Doctrine of proportionality

2016 PLD 405 KARACHI-HIGH-COURT-SINDH Judicial Precedent

ApplicabilityNatural justice, principles ofScopeRestrictions on human rightsPrinciples

Laws can restrict human rights, but only in order to make conflicting rights compatible or to protect rights of other persons or important interests of community

¬-Any restriction on human right not only requires constitutional sanction, but same must also be proportional to rank and importance of right at stake

Reasonable restriction or any sub-constitutional limitation on constitutional fundamental right must also flow from Constitution to protect lawful rights and interests of others or society at large

Exercise of discretionary powers in which there is no reasonable relationship between objective which should be achieved and means and method used for such purpose, or where punishment imposed in wholly out of proportion to wrong committed, is liable to be quashed by court

Any disproportionate action would be open to scrutiny not only on touchstone of principles of natural justice, but also on doctrine of proportionality

Penalty or punishment awarded must be proportionate to wrong committed-Where wrong is trivial and committed under compelling circumstances or for first time, mercy in Islamic Jurisprudence is a rule and punishment an exception

Doctrine of proportionality is recognized even in modern jurisprudence.

2016 PLD 405 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Art. 25Right to education'No Tuition Policy', validity ofDoctrine of proportionalityApplicabilityRights and duties of students and educational institutionsScope and enforceability

College did not allow plaintiff to appear in final A-Level examination as she had taken private tuition against their 'No Tuition Policy'

Plaintiff was, however, allowed to sit in final examination as per direction of the Court under interim relief

Plaintiff filed present application seeking directions to the College to the effect that her result of final examination be released, and school leaving certificate be issued along with any other documents that might be required by her

Validity

Defendant-college admittedly did allow their students to take tuitions subject to conditions that prior permission in that behalf was obtained from the college by student and tuitions were taken only from faculty of the college

College never had any objection to plaintiff's act itself whereby she took tuitions, which was also permissible according to their policy

College's entire case was on the ground that she had taken tuition without permission

Colleges, in such event, could remove plaintiff from school according to their own orientation but could not withhold her results or school leaving certificate

Before taking any adverse action against student for wrong committed by him, it must have been ascertained whether such wrong was "legal wrong" or "moral wrong"

High Court observed that acts as cheating in tests or examinations, violence or vandalism, use of drugs or arms, obscenity and vulgarity, failure in observing punctuality and maintaining attendant, or any such act, which was of serious in nature, committed by students, could not, and should not, be allowed or tolerated under any circumstances

Students were legally and morally bound not to indulge in any of the said acts, otherwise, they would be liable to punitive or penal consequences

All other duties and obligations which students were required or expected to do, whether by themselves or by their educational institutions, were moral duties and obligations

Non-performance of moral duties and obligations did not entail any punitive or penal consequences against them nor could same be enforced against them

Obligation to seek permission for tuitions from college was merely moral obligation, non-fulfilment of which could not expose plaintiff to any punitive actions (punitive actions provided during orientation given to students' parents)

As per college's own 'No Tuition Policy', 'students who would fail to adhere to said policy may have to face consequences such as being dropped from the subject in question, being made to register privately for CIE examinations or being asked to withdraw from college altogether'

Word 'may' used in said policy was significant, which implied that consequences mentioned in the policy for not adhering to same, were not clearly mandatory and possibly not uniformly applicable to all

Policy was internal policy of college, having been developed by on its own, thus could not be deemed to have force of law or affect or take away valuable rights of students to have access to their fundamental right of education

College undertook to comply with orders of the High Court passed on present application

College was directed by High Court to take all necessary steps for release of result of plaintiff.