ADMINISTRATIVE LAW ASSIGNMENT-

Doctrine of Proportionality: A Comparative Study with Wednesbury

Principle

SUBMITTED BY: ABHIJEET RAI SUBMITTED TO: DR. ALOK

KUMAR

[Assistant Professor of Law]

ROLL NO. 1120171818

 INDEX

● INTRODUCTION
● DOCTRINE OF PROPORTIONALITY
● Evolution of the Principle of Proportionality from
Wednesbury Unreasonableness:
● Indian Approach To The Doctrine Of Proportionality
● RELATIONSHIP BETWEEN WEDNESBURY
PRINCIPLE, PROPORTIONALITY AND LEGITIMATE
EXPECTATION
● Conclusion
INTRODUCTION1

Judicial review of legislative and executive action has been one of the most important
developments in the field of public law in the last century. Though the concept of judicial review
was developed way back in 1803 in the famous case of Marbury v. Madison , it found wide
application only in the later periods of the 20th Century, when in the aftermath of the World War
II, democracy came to be the governing political principle in most parts of the world. Since then
the scope and ambit of judicial review has been one of the central themes of discussion in the
branch of administrative law.

Among the two - executive and legislative actions - it is the judicial review of executive action
(administrative action) that has assimilated much content enrichment, particularly in the last two
decades. The growth of modern welfare state coupled with the technological advances has
resulted in the legislature not only leaving wide areas of discretion to the administrative authority
but also even delegating many of its powers and functions. This has resulted in the modern day
bureaucrat becoming extremely powerful. This often leads to misuse of discretion vested in him
there by requiring frequent judicial intervention. However this intervention should not result in
the judiciary encroaching into areas reserved for the executive. Consequently, the scope and
ambit of judicial review must be limited to the extent just necessary to prevent the abuse of the
discretion conferred on the executive.

To achieve this limiting function of judicial review, common law systems and civil law systems
reacted differently and developed different processes. In common law jurisdictions the concept
of secondary review was developed to achieve this limiting function of judicial review. Under
the concept of secondary review the courts would strike down administrative orders only if it
suffers the vice of wednesbury unreasonableness which means that the order must be so absurd
that no sensible person could ever dream that it lay within the powers of the administrative
authority. The civil law jurisdictions on the other hand developed the concept of proportionality
based review (primary review) which is a much more intensive form of judicial review. The
principle of proportionality ordains that the administrative measure must not be more drastic than
is necessary for attaining the desired result3 . Though the common law countries prefer
secondary review, it could not ignore proportionality based review for long. This was not only

1 Justice Anand Byrareddy, Proportionality vis-à-vis irrationality in administrative law (2008) 7 SCC J-29,
p.32
because of the advantages associated with proportionality based review but also because of the
establishment of an European court and the consequential growth of a separate pan European
jurisprudence primarily based on civil law concepts.

India, a former colonial state of British Empire, inherited from British India, the common law
system. After Independence, India chose to retain the common law system without much change.
Indian courts have always found it desirable to follow English precedents while deciding
domestic cases. This has virtually been the case in the development of administrative law in
India. In Spite of Article 226/Article 32 read with Article 13 of the Constitution of India giving
the constitutional courts much wider scope to interfere with executive orders, the Indian courts
have chosen to follow the English concept of wednesbury reasonableness. However, with the
doctrine of proportionality fast gaining currency across the world including common law
countries, the Indian legal system could not remain closed for long and in the case of Om kumar
v Union of India the Indian Supreme Court accepted the doctrine of proportionality as a part of
Indian law.

DOCTRINE OF PROPORTIONALITY2

Doctrine of proportionality is a principle that is prominently used as a ground for judicial review
in cases of administrative action. The doctrine was developed in Europe and it is a vital part of
the European administrative law. The doctrine essentially signifies that the punishment should
not be disproportionate to the offence committed or the means that are used by administration to
obtain a particular objective or result should not me more restrictive than that are required to
achieve it. We live in an age where administrative authorities have been empowered to exercise
discretionary powers, the position holders in the administration exercise wide discretionary
powers and these powers cannot be used arbitrarily, therefore to keep a check on them, the
doctrine of proportionality is used. While exercising administrative action, the body should keep
in mind the purpose it seeks to obtain and the means it is using to achieve it, and if its actions
deviate from the object or are discriminatory or disproportionate then they would be quashed by
the court by using the doctrine of proportionality. In India the doctrine of proportionality was
adopted by the Supreme Court of India in the case of Om Kumar v. Union of India. In this case
the Apex court observed that Indian courts have been using this doctrine since 1950, in cases of
legislations violating fundamental rights enshrined in Article 19(1) of the constitution. Although

2 Om kumar v. Union of India AIR 2000 SC 3689.

the Doctrine has been adopted in India in a very restrictive manner. The European model has not
been adopted fully. The doctrine of proportionality requires a body to maintain balance between
its action and purpose for which the powers have been conferred.

