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By an order the Supreme Court requested Justice O. Chinnappa Reddy to investigate into the
conduct of the officials of the DDA including its ex-officio Chairman at the relevant time, in
handing over the possession of the suit land in M/s. Skipper Construction Pvt. Ltd. before
receiving the auction amount in full and also in “conniving” at the construction thereon as
well as at the advertisements given by it for bookings in the building in question. The learned
Judge was also requested to “look into the legality and propriety of the order dated 4.10.98
passed by the then ex-officio Chairman of the DDA and the directions given by the Central
Government under Section 41 of the Delhi Development Act.”
The Court accepted the Report and passed an order directing the Department of Personnel to
initiate disciplinary proceedings against five officers (i) Sri V.S. Ailawadi IAS (retired), (ii)
Sri K.S. Baidwan, IAS, (iii) Sri Virendra Nath IAS, (iv) Sri R.S. Sethi IAS and (v) Sri Om
Kumar IAS. The Court, in its order, stated that so far as Sri Om Kumar was concerned, only a
minor punishment could be imposed.
On 27.8.97, the Department of Personnel imposed a ‘major’ penalty on Sri Virendra Nath and
a ‘minor’ penalty of ‘censure’ on Sri Om Kumar. The Ministry of Home Affairs imposed
‘major’ penalties on Sri K.S. Baidwan and Sri R.S. Sethi on 27.8.97.
M. Jagannadha Rao, J. 10. Two Commissions were appointed by this Court viz. one in favour
of Justice O. Chinnappa Reddy and another in favour of Justice R. C. Lahoti. The
Commission went into the claims of hundreds of depositors from whom Skipper Construction
Co. had collected monies. After the Commissions submitted reports, a few crores were
disbursed to the claimants. There were further claims before this Court and Justice P.K. Bahri,
retired Judge of the Delhi High Court was appointed to go into the further claims. The
inquiry, we are told is almost over. In this process, this Court had to spend a lot of time to sort
out various complicated legal and factual issues concerning the claimants. Several orders
passed running into two huge volumes have been passed during the last five years. Many
more orders remain to be passed. In fact, it took considerable time to bring the Directors of
Skipper Company/family/ members before this Court to see that they cooperate in sorting out
the mess that was created. If only these officers of DDA had cancelled the contract, encashed
the Bank guarantees in time and had not granted extensions to Skipper Construction
Company, all this litigation could have been easily avoided.
Show Cause Notice by this Court proposing to refer the matter to the Vigilance Commission
by re-opening the quantum of punishment:
- This Court felt that the officers of the DDA who dealt with these matters at the relevant
time were solely responsible for the misery of hundreds of claimants who had put in their
life’s earnings in the Skipper Construction Company, and that these depositors were virtually
taken for a ride. This Court directed that disciplinary action be initiated and thereafter,
proceedings were initiated and punishments, as above stated, were imposed. Thereafter, this
Court felt that prima facie the punishments imposed on these officers were not proportionate
to the gravity of misconduct and that the punishments needed to be upgraded. An order was
therefore passed on 4.5.2000 to re-open the punishments imposed and to refer them for
reconsideration by the Vigilance Commissioner. Before taking further action, this Court
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issued notice to the five officers to show cause why the question relating to the quantum of
punishments should not be re-opened and referred to the Vigilance Commissioner for reexamination.
Shri Om Kumar and Shri Virendera Nath: - That leaves the cases of Sri Om Kumar, who was awarded a minor punishment (as
directed in the order of this Court dated 29.11.95) and of Sri Virendra Nath, who was awarded
a major punishment.
Submissions of counsel and Legal Issues emanating therefrom: - It was argued at great length by learned senior counsel Sri K. Parasaran and Dr. Rajeev
Dhawan that the question as to the quantum of punishment to be imposed was for the
competent authority and that the Courts would not normally interfere with the same unless the
punishment was grossly disproportionate. The punishments awarded satisfied the
Wednesbury rules. On the other hand, learned Amicus Curiae argued that, on the facts of the
case, the cases of these two officers justify reference to the Vigilance Commissioner. - We agree that the question of the quantum of punishment in disciplinary matters is
primarily for the disciplinary authority and the jurisdiction of the High Courts under Article
226 of the Constitution or of the Administrative Tribunals is limited and is confined to the
applicability of one or other of the well known principles known as Wednesbury principles.
(See Associated Provincial Picture Houses v. Wednesbury Corporation 1948 (1) KB 223).
This Court had occasion to lay down the narrow scope of the jurisdiction in several cases. The
applicability of the principle of ‘proportionality’ in Administrative law was considered
exhaustively in Union of India v. Ganayutham (Decided on 27/08/1997) where the primary
role of the administrator and the secondary role of the Courts in matters not involving
fundamental freedoms, was explained. - We shall therefore have to examine the cases of Sri Om Kumar and of Sri Virendra Nath
from the stand point of basic principles applicable under Administrative Law, namely,
Wednesbury principles and the doctrine of proportionality. It has therefore become necessary
to make reference to these principles and trace certain recent developments in the law.
