“The doctrine of proportionality ordains that administrative measures must not be more drastic than is necessary for attaining the desired result”-Discuss
INTRODUCTION
Doctrine of proportionality signifies that administrative action should not be more drastic than it ought to be for obtaining desired result. The doctrine is of European origin and is very entrenched in the European Droid Administrative. The principle of proportionality has been characterized as the most important legal principle in the European Administrative Law. The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between his particular goals and the means he employs to achieve those objectives, as a result his actions impacts on individual rights to a minimum extent to preserve the general public interest. This means that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. The implication of the principle of proportionality is that the court will weigh for itself the advantages and disadvantages of an administrative action. If only the balance is beneficial the court will uphold the necessary administrative actions. The administration must project a Balance sheet of the pros and cons associated in any decision of consequence to general public and to different individuals. The principle of the subject asserts that an administrative action could be rejected as invalid was disproportionate to the mischief at which it was focused. The measures adopted by the administration must be proportionate to the pursued objective. An administrative authority during exercising a discretionary power must maintain an exact balance between any negative effects which its decision might have on the liberties, rights, interests of people and the purposes which it follows. All in all, it means that the decision-maker must have a sense of proportion. Thus the doctrine tries to maintain balance between means and ends. Proportionality is what shares space with reasonableness alongside courts and at the same time exercising power of review sees it as a course of immediate action that could have been pursued.
With respect to India, administrative action affecting fundamental freedoms have always been tested on the anvil of proportionality. Proportionality answers to the question that while regulating exercises of primary rights, the correct or at least restrictive selection of measuring has been adopted by the legislature or the administrator in order to achieve the object of the legislation or the goal of administrative guidelines, as the case will be. [1]
Under the principle court will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative guidelines may have on the liberties, rights, interests of persons keeping in mind the purposes which they were supposed to serve. Legislature and administrative authority are given an area of discretion or a range of choice but as to whether the choice made infringes the rights excessively or not rests on the decision of the court. It is the principle followed by proportionality.
While dealing with the validity of the legislation infringing fundamental freedoms enumerated in Act 19-1. It is upon the Supreme Court had to consider whether the restriction imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices. Reasonable restrictions‘ under Art 19(2) to (6) could be imposed on these freedoms only by legislation and courts had occasion to consider the proportionality of the restrictions. Legislation may be made and the restriction may be reasonable, but a balance has to be struck between fundamental right and need for restriction. In cases where such legislation is made and the restrictions are acceptable, although the statute concerned allowed administrative authorities to exercise their discretion in individual situations while imposing restrictions. Question frequently arises whether a wrong choice is made by the administration for imposing the restriction or whether the administrator has not properly balanced the fundamental rights and the need for the restrictions or the reasonable quantum of restrictions, etc. In such cases, the administration action in our country has to be verified on the ground of principles proposed by proportionality as it is done in the case of main legislation. [2]
THE DOCTRINE OF PROPORTIONALITY AND ITS EVOLUTION:
Associated Provincial Picture Houses v Wednesbury Corporation is the English law case which set down the standard of unreasonableness of public body decisions which render them liable to be rejected based on reviews given by jurists. This is known as Wednesburyreasonableness.
The court stated three conditions on which it would intervene to correct an improper administrative decision on grounds of its being irrational in the unique sense later combined in the Council of Civil Service Unions v Minister for the Civil Service.
The basic facts of the case were that Associated Provincial Picture Houses were granted a license by the defendant local authority to operate a cinema on condition that on Sundays no children under 15 were admitted to the cinema. The person claiming sought a declaration that such a condition cannot be accepted & outside the power of the Wednesbury Corporation to impose.
The court held that it could not intervene to overturn the decision of the defendant corporation simply because the court could not agree. In order To have the right to intervene, the court would have to form the conclusive decision, firstly that the corporation, in making that decision, taking into account factors that ought not to have been taken into account, or secondly that the corporation failed to take account factors that ought to have been taken into account, or lastly the decision was so unreasonable that no reasonable authority would ever consider imposing it. Thus it held that the condition did not fall into any of these criteria. Consequently, the claim failed & the decision of the Wednesbury Corporation was upheld. The test lay down in this case, in all 3 limbs, known as “the Wednesbury test”. The term “Wednesbury unreasonableness” is used to describe the 3rdlimb, of being so unreasonable that no reasonable authority could have taken decision in that manner. This case is cited in common law courts as a reason for courts to be hesitant to interfere into the decisions of administrative law bodies. However, in recent times, particularly as a result of the enactment of the Human Rights Act 1998, the judiciaries have resoled from this strict abstention‘s approach, recognizing that in certain circumstances it is necessary for them to undertake a more searching review of decisions taken by administrators. Perhaps, the European Court of Human Rights now requires the reviewing court to subject the original decision to anxious scrutiny whether an administrative measure infringes a traditional right. In order to justify, the respondents have to show that they pursued a pressing social need and that the means employed to achieve this were proportionate to the limitation of the right.
