal Scholars have reacted
negatively to the proportionality test. That it sounds strange and harmful for the preservation
of civil rights as well as indicative of the conservatism of the court makes it unpopular with
most people.46 Proportionality is unpalatable to the American legal community because it has
been utilised to preserve the rights of states, rather than people, by the Supreme Court. The
courts' response to the issue of how proportionate Congress' legislation must be? As long as
they are "properly proportionate to the status of the country." It was pointed out that the
Eleventh Amendment was intended to protect states from being forced to submit to judicial
tribunals at the behest of private parties in “Seminole Tribe of Florida v. Florida47, the court
citing P.R. Aqueduct and Sewer Auth. v. Metcalf and Eddy”48.
Introducing the proportionality principle to defend federalism and state rights by the court
does not exclude any future use of it. Both liberal and conservative judges may benefit from
the congruence and proportionality test. “No judge has ever questioned or rejected the notion

41
400 U.S. 112 (1970).
42
521 U.S. 507 (1997).
43
Id. at p. 532.
44
527 U.S. 627 (1999).
45
Id. at p. 647.
46
Evan H. Carninker, Appropriate Means Ends Constraint on Section 5 Powers, 53 STAN.L.REV.1127 (2001).
47
517 U.S. 44 (1996).
48
506 U.S. 139, 146 (1993).

28
of congruence and proportionality. Not the exam itself, but how it was applied has been the
source of contention.”49
It is not uncommon in the American legal system to hear the phrase "proportionality,"
although it is seldom used as a legal notion. The concept of proportionality does not exist in
American legal theory whether it comes to civil or criminal remedies. While certain changes
may be detected in select cases, there is an ongoing development that is taking place. So, in
the case of United States v. Bajakajian 50, Justice Thomas reiterated in his majority judgement
that the proportionality standard should be used when examining constitutional issues related
to high penalties. An appropriate link between the forfeiture amount and the seriousness of
the offence it is intended to penalise must be established.
Proportionality in United Kingdom
A fourth basis of review in the “Council of Civil Services Union v Minister for the Civil
Service case”51 was recommended by Lord Diplock, namely the principle of proportionality.
The usual common law method was unavoidably thrown into a loop when a German idea of
European provenance was transplanted to Europe. Since then, the question of whether the
European notion has been incorporated into English law has been centred on the Wednesbury
principle of unreasonableness and its link to the principle of proportionality.52
“Associated Provincial Picture Houses Limited v. Wednesbury Corporation” 53 created the
Wednesbury principle, which said that a public body's discretionary choice must be irrational
in order to be valid. According to a more European definition of proportionality, a challenged
act must be appropriate and essential to accomplish its stated goal while without imposing
disproportionate costs on persons.54
Further, the United Kingdom has made considerable strides in the preservation of human
rights. The Human Rights Act of 1998 is a clear statement of the government's commitment
to upholding human rights. “A slew of new liberties were enshrined in English law as a result
of the Act. Any ruling, judgement, statement, or advisory opinion of the European Court of
Human Rights must be taken into consideration in accordance with Section 2(1) of the Act.”
This implies that the European Court of Human Rights' case law, which applies the concept

49
Elizabeth Zoller, Congruence and Proportionality for Congressional Enforcement Powers: Cosmetic Change
or velvet Resolution?, available at ilj.law.indiana.edu/articles/78/78-1-zoler.pdf.
50
524 U.S. 321 (1998).
51
389 U.S. 258 (1967).
52
Id. at 268 No. 20.
53
(1985) A.C. 374.
54
D. Burca, G, Proportionality and Wednesbury Unreasonableness: The Influence of European Legal Concepts
on U.K. Law, EUROPEAN PUBLIC LAW, 1997, p. 561.

29
of proportionality, is taken into account by the courts in the United Kingdom. It is argued that
the most difficult and significant challenge confronting British courts would be to construct
or rather invent a coherent and defensible concept of proportionality.55
Before the Human Rights Act was enacted, numerous decisions recognised the notion of
proportionality. In the case of “R v Secretary of State for the Home Department Ex-Parte
Simms,”56 the Court of Appeal declined to grant permission to appeal against the convictions
of two murder convicts serving life sentences. They guys remained defiant in their claims of
innocence. In order to have their case reopened, they wanted to meet with journalists who had
shown an interest in their stories. Governors of prisons were only willing to accept oral
interviews provided the media signed formal agreements not to disclose any aspect of the
conversations, following Home Secretary policy. Despite the journalist's protests, he agreed
to sign the agreement. After being denied the opportunity to speak with a lawyer, the
detainees petitioned for a judicial review. They didn't rely on free speech in a broader sense,
but rather in a more narrow one. A declaration that the Home Secretary's present policy is
unconstitutional and that the Governor's administrative actions based on that policy are
similarly unconstitutional were granted in both instances by the House of Lords. To
demonstrate how the concept of proportionality is applied to administrative authority, this
case shows how English judges have embraced the protection of human rights and applied the
criterion of an urgent societal necessity to limit a fundamental right.
In “R (On the Application of Pro Life Alliance) v. B.B.C.” 57, the Human Rights Act of 1998's
proportionality principle was examined. This issue dealt with the removal from the party
election broadcast of a registered political party that opposes abortion from showing a film
that had been banned. To be used in 2001's General Election, this film was originally
intended. The footage revealed a ‘mangled and disfigured condition' of an aborted foetus. On
the basis of Section (1) of the Broadcasting Act, 1990, broadcasters rejected broadcasting.
Applicant claimed their right to freedom of speech was violated under European Convention
on Human Rights' Article 10 and that the prohibition was not "essential in a democratic
society" (2). Appeal accepted because the broadcasters failed to give free political speech
enough weight in their decision-making process.58

55
Kentridge S., The Incorporation of the European Convention on Human Rights, THE UNIVERSITY OF
CAMBRIDGE CENTRE FOR PUBLIC LAW, CONSTITUTIONAL REFORM IN THE UNITED KINGDOM, 1998, p. 70.
56
(1999) 3 W.L.R. 328.
57
(2003) U.K.H.L. 23.
58
Id. At 747.

30
The notion of proportionality has been widely criticised because it has been difficult to
incorporate this standard into a system of judicial review that emphasises the courts'
supervisory role. Proportionality is a notion that has been brought in to see whether it
constitutes merit-based evaluation.59 When adopting the proportionality principle as a more
in-depth examination like this, there are basic constitutional questions about the function of
the judiciary.
E. CONCLUSION
Finally, it should be noted that, despite the fact that the Rajesh Case is a solitary instance of
this sort of non-punishment case, Indian courts are primarily concerned with the punishment
part of the case. In the current idea of proportionality, to assert that the courts have applied
the principle of proportionality continuously since 1950 is a blatant exaggeration and
distortion of both the genuine nature and extent of proportionality. The key components of
the idea have not been fully recognised by the courts. For the concept to be followed, the
authority must first and foremost balance its priorities. The priority in the areas of basic and
human rights are already set by their legal position. In such circumstances, merits review
becomes unavoidable if the court determines that the balance of probabilities is tipped so
significantly in one direction that only one judgement can be reached. The Court of Appeal
provided a clear explanation of this in the instance of a Nigerian lady who had lived in
England illegally for 10 years and had formed a family, but whom the Home Secretary chose
to deport with her children, as described by the Court of Appeal.
It was thus necessary to strike a compromise between the right to respect for family life (as
guaranteed by Article 8) and the requirement for effective immigration control. Upon ruling
in favour of the mother's appeal, the court said that 'there truly is only space for one position
as to how the balance between these competing interests should be struck,' despite the fact
that the Immigration Appeal Tribunal had reached the opposite conclusion. The court placed
a heavy focus on the suffering that would be caused to the children if they were separated
from their father, who is a British citizen, but placed less stress on the need of effective
immigration management. According to Simon Brown J., the Secretary of State's decision to
strike a balance was simply incorrect and fell beyond the spectrum of authorised answers. He
went on to explain that if our point of view differs from the tribunal's, we are required to state
as much and to grant the appeal, substituting our judgement for the tribunal's. That is the
manner in which the principle of proportionality is to be utilised in civil rights matters.

59
Plowden P. and Kerrijan K., Juridical Review- A New Test?, (2001), NEW LAW JOURNAL, 1291 at p. 1292.

31
It is encouraging to see that the courts are making more and more references to the Doctrine
of Proportionality, and that the number of such instances is increasing in the reports. But it is
unfortunate that this idea is not adequately grasped and utilised in both text and spirit, as it
should be. When you take a close look at the recent judgements, you can see how the
principle is in such a bad position. It is anticipated that in the future, the notion would be
thoroughly examined and effectively implemented in the appropriate environment. This idea
is very useful in the context of judicial review of administrative action, and it should be
utilised correctly whenever possible. In this aspect, we still have a long way to go.

32
 IV. JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION IN INDIA

Rule of proportionality has to be judged on the scale of rule of law. As discussed in earlier
chapters administrative actions should be within four walls of law and law should be the
paramount aspect in a country. the cross-culture study of principle of proportionality shows
that it has a great role to play in circumscribing the arbitrary government actions which, on
the face of it, violates a person’s basic fundamental rights. The principle has been severally
referred by the Supreme Court of India in upholding the rights of persons and invalidating the
arbitrary administrative actions. The judicial review of the powers of government will be
further elaborated in this chapter.
The government of our country is divided into three organs namely the legislature,
executive and judiciary and each organ is assigned separate functions so as to ensure
efficiency and separation of powers. The administrative department is concerned with the
decisions and workings of the administrative authorities, states, government and
instrumentalities of the government. However, to keep a check on their powers and to ensure
that administrative authorities do not abuse their powers, courts have been granted the power
to keep a check against unauthorized exercise of powers or abuse of powers by such
authorities. Such authorities are subjected to the rules and limits as laid down by the
constitution and laws enacted under the constitution. As per the rules of natural justice, even
the administrative authorities are bound by such limitations of the constitution and can be
subjected to judicial review in case they encroach the same. Disciplinary action can also be
initiated against the concerned authority. It becomes the duty of the courts to keep a check
and review that there is no encroachment or abuse of powers. The judicial review is done
both substantively and procedurally. It examines the legality and propriety of administrative
action.
It's common knowledge that administrative activity is a residuary action that's neither judicial
nor legislative in nature. Non-statutory means that it does not have legal force, while statutory
means that it has legal force but does not have legal force. The majority of administrative acts
are mandated by the constitution, and as a result, they are classified as statutory. However,
there are some circumstances in which they can be classified as non-statutory, such as when
superiors issue commands to subordinates that do not have legal force. However, even if
administrative actions are discretionary, it is essential that they be fair, unbiased and
reasonable in their implementation and enforcement.