Evolution of the Principle of Proportionality from Wednesbury

Unreasonableness:3
The concepts of Proportionality and unreasonableness are fused together providing an adequate
rubric for the judicial review of irrationality in administrative law. The principle of
Proportionality can be treated as an aspect resulting out of Wednesbury unreasonableness. This is
to say that the Wednesbury test was developed to review an action which is highly arbitrary and
discriminatory. The judiciary seemed reluctant to enter into the administrative and review its
actions. Later in the course of time the test of Proportionality came up to review an action which
is not proportional to the desired goal to be achieved by that action. So this would mean that the
administrative action to be arbitrary would have to be Wednesbury unreasonable first to be
disproportionate. According to me, the two tests complement each other and in order to
effectively scrutinize administrative action to achieve justice, equality and fairness.
Wednesbury principle is a tool for challenging administrative action. The way in which such
challenge is made is relevant; and in this respect, the Wednesbury principle is understood with
respect to grounds of judicial review of administrative action. In relation to this, the ultra vires
principle already exists. The ultra vires doctrine refers to an action which is in excess of the
powers of decision making bodies, and the reasoning or implications of this principle are
important insofar as they uphold the sovereignty of parliament, and the rule of law.
The Case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. , is the source for
this famous concept of Wednesbury Test. The Court of Appeal held that it could not intervene to
overturn the decision of the defendant corporation simply because the court disagreed with it. To
have the right to intervene, the court would have to form the conclusion that:
The corporation, in making that decision, took into account factors that ought not to have been
taken into account, or the corporation failed to take account factors that ought to have been taken
into account, or the decision was so unreasonable that no reasonable authority would ever
consider imposing it. The court held that the condition did not fall into any of these categories.
Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld. The test
laid down in this case, in all three limbs, is known as the “Wednesbury test”. The term
3 LawTeacher. November 2013. Proportionality As A Ground Of Judicial Review. [online]. Available from:
https://www.lawteacher.net/free-law-essays/constitutional-law/proportionality-as-a-ground-of-judicial-
review-constitutional-law-essay.php?vref=1 [Accessed 16 May 2019].
“Wednesbury unreasonableness” is used to describe the third limb, of being so unreasonable that
no reasonable authority could have decided that way.
These principles of Wednesbury unreasonableness underwent major modification through the
course of decisions in England. A classic example would be the decision of Lord Diplock in the
celebrated case of Council of Civil Services Unions v. Minister for the Civil Services , also
known as GCHQ case. The grounds for judicial review were widened introducing ‘illegality’,
‘irrationality’ and the ‘procedural impropriety’ for subjecting administrative action to judicial
review. He particularly emphasized the principles of proportionality.
The principle of proportionality envisages that a public authority ought to maintain a sense of
proportion between his particular goals and the means he employees to achieve those goals, so
that his action impinges on the individual rights to the minimum extent to preserve public
interest.
Thus implying that administrative action ought to bear a reasonable relationship to the general
purpose for which the power has been conferred. The principle of proportionality therefore
implies that the Court has to necessarily go into the pros and cons of any administrative action
called into question. Unless the impugned administrative action is advantageous and in public
interest such an action cannot be upheld. At the core of this principle is the scrutiny of the
administrative action to examine whether the power conferred is exercised in proportion to the
purpose for which it has been conferred. Thus, any administrative authority while exercising a
discretionary power will have to necessarily establish that its decision is balanced and in
proportion to the object of the power conferred. This is so as administrative decisions can often
have profound implications on the day-to-day lives of our citizens, their rights, liberties, and
legitimate pursuits.
In a recent decision, R (Daly) Vs. Secretary of State for the Home Department , Lord Steyn
explained the earlier decision and opined on the principles of judicial review as under:
The explanation of the Master of the Rolls in the first sentence of the cited passage requires
clarification. It is couched in language reminiscent of the traditional Wednesbury ground of
review (Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation [1948] I KB
223), and in particular the adaptation of that test in terms of heightened scrutiny in cases
involving fundamental rights …..There is a material difference between the Wednesbury and
Smith grounds of review and the approach of proportionality applicable in respect of review
where Convention rights are at stake.”
In the light of this case, the administrative power of discretion that has remained protected from
judicial review unless challenged on the grounds of absurdity, irrationality or perversity was now
open to the test of proportionality as enunciated by Prof. Jeffrey Jowell in his article titled
“Beyond the Rule of Law: Towards Constitutional Judicial Review”.
Professor Jowell describes the proportionality test to involve a ‘sophisticated four stage process’
posing the following questions:-
(1) Did the action pursue a legitimate aim?
(2) Were the means employed suitable to achieve that aim?
(3) Could the aim have been achieved by a less restrictive alternative?
(4) Is the derogation justified overall in the interests of a democratic society?
According to Professor Jowell, such a four-fold test can ensure that a prima facie violation of a
fundamental democratic right is not lightly sanctioned while providing for a heightened scrutiny
of a decision called into question.
Indian Approach To The Doctrine Of Proportionality4

