http://www.legalservicesindia.com/article/203/Waiver-Of-Fundamental-Rights.

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https://lexlife.in/2020/05/12/constitutional-law-doctrine-of-waiver/

https://byjus.com/free-ias-prep/doctrine-of-eclipse/

https://www.jurist.org/commentary/2020/04/sharma-behl-indian-constitution-article-13/

https://www.jstor.org/stable/43952120?seq=1#metadata_info_tab_contents

https://www.jstor.org/stable/42742760?seq=1#metadata_info_tab_contents

Doctrine of Waiver

An individual possesses certain legal rights which are conferred upon him either by the
constitution, statute or a contract. A Right can be defined as an interest or a claim which
gives the individual the power to control the act of others, i.e., to make someone do or
abstain from doing an act. An important question arises as to whether these rights can
be waived. 

At this juncture, it becomes essential to first understand the 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 &

Another: This 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.

3.      Olga Tellis v Bombay Municipal Corporation: In this case, it was further held
that there can be no estoppel against the Constitution. The Preamble of the Constitution
states India to be a democratic republic and no citizen could barter away with
fundamental rights. 

Critical analysis

Having discussed the meaning of doctrine of waiver, some might get confused between
doctrine of waiver and that of estoppel. The effect of waiver and estoppel is more or less
the same, i.e., both prevent a person from challenging the constitutionality of a statute.
But there is a considerable difference between the two. Waiver means to give away the
right whereas estoppel is an impediment on a person, preventing him from making
inconsistent facts. The basis of estoppel is that a person cannot rely upon a statute and
at the same time challenge it. Estoppel is not a cause of action but a rule of evidence,
meaning hereby, an alleged matter of fact. Waiver can be construed as contractual, as
the party has agreed not to assert his right for some benefit. 

Article 13 of Indian Constitution states that laws in force prior to commencement of the
Constitution shall be void to the extent inconsistent with part III of Constitution and laws
made by State inconsistent with part III, after such commencement, shall be to that
extent void. It directs the State to not to make any law which is a contravention of part III
of the constitution. However, an amendment made under Article 368 of the constitution
is not subject to Article 13.

Article 14, which is “The State shall not deny to any person equality before the law or
the equal protection of the laws”, is a reflection of English doctrine of rule of law and
equal protection guaranteed under the American constitution. It is based on sound
public policy appreciated in a civilised society. The words of the article are directed
towards the State instead of an individual. It obliges and imposes a burden on the state.
The State cannot do away with this responsibility by saying that the individual wanted
so. It cannot violate its constitutional mandate solely by arguing that it was asked by the
individual.
Fundamental rights are based on declarations made by the preamble of the Indian
Constitution, which encompasses higher principles of justice, liberty, equality. No
distinction of individual interest and public interest is made in fundamental rights. These
fundamental rights exist as a part of public policy and doctrine of waiver can have no
applicability on rights operating as a matter of public policy.  But doctrine of waiver is
applicable to waive some of the rights in America.

This brings us to note reasons as to why there is such a difference between applicability
on doctrine of waiver in India and America.  The American constitution is aimed at
striking a proper balance between personal liberty and social control. It was enacted in
order to form a more perfect union, establish justice, ensure domestic tranquillity,
provide for common defence, promote the general welfare and secure the blessings of
liberty. However, the Indian Constitution was enacted to secure to all citizens, justice,
liberty, equality and fraternity.

At the early stage, it was understood that the American constitution is not self-
executing. The provisions were wide and general. It required subsequent legislation and
judicial interpretation to bring its provision into effect. Independence was given to the
judiciary to evolve the content of the right as well as its limitations. On the other hand,
the Indian constitution is more detailed than that of America. It consists of limitations
imposed on rights. It would be inappropriate to include doctrines, by judicial
interpretation, on which the constitution is silent. 

In Basheshar Nath v. CIT, Justice S.K.Das made an important point that a source of
right, contractual or statutory or constitutional, should not be the basis for allowing
waiver. Rather the test should be for whose benefit the right is conferred – the benefit of
the general public or of the individual. He contended that the right which is for individual
benefit can be waived. However, some rights are written in the Constitution and are
regarded as fundamental. This places them at a higher pedestal and subsequently, they
cannot be treated alike with other rights. Thus, the source is very much relevant. 

