Doctrine of waiver

Doctrine of waiver, as defined by Black’s Law Dictionary, is the intentional or voluntary relinquishment of a known right. Waiver is when a person intentionally and with full knowledge, gives away his right to exercise or chooses not to exercise that right which the person would otherwise possess. Waiving a right means that a person can no longer assert that right and is precluded from challenging the constitutionality of that law for the benefit of which, the right is waived.

This doctrine is based on the principle that a person is the best judge of his own interest and when given full knowledge, the person should be allowed to decide for himself. In India, a person can waive rights conferred by a statute or rights arising out of a contract, but cannot waive constitutional rights or rights guaranteed by the constitution itself.

The Fundamental Rights exist in the Constitution not merely for an individual’s benefit, but are a matter of public policy. Rights which are part of public policy cannot be waived. Additionally, the Constitution imposes an obligation on the state to protect these rights. The leading case till date on the Doctrine of Waiver is Basheshar Nath v. The Commissioner of Income Tax Delhi & Rajasthan & Another.

Evolution of the doctrine

Shortly after the commencement of the Constitution, Indian courts met with the question of the doctrine of waiver in Behram Khurshed Pesikaka v. The State of Bombay, 1954. Herein, it was observed that fundamental rights are based on higher principles embodied in the preamble of the Indian Constitution. Fundamental rights are a matter of public policy and the same cannot be waived. The doctrine of waiver has no application on law enacted as a matter of constitutional policy.

The leading case which settled the law with respect to the applicability of doctrine of waiver on fundamental rights is Basheshar Nath v. CIT wherein it was upheld that fundamental rights cannot be waived off. Fundamental rights, known as Magna Carta of Indian constitution, are borrowed from the United States of America which provides its citizens with an option to waive off some of their fundamental rights. Such waiver has evolved from judicial interpretation in the United States. A brief discussion on such variation in India and the United States was also done in this judgement and it was explained why the doctrine of waiver does not apply to the Indian Constitution, as Justice Bhagvati remarked  “…Ours is a nascent democracy and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution…”

Salient features-

Intention: It is an essential element that one must have intended such waiver. A right can be waived only when done expressly or impliedly. Express waiver is done by writing or giving a statement of waiver. Implied waiver is inferred from act or conduct of the person. There must be an intended act, by the person asserting his right, relied upon by another person, which will negate such assertion equitable anymore.

Knowledge: Knowledge here implies that the person waiving their right must know of the nature of right and consequences of such waiver. Knowledge includes the instrument of understanding. By knowledge, it is not meant that the party waiving should know the intricacies of the right. It is not required to have an absolute understanding of the exact scope of right but a virtual and general understanding.
Landmark judgements 

1.      Behram Khurshed Pesikaka v. The State of Bombay: In this case, it was held,

“We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy.”

2.      Basheshar Nath v. The Commissioner of Income-Tax, Delhi & Rajasthan & AnotherThis case is the leading authority till date. Herein, the Supreme Court held that a person cannot waive his fundamental rights. However, minority opinion, held by Justice S.K.Das, was that the determining factor of the waiver is not the source of right.

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