I(a) Wednesbury principle - Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to
an administrator to take a decision, the scope of judicial review would remain limited. He said
that interference was not permissible unless one or other of the following conditions were
satisfied, namely the order was contrary to law, or relevant factors were not considered, or
irrelevant factors were considered; or the decision was one which no reasonable person could
have taken. These principles were consistently followed in UK and in India to judge the
validity of administrative action. It is equally well known that in 1983, Lord Diplock in
Council for Civil Services Union v. Minister of Civil Service [1983 (1) AC 768] (called the
GCHQ case) summarised the principles of judicial review of administrative action as based
upon one or other of the following – viz. illegality, procedural irregularity and irrationality.
He, however, opined that proportionality was a “future possibility”.
(b) Proportionality - The principle originated in Prussia in the nineteenth century and has since been adopted in
Germany, France and other European countries. The European Court of Justice at
Luxembourg and the European Court of Human Rights at Strasbourg have applied the
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principle while judging the validity of administrative action. But even long before that, the
Indian Supreme Court has applied the principle of ‘proportionality’ to legislative action since
1950, as stated in detail below. - By ‘proportionality’, we mean the question whether, while regulating exercise of
fundamental rights, the appropriate or least restrictive choice of measures has been made by
the legislature or the administrator so as to achieve the object of the legislation or the purpose
of the administrative order, as the case may be. Under the principle, the Court will see that the
legislature and the administrative authority ‘maintain a proper balance between the adverse
effects which the legislation or the administrative order may have on the rights, liberties or
interests of persons keeping in mind the purpose which they were intended to serve’. The
legislature and the administrative authority are however given at area of discretion or a range
of choices but as to whether the choice made infringes the rights excessively or not is for the
Court. That is what is meant by proportionality. - The above principle of proportionality has been applied by the European Court to protect
the rights guaranteed under the European Convention for the Protection of Human Rights and
fundamental freedoms. 1950 and in particular, for considering whether restrictions imposed
were restrictions which were ‘necessary’ – within Articles 8 to 11 of the said Convention
(corresponding to our Article 19(1) and to find out whether the restrictions imposed on
fundamental freedoms were more excessive than required. (Handy Side v. UK (1976) (1)
EHR p. 737). Articles 2 and 5 of the Convention contain provisions similar to Article 21 of
our Constitution relating to life and liberty. The European Court has applied the principle of
proportionality also to questions of discrimination under Article 14 of the Convention
(corresponding to Article 14 of our Constitution) (See European Administrative Law by J.
Schwarze, 1992, pp. 677-866).
(II) Proportionality and Legislation in U.K. & India - On account of a Chapter on Fundamental Rights in Part III of our Constitution right from
1950, Indian Courts did not suffer from the disability similar to the one experienced by
English Courts for declaring as unconstitutional legislation on the principle of proportionality
or reading them in a manner consistent with the charter of rights. Ever since 1950, the
principle of ‘proportionality’ has indeed been applied vigorously to legislative (and
administrative action) in India. While dealing with the validity of legislation infringing
fundamental freedoms enumerated in Article 19(1) of the Constitution of India, such as
freedom of speech and expression, freedom to assessable peaceably, freedom to form
associations and unions, freedom to move freely throughout the territory of India, freedom to
reside and settle in any part of India, this Court had occasion to consider whether the
restrictions imposed by legislation were disproportionate to the situation and were not the
least restrictive of the choices. The burden of proof to show that the restriction was reasonable
lay on the State. ‘Reasonable restrictions’ under Article 19(2) to (6) could be imposed on
these freedoms only by legislation and Courts had occasion throughout to consider the
proportionality of the restrictions. In numerous judgments of this Court, the extent to which
‘reasonable restrictions’ could be imposed was considered. In Chintaman Rao v. State of UP.
(1950 SCR 759), Mahajan J (as he then was) observed that ‘reasonable restrictions’ which the
State could impose on the fundamental rights ‘should not be arbitrary or of an excessive
nature, beyond what is required for achieving the objects of the legislation.’ ‘Reasonable’
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implied intelligent care and deliberations, that is, the choice of a course which reason dictated.
Legislation which arbitrarily or excessively invaded the right could not be said to contain the
quality of reasonableness unless it struck a proper balance between the rights guaranteed and
the control permissible under Articles 19(2) to (6). Otherwise, it must be held to be wanting in
that quality. Patanjali Sastri, CJ in State of Madras v. V. G. Row, (1952 SCR 597), observed
that the Court must keep in mind the nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be
remedied thereby, the disproportion of the imposition, the prevailing conditions of the time.
This principle of proportionality vis-a-vis legislation was referred to by Jeevan Reddy, J. in
State of A.P. v. Mc Dowell & Co., 2002 (1) ALD 639 recently. This level of scrutiny has been
a common feature in the High Court and the Supreme Court in the last fifty years. Decided
cases run into thousands. - Article 21 guarantees liberty and has also been subjected to principles of ‘proportionality’.
