Friday, June 03, 2016

Doctrine of proportionality

The doctrine of proportionality is emerging as another new ground of judicial review of administrative action. It is very well entrenched in the continental system of administrative law. Initially common law countries including India adopted the doctrine of wednesbury reasonableness to review administrative action.

But subsequently under influence of civil law systems and Strasburg jurisprudence the doctrine of proportionality is being gradually accepted as the standard of judicial review by the common law countries. It is claimed that this doctrine is capable to control arbitrariness in the administrative action effectively. The principle of judicial review that court cannot go into the merit of the decision and the doctrine of proportionality that allows the reviewing court to probe some aspect of the merits of the case is the matter of reconciliation.

The Indian Supreme Court accepted the doctrine of proportionality in the year 2000. Yet even today the Indian legal system has not come to terms with the doctrine. There is hardly any case where the doctrine has been practically applied. The need of the hour is to increasingly apply the doctrine of proportionality to review administrative action in India.

authored by: manishranjan