FR v. FR — Part II: Waiver of Fundamental Rights

By Ashish Kumar Singh

Abstract

The fundamental question is, whether a citizen can be allowed to waive his fundamental rights conferred by the Part III of the Constitution of India, 1950 (hereinafter COI). I will be dealing with this aforesaid question in this article. This article attempts to show that it is open to a citizen to waive his fundamental right, of course with some riders. This article examines the application of doctrine of waiver in the American and Indian context with the help of statutory provisions and also with the help of landmark judgements. This article draws an analogy between the case(s)/instance(s) where waiver as well as non-waiver of fundamental right has taken place both in India and America. This article attempts to show that decisions of American courts are also applicable in Indian legal context. This article also attempts to show that waiver of fundamental rights do take place in the current Indian legal scenario.

Introduction

The Indian courts, since the commencement of the COI, have maintained the position that it is not open for a citizen to waive his fundamental rights, but this position, in my humble submission, has been considerably watered down inasmuch as nullified in the light of recent changes in our criminal justice system for example 1) the introduction of the concept of plea bargaining in India(by way of Amendment Act of 2005 in the Criminal Procedure code, 1973 (hereinafter CrPC)) and 2) the recognition of right to privacy as a fundamental right under Article 21 of the COI in the landmark judgement of nine judge bench in Justice K.S.Puttaswamy(Retd.) v. Union of India[1]. The question of waiver of fundamental rights was dealt by the apex court in its early judgement of Behram Khurshed Pesikaka v. The state of Bombay[2] which was followed in Basheshar Nath v. the commissioner of Income-Tax, Delhi, Rajasthan & another[3] wherein authoritative pronouncement was made in respect of applicability of doctrine of waiver in India. Basheshar Nath (Supra) has been followed till now. I will deal with aforementioned cases in detail and will also deal with other cases which have been on similar lines as Basheshar Nath (Supra) and Behram Khurshed Pesikaka (Supra).

Indian Case Laws

In Behram Khurshed Pesikaka v. The State of Bombay[4], the Apex Court was considering the effect of the statute which had been partially declared as violative of Article 19(1)(f)[5] in the state of Bombay and Another v. F.N.Balsara[6], on the case in hand. It was initially heard and disposed off by a three judge bench, wherein Justice T.L.Venkatarama Aiyer observed:

“The question is, what is the legal effect of a statute being declared unconstitutional. The answer to it depends on two considerations firstly does the constitutional prohibition which has been infringed affect the competence of the Legislature to enact the law or does it merely operate as a check on the exercise of a power which is within its competence; and secondly, if it is merely a check, whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy. If the statute is beyond the competence of the Legislature, as for example, when a State enacts a law which is within the exclusive competence of the Union, it would be a nullity. That would also be the position when a limitation is imposed on the legislative power in the interests of the public, as, for instance, the provisions in Chapter XIII of the Constitution relating to inter-State trade and commerce. But when the law is within the competence of the Legislature and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals, it is not a nullity but is merely unenforceable. Such unconstitutionality can be waived and in that case the law becomes enforceable. In America this principle is well settled. (Vide Cooley on Constitutional Limitations, Volume 1, pages 368 to 371; Willis on Constitutional Law at pages 524, 531, 542 and 558; Rottschaefer on Constitutional Law at pages 28 and 29–30).” (Emphasis supplied is mine)

Justice Aiyer also made a reference to the American Supreme court judgment in Shepard v. Barron[7], Pierce v. Somerset Railway[8] and Pierce Oil Corporation v. Pheonix Refining Corporation[9] to buttress his argument on waiver of rights. An application for review was made under Article 137, which was granted and the matter came before a five judge bench. The learned Chief Justice M.C.Mahajan speaking for himself and B.K.Mukherjea, Vivian Bose and Ghulam Hasan JJ., rejected the distinction by justice Aiyer on the basis of unconstitutionality arising out from the lack of competence and that of arising out of the violation of constitutional limitations i.e. Part III of the COI and his lordship observed:

“We are also not able to endorse the opinion expressed by our learned brother, Venkatarama Ayyar that a declaration of unconstitutionality brought about by lack of legislative power stands on a different footing from a declaration of unconstitutionality brought about by reason of abridgment of fundamental rights. We think that it is not a correct proposition that constitution provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the law-making power of a State is restricted by a written fundamental law, then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them.” (Emphasis supplied is mine)

