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ETHICS AND GOVERNANCE (MODULE 5)

ASSIGNMENT
ON
DOCTRINE OF WAIVER

SUBMITTED BY

YOGENDRA KUMAR MISHRA


ROLL NO B-84

The Doctrine of Waiver


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

Waiver 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 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 , 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. Behrams 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 Behrams 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, 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, 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 . 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 ,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 dont 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
Dass 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 Dass 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.