Violation of Fundamental Rights as a Ground of Review

In one line

In India an administrative act can be struck down simply because it breaks a fundamental right, and no other ground is needed.

In the wording a student can write in an exam: violation of a fundamental right is an independent ground of judicial review in India, because Article 13(2) forbids the State to make any law taking away or abridging the rights conferred by Part III and Article 13(3)(a) defines law to include any order, rule, regulation, notification or bye-law having the force of law; administrative action which infringes Articles 14, 19 or 21 is therefore void without the need to show any other defect.

MU's question

Set as a short note on two papers, in identical words: violation of fundamental rights as a ground of judicial review. So the answer needs the constitutional foundation, the three articles that do most of the work, an example of each, and the qualification in Ujjam Bai.

The constitutional foundation

Article 13(2). The State shall not make any law which takes away or abridges the rights conferred by this Part, and any law made in contravention of this clause shall to the extent of the contravention be void.

Article 13(3)(a). Law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

Those two clauses together are why this ground exists. An executive order which has the force of law is law, and a law that abridges a fundamental right is void, so the order is void.

Article 14: the workhorse

Equality and arbitrariness. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, holds that equality is a dynamic concept which cannot be cribbed, cabined and confined within traditional and doctrinaire limits; that from a positivistic point of view equality is antithetic to arbitrariness; that equality and arbitrariness are sworn enemies; and that where an act is arbitrary it is implicit in it that it is unequal and therefore violative of Article 14.

Discrimination without a rational basis. The classification test: a classification is valid only if it rests on an intelligible differentia and if the differentia has a rational relation to the object of the Act.

Unguided discretion. Air India v. Nergesh Meerza, AIR 1981 SC 1829, struck down a regulation which left the extension of an air hostess's service entirely to the option of the Managing Director without guidelines, as an unguided and uncanalised power offending Article 14, and held termination on first pregnancy to be manifestly unreasonable and arbitrary.

Article 19: the freedoms

Any administrative act restricting speech, assembly, association, movement, residence or trade must satisfy the reasonable restrictions test in clauses (2) to (6), which is a proportionality test. Narendra Kumar v. Union of India, AIR 1960 SC 430, holds that a restriction under Article 19(6) may in an appropriate case amount to a total prohibition, but that the greater the restriction the stronger the justification required.