His Lordship thereupon went to declare that doctrine of waiver as enunciated in American courts had no place in our Constitutional scheme. In this regard his lordship observed:

“In our opinion, the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. No inference in deciding the case should have been raised on the basis of such a theory. The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. 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. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. Reference to some of the Articles, inter alia, Arts. 15 (1), 20, 21, makes the proposition quite plain. A citizen cannot get discrimination by telling the State “You can discriminate “, or get convicted by waiving the protection given under Arts. 20 and 21.” (Emphasis supplied is mine)

In Basheshar Nath v. the Commissioner of Income-Tax, Delhi, Rajasthan & Another[10], the Apex Court held that it is not open for the citizen to waive his fundamental rights conferred by Part III of the COI. In this case the appellant/assessee Nath and the Central Government had agreed to settle the government’s claim for unpaid taxes. The settlement took place under S.8A of the Taxation of Income (Investigation Commission) Act, 1947(30 of 1947) (hereinafter the Investigation Act). The apex court in entirely separate proceedings[11] involving other tax prayers, held the some sections of the Investigation Act, unconstitutional, being violative of Article 14. This decision was based on the conclusion that the procedure prescribed by the Investigation Act was more harsh, prejudicial and discriminatory than the procedure established by the other applicable statute i.e. Income Tax Act, 1922. The court held that the persons falling under the same class i.e. substantial evader of Income Tax were being subjected to the different procedures, one being summary and drastic and other which gives various rights [under S.34 of Income Tax Act, 1922] which were being denied in the Investigation Act. Despite those decisions assessee Nath continued to make instalment payments in accordance with the agreed settlement under S.8A for some time, before defaulting in the payments due, thereafter certain of his properties were attached. The assessee then made an application to the commissioner of Income-Tax, contending that the settlement had no force and did not bind the assessee, and demanded that the attached properties be released and that the amounts already recovered under settlement be refunded. The above application was rejected, thereupon the assessee filed a Special Leave Petition (hereinafter SLP) under Article 136 of the COI. The assessee in the SLP did not press his claim for refund but did ask to be released from the further payments. The petitioner also assailed the vires of S.5 (1) of the Investigation Act. The then learned Attorney General (hereinafter AG), Mr. M.C.Setalvad, made three arguments and in the third and the last argument the learned AG asseverated that the assessee had never challenged the constitutional validity of the statute and that the assessee of his volition had entered into the settlement, thereby waived his right to take advantage of the invalidity of the statute.

The five judges reached the unanimous decision that the assessee be released from his further obligations, but they had considerable disagreement with respect to the grounds of the decision. Different views were expressed regarding the doctrine of waiver and the applicability of the American precedents cited by the learned AG.

The learned chief Justice S.R.Das for himself and Justice J.L.Kapur confined their views to the question, whether the Article 14 of the COI could be waived, putting aside the question whether any of the other fundamental right enshrined in the part III of the COI can or cannot be waived. The learned Chief Justice concluded:

“It seems to us absolutely clear, on the language of Art.14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State.” (Emphasis in original)

Having confined his rationale to Article 14, thereupon the learned Chief Justice disposed the American precedents cited by the learned AG in following words:

“The American authorities cited by the Attorney General relate to waiver of obligations under a contract, of the deprivation of right to property without due process of law or of the constitutional right to trial by jury and the like. They have no bearing on the question of the waiver of the equal protection clause of the 14th Amendment which, like our Art.14, is a mandate to the State.” (Emphasis in original)

The opinion delivered by the Justice N.H. Bhagwati was not confined to Article 14 and he went on to say that no part of Part III of the COI could be waived by a citizen. The Learned Judge distinguished the American precedents on the ground that:

“………….. whatever be the position in America, no distinction can be drawn here, as has been attempted in the United States of America, between the fundamental rights which may be said to have been enacted for the benefit of the individual and those enacted in public interest or on grounds of public policy. 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.”(Emphasis supplied is mine)

Thereupon Justice Bhagwati observed that our fundamental rights were spelled out with great precision and the limitations upon them are also spelled out in the constitution, therefore there is no need to read more limitations into them. Finally he suggested:

