Study Notes: What is Doctrine of Proportionality?

By Saumya Dhyani 12 Minutes Read

“If God thinks proportionality is fair who are we to say that it is unfair?”

~ Benjamin Carson

Historical Development

The philosophical origin of proportionality is said to have originated in the Babylonian times as seen from the Code of Hammurabi (1754 BC). It further found its place in the discussion of classical Greeks about the corrective and distributive justice. Ancient philosophers like Plato and Socrates expressed concepts of proportionality as fundamental concepts in their works. This concept was given a legal backing in the Magna Carta[1] (1215) as well. Social contract theory propounded by Hobbes and further reflected in the works of Locke and Rousseau floated the idea of limited powers being granted to the government for people’s benefit reflecting the balancing notion of proportionality. Proportionality as a positive legal concept began appearing in Prussian administrative law in the second half of the 19th century[2]. From Germany this principle travelled to the United Kingdom. Since England was already following the test of “reasonableness” as inferred from the case of Wednesbury the applicability of proportionality test was difficult .Lord Ackron individually and Lord Diplock in the case of Council of Civil Service Unions v Minister for the Civil Service[3] observed that until and unless the European Convention for the Protection of Human Rights and Fundamental Freedoms was not adopted by the United Kingdom there lay no grounds for the adoption of proportionality. With the adoption of Human Rights Act 1998 the rights enumerated in the European convention were given the protection of proportionality. The global move towards proportionality has led many scholars to call this an ‘age of proportionality.‘[4]


The principle of proportionality envisages that a public authority has to maintain a reasonable relation between the object and the particular goals that are sought to be achieved and the means used by its employees for meeting those goals so that the individual rights, are infringed to the
minimum extent. Hence it can be said that any administrative action which discriminates arbitrarily or uses excessive means to meet the desired goals can be quashed by the courts on the ground that it is violative of the Doctrine of Proportionality.

Proportionality is made up of four components: –

  1. Proper purpose
  2. Rational connection
  3. Necessary means and 
  4. a proper relation between the benefit gained by realizing the proper purpose and the harm caused to the constitutional right – (proportionality stricto sensu – otherwise known as ‘balancing’).[5]

The doctrine of proportionality in Indian context

This Doctrine is not just limited to a particular type of litigation in India. It has found its mention in the constitutional law, administrative law and yet again in the criminal law.  Proportionality means that any action should not be more drastic than it ought to be for obtaining the desired result implying that a cannon cannot be used to kill a sparrow.[6]  Doctrine of proportionality comes into picture in constitutional law when the courts through judicial review or otherwise, judge the reasonableness of a restriction on the exercise of fundamental rights. The Supreme court stressed upon the proportionality test as early as in the 1950s in the case of Chintaman Rao v State of MP[7]:

“The limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public

 Soon after, in the case of VG Row v State of Madras[8] the court discussed the concept of proportionality in a broader sense but not in the terms of a “test” or a doctrine. It held that:

“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 at the time should all enter into the judicial verdict.”

A much more concretized form of the test was later developed in Anuj Garg v Hotels Association of India[9] wherein the Court moved towards adopting a “structured proportionality test”. Court had to determine the constitutionality ofSection 30 of the Punjab Excise Act 1914 which prohibited, the employment of women at places where alcohol was consumed by the public in view of women’s safety, the court held that the measure was not justified since enhancing women’s security and empowering them was a ‘more tenable and socially wise approach’ than placing curbs on their freedom.

In Modern Dental Health College v. The State of Madhya Pradesh[10] the constitutional bench led by Justice Sikri further elaborated this phenomenon in the majority judgement. The judgment highlighted the change in interpretation as far ‘reasonable restrictions’ was concerned. Earlier the courts looked into the fact that whether the restriction was reasonable or not but from this judgement onwards the doctrine of proportionality was applied even to the reasonable restrictions of the fundamental rights.

Apart from its application in cases concerning constitutional law, the concept of Doctrine of proportionality finds its wide scale application is cases concerning administrative law as well, however it is still evolving in the latter law. Since administrative authorities often perform quasi-judicial functions and most of them are also capable of holding disciplinary proceedings and awarding decisions involving dismissal, suspension etc therefore it becomes important for the courts to clarify the extent to which they can apply this principle. This clarity was given in the case of Canara Bank v. V.K. Awasthy[11] where the court observed that where no fundamental freedoms are involved, the court will only play the secondary role, while the primary judgement will remain with the administrative authorities. However, in situations where fundamental freedoms are directly involved the court will exercise primary judgement.

The court took a similar stance in the case of State of Meghalaya v. Mecken Singh N. Marak[12]where the High court setting aside the dismissal order of a police officer who was found guilty in the departmental inquiry for losing his service revolver along with some public cash commented that it was too harsh a punishment. However, the Supreme court while applying the principle of proportionality held that the mental make-up of employee, nature of duty, honesty and job requirement should not be taken lightly by the court as inferred from the decision of the administrative authorities.

It is a cardinal principle of criminal jurisprudence that the punishment imposed should not be disproportionate to the gravity of the offence proved.[13]

Since criminal cases end up either in acquittal or in conviction followed by punishment, the doctrine of proportionality comes into picture while reviewing the punishment, which must not be “so inhuman or brutal that it cannot be accepted by any standard of decency,” as laid down in the case of Vikram Singh v. Union of India.[14]


“Just like sword cannot be used in the place of a needle to sew; a needle cannot be used in place of a sword in order to kill

A simple principle of proportionality enumerating the importance of balancing rights as against the freedoms and punishments as against the gravity of the crime committed, did not become a legal doctrine through any single statutory provision or through a dedicated case law. The doctrine of proportionality has become an inseparable part of the contemporary law, as it ensures the liberty of an individual through restrained state action. In this regard the words by Justice Barak are aptly suited, “The law exists to ensure Public life. It is not a goal, but an attempt to grant individual liberty. This Model of Rule of Law thus includes proportionality.

[1] For a trivial offence a few men shall be fined only in proportion to the degree of his offense, and for a serious offence correspondingly but not so heavily as to deprive him of his livelihood
[2] Mahendra Pal Singh German Administrative Law in Common Law Perspective (2nd ed Berlin: SpringerVerlag, 1985).
[3] (1985) ICR 14
[4] Vicki Jackson, ‘Constitutional Law in an Age of Proportionality’ (2015) 124 Yale Law Journal 3094.
[5] Aharon Barak Proportionality: Constitutional Rights and their Limitations (Cambridge UK; New York: Cambridge University Press 2012) at ch 7.
[7] AIR 1951 SC 118
[8]  AIR 1952 SC 196
[9] (2008) 3 SCC 1
[10] (2016) 7 SCC 353
[11] (2005) 6 SCC 430
[12] (2008) 7 SCC 580
[13] I.P MASSEY ADMISITRATIVE LAW ( 9 th ed 2017 )
[14] Criminal Appeal No. 824 of 2013

Saumya Dhyani

I aim to enhance my research and presentation skills while writing an article and also want to develop a critical approach towards legal issues while working with the legal Wires.

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