Recent arrest of two chartered accountants in Gurgaon has sparked an outrage among the members of the Institute of Chartered Accountants of India. As per reports circulating on social media, the CAs were allegedly illegally detained and were subjected to brutality by the GST officers. It is for the courts to decide about the correctness or otherwise of the allegations. Though this article is not about any specific incident like this, it will be helpful for everyone to know the rights and how the rights can be protected at this time. In this article, I have tried to discuss about some crucial aspects of the fundamental rights guaranteed by the constitution. Though this article discusses only legal issues, it is written keeping in view a common citizen of a country.

A nineteenth century English historian Lord Acton said “ Power corrupts and absolute power corrupts absolutely”. This is true even today. Whether there is a dictatorship or democracy, it makes a little difference as far as this observation is concerned. Forefathers of our constitution had an idea that the citizens shall need protection from state actions and they have drafted the most comprehensive constitution of the world.

Concept of Rule of Law

To understand the rights given by the constitution, first we need to discuss the concept of “ Rule of Law”. The idea of “ Rule of law” is that the state or a country is governed not by the wishes or philosophies of the ruler or nominated representatives of the people but by the law. The origin of the Rule of law theory can be traced to ancient Romans. In India also the theory given by Chanakya gives us an idea that the King should be governed by the words of law. The lawmakers need to give reasons that can be justified while exercising their powers to make and administer the law. This concept is also known as “ Supremacy of Law”.

While we discuss the concept of “ Supremacy of Law”, inadvertently, we need to mention Article 13 of the Constitution. Fundamental rights are given in part III of the constitution. Part III of the constitution covers article 12 to Article 35. The soul of the fundamental rights is Article 13 which is re produced below-

13. Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void

(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

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368

On plain reading of Article 13 (2), we can understand that any law which is inconsistent with the fundamental rights guaranteed by the constitution shall be invalid to the extent of the inconsistency. This I have discussed later in this article in detail.

With the concept of “ Supremacy of law”, there is a concept of “ equality before law”. While the concept of “ Supremacy of law” keeps the actions of the government and administrations in check, the concept of “ equality before law” ensures that the the law is applied in just manner as well. The law cannot discriminate among the people. The rights of “ equality before law” are given under Article 14 to Article 18 of the Constitution.

Enforcement of the concept of Rule of Law

Both these concept i.e. Supremacy of law and equality before law are heart and soul of any democratic system. A.V. Dicey, a British Jurist, believed that it is not sufficient to simply include these two concepts in the constitution of a country but there must be an enforcing authority which ensures that these principles are followed in letter and spirit. As per A.V. Dicey, such authority is found in the courts. The courts make sure that the Rule of law is followed.

Constitution of India is the supreme law. Article 13 as discussed above ensures that the supremacy of this law is maintained. Article 14 provides for right of equality before law. Article 21 provides a further check against the arbitrary executive actions. Article 21 provides as under-

No person shall be deprived of his life or personal liberty except according to procedure established by law.

This single line of Article 21 is of paramount importance and we will discuss it in detail later in this article. Article 14, 19, 21 and 22 constitutes the base of Rule of law. Some Supreme Court judgements in this context are relevant in this matter. In case of ADM Jabalpur v/s Shivkant Shukla there was a question before Supreme Court that “ whether there is any rule of law in India apart form Article 21?”. This was in context of suspension of fundamental rights during the proclamation of emergency. Though majority of the bench ruled that there is no rule of law apart from Article 21 in India, the minority opinion given by Justice H.R.Khanna is relevant. He stated that even in the absence of Article 21, the state has no power to deprive anyone of his right and liberty without authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and the society governed by law would cease to have any meaning. Rule of law is now the accepted norm of all civilised society.

In case of Chief Settlement commissioner of Punjab v/s Om Prakash, Supreme Court held that the administrative actions that do not meet the standards of legality will set aside if the aggrieved person brings the matter in to notice. In case of Keshavananda Bharati v/s State of Kerala, Supreme Court held that the rule of law is an essential part of the basic structure of the constitution and and hence cannot be amended by any Act of parliament.

