The Doctrine of Proportionality

Where proportionality applies in India

Restrictions on fundamental rights

This is the settled home of the doctrine, and it predates its arrival in administrative law. Article 19 permits restrictions on the freedoms only if they are reasonable, and testing reasonableness has always involved asking whether the restriction goes further than the object requires. Articles 14 and 21 do similar work.

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned a passport impounded under section 10(3)(c) of the Passports Act 1967 by an order reciting only that it was "in public interest", with no hearing given and reasons refused.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment: equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The principle of reasonableness, which legally and philosophically is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence, and the procedure contemplated by Article 21 must answer the test of reasonableness in order to conform to Article 14; it must be right and just and fair, and not arbitrary, fanciful or oppressive.

Why it matters here. It links reasonableness to Article 14 and makes it a general requirement of State action, which is the foundation on which proportionality was later built in India. It also shows the technique: a restriction on the right to travel had to be justified, not merely asserted.

The reasonableness of a statutory restriction

Facts. Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554, concerned the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954, which prohibited advertisements commending drugs for the treatment of the diseases listed in section 3. The petitioners argued that the restraint was disproportionate to the purpose of the Act and to the evil sought to be remedied, relying on the wide definition of advertisement, the use of the word "suggest" in section 3, the uncanalised delegated power to add diseases to the schedule, and the powers of seizure in section 8.

Held. The Act as a whole was upheld: its object was to prevent self-medication and self-treatment, a commercial advertisement of one's own business is not part of the freedom of speech under Article 19(1)(a), and the restrictions were otherwise reasonable. But the words permitting the executive to specify "any other disease or condition" in clause (d) of section 3 were ultra vires as conferring uncanalised and uncontrolled power, no criteria, standards or principle having been laid down. The first part of section 8, empowering seizure and detention on suspicion, imposed an unreasonable restriction, went far beyond the purpose for which the Act was enacted, and failed to provide the safeguards found in other statutes; since excising it would leave the remainder unintelligible, the whole of section 8 fell.

Why it matters here. The treatment of section 8 is proportionality reasoning in substance, decided long before the word became current: the power went further than the object required and lacked the safeguards that would have confined it, so it was struck down while the rest of the Act stood.

Punishment disproportionate to the misconduct

The second Indian home of the doctrine is service law. Where a penalty is so disproportionate to the misconduct as to shock the conscience, a court may interfere, even though the choice of penalty is ordinarily for the disciplinary authority. The usual order is to remit the matter for reconsideration of the penalty rather than to substitute a lesser one, consistently with the principle in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, that the court is not an appellate authority.

Where it does not apply with full force

For ordinary administrative decisions which do not touch a fundamental right, the Indian courts have generally kept to the narrower standard: the decision is quashed only if it is arbitrary or so unreasonable that no reasonable authority could have reached it. The reason is institutional. Applying the necessity limb requires a court to say that a different, lesser measure would have worked, and that is a judgment about administration rather than about legality.

The objection to proportionality

An answer should engage with it, because it is the reason the doctrine is confined.

It moves the court closer to the merits. Asking whether a less restrictive measure would have achieved the object equally well is close to asking what the court would have done. That collides with Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, which holds that in judicial review the court is not an appellate authority, that the Constitution does not permit it to direct or advise the executive in matters of policy, and that the only check on the court's own exercise of power is the self imposed discipline of judicial restraint.

The answer given by those who support the doctrine is that where a fundamental right is restricted the Constitution itself requires the restriction to be reasonable, so the court is applying a constitutional standard and not substituting its policy. That is why the doctrine is at its strongest under Article 19 and weakest in ordinary administrative review.

A worked example

A municipal corporation finds that a restaurant, Malvani Kitchen, has been serving food after the permitted closing hour on three occasions. Its options under the Act are a warning, a fine of up to twenty thousand rupees, suspension of the licence for up to a month, or cancellation. It cancels the licence.

Step 1, legitimate aim. Enforcing closing hours to prevent nuisance to residents. Legitimate.

Step 2, rational connection. Cancelling the licence certainly stops the breaches. Connected.

Step 3, necessity. Could a lesser measure have achieved the aim? A fine, or a short suspension, plainly could. Three breaches of closing hours do not require the destruction of the business. The measure fails at this step.

Step 4, balancing. Even if necessity were arguable, the harm, the loss of a livelihood and the employment of the staff, is out of proportion to the gain, which is the prevention of late night noise that a fine would also prevent.

What the court does. On the punishment line of cases, cancellation on these facts is disproportionate to the misconduct, and the ordinary order is to quash the cancellation and remit the matter to the corporation to reconsider the penalty. The court will not itself substitute a fine, because choosing the penalty is the authority's function.

