Proportionality as a Ground of Judicial Review

Proportionality is one of the most important grounds for judicial review. It has been a ground for many years and has evolved from the concept of unreasonableness. The concept of proportionality has been developed more as a general principle of law by the judges over the years. This doctrine of proportionality is well established and is a broad concept in the European administrative law.

In modern days authorities both statutory and governmental – enjoy a wide range of discretionary powers. This power is however, fettered by restraints. It is to be exercised in public interest and for the public good. The wide range of authorities and officers conferred with discretion adds to the intensity of the problem in as much as quite frequently discretionary powers are wrongly exercised or otherwise abused. In early times, the courts have been overseeing the exercise of discretionary powers by way of judicial review. New developments in administration made the Courts to adopt new techniques to discipline the exercise of administrative discretion but the judiciary was very cautious in exercising its power of judicial review.

“Traditionally in India as well as in England, courts have exercised self-restraint in reviewing the substantive content of the decision rendered by an administrative body”. [1] In common law the judiciary does not interfere in reviewing the administrative actions, making the courts a secondary reviewer of the action. This is a result of the relation between Parliamentary and Constitutional. [2] One branch cannot transgress in to the functions of the other giving importance to the independence and the supremacy of each branch. But recently with the introduction of human rights and the inclusion of fundamental rights in the some Constitution’s has changed this view. It is now based on sound human rights and constitutional principles [3] . The administration has been misusing its powers and using arbitrary means to remain in the dominant state. Being a dominant violator of fundamental rights the courts have evolved to review such arbitrary administrative actions.

In the test of Proportionality the “courts will quash exercise of discretionary powers in which there is no reasonable relation between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct”. [4] So the administrative action which arbitrarily discriminates will be quashed by the court. The implication of the principle of proportionality is that the court will weigh for itself the advantages and disadvantages of an administrative action and such an action will be upheld as valid if and only if the balance is advantages. [5] If this action is disproportionate to the mischief then it will be quashed.

Evolution of the Principle of Proportionality from Wednesbury Unreasonableness:

The concepts of Proportionality and unreasonableness are fused together providing an adequate rubric for the judicial review of irrationality in administrative law. [6] The principle of Proportionality can be treated as an aspect resulting out of Wednesdury unreasonableness. This is to say that the Wednesbury test was developed to review an action which is highly arbitrary and discriminatory. The judiciary seemed reluctant to enter into the administrative and review its actions. Later in the course of time the test of Proportionality came up to review an action which is not proportional to the desired goal to be achieved by that action. So this would mean that the administrative action to be arbitrary would have to be Wednesbury unreasonable first to be disproportionate. According to me, the two tests complement each other and in order to effectively scrutinize administrative action to achieve justice, equality and fairness.

Wednesbury principle is a tool for challenging administrative action. The way in which such challenge is made is relevant; and in this respect, the Wednesbury principle is understood with respect to grounds of judicial review of administrative action. In relation to this, the ultra vires principle already exists. The ultra vires doctrine refers to an action which is in excess of the powers of decision making bodies, and the reasoning or implications of this principle are important insofar as they uphold the sovereignty of parliament, and the rule of law.

The Case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. [7] , is the source for this famous concept of Wednesbury Test. The Court of Appeal held that it could not intervene to overturn the decision of the defendant corporation simply because the court disagreed with it. To have the right to intervene, the court would have to form the conclusion that:

The corporation, in making that decision, took into account factors that ought not to have been taken into account, or

The corporation failed to take account factors that ought to have been taken into account, or

The decision was so unreasonable that no reasonable authority would ever consider imposing it.

The court held that the condition did not fall into any of these categories. Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld. The test laid down in this case, in all three limbs, is known as the “Wednesbury test”. The term “Wednesbury unreasonableness” is used to describe the third limb, of being so unreasonable that no reasonable authority could have decided that way.