33
Indian society places a high value on the judiciary, and as a result, the High Courts and the
Supreme Courts are each endowed with the authority to conduct judicial reviews.
Administrative department has been entrusted with specific powers, and they in turn, via
delegated legislation assign some of their powers to some other authorities to ensure proper
and effective functioning. These authorities might be corrupt or might abuse their powers or
exercise powers in an unreasonable manner, then judicial control can be used to put a check
on their actions. There is a requirement that administrative acts be in the public interest and
that the action be just and favourable. In some circumstances, the court may have greater
control over administrative actions by issuing certain writs. It is true that the court's ability to
meddle in administrative discretion is limited, but it is also true that the court is not
competent in all instances involving administrative activities.
Specifically, in the case of A.K Gopalan v. State of Madras 60, Section 2 of the Preventive
Detention Act61 was in dispute, and it was found that the court should issue an order if it is
essential to do so in order to prevent him from acting in a manner that is detrimental to the
interests of the nation. No court has the authority to sit in the place of the detaining authority
and determine whether or not it would have reached the same conclusion as the authority in
the first instance. It was not possible to substitute the satisfaction of the authority for the
satisfaction of the legal system. The reasons for subjective contentment cannot be challenged
in court. It was determined that the land in question had been purchased under the Land
Acquisition Act for the purpose of constructing a plant to manufacture textile machinery
parts. There are two problems with Arora's argument: He himself desired to build a factory,
and land intended for one public use cannot be utilised for another public one. After finding
that the condition of a "public purpose" has been met, the court held that the government has
sole discretion over whether or not to buy the property.62
In C.P. Sarathy vs State Of Madras And Ors.63 Industrial Disputes Act, Section 10(1)64 was
questioned and it was held that if the government believes that an Industrial Dispute has
occurred or has been apprehended, it may refer the matter to LC for adjudication.
According to the Court, while the act of referring is administrative, the factual existence and
expediency of referring are discretionary under Section 12. If the government declines to

60
A.K Gopalan v. State of Madras, 1950 SCR 88.
61
The Preventive Detention Act, 1950, Sec. 2.
62
Arora v. State of U.P., 1964 SCR (6) 784.
63
C.P. Sarathy vs State Of Madras And Ors., AIR 1951 Mad 191.
64
The Industrial Disputes Act, 1947, Sec. 10.

34
refer, it must give reasons, but the propriety, correctness, adequacy, or satisfactory character
of the reasons cannot be questioned.
A. GROUNDS FOR JUDICIAL REVIEW:
a. Ultra Vires
Acts not specifically authorised by the statute are ultra-vires. Not doing so allows
courts to overturn public authority decisions. Acts not expressly authorised by statute
are banned. For example, if a court finds that a municipality has acted outside its
jurisdiction, it may be able to sue the municipality for damages. In administrative law,
this is an important point to recognise. As a result of this doctrine, the decision is
ultra-vires.
To protect the public from administrative officials who act in contravention of the
spirit of the law and abuse their powers, ultra-vires is a legal term. If something is
incidental to or consequential to something that the legislature has authorised, it
should not be determined to be ultra-vires by judicial construction (unless expressly
banned). A lieu to mention that courts have recognised the concept of implied power
as a way to relieve government from an overly rigid principles of ultra-vires. The
notion of ultra-vires may be utilised to avert further injury if the Act's procedures are
not followed. On the other hand, in some instances the directory strategy may be
deemed an ultra-vires exception. "Whether a particular provision of a statute is
mandatory - in so far as it uses the word 'shall' as in the present case - or merely
directory cannot be resolved by laying down any general rules and must be
determined on the facts of each individual case," Wanchoo J. stated in Raja Buland
Sugar Co. v. The Municipal Board, Rampur65. A provision's intent, the serious general
inconvenience would be caused if the provisions are interpreted in a different manner,
the relationship of the provision to other provisions dealing with the same object, and
any other consideration that may arise on the facts of a particular case, including the
language of the provision's intent, are all factors that must be taken into account.
When administrative authorities do not follow the Act's processes, the principle of
ultra-vires might be used. The restrictions may be rendered useless if not obeyed.
With respect to administrative rules, the Supreme Court decided in Khoday
Distilleries Limited v. State of Karnataka66 that an administrative authority's act might
be declared invalid if it is obviously unreasonable and arbitrary. It is vital to apply
65
Raja Buland Sugar Co. v. The Municipal Board, Rampur, 1965 SCR (1) 970.
66
Khoday Distilleries Limited v. State of Karnataka, 1995 (1) SCC 574.

35
 reasonableness criteria when enforcing the law. In any given case, the authority's
judgement can be questioned. For the purposes of this discussion, it should be
highlighted that using statutory authorities in good faith and on clear legal grounds is
required by ultra-virus. It is presumed that the legislative authority did not intend to
authorise inappropriate action in order to avoid being found ultra-vires and nullified.
The court solely cares about legal authorities' acts. Acts have legal consequences if
they are valid. The theory of ultra-vires applies to any situation in which statutory
authority is used to violate a legal norm. The activities of a public authority are void if
they are demonstrated to be for improper or irrelevant motives.
b. Abuse of Power
This case demonstrates that administrative bodies do not use discretion to attain
legislative goals. Invalidity of the administrative powers legislation. The authorities
are routinely misused, and the obligations are sometimes violated. A court can
investigate claims of abuse of discretionary power.
Administrators can make meaningful judgments rather than irrelevant or unneeded
ones. So, in other words, the statutory authority granted to administrative authorities
is connected with the reason for its grant. If the law doesn't say differently, a factor
related to the authority's declared aim should be considered. A decision is ultra-vires
if the authority involved considers unrelated situations, events, or issues. The grounds
of irrelevant consideration clearly provide judicial review a new dimension. The job
of a court becomes straightforward if the act itself specifies the necessary
circumstances. But when it comes to judicial review, courts rarely follow a script. The
court should uphold the Act as long as the fundamental criteria or considerations are
clearly specified. Using the Act's objectives and requirements, the court can assess the
administration's use of unnecessary or extraneous considerations. When dealing with
prerogative power, one can defend irrelevant consideration. Like any authority,
prerogative rights can be abused. A court has repeatedly restricted prerogatives. For
example, in Associated Provincial Picture Homes Ltd v. Wednesbury Corporation 67,
Lord Green remarked that the decision should be neither perverse nor illogical. The
courts have found that discretionary powers must be used for the purposes set forth in
the granting statute. Determination of concerns brought to the courts' attention.
Relevant factors must guide the statutory body's activities.

67
Associated Provincial Picture Homes Ltd v. Wednesbury Corporation, EWCA Civ 1.

36
 Any administrative action that ignores a major concern is illegal. This reflects recent
court decisions. Certain factors are mandated by law. The courts ruled. The court may
nevertheless utilise such authority and annul the resulting judgement if the competent
body did not take them into account when the statute granted it. The Supreme Court
of India ruled in Indian Railway Construction Co. Ltd. v. Ajay Kumar 68 that an
authority must exercise discretion. Its authority must be focused on the current
situation. The organisation will not accept orders or restrictions on its discretion in
each case. The company must not break any laws or rules. Honesty requires weighing
all relevant issues without being misled by minor ones. Acting without regard for
precedent or creating precedent means promoting goals that go against the letter or
spirit of the law. Relevant concerns can impede discretion, courts have ruled.
c. Proportionality
The notion of proportionality is a principle that seeks to ensure that the effect that an
administrative action or decision has on people’s rights and liberties should be in
proportion or reasonable as compared to the objective it seeks to achieve. The
proportionality theory aims to limit the use of administrative discretionary powers to
means that are proportional to the goal.
Invoking the notion of proportionality, courts can block the exercise of powers if there
is no responsible relationship between the action taken and the objective that it seeks
to achieve.
In Union of India v. Kuldeep Singh 69, the Supreme Court declared that "the penalty
imposed must be commensurate with the degree of the misbehaviour, and that any
penalty disproportionate to the gravity of the misconduct would be a violation of
Article 14 of the Constitution." The idea of proportionality may be applied by courts
to safeguard against the imposing harsh and unusual punishment. The state has the
authority to administer punishment, but it must not be substantially unreasonable. The
court may consider the seriousness of the offence, the offender's personal
characteristics, and the specific circumstances of the case deciding what evidences
would have been required in order to taken an appropriate action, be it to punish the
offender or to ensure his rehabilitation. The sentence awarded to him must be
proportionate to the crime committed.

68
Indian Railway Construction Co. Ltd. v. Ajay Kumar, Appeal (civil) 3299 of 2000.
69
Union of India v. Kuldeep Singh, Appeal (crl.) 1468 of 2003.

37
 The Supreme Court of India has declared that a restriction on basic rights can be
knocked down if it is disproportionate, while expounding the spirit of the
proportionality concept. To summarise, the courts use the law of proportionality to
determine if an action has a disproportionate impact on the rights and interests of
individuals, and if it does, the activity is declared illegal by the courts.

d. Unreasonable exercise of discretionary powers

Unreasonableness includes misdirection, ignoring relevant concerns, and focusing on
trivialities. Lord Greene explained this reasonableness standard in Associated
Provincial Picture Homes Ltd. v. Wednesbury Corporation 70. "Something so absurd
that no rational person could believe it was within authority," he says.
Any government power can be abused. As a result, judges are continuously on the
alert for abuses of public power. The doctrine of ultra-vires limits governmental
power. The courts want to know if the power exists and if it was used reasonably. The
court must decide whether an administrative authority's discretion is reasonable.
Abuse of power happens when authority acts arbitrarily. The "rule of
unreasonableness" defines what should not be done. A person with discretion must act
lawfully. He must focus his own attention on the issues. He can't disregard anything
that's crucial to his task. If someone breaks these rules, he may be accused of being
illogical. Extraneous considerations are excluded from the reasonableness test. The
authority's reasoning capacity must be objectively and reasonably exercised, and his
command must reveal his thought process in explaining his judgement. Power
exercised capriciously or arbitrarily is clearly contrary to discretionary authority.
Administrative discretion must be used rationally and objectively. Excessive
consideration of irrelevant facts, omission of important elements, or failure to
consider the legislative aim invalidates the order "The courts cannot review an
administrative judgement," Gajendra Gadkar, J., stated in the famous Pukhraj v.
Kohi71 case. The court must simply determine whether the claimed reasonable belief
is prima facie supported. It can intervene if an administrative authority's decision on a
competent matter is so illogical that no other authority could have reached it. As a
result, unreasonableness could refer to a decision. A decision requires material on
which to form reasonable belief. Grover J. correctly points out that "cause to believe"
70
Supra note 8.
71
Pukhraj v. Kohli, 1962 SCR Supl. (3) 866.