“…….There is further this distinction between the American Constitution and ours that whereas the American Constitution was merely enacted in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for common defence, promote the general welfare and secure the blessings of liberty and was an outline of government and nothing more, our Constitution was enacted to secure to all citizens, justice, Liberty.’ Equality and Fraternity and laid emphasis on the welfare state and contained more detailed provisions,, defining the rights and also laying down restrictions thereupon in the interest of the general welfare, etc. . . . . ..” (Emphasis supplied is mine)

The opinion of Justice K.Subba Rao was essentially in accord with the opinion of the Justice Bhagwati, taking the ground that none of the fundamental rights guaranteed by the part III of the COI can be waived. His Lordship’s reasons for rejecting the applicability of the American precedents were somewhat different and he observed as under:

“………..While it is true that the judgments of the Supreme Court of the United States are of a great assistance to this Court in elucidating and solving the difficult problems that arise from time to time, it is equally necessary to keep in mind the fact that the decisions are given in the context of a different social, economic and political set up, and therefore great care should be bestowed in applying those decisions to cases arising in India with different social, economic and political conditions. While the principles evolved by the Supreme Court of the United States of America may in certain circum- stances be accepted, their application to similar facts in India may not always lead to the same results……..” (Emphasis in original)

In spelling out his idea further, Justice Subba Rao added:

“A large majority of our people are economically poor, educationally backward and politically not yet conscious of their rights. Individually or even collectively, they cannot be pitted against the State organizations and institutions, nor can they meet them on equal terms. In such circumstances, it is the duty of this Court to protect their rights against themselves. I have, therefore, no hesitation in holding that the fundamental rights created by the Constitution are transcendental in nature, conceived and enacted in national and public interest, and therefore cannot be waived.”(Emphasis supplied is mine)

The opinion of Justice S.K.Das differed markedly from the opinion of his brethren judges, with regard to the views expressed on the waiver of the fundamental rights, and added that some of the constitutional rights can be waived. His Lordship further observed that the question of the waiver of fundamental rights cannot be answered in the abstract by a general affirmative or general negative; the question must depend on 1) the nature of the right guaranteed and 2) the foundation of the basis of which the plea of waiver is raised. It was held that if the nature of the statutory right is for the benefit of the general public and not for the benefit of any individual then it cannot be waived, even though they do not find place in the part III of the COI. So the test laid down in the opinion is whether the nature of the right is for the benefit of an individual or is for the benefit for the general public. His lordship concluded by saying that:

“…………The true position as I conceive it is this: where a right or privilege guaranteed by the Constitution rests in the individual and is primarily intended for his benefit and does not impinge on the right of others, it can be waived provided such waiver is not forbidden by law and does not contravene public policy or public morals.” (Emphasis in original)

In Olga Tellis v. Bombay Municipal Corporation[12], a writ petition was filed and heard by a Seven-Judge Bench of the Apex Court under Article 32 of the COI challenging the vires of the S.312–314 of the Bombay Municipal Act, 1888 (hereinafter BMC) which confers upon the commissioner to remove encroachments without prior notice. In this case the then Chief Minister of Maharashtra, A.R.Antulay announced that all the residents of the Mumbai (then Bombay) who were living in informal settlements or squatting on pavements, but did not possess photo-pass will be forcibly evicted and deported to their places of origin or outside the Mumbai. Against that a writ petition was filed by the petitioners contending that the aforesaid action was violative of their right to life and personal liberty under Article 21 and Article 21 necessarily included the right to livelihood. Apart from the other observations, the apex court on the question of the applicability of estoppel against fundamental right and waiver of fundamental right held:

“28. It is not possible to accept the contention that the petitioners are estopped from setting up their fundamental rights as a defence to the demolition of the huts put up by them on pavements or parts of public roads. There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and substance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15,16,19,21 and 29, and some on citizens and non-citizens alike, like those guaranteed by Articles 14,21,22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitioners is well- founded is another matter. But, the argument has to be examined despite the concession.

29. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-today transactions. In Basheshar Nath v. The Commissioner of Income Tax Delhi, [1959] Supp. 1 S.C.R. 528 a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J. and Kapoor J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N.H.Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy.” (Emphasis supplied is mine)

In Nar Singh Pal V. Union of India[13], the Apex Court held that the fundamental rights cannot be bartered away and there can be no estoppel against the same. The Court held as under:

“The Tribunal as also the High Court both appear to have been moved by the fact that the appellant had encashed the cheque through which retrenchment compensation was paid to him. They intended to say that once retrenchment compensation was accepted by the appellant, the chapter stands closed and it is no longer open to the appellant to challenge his retrenchment. This, we are constrained to observe, was wholly erroneous and was not the correct approach. The appellant was a casual labour who had attained the `temporary’ status after having put in ten years’ of service. Like any other employee, he had to sustain himself, or, may be, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchment compensation paid to him, which was only a meagre amount of Rs.6,350/-, was utilised by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away.” (Emphasis supplied is mine)

In Akhil Gogoi v. The State of Assam and Ors. [14]., the Assam high court while considering the question, whether the preventive detention of the petitioner under S.3(3) of the National Security Act, 1980 (hereinafter NSA) was valid or not, made a observation that the doctrine of waiver enunciated in the American Courts in construing American constitution cannot be introduced in our constitution. In this case petitioner was detained under NSA on 24/09/2017 on the order of the District Magistrate. On 24/09/2017 itself, the detainee was served with the detention order and the grounds of the detention and was informed that if he desired to submit his representation he may send his representation to the Principal Secretary to the Govt. of Assam. On 27/09/2017 the detainee submitted his representation to the principal Secretary as well as to the chairman of the Advisory Board for Assam for the NSA. Besides the facts not pertaining to this piece, the petitioner submitted in his affidavit that he was not informed by the detaining authority that he has a right to submit representation before the detaining authority itself and the central Government, violating his fundamental right under Article 22(5) of the Constitution of India (hereinafter COI). The learned senior counsel representing the state of Assam, while addressing the issue of non-mentioning in the order of detention of the right of detainee to make a representation before the detaining authority and the Central Government, asseverate that the detainee on 27/09/2017, on his volition had requested the said representation to be placed before the Advisory Board and/or any competent authority under the NSA and submitted that detainee, by doing so, has waived his right to be informed that he also has a right to make representation before the aforesaid authorities.

The right to be informed that the detainee has a right to make a representation is a fundamental right under the Article 22(5) of the COI, was recognised by the Apex Court. On the question of the waiver the High court followed the Supreme Court rulings in Behram Khurshed Pesikaka (Supra), Basheshar Nath (Supra), Olga Tellis (Supra) and Nar Pal Singh (Supra) to conclude that it is not open to citizen to waive his fundamental right conferred by Part III of the COI. Moreover, it observed that doctrine of waiver is not applicable in case of fundamental rights. In my humble submission, such sweeping statement cannot be made about the applicability of the doctrine of waiver with respect to fundamental rights.

From the inspection of the aforementioned Indian cases, it can be inferred that Indian Supreme Court has time and again held that the doctrine of waiver is inapplicable in the Indian Constitutional Scheme and has even gone to the extent to say that principle of estoppel, based on the principle of justice and equity, is also inapplicable as far as fundamental rights are concerned.

American Case Laws

In Pierce v. Somerset Railways[15], the Supreme court of the United States (hereinafter SCOTUS) was considering the claim of the impairment of the obligation of the contract[16] embodied in a corporate mortgage, by a state law passed after the execution of the mortgage. In December 1892, trustees in a mortgage of 1871, commenced two law suits, at places where a railroad was situated. The President and other staff members were made parties defendant as they were in the possession of the railroad, and the trustees, the plaintiffs, claimed for the recovery of the railroad from the defendants. The claim was based on the ground that the new company was never legally organised; that by the terms of the mortgage, the trustees could alone take part in proceedings to foreclose the mortgage and the act passed by the state legislature after the execution of the mortgage, and under which the new company was formed, could and did not affect the validity of the contract rights accrued to the plaintiffs under the law stand prior to the execution of the mortgage in 1871. The state court had held that the parties protesting the impairment of their mortgage rights, had actively proposed, aided and acquiesced in the corporate changes, which they now asserted violated their constitutional rights; their long acquiescence coupled with the changed conditions, was held to estop them from the questioning the legality of the new corporation. The SCOTUS held that the finding of estoppel was a sufficient ground to sustain the state’s court judgement. The SCOTUS held:

