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Doctrine Of Proportionality - An Explainer

Saransh Sharma
15 Aug 2020 4:43 AM GMT
Doctrine Of Proportionality - An Explainer
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The idea of doctrine of proportionality appears first in Aristotle's Nicomachean Ethics, Book 8. Proportionately measures distributive justice in Aristotle's schema. Aristotle's concept, in short, can be said to be of 'recta ratio', that is, Right reason or the right relationship between the state and the citizen, adjudicated by the rule of law.

Doctrine of proportionality finds its place in the Administrative law and is used at the stage of judicial review. The doctrine assets that there must be a reasonable nexus between the desired result and the measures taken to reach that goal. The action taken must not be shockingly disproportionate to the consciousness of the court and the said action can then be challenged by way of judicial review.
It can be better understood with the help of an illustration. Let's say, if in a workplace some workers remain absent from their duty then the punishment for it must be proportional, that is, the employer may treat it as leave without pay and may warn them or may even levy a fine but to dismiss them from service permanently would be disproportional.

Sir John Laws has described 'proportionality' as a principle where the court is concerned with the way in which the decision maker has ordered his priority. 

Lord Diplock in R vs. Goldstein[i] in a bit to explain 'proportionality' said, "This would indeed be using a sledge-hammer to crack a nut" 'Proportionality' involves a "Balancing test" which keeps a check on the excessive or arbitrary punishments or encroachment upon the rights and "Necessity test" which takes into account other less restrictive alternates.

The principle of proportionality evaluates two aspects of a decision:
(1) Whether the relative merits of differing objectives or interests were appropriately weighed or "fairly balanced"?
(2) Whether the measure in question was in the circumstances excessively restrictive or inflicted an unnecessary burden on affected persons?

The court in such a case will not be concerned with the correctness of the decision rather the method to reach such decision.[ii] The decision making process involves attributing relative importance to various aspects in the case and there the doctrine of proportionality enters.
The doctrine can be better understood with the help of a few case laws.

1. Ranjit Thakur V. Union of India[iii] – An Army Officer disobeyed the lawful command of his superior officer by not eating food offered to him. Court martial proceedings were initiated and a sentence of one year rigorous punishment was imposed. He was also dismissed from service, with added disqualification that he would be unfit for future employments.

It was held that Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". 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 shouldn't be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.
 All powers have legal limits.

2. Coimbatore Distt. Central Co-operative Bank Vs. Employees Association[iv]– Certain Employees went on illegal strike. They also prevented others from discharging their duty. It was held that the acts amounted to "Serious misconduct." Punishment imposed on the employees of stoppage of increment could not be said to be disproportionate to the charges levelled and proved against employees.

3. K. S. Puttaswamy v. Union of India[v]- Test of proportionality was upheld by the Hon'ble Supreme Court. It was held that in the case of proportionality of a measure must be determined while looking at the restrictions being imposed by the State on the fundamental rights of citizens. It is not just the legal and physical restrictions that must be looked at, but also the fear that these sorts of restrictions engender in the minds of the populace, while looking at the proportionality of measures.

4. Most recently, in Anuradha Bhasin vs. Union of India [vi] wherein the validity of internet shutdown and movement restrictions in J&K was challenged in the Hon'ble Supreme court. It was held - To summarize the requirements of the doctrine of proportionality which must be followed by the authorities before passing any order intending on restricting fundamental rights of individuals. In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It ought to be noted that such goal must be legitimate. However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of affected parties, the same should be supported by sufficient material and should be amenable to judicial review.

With the rapid growth of administrative law and need to control possible abuse of its discretionary power by administrative authorities certain principles have been evolved by the courts. One of these principles is the proportionality principle. To summarize the essence of the principle, a quotation by Aristotle is ad rem "We do not allow a man to rule, but rational principle, because a man behaves thus in his own interests and becomes a tyrant."
(Author is a practising Lawyer at Delhi High Court)

[i] [1983 (1) WLR 151 (157)]

[ii] Maharashtra law development corporation vs. State of Maharashtra (2011) 15 SSC 616

[iii] (1987) 4 SCC 611

[iv] (2007) 4 SCC 669

[v] (2017) 10 SCC 1

[vi] 2019 SCC Online SC 1725

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