Provisions of Criminal Procedure Code, 1974 and the Indian Penal Code came up for
consideration in Bachan Singh v. State of Punjab, the majority upholding the legislation. The
dissenting judgment of Bhagwati J [sic.] dealt elaborately with ‘proportionality’ and held that
the punishment provided by the statute was disproportionate. - So far as Article 14 is concerned, the Courts in India examined whether the classification
was based on intelligible differentia and whether the differentia had a reasonable nexus with
the object of the legislation. Obviously, when the Court considered the question whether the
classification was based on intelligible differentia, the Courts were examining the validity of
the differences and the adequacy of the differences. This is again nothing but the principle of
proportionality. There are also cases where legislation or rules have been struck down as
being arbitrary in the sense of being unreasonable [See Air India v. Nergesh Meerza and
others]. But this latter aspect of striking down legislation only on the basis of ‘arbitrariness’
has been doubted in State of A.P. v. Mc Dowell and Co. - In Australia and Canada, the principle of proportionality has been applied to test the
validity of statutes [See Cunliffe v. Commonwealth (1994) 68 Aust. LJ 791 (at 827, 839)(799,
810, 821]. In R v. Oakes [(1986) 26 DLR (4th) 2001 Dickson, CJ. of the Canadian Supreme
Court has observed that there are three important components of the 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, must not only be rationally
connected to the objective in the first sense, but should impair as little as possible the right to
freedom in question. Thirdly, there must be ‘proportionality’ between the effects of the
measures and the objective. See also Ross v. Brunswick School Dishut No. 15 (1996) (1) SCR
825 at 872 referring to proportionality. English Courts had no occasion to apply this principle
to legislation. Aggrieved parties had to go to the European Court at Strasbourg for a
declaration. - in USA, in City of Boerne v. Flares [(1997) 521 U.S. 507], the principle of proportionality
has been applied to legislation by stating that “there must be congruence and proportionality
between the injury to be prevented or remedied and the means adopted to that end”. - Thus, the principle that legislation relating to restrictions on fundamental freedoms could
be tested on the anvil of ‘proportionality’ has never been doubted in India. This is called
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‘primary’ review by the Courts of the validity of legislation which offended fundamental
freedoms.
IIIA. Proportionality and Administration Action (In England) - In Administrative Law, the principle of ‘proportionality’ has been applied in several
European countries. But, in England, it was considered a future possibility in the GCHQ case
by Lord Diplock. In India, as stated below, it has always been applied to administrative action
affecting fundamental freedoms.
(i) From Wednesbury to strict scrutiny or proportionality - The development of the principle of ‘strict scrutiny’ or ‘proportionality’ in Administrative
Law in England is however recent. Administrative action was traditionally being tested on
Wednesbury grounds. But in the last few years, administrative action affecting the freedom of
expression or liberty has been declared invalid in several cases applying the principle of
‘strict scrutiny’. In the case of these freedoms, Wednesbury principles are no longer applied.
The Courts in England could not expressly apply proportionality in the absence of the
Convention but tried to safeguard the rights zealously by treating the said rights as basic to
the Common Law and the Courts then applied the strict scrutiny test. In the Spy Catcher Case
Att. General v. Guardian Newspapers Ltd. (No.2) (1990(1) AC 109 (at pp. 283-284), Lord
Goff stated that there was no inconsistency between the Convention and the Common Law. In
Derbyshine Country Council v. Times Newspapers Ltd. (1993 AC 534), Lord Keith treated
freedom of expression as part of Common Law. Recently, in R v. Secretary of State for Home
Department, Exp. Simms (1999(3) All ER 400 (H.L.)), the right of a prisoner to grant an
interview to a journalist was upheld treating the right as part of the Common Law. Lord
Hobhouse held the policy of the administrator was disproportionate. The need for a more
intense and anxious judicial scrutiny in administrative decisions which engage fundamental
human rights was re-emphasised in R. v. Lord Saville Ex pt. (1999(4) ALL ER 860 (870.872)
CCA). In all these cases, the English Courts applied the ‘strict scrutiny’ test rather than
describe the test as one of ‘proportionality’. But, in any event, in respect of these rights
‘Wednesbury’ rule has ceased to apply.
(ii) Brind and Proportionality: Primary and Secondary review - However, the principle of ‘strict scrutiny’ or ‘proportionality’ and primary review came to
be explained in R. v. Secretary of State for the Home Department, ex p. Brind (1991 (1) A.C.
696). That case related to directions given by the Home Secretary under the Broadcasting Act,
1981 requiring BBC and IBA to refrain from broadcasting certain matters through persons
who represented organisations which were prescribed under legislation concerning the
prevention of terrorism. The extent of prohibition was linked with the direct statement made
by the members of the organisations. It did not however, for example, preclude the
broadcasting by such persons through the medium of a film, provided there was a ‘voiceover’ account, paraphrasing what they said. The applicant’s claim was based directly on the
European Convention of Human Rights. Lord Bridge noticed that the Convention rights were
not still expressly engrafted into English law but stated that freedom of expression was basic
to the Common Law and that, even in the absence of the Convention, English Courts could go
into the question (see p. 748-749) “…whether the Secretary of State, in the exercise of his
discretion could reasonably impose the restriction he has imposed on the broadcasting
organisations” and that the Courts were not perfectly entitled to start from the premise that
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any restriction of the right to freedom of expression requires to be justified and nothing less
than an important public interest will be sufficient to justify it.