The Indian Supreme Court consciously considered the application of the concept of
proportionality for the first time in the case of Union of India v. G. Ganayutham . In that case the
Supreme Court after extensively reviewing the law relating to wednesbury unreasonableness and
proportionality prevailing in England held that the „wednesbury‟ unreasonableness will be the
guiding principle in India, so long as fundamental rights are not involved. However the court
refrained from deciding whether the doctrine of proportionality is to be applied with respect to
those cases involving infringement of fundamental rights.
pect to those cases involving infringement of fundamental rights . Subsequently came the historic
decision of the Supreme Court in Om kumar v. Union of India . It was in this case that the
Supreme Court accepted the application of proportionality doctrine in India. However, strangely
enough the Supreme Court in this case suddenly discovered that Indian courts had ever since
1950 regularly applied the doctrine of proportionality while dealing with the validity of
legislative actions in relation to legislations infringing the fundamental freedom enumerated in
Article 19 (1) of the Constitution of India. According to the Supreme Court the Indian courts had
in the past in numerous occasions the opportunity to consider whether the restrictions were
disproportionate to the situation and were not the least restrictive of the choices. The same is the
position with respect to legislations that impinge Article 14 (as discriminatory), and Article 21 of
the Constitution of India. With respect to the application of the doctrine of proportionality in
administrative action in India, the Supreme Court after extensively reviewing the position in
England came to a similar conclusion. The Supreme Court found that administrative action in
India affecting fundamental freedoms (Article 19 and Article 21) have always been tested on the
anvil of proportionality, even though it has not been expressly stated that the principle that is
applied is the proportionality principle. Thus the court categorically held that the doctrine of
proportionality is applicable to judicial review of administrative action that is violative of Article
19 and Article 21 of the Constitution of India. With respect to Article 14 of the Constitution of
India, Supreme Court concluded that when an administrative action is challenged as
discriminatory the courts would carry out a primary review using the doctrine of proportionality.
However when an administrative action is questioned as arbitrary the principle of secondary
review based on wednesbury principle applies. The Supreme Court also held that punishment in
4 IOSR Journal of Humanities and Social Science 2012.Administrative Action and the Doctrine of
Proportionality in India.[online].Available from:http://www.iosrjournals.org/iosr-jhss/papers/Vol1-
issue6/D0161623.pdf?id=5628
service law is normally challenged as arbitrary under Article 14 of the Constitution, and hence
only secondary review based on wednesbury principle would apply. This according to the
Supreme Court is because in such matters relating to punishments in service law, no issue of
fundamental freedom or of discrimination under Article 14 applies.

