Administrative Discretion

and Judicial Review.

Module – 4
Which organ of the state is most likely
to trample upon your rights?
• Scope and Challenges of Administrative Discretion.
• How much does it govern our lives and if so, should it be
deemed illegal and immoral?  all pervasive influence of the
executive.
• Is it antithetical to the concept to discretion to have checks on
discretion?  The Office Dilemma.
• Nexus between the purpose for which the discretion is
given and exercise of it  cannot be un-channelized
• Richard Epstein – Critic of Administrative Law.
Discretion in the context of the Covid
Pandemic

• Govt. could decide when to open and close the

economy.
• Personal choices/rights were taken away from citizens.
• Was the discretion too vast to be comfortable
with?
• Random/Subjective  State responses.
• Does discretion to act also include the discretion to not
response?
Judicial Review
• What is judicial review? Power source?
• What is the line?  drafting policies from scratch vs.
what can we do?
• “dialogic judicial review”  Case study of the Gujarat
High Court  are the courts not aware of this?
• Could they have not done anything or was it their
choice to not act upon it? What governed this choice?
Administrative Discretion vs. Judicial
Review
• Complete abdication of judicial intervention in a crisis 
credence to Richard Epstein?
• What happens to administrative discretion in instances
like this? It’s unfettered.
• Has administrative law become a
branch of law that expands executive
action and dilutes judicial review?
What is Administrative Action
?
• “Broad area of governmental activities in which the
repositories of power may exercise every class of
statutory function of executive, quasi-legislative and
quasi-judicial nature”  Jain & Jain
• Exercising administrative action involves a tremendous
amount of administrative discretion in modern times.
• Great power comes great responsibility  control over
this discretion is necessary.
Administrative Discretion
• Administrative Discretion: “power to choose between different
alternative courses of action or where is choice regarding the
means to reach a specific end.”
• Something done in accordance of rule of reason and justice, not
according to private opinion.
• Nexus between the purpose for which the discretion is
given and exercise of it  within the confines of law.
• Eg: Protests and Riots  what kind of actions can the government
choose from?  detention/defense deployment/S
144./curfew/internet shutdown.
How is this power controlled?
Judicial Review/Judicial intervention:
• Procedural safeguards such as natural justice principles
(Module 5)
• Doctrine of excessive delegation wrt. Delegated
legislation (Module 2/3)
• Other substantive grounds “on the basis of which the
courts control the actual exercise of discretionary
powers through the constitutional authority”  Writs.
Hukum Chand vs. Union of India, 1975
SC
• Administrator of Delhi made an order under S. 5 of the Telegraph Act
1885 authorizing the Superintendent of Police to take possession of
certain telephones in the rooms of Coronation Hotel in Delhi, being
used for the illegal trade of Satta (agricultural commodities) was
being practised on a large scale by them through their telephones.
• The General Manager, Telephones, Delhi also, made orders on Nov.
28, 1972 and Dec. 5, 1972, purporting to act under Rule 422 of the
Indian Telegraph Rules, 1951 for disconnecting the telephones and
non-exchange lines.
• Challenges to these decisions filed in the HC and then SC.
Provisions – Act
Section 5: On the occurrence of any public emergency,
or in the interest of the public safety, the Central
Government or State Government or any officer specially
authorised in this behalf by the Central Government or a
State Government may, if satisfied that it is necessary or
expedient so to do, take temporary possession (for so
long as the public emergency exists or the interest of the
public safety requires the taking of such action) of any
telegraph established, maintained or worked by any
person licensed under this Act.
Provisions – Rules
• "421. Disconnection of telephones.-Where the Divisional Engineer is satisfied for reasons to
be recorded in writing that it is necessary to do so, he may, after giving the subscriber a
notice in writing for a period which shall not except in emergent cases be less than 7 days,
disconnect the telephone, and in such case, the subscriber shall be entitled to refund of rent
for the unexpired portion of the period for which the connection or service was given.
• 422. Right of disconnection in emergency.-The Divisional Engineer may, in the event of any
