Can fundamental rights be waived off?

Constitution of India provides a set of fundamental rights to all the citizens which protects them from the atrocities and biasness of the state. There are other set of rights also called the statutory rights and constitutional rights. However, a fundamental right is on a higher pedestal than any other type of right provided under the Indian law. It is the most important bundle of rights, not because, it is an individual right but because it is a ‘community right’. In India, an individual has no power to waive off his fundamental right.

If we analyse any fundamental right, it has been introduced for the benefit of the public and not for the benefit of the ‘individual’. For example, right to vote is a fundamental right, if people start to abandon this right, Indian democratic structure would be compromised. There would be lack of participatory democracy. Another example is of right to education. If people waive their rights of education, most people would be uneducated in the country. Hence, fundamental rights are fruitful only when they are practised by a ‘community’ together. On the face of it, fundamental right might seem like an individual right but practically, it has been framed for the good of community.

Many countries do allow for waiving off fundamental rights on the discretion of individual. However, it cannot be implemented in India due to the nature of its population. Most people in India are uneducated and are unaware of their rights. In such a case, it is very easy for influencers to persuade people to give upon their fundamental rights. These people will then have no remedy against others who are breaching their fundamental rights as it has been waived off willingly. A green flag to such a law will allow the state and people at higher positions to take advantage of the uneducated and underprivileged. For example: if a strong political party urges everyone in a village to waive off their right to vote because the villagers vote in favour of the parties’ opponents, then, democracy would be compromised. And any party could easily win just by persuading people to waive off their right to vote.

Additionally, it has been mentioned that statutory and constitutional rights can be waived off by the individual. If the constitution makers had wanted such a ‘waiver’ for fundamental rights also, they would have stated it explicitly in the constitution. Such waiver finds no mention in the reports by constitution makers and hence, it cannot be assumed to be present. This right of waiving off fundamental rights has been exclusively discussed in the cases Behram Khursheed Pesikaka v. State of Bombay and Bashesh AR Nath v. CIT.

However, there is no need for such a waiver in India. It is believed that by giving a certain right to the public, we are also giving them the right to not opt for it. Right to vote has been provided however, one may choose to not vote without even waiving his right. Although it is always advisable and is in the interest of nation to vote, however, one may choose to not do it. Hence, one can always choose to not use their right. Again, the constitution does not encourage to not use your rights. However, it does give every individual, a discretion. One would not invite a sanction by choosing to not opt for their right. Hence, Indian Constitution is very flexible and a ‘waiver’ is not a ‘need’.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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