WAIVER OF FUNDAMENTAL RIGHTS

SUBMITTED BY-
ASHUTOSH KUMAR, B.A., LL.B.(HONS.)
(5th Semester), (Roll No.- 2114)
SUBMITTED TO-
PROF. DR. ANIRUDH PRASAD
(Professor of Law)
This rough draft is submitted in partial fulfilment in Constitutional Law-I for the
completion of B.A., LL.B.(Hons.) course.

AUGUST 2021
CHANAKYA NATIONAL LAW UNIVERSITY,
PATNA
INTRODUCTION

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The idea that everybody should have basic human rights which are fundamental in nature is
very much true. It has its history in traditions and culture and also in the religious books, such
as the Vedas and Bible, which impart some duty and rights to the people that is in some way
responsible for their welfare. What is known today as fundamental rights has its origin in
various historical documents such as the English Bill of Rights, Magna Carta etc.

In India, fundamental rights are considered to be the most important part of the Indian
Constitution and the very essence of democracy. The concept of Fundamental Rights in the
Indian Constitution has been borrowed from USA. Fundamental Rights in the Constitution of
India is incorporated in Part III from Articles 12-35. The fundamental rights were
incorporated into the Constitution since they were viewed as basic for the improvement of the
identity of each person and to safeguard human dignity. The makers of the Constitution
regarded democracy to be worthless if common liberties, like freedom of speech and religion
were not provided and secured by the State. These rights are subjected to reasonable
restrictions on the grounds of public order and morality. Fundamental Rights in the
Constitution of India include Right to Equality, Right against exploitation, Right to Freedom
of Religion, Cultural and Educational Rights, Right to Constitutional Remedies etc.

The term ‘waiver’ can be defined as wilful surrender of one’s rights, privileges and benefits.
Whether any person can waive the fundamental rights provided to him by the Constitution is
a question that needs to be considered.

As defined in Black’s law dictionary, ‘waiver’ means ‘the voluntary relinquishment or

abandonment (express or implied) of a legal right or advantage’. An essential element of
waiver is that the party should have knowledge of the right and an intention to waive it off.
The rights can’t be claimed again after waiving. On the other hand, suspension of rights is not
done by an individual. Suspension is when the state takes away the rights of the people for
the time being, whenever required like in emergency situations. Even during an emergency,
some rights can’t be suspended in India like Articles 20 and 21. Articles 352, 356 and 360
talk about national, state and financial emergency respectively.

Under Article 359, the President may suspend the enforcement of the fundamental rights in
case of national or state emergency. The difference between waiver and suspension is that in
waiver there is wilful surrender by the individual and in suspension an authority takes away
the right for a particular amount of time.

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OBJECTIVES
 To analyse the concept of fundamental rights.
 To analyse the doctrine of waiver of fundamental rights.
 To analyse the doctrine of waiver with respect to right to life.

HYPOTHESIS
The researcher has formulated the hypothesis that the waiver of fundamental rights is not
possible.

MODE OF RESEARCH
The researcher has relied upon the Doctrinal method of research for the completion of this
project.

TENTATIVE CHAPTERISATION
1. INTRODUCTION.
2. FUNDAMENTAL RIGHTS.
3. DOCTRINE OF WAIVER OF FUNDAMENTAL RIGHTS.
4. FUNDAMENTAL RIGHTS AND THE INDIAN JUDICIARY.
5. PUBLIC POLICY.
6. RIGHT TO DIE.
7. IMPORTANT CASES ON WAIVER OF FUNDAMENTAL RIGHTS.
8. EUTHANASIA.
9. CONCLUSION.

BIBLIOGRAPHY
Primary Sources: Books and Bare Act.

1. V.N. Shukla’s Constitution of India, published by Eastern Book Company Pvt. Ltd.
2. M.P. Jain’s Indian Constitutional Law, published by Lexis Nexis.
3. The Constitution of India, 1950 (Bare Act).

Secondary Sources: Materials Available on the internet.

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