38
 implies a reasonable and bona fide belief, based on reasonable reasons, with the
authority acting only on circumstantial evidence and not merely on suspicion,
hearsay, or rumour. No reason exists or is significant or essential to the evidence as
required by law if the administrative authority believes the prerequisites are met.
While the court cannot evaluate the declaration or the validity of the reasons for
belief, it can consider this factor.
e. Irrationality

The reasons can be used to infer irrationality. When a statute or law requires reasons, the
reasons must be both appropriate and understandable. If the aggrieved can show substantial
prejudice as a result of the authority’s failure to demonstrate how an issue of law was
resolved or a disputed issue of fact was decided, or by demonstrating some other lack of
reasoning that raised substantial doubt about the decision making process, the decision may
be void. When the establishment of a set of information is a precondition to the exercise of
authority, or when the decision maker has properly considered something that is incorrect, or
when he has misinterpreted the facts on which the judgment is made, or when there is no
indication for a finding on which a decision is based, or when the evidence, taken as a whole,
is not reasonably capable of supporting a finding of facts, judicial review may be sought. In
the landmark decision of Indian Railway Construction Company Ltd. v. Ajay Kuma72r, the
Supreme Court of India ruled that judicial review is available in circumstances of
irrationality. The Apex Court, quoting Lord Diplock, has attempted to define irrationality as a
decision that is so outrageous in its defiance of logic or established moral norms that no
reasonable person applying to the matter at hand could have arrived at. The court determined
that a decision is illogical if it is not based on the facts of the case and is so unreasonable that
it defies logic and moral standards.
f. Procedural impropriety

For the administrative decision to be made, the administrative authorities must follow a
procedure. Procedure focuses on the "structure" of decision-making rather than the "quality"
or "effect" of the final conclusion. The opportunity for individuals to participate in decisions
that affect them is a crucial feature of procedural justice.
Another major aim of procedural justice is to improve the quality, precision, and logic of
decision-making. Both parts of procedural justice work to make a procedure more legal.

72
Supra note 9.

39
Administrative law is concerned with both substantive and procedural fairness. Procedural
justice ensures that administrative authority decisions remain within the limits of its powers
granted, whereas substantive justice ensures that individuals have a fair chance to influence
the decision and addresses problems such as the need to conduct hearings and hear both the
parties. "The rule of law necessitates some type of due process meant to determine the truth,"
writes John Rawls. Natural justice principles ensure that the legal system is upheld fairly and
consistently.'
It could be argued that procedural fairness as a concept has vanished from the expression of
natural justice. It is a well-known fact that the procedure that governs the complete picture of
administrative authority decision-making draws its authority from the ultimate source of
'Nature.' With the passage of time, the word "natural justice" came to be associated with the
two elements of a fair hearing: (a) that parties should be given fair hearing opportunity and
that they be given adequate notice of the hearing (audi altarem partem).
The principle of fair hearing strives to control the conduct of such authorities in the execution
of their tasks imbued with the ability to decide upon situations involving civil action to
people (nemo judex in causa sua). It means that the government must either notify the person
that they intend to consider the subject and make a decision, or that if they have made a
decision, they intend to act on it, and provide him the opportunity to prove the otherwise. The
notion of natural justice, when combined with the doctrine of audi altarem partem, has the
effect of imposing an obligation to act equitably on administrators.
g. Jurisdictional error

Administrative discretion is based on one of the fundamental principles that prevents

administrative authorities from abusing their powers or failing to fulfil their legal obligations.
When an authority is given jurisdiction, it is possible for that authority to make legal errors
within that jurisdiction. It is evident that judicial review is concerned with the legality of
findings rather than their validity. The term jurisdiction refers to the power to make decisions.
When an authority is given the power or compelled to investigate an issue of law or fact in
order to make a judgement, its findings are not subject to collateral attack of courts, but are
final or else re-determined by appeal. It could be argued that if jurisdiction is found, it does
not lose that jurisdiction if it reaches an incorrect decision, whether in law or fact. Even if its
finding on any part of its proper field of inquiry is utterly devoid of evidence, it retains
jurisdiction. The question of whether an administrative authority has jurisdiction is
determined by the nature of the conduct into which it is being inquired, not by the validity

40
and truth in outcomes. The administrative authority charged with deciding the matter has
jurisdiction over all questions pertaining to the issue, and it does not go beyond its authority
by improperly deciding any of those questions. The jurisdiction implies that the
administrative authorities must carry out their duties in accordance with the statute. The
administrative body can only decide questions that it is authorised to decide by the statute in
question, and it does not have the authority to declare any statute ultra-vires. The court ruled
that because the administrative authority is a creature of statute, it cannot consider the legality
of substantive law or process set forth in the Act or the rules enacted under it.
When an Act provides jurisdiction, it also confers the implied authority to perform such acts
or use such means as are basically required for its implementation. The ability to employ all
reasonable methods to make statutory powers effective is implicit in the stated grant of such
powers- Chief Executive Officer and Vice-Chairman, Gujarat Marketing Board v. Haji Dand
Haji73.
h. Acting under dictation

In the claimed exercise of its discretion, an authority vested with discretion cannot act under
the dictation of another entity, according to administrative law. This does not free them from
their duty to apply their individual judgement. All authorities with statutory discretion must
examine public policy, and in some cases, the present government's policy will be a factor.
Dispositions in which an administrative authority relinquishes discretion to another person
must be annulled. Collector Thanjavour v. P. F. Cooperative Society 74 That would be a
violation of the law and a non-exercise of authority. State Transport Appellate Tribunal,
Gajendragadkar, C.J. For a judge or tribunal to make a fair and impartial ruling, the executive
or administrative branch of the state cannot be involved. There are no restrictions on the
exercise of quasi-judicial jurisdiction until such restrictions are imposed by law. The statute
can regulate the tribunal's jurisdiction and set forth principles for its guidance, provided that
these provisions do not violate the Constitution's fundamental rights." In the words of
Venkatachaliah J., "The authority cannot allow dictation to influence its discretion as this
would be an abdication of its discretion." The authority's discretion would then be exercised
by someone else, not the authority. To delegate authority is ultra-vires. No one else can
interfere with the authority's power. To be told what to do is not the same as asking for help.
However, the authority involved should not follow the advice or help blindly, but should
make the final choice. The authority involved may exercise discretion without following the
73
Chief Executive Officer and Vice-Chairman, Gujarat Marketing Board v. Haji Dand Haji, SC 1996.
74
Collector Thanjavour v. P. F. Cooperative Society, AIR 1975 Mad 81.

41
recommendation blindly or robotically. According to the court in Commissioner of Police v.
Gordhandas75, even though the administrative authority would have performed in a different
manner had he was unaware of such a regulation, it was entitled to consider the advice
offered by public bodies set up for this purpose.
It also knocked down an administrative authority's ruling in Indian Railway Construction
Company v. Ajay Kumar, finding that it had surrendered its discretionary power to another
and had not acted independently. A court will intervene, invalidate the order and issue a writ
of mandamus to such an authority to act according to the power or authority provided to him.
i. Non- application of mind

In general, the authority with discretion should only use that power after carefully
considering the facts and circumstances. That is, if the authority fails to exercise its discretion
in conformity with the legislative objective expressed in the statute, its action or decision will
be considered bad. Discretion must be used after careful consideration of the facts and
circumstances. To prove that the administrative authority could not reach subjective
satisfaction on the basis of relevant material, the Supreme Court correctly ruled in Abdul
Razak Abdul Wahab v. Commissioner of Police 76 (Abu Razak Abdul Wahab). This is
because the Supreme Court has stated that while making an order, it should never be merely
copied from the statute. The court emphasised that in many circumstances, the authority just
perceives the issue and makes a conclusion without applying thinking. To rely on
subordinates too much, the authority may have only one vision of its powers.
j. Malice

Every authority shall be employed and powers must be given to them in good faith, it is
unquestionably true. The statute that grants power implicitly requires that it be used for the
intended purpose. Every public authority activity must be backed up by logic, objectivity,
true satisfaction, and rationale. The court has the power and duty to guarantee that all
authorities act effectively, legally, and in good faith. In such cases, the authorities are not
known to the law and the activity is not lawful. That they shall entrust these powers for the
objectives for which they are bestowed in good faith is a requirement implied in the
instruments creating power. The notion of impartiality is essential for decision making in the
public interest.

75
Commissioner of Police v. Gordhandas, 1952 SCR 135.
76
Abdul Razak Abdul Wahab v. Commissioner of Police, 1989 SCR (1) 890.

42
 k. Colourable exercise of powers

It is always possible to appeal an administrative authority's judgement if it is not used for the
intended purpose. Powers exercised by administrative authorities allegedly for the benefit of
the authorised but actually serving other purposes. It means that authorities aim to achieve
something else under the pretence of a power granted for one purpose. Colorable legislation
is used in numerous judicial rulings to describe the authority's infringement of the law. The
point expressed by the statement is that while a legislature passing a law may appear to be
within its authority, it actually exceeds it.  If a valid objective is chosen as a cover or pretence
for doing something other than achieving it, the action is called a colorable use of authority
and cannot be upheld in court as a false exercise of power.