emergency, disconnect any subscriber, with or without notice. In case such disconnection
exceeds a period of seven days, the subscriber shall be entitled to proportionate refund of
rent.
• 427. Illegal or improper use of telephones.-A subscriber shall be personally responsible for
the use of his telephone. No telephone shall be used to disturb or irritate any person or for
the transmission of any message or communication which is of an indecent or obscene
nature or is calculated to annoy any person or to disrupt the maintenance of public order in
any other manner contrary to any provision of law."
Holding
• Section 5(1), if properly construed, does not confer unguided and unbridled power on the Central
Government/State Government/Specially Authorised Officer to take possession of any telegraph. Firstly,
the occurrence of a 'public emergency' is the sine qua non for the exercise of power under this section. As
a preliminary step to the exercise of further jurisdiction under this section the Government or the authority
concerned must record its satisfaction as to the existence of such an emergency. Further, the existence of
the emergency which is a pre-requisite for the exercise of power under this section, must be a 'public
emergency' and not any other kind of emergency.
• The expression 'public emergency' has not been defined in the statute, but contours broadly delineating its
scope and features are discernible from the section which has to read as a whole. In sub- section (1) the
phrase 'occurrence of any public emergency' is connected with and is immediately followed by the phrase
"or in the interests of the public safety". These two phrases appear to take colour from each other.
• Economic emergency is not one of those matters expressly mentioned in the statute
Holding
• Rule 422 empowers the Divisional Engineer to disconnect any
subscriber 'in the event of any emergency' with or without notice. The
existence of "any emergency" to the satisfaction of the Divisional
Engineer, appears to be a necessary pre-requisite to the exercise of the
power under this rule. It is significant that while s. 5 speaks of the
occurrence of a 'public emergency', satisfaction with regard to the
existence of which is to be recorded by the appropriate authority
mentioned in that section, Rule 422 purports to empower the Divisional
Engineer to take action thereunder in the event of "any emergency".
Principle 1 – Administrative Discretion
It is well settled that where a power is required to be exercised by a
certain authority in a certain way, it should be exercised in that
manner or not at all, and all other modes of performances are
necessarily forbidden. It is all the more necessary to observe this
rule where power is of a drastic nature and its exercise in a mode
other than the one provided, will be violative of the fundamental
principles of natural justice.
Held
• If the telephones of the appellants were to be disconnected on the ground of
misuse, then they had to give, in consonance with the principles of natural
justice, opportunity to the appellants to explain their conduct before taking
action under Rule 427 read with Rules 416 and 421.
• Resort to the wrong and more drastic course provided in Rule 422, on a ground
which was not germane to an action under that Rule, vitiates the impugned
order, particularly when it is manifest that in making the impugned order, the
General Manager was influenced more by this ground and less, if at all, by the
existence of 'public emergency' certified by the Delhi Administration.
Asha Devi vs. K Shivraj, 1979 SC
• A person who regularly smuggled gold from one state to another in his Fiat car. He was caught and
taken into custody by the Customs officer.
• His lawyer wrote to the officer saying, he would like to be present when his client is being
interrogated. He wasn’t allowed. Instead, he was told that the detained person will be produced
before the Magistrate at 5 pm, the lawyer could meet him then.
• On the next day, the advocate waited till 5:30 pm at the Magistrate’s Court  his client was not
produced.
• While he was in custody, he gave some confessional statements.
• He is later produced before the magistrate’s court  remanded to judicial custody  retracted his
confessions.
• A day before his judicial custody was about to end  Add. Chief Secretary  exercised its powers under
S. 3(1) COFEPOSA, under which he has the discretion to detain. He passed an order detaining him
relying on the confessional statement he made earlier.
• Asha Devi (wife of the detained person) challenges his detention  the discretion exercised by the Add.
Chief Secretary.
 Provision
3. Power to make orders detaining certain persons.