“………The other related to the defense of estoppel on account of laches and acquiescence, which is not a federal question. Either is sufficient upon which to base and sustain the judgment of the state court……..” (Emphasis supplied in original)

In Shepard v. Baron[17], the property owners, the plaintiffs, had petitioned for the public improvement to be made in the Public Highways adjoining their land. The Act, under which the improvement was to be made, also provided for the assessment of the adjoining lands for the cost of the improvement in accordance with the number of feet fronting on the improvement. After the improvement was made, the petitioners claimed that the assessment was wrong and they were deprived of the property without the due process of law. The SCOTUS held that the petitioners themselves requested the action, and on the principle of the equity and justice, they must not be allowed to challenge the constitutional validity of the action.

In the first two aforementioned cases, Somerset (Supra) and Baron (Supra), the complaining party had taken some initiative and had cheerfully accepted the benefits flowing from their actions until it came the time to suffer their burdens. It is also submitted that if the complaining party were allowed to escape from their obligations which they had voluntarily assumed, then the innocent third parties would be substantially injured. I don’t think that our apex court would have reached a different conclusion in the above cases.

In Wall v. Parrot silver & Copper Co.[18], the minority shareholders challenged the sale of all the property of a corporation to another corporation, they assailed the applicable state statute, which permitted the two-thirds of the shareholders to approve such a sale, as being violative of the fourteen amendment. The statute also provided that the dissenting shareholders were to be paid in cash value of their stock. The SCOTUS held that it did not have to consider the Constitutional validity of the statute as the complaining stockholders themselves had initiated proceedings under the assailed statute to seek cash payment and at the same time they were challenging the statute. It was held that two such inconsistent course of action cannot be allowed. Furthermore the court held:

“This record does not call upon us to examine into this challenge of the validity of these statutory provisions, similar as they are to those of many other states and of a seemingly equitable character, for the reason that the appellants, by their action in instituting a proceeding for the valuation of their stock, pursuant to these statutes, which is still pending, waived their right to assail the validity of them.” (Emphasis supplied is mine)

Finally in Pierce Oil Company v. Phoenix Refining Company[19], wherein the oil company challenged the order of the corporation commission, under the fourteenth amendment, declaring that it was a common carrier of oil under the state law and must therefore carry in its pipe line oil produced and tendered to it by the Phoenix company. The petitioner assailed the order on the ground that it imposed unreasonable restrictions on the rights of a corporation to carry on business. The SCOTUS in this case made some pertinent remarks on the waiver of constitutional rights and it observed:

“There is nothing in the nature of such a constitutional right as is here asserted to prevent its being waived or the right to claim it barred, as other rights may be, by deliberate election or by conduct inconsistent with the assertion of such a right.” (Emphasis supplied is mine)

From the above cases, it can be said with some force that waiver of fundamental rights do take place in American Constitutional framework. It will be appreciated if the apex court’s judges have distinguished situations those presented in the American cases rather than inadvertently making sweeping statements about the non-waivability of constitutional rights. It is also important to note that the Judges in Behram Khurshed Pesikaka (Supra) and Basheshar Nath (Supra) limited their discussion to waiver and carefully eschewed the word estoppel. In my humble submission, learned justices would have regarded certain types of affirmative action and conduct in which the complaining party had taken the initiative and had received some benefits as a result, thereby creating estoppel against the party challenging the validity of his own voluntary action.

Although it is difficult to find case analogous to Basheshar Nath (Supra), yet some resemblance may be found in the American case of Ashwander v. Tennessee Valley Authority[20]. In that case minority shareholders brought a suit to set aside a sale of power lines to the Authority on the ground that the statute establishing the Authority was unconstitutional. The state argued that the petitioners are estopped from asserting, a cause of action on behalf of the corporation because the corporation was itself purchasing electricity from the Authority. Learned Justice Brandeis and other three judges joined in his opinion and found the objection of the state to be a sound one. However Chief Justice Hughes rejected the contention of the state by summarily stating that the principle of estoppel is inapplicable here. Chief Justice Hughes answered the inapplicability of estoppel in following words: “Estoppel in equity must rest on substantial grounds of prejudice or change of positions, not on technicalities.” Despite the short shrift which the Chief Justice had accorded to the claim of estoppel, it is not clear that he would have been equally unsympathetic if the corporation itself, not the minority shareholders, were challenging the validity of the statute.

