Lee Marsons: Bifurcation and deference: a comparison of Indian and English proportionality
In a previous post on this blog discussing proportionality in English administrative law, I mentioned in passing that proportionality had been problematic in Indian law. I quoted the Indian advocate, Ajoy, who noted that, ‘…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.’ Since making that observation, I have become more interested in the Indian manifestation of proportionality and how it is different from the English one. This post is the result of that.
My purpose is to identify two differences between the Indian and English approaches. This is an important discussion because there is increasingly robust academic criticism of talk of a global doctrine of proportionality. Drawing on his earlier work (Bomhoff (2008)), for instance, Jacco Bomhoff argues in Jackson & Tushnet’s Proportionality: New Frontiers, New Challenges (2017) that, ‘[I]t is not at all obvious that the discourse of proportionality…has sufficiently comparable meanings across all the instances where it appears (p.148).’ The Indian doctrine specifically has been the subject of several commentaries recently by Chandrachud (2013), Chandrachud (2016), and Duara (2017), and references to it have been made by Bhatia (2017) in his work on equality and Kamil (2017) in her work on privacy.
Consequently, I locate myself within this India-specific commentary and within the wider critical comparative commentary. The two differences that I will mention are as follows: first, that Indian law continues to adopt a ‘bifurcated’ understanding of Wednesbury reasonableness and proportionality. Put simply, Indian jurisprudence and scholarship is characterised by an assumption that proportionality must necessarily be a more onerous form of scrutiny than reasonableness. By contrast, this is not the dominant English understanding. An example of this is Bhatia (2017), who speaks of proportionality thus: ‘A far more exacting standard than rational review…“proportionality” requires not only that the challenged law should have a rational connection with legislative policy, but also…the appropriate or least restrictive choice of measures [should be made] by the legislature…(p.127) (my emphasis).’ Another example is Chandrachud (2013), who insists that: ‘Judged in terms of the intensity of review…proportionality…stands between Wednesbury and merits review – it is more intense than Wednesbury (even “anxious scrutiny”) review…(p.5-6).’
Due to this bifurcation characterising proportionality as more onerous than reasonableness, the second difference is that Indian jurisprudence and scholarship underplays the deference to government available in proportionality review. For instance, in her work advocating proportionality for gender discrimination cases in India, Duara (2017) notes that: ‘[T]he burden will have been on the state to satisfy all four elements of [proportionality] to establish that the violation was justified. If the state prevails it will have been because it met that burden (p.120).’ I am not certain that this is correct. There are several cases in the English jurisprudence where the burden placed on government was especially low (by which I mean that the court did not attempt to assess the accuracy of the government justifications whatsoever), and where the burden was expressly placed on the claimant to establish the case that a measure was disproportionate.
I say not whether these differences are good or bad, or whether Indian jurists ought to learn from English jurists or vice versa. I merely say that, given the strident criticism of global proportionality talk, this is an example to fortify those critics. And, given the increased scholarly focus on Indian proportionality, this may be a useful juncture to reflect on its differences with a comparator. With that, I will turn to making good these propositions.
The key case to start with is Om Kumar v Union of India. Here, in the year 2000, the Supreme Court of India decided that proportionality was applicable to review of administrative action, and defined the principle thus:
[W]hether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by…the administrator so as to achieve the object of…the administrative order…. Under the principle, the Court will see that the…administrative authority maintain[s] a proper balance between the adverse effects which…the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which [it was] intended to serve.
Importantly for me, the court added that proportionality was based on so-called ‘primary review’. There was a strong distinction made between, ‘…the principle of Primary review and proportionality on the one hand and the principle of secondary review and Wednesbury reasonableness on the other hand…’ Indeed, on a suggestion that reasonableness and proportionality could sometimes lead to the same outcome, the court retorted that: ‘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…where [the] Wednesbury rule is to be applied, can be equated.’
No express definition of primary review was provided, but there are hints in later cases that it involves a court replacing the judgment of the decision-maker with its own. For example, in Management of Coimbatore District Central Co-operative Bank v Secretary, Coimbatore District Central Co-operative Bank Employees Association, Thakker J mentioned that:
The question…is whether in the…circumstances of the present case, the High Court was justified in invoking…proportionality. In our judgment, the answer must be in the negative…[T]he High Court was not right in…virtually substituting its own judgment for the judgment of the Management and/or of the Labour Court.
This understanding is certainly evident in some English jurisprudence as well. In R (Daly) v Secretary of State for Justice, for instance, Lord Steyn famously identified three differences between proportionality and reasonableness at :
(i) proportionality may require the court to form its own view of balance, not just decide whether the action is within the range of rational responses;
(ii) proportionality may require attention to be directed to the relative weight accorded to competing interests; and
(iii) even heightened reasonableness review is not necessarily enough to protect human rights.