Lord Templeman also said in the above case that the Courts could go into the question
whether a reasonable minister could reasonably have concluded that the interference with this
freedom was justifiable. He said that ‘in terms of the Convention’ any such interference must
be both necessary and proportionate (ibid pp. 750-751). - In a famous passage, the seeds of the principle of primary and secondary review by Courts
were planted in the Administrative law by Lord Bridge in the Brind case, Where Convention
rights were in question the Courts could exercise a right of primary review. However, the
Courts would exercise a right of secondary review based only on Wednesbury principles in
cases not affecting the rights under the Convention. Adverting to cases where fundamental
freedom were not invoked and where administrative action was questioned, it was said that
the Courts were then confined only to a secondary review while the primary decision would
be with the administrator. Lord Bridge explained the primary and secondary review as
follows:
“The primary judgment as to whether the particular competing public interest justifying the
particular restriction imposed falls to be made by the Secretary of State to whom Parliament
has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking
whether a reasonable Secretary of State, on the material before him, could reasonably make
the primary judgment.”
(iii) Smith explains Proportionality further: Primary & Secondary roles of the Court. - The principle of proportionality and the primary role of the Courts where fundamental
freedoms were involved was further developed by Simon Brown, LJ. in the Divisional Court
in R v. Ministry of Defence, Exp. Smith (1996 Q.B. 517 (at 541) as follows. Adverting to the
primary role of the Court in cases of freedoms under the Convention, the learned Judge
stated:
“If the Convention for the Protection of Human Rights and Fundamental Freedoms were part
of our law and we are accordingly entitled to ask whether the policy answers a pressing social
need and whether the restriction on human rights involved can be shown disproportionate to
its benefits, then clearly the primary judgment (subject only to a limited ‘margin of
appreciation’) would be for us and not for others; the constitutional balance could shift.”
Adverting to the position (in 1996) i.e., before the Convention was adopted, Simon Brown, LJ
stated that the Courts had then only to play a secondary role and apply Wednesbury rules. The
learned Judge said:
“In exercising merely secondary judgment, this Court is bound, even though acting in a
human rights context, to act with some reticence.” - On appeal, the above principles were affirmed in the same case in R. v. Ministry of
Defence Exp. Smith (1996(1) ALL BR. 257) CA). In the Court of Appeal, Lord Bingham
M.R. said the Court, in the absence of the Convention was not thrown into the position of the
decision maker. Henry LJ (p. 272) stated as follows:
“If the Convention were part of our law, then as Simon Brown, LJ said in the Divisional
Court, the primary judgment on this issue would be for the Judges. But Parliament has not
given us the primary jurisdiction on this issue. Our present Constitutional role was correctly
identified by Simon Brown LJ as exercising a secondary or reviewing judgment, as it is, in
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relation to the Convention, the only primary judicial role lies with the Europe Court at
Strasbourg.”
Thus, the principle of primary review and proportionality on the one hand and the principle of
secondary review and Wednesbury reasonableness on the other hand gave a new dimension to
Administrative law, the former applying in the case of fundamental freedoms and the latter, in
other cases.
(iv) Area of discretion of administrator-varies in different situations: - While the courts’ level of scrutiny will be more in case of restrictions on fundamental
freedoms, the Courts give a large amount of discretion to the administrator in matters of highlevel economic and social policy and may be reluctant to interfere: R v. Secretary of State for
the Environment, Ex b Nothing Han shore Country Council (1986 AC 240); R v. Secretary of
State for Environment, ex p. Hammersmith and Fultan London Borough Council 1991(1) AC
521 (597). Smith speaks of ‘variable margin of appreciation’. The new Rule 1 of the Civil
Procedure Rules, 1999 permits the Courts to apply ‘proportionality’ but taking into account
the financial issues, complexities of the matter and the special facts of the case.
(v) Post-Smith and the Human Rights Act, 1998 - After Smith, the English Human Right’s Act, 1998 has since been passed and is to be
effective from 2.10.2000. The possibility of the demise of Wednesbury rules so far as
administrative action affecting fundamental freedoms are concerned, is now clearly
visualised. (See Prof. R.P. Craig’s Administrative Law. 4th Ed. 1999 pp. 585-586) - Though the Act itself docs not explicitly enjoin the English Courts to apply the test of
‘proportionality’, it is arguable that it is implicit because Section 2(1)(a) requires the Court to
take into account any judgment, decision, declaration or advisory opinion of the European
Court of Human Rights when the Court thinks it fit relevant to proceedings regarding
Convention rights. - Under Article 3(1) of the Human Rights Act, 1998, the English Court can now declare the
legislative action as incompatible with the rights and freedoms referred to in the Schedule.
