Abhinav Chandrachud (Stanford Law School) has posted Wednesbury Reformulated: Proportionality and the Supreme Court of India (Oxford University Commonwealth Law Journal, Vol. 13, No. 1, 2013, pp. 191-208) on SSRN. Here is the abstract:
- In a case decided in the year 2000, the Supreme Court of India held, for perhaps the first time in its history, that the proportionality doctrine could be used to test the validity of certain kinds of administrative decisions. However, in subsequent cases, in an ostensible exercise of the new proportionality doctrine, the Supreme Court of India has continued only to apply the old doctrines of judicial review with which it is most familiar, particularly the doctrine of Wednesbury unreasonableness. By empirically investigating a group of cases in which the “proportionality” doctrine has most commonly been used by the Supreme Court of India – public sector employment cases – this paper argues that the proportionality doctrine in India is not really what it is elsewhere. A polished version of this paper was published in the Oxford University Commonwealth Law Journal in 2013.