This article has been written by Manas Agrawal and Ritu Bhatia, 2nd year students at National Law School of India University, Bangalore.
Presently, the courts rely on the Wednesbury principle while adjudicating administrative action. However, it is submitted by the authors that a more equitable solution for Fundamental Rights Adjudication is that of Proportionality compared to Wednesbury. This is the crux of the blog. We will argue that,
‘The doctrine of proportionality should be the standard against which infringement of fundamental right by administrative actions should be assessed.’
To provide clarity, we have divided the paper into three parts. Firstly, we will explain Wednesbury. Secondly, we will explain Proportionality. Thirdly, we will demonstrate why Proportionality should be preferred over Wednesbury using a law and economics perspective.
[A]- Wednesbury Principle
Whenever an executive direction is impugned, constitutional courts aim to balance judicial restraint and judicial intervention. To achieve this, the courts have primarily laid down three conditions on which administrative action will be amenable to judicial review. They are illegality, impropriety, and Wednesbury unreasonableness. (‘Wednesbury’) They can be classified under the umbrella of excessive judicial deference. Moreover, the condition that was the primary focus of the court was the Wednesbury Principle. Wednesbury is a two-prong standard on the mode of exercising judicial review. The two prongs are:-I) No public authority which had properly considered the law would have reached that decision. II) No public authority acting reasonably would have reached that conclusion. Hence, irrationality and unreasonableness are the criteria for judicial review. Additionally, non-arbitrariness was also prescribed as a ground for judicial review.
However, as argued by Prateek Jalan and Ritin Rai in The Oxford Handbook of the Indian Constitution that the interchangeable use of irrationality, non-arbitrariness, and unreasonableness (‘prima-facie grounds’) without substantive grounding confers strong discretion on the courts. Moreover, they argue that this results in courts showing excessive judicial review to the executive on grounds of technicality and administrative inconvenience. Furthermore, Wednesbury should not be analyzed in a vacuum. By this, we mean that presumption of constitutionality is embedded in the mechanism of judicial review. Hence, due to excessive judicial deference and presumption of constitutionality, the effect of Wednesbury is that the courts will not declare the action unconstitutional if the executive establishes a mere prima-facie reason for the action.
Moreover, let us understand Wednesbury more lucidly. There are three categories of judicial review. They are anxious scrutiny review, merits review and proportionality review. Only two are important for present purposes and we have talked about proportionality review in part [B] of the blog. I) In anxious scrutiny review, the court lays down conditions against which the executive action has to be tested. However, the conditions do not specify how this scrutiny is to be exercised. Hence, Wednesbury comes in the first category. II) In merits review, the judiciary becomes the decision-maker and substitutes the executive in decision making power.
The best way to understand the problem with Wednesbury is through the use of equations. Assume R1 and R2 to be the reasons for a judgement J. In an ideal judgement, both the reasons will be rational and well-founded. Thus, R1 and R2 = J. However, there are also categories of an erroneous judgment. One such category is that no rational reasons were provided by the court in coming to J. This would look like (? = J).This is the gravest form of error. As stated by Chintan Chandrachud in Proportionality, Judicial Reasoning, and the Indian Supreme Court that in Wednesbury, there are three questions on which the court fails to give well-informed reasons. I) do ‘prima-facie grounds’ have the same meaning? II) Can the ‘prima-facie grounds’ be harmonized? III) Are the conditions that no reasonable person after analyzing the material facts would have come to any other conclusion justified for restraining judicial review? Hence, Wednesbury becomes (? = J).
Thus, the intention is to balance judicial passivism and judicial activism is noble, yet the standard used is inappropriate. The appropriate standard is that of Proportionality. Firstly, let us understand the standard.
The four-pronged version of this doctrine as follows: –
- The measure should have a proper purpose.
- The measure should have a rational nexus to the objective of the proper purpose.
- The measure should be necessary. It means that no alternative may be capable of fulfilling that purpose with less limitation.
- The measure should maintain a balance between the public interest and the right that it is seeking to curtail.
This framework encourages ‘a culture of justification’. This means that the four-part test makes sure that each condition has been complied with. Each step should be looked at it in isolation. The advantage of deconstructive reading is that judges are duty-bound to give reasons for how each step has been assessed and how each step has been satisfied. If reasons are given at each step of the judgement, then the equation will change from (? = J) to (R1 + R2 = J). Hence, the gravest error will not occur.
The above-mentioned framework has been primarily applied by the courts in respect of legislative actions. However, the same standard has been recently applied to executive actions as well with minor changes. The need of the hour is to solidify the framework in the Indian Fundamental Rights Jurisprudence so that it becomes a norm rather than an exception. This means that Proportionality should be the standard applicable whenever an executive action is challenged on the anvil of fundamental rights.
Moreover, the central argument is forceful even from an economic perspective as seen in the next part of the blog.
[C] Transactional Costs
Economic Theory of Legislation is based on a simple assumption. The assumption is that politicians are rational economic actors and their actions will be guided by self-interest. They will choose that mode of action by which they will be economically well-off. Self-interests include any consideration that helps politicians to stay in power. The source of this consideration is interest groups that have a large pool of resources.
For instance, the recent ‘Farm Ordinances’ by removing Minimum Support Price in contract farming is favouring interest groups of private players. These types of actions are carried out by the executive irrespective of social costs. The social costs associated with farm ordinances are huge because of possible violations of the right to livelihood, which is a fundamental right. The best way to curb this wealth transfer from mechanism is by increasing transaction costs. Transaction costs mean impediments on interest groups so that they don’t achieve wealth transfer.
In addition to the above-mentioned reasons, there is one more way to increase transactional costs through Proportionality. It was proposed by Aharon Barak in Proportionality: Constitutional Rights and Their Limitations that the burden of proof must be placed on both the petitioners and the State when it comes to least restrictive measures. (‘Third prong of proportionality’) Firstly, the petitioners have to provide the state with alternative measures to carry out the same direction. These measures reduce the impingement on the fundamental right and are equally effective. Secondly, the State has to assess the measures and prove with evidence why the alternative measures are not efficient for the executive direction given. If the state cannot provide factual evidence, then the direction will be held unconstitutional.
Hence, through this mutual burden, two things will happen. I) Presumption of constitutionality remains intact as the initiative has to be taken by petitioners. II) Transaction costs are increased because of the requirement of factual evidence.
In this blog, it was argued that proportionality should be the standard of assessing executive actions on the anvil of fundamental rights. We have specifically talked about fundamental rights because fundamental rights have a substantial impact on social costs as shown by the example of Farm Ordinances in this blog.
Currently, courts review administrative actions through the lens of Wednesbury. The effect of this is that a mere prima facie reason for the action will absolve it from further scrutiny. Furthermore, it was submitted that the usage of Wednesbury results in a judgement that is not well-founded or rational. Thereafter, we put forward three reasons establishing why Proportionality is better than Wednesbury as a judicial review standard. They are a ‘culture of justification’, non-excessive judicial deference, and increasing transaction costs.