These principles of Wednesbury unreasonableness underwent major modification through the course of decisions in England. A classic example would be the decision of Lord Diplock in the celebrated case of Council of Civil Services Unions v. Minister for the Civil Services [8] , also known as GCHQ case. The grounds for judicial review were widened introducing ‘illegality’, ‘irrationality’ and the ‘procedural impropriety’ for subjecting administrative action to judicial review. He particularly emphasized the principles of proportionality.

The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between his particular goals and the means he employees to achieve those goals, so that his action impinges on the individual rights to the minimum extent to preserve public interest.

Thus implying that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. The principle of proportionality therefore implies that the Court has to necessarily go into the pros and cons of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. Thus, any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred. This is so as administrative decisions can often have profound implications on the day-to-day lives of our citizens, their rights, liberties, and legitimate pursuits.

In a recent decision, R (Daly) Vs. Secretary of State for the Home Department [9] , Lord Steyn explained the earlier decision and opined on the principles of judicial review as under:

“26. The explanation of the Master of the Rolls in the first sentence of the cited passage requires clarification. It is couched in language reminiscent of the traditional Wednesbury ground of review (Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation [1948] I KB 223), and in particular the adaptation of that test in terms of heightened scrutiny in cases involving fundamental rights …..There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where Convention rights are at stake.”

In the light of this case, the administrative power of discretion that has remained protected from judicial review unless challenged on the grounds of absurdity, irrationality or perversity was now open to the test of proportionality as enunciated by Prof. Jeffrey Jowell in his article titled “Beyond the Rule of Law: Towards Constitutional Judicial Review”.

Professor Jowell describes the proportionality test to involve a ‘sophisticated four stage process’ posing the following questions:-

1. Did the action pursue a legitimate aim?
2. Were the means employed suitable to achieve that aim?
3. Could the aim have been achieved by a less restrictive alternative?
4. Is the derogation justified overall in the interests of a democratic society?

According to Professor Jowell, such a four-fold test can ensure that a prima facie violation of a fundamental democratic right is not lightly sanctioned while providing for a heightened scrutiny of a decision called into question.

An Indian Scenario: Proportionality and Article 14 of the Constitution of India

The concept of proportionality in India is restricted from the broad view as it does not accord with the traditional common law judicial review. [10] The principle of proportionality in India is based in the Constitution which ensures the fundamental rights as opposed to the statutory basis in England. [11] Article 14 [12] of the Constitution is one of the main provision under which an administrative action can be reviewed. Under Article 14, the law or the administrative action has to satisfy the reasonable test. In the case of Maneka Gandhi v. Union of India [13] , quoting himself from Royappa case [14] , Justice Bhagwati has read the principle of reasonableness in Article 14 by the words:

“Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.”

Any arbitrary action of the administration will be struck down as unconstitutional as it gives it uncontrolled power and scope for discrimination. The exercise of discretion by the administration should be guided by the administration itself. If it is not guided then the judiciary will have to enforce or strike down some actions of the administration as invalid. While testing the validity of the discretionary power under Article 14 due regard should be given to the importance of the reasonableness and non-arbitrariness of the action. If the administrative action is unreasonable and arbitrary, it will be struck down under Article 14 [15] .

It may be stated at the onset that the Supreme Court has been applying the test of reasonableness unreasonably and the proportionality principle disproportionately. The decisions concerning administrative law affecting fundamental freedoms have always been tested against the principle of proportionality, although it may not always expressly be stated that the principle being adopted was that of “proportionality”.

There have been many judgments which elucidate the doctrine of proportionality in Article 14 [16] and Article 19 [17] of the Constitution of India. One of the earliest decisions on judicial review in administrative law was Ranjit Thakur v. Union of India [18] and it was observed that:

“The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.” [19]

In the case of Om Kumar v. Union of India [20] , inter alia, the Supreme Court noted that while dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19 (1) of the Constitution of India, the issue of whether restrictions imposed by the legislation were disproportionate to the situation and not the least restrictive of choices has been repeatedly examined by the superior courts in numerous judgments.

