The constitution of India under Part III gives us knowledge of the fundamental rights and duties of a citizen. Also, it gives us the procedural commanding of a state, its government regarding the protection of an individual’s fundamental rights. These rights apply universally to all citizens residing in the nation, irrespective of their race, place of birth, religion, caste, or gender. They are recognized by law as rights requiring a high degree of protection from the government and they cannot be violated by the Government. Fundamental rights cannot be enforceable against individuals and private entities. The obligation of protecting these rights lies on the government or the state or its authorities. To get the instant and right law information then you can visit the site “Law Planet”.
Fundamental Rights
Fundamental Rights are those rights that are essential for the intellectual, moral, and spiritual development of citizens of India. As these rights are fundamental or essential for the existence and all-around development of individuals, they are called ‘Fundamental rights. These are enshrined in Part III (Articles 12 to 35) of the ConstitutionIndia.
These include individual rights common to most, such as equality before the law, freedom of speech and freedom of expression, religious and cultural freedom, Freedom of assembly (peaceful assembly), freedom of religion (freedom to practice religion), right to constitutional remedies for the protection of civil rights by means of writs such as Habeas corpus, Mandamus, Write of Prohibition, Certiorari and Quo Warranto
‘State’ Under Article 12
As per Article 12 of the Indian Constitution-
“Definition in this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”
In other words, for the purposes of Part III of the constitution, the state comprises of the following:
Government and Parliament of India i.e., the Executive and Legislature of the Union
Government and Legislature of each State i.e., the Executive and Legislature of the various States of India
All local or other authorities within the territory of India
All local and other authorities who are under the control of the Government of India.
State and Fundamental Rights – Relation
Unlike the other legal rights which are created by the state that confers the right upon the individuals against one another, the fundamental rights can be claimed only against the state. So, whether the constitution speaks of it or not, it is understood that the fundamental rights can only be infringed with respect to the state or its authorities. To know about the “Harvey vs Facey Case” can visit the law planet once.
Article 13- Laws Inconsistent with or in Derogation of the Fundamental Rights
When one reads Article 13 of the Constitution, it makes one thing clear that while framing these rules the constitution makers left no stone unturned to clarify the supremacy of the fundamental rights over any other right in case of inconsistency between the two. Hence, if any such case prevails, where the rights are being infringed, fundamental rights shall be prioritised.
Also, if any law, be it pre-constitutional or post- constitutional, is in derogation with the fundamental right, shall be invalid only to the extent they fall within the category of “law in force”. As uncodified personal laws do not fall within the category, it could be urged that they were not intended to become invalid in the ground of any inconsistency with the fundamental rights.
Article 13 of the constitution do talks about the four principles relating to fundamental rights. Fundamental rights do exist from the date on which the Indian constitution came into force i.e., on 26th January 1950 hence fundamental rights became operative from this date only.
Article 13(1) talks about the pre-constitutional laws i.e., the day from which the constitution came in existence there were many laws in the country and when the constitution came into existence fundamental rights do come, therefore the laws before the existence of the constitution must prove their compatibility with the fundamental rights, only then these laws would be considered to be valid otherwise they would be declared to be void.
Moreover article 13(1) is prospective in nature but not retrospective i.e., the article will be in effect from the day when constitution came in effect ..(26th jan.,1950) and the person who committed offence afterward will be prosecuted according to the laws of Indian constitution but not according to the pre-constitutional laws.
Article 13 (2) talks about the post constitutional laws i.e it says that once the constitution is framed and came in effect then any of the state may not make laws that takes away or abridges the fundamental rights of an individual and if done so then it would be void till the extent of contravention.
Article 13(3) talks about the meaning of law i.e., the laws whether by laws, notifications, rules, regulations, customs, usage, etc. if do effect the legal rights of the citizens do come under the definition of law, thus would be considered as laws under article 13 but there are two exceptions to the same, firstly the administrative and the executive orders are being covered under article 13 but if their nature is just to give instructions or guidelines then they would not be covered under article 13. Second exception is the personal laws which are not being covered under article 13.
This clause of article 13 do says that any of the amendment made in article 368 of the Indian constitution would not be challenged under article 13 moreover if the amendment so made would be against the fundamental rights then also it would not be challenged under article 13.
Waiver of the Fundamental Rights
To address the question of whether fundamental rights can be waived by a person who has it. In the case of Basheshar Nath v. CIT the fact of the case are that the petitioner has concealed large amount of his income. In order to escape from his liabilities the petitioner agreed to the settlement under Section 8-A to pay Rupees 3 lakhs in monthly instalments by way of arrears of tax and penalties. On the basis of Income Tax rules being ultra vires to the constitution thereby violative of Article 14 he is not supposed to pay the tax. It was held that right under Article 14 cannot be waived. Since then the law has been settled that the fundamental rights cannot be waived.