However even after a decade since the decision in Omkumar‟s case, no further progress has been
made. The law regarding proportionality in India remains at what has been stated in Omkumar‟s
case. The only advancement could be the vague observation in a few subsequent judgments that
the doctrine of unreasonableness is giving way to the doctrine of proportionality.
Thus, in India, under the current state of law, as declared by the Supreme Court, proportionality
review with respect to administrative action has only limited scope. This is because, in India
much of the administrative action is challenged before the courts primarily on the ground of
arbitrariness and this can be challenged only on the ground of wednesbury unreasonableness.
Thus in reality the decision in Omkumar‟s case has not significantly enhanced the scope of
judicial review in India. No reason as such is given by the Supreme Court in Omkumar‟s case as
to why doctrine of wednesbury unreasonableness alone should be applied to challenges under the
head of arbitrariness. However there can be at least two reasons for this. First of all, the Supreme
Court was simply accepting a similar classification in England by which proportionality review
was applicable only when convention rights were involved and wednesbury principle alone was
applicable when non convention rights were involved. Secondly, just like Lord Lowry the
Supreme Court may have feared a docket explosion when the threshold of review is lowered.
The latter of these two reasons cannot and should never be the reason for not allowing a better
and more intensive standard of review. Initially there may be a increase in the number of cases,
but when it becomes clear to the decision makers that the judiciary is adopting a much more
intense standard of review, they would themselves reassess their decision making process and
bring their decisions in tune with the new standard of review. As for the former reason, the
distinction between convention and non convention rights as regards application of
proportionality is fast disappearing. Furthermore, the Supreme Court's distinction based on
arbitrariness is not conceptually strong. First of all, the assumption behind this classification is
that an administrative order which is arbitrary would seldom be violative of fundamental rights
or is discriminatory. This is patently erroneous in most cases. For e.g., suppose a government
employee is dismissed from service under the service law for attending a religious congregation,
then the order is not only arbitrary but also violative of at least two of his fundamental rights
namely his freedom of religion and his freedom to assemble. Similarly an administrative act
denying promotion for a sufficiently experienced government employee and at the same time
promoting similarly placed persons will be per se not just arbitrary but also discriminatory.
Secondly, when a petitioner having sufficient locus standi challenges an administrative act as
arbitrary, he is doing so only because one or other of his rights - fundamental, statutory or
common law - has been violated. If the classification made by the Supreme Court is adopted then
the first task before the court is to determine which type of right has been affected. This is not an
easy task for there can be no clear cut boundaries between fundamental rights and non
fundamental rights particularly when the Supreme Court has itself given a very broad meaning to
Article 21 of the Constitution of India. This task becomes even more difficult, when one
considers the fact that usually an administrative act is violative of more than one right. Hence
much of judicial time would be wasted in deciding the nature of the right. In the alternative, the
judicial time could be effectively used in evaluating whether the decision maker has properly
balanced the priorities while taking the decision. Obviously a variable intensity of
proportionality review - based on the concept of judicial deference and judicial restraint - can be
adopted depending upon the subject matter and the nature of the rights involved.
Equally important is the consideration whether the administrative action challenged as arbitrary
should remain within the purview of wednesbury principle. For this, it is pertinent to look at the
meaning of the word „arbitrariness‟. It is never an easy term to define with precision and hence
the Supreme Court in the case of Shrilekha Vidyarthi v. State of U.P57equated „arbitrariness‟
with „reasonableness‟

