The doctrine of waiver in India holds that fundamental rights conferred by the constitution cannot be waived by individuals. These rights are conferred not just for individual benefit but as a matter of public policy. In the landmark case of Bashesher Nath v. Income Tax Commissioner, the Supreme Court upheld this view and rejected the argument that an individual who agreed to pay taxes waived their right to challenge the constitutionality of the law. Similarly, in Olga Tellis v. Bombay Municipal Corporation, the court held that pavement dwellers could not waive their right to housing through a prior undertaking. Fundamental rights form the basic structure of the constitution and cannot be waived or estopped by individuals.
The doctrine of waiver in India holds that fundamental rights conferred by the constitution cannot be waived by individuals. These rights are conferred not just for individual benefit but as a matter of public policy. In the landmark case of Bashesher Nath v. Income Tax Commissioner, the Supreme Court upheld this view and rejected the argument that an individual who agreed to pay taxes waived their right to challenge the constitutionality of the law. Similarly, in Olga Tellis v. Bombay Municipal Corporation, the court held that pavement dwellers could not waive their right to housing through a prior undertaking. Fundamental rights form the basic structure of the constitution and cannot be waived or estopped by individuals.
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The doctrine of waiver in India holds that fundamental rights conferred by the constitution cannot be waived by individuals. These rights are conferred not just for individual benefit but as a matter of public policy. In the landmark case of Bashesher Nath v. Income Tax Commissioner, the Supreme Court upheld this view and rejected the argument that an individual who agreed to pay taxes waived their right to challenge the constitutionality of the law. Similarly, in Olga Tellis v. Bombay Municipal Corporation, the court held that pavement dwellers could not waive their right to housing through a prior undertaking. Fundamental rights form the basic structure of the constitution and cannot be waived or estopped by individuals.
The doctrine of waiver in India holds that fundamental rights conferred by the constitution cannot be waived by individuals. These rights are conferred not just for individual benefit but as a matter of public policy. In the landmark case of Bashesher Nath v. Income Tax Commissioner, the Supreme Court upheld this view and rejected the argument that an individual who agreed to pay taxes waived their right to challenge the constitutionality of the law. Similarly, in Olga Tellis v. Bombay Municipal Corporation, the court held that pavement dwellers could not waive their right to housing through a prior undertaking. Fundamental rights form the basic structure of the constitution and cannot be waived or estopped by individuals.
The doctorine of Waiver seems to be based on the premise that a
person is his best judge and that he has the liberty to waive the enjoyment of such rights as are conferred on him by the state.
There are some definitions of waiver given by various furists :-
I) Black -> Blacks Law Dictionary defines Waiver as the
voluntary relinquishment or abandonment (express or implied) of a legal right or advantage. It also says that the party alleged to have waived, a right must have had both knowledge of the existing right and the intension of forgoing it. II) William R. Anson -> The term Waiver is one of those words of indefinite concotion in which our legal literature abouds; like a clock, it covers a multitude of sins. III) Keeton -> Waiver is often asserted as the justiication for a decision when it is not appropriate to the circumstances. Venkatarama Aiyar, J., in Behram V. State of Maharashtra, divided the fundamental rights into two broad categories: a) Rights conferring benefits on the individuals, and b) Those rights conferring benefits on the general public. The learned judge opined that a law would not be a nullity but merely unenforceable if it was repugnant with a Fundament Right in the former category, and that the affected individual could waive such an unconstitutionality, in which case the law would apply to him. For eg:- the rights guaranteed under Article 19(1) (F) was for the benefit of property owners and when a law was found to infringe Article 19(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 majority on the bench, however, was not convinced with this argument and repudiated the doctrine of Waiver saying that the Fundamental Rights were not put in the constitution merely for individual benefit. These Rights were there as a matter of public policy and, therefore, the doctrine of waiver could have no application in case of Fundamental Rights. The question o Waiver arose in Bashesher Nath V. Income Tax Commissioner in which the petitioners case was referred to the Income-tax Investigation Commissioner under Section 5 (1) of the relevant Act. After the commission had decided upon the amount of concealed income, the petitioner on May 19,1954, agreed as a settlement to pay in monthly instalments of Rs 3 lacs by way of tax and penalty. In 1955, the Supreme Court in Muthiah V. I.T. Commissioner, held that Section 5 (1) of the Taxation of Income Act was ultra vires of Article 14. The petitioner then challenged the settlements between him and the Income Tax Commission, but the plea of waiver was raised against him as 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 fundamenta right guaranteed under Article 14. The Supreme Court however upheld his contention. The majority expressed the view that the doctrine of Waiver as formulated by some American Judges interpreting the American Constitution cannot be applied in interpreting 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. There rights 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 relieve 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 the court to protect their rights against themselves. The doctrine of non-waiver developed by the Supreme Court of India denotes manifestation of its role of protector of the Fundamental Rights. In the U.S.A., a Fundamental Right can be waived.
RELEVANT CASES
There are some cases discussed in the doctrine of waiver
I) Olga Tellis V. Bombay Municipal Corporation AIR 1986 SC 180
In this case, the pavement dwellers gave an undertaking that
they would not claim any Fundamental Right to put up huts on pavements or public roads and that 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 Art. 21. It was argued in the Supreme Court that they could not raise any such plea in view of their previous undertaking. The Court overruled the objection saying that Fundamental Rights could not be waived. There can be no estoppe 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.
II) Nar Singh Pal v. Union of India
AIR 2000 SC 1401
In this case, a casual labourer with the Telecom Department
had worked continuously for 10 years and thus acquired the temporary status. He was prosecuted for a criminal offence but was ultimately acquitted. In the meantime, his service was terminated. He questioned the order of termination but also accepted retrenchment benefit. The Supreme Court ruled that his service could not have been terminated without a departmental inquiry and without giving him a hearing. Acceptance of retrenchment benefit by him did not mean that he had surrended all his constitutional rights. Accordingly, the order of termination was quashed by the Supreme Court and he was reinstated in service.