Fundamental Rights in Indian Constitution

Though the fundamental rights guaranteed by Indian Constitution is a separate subject in itself, it will not be irrelevant here to summarily understand the fundamental rights. Initially in Indian constitution there were seven fundamental rights. By 44th amendment to the constitution “right to property” has been eliminated from fundamental right and and it has been made a legal right. The six fundamental rights guaranteed by the constitution are as under. (It is important to note that when we talk about fundamental rights, we don’t say “ the rights given by the constitution” but we say “ the rights guaranteed by the constitution”. Readers can understand the apparent difference between the words “given” and “ guaranteed”).

1. Right to Equality ( Article 14 to Article 18)

2. Right to freedom ( Article 19 to Article 22)

3. Right against exploitation ( Article 23 and Article 24)

4. Right to freedom of religion ( Article 25 to Article 28)

5. Cultural and Educational rights ( Article 29 and Article 30)

6. Right to constitutional remedies ( Article 32)

The fundamental rights are available not only to citizens of India but to any person ( however, fundamental rights guaranteed under article 15,16, 19,29 and 30 are not available to non-citizens). Normally the fundamental rights are enforceable against the state. However some rights like right guaranteed by article 21 can be enforced against private person also. As most of the fundamental rights are enforceable against the state actions, it is important to understand the meaning of the word “state”. Article 12 of the constitution defines “ state” as under-

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 simple terms state includes parliament, state legislators, government, local and other authorities. The term “ state” has been widely interpreted by courts. For the purposes of keeping the discussion limited to the subject, I am not discussing the meaning of “ state” in detail. However, readers who are interested in this topic can refer following judgements

  • University of Madras v/s Shantabai
  • Ujjammabai v/s the state of UP
  • Rajasthan Electricity Board v/s Mohan lal
  • Ramana dayaram Shetty v/s IAAI
  • Sukhdevsingh v/s Bhagatram

Discussion on some relevant articles 

1. Article 20

Protection in respect of conviction for offences.

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

A person against whom charge is filed gets following protections

Article 20(1)- Protection against the post facto established law. It means punishment shall be given as existing at the time of commission of offence. If afterwards law is amended and punishment is increased, then the increased punishment cannot be applied for offences committed before the amendment.

Article 20(2)- Protection against double punishment. It means a person cannot be punished more than once for same offence.

Article 20(3)- Protection against self-accusation. It means any accused person cannot be made witness against himself for an offence committed by him.

2. Article 22

Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate

(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention

Article 22 gives certain rights to the arrested person. As per this article, when a person is arrested, he should be informed about the grounds of his arrest. Arrested person has aright to consult and to be defended by a lawyer of his choice. A person who has been arrested needs to be produced before the nearest magistrate within a period of twenty four hours of the arrest.

Concept of separation of powers 

Before we understand the remedies available in case of violation of fundamental rights, we need to take a look at the concept of separation of powers. This will help us understand the role of courts as protector of fundamental rights.

The theory of separation of powers was first given by a French scholar, Montesquieu in the year 1747 in his famous book ‘ Espirit des Louis’ ( The spirit of laws). To avoid situations of concentration of power and with a view to check the arbitrariness, he suggested that there should be a clear division of powers among three organs of the state. I.e. Legislative, Executives and Judiciary. As per the theory of separation of powers given by Montesquieu,

  • One organ of the government should not interfere with other organ of the government.
  • One organ of the government should not exercise the functions assigned to other organ.
  • Same person should not form part of more than one of the three organs.

Know Your fundamental Rights- Relevant Provisions of Constitution

Though the theory of separation of powers is accepted by most of the democracies of the world, it has not been rigidly implemented. In USA, the theory of separation of powers has been incorporated as a basis of the constitution.

In USA, legislative powers are vested in congress. All executive powers are vested in the president. And all judicial powers are vested in Supreme Court. However, in USA also there are certain exceptions in implementation of the concept of separation of powers. For example, the president of the USA has a veto power against the bill passed by the legislature i.e. congress.

In India, apparently it seems that we have accepted the concept of separation of powers. In India, legislative powers are with parliament, executive powers are exercised by the president ( rather we should say that the executive powers are exercised in the name of president), judicial powers are with judiciaries.