Thus in the Om Kumar case proportionality was held to mean whether while regulating the exercise of fundamental rights, the appropriate or least restrictive choice of measures have been adopted by the legislature or the administrator so as to achieve the object of the legislation or administrative order. And that it was for the superior Courts to decide whether the choice made by the legislature or the administrative authorities infringed the rights excessively. This to my mind is the essence of the doctrine of proportionality. In State of U.P. v. Sheo Shanker Lal Srivastava and Ors [21] , the Supreme Court has supplied further credence to ex-parte Daly. One must also refer to the case of Commissioner of Police v. Syed Hussain [22] where a similar endorsement was made.

Based on the facts of the sheo shanker case, the Supreme Court while holding that the High Court erred in interfering with the quantum of punishment dwelt upon the question of applicability of doctrine of proportionality. And while holding the view that the doctrine of proportionality could be invoked only under certain situations, the Court however acknowledged that the doctrine of unreasonableness was giving way to the doctrine of proportionality.

In the case of Indian Airlines Ltd. v. Prabha D. Kannan [23] , it was held that where no appeal is provided for against an administrative order, judicial review of such an order would be maintainable. Further, that the High Court in exercise of its jurisdiction under Article 226 of the Constitution while undertaking such review need not confine itself to the traditional tests of review viz illegality, irrationality, and procedural impropriety.

The Judges who adjudicated upon this matter also held the view that in such cases of judicial review the Court has to necessarily delve deeper into the matter and subject such orders to deeper scrutiny going beyond the above three tests. The Supreme Court inter alia had to go into the validity of certain regulations and the power of Judicial Review of administrative acts. While going into this question, the Supreme Court acknowledged that keeping in view the situational changes particularly, the outsourcing of sovereign activities by the State; the Supreme Court had been expanding the scope of judicial review. In its judgment it has held that “the doctrine of unreasonableness has now given way to the doctrine of proportionality”.

Therefore, there is a new wave of thinking that the Doctrine of Unreasonableness in cases where applicable could give way to the Doctrine of Proportionality. And we are certain that in appropriate cases the law will develop accordingly.

Conclusion

Substantive review has always been considered an anathema in judicial review proceedings. When Lord Denning, M.R. stated:

“I go further. Not only must he be given a fair hearing, but the decision itself must be fair and reasonable.” [24]

On appeal Lord Chancellor and Lord Brightman lost no opportunity to rebuke such a proposition on the ground that it went against the well-established principles of judicial review viz., that judicial review is not concerned with the decision but with the decision-making process

The superior Courts in India enjoy the powers of judicial review and this is accepted as one of the basic features of our Constitution. We have been following the common law principles in the matter of justice delivery system, and for interpretation of the Constitution and the Statutes we rely heavily on some of the basic principles laid down by the superior Courts of common law countries. It is, therefore, of immense importance that some of the decisions of the United States Supreme Court, The House of Lords and The Court of Appeal in the United Kingdom, the Supreme Court of Canada and the High Court of Australia attract our attention and we closely follow them in appropriate cases. But, we must also remember that these decisions are rendered in peculiar socio-economic conditions of those countries and many of these principles cannot be applied implicitly in Indian conditions.

However, the general guidelines issued in these decisions have always been applied by our Courts. In the matter of administrative law, there have been tremendous changes in recent times. There is even a fundamental shift in a great deal of public law litigation in England, by virtue of the implementation of the Human Rights Act, 1998, the shift has been significantly accelerated and the principles of judicial review must be actually justified by Constitutional provisions. Though the right of superior Courts to invoke the judicial review is guaranteed by the Constitution, its content, reach and power, and the balance between various principles are not enunciated in any provision of the Constitution, but have probably been founded on various principles enunciated on the basis of notions of fairness which generally permeate the common law.