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Let’s read the post on Doctrine of Waiver Indian Constitution.
Introduction
The doctrine of waiver is a legal concept in which one person relinquish or abandon his right or privilege voluntarily. This article explores whether a citizen can waive fundamental rights, with a particular focus on the provisions enshrined in Part III of the Indian Constitution and relevant judicial pronouncements. This doctrine allows individuals to voluntarily relinquish a legal right or privilege. However, its application is complex and subject to certain restrictions and judicial interpretations within the context of Indian Constitution.
Legal Framework
The legal framework for the doctrine of waiver is rooted in principles of equity and estoppel. However, in the context of fundamental rights under the Indian Constitution, the application of this doctrine is highly restricted. This restriction is based on the idea that fundamental rights are not just personal benefits but are also established for public interest and societal welfare.
Constitutional Provisions and Judicial Interpretation
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Fundamental Rights and Waiver
Fundamental rights, enshrined in Part III of the Indian Constitution, are considered the cornerstone of the democratic framework. These rights are inalienable and are intended to protect individual liberties and promote social justice. Key fundamental rights include the right to equality (Article 14), freedom of speech and expression (Article 19), and the right to life and personal liberty (Article 21).
Can a Citizen Waive Fundamental Rights ?
A pivotal question arises: Can a citizen waive his fundamental rights?
The Court held that, it is not open to a citizen to waive any of the fundamental rights conferred by Part III of the Constitution. These rights are included in the Constitution not just for the benefit of individuals but also as a matter of public policy to benefit everyone. It is an obligation imposed upon the State by the Constitution. No person can relieve the State of this obligation, because a large majority of our people are economically poor, educationally backward and politically not yet conscious of their rights. In such circumstances, it is the duty of this Court to protect their rights against themselves.
- Statutory Rights and Waiver
Unlike fundamental rights, statutory rights, which are granted by legislation, can generally be waived unless the statute expressly prohibits such waiver. The rationale behind this distinction is that statutory rights are often created to benefit individuals and can be waived if it serves their interest, provided it does not harm public interest or contravene public policy.
Law and Laws in Force
Under Article 13 of the Constitution, “law” is defined broadly to include ordinances, orders, bye-laws, regulations, notifications, customs, or usages with legal authority. This definition covers more than just enacted legislation; it also includes administrative orders and other regulatory measures, though it does not include mere administrative directions or departmental instructions.
“Laws in force” refers to all laws made by the legislature or other authorized bodies that have not been repealed, regardless of whether they are currently in operation. This includes ordinances, rules, and regulations issued by legislative or authorized bodies. However, personal laws of religious communities are not included in Article 13’s definition of “law.”
Constitutional Amendment and Article 13
A key issue in Indian constitutional law is whether a constitutional amendment is considered a “law” under Article 13(2). This issue was first addressed in Shankari Prasad v. Union of India, where the Supreme Court held that “law” under Article 13 did not include constitutional amendments. This interpretation was affirmed in Sajjan Singh v. State of Rajasthan.
In the Golak Nath v. State of Punjab case, the Supreme Court changed its previous position and ruled that “law” in Article 13(2) includes constitutional amendments, meaning they must comply with fundamental rights. In response, the 24th Amendment Act of 1971 was enacted, which added Clause 4 to Article 13. This clause clarified that constitutional amendments made under Article 368 are not considered “law” for the purposes of Article 13, and therefore cannot be challenged for violating fundamental rights.
However, in the Kesavananda Bharati case, the Supreme Court decided that constitutional amendments under Article 368 are not subject to Article 13(2).
Conclusion
While people can generally waive certain legal rights or privileges, the fundamental rights outlined in Part III of the Constitution cannot be waived due to their significant impact on society and the State’s obligation to uphold them. Court rulings, particularly in landmark cases like Basheshar Nath, stress that these rights are non-waivable, highlighting their critical importance in India’s constitutional framework.
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