From the perusal of the aforementioned American Cases it can be said that American courts have treated the course of conduct as the basis of waiver or estoppel, resulting from the voluntary of the parties. Even the public policy does not preclude the applicability of the doctrine of waiver.

Arguments for the ability to waive fundamental rights

Before I put my arguments, it is constructive to define the expression ‘waiver of right’. In my humble submission, ‘waiver of right’ can be defined as the intentional or voluntary relinquishment of a right or conduct that warrants the inference of relinquishment of that right. In Johnson v. Zerbst[21], the SCOTUS noted that “a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege”. The proper definition of the concept of waiver would be:

“Waiver proceeds on the basis that a man not under legal disability is the best judge of his own interest and if, with knowledge of a right or privilege conferred on him by statute, contract or otherwise, for his benefit, he intentionally gives up the right or privilege, or chooses not to exercise the right or privilege, or chooses not to exercise the right or privilege to its full extent, he has a right to do so.[22]”

1. PLEA BARGAINING

The doctrine of waiver needs to be seen in the context of plea bargaining, which in my humble opinion, waives to a certain extent some of fundamental and statutory rights like 1) right to remain silent or in short Miranda rights[23] 2) the right to counsel under Article 22(1) of the COI 3) the right to examine witnesses, right to cross-examine the prosecution witnesses and 4) the right against self-incrimination under Article 20(3) of the COI. In Edward Boykin Jr. v. State of Alabama[24] , the SCOTUS was concerned with the voluntariness of a guilty plea entered by the accused. It is interesting to note the observation of the judges in the case that:

“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self incrimination guaranteed by 5th amendment and applicable to the states by reason of the 14th. Second, is the right to trial by jury. Third, is the right to confront one’s accusers”. (Emphasis supplied is mine)

Moreover, the Indian Law Commission’s 142nd report discussing Plea bargaining, clearly states the weight of the American practice of Plea bargaining in the Indian legal structure. The report also made references to some American cases like Hutto v. Ross[25], Chaffin v. Stnchcombe[26], Blackledge v. Allison[27], Weatherford v. Bursey[28] and Newton v. Rumery[29] to confirm that the plea bargaining is in no manner colliding with the fairness principle . In Brady v. United States[30], the SCOTUS held that guilty plea is much more than an admission of past conduct; it is the defendant’s voluntary consent for the judgement of conviction without entering into a trail, which is a waiver of his right to trial before a judge or jury.

Though the Indian system does not recognise the doctrine of waiver, yet the introduction of the Plea bargaining has inasmuch as nullified the ratio of Behram Khurshed Pesikaka (Supra) and Basheshar Nath (Supra). Therefore, it is not correct to say that waiver of fundamental rights do not take place in the Indian Context.

2. RIGHT TO PRIVACY

In Justice K.S.Puttaswamy (Supra) right to privacy was held to be a fundamental right under Article 21. It was also held that privacy also includes decisional autonomy. If decisional autonomy is a part of right to privacy then can we be allowed to say that if a man is sharing some photos of his private moments over electronic media he is not waiving his right to privacy? Justice D.Y. Chandrachud while defining the scope of decisional autonomy held that “Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress”. A situation may arise where an individual exercising his ‘personal intimate choices’ might effect a waiver of his right to privacy. Exercise of choice is subjected to the subjective satisfaction of the mental faculty of an individual, it is impossible to define in certain terms that a particular act is within the ambit and scope of the right to privacy. The larger question in regard to the right to privacy is whether an individual who share his intimate details via electronic modes of communication, can be allowed to use the writ jurisdiction of the higher judiciary alleging that his right to privacy has been infringed, when his shared intimate details is used by the government for his prosecution in any criminal offence. In my humble submission, the conclusion is that the moment you voluntarily breach your right to privacy by sharing something out in the public, you are waiving your fundamental right to privacy.