However, if we read the constitution in detail, we can understand that there are number of articles wherein the powers among the three organs are overlapping. For example, Supreme Court can declare a law passed by the parliament as void if it violates fundamental rights ( Article 13). There are many such examples, where we can clearly see the overlapping of powers. Though there is a clear overlapping of powers, it will wrong to say that we do not recognise the concept of separation of powers in India. In case of Indira Nehru Gandhi vs Raj Narain, there was a dispute regarding the election of Prime Minister. In this case it was held by honourable Supreme Court that adjudication of a specific dispute is a judicial function and parliament cannot exercise this function even under the powers of amendment of the constitution. Further, in case of Keshavananda Bharati v/s State of Kerala, it was held that separation of powers is a basic structure of the constitution and none of the three organs of the republic can take over the functions assigned to the other organ.

Remedy available in case of violation of fundamental rights 

As we have understood the concept of separation of powers, now we can look into the remedies available in case of violation of fundamental rights. We have discussed earlier in this article that A.V. Dicey, a British Jurist, believed that it is not sufficient to simply include these two concepts in the constitution of a country but there must be an enforcing authority which ensures that these principles are followed in letter and spirit. As per A.V. Dicey, such authority is found in the courts.

The courts make sure that the Rule of law is followed. As we have discussed earlier in this article, fundamental rights are given in part III of the constitution. Article 32 of the constitution is reproduced below-

Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

Readers can get an idea from Article 32 of the constitution that right to move Supreme Court for enforcement of the fundamental rights itself is a fundamental right. In case any of the fundamental rights is violated, an aggrieved person can knock the doors of Supreme Court. Similarly Article 226 gives power to high courts to issue writs. Article 226 is reproduced below-

226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32

On a plain reading of these two articles, i.e. Article 32 and Article 226, we can infer two points.

1. Article 32 ( right to move Supreme Court for enforcement of fundamental rights) in itself is a fundamental right, whereas Article 226 is not a fundamental right.

2. A petition can be filed to Supreme Court for enforcement of fundamental rights under Article 32 whereas a petition can be filed to high court for enforcement of fundamental rights as well as for any other reason. Hence, the scope of article 226 is wider in comparison to Article 32.

High Court or Supreme Court can issue different kinds of writs. It will not be irrelevant to understand the types of writs as they are the remedies available to the aggrieved person.

1. Habeas Corpus –

This writ is issued by courts when a person is illegally detained. By this writ, court can direct the authority who has detained a person to present such person before the court. Court can ask for the grounds based on which a person is detained and if authority fails to provide valid grounds then the court shall order release of the person immediately.

It is also important to note that the manner prescribed to file a writ is not necessarily required to be followed. Usually, relatives of a person who has been detained illegally can file this writ, however court can allow a writ by a stranger also in case it is filed in public interest. In the case of Sunil Batra v. Delhi Administration, the Supreme Court had accepted the application made through a letter by a co-convict (a stranger) due to the inhuman treatment of prisoners. In this case, the letter was accepted as an application and the writ of Habeas Corpus was issued.

In case of Kanu Sanyal V/s District Magistrate, Darjeeling , Supreme Court held that in case of writ of habeas corpus, the production of body of the person allegedly unlawfully detained is not essential. This writ can not only be issued for releasing a person illegally detained but also for protecting him from inhuman treatment inside the jail.

2. Writ of mandamus

In the Writ of Mandamus, the superior courts order the Inferior Courts or an Inferior Tribunal, Board, Corporation or any other type of administrative authority to do an act or to abstain from doing an act. When any public authority fails to discharge its duty of a public nature, court can issue writ of mandamus to compel such authority to discharge its public duty. The Writ of Mandamus cannot be issued against a private person and therefore only the State or the people who hold any office which falls in the category of a public office can be compelled to do or to abstain from doing an act. For example, when a credit ledger in GST is blocked beyond a period of one year, we can say that the public authority has failed to discharge its duty of releasing the credit ledger and in this case writ of mandamus can be issued.

In the case of Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal, the Income Tax Appellate Tribunal had given clear directions to the respondent Income Tax Officer by its final order. The Income Tax Officer had still refused to carry out the directions given by the Tribunal. It was held by the Supreme Court that the Income Tax officer had a mandatory duty to fulfil the directions given by the Tribunal and non-performance of which amounted to grave injustice. Thus, the Writ of Mandamus was issued to direct the officer to carry out the directions of the Tribunal.