(1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary
to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government,
not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that
Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him
from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to
preventing him from-

(i) smuggling goods, or

(ii) (ii) abetting the smuggling of goods, or

(iii) (iii) engaging in transporting or concealing or keeping smuggled goods, or

(iv) (iv) dealing in, smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v)
harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, It is necessary so to do, make an order
directing that such person be detained.

(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State
Government shall, within ten days, forward to the Central Government a report in respect of the order. (3) For the purposes of clause
(5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on
which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in
exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention.
 Holding
• The subjective satisfaction of the detaining authority is a condition precedent to passing an order.
• This subjective satisfaction will get vitiated if material facts are ignored and not
considered. Failure to take into account material facts vitiates the subjective satisfaction.
• Similarly, taking into account irrelevant matters that are extraneous to the scope and purpose of
the statute will vitiate the exercise of discretion.
• 3 factors were not considered/brought to the attention of the CS:
a. That the advocate was not allowed to be present while he was being interrogated.
b. The person was not produced before the magistrate when he was supposed to be.
c. He retracted his confessions as soon as he was placed in judicial custody.
• These are relevant facts that should have been taken into consideration by the ACS but were not 
since they were not considered the exercise of this discretion is vitiated and unlawful.
Principle 2 – Administrative Discretion
Discretion has to be exercised on subjective
satisfaction after considering the relevant factors,
not irrelevant ones.
 Commissioner of Police vs.
Gordhandas Bhanji, 1952 SC
• Gordhandas Bhanji, wanted to build a cinema house on a plot of land at Andheri in the year 1945. At that date Andheri did not
form a part of Bombay and under the rules then in force it was necessary to obtain permission from the District Magistrate of
that area in the form of a No Objection Certificate.
• The respondent made the necessary application on the 12th of September, 1945. Permission was refused on the 30th of
September, 1945, on the ground that the public of the locality objected and also because there was already one cinema theatre
at Andheri and so it was not necessary to have another "for the present."
• Then Andheri becomes part of Greater Bombay and the relevant authority is now the Commissioner of Police (CP). He applied to
CP. But the application was rejected for the same reasons. He applies for a third time. And the CP said, Govt. of Bombay will
decide and I'll let you know.
• Govt. of Bombay constitutes a Cinema Advisory Committee to advise on desirability, licenses etc. The decisions of this
Committee are however not binding on the Government. The members of the CAC inspect the area and say that can’t build
cinema hall because there are 4 schools nearby. But within a month, CAC changes its stance and says, it should be allowed. CP
also gives permission,
• But people write to the Govt. to not allow this construction, there are a lot protests. Govt of Bombay decides to cancel his
license and tells CP to do this.
• CP writes to Bhanji that his license is cancelled. Bhanji's lawyers write to CP and Govt. CP says Govt told me to cancel, so I did.
Govt says we cancelled because of public protests. From the rules, it is clear that the CP has the power to grant, refuse or
cancel licenses at his discretion
Holding
• Only the CP can exercise this power and not the State Government. In this case the CP
cancelled the license based on the government’s instructions.
• The court noted that its illegal and impermissible. He had to apply his own independent and
unfettered judgement and decide for himself whether or not to cancel the license.
• If you have been given the power to exercise for public welfare reasons, you have to exercise
it and only you have to exercise it. The CP here acted merely as a transmitting agent.
• The CP had to come to a decision himself and can’t shirk away from it.
• Public authorities can’t play fast and loose. Can’t misguide the public as to who is making the
decisions and where the decision is coming from.
• While granting the license – you say you have the authority. But while cancelling you say the
government told me  misguiding the public as to who this power vests with  is not a
relaying authority.
• CP was directed to come to an unfettered decision, free from extraneous factors.
Principle 3 – Administrative Discretion
Fetters on discretion are themselves invalid.
Keshavan Bhaskaran vs. State of
Kerala
• A little boy’ s mother approaches the Director of Public Instructions and Examinations
under R.127E of the Travancore Education Code. The boy is young to appear for the
exam. He boy was 11 years 6 months but had passed XI class standard.
• The headmaster also wrote to the Director of Public of Textbooks and Examinations
recommending the boy be given an exemption.
• The Director refused to grant the exemption to appear for the examination because
his deficiency in age is more than 2 years of the age required to appear for this
exam.
• There is nothing in the rule that says that just because you are more than 2 years
younger, you can’t get an exemption. But the director in this case the stance that he
has made this rule for himself, a standard rule that he will apply in all cases, because
he has the discretion. Even if the headmaster recommends, he will not grant an
exemption beyond 2 years.
Provision
R. 127E - No English School Leaving Certificate will be granted to any
person unless
(a) He has been a pupil on the rolls of Form VI of a recognised English High
School during the whole of the school year in which he had applied for
a certificate
(b) He has completed fifteen years of age on or before the first day of July
of the year, in which he applies for the certificate;
Note - It shall however be competent to the Director to grant exemption
from this rule in deserving cases in favour of pupils on whose behalf
recommendations for exemption are received from their respective
Headmasters.
Holding
• The authority has made an invariable and inflexible rule to not
grant exemption beyond two years and the authority had thus,
disabled himself from deciding exceptional cases on their merit.
• Fettering such discretion by a self-created rule of policy contrary
to the law. Fetters on discretion are themselves illegal.
• You have the power to make rules through your discretion but
can’t create artificial fetters to my discretion which preclude the
consideration of the case on its merits.
Principle 4 – Administrative Discretion
Any authority vested with discretion is authorized
to follow a policy, but the policy should not be
used as an invariable rule or to preclude
exceptional circumstances of a particular case
being decided on merit.
Ram Manohar Lohia vs. State of Bihar,
1965 SC
• Case on detention in the context of an emergency. India-
China war emergency. A 6-year long emergency – 1962 –
1968  External aggression.
• President acts pursuant to the emergency and declares
that no person can move to court to challenge his
detention under the Defence of India Ordinance, 1962 or
any rule or order made thereunder to enforce his FRs.
• Ram Manohar Lohia was detained under the Rules of the
DOI ordinance (later became the DOI Act).
Provision - Rule 30(1)(b)
• "The Central Government or the State Government, if it is
satisfied with respect to any particular person that with a view
to preventing him from acting in any manner prejudicial to the
defence of India and civil defence, the public safety, the
maintenance of public order, India's relations with foreign
powers, the maintenance of peaceful conditions in any part of
India, the efficient conduct of military operations or the
maintenance of supplier, and services essential to the life of
the community, it is necessary to do so, may make an order-
(a)........ (b) directing that he be detained."
Detention Order
The detention order in this case is based on the ground that it
was necessary to make it to prevent Dr. Lohia from acting in any
manner “prejudicial to public safety and the maintenance of law
and order”

