The Prospective Nature Of Fundamental Rights
Fundamental rights are provided under the part 3 of the Indian constitution
.These rights can be simply defined as basic, natural and inalienable rights.
These rights to be so declared as fundamental and very essential was for the
reason that , human liberty, social life and personality be developed as well as
to allow the development of basic values being cherished by the people of India
since the ancient times , a calculated move ,meant to protect the dignity of the
individual and create a favourable environment for human development.
There was a great deal saved by the declaration of the fundamental rights ,
where especially it became clear that the main aim saved was to protect
individuals from state intervention into some of the basic inalienable rights of
human beings that are inherited by the virtue of being a human being and a basic
fundamentals in determining the basic life of a human being.
That's to remove the natural rights from political controversies , most of them
have been adopted by the part three of the Indian constitution and been declared
to be fundamental. Being in such a manner , fundamental rights are prospective
in operation, meaning to say that , as they were enacted by the constitutional
enactment in 26th January 1950, they wee made available to the people prior to
the commencement of the constitution.
Fundamental Rights, Being Prospective In OperationThe basic idea here follows that , the fundamental rights having came into
effect with the commencement of the Indian constitution , the prospective
operation system states that acts or any other transactions completed before the
commencement of the constitution with the fundamental rights , cannot be invoked
and the validity of the same cannot be assessed using the fundamental rights as
a touchstone but rather uses the laws which were in force at that time of the
commission of those acts or in the processing of such a transaction.
Article 13 clause one of the Indian constitution, even states in demonstrating
the prospective nature in operation of the fundamental rights that:
"all laws in force in the territory of India immediately before the commencement
of the constitution shall to the extent of such inconsistency void. That's an
analysis to the laws in force prior to the commencement of the constitution will
be made , an effort to remove anything that goes against fundamental rights.
This becomes, crystal clear that fundamental rights are prospective in operation
not retrospective. The Supreme Court of India in the case of Keshavan Madhava
Menon V. State of Bombay even held that the article 13 clause 1 could not
apply to the cases committed before the commencement of the constitution.
The Prospective Nature Of Fundamental Rights And Void Ab Initio DoctrineThe provisions under clause one of article 13 of the Indian constitution did not
specifically make the laws enforce during the commencement of the constitution
,void ab initio but created a scenario where anything inconsistent with the
fundamental rights cannot be claimed after the commencement of the constitution
and thus, the laws could remain with force until anything that draws the
attention to the dispute between fundamental rights and the laws enforce before
the commencement of the constitution evolves.
It that's follows the idea that the present law cannot follow an
unconstitutional procedure laid down by the laws in force before the
commencement of the constitution , the constitutional procedure in matters of
fundamental rights always prevails.
It is therefore of no doubt to argue that , fundamental rights are prospective
in their operation as they do not seek to attach to themselves anything that was
before the commencement of the Indian constitution ,and their boundaries begins
with the commencement of the constitution.
Written By: Evans Ncube, second year Ba LLB, Lovely professional
Law Article in India
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