By equating arbitrariness with wednesbury unreasonableness, the decision maker escapes serious
judicial review. But this is fast changing. Proportionality is fast replacing wednesbury
reasonableness which the Supreme Court itself has observed in a large number of recent cases.
After all there is nothing wrong in a modern democratic society if the court examines whether
the decision maker has fairly balanced the priorities while coming to a decision. At any rate, the
intensity of proportionality review is variable depending upon the subject matter and the nature
of rights involved.
The next question to be addressed is regarding which model - British or European - is to be
adopted in the Indian context. A review of the various judgments of the Supreme Court would
show that the Supreme Court has hardly given any consideration to this issue. This is primarily
because the Supreme Court has never had a real opportunity to apply the doctrine of
proportionality in judicial review of administrative action. Till now the Supreme Court has been
merely stating the legal position of the doctrine of proportionality in the Indian legal system
without actually applying the doctrine of proportionality in the sense it is today understood
internationally.
After the conscious adoption of the doctrine of proportionality into Indian law in the Omkumar‟s
case the only case where the Supreme Court has expressly adopted the doctrine of
proportionality is the case of Sandeep Subhash Parate v. State of Maharastra . In that case a
student obtained admission to engineering course based on a caste certificate, which was
subsequent to the admission, invalidated. However, he completed the course based on an interim
order of the High Court. Yet the university refused to grant him the degree. This action of the
university was held to be correct by the High Court. The Supreme Court in appeal directed the
university to grand him degree subject to the appellant making a payment of Rupees one lakh, to
re-compensate the state for the amount spend on imparting education to him as a reservation
candidate. This, the Supreme Court claimed was done having regard to the doctrine of
proportionality. But the Supreme Court did not come to a finding that the university had failed to
balance the various considerations before refusing to grant the appellant the degree. Also, the
Supreme Court apart from mentioning the facts of the case failed to explain how it came to the
conclusion regarding proportionality. At any rate the Supreme Court itself admitted that it was
taking the decision under Article 142 of the constitution.
Hence the choice between the European model and the British model in the Indian context will
be a purely academic exercise. As suggested by Julian Rivers the choice would be in favour of
the European model. Further such a selection gets some judicial backing from the decision of the
Supreme Court in Omkumar‟s case wherein the Court while defining proportionality held that
the legislative and administrative authority must be given a range of choice, but the courts can
decide whether the choice infringes the rights excessively or not64 .This would indicate that the
Supreme Court does intent that the fair balance stage (last stage) of the European model must be
part of proportionality review. Hence the conclusive argument would be that the European
conception of proportionality review should be the appropriate test that should be applied in the
Indian context.
Wednesbury Unreasonableness Versus Proportionality
The broad contours of the external structure of judicial review have been laid down by Lord
Diplock in the case of Council of Civil Service Unions. v. Minister for the Civil Services as:
illegality, irrationality and procedural impropriety . This tripartite classification demarcates
judicial review‟s external structure. However it is not exhaustive, nor is the grounds it classifies
mutually exclusive.7 Nevertheless all major authors of books on judicial review use this
classification method. Many developments have occurred within the concept of judicial review
including the decline of prerogative powers and immunity, rise and fall of the concept of
jurisdiction, and the formalization and expansion of legitimate expectation. However all these
changes can be accommodated and neatly housed within Lord Diplock‟s tripartite classification.
Lord Diplock has himself very neatly defined all the three structures within his classification –
namely illegality, irrationality and procedural impropriety but it is the concept of irrationality
that is of importance in this work. 5
Irrationality and Wednesbury Unreasonableness6
While defining irrationality Lord Diplock equated it with „wednesbury unreasonableness‟10.
The concept of‟ „wednesbury unreasonableness‟ was developed in the case of Associated
Picture House v. Wednesbury Corporation and hence the name „wednesbury unreasonableness‟.
It simply means that administrative discretion should be exercised reasonably. Accordingly, a
person entrusted with discretion must direct himself properly in law. He must call his attention to
matters which he is bound to consider. He must exclude from his consideration matters which are
irrelevant to the subject he has to consider. If he does not obey those rules he can be said to be
acting unreasonably. Lord Diplock beautifully sums up „wednesbury unreasonableness‟ as a
principle that applies to a decision which is so outrageous in its defiance of logic or of accepted
moral standards that no sensible person who applied his mind to the question to be decided could
have arrived at it13. Quite obviously the concept of wednesbury unreasonableness is extremely
vague and is not capable of objective evaluation. Hence wednesbury unreasonableness cannot be
defined in the form of standard tests for universal application.

Proportionality
5 IOSR Journal of Humanities and Social Science 2012.Administrative Action and the Doctrine of
Proportionality in India.[online].Available from:http://www.iosrjournals.org/iosr-jhss/papers/Vol1-
issue6/D0161623.pdf?id=5628
6 Justice C.K. Thakkar, Lectures on Administrative Law, (Lucknow: Eastern Book Company, 2003).
The classical definition of proportionality has been given by none other than Lord Diplock when
his Lordship rather ponderously stated “you must not use a steam hammer to crack a nut if a
nutcracker would do”14 Thus proportionality broadly requires that government action must be
no more intrusive than is necessary to meet an important public purpose. However the greatest
advantage of proportionality as a tool of judicial review is its ability to provide objective criteria
for analysis. It is possible to apply this doctrine to the facts of a case through the use of various
tests. Lord Diplock even while giving the tripartite classification admits that proportionality in
the future would be an additional ground of review16. However, today most authors accept
proportionality as an additional head of judicial review within the concept of irrationality. Thus
proportionality and wednesbury unreasonableness is seen as the two aspects of irrationality.
Initially proportionality was only a competitor with wednesbury unreasonableness but because of
the high degree of objectivity associated with proportionality and the vast improvements that the
concept has undergone in the last decade and a half, it is seeking to totally replace Wednesbury
unreasonableness as the only sub-head of review under the concept of irrationality.
RELATIONSHIP BETWEEN WEDNESBURY PRINCIPLE,
PROPORTIONALITY AND LEGITIMATE EXPECTATION 7

