The Supreme Court of India’s doctrine of non-waiver denotes the expression of its status as guardian of Fundamental Rights.

Before beginning this article, i.e. “Is a waiver of Fundamental Rights allowed?” and knowing a lot of concerns pertaining to waiver of the rights, let’s perceive the meaning of the word “waiver”.

Waiver means ‘wilful surrender of one’s rights, privileges and benefits.’ In Black’s Law dictionary – ‘Waiver’ suggests that ‘voluntary relinquishment or abandonment (express or implied) of a right or advantage’.

Waiver occurs when a person deliberately and knowingly gives up his right to exercise or decides not to exercise a right that the person would otherwise have. Waiving a right means that a person can no longer claim the right and cannot challenge the constitutionality of the statute under which the right was waived.[1]

I. Is Waiver of Fundamental Rights Allowed?

Fundamental rights are totally on declarations created through the preamble of the Indian Constitution, which encompasses higher ideas of justice, liberty, and equality. No distinction between a private hobby and a public hobby is formed in essential rights. These essential rights exist as a part of public coverage, and also, the doctrine of the waiver will don’t have any relevance on rights running as of public coverage. However, the belief of waiver has relevance to waiving a variety of rights in America.

When we tend to state the waiver of the fundamental rights, the primary thing that the court undertakes, whereas fun the plea, is that if the party have information of the correct associate degree, an intention to waive it off. Conjointly if the rights are waived, one can’t be saved after.

II. Landmark Judgement

1. Behram v. State Of Maharashtra

In the case of Behram v. State Of Maharashtra[2], Vankatarama Aiyar during this case classified Fundamental rights into a pair of classes the other hand, what we already knew, i.e., one which is given to the voters and another which is given to non-citizens or NRIs, however here he gone on the far side these rights and given another class

  1. Rights conferring benefits to the individuals.
  2. Rights conferring benefits to the general public.

The Argument given by Vankatarama Aiyer is that "The Law would not be a nullity. However just unenforceable if it is offensive with a Fundamental right within the former class, and also, the affected individual may waive such unconstitutionality, in which case the law would apply to him. Also, a special reference was given to Art. 19(1)(f)."

But the ultimate call given during this judgement was unanimous, and conjointly the bulk of judges opposed this judgement and rejected it, within the end, the Court set that the Fundamental rights are for the people however, not for the advantages of the individuals actually, these are for the betterment of the society as a whole. Fundamental Rights are there as a matter of public policy[3]

2. Basheshar Nath v. IT Commissioner

In the case of Basheshar Nath v. It Commissioner[4]. The tax Investigation Commission mentions this case beneath sec. 5(1) of the Taxation of financial gain (Investigation Commission) Act. Now, during this case, many views were taken by the judges –

  1. Article 14 can’t be waived for its associate degree admonition to the State as a matter of public policy to ensure its object of equality. No one may, therefore, relieve the state of the solemn duty placed on it by the Constitution by any act or action.
  2. No FR’s are often waived … they’re mandatory… constitution makes no distinction between FR’s for individuals and people for the benefit of the people… the bulk are economically poor, educationally backwards and politically not nevertheless conscious.
  3. Minority took the read that Fundamental rights for the individual are often waived however, no those that are for the good thing about the final public.

Again the bulk call here is that Fundamental Rights cannot be waived.

3. Olga Tellis v. Municipal Corporation

The other case concerning the waiver of Fundamental Rights is Olga Tellis v. Municipal Corporation[5], in this case, it was a control that there is often no rule of evidence against the Constitution. The Preamble of the Constitution states India is a democratic republic, and no subject may trade in with fundamental rights.

III. Waiver And Estoppel

“Estoppel” is a judicial device used in common law legal systems that allows a court to prohibit a person from making assertions or going back on his or her word; the person being punished is “estopped”[6]. Estoppel may prevent a person from bringing a specific claim. Estoppel doctrines are founded on both common law and justice.

Waiver and estoppel are a part of the general regulation on the grounds of public policy. it’s far to be mentioned that the expression waiver or estoppel may be utilized in the vicinity of waiver and estoppel as it isn’t always so clean to differentiate waiver and estoppel with the aid of user behaviour, and each of those phrases is frequently used interchangeably. As to estoppel, it’s been stated that though it is able to purpose injustice if misapplied, if rightly implemented, it’s far based upon motive and justice and is a precept of top ethics in addition to regulation. It frequently allows proper justice to triumph, wherein not anything else recognised to jurisprudence can do.[7]

IV. Conclusion

Hence, here to conclude, the belief of waivement is of prime importance, and its non-application of constitutional rights may be a major check on the powers of the legislature. If the belief were to be applicable, it might build a personal waiver of his rights in the suit of some edges provided by the State. The belief can be made applicable within the Indian system through judicial interpretation. However, it is doubtful whether or not the belief may have constitutional backing.[8]

Looking at the brighter aspect of the belief in the waiver, it’s founded on justice and reason. it might be unfair and unjust to listen to those alleged inconsistent facts. Permitting someone to initially take good things about the statute to challenge its constitutionality is unreasonable. Moreover, it can be argued that ignorantia juris non-excusat and someone alleging that he didn’t know about the statute's unconstitutionality mustn’t be excused.

But it cannot much be expected from all and sundry to grasp the law, particularly once it’s applied retrospectively when a law is formed void retrospectively. It can be extremely unfair to deny the safety of the law to such a person. Also, the relevancy of the belief may build enforceable on certain persons who have waived their rights, the law that may well be unenforceable.

The Supreme Court of India’s doctrine of non-waiver denotes the expression of its status as guardian of Fundamental Rights.

Originally Published on: May 18, 2021


[1] Constitutional Law: Doctrine of Waiver, by Lex Life India, May 12 2020

[2] Behram v. State Of Maharashtra, AIR 1955 SC 123 : (1955) 1 SCR 123

[3] Indian Constitutional Law by M.P. Jain, Chapter-XX

[4] Basheshar Nath v. IT Commissioner, AIR 1959 SC 149: 1959 Supp (1) SCR 528

[5] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, at 192-193 : (1985) 3 SCC 545.

[6] Wikipedia, Search result, Estoppel

[7], Doctrine of Waiver, 6th August 2019

[8] Constitutional Law: Doctrine of Waiver, by Lex Life India, May 12 2020

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Updated On 22 Jan 2023 1:47 PM GMT
Koustubh C Dubey

Koustubh C Dubey

Koustubh is a Law Student at Symbiosis Law School, Nagpur.

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