The Minister is then to move Parliament for necessary amendment to remove the
incompatibility. While doing so, the English Court, can now apply strict scrutiny or
proportionality to legislative and administrative action. The principle is now treated as Central
to English Law (See Human Rights Law and Practice by Lord Lester of Herne Hill, Q.C. &
David Pannick QC, 1999, para 3.16). The more the threshold of Wednesbury irrationality is
lowered when fundamental human rights are on play, the easier it will become to establish
judicial review as an effective remedy with Article 13 of the 1998 Act (See, ibid. Supplement
August, 2000) (para 4.13.12). - The Privy Council, in a case arising under the Constitution of the Republic of Trinidad
and Tobago had occasion to deal with life and liberty and validity of certain instructions
imposed by Government prescribing time limits for convicts of death sentence to submit
representations to international bodies (as per Conventions ratified by the State). The Privy
Council held that the instructions were violation of ‘proportionality’ and due process, [see
Thomas v. Baptiste, 2000(2) AC 1 at 20] (Per Lord Millet for majority). - Recently, Lord Irvine of Lairg, the Lord Chancellor has explained the position of
‘proportionality’ after the Commencement of the English Human Rights Act, 1998. (see “The
Development of Human Rights in Britain under an Incorporated Convention on Human
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Rights”, 1998 Public Law, 221) (at pp. 233-234). The difference between the approach of
Courts in the cases governed by this Act and the traditional Wednesbury rules has been
pointed out by the Lord Chancellor as follows:
“Although there is some encouragement in British decisions for the view that the margin of
appreciation under the Convention is simply the Wednesbury test under another guise,
statements by the Court of Human Rights seem to draw significant distinction. The Court of
Human Rights has said in terms that its review is not limited to checking that the ‘national
authority exercised its discretion reasonably, carefully and in good faith’. It has to go further.
It has to satisfy itself that the decision was based on an “acceptable assessment of the relevant
facts” and that the interference was no more than reasonably necessary to achieve the
legislative aim pursued.”
Explaining ‘strict scrutiny’ or ‘proportionality’ as above, in the wake of the Human Rights
Act, 1998, the Lord Chancellor referred to the principles laid down by Simon Brown LJ in
Ex. p. Smith. In cases under the Human Rights Act, 1998. he said “a more rigorous scrutiny
than the traditional judicial review will be required”. The Lord Chancellor further observed:
“In areas where the Convention applies, the Court will be less concerned whether there has
been a failure in this sense (i.e. Wednesbury sense) but will inquire more closely into the
merits of the decision to see for example that necessity justified the limitations of a positive
right, and that it was no more of a limitation than was needed. This is a discernible shift
which may be seen in essence as a shift from form to substance”.
Thus, the principle of primary and secondary review respectively in Convention cases and
non-Convention cases has become more or less crystalised. These principles were accepted in
Ganayutham.
(vi) The recent case in UK in ITF (1999) - While the English Courts were setting down to the principle of ‘strict scrutiny’ or
‘proportionality’ for review of administrative action touching fundamental freedoms, leaving
Wednesbury principles to apply to other non-Convention cases, a new approach has recently
been made in a case decided by the House of Lords in R. v. Chief Constable of Sussex. ex.p.
International Trader’s Ferry Ltd. (1999 (I) All E.R. 129). In that case, the decision of the
Police not to provide the required help to the ITF for transport of goods across the English
Channel by securing adequate police force to remove the activities protesters from the scene –
was upheld. It was stated that the Chief Police Constable had properly balanced the right to
protest and the right to free movement of goods, by taking into consideration, the lack of
finances and the number of policemen available and the risk of injury to protesters etc. (See a
contrary view of our Supreme Court recently in Navinchandra N. Maiithia v. State of
Meghalaya and ors, (JT 2000 Suppl. (1) SC 538). - In that connection, the House of Lords appeared to deviate and almost equate Wednesbury
and proportionality. Lord Slynn for the majority after referring to Brind said that in ‘practice,
Wednesbury reasonableness and proportionality’ may mean the same, and that whichever test
is adopted, the result is the same. Lord Cooke went further and said that Lord Green’s test in
Wednesbury was ‘tautologous and exaggerated’ and he advocated a simpler test:
“Was the decision one which a reasonable authority could reach?” - It must be said that the House of Lords has deviated both from proportionality and
Wednesbury. This deviation, in our view, is likely to lead to considerable vagueness in the
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administrative law which has just now been crystallising. It is difficult for us to understand
how the primary role of the Courts in cases involving fundamental freedoms and the
secondary role of Courts in other cases not involving such rights and where Wednesbury rule
is to be applied, can be equated. - In our opinion, the principles laid down in Brind and Exp. Smith and also as explained by
the Lord Chancellor to which we have made reference earlier are more clear-cut and must be
adhered to. A differentiation must, in our view, be respectively maintained between the
Court’s primary and secondary roles in Convention cases and non-Convention cases. (See in
this connection see Prof. Craig, Admn. Law. 1999, 4th Ed. pp. 573, 589, 621 dealing with
Lord Cooke’s new test).