Traditional Wednesbury Principle and Proportionality

The courts could persist with Wednesbury principle as basis for review outside those areas where
they have to apply proportionality. Different grounds of challenge would be dealt with under
different heads of review, and Wednesbury principle would be interpreted in the traditional sense
that the applicant would have to show that the public body's action really was so unreasonable
that no reasonable body would have made it. It would, however, be accepted that this standard of
review could vary in intensity, as exemplified by the application of the test in cases concerned
with human rights.

Those who favour this approach would argue that it prevents the courts from intruding too far
into the merits and obviates the need for any complex balancing, both of which are said to be
undesirable features of proportionality. It is argued that the traditional approach will preserve the
proper boundaries of judicial intervention. This claim is, however, undermined, in two ways.

First, it is true that if we take the language literally the need for any meaningful balancing is
obviated by the extreme nature of the test, it simply does not use the colour of a person's hair as
the criterion for dismissal. The reality is, as if has been seen, that the courts, while preserving the
formal veneer of the Wednesbury test, have on occasion applied it to decisions which could not
be regarded as having being made in defiance of logic or of accepted moral standards. The
realisation that the courts have been applying the test to catch less egregious administrative
action casts doubt on the claim that Wednesbury review can be conducted without engaging in
some balancing. It raises the question as to the difference between this and the balancing that
occurs within proportionality.

Secondly, the juridical device of varying the intensity with which the test is applied functions as
a mechanism whereby the courts can exercise the degree of control which they believe to be
desirable in a particular area, without thereby being accused of improper intrusion into the merits
or inappropriate balancing. The very malleability in the standard of review means, however, that

7 Allan T.R.S., Human Rights and Judicial Review: A Critique of “Due Deference”, (2006) 65 (3) C.L.J
671
it is within the courts' power to shift the line as to what is regarded as a proper or improper
intrusion into the merits.

Modified Wednesbury Principle, Proportionality and Legitimate Explanation

8

The courts could, alternatively, retain the Wednesbury test for those areas not covered by the
European Conventions or the Human Rights Act, 1998, but give it the tougher meaning ascribed
by Lord Cooke. In other words, a decision would be overturned if it was one which a reasonable
authority could not have made. This standard of review could also vary in intensity depending
upon the subject-matter. This option is, somewhat paradoxically, more unstable than that just
considered, and the reasons why this is so are revealing.

The essential premise of Lord Cooke's thesis is undoubtedly correct. His Lordship argued that
the proper boundaries between courts and administration could be secured by a test which was
less exaggerated than the traditional Wednesbury formulation. To be sure, the courts should not
substitute their judgment on the merits for that of the administration, but this could be avoided
even where the reasonableness test was formulated in the manner articulated by Lord Cooke.

The instability of this option becomes apparent once it is probe a little further. It should be
recalled that the "virtue" of the traditional Lord Greene reading of the test was that there was no
need to press further. The really outrageous decision would be all too evident and indefensible. If
it is shifted to Lord Cooke's reading of the test this no longer holds true. It would be incumbent
on the judiciary to articulate in some ordered manner the rationale for finding that an
administrative choice was one which could not reasonably have been made, where that choice
fell short of manifest absurdity. If the courts are not obliged to explain their own findings in this
manner then the new test will create unwarranted judicial discretion. It is, however, difficult to
see that the factors which would be taken into account in this regard would be very different
from those used in the proportionality calculus. The courts would in some manner, shape or form
want to know how necessary the measure was, and how suitable it was, for attaining the desired
end. These are the first two parts of the proportionality calculus. It is also possible that under
Lord Cooke's formulation a court might well, expressly or impliedly, look to see whether the

8 GROUNDS OF REVIEW IN LEGITIMATE EXPECTATION IN INDIAN LAW .[online].AVAILABLE

FROM:https://shodhganga.inflibnet.ac.in/bitstream/10603/39836/11/11_chapter%205.pdf
challenged measure imposed excessive burdens on the applicant, the third part of the
proportionality formula.