43
 V. CRITICISM AGAINST THE PROPORTIONALITY PRINCIPLE
A. BACKGROUND
As discussed in the earlier chapter the Indian judiciary has used the principle of
proportionality to overrule the arbitrary state actions overarching the basic rights of the
person. There are several grounds which have developed as a judicial precedent to challenge
the validity of the state action as discussed in the previous chapter. This chapter will further
elaborate upon the said principle through a critical eye and present a clear picture of the
principle in the present rule of law in India.
B. INTRODUCTION
A fundamental element of administrative and constitutional law is the notion of
proportionality, which guides the conduct of judicial review. The notion states that there must
be a logical relationship between the desired objective and its actualization; this is critical.
Only acts that are reasonable in view of the information available to the court will be
considered by the courts. When you look at an example, it becomes simpler to comprehend.
Even if a person is consistently late to work, it would be unreasonable to dismiss them from
their position because their employer has decided to treat the lateness as unpaid time away
from the office. According to Sir John Laws, proportionality is defined as the order in which
a person's priorities are assigned. "This is obviously like attempting to shatter an egg with an
egg-crushing apparatus," the judge in [R vs Goldstein 1983 (1) WLR 151] observed. 77 When
determining if fines or rights infringements are excessive or unwarranted, for example, the
"proportionality" test is employed to ensure that less restrictive options have been examined.
Justice Department control of legislative and executive acts has been one of the most
important developments in public law in the twenty-first century. It wasn't until 1803 that the
concept of Judicial Review was founded in the pivotal case [Marbury v. Madison, 5 US 137
(1803)], which was a watershed moment in American history. But it was not until after Globe
War II that democracy surpassed all other political ideologies as the dominant political
philosophy in most nations throughout the world. When Judicial Review was first suggested,
administrative law experts were split on whether it should be implemented. According to a
recent study, judicial review of executive action (administrative action) has absorbed the
greatest amount of content enrichment in the last two decades. Because of the expansion of
the contemporary welfare state and the progress of technology, many legislative tasks and

77
E Mureinik, A Bridge to Where? Introducing the Interim Bill of Rights SA. J of HR, (1994).

44
powers have been moved to the executive branch of government. In the aftermath of this,
bureaucrats now wield considerable authority. When he begins to misuse his authority, he
often resorts to the courts for assistance in keeping him in check.78
C. DIFFERENCES IN DIVISION OF POWERS
Although the courts should refrain from interfering with the work of the executive branch,
there should be no danger of this occurring. Therefore, judicial review must be circumscribed
in order to avoid the courts from exercising excessive power over the administration. The
common law and civil law systems both contributed in various ways to the restrictive purpose
of this Judicial Review, which was established by the Supreme Court. Historically, secondary
review was used in common law countries in order to accomplish the restricted goal of
Judicial Review. [Associated Provisional Picture Houses vs Wednesbury Corporation (1947)
2 All ER 75] If an administrative order is so ludicrous that no reasonable person could have
thought it was within the competence of the administrative branch of government, it may be
overturned on appeal (CA).79 In civil law regimes where the concept of proportionality-based
review (also known as Primary Review) has been established, there is a more expansive
Judicial Review process. According to the concept of proportionality, administrative actions
should not be carried out in excess of what is necessary to accomplish the desired aim. For
common law countries, it was impossible to disregard the need for proportionality-based
analysis for very long. A separate pan-European legal system, based mostly on civil law
principles, was formed as a result of the advantages of proportionality-based evaluation.80

British Because it was once a British colony, India has inherited the common law system that
was established by the British Empire. When India obtained independence from Britain, it
was decided that the common law system would be kept in its entirety. When it comes to
resolving personal disputes, Indian courts have historically looked to English precedents for
guidance. In India, administrative law has developed in a similar manner. Despite the fact
that Article 226 and Article 32, when read along with Article 13, offer the Constitutional
Courts with far wider opportunity for interfering with Executive Orders, Indian courts have
decided to embrace the English idea of Wednesbury's reasonableness. As a consequence of
the international growth of the notion, India's Supreme Court, in Omkumar v Union of India
4, incorporated the principle of proportionality into Indian law for the first time. In the first
78
D. Bilchitz, Necessity and Proportionality: Towards a Balanced Approach? in L Lazarus, Reasoning Rights:
Comparative Judicial Engagement (Hart 2014).
79
J Griffiths, The Social Working of Legal Rules J. of LR. P and Unf. L (2003) 1.
80
M Cohen-Eliya and I Porat, Proportionality and Constitutional Culture, (CUP 2013);

45
place, it is important to approach proportionality with reasonableness. 81 It was Europeans
who were the first to advocate for proportionality in legal and policy. European
Administrative Law and European Droit Administratif are founded on these principles. Since
its inception, the notion of proportionality has been seen as an essential component of the
Wednesbury's Principle of Reasonableness. According to the law, in order to be eligible for
Judicial Review, one must make judgments that are so unreasonable that no reasonable expert
would ever make or carry out the decision. In contrast to the Wednesbury's Principle, 82 which
deals with the issue of proportionality, the courts have chosen a different approach to Judicial
Review in their decision. Several people have read this as implying that the bar for what is
deemed fair should be increased. It is necessary, however, to strike a careful balance between
the benefits and disadvantages of administrative intervention in order for this strategy to be
effective in practise.83 It is the "proportionality" test that is more important than the
"reasonableness" criteria in the context of Judicial Review. However, the Court will adhere to
the Wednesbury standard of unreasonableness as well as the proportionality requirement
while taking into account the public and private interests involved in the case.84

D. THE PROPORTIONALITY DOCTRINE IN INDIA

As an example, in the case of [Union of India vs. G Ganayutham, (2006) 65 (1) Criminal Law
Journal174] the Indian Supreme Court debated the validity and significance of the notions of
proportionality and reasonableness. The Supreme Court of India declared that, in the absence
of essential rights, India will adopt the "Wednesbury" unreasonableness criteria from the
United Kingdom as a substitute. Regarding the question of whether the concept of
proportionality should be used when fundamental rights are infringed, the Supreme Court did
not express an opinion on the subject in its judgements. Because of this, the Indian Supreme
Court gave an important decision in [Omkumar Vs. Union of India, AIR 2000 SC 3689],
which was published in 2000. In this case, there is precedent for a Supreme Court judgement
based on the concept of proportionality to be rendered. Since 1950, Indian courts have
regularly used the proportionality test to determine whether a piece of legislation is

81
S Sujit Choudhry, So What is the Real Legacy of Oakes?: Two Decades of Proportionality Analysis under the
Canadian Charter’s Section 1, 35 SC. L. R. (2006) 501.
82
Supra note 79.
83
J Bomhoff, Beyond Proportionality: Thinking Comparatively about Constitutional Review and Punitiveness
in V Jackson and M Tushnet (eds), Proportionality: New Frontiers, New Challenges (CUP 2017).
84
Id.

46
constitutional or not. The proportionality test is specified in Article 19 (1) of the Indian
Constitution and has been consistently applied. In recent Supreme Court decisions, judges
were given the authority to consider whether limits were excessive rather than just choosing
the least restrictive choice. The Indian Constitution's Article 14 (which prohibits
discrimination) and Article 21 (which prohibits violence against women) are both violated by
current legislation. The Supreme Court of India reached this conclusion after conducting a
thorough examination of the United Kingdom's perspective on administrative action
proportionality. Despite the fact that the concept of proportionality is not directly stated in the
Indian Constitution, the Supreme Court of India has consistently applied it to Articles 19 and
21 of the Constitution. The Supreme Court of India ruled in this case that when the Indian
Constitution's Articles 19 and 21 are violated, a judicial review is necessary. The Indian
Supreme Court has ruled that when a discriminatory administrative action is challenged, it is
important to establish whether or not the conduct is fair and reasonable in the first instance.85
When an administrative decision is questioned because it seems to be arbitrary, the notion of
Secondary Review developed by Wednesbury comes into play. Similarly, to the Wednesbury
principle, the Supreme Court of India has held that only secondary review may be utilised to
challenge sanctions imposed under Indian service law.86 As explained by the Indian Supreme
Court, this is because Article 14 of the Indian Constitution does not address the punishments
imposed under the country's service legislation. In India, the Supreme Court is in charge.
Omkumar's case has not advanced in any way over the course of a decade. According to
Omkumar's decision, proportionality is now required under Indian law. A growing body of
evidence suggests that the notion of unreasonableness is being phased out in favour of the
concept of reasonableness. According to the Supreme Court of India, the legal framework for
establishing the proportionality of administrative actions is confined by the country's current
legislative structure. The Wednesbury unreasonableness criteria, which is only applicable in
India, must be used if you wish to assert that anything is arbitrary. Omkumar's case has had
no influence on the expansion of the scope of Judicial Review in India as a consequence of
the judgement in his favour. When asked in Omkumar why the Wednesbury
unreasonableness standard should not be applied to claims based on arbitrary judicial
decisions, the Supreme Court fails to provide an adequate explanation. Any of the following
factors might have had a role in the incident. 87 Unlike convention rights, non-conventional

85
Supra note 81.
86
Supra note 77.
87
A Kavanagh, Defending Deference in Public Law and Constitutional Theory (2010) L. QR. REV.

47
rights are protected by the Wednesbury principle, which is in contrast with convention rights.
Another theory is that the Supreme Court was concerned about having an overloaded docket
of cases. The second of these two issues are not deserving of a less stringent degree of
investigation.88 As a consequence, decision-makers would be compelled to revaluate their
own decision-making processes and make modifications in order to comply with the new
standard of scrutiny established by the courts. It is possible that the number of patients may
initially grow. Comparing conventional and non-conventional rights is becoming more
difficult when it comes to applying the principle of proportionality for the same reason, the
Supreme Court's distinction between arbitrariness and arbitrariness is ambiguous.

E. A NEED FOR MORE GRANULAR DIFFERENTIATION

From the thesis developed so far, it suggests that an arbitrary order is discriminatory or
breaches fundamental rights; however, this is not always the case with arbitrary orders. In the
vast majority of cases, this is untrue. When the government fires workers who attend
religious services, it is violating their basic right to freedom of religion and assembly
guaranteed by Article 19 of the Constitution (1)(b). An arbitrary decree has been issued in
this instance, and it also violates two other fundamental rights guaranteed by the Indian
constitution. When a government administration refuses to advance a capable government
employee while simultaneously promoting another to a similar position, this is referred to as
discriminatory treatment by the courts. In order to challenge an administrative decision as
arbitrary, a Petitioner must demonstrate that his or her fundamental, statutory, or common
law rights have been violated by the decision. First, assuming the Court accepts the Court's
classification, it must determine what kind of right has been violated as a result of the Court's
judgement. Because to the Supreme Court's interpretation of Article 21 of the Indian
Constitution, it is difficult to distinguish between fundamental rights and non-fundamental
rights. Administrative processes also often infringe on a wide range of individual freedoms,
as previously stated.89 It will thus need a large amount of judicial labour and time in order to
determine the kind of right at issue. Even if this alternative is available, judges' time would be
better spent determining whether or not a decision has been reached that strikes a sufficient
balance between competing priorities. According to the principle of judicial restraint,
proportionality examinations may be conducted in a variety of intensities depending on the
88
M Cohen-Eliya and I Porat, Proportionality and Constitutional Culture (CUP 2013).
89
Supra note 87.