Now vary it. Suppose the restaurant was found serving food adulterated with a prohibited chemical, causing illness to twelve customers. Cancellation is now proportionate: no lesser measure protects the public, and the balance is plainly in favour of the public.

What it does NOT mean

It does not mean the court chooses the penalty. It quashes and remits.

It does not mean every harsh decision is disproportionate. The penalty must be shockingly disproportionate before a court will interfere in the service law line.

It does not replace Wednesbury unreasonableness in India. The two coexist, and which applies depends on whether a fundamental right is engaged.

It does not apply to the wisdom of policy. Whether a policy should exist is not a proportionality question; whether the means chosen to implement it go further than necessary is.

Quick revision

1. Proportionality: the interference must be no more than is necessary to achieve a legitimate object.
2. Four steps: legitimate aim, rational connection, necessity or minimal impairment, and balancing.
3. Contrast with unreasonableness: proportionality asks about fit and is intense; unreasonableness asks about outrageousness and is deferential.
4. In India it applies fully where a fundamental right is restricted, and in the review of a shockingly disproportionate punishment; ordinary administrative decisions are reviewed on the arbitrariness and unreasonableness standard.
5. Maneka Gandhi v. Union of India, AIR 1978 SC 597: the principle of reasonableness pervades Article 14; the procedure under Article 21 must be right, just and fair; equality and arbitrariness are sworn enemies.
6. Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554: the seizure power in section 8 went far beyond the purpose of the Act and lacked the safeguards other statutes provided, and was struck down as an unreasonable restriction, while the Act stood.
7. The objection is that necessity review approaches the merits: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Test yourself

1. Explain the doctrine of proportionality and its application in India. It requires that administrative or legislative action restricting a right go no further than is necessary to achieve its legitimate object, and it is applied through four questions: whether the aim is legitimate, whether the means are rationally connected to it, whether a less restrictive means would have achieved it 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, since Article 19 permits only reasonable restrictions and Maneka Gandhi v. Union of India, AIR 1978 SC 597, holds that the principle of reasonableness pervades Article 14 and that a procedure under Article 21 must be right, just and fair. It also applies in service law where a penalty is shockingly disproportionate to the misconduct. For ordinary administrative decisions not touching a fundamental right, the courts have kept to the narrower standard of arbitrariness or Wednesbury unreasonableness.

2. Distinguish proportionality from Wednesbury unreasonableness. Wednesbury unreasonableness asks whether the decision is so unreasonable that no reasonable authority could ever have come to it. The threshold is extreme, the court's role is secondary, and the court says nothing about whether the decision was sensible. Proportionality asks whether the interference exceeded what was necessary to achieve the object, which requires the court to consider whether a lesser measure would have sufficed and to weigh the benefit against the harm. It is therefore a much more intense standard, and it brings the court closer to the merits, which is why in India it is reserved principally for restrictions on fundamental rights and for shockingly disproportionate punishments.

3. State the four part test of proportionality. First, the measure must pursue a legitimate aim, one the law permits. Second, there must be a rational connection between the measure and that aim, so that the means chosen are capable of achieving it. Third, the measure must be necessary, in the sense that no less restrictive alternative would achieve the aim equally well, which is the limb that does most of the work. Fourth, the measure must be proportionate in the strict sense, so that the benefit to the public outweighs the harm caused to the individual right.

4. What is the objection to applying proportionality in ordinary administrative review? That it draws the court into the merits. To decide that a less restrictive measure would have achieved the object equally well, a court must form its own view about how the administration should have acted, which is difficult to distinguish from substituting its judgment for that of the authority the statute chose. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in judicial review the court is not an appellate authority, that the Constitution does not permit it to direct or advise the executive in matters of policy, and that the only check on the court's own power is self imposed judicial restraint. The answer given by supporters of the doctrine is that where a fundamental right is restricted the Constitution itself demands reasonableness, so the court applies a constitutional standard rather than a policy preference.

5. A government servant is dismissed for being absent without leave for two days. Advise. The choice of penalty is ordinarily for the disciplinary authority and a court will not sit in appeal over it. But where a penalty is so disproportionate to the misconduct as to shock the conscience, the courts will interfere. Dismissal, which ends a career and the pension expectations attached to it, for two days of unauthorised absence, would ordinarily be regarded as shockingly disproportionate, particularly where lesser penalties such as censure, withholding of increments or a fine were available. The proper order is not for the court to impose a lighter penalty itself but to quash the order of dismissal and remit the matter to the disciplinary authority for reconsideration of the penalty, since the selection of punishment is that authority's function.