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Doctrine of Proportionality

One mode of exercising the power of Judicial Review


General Introduction
With the rapid growth of administrative law and the need
& necessity to control possible abuse of discretionary
powers by various administrative authorities, certain
principles have been evolved by courts. If an action taken
by any authority is contrary to law, improper,
unreasonable or irrational, a court of law can interfere
with such action by exercising power of judicial review.
One of such modes of exercising power is the doctrine of
proportionality.
Explanation for the Doctrine
In Council of Civil Service Unions v. Minister for the Civil
Service 1985 AC 374 (HL) Lord Diplock observed:
One can conveniently classify under 3 heads the
grounds on which administrative action is subject to
control by judicial review. The first ground I would call
‘illegality’ the second ‘irrationality’ and the third
‘procedural impropriety’. I have in mind particularly
the possible adoption in the future of the principle of
‘proportionality’.
Contd…..
Proportionality is “concerned with the way in which the
decision maker has ordered his priorities, the very
essence of decision making consists in the attribution of
relative importance to the factors in the case.”
In the human rights context, proportionality
involves a “balancing test” and the “necessity test”. The
former scrutinises excessive and onerous penalties or
infringement of rights or interest whereas the latter takes
into account other less restrictive alternatives.
Nature and Scope of the Doctrine
The doctrine ordains that administrative measures must
not be more drastic than is necessary for attaining the
desired result. If an action taken by an authority is grossly
disproportionate, the said decision is not immune from
judicial scrutiny. Apart from the fact that it is improper
and unreasonable exercise of power, it shocks the
conscience of the court and amounts to evidence of bias
and prejudice. The doctrine operates both in procedural
and substantive matters.
Some Illustrative Cases
Hind Construction & Engineering Co. Ltd. V. Workman AIR
1965 SC 917
In this case, some workers remained absent from duty
treating a particular day as holiday. They were dismissed
from service. The industrial tribunal set aside the action.
Confirming the order of the tribunal, the Supreme Court
observed that the absence could have been treated as
leave without pay. The workman might have been warned
and fined. It is impossible to think that any reasonable
employer would have imposed the extreme punishment
of dismissal on its entire permanent staff in this manner.
Ranjit Thakur v. Union of India AIR 1987 SC 2386
An Army Officer did not obey the lawful command of his
superior officer by not eating food offered to him. Court
Martial proceedings were initiated and a sentence of
rigorous imprisonment of one year was imposed. He was
also dismissed from service, with added disqualification
that he would be unfit for future employment. The said
order was challenged inter alia on the ground that the
punishment was grossly disproportionate. Upholding the
contention and emphasising that “all powers have legal
limits” Venkatachaliah j rightly observed: contd…..
Contd…..
The question of the choice and quantum of
punishment is within the jurisdiction and
discretion of the court-martial. But the
sentence has to suit the offence and the
offender. It should not be vindictive or unduly
harsh. It should not be so disproportionate to
the offence as to shock the conscience and
amount in itself to conclusive evidence of bias.
Sardar Singh v. Union of India AIR 1992 SC 417
A jawan serving in Indian Army was ranted leave and
while going to his home town, he purchased 11 bottles of
rum from army canteen though he was entitled to carry
only four bottles. In court martial proceedings, he was
sentenced to undergo rigorous imprisonment for 3
months and was also dismissed from service. His petition
under Article 226 of the Constitution was dismissed by
the High Court. The petitioner approached the S. Court.
Holding the action arbitrary and punishment severe, the
court set aside the order.