Is public order seen as law and order?

Holding
• The detention can be reviewed by the court  not with regard to FR but if the Act/Rules itself is
not triggered then he isn’t detained under the DOI Rules  this can be reviewed by the court.
• The satisfaction of the government to detain someone has to be based on the grounds
mentioned under the rules. But the term “law and order” is nowhere mentioned in these rules.
• While you may purport to detain him under DOI rules, you have done so on the grounds NOT
under the DOI. It can be reviewed that “law and order” and “public order” are not the same
thing.
• Public Order – something on the lines of public safety or threats coming from an external actor.
• Law and Order – during maybe a festival or celebration people start to behave in an unruly
manner.
• If the detaining authority had ”public order” in his mind, he should have written that in the
order! Court can’t go behind the scenes and ascertain what he actually meant.
• We can’t go behind the words of the order and see what you actually meant.
Holding
• Court is going to look at the rule and the order, if the order does not
comply with the rules, it is illegal. The detaining authority should know the
rules well enough. So, if he mentioned law and order, he meant only that.
• The other ground on which Dr. Lohia was detained was public safety. This
was within the Rules. So, one ground falls under the rules and one doesn’t.
• While exercising discretion, if it is based on one relevant and one
irrelevant condition, that decision is still illegal. The exercise of this
discretion is wrong, because you relied on an irrelevant ground. Courts
can’t ascertain which factor drove the government more when making this
order.
Principle 5 – Administrative Discretion
Satisfaction of the authority has to strictly comply with
the terms of the rules, can’t use your discretion or
extraneous/irrelevant factors.
Good Judgment?
• Wider political ramifications.
• Court pushes back in the power of the executive  different
approach from ADM Jabalpur  only one judge dissented – J Khanna.
• Radical change in the approach of the court.
• Problems with this judgment?  was the merit of the case discussed?
• Reasoning is slightly flimsy?  just the correct word was not
mentioned  what if public order was mentioned. Would the court
have analyzed this detention order.
• Would the same happen today?
Control on Administrative
Discretion
• It is well settled that where a power is required to be exercised by a certain authority in a
certain way, it should be exercised in that manner or not at all, and all other modes of
performances are necessarily forbidden  Hukam Chand.
• Discretion has to be exercised on subjective satisfaction after considering
the relevant factors, not irrelevant ones  Asha Devi
• Fetters on discretion are themselves invalid  Gordhandas Bhanji
• Authority has the power to make policies based on their discretion but can’t
create artificial fetters to their discretion  Keshavan Bhaskaran.
• Satisfaction of the authority has to strictly comply with the terms of the
rules, can’t use your discretion or extraneous/irrelevant factors  Ram
Manohar Lohia
Standard of
Review
Spotlight is on the judiciary
What is the lens judges use to govern administrative
acts?  should it be two ends of the spectrum?
Policy Making (national anthem decision) or Blank cheque
to the executive (what can we do?)  Somewhere
between these two – standard of review  lens of the
judiciary to define the validity of certain actions.
Associated Provincial Picture Houses vs.
Wednesbury Corp. (1947)
• Court of appeal case legacy.
• Pre – 1932  no live performances allowed.
• Sunday Entertainment Act, 1932 – licensing authority has the power to
give Pvt. Corporations the license to air performances on Sunday.
• Licensing authority may grant licenses subject to such conditions as the
authority may think fit to impose.
• Wednesbury gives license to picture houses which says – you can air
performances on Sunday, but children under 15 years are not allowed.