III B. Proportionality and Administrative Action in India:
(i) Fundamental freedoms under Article 19(1) & Article 21 - In the Indian scene the existence of a Charter of fundamental freedoms from 1950
distinguishes our law and has placed our Courts in a more advantageous position than in
England so far as judging the validity of legislative as well as administrative action. We have
already dealt with proportionality and legislation. Now, we shall deal with administrative
decisions and proportionality. - Now under Articles 19(2) to (6), restrictions on fundamental freedoms can be imposed
only by legislation. In cases where such legislation is made and the restrictions are reasonable
yet, if the concerned statute permitted the administrative authorities to exercise power or
discretion while imposing restrictions in individual situations, question frequently arises
whether a wrong choice is made by the administrator for imposing restriction or whether the
administrator has not properly balanced the fundamental right and the need for the restriction
or whether he has imposed the least of the restrictions or the reasonable quantum of restriction
etc. In such cases, the administrative action in our country, in our view, has to be tested on the
principle of ‘proportionality’, just as it is done in the case of the main legislation. This in fact
is being done by our Courts. - Administrative action in India affecting fundamental freedoms has always been tested on
the anvil of ‘proportionality’ in the last fifty years even though it has not been expressly stated
that the principle that is applied is the ‘proportionality’ principle. For example, a condition in a
licence issued to a cinema house to exhibit, at every show, a certain minimum length of
‘approved films’ was questioned. The restriction was held reasonable [See R. M. Seshadri v.
Dist. Magistrate Tanjore and another, AIR 1954 747)]. Union of India v. Motion Pictures
Association also related, inter alia, to validity of licensing conditions. In another case, an
order refusing permission to exhibit a film relation to the alleged obnoxious or unjust aspects
of reservation policy was held violative of freedom of expression under Article 19(1)(a) [S.
Rangarajan v. Jagjivan Ram and others, 1989 (1) Scale 812]. Cases of surveillance by police
came up for consideration in Malak Singh and Ors. v. State of P & H and Ors., (1981) 1 SCC - Cases of orders relating to movement of goods came up in Bishambhar Dayal Chandra
Mohan and others v. State of U.P. and others, AIR1982 SC 33. There are hundreds of such
cases dealt with by our Courts- In all these matters, the proportionality of administrative
action affecting the freedoms under Article 19(1) or Article 21 has been tested by the Courts
as a primary reviewing authority and not on the basis of Wednesbury principles. It may be not
that the Courts did not call this proportionality but it really was.
123 - In Ganayutham, the above aspect was left for further discussion, however, we are now
pointing out that in administrative action affecting fundamental freedoms, proportionality has
always been applied in our country though the word ‘proportionality’ has not been specifically
used. - We may point out that in Israel; the Supreme Court of Israel has now recognised
‘proportionality’ as a separate ground in administrative law – different from unreasonableness.
It is stated that it consists of three elements. First, the means adopted by the authority in
exercising its power should rationally fit the legislative purpose. Secondly, the authority
should adopt such means that do not injure the individual more than necessary. And third, the
injury caused to the individual by the exercise of the power should not be disproportional to
the benefit which accrues to the general Public. Under this test, the Court recently invalidated
several administrative actions (See De Smith, Woolf, Jowell, first Cumulative Supplement to
Judicial Review of Administrative Action, 1998, p. 114).
(ii) Article 14 and Administrative Action: — Discriminative Classification and arbitrariness: - We next come to the most important aspect of the case. Discussion here can be divided
into two parts.
(a)(i) Classification test under Article 14: - Initially, our Courts, while testing legislation as well as administrative action which was
challenged as being discriminatory under Article 14, were examining whether the
classification was discriminatory, in the sense whether the criteria for differentiation were
intelligible and whether there was a rational relation between the classification and the object
sought to be achieved by the classification. It is not necessary to give citation of cases decided
by this Court where administrative action was struck down as being discriminative. There are
numerous.
(ii) Arbitrariness lest under Article 14: - But, in E. P. Royappa v. State of Tamil Nadu, 1974 (4) SCC 31, Bhagwati, J. laid down
another test for purposes of Article 14. It was stated that if the administrative action was
‘arbitrary’, it could be struck down under Article 14. This principle is now uniformly followed
in all Courts more rigorously than the one based on classification. Arbitrary action by the
administrator is described as one that it irrational and not based on sound reason. It is also
described as one that is unreasonable.
(b) If, under Article 14, administrative action is to be struck down as discriminative,
proportionality applies and it is primary review. If it is held arbitrary, Wednesbury applies
and it is secondary review: - We have now reached the crucial aspect directly arising in the case. This aspect was left
open for discussion in future in Ganayutham but as the question of ‘arbitrariness’ (and not of
discriminatory classification) arises here, we wish to make the legal position clear). - When does the Court apply, under Article 14, the proportionality test as a primary
reviewing authority and when does the Court apply the Wednesbury rules as a secondary
reviewing authority? From the earlier review of basic principles, the answer becomes simple.