If these kinds of factors are taken into account, and some such factors will have to be, then it will
be difficult to persist with the idea that this is really separate from a proportionality test. There
will then be an impetus to extend proportionality from the areas where it currently already
applies, the European Conventions and the Human Rights Act, 1998, to general domestic law
challenges.

Proportionality should neither be regarded as a panacea that will cure all ills i.e. real and
imaginary, within our existing regime of review, nor should it be perceived as something
dangerous or alien. It seems likely that it will be recognised as an independent ground of review
within domestic law. This is because the courts are already applying the test directly or indirectly
in some areas. The Wednesbury test itself is moving closer to proportionality; the European
Conventions and the Human Rights Act, 1998 will acclimatise our judiciary to the concept; and
the concept is accepted in a number of civil law-countries. It might therefore be of help to pull
together some of the advantages and alleged disadvantages of this criterion.

(1) A corollary is that proportionality facilitates a reasoned inquiry of a kind that is often lacking
under the traditional Wednesbury approach. This is brought out forcefully by Laws J. who stated
that under proportionality "it is not enough merely to set out the problem, and assert that within
his jurisdiction i.e. the Minister chose this or that solution, constrained only by the requirement
that his decision must have been one which a reasonable Minister might make". It was rather for
the court to "test the solution arrived at and pass it only if substantial factual considerations are
put forward in its justification: considerations which are relevant, reasonable and proportionate
to the aim in view". It will often only be possible to test the soundness of an argument by
requiring reasoned justification of this kind.

The experience with proportionality in European Conventions law shows full well that the
concept can be applied with varying degrees of intensity so as to accommodate the different
types of decision subject to judicial review.

On the other hand, it is argued, that proportionality allows too great an intrusion into the merits
and demands that the court undertakes a balancing exercise for which it is ill-suited. It is
important to address the matter directly since fears in this regard have been so prominent in the
debate about proportionality. It should be made absolutely clear at the outset that advocates of
proportionality do not favour substitution of judgment on the merits by the courts for that of the
agency. It is not the task of the court to decide what it would have done if it had been the primary
decision maker, and, as it has recognised, there is nothing in the concept of proportionality which
entails this. It is true that proportionality does entail some view about the merits, since otherwise
the three-part inquiry could not be undertaken. The way in which Lord Greene's test has been
applied in practice to strike down agency action falling short of the absurd, also demands some
view of the merits. The same can be said a fortiori about the revised meaning of the
reasonableness test proposed by Lord Cooke.

There are said to be difficulties if we apply proportionality, particularly in those cases which
have nothing to do with fundamental rights or penalties. It is' right to acknowledge such
difficulties, but they should be kept within perspective. The variability in the intensity with
which proportionality is applied will itself be of assistance in this regard. It should, moreover, be
recognised that analogous difficulties will be equally present if we adopt Lord Cooke's modified
reasonableness test. This test can only be applied if we ask questions which are in substance the
same as those posed in the proportionality inquiry.
Conclusion9

From the above analysis it is patently clear that at the international level wednesbury
unreasonableness is on a terminal decline. It is fast being replaced by the doctrine of
proportionality which is a much more intense form of review which seeks to see whether the
decision maker has properly balanced the various factors that he has to take into consideration
before rendering a decision.

Further there are two competing models of proportionality, namely, European model and the
British model. Of the two the European model is more efficient and objective.

In the Indian context it is amply clear that even though proportionality was made part of the
Indian law as early as 2000, there is hardly any significant use of doctrine in India. Not only has
the doctrine as adopted by the Supreme Court, limited application, but even within that
applicable range, it has hardly been used However sooner or later courts in India will have to
actively consider implementing the doctrine of proportionality in all cases coming before it
irrespective of whether fundamental or ordinary rights of citizens / persons are involved. This is
because of the fact that human rights jurisprudence that has come to dominate the legal system
includes not just fundamental rights but other rights also. Hence the urgency of adopting the
doctrine of proportionality cannot be overlooked for otherwise steam hammers would
increasingly be used to crack nuts even if nut crackers are sufficient.

9 IOSR Journal of Humanities and Social Science 2012.Administrative Action and the Doctrine of Proportionality
in India.[online].Available from:http://www.iosrjournals.org/iosr-jhss/papers/Vol1-issue6/D0161623.pdf?id=5628