Om Kumar v Union of India (2000)

It decides which standard of review applies, and when. Since Om Kumar, the standard is not one but two: proportionality, with the court as primary reviewer, where a fundamental freedom or discrimination under Article 14 is in issue; Wednesbury, with the court as secondary reviewer, where the complaint is arbitrariness — which is where almost every disciplinary punishment case falls. Getting that allocation right is the difference between a good answer and a first-class one.

"By 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order". The Court sees that the legislature and the administrator "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve". They are "given at area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality." (read an area)

"The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries", and is applied by the European Court of Justice and the European Court of Human Rights. "But even long before that, the" "Indian Supreme Court has applied the principle of 'proportionality' to legislative action since 1950".

The evidence: Chintaman Rao v State of M.P., where reasonable restrictions "should not be arbitrary or of an excessive nature, beyond what is required for achieving the objects of the legislation"; and State of Madras v V. G. Row, where the Court must keep in mind "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 of the time." Under Article 14, examining whether a classification rests on intelligible differentia with a nexus to the object involves "examining the validity of the differences and the adequacy of the differences. This is again nothing but the principle of proportionality." The Canadian test in R v Oakes is noted: measures "must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective."

Before proportionality, the tests were that interference was impermissible "unless one or other of the following conditions were satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken." Lord Diplock in the CCSU case had classified the grounds as illegality, irrationality and procedural impropriety, and "opined that proportionality was a "future possibility"".

Primary review. Where administrative action is challenged as discriminatory under Article 14, or where a fundamental freedom is at stake, the Court is a primary reviewing authority: it considers "correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator", and so "deals with the merits of the balancing action of the administrator and is, in essence, applying 'proportionality'".

Secondary review. Where administrative action is challenged as arbitrary under Article 14 — the Royappa line, "as in cases where punishments in disciplinary cases are challenged" — "the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test." The Court is "confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken."

The holding, in the Court's own summary. "when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying proportionality. However, where administrative action is questioned as 'arbitrary' under Article 14, the principle of secondary review based on Wednesbury principles applies."

"where an administrative decision relating to punishment is disciplinary cases is questioned as 'arbitrary' under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms or of discrimination under Article 14 applies in such a context."

The remedy is limited too. On finding a Wednesbury violation the Court "has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment", and "Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment." B. C. Chaturvedi v Union of India is cited for the proposition that the Court "will not interfere unless the punishment awards was one which shocked the conscience of the Court."

Proportionality is the standard, and the Court the primary reviewer, where administrative action is attacked as discriminatory under Article 14 or where a fundamental freedom is affected. Where it is attacked as arbitrary, including in disciplinary punishment cases, the standard is Wednesbury and the Court is a secondary reviewer.

• Cite it with R (Daly) v Secretary of State for the Home Department, where Lord Steyn held that "There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where convention rights are at stake", and adopted from de Freitas the three-stage test asking "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective." Both cases hold that proportionality is a distinct and more intensive standard reserved for rights cases, not a general replacement for reasonableness review.
• Cite it with Coimbatore District Central Cooperative Bank, which records that proportionality "has not only arrived in our legal system but has come to stay" and yet declines to apply it to disciplinary findings supported by evidence.