In fact, we have further guidance in this behalf. - In the European Court, it appears that administrative action can be challenged under
Article 14 of the Convention (corresponding to Article 14 of our Constitution) as being
discriminatory and be tested by applying the principle of ‘proportionality’. Prof. Craig refers
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to the judgment of the European Court under Article 14 in Lithgow v. UK (1996) ECHR 329
as follows:
“The differential treatment must not only pursue a legitimate aim. It had to be proportionate.
There had to be relationship of proportionality between the means employed and the aim
sought to be realised” - Similarly, in the European law, in relation to discrimination on ground of sex, the
principle of proportionality has been applied and it has been held that the State has to justify
its action. In EU Law and Human Rights (by Lammy Betten and Nicholas Grief (1998 at P.
98), it is stated:
“If indirect discrimination were established, the Government would have to show ‘very
weighty reasons’ by way of objective justification, bearing in mind that derogations from
fundamental rights must be construed strictly and in accordance with the principle of
proportionality”. [Johnstone v. Chief Constable of the RVC, 1986 ECR 1951 (Para 38.51)]. - In the context of Article 14 of the English Act, 1998, (which is similar to our Article 14)
Prof. Craig refers to the above principle. (See Administrative Law, Craig 4th Ed., 1999 page
652). Thus, it would appear that under Article 14 of the European Convention, principle of
proportionality is invoked and where questions of discrimination are involved and the Court is
a primary reviewing authority. According to Prof. Craig, this is likely to be the position under
Article 14 of the English Act, 1998. - In the US, in the matter of discrimination, tests of ‘intermediate scrutiny’ and ‘strict
scrutiny’ have been laid down. In cases of affirmative action, the US Courts have hitherto
been applying the ‘intermediate scrutiny test.’ See the discussion in Indira Sawhney v. Union
of India, (1992 Supple. (3) SCC at 217, at pp. 684-685) by Jeevan Reddy, J. but recently,
however, in 1995, the US Supreme Court has shifted, in matters of affirmative action, form
the ‘intermediate scrutiny’ test to the ‘strict scrutiny’ test. See Adarand Constructors Inc v.
Pena [(1995) 75 US 200] referred to by the Constitution Bench recently in Ajit Singh (II) v.
State of Punjab. - It is clear from the above discussion that in India where administrative action is
challenged under Article 14 as being discriminatory, equals are treated unequally or unequal
are treated equally, the question is for the Constitutional Courts as primary reviewing Courts
to consider correctness of the level of discrimination applied and whether it is excessive and
whether it has a nexus with the objective intended to be achieved by the administrator. Hence
the Court deals with the merits of the balancing action of the administrator and is, in essence,
applying ‘proportionality’ and is a primary reviewing authority. - But where, an administrative action is challenged as ‘arbitrary’ under Article 14 on the
basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the
question will be whether the administrative order is ‘rational’ or ‘reasonable’ and the test then
is the Wednesbury test. The Courts would then be confined only to a secondary role and will
only have to see whether the administrator has done well in his primary role, whether he has
acted illegally or has omitted relevant factors from consideration or has taken irrelevant
factors into consideration or whether his view is one which no reasonable person could have
taken. If his action does not satisfy these rules, it is to be treated as arbitrary. [In G. B.
Mahajan v. Jalgaon Municipal Council, AIR 1991 SC 1153]. Venkatachaliah, J. (as he then
was) pointed out that ‘reasonableness’ of the administrator under Article 14 in the context of
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administrative law has to be judged from the stand point of Wednesbury rules. In Tata
Cellular v. Union of India, [1994 (6) SCC 651] (at pp. 679-680), Indian Express Newspapers
v. Union of India, AIR 1986 SC 872, Supreme Court Employees Welfare Association v.
Union of India, (1999) 2 SCC 548, and U P Financial Corporation v. GEM CAP (India) Pvt.
Ltd., AIR 1993 SC 1435, while Judging whether the administrative action is ‘arbitrary’ under
Article 14 (i.e., otherwise then being discriminatory), this Court has confined itself to a
Wednesbury review always. - Thus, when administrative action is attacked as discriminatory under Article 14, the
principle of primary review is for the Courts by applying proportionality. However, where
administrative action is questioned as ‘arbitrary’ under Article 14, the principle of secondary
review based on Wednesbury principles applies.
Proportionality and punishments in Service Law: - The principles explained in the last preceding paragraph in respect of Article 14 are now
to be applied here where the question of ‘arbitrariness’ of the order of punishment is
questioned under Article 14. - In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, this
Court referred to ‘proportionality’ in the quantum of punishment but the Court observed that
the punishment was ‘shockingly’ disproportionate to the misconduct proved. In B. C.
Chaturvedi v. Union of India, AIR 1996 SC 484, and this Court stated that the Court will not
interfere unless the punishment awards was one which shocked the conscience of the Court.
