Abstract
This article discusses the principle of proportionality in constitutional law. It engages with the academic and legal developments through a comparative study across jurisdictions and scholarship to assess the development of the proportionality principle. It emphasizes that ‘democracy’ and ‘rule of law’, as core constitutional guiding principles, warrant a ‘balancing act’—‘proportionality’ by judiciary to appreciate the ‘constructive tension’ between constitutional rights and their limitations in adjudicating critical constitutional questions as both constitutional rights and their limitations are to coexist harmoniously with each other for ‘democracy’ and ‘rule of law’ to be sustained.
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Notes
- 1.
In Indian context, see the judgments of Supreme Court in Santa Singh v State of Punjab (1976) 4 SCC 190; Soman v Kerala (2013) 11 SCC 382; State of MP v Bablu Natt (2009) 2 SCC 272; Alister Anthony Pareira v State of Maharashtra (2012) 2 SCC 648; Hazra Singh v Raj Kumar (2013) 9 SCC 516 and Devender Pal Singh v State (NCT of Delhi) (2002) 5 SCC 234.
- 2.
William Wade & Frederick Forsyth, Administrative Law (11th ed, OUP 2014) 4.
- 3.
JAG Griffith, Principles of Administrative Law (4th ed, Pittman, 1967) 3.
- 4.
MP Jain, Cases and Materials on Administrative Law in India Vol 1(Indian Law Institute 1966) 53.
- 5.
Main grounds on which the administrative action can be set aside are:
-
(1)
Failure to exercise discretion.
-
(a)
Sub-delegation.
-
(b)
Imposing fetters on discretion.
-
(c)
Acting under dictation.
-
(d)
Non-application of mind.
-
(e)
Power coupled with duty.
-
(a)
-
(2)
Excess or abuse of discretion.
-
(a)
Acting without jurisdiction.
-
(b)
Exceeding jurisdiction.
-
(c)
Arbitrary considerations.
-
(d)
Irrelevant considerations.
-
(e)
Leaving out relevant considerations.
-
(f)
Mixed considerations.
-
(g)
Collateral purpose: Improper object.
-
(h)
Colourable exercise of power.
-
(i)
Non-observance of natural justice.
-
(a)
-
(1)
- 6.
[1948] 1KB 223.
- 7.
Council of Civil Service Unions Case (1984) 3 All ER 935.
- 8.
(1994) 6 SCC651.
- 9.
(1997) 7 SCC 463.
- 10.
ibid.
- 11.
(2008) 3 SCC 273.
- 12.
(2008) 3 SCC 484.
- 13.
(2011) 15 SCC 616.
- 14.
(2007) 4 SCC 669.
- 15.
Though, debate on this vexed issue still continues and some constitutional experts claim that there are certain rights, albeit very few, which can still be treated as ‘absolute’. Examples given are: (a) Right to human dignity, which is inviolable, (b) Right not to be subjected to torture or to inhuman or degrading treatment or punishment. Even in respect of such rights, there is a thinking that in larger public interest, the extent of their protection can be diminished. However, so far such attempts of the States have been thwarted by the judiciary and all such rights are related.
- 16.
Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press 2012).
- 17.
ibid.
- 18.
Robert Alexy, A Theory of Constitutional Rights, (OUP 2002).
- 19.
Mattias Kumm,‘The Idea of Socratic Contestation and the Right to Justification: The Point and Purpose of Rights-Based Proportionality Review’ (2010) 4 Law & Ethics of Human Rights 141; Mattias Kumm, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review’ (2007) 1 European Journal of Legal Studies 1.
- 20.
Kai Moller, The Global Model of Constitutional Rights (OUP 2012).
- 21.
R v Oakes, 1986 SCC OnLine Can SC 6: (1986) 1 SCR 103: (1986) 26 DLR (4th) 200.
- 22.
On this issue there is a detailed discussion in Mattias Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in George Pavlakos (ed), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Hart Publishing 2007) 131; Moller (n 20).
- 23.
As a proposal of how to deal with uncertainty, see Robert Alexy, ‘Second Law of Balancing’ in A Theory of Constitutional Rights (OUP 2002).
- 24.
R v Oakes (1986) 1 SCR 103.
- 25.
See PP Enterprises v Union of India (1982) 2 SCC 33.
- 26.
See Mohd. Hanif Quareshi v State of Bihar 1959 SCR 629.
- 27.
(1998) 8 SCC 227.
- 28.
(2016) 7 SCC 353.
- 29.
(2017) 10 SCC 1 (Puttaswamy-I).
- 30.
(2019) 1 SCC 1 (Puttaswamy-II).
- 31.
On this issue there is a detailed discussion in M Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in Pavlakos (ed), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Hart Publishing 2007) 131; Moller (n 20).
- 32.
As a proposal of how to deal with uncertainty, see Robert Alexy ‘Second Law of Balancing’ in A Theory of Constitutional Rights (OUP 2002).
- 33.
Modern Dental College & Research Centre [Modern Dental College & Research Centre v State of MP (2016) 7 SCC 353.
- 34.
KS Puttaswamy (Retired) v Union of India (2019) 1 SCC 1.
- 35.
ibid. The author is not entering into the debate as to which opinion is correct.
- 36.
ibid.
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Sikri, A.K. (2021). Proportionality—A Balancing Act for Achieving Constitutional Rights: A Comparative Study. In: John, M., Devaiah, V.H., Baruah, P., Tundawala, M., Kumar, N. (eds) The Indian Yearbook of Comparative Law 2019. The Indian Yearbook of Comparative Law. Springer, Singapore. https://doi.org/10.1007/978-981-16-2175-8_6
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