Can Fundamental Rights be waived? – Burning Issues – Free PDF Download


Can Fundamental Rights be waived?

Doctrine of Waiver

  • Doctrine of waiver, as defined by Black’s Law Dictionary, is the intentional or voluntary relinquishment of a known right.
  • Waiver is when a person intentionally and with full knowledge, gives away his right to exercise or chooses not to exercise that right which the person would otherwise possess.
  • Waiving a right means that a person can no longer assert that right and is precluded from challenging the constitutionality of that law for the benefit of which, the right is waived.
  • An individual possesses certain legal rights which are conferred upon him either by the constitution, statute or a contract.
  • A Right can be defined as an interest or a claim which gives the individual the power to control the act of others, i.e., to make someone do or abstain from doing an act.
  • An important question arises as to whether these rights can be waived.

What is Doctrine of waiver

  • Doctrine is based on the principle that a person is the best judge of his own interest and when given full knowledge, the person should be allowed to decide for himself.
  • In India, a person can waive rights conferred by a statute or rights arising out of a contract, but cannot waive constitutional rights or rights guaranteed by the constitution itself.
  • The Fundamental Rights exist in the Constitution not merely for an individual’s benefit, but are a matter of public policy.
  • Rights which are part of public policy cannot be waived. Additionally, the Constitution imposes an obligation on the state to protect these rights.
  • Basheshar Nath v. The Commissioner of Income Tax Delhi & Rajasthan & Another
  • held that Fundamental Rights cannot be waived. In the above case there were different opinions there were four different judgments wherein Sudhiranjan Das, C.J. had written for J.L. Kapur, J. and himself and Bhagwati, S.K. Das and K. Subba Rao, JJ. had given separate judgments. It is interesting to note that although the Constitution of India has borrowed the concept of Fundamental Rights from the United States of America, where the Fundamental Rights can be waived.

Evolution of the doctrine

  • Shortly after the commencement of the Constitution, Indian courts met with the question of the doctrine of waiver in
  • Behram Khurshed Pesikaka v. The State of Bombay, 1954.
  • It was observed that fundamental rights are based on higher principles embodied in the preamble of the Indian Constitution.
  • In Basheshar Nath v. CIT wherein it was upheld that fundamental rights cannot be waived off.
  • Fundamental rights, known as Magna Carta of Indian constitution, are borrowed from the United States of America which provides its citizens with an option to waive off some of their fundamental rights.
  • Such waiver has evolved from judicial interpretation in the United States.
  • A brief discussion on such variation in India and the United States was also done in this judgement and it was explained why the doctrine of waiver does not apply to the Indian Constitution, as Justice Bhagvati remarked  “…Ours is a nascent democracy and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution…”

Salient feature

  • Intention: essential element that one must have intended such waiver.
  • A right can be waived only when done expressly or impliedly.
  • Express waiver is done by writing or giving a statement of waiver.
  • Implied waiver is inferred from act or conduct of the person.
  • There must be an intended act, by the person asserting his right, relied upon by another person, which will negate such assertion equitable anymore.
  • Knowledge: implies that the person waiving their right must know of the nature of right and consequences of such waiver.
  • instrument of understanding.
  • It is not required to have an absolute understanding of the exact scope of right but a virtual and general understanding.

Landmark judgement

  • Behram Khurshed Pesikaka v. The State of Bombay: In this case, it was held,
  • “We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity
  1. Olga Tellis v Bombay Municipal Corporation: In this case, it was further held that there can be no estoppel against the Constitution.
  • The Preamble of the Constitution states India to be a democratic republic and no citizen could barter away with fundamental rights.

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