Even then, the court would remit the matter back to the authority and would not normally
substitute one punishment for the other. However, in rare situations, the Court could award an
alternative penalty. It was also so stated in Ganayutham. - Thus, from the above principles and decided cases, it must be held that where an
administrative decision relating to punishment is disciplinary cases is questioned as ‘arbitrary’
under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing
authority. The Court will not apply proportionality as a primary reviewing Court because no
issue of fundamental freedoms or of discrimination under Article 14 applies in such a context.
The Court while reviewing punishment and if it is satisfied that Wednesbury principles are
violated, it has normally to remit the matter to the administrator for a fresh decision as to the
quantum of punishment. Only in rare cases where there has been long delay in the time taken
by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare
cases can the Court substitute its own view as to the quantum of punishment. On Facts: - In the light of the above discussion, we shall now deal with the cases of the two officers
and test, on Wednesbury grounds and as a Court of secondary review, the punishments could
be interfered with as being arbitrary.
Sri Om Kumar: - So far as Sri Om Kumar is concerned, learned Senior counsel Sri K. Parasaran has taken
us through the entire record including the Report of Justice O. Chinnappa Reddy holding that
there is a prima facie case, the Report of the Inquiry Officer which is adverse to the Officer,
the recommendation of the UPSC which is favourable to him and to the order of the
disciplinary authority which has not accepted the recommendation of the UPSC. On facts, the
disciplinary authority felt that misconduct was proved as held by the Inquiry Officer.
However, it felt that the officer deserved only ‘censure’ because of two mitigating factors: (i)
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the complicated stage at which Sri Om Kumar was required to handle the case and (ii)
absence of malafides. Question is whether the punishment requires upward revision. - Learned Senior counsel Sri K. Parasaran has, however, contended that as a secondary
reviewing authority we should not interfere and that in the order of this Court dated 29-1-95,
this Court itself recommended that only a ‘minor penalty’ should be imposed and that ‘censure’
was a minor penalty. Whether a more severe minor penalty could have been chosen or not
was for the primary reviewing authority. Learned senior counsel referred to the direction of
this Court earlier that, so far as Sri Om Kumar was concerned, only a minor punishment could
be awarded. This Court said:
“It is brought to our notice that he (Sri Om Kumar) was brought to DDA as Vice Chairman to
set right the mess which the DDA had become under Sri Prem Kumar, Vice Chairman. We
take note of the fact that by that time the matter relating to sale of the said plot to Skipper had
become sufficiently complicated. Having regard to these facts, we direct that disciplinary
proceedings for a minor penalty be taken by the Government….”
Learned Senior counsel Sri K. Parasaran, therefore, argued on the basis of Wednesbury rules
as explained in Ganayutham that it is now not open to this Court to say that the punishment of
‘censure’ awarded was not the proper one and that Sri Om Kumar deserved some other minor
punishment of a higher degree. That would amount to assuming a primary role. According to
learned Counsel, it could not be said that the punishment of censure awarded could be
deserved as shocking the conscience of the Court. Counsel also submitted that in hindsight
one might now say that when Skipper Company defaulted, Sri Om Kumar who was the senior
most officer in DDA ought to have cancelled the bid and encashed the bank guarantee rather
than give extensions of time on the pretext that the plans were not made ready by DDA. - After giving our anxious consideration to the above submissions and the facts and the
legal principles above referred to, we have finally come to the conclusion that it will be
difficult for us to say that among the permission for minor punishments; the choice of the
punishment of ‘censure’ was violation of the Wednesbury rules. No relevant fact was omitted
nor irrelevant fact was taken into account. There is no illegality. Nor could we say that it was
shockingly disproportionate. The administrator had considered the report of Justice
Chinnappa Reddy Commission, the finding of the Inquiry Officer, the opinion of the UPSC
which was given twice and the views of the Committee of Secretaries. Some were against the
officer and some were in his favour. The administrator fell that there were two mitigating
factors (i) the complicated stage at which the officer was sent to DDA and (ii) the absence of
malafides. In the final analysis, we are not inclined to refer the matter to the Vigilance
Commissioner for upward revision of punishment.
Sri Virendra Nath: - So far as Sri Virendra Nath is concerned, learned senior Counsel Sri Rajeev Dhawan
advanced elaborate arguments. The punishment imposed on the officer was one of the major
punishments. On a consideration of the report of Justice Chinnappa Reddy, the report of the
Inquiry Officer – which are no doubt both adverse to the officer, and the recommendations of
the UPSC which were favourable to the officer on both occasions and the order of the
disciplinary authority which accepted the finding as to misconduct, we feel that the
administrator’s decision in the primary role is not violation of Wednesbury Rules. The
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punishment awarded was a major punishment. We, therefore, do not propose to refer the
matter to the vigilance Commissioner for further upward revision of the punishment. - In the result, we do not propose to purse the matter further and we drop further
proceedings. The show cause notice is disposed of accordingly.
