Proportionality as a modern ground of review
Proportionality as a Modern Ground of Judicial Review
What is Proportionality?
Proportionality is a legal principle used by courts to assess whether the action taken by a public authority or legislature, especially when it restricts individual rights, is justified and balanced. It requires that measures adopted by the state must be:
Suitable (or appropriate) to achieve the intended legitimate aim.
Necessary—there should be no less restrictive alternative available.
Reasonable or balanced—the benefits gained must outweigh the harm caused.
Proportionality serves as a tool to balance state interests against individual rights.
Why is Proportionality Important?
Protects fundamental rights from excessive or arbitrary state interference.
Encourages nuanced judicial scrutiny beyond simple legality.
Has become a dominant standard in constitutional and administrative law worldwide.
Offers a more structured and rigorous test than older standards like reasonableness or the "Wednesbury unreasonableness" test.
Evolution: From Reasonableness to Proportionality
Traditionally, courts applied the Wednesbury test (UK, 1948), which asked if a decision was so unreasonable that no reasonable authority could have made it.
Proportionality demands closer scrutiny—courts analyze the balance between means and ends.
Proportionality is widely used in constitutional rights cases, especially in Europe and India.
Key Elements of Proportionality
Legitimate Aim: The action must pursue a valid public interest.
Suitability: The action must be capable of achieving the aim.
Necessity: No less restrictive means should be available.
Balancing: The harm caused should not outweigh the benefits.
Important Case Laws on Proportionality
1. Maneka Gandhi v. Union of India (1978) (India)
Facts: Maneka Gandhi's passport was impounded without explanation.
Held: The Supreme Court emphasized that any law or executive action restricting personal liberty must be just, fair, and reasonable under Article 21 (Right to Life and Personal Liberty).
Proportionality Aspect: The Court moved beyond mere legality and reasonableness, laying the foundation for proportionality in India.
Lesson: The Court insisted on a balance between state action and individual rights.
2. R. v. Secretary of State for the Home Department, ex parte Daly (2001) (UK)
Facts: The Home Secretary’s policy allowed prison officers to search prisoner cells and read confidential legal correspondence.
Held: The House of Lords applied proportionality and held that the policy was disproportionate.
Significance: This marked a shift in UK law, embracing proportionality as a modern ground of review.
Lesson: State restrictions on fundamental rights must be carefully scrutinized to ensure they are not excessive.
3. Indra Sawhney v. Union of India (1992) (India)
Facts: Challenge against reservation policy and its extension to backward classes.
Held: The Supreme Court upheld reservations but emphasized the need for proportionality and balancing social justice with merit.
Lesson: Proportionality helps courts weigh competing social and individual interests.
4. Suresh v. Canada (2002) (Supreme Court of Canada)
Facts: Issue of deportation of refugees to countries where they might face torture.
Held: The Court applied proportionality, ruling that deportation in such cases violates fundamental rights unless absolutely necessary.
Lesson: Proportionality safeguards human rights by preventing excessive state actions.
5. K.S. Puttaswamy v. Union of India (2017) (India)
Facts: Challenge to the Aadhaar scheme on grounds of privacy infringement.
Held: The Supreme Court held that any restriction on privacy must satisfy proportionality.
Application: The Court laid down detailed tests on necessity and balancing state interest against privacy.
Lesson: Proportionality is central in cases involving new rights like privacy.
6. Bank Mellat v. HM Treasury (No. 2) (2013) (UK)
Facts: UK Treasury imposed sanctions on an Iranian bank, Bank Mellat.
Held: The Court used proportionality to assess whether the sanctions were justified.
Lesson: Even in national security contexts, proportionality requires clear justification and tailored measures.
Detailed Explanation of Selected Cases
Maneka Gandhi v. Union of India (1978)
The Court expanded the concept of personal liberty beyond the narrow interpretation of “procedure established by law.”
Introduced the idea that laws restricting liberty must be reasonable and just.
Although the term “proportionality” was not explicitly used, the Court's reasoning reflected proportionality principles.
Set the stage for judicial scrutiny that balances individual rights with state interests.
R. v. Secretary of State for the Home Department, ex parte Daly (2001)
The House of Lords emphasized proportionality as a tool for rights protection.
Held that policies affecting prisoners' rights to confidentiality must be the least restrictive possible.
Marked a judicial willingness to scrutinize executive actions with a rights-based approach.
K.S. Puttaswamy v. Union of India (2017)
Explicitly endorsed proportionality as the standard for evaluating restrictions on privacy.
Introduced a four-step proportionality test.
Demonstrated modern constitutionalism: rights are not absolute but any restriction must pass the proportionality test.
Bank Mellat v. HM Treasury (2013)
Showed proportionality’s role in balancing state interests (national security) with rights to trade and fair treatment.
Courts insisted on evidence and rationality behind restrictions.
Highlighted that even in emergencies or sensitive areas, proportionality is a safeguard against arbitrariness.
Summary of Lessons on Proportionality
Proportionality is a principled approach to judicial review.
It requires a structured analysis rather than deferential or minimal review.
It strengthens protection of fundamental rights while allowing reasonable state regulation.
Courts increasingly favor proportionality in complex rights issues—privacy, security, discrimination.
Proportionality is a dynamic tool, adaptable across jurisdictions and contexts.
Conclusion
Proportionality has emerged as a modern and sophisticated ground of judicial review. It provides a nuanced way to analyze and balance the competing demands of state power and individual freedoms. Across jurisdictions, courts rely on proportionality to ensure that restrictions on rights are lawful, necessary, and balanced, preventing excessive or arbitrary administrative actions.
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