The Doctrine of Proportionality
Chapter Sixty-Five
Syllabus topic 4, "Grounds of Review"
Pages 196 to 198 of 430
In one line
Proportionality asks whether the administration used a sledgehammer to crack a nut, and it lets a court say so.
In the wording a student can write in an exam: the doctrine of proportionality requires that a measure limiting a right must pursue a legitimate purpose, must be rationally connected to that purpose, must be no more restrictive than necessary to achieve it, and must strike a proper balance between the importance of the purpose and the extent of the limitation; it permits a closer scrutiny of the substance of a decision than Wednesbury unreasonableness does.
MU's question
Set as a lettered short note on the most recent paper, and as "Absence of proportionality" on the 2015 paper, where it was one of three grounds of judicial review the University asked candidates to explain with judicial decisions.
Why the doctrine exists
Because Wednesbury is nearly useless where a right is at stake. A decision to ban a procession may be perfectly rational, supported by material, and taken for a proper purpose, and still destroy a fundamental freedom when a lesser measure would have done. Wednesbury asks whether the decision is absurd; proportionality asks whether the interference was necessary. The second question is the one the citizen actually wants asked.
The four steps
One, legitimate purpose. The measure must be designated for a proper purpose.
Two, rational connection. The measures adopted must be rationally connected to the fulfilment of that purpose.
Three, necessity. The measures must be necessary, in that there are no alternative measures that may similarly achieve the same purpose with a lesser degree of limitation.
Four, balancing. There must be a proper relation between the importance of achieving the purpose and the social importance of preventing the limitation, which is proportionality in the strict sense.
Those four are stated in that form in Modern Dental College and Research Centre v. State of Madhya Pradesh, decided on 2 May 2016.
Facts. A State law regulated admissions and fees in private unaided professional educational institutions, providing for a common entrance test and a fee fixation committee. The institutions challenged it as an unreasonable restriction on their right to carry on the occupation of education.
Held. The law was upheld, and the Court adopted the four-part test: a limitation of a constitutional right is permissible if it is designated for a proper purpose; if the measures undertaken to effectuate the limitation are rationally connected to the fulfilment of that purpose; if the measures are necessary, in that there are no alternative measures that may similarly achieve the same purpose with a lesser degree of limitation; and finally if there is a proper relation between the importance of achieving the purpose and the social importance of preventing the limitation.
The Doctrine of Proportionality
Why it matters here. It is the clearest Indian statement of the four steps, and it is recent enough to be the case an examiner is looking for.
Where the doctrine came from
Continental administrative law. German and French law developed it long before England, which is why Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, described it as recognised in the administrative law of several fellow members of the European Economic Community and predicted its adoption.
Article 19 in India. The reasonable restrictions test in Article 19(2) to (6) has always required the court to ask whether a restriction is reasonable, which is proportionality without the name. Indian courts were therefore doing proportionality decades before the word became fashionable.
Proportionality and Wednesbury compared
| Wednesbury | Proportionality | |
|---|---|---|
| Question | Is the decision absurd? | Was the interference necessary and balanced? |
| Intensity | Very low | Higher, and structured |
| Court's role | Supervisory only | Supervisory, but it weighs the measure against the object |
| Where used in India | Punishment in service matters, and ordinary administrative decisions | Fundamental rights, and increasingly elsewhere |
| Burden | On the petitioner throughout | Once a limitation is shown, the State must justify it |
A worked example
A district administration, worried about examination malpractice, orders a shutdown of mobile internet services in the whole district for four days.
Wednesbury would probably not help: the purpose is legitimate, there is material about malpractice, and it cannot be called absurd. Proportionality gives the answer. The purpose is legitimate and the measure is rationally connected. But it is not necessary: the examination lasts three hours and the shutdown lasts four days, and a shutdown confined to the examination centres and hours would achieve the same object with far less limitation. And on balancing, the social importance of preventing a district-wide loss of communication for four days outweighs the marginal gain. The order is disproportionate.
What this does NOT mean
It does not mean the court substitutes its own view of policy. The four steps are a structured enquiry into justification, not a re-decision.
It does not mean Wednesbury is dead. It survives for decisions that engage no right, and for the quantum of punishment.
It does not mean every restriction fails. Modern Dental College upheld the law, which is a useful reminder that the test is a method and not a verdict.
Quick revision
Four steps: legitimate purpose, rational connection, necessity in the sense of no less restrictive alternative, and balancing. Stated in that form in Modern Dental College. It came from continental law, was predicted for England by Lord Diplock in the GCHQ case, and has always been present in India through the reasonable restrictions test in Article 19. It is more intense than Wednesbury, shifts the burden of justification to the State once a limitation is shown, and does not authorise the court to substitute its own policy.
The Doctrine of Proportionality
Test yourself
1. State the four steps. Proper purpose; rational connection between the measure and the purpose; necessity, that is no alternative measure achieving the same purpose with less limitation; and a proper relation between the importance of the purpose and the importance of preventing the limitation.
2. Why is proportionality more useful than Wednesbury where a right is engaged? Because Wednesbury asks only whether the decision is absurd, while proportionality asks whether the interference was necessary and balanced, which is the question a rights case raises.
3. Which Indian provision has always contained a proportionality test? The reasonable restrictions test in Article 19(2) to (6), which requires the court to ask whether a restriction on a freedom is reasonable.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.