48
subject matter and type of rights at issue. When an administrative decision is said to be
arbitrary, it is necessary to consider the Wednesbury principle. Take, for example, the way
the word "arbitrariness" is used in this phrase to demonstrate how it is used. When it came to
deciding whether anything was arbitrary or reasonable, the Supreme Court in [Shrillekha
Vidyarthi Vs. State of U.P., AIR 1991 SC 537] equated the terms since the word could not be
defined clearly.90 Because Wednesbury unreasonableness is strongly related with arbitrary
behaviour, it is possible that the decision maker will be able to evade a complete court
examination in this situation. As a result of this, it is constantly changing and developing.91

Recent Supreme Court decisions have recognised that Wednesbury reasoning is being phased
out and being replaced by the principle of proportionality. According to the Supreme Court,
determining whether or not a decision maker has taken into consideration all relevant
variables is completely permissible in a democratic setting. 92 The amount of proportionality
examination varies from case to case based on the subject matter and the rights that are at risk
in each instance. In the decision of [Sandeep Subhash Parate vs. State of Maharashtra (2006)
1 SCC 501], the Supreme Court recognised the importance of proportionality in the
application of the law. In spite of the fact that the caste certificate given by a student was
falsified, the student was enrolled into an engineering programme. He completed the course
in accordance with the High Court's instructions. The institution, on the other hand, refused to
award him a degree. The University was successful in its appeal to the High Court. Following
an appeal, the Supreme Court ordered the university to award him an honorary degree after
he paid a one-million-rupee fee to the institution in question.93 The concept of proportionality,
according to the Supreme Court, had an impact on the decision-making process in question.
The Supreme Court, on the other hand, did not decide that all relevant criteria were
overlooked while awarding a degree to an appellant who was appealing the decision. When it
came to proportionality, the Supreme Court didn't go any farther than presenting the facts of
the case; it didn't explain how it arrived at its judgement. This decision was taken in
accordance with Article 142 of the Indian Constitution, which was recognised by the
Supreme Court. Consequently, Indians will be compelled to make a choice between European
and British types of governance. In the opinion of Julian Rivers, the European methodology
90
Supra note 81.
91
Supra note 77.
92
Supra note 43.
93
Supra note 88.

49
is the most effective method available.94 In Omkumar's case, the Supreme Court said that
legislative and administrative bodies must be permitted to pick from a broad number of
possibilities, but that courts have the authority to determine whether the decision infringes on
the rights of individuals unreasonably. Based on the European method, it is anticipated that a
fair balancing phase (the last step) will be added to the proportionality analysis in the United
States. If you are dealing with Indian situations, it is advisable to use European
proportionality rules. The notion of proportionality is used to analyse decisions, and it takes
into account two criteria in making the decision. You may argue that if the relative benefits of
various purposes or interests have been appropriately examined or balanced, they have been
done correctly.95 Second, was the financial toll that the programme took on those who were
hurt by it justified? It will not matter if the judgement was accurate or incorrect; the
procedure by which it was made will be scrutinised. Court of Appeal decision in Law
Development Corporation v. Maharashtra Law Development Corporation, 15 SSC 616.
(2011) found that when making a judgement, it is necessary to give equal weight to all
aspects of the case, which is why proportionality is so crucial. It was decided in the case of
Ranjit Thakur vs Union of India (1987) 4 SCC 611 that an army commander disregarded a
lawful order from his senior officer by refusing to accept meals that were offered to him by
his superior. Service members found guilty of wrongdoing were sentenced to a year in
solitary confinement, which was the maximum punishment.96

The upshot of his ineligibility was that he was fired from his job and prohibited from
applying for any other positions in the future. While judicial review is intended to invalidate a
specific judgement, it also has the purpose of reversing the whole process that led to that
decision. The Courts will conduct an investigation. A court-martial, which has the ability to
decide on punishment, may be convened to make the decision. The penalty, on the other
hand, must be customised to the nature of the offence and the individual who committed it.
This is not intended to be snarky or derogatory in nature. If the punishment is severe in
contrast to the offence, there shouldn't be too much shock value in the outcome of the trial.
The idea of proportionality, which is a significant component of the judicial review concept,
may be utilised to overturn a sentence if the Court-judgment Martial's decision on a particular

94
Supra note 83.
95
Id.
96
Supra note 77.

50
issue does not meet the standard of reasonableness required by law. Judges have the authority
to grant judicial review in circumstances when the decision is unreasonable or perverse.97

Every skill has its own set of restrictions. Supreme Court of India decision in the case of
Coimbatore District Central Cooperative Bank v. Employees' Association (2007) 4. A small
number of workers went on an illegal strike. It was also difficult for others to carry out their
tasks because of this. In this case, it was concluded that there had been a large level of
misbehaviour. It was proper to withhold yearly increases for employees since they were not
unfairly punished for the claims against them that they were found guilty of and convicted of.
In [K. S. Puttaswamy vs. Union of India, 2017 (10) SCC 1], the Supreme Court upheld the
proportionality test as used by the lower courts. A court has determined that while
considering whether a legislation is proportionate, it is necessary to consider people's
fundamental rights as well. When it comes to judging the appropriateness of a measure,
public concern over its imposition is just as significant as legal and physical limitations.
Anuradha Bhasin vs. Union of India [2019 SCC Online SC 1725] was a Supreme Court case
in which the plaintiff challenged internet and mobile phone limitations in Indian-administered
Kashmir (J&K). How the government must adhere to the principle of proportionality before
enacting any legislation that restricts people's fundamental freedoms. Prior to putting any
limits in place, it is necessary to identify an overarching objective. 98 There should be no space
for ambiguity in this situation. Before making a final choice, it's vital to establish whether or
not the step that came before it may be omitted from consideration. The success of a policy is
determined by the influence on fundamental rights and the need of implementing a measure.
When it comes to employing less onerous techniques, a state's other alternatives 99 are just out
of reach for them. Because of its impact on the fundamental rights of people who are
impacted, this order should be supported by credible evidence and subjected to judicial
scrutiny before it is implemented.100

97
A Sweet and J Mathews, Proportionality Balancing and Global Constitutionalism 47 Cl. J. T. L (2008) 73.
98
Supra note 83.
99
Supra note 97.
100
Supra note 81.

51
 F. CONCLUSION

The data presented above demonstrates a worldwide decrease in Wednesbury

unreasonableness. As a result, the concept of proportionality is soon becoming outdated since
it does not take into consideration the number of aspects that a decision maker must consider
while making a decision. When it comes to proportionality, the European and British ideas
are diametrically opposed to one another. According to this research, EU policy is more
effective and objective than policy implemented by the rest of the globe. After being
introduced in the nation's legislation in 2000, there is little indication that proportionality has
been widely used in the country after that time period. Despite the fact that the doctrine's
application has been restricted by the Supreme Court, there has been little practical execution
of the concept. As a result, Indian courts were recognised as legitimate by international courts
of law. As a result, when the concept was initially introduced, it was only applicable to a
restricted number of situations and circumstances. In order to control administrative
organisations' actions when they cross the line from reasonableness into the area of
arbitrariness, this idea must be appropriately developed and put into practise. Administrative
bodies' viewpoints must be taken into consideration by courts when making judgments under
legal precedent; nonetheless, this notion seeks to guarantee that no administrative body's acts
are free from judicial monitoring. In addition to the country's legal system, this is essential to
the protection of citizens' rights. If the courts are to uphold the most basic rights of Indian
citizens, they must do so in accordance with the concept of proportionality in every
circumstance.101 As a result of the growing effect of human rights jurisprudence on the legal
system, more and more rights have been incorporated to the legal system. It is imperative that
proportionality be implemented promptly, since the gaps in the logic alone are insufficiently
strong to inspire change.

101
Supra note 83.

52
 VI. FUTURE OF PROPORTIONALITY AND THE ALTERNATIVES

A. INTRODUCTION
The principle of proportionality has been discussed at length in the previous sections, which
ranges from the basic principle to judicial review of the principle; from Indian scenario to
international aspect of the principle. From the independence of India, the principle has
developed to a great length and have helped the judiciary to invalidate the arbitrary and abuse
of power by the administrative organ of state. It is a great tool in the hands of judiciary to use
it wisely and upheld the basic rights of people in the upcoming future.
When it comes to administrative law, the notion of proportionality plays an important role,
and it is often used at the level of Judicial Review in administrative disputes. There must be a
credible relationship between the anticipated consequence and the acts taken in order to attain
that conclusion, as stated in the concept of justification. If you take action, it must not be
significantly out of proportion to the court's knowledge; otherwise, it may be challenged via
the judicial review procedure.
As defined by Sir John Laws, “proportionality” is a legal notion in which the court is
concerned with the method in which the decision maker has ordered his priority to be carried
out, rather than with the outcome of the decision.
When it came to explaining proportionality in the case of “R v Goldstein” 102, Lord Diplock
offered the following to help:
“In this instance, it would be equivalent to using a sledgehammer to fracture a nut.”
The law applies two standards to ensure that punishments are appropriate to the crime: the
Balancing test, which checks for excessive or arbitrary punishments, and the “Necessity test”,
which takes into account the possibility of less restrictive alternatives. This century's most
important advancements in the field of “public law” have come about as a result of the
institution of judicial review of legislative and executive action by the legislature and the
executive branch. While the concept of “Judicial Review” was first developed in 1803 in the
well-known case of “Marbury v. Madison”103, it was not until the latter half of the twentieth
century that it began to see widespread application, as democracy became the dominant
political principle in most parts of the world following World War II that it began to see
widespread application. For the last many decades, the scope and application of Judicial
102
1983 (1) WLR 151.
103
5 US 137 (1803).

53
Review have been among the most highly discussed issues in the subject of Administrative
Law, and this has continued to be the case.
While both sorts of actions - executive and legislative - have been subjected to content
enrichment throughout time, it is the “Judicial Review of Executive Action (Administrative
Action)” that has received the greatest attention in recent years. Combined with technological
improvements, the legislature has found itself in the situation of not only surrendering
extensive “areas of discretion to administrative authorities”, but also of delegating a large
number of its own obligations and tasks to the administrative authorities.
As a result, the modern-day bureaucrat has grown to become an immensely influential figure
in the political arena. As a consequence, he often abuses the authority bestowed upon him,
prompting the need for frequent court intervention. Despite the fact that this engagement is
vital, it should not result in the “Judiciary” meddling with areas that are specifically reserved
for the Executive branch of government. As a consequence, the extent and breadth of
“Judicial Review” must be tightly limited to the bare minimum necessary to prevent abuse of
the discretion conferred on the Executive branch of government.
When it came to fulfilling the restrictive duty of “Judicial Review”, both “common law and
civil law systems” reacted differently and established methods that were distinct from one
another. Common law nations developed the concept of secondary review to achieve the
restricted goal of “Judicial Review”, which is now universally recognised around the world.
Administrative Orders would be overturned only if they were found to be subject to the vice
of Wednesbury unreasonableness, which means that the order must be so absurd that no
reasonable person could ever imagine that it was within the authority of the administrative
authority in question.104

B. PROPORTIONALITY IN THE INDIAN CONTEXT

The Indian Supreme Court addressed the “concept of proportionality” for the first time in. 105
After examining the English statute governing Wednesbury unreasonableness and
proportionality, the Supreme Court determined that, so long as “fundamental rights” are not
violated, the 'Wednesbury' unreasonableness standard would govern in India. However, the
Court refrained to comment on whether the concept of proportionality should be applied in

104
Associated Provisional Picture Houses v. Wednesbury Corporation, (1947) 2 All ER 74 (CA).
105
Union of India v. G. Ganayutham, (2006) 65 (1) C.L.J.174.

