The Doctrine of Proportionality

In one line

Proportionality asks whether the administration used a sledgehammer to crack a nut.

In the words a student can write in an exam: the doctrine of proportionality requires that administrative action which restricts a right be no more restrictive than is necessary to achieve its legitimate object. It asks whether the measure pursues a legitimate aim, whether it is rationally connected to that aim, whether a less restrictive measure would have achieved the aim equally well, and whether the benefit to the public outweighs the harm to the individual. In India it applies with full force where a fundamental right is restricted, and in the review of a punishment where the penalty is shockingly disproportionate to the misconduct, while ordinary administrative decisions not touching a fundamental right are reviewed on the narrower standard of unreasonableness.

The contrast that defines the topic

Proportionality is best understood against the older ground it competes with.

Unreasonableness, in the Wednesbury sense, asks whether the decision is so unreasonable that no reasonable authority could have reached it. The threshold is deliberately extreme, and the court says nothing about whether the decision was correct or sensible. It is a test of outrageousness.

Proportionality asks whether the means chosen were necessary to the end. It is a test of fit. The court examines whether a lesser measure would have done, which requires it to look much more closely at the merits.

The single sentence that answers most exam questions: proportionality is a more intense standard of review than unreasonableness, and Indian courts apply it where a fundamental right is at stake and the Wednesbury standard where it is not.

The four part test

The modern test, as used in constitutional adjudication, has four steps, and they must be given in order.

1. Legitimate aim. The measure must pursue an object that the law permits. If the aim itself is impermissible, the enquiry stops.

2. Rational connection, or suitability. The means chosen must be capable of achieving that aim. A rule which cannot advance the object fails here.

3. Necessity, or minimal impairment. There must be no less restrictive measure that would achieve the aim equally well. This is the heart of the test and the step that does the work.

4. Balancing, or proportionality in the strict sense. The benefit to the public must outweigh the harm to the right. Even a necessary measure fails if the cost to the individual is out of all proportion to the gain.