3. Writ of Certiorari

The writ of certiorari is corrective in nature. The purpose of this Writ is to correct an error which is apparent on the records. This writ is issued by a superior court to inferior court when the jurisdiction exercised by the inferior court is excessive or the superior court wants to exercise the jurisdiction itself. Mainly, violation of principle of natural justice is a ground for issuance of this writ. when anybody or a person is performing a judicial act, their acts can be subjected to the Writ of Certiorari.

4. Writ of Quo Warranto

Quo-warranto means “ what is your authority?” . This writ is issued to prevent a person from continuing in a public office who has wrongfully usurped the office. Whenever, is is found that a person is not entitled to the public office that he has held, this writ is issued by court. This writ is applicable only to public officers and not to private bodies.

5. Writ of Prohibition

As the name itself suggests, this writ prohibits certain acts by an inferior courts. Thus is an extraordinary remedy which a Superior Court issues to an inferior court or tribunal for stopping them from deciding a case because these courts do not have the jurisdiction. In the Writ of Prohibition, the superior court issues the writ before the final order is passed by the inferior court and therefore this is a preventive remedy, while in Writ of Certiorari the superior court issues the Writ after the inferior court has made the final order. Thus the Writ of Certiorari is a corrective remedy by which the order of the inferior court is quashed. Hence, though the writ of certiorari and writ of prohibition appears same, there is a major difference between the two.

Hence, we can say that the courts have wide powers to issue writs in case of violation of fundamental rights ( in case of high courts “ for other reasons” also).

Some important judgements 

Article 21 of the constitution seems shortest in its content but widely interpreted by Supreme Court. No person shall be deprived of his life or personal liberty except according to procedure established by law. This right is enforceable not only against the state but also against a private person. There is a long list of Supreme Court judgements available on enforcement of this right. However for the purpose of brevity, following judgements of honourable Supreme Court are important.

1. Personal liberty means liberty of physical body. I.e. freedom from arrest and detention from false imprisonment or wrongful confinement. ( A.K. Gopalan V/s State of Madras ).

2. Medical institutions to provide medical aid and treatment immediately irrespective of whether procedural formalities have been completed or not. This petition was filed under article 32 when a private doctor refused to give treatment to a patient who had an accident because of non-compliance of procedural formalities regarding accident ( Parmanand Katara v/s Union of India).

3. An unauthorised intrusion into a person’s home is violation of his personal liberty and hence police regulation that authorised domiciliary visits was plainly violation of Article 21 and has been struck down as unconstitutional. ( Kharak Singh V/s State of UP)

4. A citizen has a right to safeguard the privacy of his own, his family, marriage, education etc. The right to privacy or the right to be let alone is a right guaranteed by Article 21 of the constitution. ( R. Rajagopal v/s State of Tamilnadu).

5. An act of termination of service of an employee without providing him an opportunity of being heard is arbitrary and against the right of liberty of life under Article 21 ( D.K.Yadav V/s M.A . Industries).

6. The order of impounding of passport of the petitioner is neither fair nor procedurally proper. The order is quashed and direction is given to passport authorities to return the passport to the petitioner. ( Menaka Gandhi V/s Union of India )

Powers of arrest and limitations on this power 

The list of judgements on this issue is never ending. However, one of the cases we need to discuss. Supreme Court judgement in case of D.K. Basu v. State of West Bengal (AIR 1997 SC 610) is a landmark judgement. In the case of D.K Basu vs. State of West Bengal the executive chairman of Legal Aid Services, a registered non-political organization submitted a letter to the Chief Justice of India regarding the deaths that occurred in police custody and lock-ups. It was also mentioned to examine the matter seriously and to introduce “custody jurisprudence”. It was requested that the letter along with the news items be treated as a writ petition under “ Public Interest Litigation” category. Court treated the letter as a writ petition and notice was issued to the state.

The court held that the right of liberty of life granted under Article 21 cannot be neglected regarding the prisoners during the trial or custody. The protection of an individual from torture and abuse by the police and other law enforcement officers is a matter of deep concern in a free society.

In this case, court issued following requirements to be fulfilled in case of arrest or detention.

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Above guidelines issued by Supreme Court is extremely important. As held by Supreme Court in this case, failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

Observation of Supreme Court in one more case is also important. In case of Joginder Kumar Vs. State [1994 (4) SCC, 260] Supreme Court considered the dynamics of misuse of police power of arrest and opined :

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing. The justification for the exercise of it is quite another…No arrest should be made without a reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying person his liberty is a serious matter.”