54
instances of fundamental rights abuses. Following that, the Supreme Court rendered a
significant decision in.106
In this case, the “Supreme Court of India” allowed the use of the “proportionality doctrine”.
Surprisingly, the “Supreme Court” discovered in this case that Indian courts had routinely
applied the “doctrine of proportionality” in determining the validity of legislative actions
since 1950 in relation to laws violating the fundamental freedoms enumerated in “Article 19
(1) of the Indian Constitution”.
According to the Supreme Court, Indian courts previously had the opportunity to determine
whether the constraints were unreasonable in light of the circumstances and were not the least
restrictive choice available. The same is true of legislation that breaches “Article 14 (as
discriminatory) and Article 21 of the Indian Constitution”. In India, the Supreme Court
reached a similar conclusion after analysing the situation in England when it came to the
application of the “doctrine of proportionality” in administrative action.107
The “Supreme Court” concluded that in India, administrative measures affecting basic
freedoms (namely “Article 19 and Article 21 of the Indian Constitution”) have always been
assessed on the basis of proportionality, even when the proportionality concept is not clearly
expressed. As a consequence, the Court said unequivocally that the concept of proportionality
extends to judicial review of administrative acts that violate “Articles 19 and 21 of the Indian
Constitution”.
When an administrative decision is challenged as being discriminatory under Article 14 of
the Indian Constitution, the Supreme Court has held that courts would undertake a Primary
Review based on the concept of proportionality. When the arbitrariness of an administrative
decision is contested, the secondary review principle based on the Wednesbury principle is
used. Additionally, the “Supreme Court” said that although penalty imposed under service
law is often challenged as arbitrary under “Article 14 of the Indian Constitution”, only
secondary review based on the Wednesbury principle would apply.
This, the “Supreme Court” said, is because there is no issue of fundamental freedom or
discrimination under “Article 14 of the Indian Constitution” when it comes to service law
punishments. Despite the fact that Omkumar's case was decided a decade ago, no further
action has been taken. In India, the legislation governing proportionality has remained
untouched since Omkumar's case. The only indication of progress may be a few subsequent

106
Omkumar v. Union of India, AIR 2000 SC 3689.
107
Id.

55
judgments' imprecise observations that the concept of “unreasonableness” is giving way to
the concept of “proportionality”.108
As a consequence, India's current state of law restricts the use of proportionality to
administrative action, as declared by the Supreme Court. This is because most administrative
activity in India is challenged in court primarily on the basis of arbitrariness, which can only
be challenged under Wednesbury “unreasonableness”. As a consequence, Omkumar's verdict
had minimal effect on the scope of judicial review in India. The Supreme Court in
Omkumar's case makes no argument that the Wednesbury notion of “unreasonableness”
should be limited to claims alleging arbitrariness.109

C. THE APPLICATION OF PROPORTIONALITY IN NON-PENAL CASES

Punishments Proportionality is critical when it comes to sanctions. This is also the basis for
sentencing in criminal law. For the first time, the Supreme Court applied the concept of
proportionality to an area other than punishment in “Union of India v. Rajesh”. 110 In this case,
constable posts required filling, and a written examination and viva voce were held. The
whole selection list was cancelled after allegations of bias and nepotism in the administration
of the physical efficiency test. To oppose this, a writ petition was filed at the High Court.
After establishing that there were only 31 particular instances of irregularity, the High Court
issued the injunction. The Supreme Court upheld the High Court's verdict on appeal.

D. ALTERNATIVES TO PROPORTIONALITY

So far, this paper has argued that proportionality does not have to be a revolutionary concept
changing the relationship between courts and legislatures. It may be applied constitutionally.
If it improves upon the old legislation, then it should be adopted.
This article seeks to assess if proportionality enhances the Court's earlier approach to
instances involving freedom of political speech, when it used the ‘reasonably adequate and
adaptable' term. Before comparing the two, let's review the common justifications for
proportionality.

● Flexibility, Context Sensitivity, and Structure

108
Indian Airlines Ltd. vs. Praba D. Kanan, AIR 2007 SC 548.
109
Id.
110
S.L.P. (C) No.8356 of 2002.

56
The “doctrine of proportionality” is flexible and context sensitive. Vicki Jackson compares
the Canadian and US constitutional laws on arbitrary searches and seizures to show the
benefits of flexibility and context sensitivity. In “Atwater v. City of Lago Vista”, a woman
was detained, handcuffed, and taken to the police station with her children because neither
she nor they were wearing seatbelts, a non-criminal infraction. 111 An arrest rule that permitted
officers to arrest for any offence with good cause was upheld by the “US Supreme Court”.
The US Supreme Court therefore weighed the evident police right to arrest against the
constitutionally protected liberty. Under the related case of “R v Aucoin”, the Canadian Court
reviewed not only whether the police officer had the ability to arrest, but also whether the use
of that power was reasonable in the circumstances. Thus, the proportionality method is better
prepared to adapt to the specifics of the case and disclose unjustified police power abuses.112
The technique of proportionality also offers an organised and sequential style of examination.
Instead of a single statement (is the legislation “reasonably adequate and fitted to a legitimate
end in a way consistent with the constitutionally defined system of...government”),
proportionality asked a number of questions. Putting these questions together has two effects:
First, it distinguishes between the issue of whether the law serves a purpose and the question
of alternative measures. As shown, the ‘reasonably adequate and adaptable' formulation
addresses both problems, but the test does not distinguish between them.
Second, the third question (“adequate in its balance”) makes explicit an implicit part of
balancing. In a single sentence, certain components are run concurrently, while others are
simply implied. One is that a structured set of questions helps the process of rational
decision-making by judges, and the sort of thinking proportionality demands of courts (and
maybe other constitutional actors) produces stronger and more persuasive grounds for
judicial decisions (legitimacy benefits).

● Proportionality Case
The assertion that proportionality offers epistemic advantages assumes that judges handle all
relevant factors in a conscious, reasonable, and intentional manner. From Mattias Kumm's
perspective, proportionality aides the judge in overcoming different epistemic flaws such as
blind adherence to established traditions, customs, or preferences, or ignoring factual realities
111
532 U.S. 318.
112
Id.

57
that would enable government claims to triumph without proper factual support. Kumm
compares his reasoning to Socratic debate. According to him, the aim of proportionality is to
force public officials to defend their acts, and the court's job is to ask questions and examine
‘the coherence of the responses provided by the parties'. Vicki Jackson makes a similar
argument, citing research on professional decision-making that reveals judges use both
implicit and explicit judgement. So, Jackson concludes:
This may serve to inform and be informed by judges' more intuitive or implicit understanding
of what the right legal response is.
The importance of proportionality analysis is to discipline implicit judgement, which the
‘reasonably acceptable and adaptable' criteria may fail to achieve due to its single
formulation.113

● Proportionality and Legitimacy

The second argument for proportionality depends on a more disciplined type of analysis'
ability to increase the legitimacy of judicial judgements. In this situation, organised
proportionality is claimed to provide more clear judicial reasoning. In other words, the
organised set of questions forces judges to explain their choices more extensively. Behind the
parties involved and those who may depend on the law in the future, it is crucial to
understand the reasons for judgments. Assuring that the law is understood by the public, it
allows for judicial review and criticism. Some Australian and international judges have
explicitly acknowledged the role of proportionality in revealing decision-making grounds.
But proportionality's case for legitimacy extends beyond openness.114
Proportionality is said to promote not only transparency but also citizen acceptance of
justification. This test examines whether the law's stated goal is actually achieved. The
legitimacy of such arguments is accepted even if the results are not agreed upon by all. As a
result of this, arguments based on comprehensive conceptions of the good such as contentious
theological, moral, and philosophical statements are excluded.

113
Macnish, K. (2015). An Eye for an Eye: Proportionality and Surveillance. Ethical Theory and Moral
Practice, 18(3), 529–548. http://www.jstor.org/stable/24478638.
114
Gertner, N. (2012). ON COMPETENCE, LEGITIMACY, AND PROPORTIONALITY. University of
Pennsylvania Law Review, 160(6), 1585–1597. http://www.jstor.org/stable/41511313.

58
Proportionality thinking fosters reasonable deliberation, according to Vicki Jackson and
others. Lawmakers will be encouraged to consider the aspects of proportionality when using
proportionality analysis.
They should consider the rationality of the means, if there are less likely to infringe on rights,
and whether the gains to be achieved justify the intrusions.
In this way, proportionality may help a community grasp the law and sense of justice.
Deliberate and rational norms of review help the Court's educational duty, according to Chief
Justice Kiefel.

● Proportionality vs. RAAT

To summarise, proportionality seems to outperform the ‘reasonably acceptable and adaptable'

criteria. When compared to the Court's earlier approach, these benefits may be exaggerated.
One may set aside for the time the long-standing academic argument concerning the
advantages of context sensitivity and flexibility versus more ‘rule-like' methods (though I
will return to it below). Since the proportionality test is flexible and context-sensitive, this
distinction is irrelevant. By focusing on the facts of the case and the underlying constitutional
ideals, rather than the rules themselves, it focuses on the case and the values that underpin it.
Flexible and context-sensitive design is preserved via proportionality. Proportionality is
consistent with Australian constitutional law for this same reason.115
Comparing proportionality to the ‘reasonably adequate and adaptable' alternative is like to
comparing apples to oranges. This test was typically done in transparent methods that
addressed each of the parts of proportionality structure.
Consider ACTV, which predates even Lange. Without formal proportionality, the majority's
argument is plain. First, the challenged statute was clearly aimed at avoiding real or imagined
corruption and undue influence, as the rationale indicates. Second, the legislation seems to
favour incumbents and established political parties, which appears to be a problem.
Achieved systematic proportionality analysis by assessing appropriateness and need. There is
also considerable transparency in the balancing decisions. And where a statute restricts an
activity or manner of communication, Mason CJ recognises that:
Soliciting public opinion on whether such limits are justifiable requires balancing the public
interest in free speech against the competing public purpose that they serve.