• This condition is challenged as being unreasonable and arbitrary by APPH.
Holding
• We are dealing with an executive act and not a judicial
act – this is not an appellate mechanism. Executive has
the discretion under the Statute for imposing the
condition. There is no appellate mechanism for the
decision of the executive authority, his decision is
intended to be final as per the Statute.
• The Court must not substitute itself for the executive
authority. The Court’s standard of review in checking
the standards of executive acts  three requirements
have to be met  all administrative acts.
Three Requirements
I. While exercising your discretion, if the statute says some matters are relevant, you
must have regard to those matters.
II. If the statute says certain matters are irrelevant, then authorities must disregard
them.
III. If the argument is made that the executive has acted un-reasonably, then it can
only be accepted if it can be shown that NO REASONABLE PERSON can come to
that conclusion  Wednesbury principle  Wednesbury Reasonability Test 
Red Haired Teacher.
• The court cannot justify the correctness of one view over another.
• It is fine if the authority chooses to not allow 15-year-olds. Court can’t say that NO
REASONABLE PERSON will take this view. Children are young and impressionable.
• Must show its so patently unreasonable  only then will the court interfere.
• Can any executive act be challenged in the court of law based on this?
 Om Kumar vs. UOI, 2000 SC
• The Wednesbury principle gives too much leeway to executive,. The test of proportionality
is better suited  the Strict Scrutiny test  State action vs. Individual Rights
• Primary Review – Proportionality as a standard applies to the Fundamental
Freedoms/FRs - when the executive action impinges on FRs is when the test of
proportionality applies. If the executive’s actions are alleged to be discriminatory, then
the Doctrine of Proportionality applies – Art 14.
• Secondary Review - But if the allegation is of unreasonableness and arbitrariness,
then the Wednesbury test applies.
• What is the problem with this distinction between primary and secondary review?
Is it logical? Answer Scripts eg. Is there something as uniformly arbitrary or
equally arbitrary?
• Created a distinction between unreasonable/arbitrary action and discriminatory action  part
of A 14  Does this distinction really exist?
 Holding
• In a modern administrative states, there are more and more cases that impinge on the
freedom of people. Wednesbury is not fit for this because it’s too permissive. Instead, the
doctrine of proportionality is more appropriate.
• CJEU and ECHR – courts use the doctrine of proportionality in instances wherein state action
violates fundamental freedoms. DOP maintains a balance between the purpose and the
breach.
• Proportionality requires you to take the least restrictive measure. Based on that measure
you have to weigh and balance as to how much of the fundamental rights is being
breached. Eg. Covid Protocol.
• When a measure is discriminatory in those cases use the doctrine of proportionality  court
is the primary, first reviewing authority.
• But if the measure is arbitrary and unreasonable – then courts have secondary review and
thus WP.. In arbitrariness and unreasonableness – It can be subjective and requires a deeper
analysis, it is more complex, it lies in the eyes of the beholder.
Criticism
• Is there really a difference between arbitrariness and discrimination?
• Om Kumar assumes that the doctrine of proportionality is the same as strict scrutiny
– both aren’t the same. Strict Scrutiny – human rights adjudication - death penalty –
nothing can justify taking life, no matter what crime they commit  no weighing and
balancing involved. This right can NEVER be taken away.
• Test of Proportionality – you weigh and balance the measures in terms of the interest
it wishes to advance and the infringement of the right. Whether the right trumps the
measure or vice versa – weight both sides, which one outweighs the other.