Conclusion

The doctrine of waiver is of prime importance and its non-application on constitutional

rights is a major check on powers of legislature. If the doctrine were to be applicable, it
could make an individual waive his rights in lieu of some benefits provided by the State.
The doctrine could be made applicable in the Indian legal system through judicial
interpretation. But it is in doubt whether the doctrine could have constitutional backing. 

Looking at the brighter side of the doctrine of waiver, it is founded on justice and reason.
It would be unfair and unjust to hear who alleges inconsistent facts. Allowing a person to
first take benefit of the statute and then challenge its constitutionality is unreasonable.
Moreover, it can be argued that ignorantia juris non excusat and a person alleging that
he did not know about the unconstitutionality of the statute should not be excused.

But it cannot practically be expected from every person to know the law especially when
it is applied retrospectively, when a law is made void retrospectively. It could be highly
unfair to deny security of law to such a person. Also, the applicability of the doctrine
could make enforceable, on certain persons who have waived their rights, the law which
could otherwise be unenforceable.

Introduction To Article 13(3)

article 13(3) talks about the meaning of law i.e the laws whether by laws, notifications,
rules, regulations, customs, usage, etc if do effect the legal rights of the citizens do
come under the definition of law, thus would be considered as laws under article 13 but
there are two exceptions to the same, firstly the administrative and the executive orders
are being covered under article 13 but if their nature is just to give instructions or
guidelines then they would not be covered under article 13. Second exception is the
personal laws which are not being covered under article 13.

Introduction To Article 13(4)

This clause of article 13 do says that any of the amendment made in article 368 of the
Indian constitution would not be challenged under article 13 moreover if the amendment
so made would be against the fundamental rights then also it would not be challenged
under article 13.

Article 13 (4) gave birth to a landmark doctrine to our constitution moreover it prohibits
the parliament to make laws or amendments which are inconsistent to the fundamental
rights.
The doctrine being mentioned above is the Basic Structure Doctrine.

While discussing about this doctrine two most important articles do comes into the
picture, one is article 13, which acts as the protector of the fundamental rights and
another one is article 368, which holds the power to amend the constitution. The
doctrine is merely a big tussle of power between the judiciary and the parliament of
India i.e as the power of amending the laws exercised under article 368 do gives the
power to the parliament to amend the constitution, fundamental rights and the preamble
too? or the Indian judiciary is supreme which do acts as the protector of law.
Shankari prasad case (Shankari prasad v. Union of India, air 1951) here in the case a
question arose that as per article 13, if parliament do makes any law which is
inconsistent to fundamental rights would be considered invalid but if any amendment
done by parliament under article 368 would be considered as valid or not? So, while
answering this question it was held that in article 14 only the ordinary laws are being
talked about but not the constitutional amendments .

Another case came into picture which was I.C Golaknath case (Golaknath v. State of
Punjab, air 1967 in this case the court over-rulled it's judgement given in Shankari
prasad case by saying that article 13 do includes the ordinary laws and the
constitutional amendments too which means parliament cannot make any law or make
any constitutional amendments which is inconsistent to fundamental rights.

In order to nulify this judgement parliament passed 24th amendment, 1971 by saying
that any amendment made under article 368 would not be considered as law and hence
article 13(4) is different from the word law used in article 13(3) then again this 24th
amendment was challenged in the case of Kesavananda Bharti case (Kesavananda
bharti v. state of Kerala, air 1973) in the following case the apex court was of the view
that 24th amendment is valid and the judgement give in Golaknath case is also valid
but a basic structure of the constitution do exist which cannot be amended hence the
parliament cannot even touch them i.e the Supreme court introduced a basic structure
doctrine.

After the introduction of the basic structure of the constitution, the parliament introduced
42nd amendment, 1975 which is also called as the mini constitution or
the constitution of Indra (Indra Gandhi), it gave the power to the parliament to amend
any law in the constitution including the basic structure of the constitution, but this was
again over-rulled in Minerva Mills case (Minerva Mills v. Union of India, air 1980), in
this case the court was of the view that judicial review is the basic feature of the
constitution hence cannot be amended therefore any amendment made by parliament
will go through the process of judicial review.

Basic Structure Doctrine-