115
Id.

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Deliberate costs placed on freedom of political expression were found to be unjustifiable. The
proportionality analysis is implicit in Mason CJ, but not stated.
However, other justices in that case clearly state that the challenged rule is intended to serve a
purpose or value that competes with freedom of political expression, requiring the law to be
justified in relation to the burden it places on freedom of political communication.116
According to McHugh J:
“A legislation adopted according to the authorities provided by section 51 that attempts to
ban or control the substance of electoral communications must be justified compellingly.”
Because of this, His Honour needs a “compelling reason” for a breach of rights under
sections 7 and 24. Also in Lange, the Court sees opposing interests between reputation
preservation and freedom of political speech. Moreover, the verdict rebalances the common
law of qualified privilege in favour of political freedom of expression.117
As a result, the pre-McCloy legislation seems more clear than the test's structure suggests. Of
sure, proportionality might be better. As a result of proportionality analysis, balancing
analysis may be visible and plainly signalled in every situation, rather than the reader having
to comb the decision for evidence. The outcome may change if the case law is examined
more closely. Proportionality analysis may perform better in the long run than ACTV and
Lange if they are seen as unusual circumstances. However, the post-McCloy legislation may
not fulfil its shape. Principles aside, it is possible to utilise proportionality analysis as a "ritual
incantation", a critique of the "reasonably adequate and adaptable" test, to replace rather than
inspire more clear thinking.
Costs of doctrinal innovation must also be considered. There is a lengthy history of the
‘reasonably adequate and adaptable' standard in Australian constitutional law, dating back
over two centuries. That condition may be the reason why proportionality is compatible with
the Australian constitutional structure. But proving it has required a lot of work, and the High
Court is still split. Proportionality analysis may sometimes be confounding, particularly in
busy subordinate courts that lack the time and resources for a thorough assessment of prior
precedent. To emphasise that a test's appropriateness must be considered in relation to its
actual or foreseeable use is not to blame the instrument rather than the worker.140 As such,
the benefits of proportionality and the ‘reasonably acceptable and adaptable' criteria seem to

116
JACKSON, V. C. (2015). Constitutional Law in an Age of Proportionality. The Yale Law Journal, 124(8),
3094–3196. http://www.jstor.org/stable/43617155.
117
Lee, Y. (2012). WHY PROPORTIONALITY MATTERS. University of Pennsylvania Law Review, 160(6),
1835–1852. http://www.jstor.org/stable/41511318.

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be more closely related. On ne peut certainement pas presume that proportionality delivers
considerable benefits. At least no case before the Court has benefited from proportionality.
But in each of those cases, justices rejecting proportionality came to the same conclusion as
the majority.

In light of the resemblance between proportionality and the earlier ‘reasonably adequate and
adaptable' criteria, the latest High Court disagreement looks somewhat trivial. We should
make one more comparison before we end. Justice Gageler's third approach should be
contrasted with proportionality. Calibrating the earlier law, as Justice Gageler puts it, is a
significant development.118

● Calibrated Scrutiny
As Rosalind Dixon notes, this approach takes into consideration a number of context-specific
elements and larger problems arising from representative governance. The approach consists
of the following aspects.
For starters, a court assesses the law's “nature and degree of the burden on political
expression”. The court assesses the “risk...posed to the constitutionally mandated system of
representative and accountable governance”. Third, the court ‘isolates and assesses the
significance of the prohibition's legally authorised aim.
To evaluate whether the [challenged legislation] is justified as fairly suitable and suited to
accomplish that aim while maintaining the constitutionally specified form of governance.
These components were used in a very telling way in Clubb. “Clubb v Edwards” and
“Preston v Avery” were heard concurrently in this case. According to the “Reproductive
Health (Reach to Terminations) Act 2013”, any ‘protest over terminations' that may be seen
or heard by a person approaching or trying to access the premises where terminations are
administered, is forbidden within 150m of a ‘access zone' of such premises. So goes Justice
Gageler's analysis.119
First, Gageler J considered the prohibition's “site-specific” nature (applying only inside the
designated “access zone”) and “time-specific” nature (applying only within the designated
“access zone”) in determining the nature of the burden imposed.

118
Id.
119
https://www.ruleoflaw.org.au/wp-content/uploads/2019/07/2019-07-20-CLUBB-v-EDWARDS-PRESTON-
v-AVERY-1.pd.

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These elements led him to determine the burden was ‘direct, significant, and discriminating'.
Contrary to the law's stated intent, the prohibition actually discriminates against a traditional
method of political communication.
Second, Gageler J characterised the load in two ways:
In order to be constitutional, the object of the restriction must be compelling. In order to
attain this goal, the limitation must be narrowly limited to the freedom of political expression.
For his part, he agreed that ‘ensuring that women have access to facilities where abortion
services are legitimately performed in an environment of privacy and dignity' is
“unquestionably constitutionally allowed and...of such evident necessity as to be classified as
compelling”.
A last point of explanation he addressed was the 150 m access zone, stating that the
availability of areas where demonstrators could stand and converse with big crowds was
crucial. Ends, means, and justification are all analysed in a same way. By confining the
reasoning to a content-specific, viewpoint-discriminatory rule targeting public protest,
Gageler J has set a more particular and factually limited precedent. It detects elements that
will be significant in future situations. On will inquire in future instances if the legislation
“discriminates against a conventional form of political communication” or “discriminates
against a particular perspective”, according to this methodology. A burden on political speech
is difficult to explain when certain legal aspects exist.120

● Proportionality or Calibrated Scrutiny?

Affirming proportionality's flexibility and context sensitivity, Gageler J's approach returns us
to the flexible and situation sensitive arguments. These attributes of proportionality relate it
with “standard-like” rather than “rule-like” judicial decision-making. The distinction between
rules and standards is frequently stated in terms of the rationale and application of the rule or
standard. A rule's implementation is dependent on the existence of certain facts. A decision-
maker is bound by a rule even if the rule's implementation contradicts the rationale. A
standard, however, provides for direct background justification. Standards therefore provide
decision-makers greater leeway and urge them to consider all relevant interests.121

120
Supra note 16, at 551.
121
Kyritsis, D. (2014). Whatever Works: Proportionality as a Constitutional Doctrine. Oxford Journal of Legal
Studies, 34(2), 395–415. http://www.jstor.org/stable/24562824.

62
It is phrased in such a way that a restriction on a constitutional requirement must be justified
in terms of both the goal and the cost. This approach, the decision-maker is squarely
confronted with the conflicting ideals represented by the challenged statute and the
constitutional mandate. The court also evaluates the law's goal and the constitutional
requirement's burden. The relative benefits of standard-like techniques vs rule-like
procedures are hotly debated in academia.
Rules and standards are commonly regarded to give diverse sets of benefits and drawbacks in
particular settings, to summarise a big and complicated literature. These flexible standards
help courts to reach the correct conclusion in specific circumstances by considering all
relevant factors. “Final courts” (or “constitutional courts”) are able to properly monitor the
implementation of “constitutional review” and remedy mistakes in subordinate courts, hence
standards are acceptable. Regulators and public alike benefit from the predictability of
regulations. For lower courts, rules may be particularly useful if constitutional review is hazy.
So although Justice Gageler's approach is more ‘rule-like’ than most of the US constitutional
law, it is not quite rule-like. Rules and standards are a range. Other exams fall midway
between the two extremes. With an emphasis on means, aims, and justification, Justice
Gageler's approach keeps much of the structure of proportionality while moving toward rules
(definition of qualities of a statute that would elicit heightened examination). Rules' inability
in regulating highly complex types of behaviour where greater flexibility is required seems to
be a non-issue for the foreseeable future. The strong unwillingness to engage in degree
reasoning that Mark Tushnet has recognised as a hallmark of the rule-like law of the “First
Amendment” seems to be absent from Gageler J's approach as well.
Regardless, the argument is timely. For example, Justice Nettle doubts the value of focusing
on discrimination or ‘time, place and manner' constraints. He concludes that calibrating
factors ‘substitute for principles of analysis capable of general application facts which in
some contexts may but should not lead to the conclusion that an impugned law is appropriate
and adapted to the achievement of a legitimate purpose', highlighting the approach's relative
rigidity's potential for producing unjustified consequences. To avoid ambiguity, Justice Nettle
prefers to rephrase and apply the criteria as: “The issue will be whether the law's
discriminatory impact can be justified as reasonable and fitted to a legitimate aim.”
Here, Gageler J prefers to define the situations in which a legislation is invalid, but Nettle J
insists that context is always the guidance.

63
Less emphasis should be paid to the difference between proportionality and the near-identical
‘reasonably acceptable and adaptable' option by judges and scholars than to the contrast
between these two methods.
But it's not an either/or option between these two approaches of analysis. On the spectrum
exist various points. The Court may create rules with standard components. It may also
reduce rule determinacy by creating exceptions. And it doesn't have to be all or nothing. The
flexible proportionality concept may, in fact, evolve into a norm over time. By deciding more
cases, the Court may develop more defined premises that crystallise into rule-like tests. This
kind of development has already been discussed:
This is a well-known method. Analogical, case-by-case reasoning produces reasonably clear
legal propositions. Of fact, assuming this is a smooth, linear process is a mistaken
assumption. Contradictory, or at least seems inconsistent, precedent might make forming a
rule difficult. A superb common law judge's ability to do so is seen as a hallmark. Either way,
established rules aren't It is possible that the Court may provide exceptions to a rule that has
been proclaimed. Case-by-case analogical reasoning tends to produce a set of specified,
stable propositions.
An gradual growth of a more defined and rule-like approach hints to a potential reconciliation
of the two approaches now visible in the Court. Possibility of progressive legal evolution
through proportionality. It is possible that, by adopting a flexible proportionality test, a court
may establish a set of doctrines or norms customised to particular situations, guiding judges,
lawmakers and people as to the boundaries of the freedom of political expression. In her
piece in this issue, Rosalind Dixon attempts to clarify this method. As she illustrates,
proportionality might lead to a future body of legislation that best embodies the justification
for political communication freedom and integrates proportionality and its alternatives.

64
 VII. CONCLUSION ON THE TEST OF PROPORTIONALITY

The new foundation for judicial review of administrative actions is the concept of
proportionality. It is well established in the European administrative law system. This concept
is said to be able to successfully curb administrative arbitrariness. Jurists are debating
whether or not the Wednesbury standard may be used to evaluate the rationality part of
reasonableness. Principle of judicial review and notion of proportionality must be reconciled
in order for an appellate court to consider a court's judgement in full. This unique principle of
law must be properly appreciated and used, even though courts are still dealing with its
principles. The examination of case laws must bring out this difficulty. The study of the
notion of proportionality is both academically and legally essential since it provides a
foundation for judicial review of administrative action.