Can Fundamental Rights be waived?

Readers must have got an idea from above discussion that fundamental rights are the most important part of the Indian constitution. There arises a question if fundamental rights are given by the constitution, so can anyone waive the fundamental rights given to him? Though this question may not be of much importance from the point of view of discussion on topic of the article, but it is significant from the point of view of understanding the importance given to fundamental rights by the judiciaries. The question first arose in case of Behram v/s State of Maharashtra. In this case court held that the fundamental rights are not kept in the constitution merely for individual benefits. These rights are incorporated in the constitution as a matter of public policy and hence doctrine of waiver cannot be applied to fundamental rights. A citizen cannot invite discrimination by telling the state that you can discriminate or get convicted by waiving the protection given to him under Article 20 and 21.

In case of Nar Singh Pal v/s Union of India, a labourer who worked continuously for ten years for an employer was prosecuted for a criminal offence. He was ultimately acquitted. However, during the meantime he was terminated from his service. He also accepted the retrenchment benefits. However, later he challenged the termination order. The employer i.e. Union of India argued that the petitioner had accepted the retrenchment benefits and hence now he cannot challenge the termination order. Supreme Court held that his service cannot be terminated without a departmental enquiry and without providing him an opportunity of being heard. Acceptance of retrenchment benefits does not mean that he had surrendered all his constitutional rights. Doctrine of estoppel cannot be applied to fundamental rights. The order of termination was quashed and the petitioner was reinstated in service.

Another case is also important in this matter. In case of Bashesharnath v/s Commissioner of Income Tax, Supreme Court had made a detailed discussion on waiver of fundamental rights. In this case, an investigation commission under section 5(1) of the Taxation of Income ( investigation commission ) Act, decided that there is a concealment of income by the petitioner. The petitioner agreed for a settlement and agreed to pay rupees three lakh in monthly instalment as tax and penalty. In 1955, Supreme Court declared section 5(1) of the Act as ultra vires to Article 14 of the constitution. Consequently, petitioner challenged the settlement order. The respondent pleaded that the petitioner had agreed for a settlement and hence he had waived his fundamental rights. Supreme Court held that the settlement was invalid and doctrine of waiver cannot be applied to fundamental rights.

As noted by Supreme Court, a large majority of the people in India are economically poor, educationally backward and politically not yet conscious of their rights. Individually or even collectively they cannot be pitted against the state and therefore it is the duty of judiciary to protect their rights against themselves.


For enforcement of fundamental rights, the knowledge of the fundamental rights is a prerequisite. Constitution of India is one of the finest constitutions of the world. The drafters of the constitution has made sure that the rights of the citizens are protected from arbitrary state actions. The concept of “ Rule of Law” is the base of any civilised society. However, time and again, incident of abuse of powers are reported. Even after seventy five years of independence, there prevails a colonial mind set. Supreme Court, being protector of the constitution has given judgements which protects common citizens from the illegal actions of the enforcement officers. The preamble of the constitution starts with “ We the people of India”. Hence, people of India possesses the supreme authority. The executive actions must be governed by the law passed by the parliament which must be in conformity with the constitution. Though this concept is absolutely clear, it is violated time and again. Many a times executive actions are arbitrary and excessive. The cure for such actions is awareness of the fundamental rights guaranteed by the constitution. The fact that the executive actions if found in violation of the law can invite penal actions for enforcement officers also needs to be informed to all law enforcement officials.

There is absolutely no denial that the tax evaders must be caught and made liable to compensate the loss to the state exchequer. However, it is also an important duty of the state that in this process, any innocent person should not be harassed. The enthusiasm of taking enforcement action must be checked by the “ Rule of Law”. Nothing can be done outside the authority given by law. The rule of law can be summed up in one sentence, “ KING IS NOT LAW, LAW IS KING”. 

Author Bio

Qualification: CA in Practice
Company: Brijesh Thakar & Associates CA
Location: Ahmedabad, Gujarat, India
Member Since: 25 Jul 2021 | Total Posts: 6
CA in practice since 2008. National Rank holder in CA Exam. Author of Book “ Comprehensive Guide to GST”. Addressed more than 150 seminars and conferences on GST for CAs and revenue officers. Regular contributor of articles to many tax journals. Main area of practice _ GST litigations. View Full Profile

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