The Doctrine of Waiwer

Waiver proceeds on the basis that a man not under legal liability is the best judge of his own interest and if with knowledge of a right or privilege conferred on him by the statute, contract or otherwise for his benefit, he intentionally gives up the right or privilege, or chooses not to exercise the right or privilege, and that the right or privilege is conferred principally for the interest of himself not the interest of general public

Waiwer of fundamental rights under Indian constitution

Can a citizen waive his fundamental right given to him by the constitution? This was a major question which was dealt in many cases till now. Generally the question came up for the first time in the case of Behram v state of Maharashtra [1] in which justice Venkatrama Aiyar told that the rights are to be divided in to two broad categories, firstly Rights conferring benefits on the individuals and secondly rights conferring benefits on the general public. He was of the opinion that a law would not be a nullity but merely unenforceable if it was repugnant with a fundamental right in the formal category, and that effected individual could waive such an unconstitutionality, in which case the law would apply to him.for example the right guaranteed under article 19(1)(f) was for the benefit of the property owners and when a law was found to infringe article(1)(f). it was open to any person whose right had been infringed to waive his fundamental rights. In case of such a waiver, the law in question could be enforced against the individual concerned.

The above stated was however a minority opinion and the majority opinion in this case was that the fundamental rights were not kept in the constitution merely for individual benefits. These rights were put up as a matter of public policy and therefore doctrine of waiver cannot be applied in the case of fundamental rights. A citizen cannot invite discrimination by telling the state ‘you can discriminate’ or get convicted by waiving the protection given to him under article 20 and 21.

A more detail discussion of doctrine of waive in the case of fundamental rights was done in the case of Bashesharnath v. I.T commissioner [2] , a case in which a reference against the petitioner was made to the income tax investigation commission under section 5(1) of the Taxation of income(investigation commission) act. After the commission had decided upon the amount to be treated as concealed income, the petitioner agreed for a settlement and agreed to pay rupees three lacks as tax and penalty in monthly installments. In 1955 the Supreme Court declared section 5(1) of the act ultravires article 14 of the constitution. The petitioner now filed an appeal before the Supreme Court and the investigation commission challenging the settlement. The respondents pleaded that he while agreeing for the settlement had waived his fundamental rights. The Supreme Court on a majority basis held that the settlement was invalid and gave several views in support to this argument and the views laid down by the learned judges were

Article 14 cannot be waived for it is an admonition to the sate as a matter of public policy with a view to implement its object of ensuring equality. No person can therefore, by an act or conduct relieve the state of the solemn obligation imposed on it by the constitution.

A view, somewhat broader than the first was that none of the fundamental rights can be waived by a person. The fundamental rights are mandatory on the state and no citizen can by his act or conduct relieve the state of the solemn obligation imposed on it.

The constitution makes no distinction between the fundamental rights enacted for the benefit of an individual and those who enacted in public interest or on grounds of public policy.

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 the judiciary to protect their rights against themselves.

But this case also consisted of a minority opinion as in the previous case i.e. Behram’s case , that an individual could waive a fundamental right which is for his own benefits but he cannot waive a fundamental right which is for a public benefit. This was almost the repetition of the opinion in Behram’s case.

So the majority opinion regarding the matter in the Bashesharnath case was taken as a precedent in the upcoming cases.

The Bombay high court, in the decision of Yousuf Ali Abdulla Fazalbhai v. M S kashekar [3] , held that the state cannot arrogate to itself a right to commit breach of the fundamental rights of any person by reasoning to principles of waiver or estoppels or other similar principles.

Another important supreme court decision in this matter is Olga Tellis v Bombay municipal corporation [4] , a case in which in a writ proceeding in the high court, the pavement dwellers gave an undertaking that they would not claim any fundamental right to put up huts on pavements or public roads and they would not obstruct the demolition of the huts after a certain date. Later when the huts were sought to be demolished after the specified date, the pavement dwellers put up the plea that they were protected by article 21. The government contended that they could not raise any such plea in view of their previous undertaking. The Supreme Court overruled the objection of the government saying that fundamental rights could not be waived. There can be no estoppels against the constitution which is the paramount law of the land. The constitution has conferred fundamental rights not only to benefit individuals but to secure the larger interests of the community. The court observed that “no individual can barter away the freedom conferred on him by the constitution”.