3. BILL OF RIGHTS IS PARI MATERIA TO THE PART III OF THE COI

It is submitted that the fundamental rights in India constitute a counter part of the American Bill of Rights[31] and our Part III of the COI owes its origin to the Unites states Constitutional framework[32]. There are no reasons which preclude the applicability of the doctrine of waiver in the Indian legal context and it is rightly observed by the eminent jurist D.D.Basu in his Commentary on the Constitution of India[33] that:

“Once it is established that fundamental rights in the U.S. and the Indian Constitutions are in pari materia, and that public policy in America does not preclude the waiver of fundamental rights, no rational grounds can be suggested by which such waiver should be precluded in India”

Moreover, it is clear that the United States Federal Constitution is not the source of the rights enumerated in the Bill of Rights. It has been specifically explained that:

“The Declaration of Independence existed long before the U.S. Constitution. One has only to read that Declaration carefully to appreciate the source of our fundamental, unalienable rights. We are endowed by our Creator with certain unalienable rights. These rights are not endowed by the Constitution. They are inherent rights which exist quite independently of any form of government we might invent to secure those rights. We relinquish our rights if and only if we waive those rights knowingly, intentionally, and voluntarily, or act in such a way as to infringe on the rights of others”[34].

The same explanation can be given for our fundamental rights in light of landmark cases like Maneka Gandhi v. Union of India[35] and Union of India v. Tulsiram Patel[36], Wherein fundamental rights are considered as inalienable natural rights. Even if we cannot establish that Bill of Rights is pari materia to Part III of the COI, yet we can bring a lot of similarities between them. It is difficult to understand the inapplicability of doctrine of waiver in regard to fundamental rights in India, when the same fundamental rights are waived in American courts. It must not be the case that the American courts consider their bill of rights as not fundamental as the Indian courts think so. It cannot be said that the American courts are bartering the fundamental rights of American citizens. It is obvious that Bill of rights is also introduced as a matter of public policy. It is submitted that although the conditions prevailing in America and India are different, yet it cannot be inferred that there is a total inapplicability of the doctrine of waiver in Indian legal setup.

4. IRREPARABLE INJURY TO STATE AND INNOCENT THIRD PARTY(S)

It is submitted that the Petitioner(s) cannot be allowed to take advantage under the impugned statute and the same time challenged such statute as unconstitutional. There is a danger of irreparable damages being done to the State and the innocent third party. For example, whether an individual can be allowed to say at his statutory right to property[37] under Article 300A has been infracted, where his property has been acquired by the government and the compensation has been given to him, and the law under which such property was acquired, was later challenged as unconstitutional. Can such person be allowed to challenge such law? If the waiver is not allowed or litigant is estopped, then the whole project of the government will be put in jeopardy. What will happen if the acquired land has given by the Government to a private company and the company has started constructing on that land? In the above scenario of waiver is not allowed or litigant is estopped, then irreparable damages will be done to the innocent third party(s). Such individuals, who are taking benefits of the voluntary actions under the impugned Act, must be estopped from challenging the impugned Act. Therefore, equity demands that person(s) taking benefits from an impugned statute must be estopped to challenge the same; it must be taken as the waiver of right to assail the impugned statute.

4. RIGHTS FOR THE BENEFIT OF AN INDIVIDUAL

It is submitted that the fundamental rights which are for the benefit for an individual can be waived as waiver of such rights cannot be prejudicial to the public policy. For example freedom of speech and expression, freedom of association, freedom of practice and propagation of religion etc. can be considered as fundamental rights for the benefits for an individual. Although above mentioned right also has an element of public policy, yet it has to be considered case by case basis whether the public policy overrides the individual consents to waiver of such rights. The permission for waiver of a Constitutional right also makes sense when the justification for the right is primarily to bolster and reinforce the autonomy of the right holder and where permitting waiver does not undermine any large social goals. Therefore, there is no scope for making such sweeping statement that fundamental rights cannot be waived at all.

