OM KUMAR & OTHERS V. UNION OF INDIA, AIR 2000 SC 3689

OM KUMAR & OTHERS V. UNION OF INDIA, AIR 2000 SC 3689 

FACTS

1. By an order the Supreme Court requested Justice O. Chinnappa Reddy to investigate into the conduct of the officials of the DDA including its ex-officio Chairman at the relevant time, in handing over the possession of the suit land in M/s. Skipper Construction Pvt. Ltd. before receiving the auction amount in full and also in “conniving” at the construction thereon as well as at the advertisements given by it for bookings in the building in question.
2. The Court accepted the Report and passed an order directing the Department of Personnel to initiate disciplinary proceedings against five officers (i) Sri V.S. Ailawadi IAS (retired), (ii) Sri K.S. Baidwan, IAS, (iii) Sri Virendra Nath IAS, (iv) Sri R.S. Sethi IAS and (v) Sri Om Kumar IAS. 
3. The Court, in its order, stated that so far as Sri Om Kumar was concerned, only a minor punishment could be imposed. On 27.8.97, the Department of Personnel imposed a ‘major’ penalty on Sri Virendra Nath and a ‘minor’ penalty of ‘censure’ on Sri Om Kumar. The Ministry of Home Affairs imposed ‘major’ penalties on Sri K.S. Baidwan and Sri R.S. Sethi on 27.8.97.
4. Two Commissions were appointed by this Court viz. one in favour of Justice O. Chinnappa Reddy and another in favour of Justice R. C. Lahoti. The Commission went into the claims of hundreds of depositors from whom Skipper Construction Co. had collected monies.
5. This Court directed that disciplinary action be initiated and thereafter, proceedings were initiated and punishments, as above stated, were imposed. Thereafter, this Court felt that prima facie the punishments imposed on these officers were not proportionate to the gravity of misconduct and that the punishments needed to be upgraded. An order was therefore passed on 4.5.2000 to re-open the punishments imposed and to refer them for reconsideration by the Vigilance Commissioner. Before taking further action, this Court issued notice to the five officers to show cause why the question relating to the quantum of punishments should not be re-opened and referred to the Vigilance Commissioner for reexamination.

 

 ISSUE

To examine the cases from the standpoint of basic principles applicable under Administrative Law, namely, Wednesbury principles and the doctrine of proportionality.

 

RATIONALE

Administrative action in India affecting fundamental freedoms has always been tested on the anvil of 'proportionality' in the last fifty years even though it has not been expressly stated that the principle that is applied is the 'proportionality' principle. For example, a condition in a licence issued to a cinema house to exhibit, at every show, a certain minimum length of 'approved films' was questioned. The restriction was held reasonable [See R. M. Seshadri v. Dist. Magistrate Tanjore and another, AIR 1954 747)]. Union of India v. Motion Pictures Association also related, inter alia, to validity of licensing conditions. In another case, an order refusing permission to exhibit a film relation to the alleged obnoxious or unjust aspects of reservation policy was held violative of freedom of expression under Article 19(1)(a) [S. Rangarajan v. Jagjivan Ram and others, 1989 (1) Scale 812].

We may point out that in Israel; the Supreme Court of Israel has now recognised 'proportionality' as a separate ground in administrative law - different from unreasonableness. It is stated that it consists of three elements. First, the means adopted by the authority in exercising its power should rationally fit the legislative purpose. Secondly, the authority should adopt such means that do not injure the individual more than necessary. And third, the injury caused to the individual by the exercise of the power should not be disproportionate to the benefit which accrues to the general Public. Under this test, the Court recently invalidated several administrative actions

The Court examined the cases of Sri Om Kumar and of Sri Virendra Nath from the standpoint of basic principles applicable under Administrative Law, namely, Wednesbury principles and the doctrine of proportionality. It has therefore become necessary to make reference to these principles and trace certain recent developments in the law

1. (a) Wednesbury principle

Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible 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. These principles were consistently followed in UK and in India to judge the validity of administrative action.

           (b) Proportionality 

The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. But even long before that, the Indian Supreme Court has applied the principle of ‘proportionality’ to legislative action since 1950, as stated in detail below. 

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, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority ‘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’

2. Proportionality and Legislation in U.K. & India

On account of a Chapter on Fundamental Rights in Part III of our Constitution right from 1950, Indian Courts did not suffer from the disability similar to the one experienced by English Courts for declaring as unconstitutional legislation on the principle of proportionality or reading them in a manner consistent with the charter of rights. Ever since 1950, the principle of ‘proportionality’ has indeed been applied vigorously to legislative (and administrative action) in India. While dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India, such as freedom of speech and expression, freedom to assessable peaceably, freedom to form associations and unions, freedom to move freely throughout the territory of India, freedom to reside and settle in any part of India, this Court had occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices.

Article 21 guarantees liberty and has also been subjected to principles of ‘proportionality’. Provisions of Criminal Procedure Code, 1974 and the Indian Penal Code came up for consideration in Bachan Singh v. State of Punjab, the majority upholding the legislation. The dissenting judgment of Bhagwati J [sic.] dealt elaborately with ‘proportionality’ and held that the punishment provided by the statute was disproportionate.

3. Proportionality and Administrative Action in India: 

(i) Fundamental freedoms under Article 19(1) & Article 21 52. In the Indian scene the existence of a Charter of fundamental freedoms from 1950 distinguishes our law and has placed our Courts in a more advantageous position than in England so far as judging the validity of legislative as well as administrative action. We have already dealt with proportionality and legislation. Now, we shall deal with administrative decisions and proportionality. Now under Articles 19(2) to (6), restrictions on fundamental freedoms can be imposed only by legislation.

Sub-clauses (a) to (g) of Article 19(1) guarantee seven freedoms to the citizens of India. These are not absolute freedoms as clauses (2) to (6) of Article 19 permit the imposition of reasonable restrictions on these freedoms for various purposes. This means that none of the freedoms guaranteed by Article 19(1)(a)to (g) can be curtailed merely by an executive fiat; it is necessary to have a law to back the administrative action. Further, a restriction imposed on any of the freedoms has to be reasonable. This means that it is for the Courts to determine whether a restriction is reasonable or not, and, for this purpose, the Courts take into consideration both the substantive as well as procedural aspects of the law in question. Ever since 1950, the principles of proportionality have been applied vigorously to legislative as well as administration action in India. While dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India, the Supreme Court has considered whether restrictions imposed by legislation were not disproportionate to the situation and were the least restrictive of the choices.

 

HELD

The Court after careful consideration noted that it would be difficult to say that among the permission for minor punishments; the choice of the punishment of ‘censure’ was in vi