Doctrine of
Proportionality
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 nut cracker would do”[1] Thus proportionality
broadly requires that government action must be no more intrusive than is
necessary to meet an important public purpose.[2]
British Model
The British model as expounded by Lord Stynn in R v.
Secretary of State for the Home Department exparte Daly[3] finds its origin in the
judgment of the Privy Council in de Freitas v. Permanent Secretary of Ministry
of Agriculture, Fisheries, Land and Housing.[4] In that case, Lord Clyde
while deciding an appeal from Antigua and Barbuda, used South African and
Canadian jurisprudence to formulate a three stage test for proportionality
review. A decision is proportionate if :
I. The legislative (or executive) objective is sufficiently
important to justify limiting a fundamental right.
II. The measures designed to meet the legislative (or
executive) objective are rationally connected to it.
III. The means used to impair the right or freedoms are no
more than necessary to accomplish the objective.[5]
European Model
The very concept of proportionality originated in nineteenth
century Prussia35. This nineteenth century Prussian concept prescribed various
tests. Those were accepted by the European Court of Justice in R v. Minister of
Agriculture, Fisheries and Food, ex parte Federation Europeenne de la Sante Animale
(FEDESA).[6] Based on this case Julian
Rivers outlines a four stage test as:
1. Legitimacy: Does the act (decision, rule policy etc) under
review pursue a legitimate general aim in the context of the right in question?
2. Suitability: Is the act capable of achieving that aim?
3. Necessity: Is the act the least intrusive means of
achieving the desired level of realisation of the aim?
4. Fair balance or proportionality in narrow sense: Does that
act represent a net gain, when the reduction in enjoyment of rights is weighted
against the level of realisation of the aim?[7]
Indian model
Supreme Court in Omkumar v. Union of India.[8] 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.[9] The same is the position
with respect to legislations that impinge Article 14 (as discriminatory), and
Article 21 of the Constitution of India[10]
Santosh Kumar Satishbhushan Bariyar V. State of Maharashtra AND
State of Maharashtra V. Sanjeevkumar Mahendraprasad Roy and Anr. (2009)6SCC498
155. The Canadian Charter of Rights makes
provision for the limitation of rights through a general clause. Section 1 of the Charter permits such reasonable
limitations on Charter rights "as can be demonstrably justified in a free
and democratic society". In R. v. Oakes (1986) 1 S.C.R. 103 it was held that in order to effect a
limitation, there has to exist a sufficient objective to warrant the limitation
of the right in question. There should also be proportionality between the limitation and such
objective. In a frequently- cited passage, Dickson, J. described the components
of proportionality as follows:
There are, in my view, three important
components of a proportionality test. First, the measures adopted must
be carefully designed to achieve the objective in question. They must not be
arbitrary, unfair or based on irrational considerations. In short, they must be
rationally connected to the objective. Secondly, the means, even if rationally
connected to the objective in the first sense, should impair 'as little as
possible' the right or freedom in question: R v. Big
M Drug Mart Limited (supra).
Thirdly, there must be a proportionality between the effects of the measures
which are responsible for limiting the charter right of freedom, and the
objective which has been identified as of 'sufficient importance'.
Bipin Synthetics Pvt. Ltd., a Company
incorporated under the Companies Act, 1956 Vs. The State of Maharashtra, The Commisioner of Sales Tax and The Union of India (UOI) through the
Joint Secretary, Ministry of Law, Justice and Company Affairs 2009(6)BomCR204
10. We may now consider the second contention based on
discrimination. The law on the subject and some tests may be spelled out from
the Judgment of the Supreme Court in Shashikant Laxman Kale and Anr. v. Union
of India and Anr. : (1990) 4 SCC 366, which quoted from the Judgment in Re: the
Special Courts Bill, 1978:
(a) The State, in the exercise of its governmental power, has of
necessity to make laws operating differently on different groups or class of
persons within its territory to attain particular ends n giving effect to its
policies, and it must possess for that purpose large powers of distinguishing
and classifying persons or things to be subjected to such laws.
(b) The constitutional command to the State to afford equal
protection of its laws sets a goal not attainable by the invention and
application of a precise formula. Therefore, classification need not be
constituted by an exact or scientific exclusion or inclusion of persons or
things. The Courts should not insist on delusive exactness or apply doctrinaire
tests for determining the validity of classification in any given case.
Classification is justified if it is not palpably arbitrary.
(c) The principle underlying the guarantee
of Article 14 is not that the same rules of law should
be applicable to all persons within the Indian Territory or that the same
remedies should be made available to them irrespective of differences of
circumstances. It only means that all persons similarly circumstanced shall be
treated alike both in privileges conferred and liabilities imposed. Equal laws
would have to be applied to all in the same situation, and there should be no
discrimination between one person and another if as regards the subject-matter
of the legislation their position is substantially the
same.
(d) The law can make and set apart the classes according to the
needs and exigencies of the society and as suggested by experience. It can
recognise even degree of evil, but the classification should never be
arbitrary, artificial or evasive.
(e) The classification must not be
arbitrary but must be rational, that is to say, it must not only be based on some
qualities or characteristics which are to be found in all the persons grouped
together and not in others who are left out but those qualities or
characteristics must have a reasonable relation to the object of the legislation.
In order to pass the test, two conditions must be fulfilled, namely, (1) that
the classification must be founded on an intelligible differential which
distinguishes those that are grouped together from others and (2) that that
differentia must have a rational relation to the object sought to be achieved by the Act.
(f) The differentia which is the basis of
the classification and the object of the act are distinct things and
what is necessary is that there must be a nexus between them. In short, while
Article 14 forbids
class discrimination by conferring privileges or imposing liabilities upon
person arbitrarily selected out of a large number of other persons similarly
situated in relation to the privileges sought to be conferred or the
liabilities proposed to be imposed, it does not forbid classification for the
purpose of legislation, provided such classification is not
arbitrary in the sense abovementioned.
(g) Classification necessarily implies the making of a distinction
or discrimination between persons classified and those who are not members of
that class. It is the essence of a classification that upon the class are cast
duties and burdens different from those resting upon the general public. Indeed,
the very idea of classification is that of inequality, so that it goes without
saying that the mere fact of inequality in no manner determines the matter of
constitutionality.
Have the petitioners discharged the
initial burden on them to prove that the classification is unreasonable and or
has no nexus with the object sought to be achieved. Have the
petitioners produced cogent material to show that the petitioners and others
similarly situated have been subjected for discriminatory treatment and or
hostile treatment. See Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and
Ors. AIR 1958 SC 538.
[1]
R v. Goldsmith (1983) 1 WLR 151, p. 155.
[2]
For e.g., See John Adler, General Principles of Constitutional and
Administrative law, (4th ed., 2002) p. 368.
[3]
(2001) 3 All ER 433 (HL)
[4]
(1999) 1 A.C. 69
[5]
See Id., p 80
[6]
(1991) 1 C.M.L.R. 507
[7]
Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 (1)
C.L.J.174, p. 175
[8]
AIR 2000 SC 3689
[9]
Id., p. 3697
[10]Id.,
p.3698
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