In the context of English law, Elliott (2015) has called this separation of reasonableness and proportionality ‘bifurcation’. Unlike their Indian counterparts, I am not certain that English jurists maintain this bifurcation. Indeed, I am certain that they do not. In a UK Supreme Court case involving freedom of information called Kennedy v Charity Commission, for instance, Lord Mance noted at  that while proportionality directed, ‘…attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages…There seems no reason why such factors should not be relevant in judicial review even outside the scope of [proportionality].’ The equivalence in the nature of the exercise under reasonableness and proportionality is made clearer at : ‘The same considerations would fall to be taken into account, the same balancing exercise performed and there is no basis for thinking that the outcome…would differ.’
There is no equivocation or prevarication here. As far as judicial statements go, this seems a relatively clear one that issues of comparative weight and balance are relevant under both doctrines. On the issue of substitution of judgment, there are similarly clear statements. At , for instance, Lord Toulson concluded expressly that a court can be entitled to replace the decision-maker’s judgment with its own in reasonableness review: ‘If there is a challenge to the High Court against a refusal of disclosure by a lower court or tribunal, the High Court would decide for itself the question whether the open justice principle required disclosure.’
Moreover, at , Lord Sumption overtly expressed scepticism about Lord Steyn’s suggestion in Daly that reasonableness was weaker than proportionality in a rights context:
It is for the court to assess how broad the range of rational decisions is…That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which…the court is competent to reassess the balance…In some cases, the range of rational decisions is so narrow as to determine the outcome.
Therefore, on issues of balance, comparative weight, and substitution of judgment, it is difficult to insist that English courts maintain a bifurcated approach between reasonableness and proportionality. Under both doctrines courts are able to substitute their judgment for that of the decision-maker, as well as assess issues of balance and weight given to competing considerations. This is materially different from the Indian understanding, where both among jurists and scholars, proportionality is regarded as providing unique weaponry for the judicial armoury.
Given the assumption that proportionality must involve ‘primary review’ in Indian law, I suggest that there must also be a limited recognition of the extent of the deference available to government in proportionality. In the introduction, for instance, I quoted Duara (2017) and her insistence that: ‘[T]he burden will have been on the state to satisfy all four elements of [proportionality]…(p.120).’ I say that this is not correct, at least with the comparator of English law. A striking example is Nicklinson v Ministry of Justice, related to the criminalisation of assisted suicide and the right to personal autonomy. At , Lord Neuberger concluded that the court would have to be:
…satisfied that there was a physically and administratively feasible and robust system whereby Applicants could be assisted to kill themselves, and the reasonable concerns expressed…(particularly the concern to protect the weak and vulnerable) were sufficiently met so as to render the absolute ban on assisted suicide disproportionate.
Thus, rather than the burden being on the government to demonstrate that its ban was proportionate, his Lordship preferred to place the burden on the claimant to provide some safe alternative to the ban.
Lest it be assumed I have used a single, exceptional example, I will provide another example in another context. In R (HC) v Secretary of State for Works & Pensions, for instance, the UK Supreme Court was concerned with nationality-based discrimination in a welfare scheme. Upholding it as proportionate, Lord Carnwath decided at  that:
‘[T]he allocation of limited public funds in the social security and welfare context is pre-eminently a matter for national authorities, subject only to the requirement that their decisions should not be “manifestly without reasonable foundation”…’
His Lordship added that:
The government’s reasons for not providing support…included the objectives of reducing costs…, of encouraging immigrants here unlawfully to regularise their stay, of encouraging [immigrants] wishing to have children here to ensure that they had sufficient resources to support themselves and their children, and of reducing “benefits tourism”…I find it impossible to say that these objectives fall outside the wide margin of discretion allowed to national governments in this field.
There was no analysis of the accuracy of any of these arguments. Thus, to talk in Duara’s language of the government needing to surmount a ‘burden’, that burden was merely making a money- and immigration-related argument, it seems. Consequently, I would not be as confident that proportionality would inevitably mean the government having to surpass and satisfy a burden. That will depend on the context.
In this brief analysis, I have argued that Indian jurisprudence and scholarship is typified by a bifurcated understanding of reasonableness and proportionality, with proportionality perceived as a necessarily more onerous doctrine. Given this understanding, there is a consequent lack of recognition of the deference available to government using the doctrine. I say that these two ideas are materially different to the understanding in English law, which is no longer marked by a bifurcation between reasonableness and proportionality, and which regularly demonstrates deference to government using the doctrine in some contexts. I expect that this analysis will fortify those comparative scholars who are tired of seeing ‘same name, same doctrine’ arguments and may interest Indian public lawyers given the growing literature on proportionality.