An advance opinion was given by the apex court in a recent decision namely Nar Singh Pal v. Union of India [5] . The court held that “fundamental rights cannot be bartered away. They cannot be compromised nor there do any estoppel against the exercise of fundamental right available under the constitution”. In this case a telecom labourer(casual) had worked continuously for 10 years and had thus acquired the temporary status. He was prosecuted for a criminal offence but was ultimately acquitted. In the mean time he was terminated from service. He questioned the order of termination but accepted retrenchment benefit. The supreme court told that his service could not be terminated without a departmental enquiry and without giving him a hearing. Acceptance of retrenchment benefits by him did not mean that he had surrendered all his constitutional rights. Accordingly the order of termination was quashed by the supreme court and he was reinstated in service.

Waiver and Estoppel

Waiver and estoppel are part of the genral law on grounds of public policy. it is to be noted that the expression waiver or estoppel can be used in place of waiver and estoppel because it is not so easy to distinguish waiver by conduct and estoppel by conduct and both these terms are often used interchangeably. As to estoppel it has been said that though it may cause injustice if misapplied, if rightly applied it is founded upon reason and justice and is a principle of good moral as well as of law and it often enables right and justice to triumph where nothing else known to jurisprudence can do.

Waiver in United States (U S) constitution and Indian constitution: A comparison

Though Indian and United States (U S) constitutions are made for the same purpose , we have to see that there are much differences between the matters placed inside them. Our topic is waiver it may be of surprise to hear that waiver of fundamental rights is permitted in America, and the reason for this is that in America just opposite to India much of the fundamental rights embodied in the constitution are created for individual benefits rather than public benefits. This is because according to experts, U S constitution was made with the aim of mere ruling only and it is not so vast as Indian constitution. This was the view of Indians in the case of U S constitution. Now experts from U S criticize the Indian concept. We could see that in a famous case law Daniels v Tearney [6] the judges criticizes the Indian concept. They have the view that since the materials of the constitution are almost the same and since U S constitutions allows the rights which includes public policy to be waived why don’t the Indian constitution allows that? They also tells Indian democracy is a nascent one in nature and it becomes ill if it begins by allowing bad faith and disgracing the pledged word given after full knowledge, and if it upholds claims which involve a mockery in judicial administration and a violation of the plainest principle of reason and justice. .

It is interesting to see that in the most celebrated case law Bashesharnath v IT commissioner the minority opinion given by justice S K Das supported the U S concept on the subject. Before going in to justice S K Das’s opinion we should go in to the majority opinion which was rendered by justice Bhaghavathi on behalf of chief justice Das and justice Kapoor the opinion was that “the preambles to the U S and Indian constitutions shows that the constitutions were created for entirely different purposes and for securing very different objectives and goals. Besides that the U S constitution was a bare outline of government and nothing more, where as ours is a detailed constitution in which the rights and the restrictions to which they were subject were mentioned in the constitution itself. To allow the doctrine of waiver would be to import limitations in to our constitution for which there is no justification at all”

Now lets see what justice SK Das told, he told that there were no much differences between the Indian and the U S constitutions and so doctrine of waiver would be made applicable to the former, not later. The correct test apply to each fundamental was to inquire whether it conferred a right on a person primarily for his benefit. If it did so the rights could be waived

Justice S K Das’s view was considered to be correct but the majority in this case told that it needs to be examined more closely and then a verdict is to be given and justice Bhaghavathi told that the reasons justice S K das told to support his arguments were more imaginary than real.

So in Indian constitution waiver does not apply in the case of fundamental rights where as in the U S constitution it does apply in the case of fundamental rights because as mentioned above most of the rights in the U S constitution are created for individual benefit rather than public benefit.