Since the Indian Constitution includes fundamental rights, courts have traditionally applied
the principle of proportionality in determining whether a limitation on such rights is
justifiable. A fundamental responsibility for the court in Brind's interpretation is to determine
whether the law supports the specific limitation in light of the opposing public interest. Such
an instance occurs when the court must decide whether a statute restricting citizens'
enjoyment of basic rights is lawful.

All basic rights in the Indian Constitution are not limited by a single, overarching restriction
provision. This means that every right has a corresponding restriction, which may be found in
the text or established by the courts (or both). A reasonableness test suggested by this concept
has not been explicitly recognised by the Supreme Court, which has declared that the
criterion of reasonableness of State conduct goes across the whole fundamental rights
chapter. In the absence of such a framework, a plethora of overlapping and even diametrically
opposed ways to limiting basic rights exist. Ad-hocism in the Court's rights adjudication has
resulted in legal confusion and a lack of responsibility for judicial rulings because of the
absence of an uniform methodology.

When Article 14 of the Constitution is used to challenge an administrative action, this

principle applies. However, the Wednesbury's principle applied where an administrative
action was deemed "arbitrary" under Article 14. For Article 14, the courts in India considered

65
whether the categorization was based on the understandable difference and if the differentia
had a reasonable relationship to the goal of the law. Meant to say that a difference in opinion
was being examined in court to see whether it was legitimate and if that disagreement was
enough. Again, we're dealing with the proportionality concept.122

Wednesbury unreasonableness has reached its nadir on the global stage. According to the
new concept of proportionality, a more intensive kind of evaluation that examines whether
the decision maker has appropriately balanced the different aspects that he needs to consider
before making an important choice, it is quickly becoming obsolete. The European model and
the British model are two contrasting approaches to proportionality. The European approach
is superior in terms of effectiveness and objectivity.

Even though proportionality was enshrined in Indian law as early as 2000, it is obvious that
the notion is seldom used in India. Although the Supreme Court's interpretation of the
doctrine has narrowed the scope of its applicability, it has also seen little actual use.

It was in the name of this idea that the authority of the Indian courts was restricted. In
addition, the doctrine had a fairly limited scope when it was first promulgated. There are
certain circumstances when arbitrary acts by administrative authorities need to be restrained
by the theory of proportionality, and it is essential that this doctrine be established in its
appropriate form and enforced in order to do so.123

Courts must respect administrative bodies' positions, but it's crucial to keep in mind that this
theory isn't meant to weaken any administrative bodies' positions, but to ensure that no action
taken by an administrative body is exempt from existing legal norms. Not only does this help
to build the country's legal system, it helps to protect people' rights as well.

As a matter of course and regardless of whether or not citizens' basic or ordinary rights are at
stake, Indian courts will eventually be forced to actively explore adopting the notion of
proportionality. Due to human rights jurisprudence predominating the legal system, not just
basic rights but additional rights as well have been included. Since steam hammers would be

122
Kai Moller, Proportionality: challenging the critic, OXFORD UNIVERSITY PRESS.
123
Vikram Aditya Narayan, A historical argument for proportionality under the Indian Constitution, INDIAN
LAW REVIEW.

66
required to shatter nuts if nut crackers were adequate, it's imperative that the theory of
proportionality be adopted now.

To resolve conflicts between conflicting rights and interests, the doctrine of proportionality
provides a balancing step in which the right must be measured against the opposing right or
interest. Proportionality may be criticised in two unique ways. That specific normative power
that rights have gives them an absolute or near-absolute precedence over competing reasons
makes any mention of balance, at the very least, inaccurate. According to Ronald Dworkin's
view of rights as trumps, rights are not balanced against competing interests; rather, they
(usually) trump them; or so the proponents of that theory perceive it. I'm being purposefully
ambiguous because I think that Dworkinian conceptions of rights must also include balance
and proportionality, but I'm not going to argue that argument in this article. 4 If rights have an
absolute or near-absolute precedence over conflicting concerns, then the second critique of
proportionality leaves open the question of whether the concept has further defi cits that make
it inappropriate for the settlement of rights problems. This study focuses on and investigates
the latter technique.124

In the first place, one may argue that the principle of proportionality is morally neutral; in the
second place, one could argue that the application of the principle to a particular
circumstance is morally neutral. These two claims should be distinguished when discussing
the assumed neutrality of proportionality. If it were genuinely true that the concept of
proportionality or its application were ethically neutral, I agree with the critiques provided
above. However, I am baffled as to why this neutrality should be supported by an appealing
sense of proportionality. Despite its great degree of abstraction, the idea of proportionality
does not work in a morally neutral manner. That only legitimate (as opposed to illegitimate)
purposes may be used to justify an interference with the right is one example of a moral
statement in this document. A violation of a person's civil liberties must meet the criteria of
being appropriate, necessary and not excessive in order to be justifiable, according to moral
reasoning. Suppose someone argues that interference with rights is justified even when it
goes beyond what is necessary; we could then engage in a debate with her to try and persuade
her that she is mistaken and that it is important—morally important—to limit the acceptable
limitation of rights to what is necessary. On moral grounds, we would defend the idea of

124
Poonam Rawat, Doctrine of proportionality: expanding dimensions of judicial review in Indian Context,
DEHRADUN LAW REVIEW.

67
proportionality and the rationale for the argument would be that proportionality is a moral
notion.

There must be moral reasoning in the application of the concept of proportionality. Using
human rights as a starting point for a discussion on morality seems self-evident to me. If you
were a judge on the European Court of Human Rights (ECtHR), you would have to resolve
the Odievre case, which concerns an adopted lady who wants the French government to
divulge the identities of her original parents to her. As a result, you must determine whether
or whether the refusal to do so, which violates Ms. Odievre's right to privacy under article 8
of the ECHR, is proportional. When assessing the proportionality of the French policy, you
must gather the reasons that support the French policy—protecting the private life of the
natural mother and natural father, protecting the adoptive family, preventing women from
aborting or abusing their children if they were not able to remain anonymous, and so on—and
decide whether these reasons are so strong that they outweigh Odievre's right. Could you
strike a "morally neutral manner" to strike this balance?

It is your duty to implement the Convention, not to come up with moral justifications that can
stand alone. Although judges are obligated by the constitutions they interpret, this is not fully
the case. Judges in Ireland who believe that women have a right to abortion are nonetheless
constrained by the Irish Constitution's recognition of a right to life for a foetus. This test
simply tells judges to examine the relative importance of the different rights and interests at
issue. Rather than limiting judges' interpretations, constitutions aim to encourage courts to
establish a moral argument about the proper balance of reasons when they state that an
interference with a right is justifiable, for example, "necessary in a democratic society."
Hence if article 8(1) states, "French policy interfer[s] with Odievre's right to private life,"
article 8(2) states, "You must examine whether this policy is necessary for the interests of one
or several values listed in article 8[2]," and this means that you must ask yourself whether the
reasons the French authorities cite are weighty enough to justify depriving Odievre of his
right. Proportionality principle interpretations that deny this moral judgement are plainly
erroneous. As a result, it is only feasible to point the finger at one person for developing the
concept of proportionality incorrectly. A less-than-flattering understanding of proportionality
is utilised instead of accepting neutrality as "the" guiding principle.

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Conflicts between human rights and the public good are ethically difficult to resolve. A
careful examination of the various interests at stake, as well as an assessment of the various
potential realisations of incommensurable values, is required to distinguish between
legitimate and illegitimate interests, and to establish the various relationships of justice that
hold between the people involved in a case. This intricacy puts the judge at risk of being
influenced by individuals who have a stake in the case's outcome, as well as public opinion
and challenges to the decision's legitimacy when proportionality is used as a doctrinal
instrument to allow for unrestricted moral reasoning. Accordingly, it is doubtful that
proportionality will be able to achieve the goal of making authorities' actions more fair and
reasonable. As a consequence, these issues don't emerge when proportionality is seen as an
approach to settling human rights matters that relies on some form of maximise strategy. It's
an issue that, when it comes to human rights, the notion of proportionality misses the mark.
Courts are required to regard as crucial considerations certain factors that should not be
considered, and other factors that should be considered. Risky because it conflates ambiguous
rights with non-existent morals. Judges have to compare things that reason can't compare,
which might create the impression that they're looking at the same thing. There must be a
solid moral evaluation of the morally significant elements that should be taken into account
when deciding on instances of human rights limits and a mechanism to communicate those
considerations in legal terms that may lead the judge to a fair conclusion. There isn't a single
proportionality idea that meets these criteria.

Since its origin, the notion of 'arbitrariness' has been under attack. The notion of
"arbitrariness" was fully understood by Bhagwati J., who applied it to all governmental
actions without distinguishing between legislative and administrative functions. Although the
notion of arbitrariness was long thought to simply apply to administrative proceedings, the
scope of judicial review of legislation under Art. 14 was equated to a "classification test" for
a long time. When a law is unconstitutional, but there is no opportunity to compare it to other
laws, a framework for determining its legal validity has not been established. Consequently, it
is difficult to determine if the law is unconstitutional. There was no more debate after the
Shayara Bano verdict. Is it possible for us to go on for four decades without reestablishing a
well-established constitutional concept that has been out of date for a long time? Another
issue is the threat to judicial discipline posed by per incuriam decisions like McDowell and
Rajbala, which deviate from established precedents without any legitimate basis. These
decisions create confusion, inconsistency, and contradictions in the standards and parameters
69
that courts use to define themselves. Doubts might be made about the application of the
theory of evident arbitrariness since it lacks an objective criterion. This may potentially
disrupt the balance of power between the legislative and court.

The proportionality concept has withstood recent attacks and is still alive and well, in my
opinion. Its detractors, on the other hand, have made significant contributions to the
discussion. Some concepts of proportionality, for example, those claim to be ethically neutral,
or that balancing can or should always be done in a cost-benefi t manner, are accurately
identified by the authors. However, rather than attacking the notion of proportionality as a
whole, such attacks should be addressed at the specific conceptions of proportionality that
give rise to the aforementioned illogical statements. This is not to say that proportionality
should be abandoned, but rather greater theoretical work should be done to get a better grasp
of the yet undertheorized notion of balance, which is the focus of their objections. Finally, the
critics should be commended for being among the first to provide critical viewpoints and
therefore expand academic debate by challenging the near-consensus in legal practise about
the necessity of proportionality analysis. Critical voices are welcome, even if they fail to
persuade for the time being, in light of the spectacular success of the principle of
proportionality in constitutional rights adjudication around the world. This debate is essential
even if critical voices, as I have argued in this essay, at least for the time being do not
persuade.125

125
Aparna Chandra, Proportionality in India: A bridge to nowhere, OXFORD UNIVERSITY PRESS.

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