The term ‘waiver’ means an act of surrendering any right or claim. The Doctrine of Waiver is defined under Black’s Law Dictionary as the intentional or voluntary relinquishment of a known right. The Constitution of India gives every individual some rights to perform or abstain from doing any act. This Doctrine allows the individual to voluntarily and with full knowledge, refrain from using such rights and surrender them.
There are two main features of this doctrine:
- Intention
- Knowledge
a. Intention: It is very important that the individual waiving his/her right is intending to do so. It is immaterial whether such an intention is express or implied. Basically, he/she can give in writing specifying his intention to waive a right or he/she can conduct themselves in a way which reflects that they want to waive their right.
b. Knowledge: Another requirement of this Doctrine is that the individual must possess knowledge of the nature of the right in question and the consequences of waiver of such a right. General information about the right is sufficient and technicalities are not needed to be known.
The Doctrine of Waiver gets its essence from the Principle of Estoppel. Principle of Estoppel prevents a person from making inconsistent facts in the court. If a person represents himself to be someone else and acts accordingly, then he cannot deny the truth in a subsequent court proceeding. The effect of Estoppel and Waiver is similar; both prevent a person from challenging the constitutionality of a statute. The Supreme Court believed in the case of Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association[1] that there will be no waiver where there is no estoppel in the first place. The Doctrine of Waiver is based on the premise that an individual is the best judge of himself, and therefore, has the liberty to decide what rights to be enjoyed and what rights to be waived. The Supreme Court has reiterated on the liberty of an individual to waive off a right in the case of Waman Shriniwas Kini v. Ratilal Bhagwandas and Co.[2].
Application under various rights:
The doctrine of waiver can be used under various rights conferred to an individual. Contractual Rights are the rights guaranteed by the terms of a valid contract and they are legally enforceable. The right to sell or purchase a service or product, the right to seek compensation are some of the Contractual Rights. In terms of Contractual Rights, the doctrine can be applied if the mutual consensus of both the parties is obtained for the same. The Doctrine is given under Section 63 of the Indian Contracts Act, 1872. Statutory Rights are those granted under a Statute. Examples of Statutory Rights are right to enter into a contract, right to form a company, etc. The Doctrine can be applied to Statutory Rights subject to two conditions, namely, it should not infringe upon the rights of others and it should not be against public policy or morals.[3] However, the Indian law does not permit the application of this Doctrine with respect to the Fundamental Rights. The Fundamental Rights are considered as the Magna Carta of the Indian Constitution. They are the basic human rights given under Part III of the Constitution of India and include right to life, right to freedom of speech and expression. Their scope is extended towards the public policy also. Therefore, an individual cannot waive off his Fundamental Rights. The Supreme Court has held the same in the cases of Nath v. Commissioner of Income Tax[4], Behram Khurshed Pesikaka v. The State of Bombay[5], and Olga Tellis v. Bombay Municipal Corporation[6].
Indian outlook on Fundamental Rights:
Fundamental Rights are very significant for citizens of India. These are the rights given to the citizens for protecting their basic interests in any case. They are essential for the growth and development of an individual and the State. Because of their importance, the Supreme Court is of the firm opinion that they cannot be waived off as per the wishes of an individual. The Supreme Court believed in the Behram Khurshed Pesikaka case[7] that fundamental rights have not been put in the Constitution for merely individual benefit but also a matter of public policy and therefore, Doctrine of Waiver has no application towards them.
Conclusion:
It can be concluded that an individual is always given liberty to waive off its rights. The free will of an individual is considered and given importance. The Doctrine of Waiver and Estoppel go hand in hand. The Doctrine of Waiver can be applied to various rights, each subject to certain limitations. There is no effective consideration required for exercising this Doctrine. It should also be kept in mind that no public policy is affected or infringed while exercising this Doctrine. This will be determined on the basis of merits of the case. Under the Indian Constitution, the status of Fundamental Rights is very vital and sacred. Therefore, it is not yet permissible to waive off any Fundamental Rights.
[1] 1988 Supp SCC 55
[2] AIR 1959 SC 689
[3] ibid
[4] AIR 1959 SC 149
[5] AIR 1955 SC 123
[6] AIR 1986 SC 180
[7] Supra 5
“Article by Ms Sanchita Pathak in January 2021 under internship of Adv Shankarlal Raheja.
The Views herein are personal and while careful attention has been given to ensure that the information is accurate and assume no liability or responsibility for any reliance thereon. This article is merely information and knowledge sharing activity and is not a substitute to legal advice. We shall not be liable for any loss or damage caused due to any reliance thereof”.