Doctrine of Waiver

The Part III of the Indian Constitution provides the Citizens six Fundamental Rights, which are essential for a person to lead a dignified life and provide an individual with basic opportunities to better his life through these rights. The six rights are:-

  1. Right to Equality (Article 14 to 18)
  2. Right to Freedom (Article 19 to 22)
  3. Right against Exploitation (Articles 23 and 24)
  4. Right to Freedom of Religion (Article 25 to 28)
  5. Cultural and Educational Rights (Articles 29 and 30)
  6. Right to Constitutional Remedies (Article 32)

The Doctrine of Waiver or the Waiver of Rights is a concept that is founded on the idea that a person is his own best judge and that he has the freedom to renounce the enjoyment of rights conferred on him by the state. However, the individual must be aware of his or her rights, and the waiver must be voluntary. The obligation falls on the State to make sure that the Fundamental Rights of a person are not infringed and give maximum protection to these rights. The term “waive” means “to give away” or “surrender”. In the Indian Constitution, there is no such Doctrine because these fundamental rights are a part of the Nation’s public policy, and the state is obligated to protect these rights at all costs.

In the case of Behram v. State of Bombay, 1955, it was held that the Doctrine of Waiver does not apply to the legislation entrenched in Part III of the Indian Constitution. It is not permissible for an accused person to renounce or relinquish his constitutional rights to be found guilty. It was pointed out that basic rights are founded on ideals enshrined in the Indian Constitution’s preamble. Fundamental rights are an issue of national policy that cannot be abrogated. Thus this doctrine does not apply to problems involving constitutional policy.

In another monumental case of Basheshar Nath v. Income Tax Commissioner, the Appellant had agreed to pay 3 lakh rupees per month to the Income Tax Department for taxes payable under the Income Tax Act. That Act, however, was eventually found to be unlawful. As a result, he filed a lawsuit against the agreement. The Income Tax Department claimed that by agreeing to a settlement, he had renounced his right to appeal. The Supreme Court ruled that the Indian Constitution does not adopt the Waiver Doctrine. No one can absolve the government of its responsibility. The Court further stated that our democracy is a budding democracy, and given our social, economic, educational, and political circumstances, it is the Supreme Court’s solemn obligation to protect the basic rights enshrined for the first time in Part III of our Constitution.

In the case of Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors, the Court ruled that anybody has the right to waive a legal right or privilege that has been bestowed on him. In the event of a tenant-owner dispute, for example, if a notice is provided and no representation is made by the owner, tenant, or sub-tenant, it is a waiver of opportunity, and that party cannot be permitted to change their mind afterward.

Conclusion:-

The ideology behind the doctrine is based on fairness and logic. Hearing who cites inconsistencies in facts would be unreasonable and unfair. It is irrational to allow someone to gain from the legislation before challenging its constitutionality. A person who claims he was unaware of the statute’s unconstitutionality should not be forgiven. As a result, it can be determined that the theory of waiver is very important, and its specific qualities ensure that no legal error occurs. Its application is justified, and the precedent-setting decisions rendered assure that there are no competing viewpoints.

References-

  1. https://www.legalserviceindia.com/legal/article-6775-doctrine-of-waiver.html#:~:text=The%20doctrine%20of%20Waiver%20of,the%20waiver%20should%20be%20voluntary.
  2. https://indiankanoon.org/doc/68666/#:~:text=The%20respondent%2C%20the%20State%20of,of%20the%20Bombay%20Prohibition%20Act.
  3. https://indiankanoon.org/doc/761967/ 
  4. https://indiankanoon.org/doc/837893/ 

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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