5. AUTOMATIC WAIVER OF FUNDAMENTAL RIGHTS IN CASE OF PUBLIC SERVICES

It is submitted that automatic waiver of fundamental right take place when an individual joined any civil or military post in Union or State government. Rule 5(1) of Central Civil (Conduct) Rules, 1964 provides that no government servant shall be a member of any political party or any organisation which takes part in politics nor shall he take part in any political movement or activity. Section 3(2) of the Police-Forces (Restriction of Rights) Act, 1966 (30 0f 1966) instructs that no member of police force shall participate in, or address, any meeting or take part in any demonstration organised by any body of persons for any political purposes. Section 3(1) and 3(2) provide that no member of police member shall be associated with any trade union, labour union, political association, society, institution, association or organisation that is not recognised as part of the force. It will be near impossible for any individual to join armed forces or any other civil posts unless he is able to waive his fundamental rights. Fundamental rights like right to freedom of speech and expression under Article 19(1)(a), right to assemble peacefully and form associations or unions under Article 19(1)(b) etc. are waived by an individual when he agreed to the terms and conditions stipulated in various Conduct rules and acts. Therefore, it can be said that waiver of fundamental right do take place in Indian legal context.

Conclusion

At last it can be said on the touchstone of the aforementioned legal reasoning that doctrine of waiver does not place in case of fundamental rights is not a correct exposition of law. It can be said with much caution that the scope of the doctrine of waiver may not be as large as it is in the American legal setup. To say that there is no scope of waiver or estoppel in case of Part III of the COI is erroneous, as we have already seen from the above that waiver do take place in case of plea bargaining and employment in public services. In the end it is submitted that Basheshar Nath (Supra) and Behram Khurshed Pesikaka (Supra) deserve to be overruled.

About the Author

The author is an engineer, training to be a lawyer. He studies at the Faculty of Law, Delhi University.

Citations

[1] AIR 2017 SC 4161

[2] 1955 1 SCR 613

[3] 1959 AIR 149, 1959 SCR (1) 528

[4] Supra note 2

[5] This section was deleted by the Constitutional (forty-fourth) Amendment Act, 1978, sec.2(a)(ii) (w.e.f. 20–06–1979)

[6] 1951 SCR 682

[7] 1904 194 US 553

[8] 1898 171 US 641

[9] 1917 244 US 407

[10] Supra note 3

[11] Shree Meenakshi Mills Ltd v. A.V. Viswanatha Sastri, AIR 1955 SCR 448; M.Ct.Muthiah v. Commissioner of Income-tax, AIR 1955 SCR 1247.

[12] 1986 AIR 180, 1985 SCR (2) 51

[13] 2003 3 SCC 588

[14] W.P.(Crl) 14 of 2017

[15] 1898 171 US 641

[16] US constitution, Article 10, Section 1: No State shall…..pass…….law impairing the obligation of contract…..

[17] 1904 194 US 553

[18] 1917 244 US 407

[19] 1922 259 US 125

[20] 1936 297 US 288

[21] 1938 304 US 458

[22] Durga Das Basu, Commentary on the Constitution of India, (8th edn., Wadhwa Nagpur 2007), p.805

[23] Miranda v. Arizona, 1966 384 US 436

[24] 1969 395 US 238, also see United States v. Mezanatto, 1995 513 US 196

[25] 1976 429 US 28

[26] 1973 412 US 17

[27] 1977 431 US 63

[28] 1977 429 US 545

[29] 1987 480 US 386

[30] 1970 397 US 742

[31] M.P.Jain, Indian Constitutional Law, (6th edition, Wadhwa Nagpur 2007), p.17

[32] A.K.Gopalan v. State of Madras, 1950 AIR 27, see dissent of Justice Fazal Ali Saiyid

[33] Durga Das Basu, Commentary on the Constitution of India, (8th edn., Wadhwa Nagpur 2007), p.806

[34] Paul Andrew Mitchell, The Federal Zone: Cracking the Code of Internal Revenue, (11th edition, Supreme Law Publishers, 2001)

[35] AIR 1978 SC 597

[36] AIR 1985 SC 1416

[37] Right to property was fundamental right when Basheshar Nath (Supra) and Behram Khurshed Pesikaka (Supra) were decided.

Other References

1. The Constitution of United States (Annotated version)

2. Nathaniel L. Nathanson, Waiver of Constitutional Rights in India and American Constitutional Law

3. Sandeep Menon Nandakumar, Rights and Waiver: What the law is and what the law ought to be

4. Durga Das Basu, Commentary on the Constitution of India, (8th edition Wadhwa Nagpur 2007)

5. M.P.Jain, Indian Constitutional Law, (6th edition, Wadhwa Nagpur 2007)

6. Mark B. Thompson III, Constitutional Waiver- Right to Counsel- Waiver (Natural Resources Journal, 1964)