Bifurcation, Unification, and Calibration: A Comparison of Indian and English Approaches to Proportionality

(2018) 1(2) Indian Law Review 26-50

45 Pages Posted: 9 Oct 2018 Last revised: 30 Oct 2018

See all articles by Lee Marsons

Lee Marsons

University of Essex, School of Law, Students

Date Written: July 1, 2018

Abstract

At least in name, proportionality is a global doctrine. Indeed, though there are 4000 miles between them, England and India share the concept in their administrative law. Nevertheless, there is increasing recognition that just because the word proportionality is used globally, that is not to say that it has a global meaning. Sharing this perspective, this article will compare Indian and English proportionality jurisprudence and demonstrate one way that the doctrine is materially different. Specifically, this relates to the relationship between proportionality and rationality review. Notably, Indian jurists conceptualise this relationship as a bifurcated one; they conceive the two doctrines as involving very different forms of judicial scrutiny. By contrast, in contemporary English jurisprudence, the relationship is increasingly a unified one, involving potentially similar forms of scrutiny. With these insights, the article will be of interest to comparative proportionality scholars and to Indian lawyers exploring the character of domestic proportionality.

Keywords: proportionality; judicial review; human rights; administrative law; comparative law; Indian law

Suggested Citation

Marsons, Lee, Bifurcation, Unification, and Calibration: A Comparison of Indian and English Approaches to Proportionality (July 1, 2018). (2018) 1(2) Indian Law Review 26-50. Available at SSRN: https://ssrn.com/abstract=3248728 or http://dx.doi.org/10.2139/ssrn.3248728

Lee Marsons (Contact Author)

University of Essex, School of Law, Students ( email )

Colchester, Essex CO43SQ
United Kingdom

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