This article is written by Roma Bennur, 3rd year BA LL,St. Joseph’s College of Law, Bangalore during her internship at Le Droit India.
Keywords : Constitution, Doctrine of Waiver , Fundamental rights, Individual rights, Intention, Knowledge.
Abstract:
This paper looks at the Doctrine of Waiver, it’s definition and its historical growth over the period of time. It looks at the landmark judgment’s which have made some relevant points while looking at the doctrine. Some of the salient features of the doctrine has been laid down.
A right is frequently described as an interest or a claim that gives the holder the ability to control how others behave, i.e., to force them to perform or refrain from performing an action. It is critical to consider how frequently these rights are waived.
A person has specific legal rights that are granted to him by the constitution, a law, or a contract. A right is an interest or a claim that gives the holder the ability to direct the behaviour of others, i.e., to compel someone to do or refrain from doing something. Whether these rights can be waived raises an important question.
According to Black’s Law Dictionary, doctrine of waiver is the deliberate or willing renunciation of a recognized right. Waiver occurs when a person knowingly and consciously chooses not to exercise a right that they would otherwise have or knowingly gives that right away. When a person waives a right, they are no longer able to exercise it and are not permitted to question the legality of the law for which it was waived.
This philosophy is based on the idea that when given all the information, a person should be given the freedom to make their own decisions because they are the best judges of their own interests.[1]
In India, a person may waive legal rights granted by statute or contractual rights, but they may not renounce legal rights protected by the constitution.
Fundamental Rights are those that are essential to a person’s happiness. The Indian Constitution’s Part 3 contains provisions for the Fundamental Rights.
Which are:
Rights to Freedom (Articles 19 and 22), to Equality (Articles 14 and 18), and to Freedom from Exploitation (Article 23 & 24)
Right to Religious Freedom (Article 25 & 28)
Educational and Cultural Rights (Article 29 & 30)
Access to Constitutional Redress (Article 32)
The Constitution’s Fundamental Rights are not just for each individual’s benefit; they also serve as a matter of national policy. No waiver of rights that are protected by public policy is permitted. In addition, the Constitution requires the state to defend these rights.
Case Law:
Behram Khurshed The State of Bombay v. Pesikaka, 1954:
It was noted that the preamble of the Indian Constitution’s preamble contains many of the principles upon which the fundamental rights are based. Public policy dictates that fundamental rights cannot be relinquished. The theory of waiver does not apply to issues involving constitutional policy.
Basheshar Nath v. The Commissioner of Income-Tax, Delhi & Rajasthan & Another, 1959:
The primary case on the doctrine of waiver to date is Basheshar Nath v. CIT, in which the majority opposed waiving basic rights. It was established that citizens may not opt out of any fundamental rights. Any person who felt wronged by the results of the use of any discriminatory power could voice their displeasure. According to Justice Bhagwati, the Indian Constitution is exempt from the waiver theory. Our democracy is still in its infancy, and given the social, economic, educational, and political circumstances in which we find ourselves, the Supreme Court has a sacred duty to protect the fundamental rights that have been for the first time established in Part III of our Constitution.
Jaswantpura Mathura Singh & anr v. Ahmedabad Municipal corporation, 1991:
The court ruled that everyone has the right to renounce any privileges or rights that have been granted to them. In the case of a tenant-owner dispute, for example, if a notice is issued and no representation is made by the owner, tenant, or sub-tenant, it would be considered a waiver of opportunity, and that party cannot later change their mind.[2]
Salient Features of the Doctrine:
- Intention: It is a crucial component because the Waiver must be intended. A right may be expressly waived or impliedly waived. Express waivers are expressed verbally or in writing. Based on a person’s actions or conduct, implied waiver is assessed.[3]
- Knowledge : The term “knowledge” in this context means that the individual relinquishing rights must be aware of the nature of such rights and the effects of their waiver. It is sufficient to be informed of the right or privilege without having a complete grasp of it.
Relevance : The notion of waiver is crucial, and the fact that it does not apply to constitutional rights is a significant restraint on legislative power. If the doctrine applied, it might require someone to give up their rights in exchange for certain government advantages.
The ideology is based on fairness and logic. Hearing anyone claims contradicting facts would be unfair and unjust. It is illogical to permit someone to first use the statute’s benefits before questioning its constitutionality. A person who claims ignorance of the law’s unconstitutionality shall not be excused, according to the principle ignorantia juris non excusat.
Thus, it may be inferred that the theory of waiver is highly significant, and its distinctive features ensure that no legal error occurs. Its justifiable applicability and the historic rulings assure that there are no divergent opinions on it.
Conclusion:
The notion of waiver is crucial, and the fact that it does not apply to constitutional rights is a significant restraint on legislative power. If the doctrine applied, it might require someone to give up their rights in exchange for certain government advantages. Through judicial interpretation, the doctrine might be made applicable in the Indian legal system. However, it’s unclear if the idea would be supported by the constitution.
Fundamental freedoms cannot be waived by an individual since they are protected by the constitution and public policy. This is appropriate because if rights granted for the good of the community are waived off with the knowledge and intent of one person, confusion, chaos, and potential for personal gain result. Therefore, the doctrine of waiver limits a person’s ability to use discretion.
[1] Lexlife India, https://lexlife.in/2020/05/12/constitutional-law-doctrine-of-waiver/, ( last visited July. 7, 2022).
[2] Ashansa, Doctrine of Waiver , Legal Services India, ( July. 7, 2022, 7:25 PM), https://www.legalserviceindia.com/legal/article-6775-doctrine-of-waiver.html.
[3] Lexlife India, https://lexlife.in/2020/05/12/constitutional-law-doctrine-of-waiver/, ( last visited July. 7, 2022).