From a human rights adjudication point of view - Do we agree with this doctrine? Are
you okay with your rights being subject to the proportionality? (utilitarian analysis)
 Stavros Tsakyrakis – Proportionality – an
assault on Human Rights.
• Proportionality is the predominant way of thinking about HRs adjudication. Be it executive or
legislative – we first engage in a proportionality analysis.
• Proportionality has three prongs:

a) Suitability of the measure – purpose of the act.

b) Necessity of the measure – the least restrictive aspect.
c) Is the burden on the individual excessive? Weigh and Balance – weighing the burden on the
individual of loss of the right vs. State interest.
• Every measure can be argued to be suitable and necessary. This is not a high burden to
discharge for any Government. Therefore, proportionality boils down to the 3 rd point – is it
excessive/burdensome.
• Are we okay with adjudication that weighs and balances our HRs – isn’t it laying a fertile field for
Utilitarianism?
 Are we okay with adjudication that weighs
and balances our HRs – isn’t it laying a
fertile field for Utilitarianism?
• Weighing and balancing renders FRs illusive. It is a defective test as it trumps HRs
with State Interest.
• State interest will always win because it avowedly caters to more people. The
weigh and balance is utilitarian.
• Weighing and Balancing allows pretty much anything to be put on the balancing
scale. Eg. European Court’s case of blasphemous film that hurt Christian
Sentiments. Norway/Sweden. Freedom of speech vs. protecting religious beliefs.
Eg. French law - Charlie Hebdo and Samuel Paty incident  “I am Charlie”  is
there a right to protect my religious belief from offence? In France, we will not
change our freedom of speech because it offends some religions.
• Is there a right to not be offended? To have your religious views protected from
offence? This is not part of right to freedom of religion.  eg. Jennifer Lopez.
Contd.…..
• This bizarre outcome is a necessary consequence of the proportionality test,
one can put absolutely anything in the balance. This creates and situation of
Principle of Definitional Generosity – when defining the contours of a
right/consideration to be placed on a scale, being as generous as possible to
the content of the right.
• Brown vs. Board – Beatty’s interpretation – also a case of weighing and
balancing. Right for an equal education vs. offence taken by white students.
Can there be a right to not be around a human being?
• F vs. Switzerland – 3 years temporary prohibition on remarriage. Court said
it was ‘disproportionate’ cause time period was too long.
• Cohen vs. California – One case where proportionality was NOT applied.
Market-place logic of speech.
Is the right to be offended acknowledged?
Summary

“The problem with the rhetoric of balancing in the context of

proportionality is that it obscures the moral considerations that
are at the heart of human rights issues, and it thus derives
society of a moral discourse that is indispensable. It may be
that our judges are worried about moral disagreements and that
is why they try to bypass the moral arguments by masking their
reasoning in neutral language. However, the best way to resolve
our disagreements is to spell them out and openly debate
them.”
Proportionality – An Assault on Human
Rights  Madhav Khosla Response
• Agreed with most of the themes addressed in the Stavros Reading 
Stavros is right that W&B shouldn’t happen in all cases.
• One main contention – weighing and balancing does not happen in all
cases  some cases don’t fulfill the first two steps of the test itself.
• Brown vs. Board  falsely analyzed. Purpose of the Act  illegitimate
and racist itself. Won’t meet the first prong itself  won’t come down
to weighting and balancing.
• Was answered on the basis of proportionality, then they wouldn’t get
past the first test because the purpose itself was illegitimate. We
won’t come down to the third test.
Madhav Khosla’s Response
• Cases cited by Stavros  wrongly applied the proportionality test.
• The cases Stavros cites are examples where the doctrine of proportionality was
badly and mistakenly applied. Hard cases make bad law  max political scrutiny 
need to be judged based on regular cases. Shouldn’t the doctrine stand up for
scrutiny in the hardest of cases?
• Supra-National Court - Jurisprudence from the ECHR – fraught with difficulty 
doctrine of margin of appreciation  has jurisdiction over sovereign states.
Deference towards states. The States themselves get to decide what it’s standard
of HRs violation and only in cases of absolute violation  ECHR intervenes 
deference towards the measure  with a certain pro – measure bias. Hence
problematic to rely on this.
• What about OM Kumar then? (heavily relied on ECHR jurisprudence).