Violation of Fundamental Rights as a Ground of Review
Chapter Sixty-Seven
Syllabus topic 4, "Grounds of Review"
Pages 202 to 204 of 430
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.
Violation of Fundamental Rights as a Ground of Review
Article 21: life and liberty
After Maneka Gandhi v. Union of India, AIR 1978 SC 597, a procedure which deprives a person of life or personal liberty must be right, just and fair, and not arbitrary, fanciful or oppressive; and natural justice is implicit in Article 21. That single proposition converts almost every serious administrative decision affecting a person into a potential Article 21 case, because the right to livelihood has been read into life: Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, and D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259.
The qualification a good answer includes
Not every illegality is a violation of a fundamental right. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621, holds that a quasi-judicial authority acting under a valid law and within its jurisdiction does not violate a fundamental right merely by deciding a question of fact or of construction wrongly; the error is within jurisdiction and the remedy is an appeal or a petition under Article 226, not Article 32.
So the ground is available where the statute itself is bad, where the authority acts outside its jurisdiction, or where the act independently infringes a right. It is not a general appeal.
A worked example
A State issues an order that no person who has been a member of a particular association shall be granted a licence to run a private security agency, and separately cancels an existing licence without notice on the ground that the licensee's son has been charged with an offence.
The first order offends Article 14, because past membership of an association is not an intelligible differentia rationally related to fitness to run a security agency, and Article 19(1)(g), because the restriction is not reasonable. The second offends Article 21 as construed in Maneka Gandhi, because the procedure was not fair, and Article 14, because visiting a father with the consequences of his son's prosecution is arbitrary on Royappa. Neither order needs any other ground.
What this does NOT mean
It does not mean every administrative error is a constitutional violation. Ujjam Bai.
It does not mean the ground is available only under Article 32. It is available under Article 226 as well, which is wider.
It does not mean a fundamental right claim needs no facts. Arbitrariness has to be shown from the record, and a bare assertion of Article 14 gets nowhere.
Violation of Fundamental Rights as a Ground of Review
Quick revision
Article 13(2) voids a law abridging Part III, and Article 13(3)(a) makes an order, rule, regulation or notification with the force of law into law, so administrative action is caught. Article 14 does most of the work through Royappa's arbitrariness doctrine, the classification test, and the rule against unguided discretion in Nergesh Meerza. Article 19 imports the reasonable restrictions test, with Narendra Kumar on total prohibition. Article 21 imports fairness after Maneka Gandhi and reaches livelihood through Olga Tellis and D.K. Yadav. Ujjam Bai is the limit: an error within jurisdiction under a valid law violates no right.
Test yourself
1. Which two clauses of Article 13 make this a ground against administrative action? Clause (2), which voids a law abridging Part III, and clause (3)(a), which defines law to include an order, rule, regulation or notification having the force of law.
2. State the Royappa proposition. Equality is antithetic to arbitrariness; equality and arbitrariness are sworn enemies; an arbitrary act is implicitly unequal and therefore violates Article 14.
3. What is the limit stated in Ujjam Bai? That an authority acting under a valid law and within jurisdiction does not violate a fundamental right merely by deciding a question of fact or construction wrongly.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.