Thus, it can be concluded that Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have reached it. As a legal test proportionality is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to assess the balance or equation‘ struck by the decision taker. In some jurisdictions proportionality test is also described as the least injurious meanstestin order toprotect basic rights of citizens and to ensure a fair balance between individual rights and mass interest. Adequate.Tosay that there has been an overlapping of all these tests in its content and structure, it is difficult to lay down a strait jacket formula and to say that Wednesbury has met with its death knell is too much for statement. Let us, however, recognize the fact that the current trend seems to favor proportionality test but Wednesbury has not met with its judicial burial and state burial, with full honors is surely not to happen in the near future.
WEDNESBURY PRINCIPLE WITH RESPECT TO DOCTRINE OF PROPORTIONALITY
Rationality isplausibly the most ubiquitous concept used in studying how humans behave as individuals, members of groups, and in institutions. It plays a central role in disciplines as varied as economics, psychology, philosophy, the philosophy of science, public administration, organizational theory, sociology and business management not to mentionlaw. However, it is a highly ambiguous expression.
By irrationality‘, I mean Wednesbury’s unreasonableness, what can now be succinctly referred to it.Which applies to a decision that is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. With this landmark judgment of 1947, started in England, the one of the crucial tests of checking the validity of administrative decisions. It laid down a principle of unreason ability to determine whether the administrative action is validly taken or not.
To test the existence of validity in the administrative actions, the Wednesbury principle provided the test of unreason ability in the administrative action. An action stands unreasonable in this test if it is such that no reasonable man would have taken such a decision or action. This principle provided the courts with an important basis for review of any administrative action. The Wednesbury test, in the following years, started getting more and more importance in the English legal system. The courts were to judge the reasonability of the complained administrative action and decide the validity or invalidity of that administrative action. But with the passage of time criticism of the Wednesbury test also started erupting. Its basic postulate of reasonability was brought into question for being insufficient and impractical test to judge validity of administrative actions. In recent times, particularly as a result of the enactment of the Human Rights Act 1998, the judiciaries have resoled from this strict abstention‘s approach, recognizing that in certain circumstances it is necessary for them to undertake a more searching review of administrative decisions.
Thus, the courts started developing a new test for judicial review of administrative action, which came up for application although with lots of opposition, which was the Doctrine of Proportionality. This is a test for judicial review of administrative actions on a more comprehensive basis. The Doctrine of proportionality checks the important link between the administrative objective to be achieved and the means adopted by the administration to achieve it. During R. Daly v Secretary of State for Home Department , in House of Lords the court came up with a precise definition of the doctrine as: Whether: (I) the administrative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objectives are rationally connected to it; and (iii) the means used to impair the rights or freedom are no more than is necessary to accomplish the objective.
This lays down the three fundamentals of the test of proportionality which can also be briefly described as the three principles of (I) necessity, (ii) adequacy and (iii) strict sense proportionality. Thus, now for administrative actions to be reviewed judicially, the administrative action has to pass through these three tests. And, if it fails at any of the three junctures, it would get invalidated. But, now the question arose before the courts as to whether the new doctrine of proportionality was a replacement of Wednesbury principle or not. Initially, the courts remained hesitant to accept this doctrine, as was seen in the case R v. Secretary of State for the Home Department ex. Prate Brand, wherein the court held that the Wednesbury reasonableness and proportionality are different tests. The test of proportionality is not needed in the English legal system for the Wednesbury test provide a sufficient test. Lord Lowry lays two arguments for rejection of the new doctrine. First , the normative argument that the traditional Wednesbury approach represents the correct balance between judicial intervention and agency autonomy. Second, he concludes that the proportionality test strikes a different –and therefore incorrect –balance between those two factors, such that it would destroy the distinction between appeal and review.
The House of Lords in R (Daly) v. Secretary of State for the Home Department , demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of proportionalityand necessity.[5]Noted by Lord Steyn that the criteria of proportionality are more precise and more sophisticated than traditional grounds of review and went on to outline three concrete differences between the two:-
1. Proportionality may require the reviewing Court to assess the balance which the decision
maker has struck, not merely whether it is within the range of rational or reasonable decisions.
2. Proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations.
3. Even the heightened scrutiny test is not necessarily appropriate to the protection of human rights.
A CONTEMPORARY VIEW TO THE DOCTRINE OF PROPORTIONALITY
It used to be thought in the classical constitutional doctrine that wide discretionary power was incompatible with rule of lawyer this dogma cannot be considered deeply today, and yet it never contained much reality. The demands of rule of law are not that wide discretionary power must be extinguished; rather the law should be able to control its exercise fairly. Today’s government demands discretionary powers which are wide and numerous. Parliamentary draftsmen strive to find new forms of words which will make discretion even broader and the parliament all too readily makes them. It is also the attitude of the courts to such seemingly unbounded power which is perhaps the most revealing feature of a system of administrative law.
The first requirement is the recognition that all power is limited to legal boundaries. Next requirement is no less important which is that the courts should draw those limits in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizen. The Parliament constantly confers upon public authorities powers which on their face might seem absolute and arbitrary but arbitrary power and unfettered discretion are what the courts refuse to countenance. A network of restrictive principles which require statutory powers to be exercised reasonably in good faith, for rightful purposes only, and in accordance with the spirit as well as the letter of the empowering act is woven by them. They have also imposed stringent procedural necessities. Here we are concerned with the elements of administrative discretion. It has to be understood that the term unreasonable means a lot more than just one thing. It may incorporate a host grounds mentioned previously, as that the authority has acted on extraneous consideration or for an improper purpose. Thus unreasonableness does not furnish an independent ground of judicial control of administrative powers. Unreasonableness may also mean that even though the authority has acted according to law in the sense that it has not acted on irrelevant grounds or exercised power for a purpose that is not proper, although it has given more weight to some factors than they deserved as compared with other factors that are relevant. Hindrance on this ground requires going into the relative importance of different factors and their balancing which amounts to substituting the discretion of the judiciary for that of the executive. Such wide power to interfere in the exercise of the administrative discretion courts do not normally exercise. .
Unreasonableness‘ may furnish a ground for intervention by the courts when the statute requires so. Article 14 of the Constitution guarantees equality before the law but the courts have permitted reasonable separation to be made. The law is valid under the article, a discriminatory action would still be violated of the equality clause. Article 19 requires reasonable restrictions to be imposed on the rights specified therein. In Maneka Gandhi v. Union of India,[6]it was held that an order made under section 10(3) (c) of the Passport Act, 1967 i.e. power of impounding a passport could be declared to be bad under clauses 1 (a) and (g) of the article if it was so severe in nature, as to be imposing unfair embargo on the individual‘s freedom covered by the 2 clauses. Soif the order of impounding is for an indefinite period it would not be valid. At times, the law may require reasonable administrative behavior, e.g., reasonable ground to believe by an authority to take measures. In many cases the courts have taken into account this statutory formula. At first, reasonable ground to believe‘ is a condition precedent to taking the administrative action into consideration. In Nath v Appellate assistant commissioner[7] , the supreme court with reference to the phrase used in the income tax act for initiating reassessment proceedings by the I.T.O Said that The Income Tax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the Section. If a condition precedent of this nature is not satisfied so as to make out a prima facie case the order will be quashed.
CONCLUSION
Thus the doctrine of proportionality should not be more drastic rather it requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be maintained. Thus proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance. The Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, fairly balanced and harmonious, to this extent court may yield in a merit review and if the court finds that the decision is in due proportion, it infrequently interferes with the decision taken and if it finds that the decision is not appropriate for instance if the court finds that it is not well balanced and does not stand to reason it may will to interfere. Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results in daily terms, that you should not apply a sledgehammer to crack a nut and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision. Courts have to develop an indefeasible and principled approach to proportionality till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word explains itself has reference to variables; it enables the Court to apply the principle with various degrees of intensity and offers a potentially deeper knowledge into the reasons, sited by the decision maker.
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[1]Om Kumar v. Union of India, (2001) 2 SCC 386.
[2]TeroatEstates Pvt Ltd. v. U.T Chandigarh, (2004) 2 SCC 130.
[3]G Airo-Farulla, =Rationality and Judicial Review of Administrative Action‘, (2000) 24 Melbourne University Law
Review 543.
[4]Associated Provincial Picture House Ltd. v. Wednesbury Corp., (1947) 2 All ER 680.
[5][2001] UKHL 26 [2001] 2 AC 532.
[6]AIR1978 SC 597.
[7](2006) 3 SCC 276.