Doctrine of Waiver with Cases
Prepared by Assist. Professor Rekha Khandelwal
Constitution of India Part – III Article 13
Doctrine of Waiver
According to Black’s law dictionary, “waiver’ means the voluntary relinquishment or abandonment (express or implied) of a legal right or advantage”.
According to the Doctrine of Waiver- A person intentionally gives up his right or privilege and chooses not to exercise his right or privilege. Which are conferred on him by the state. It is the intentional or voluntary relinquishment of a known right.
Question – Can a Citizen waive his fundamental right?
The doctrine of waiver has no application to the provision of law enshrined in Part III of India Constitution.
Case Laws relating to the Doctrine of Waiver
Behram Khurshed Pesikaka v. The State of Bombay, AIR 1955 SC 149It was held that
The right described as a fundamental rights are necessary consequence of the Declaration that the people of India are committed for building a sovereign, democratic, republic of India and protecting all its citizen’s social, economic and political justice, freedom of thought, expression, belief, faith and worship and equality of status and opportunity. These fundamental rights are not only enshrined in the Constitution for personal benefits, although they ultimately come into play with individual rights in mind. They have been placed there as an issue of public policy and the principle of amnesty cannot be an application to the provisions of law that have been framed as an issue of constitutional policy.”
Basheshar Nath v. Income-Tax Commissioner,AIR 1959 SC 149
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.In the case The petitioner whose case was referred to the Income-tax Investigation Commissioner under Section 5(1) of the Act was found to have concealed large amont of Income He , thereupon, agreed at a settlement in 1954 to pay Rs. 3 lakhs in monthly instalments by way of arrears of tax and penalty.
In Muthiah M.Ct. v. Commissioner of Income tax, AIR 1956 SC 269
In 1955 the SC held that Section 5(1) of the Taxation of Income ( Investigation Commission) Act was ultra vires of Article 14. The petitioner then challanged the settlement between him and the Income Tax Investigation Commission. The respondent contended that even if section 5(1) was invalid, the petitioner by entering into an agreement to pay the tax had waived his fundamental right guaranteed under Article 14.
In this case, it was further held that there can be no estoppel against the Constitution. The Preamble of the Constitution states India is a democratic republic and no citizen can waive his fundamental rights.
“The majority expressed the view that doctrine of waiver is formulated by some American judges interpreting the American constitution cannot be applied in integrating the Indian constitution. The Court held that, it is not open to a citizen to waive any of the fundamental rights conferred by part III of the Constitution. These rights have been put in the Constitution not merely for the benefit of the individual but as a matter of public policy for the benefit of the general public. It is an obligation imposed upon the State by the constitution. No person can believe the State of this obligation, because a large majority of our people are economically poor, educationally backward and politically not yet conscious of their rights. In such circumstances, it is the duty of this Court to protect their rights against themselves.”
 Behram Khurshed Pesikaka v. The State of Bombay, AIR 1955 SC 149
 Basheshar Nath v. Income-Tax Commissioner,AIR 1959 SC 149
 Muthiah M.Ct. v. Commissioner of Income tax, AIR 1956 SC 269
 Olga Tellis v Bombay Municipal Corporation, AIR 1986 SC 180
 Dr. Jai Narayann Pandey,” Constitution of India”CLA
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