WAIVER OF FUNDAMENTAL RIGHTS IN INDIA Importing the doctrine: Waiver recognized for rights bestowing private benefit The

law regarding waivers in India is well settled. In Vellayan Chettiar (Decd.) v. Madras1, the Privy Council held that there was no inconsistency between the proposition that the provisions of s. 80, CPC, were mandatory and must be enforced by the Court and that they may be waived by the authority for whose benefit they were provided. In the case of Babulal Badriprasad Varma v. Surat Municipal Corporation (2011) 9 SCC 354 Gujarat Town Planning and Urban Development Act Allotment of land was to be made by the respective authorities for this purpose they made a notice for the land allotments appellant did not appear for the proceedings and now there was a deemed waiver or estoppel by the appellant the supreme court held that mandatory rights are those which constitute an important public purpose and even if mandatory rights are there they can be waived if they are for the personal benefit of the persons concerned.

AIR 1947 PC 197.

WAIVER IN INDIA. INTERPRETATION BY THE COURTS.

If in India, a question is asked, can a person waive any of his fundamental rights? The present law on waiver of fundamental rights is very clear: They cannot be waiver 3.1 A different perspective: Division of fundamental rights Justice Vankataraman Aiyar in Behram v. State of Maharashtra2 divided the fundamental rights into two broad categories: (i) (ii) Rights conferring benefits onto the individual 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 Fundamental 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 example, the right guaranteed under Article 19(f) was for the benefit of property owners and when a law was found to infringe this article, it was open to any person whose right has been infringe to waive his fundamental right.3

3.2 The rationale for the present law 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. A citizen cannot invite discrimination by telling the state You can discriminate, or get convicted by waiving the protection given to him under Article 20 and 21.4 The leading case with regard to waiver is the Basheshwar Naths case. In Basheshar Naths case5, the appellant had entered in to a settlement of his income tax liabilities under s. 8A, Taxation of Income (Investigation Commission) Act, 1947, and had made part payment of money due under the settlement. After the settlement was made the Supreme Court held that s 5(1) of the Act violated Article 14 and was void. When an attempt was made to recover the balance of the moneys from the appellant, he disputed the validity of the settlement on the ground that s. 8A of the Act was void since s. 5(1) of the Act on which it was founded was
2 3

AIR 1955 SC 123. M.P. Jain, INDIAN CONSTITUTIONAL LAW, 6th Edition 2010, Volume 1, p.1212. 4 Ibid. 5 AIR 1959 SC 149.

void. The respondent contended that the settlement was not void, but that even if it was, the appellant had entered into the agreement voluntarily and therefore waived his right under Article 14. Das CJ and Kapur J held that the right conferred by Article 14 could not be waived. Bhagwati J. expressed the view that the constitution was sacrosanct that it would be a sacrilege to whittle down the fundamental rights, that it was the sacred duty of the Supreme Court to safeguard fundamental rights. Bhagwati gave following reasons: 1) Preamble to our constitution, article 13, language in which fundamental rights were cast. 2) Distinction drawn between US and India, the preambles of the two countris being essentially the same. 3) Over there rights are enacted for private benefit of the parties. Constitution is an outline of govt. here it is detailed and lays down vastly rights and restrictions to which they were subject were mentioned in the constitution itself. To import the doctrine of waiver would be to import limitations into our constitution fir which there was no justification. 4) Pesikakas case (1955) 1 SCR 613. The view in this case was held to be correct. Grounds of public policy were given regarding this. It was ignored that public policy was also the rationale behind the doctrine of waiver.

To sum up, after some wavering, it has been held in India that since the fundamental rights have been included in the Constitution by way of limitations upon State action6, it would not be open to any particular individual to say that he would no take advantage of his fundamental right or his right to challenge the constitutionality of a law for its infringement, 7 eg: for the violation of Article 168 or Article 21.9 For the same reason (a) A fundamental right cannot be lost merely on the ground of non-exercise of it,10 in the same manner as a statutory right is not lost by disuse.11 (b) A person cannot enter into an agreement not to claim a fundamental right.12
6 7

DD Basu, COMMENTARY ON THE CONSTITUTION OF INDIA,, Volume 1, 8 th Edition, p. 806. Basheshwar v. CIT, AIR 1959 SC 149. 8 Dasaratha v. State of A.P., AIR 1961 SC 564. 9 Rathinam v. Union of India, (1994) 3 SCC 394. 10 In re Kerela Education Bill, AIR 1958 SC 956. 11 A.G. v. Augustus (1957) 1 All ER 49 (54) HL.

(c) If the individual cannot waive the fundamental right conferred upon him, the State cannot equally be prevented from discharging its obligations under Part III by rules of evidence such as estoppel, acquiescence or waiver.13 But a mandatory provision which is with interest of a party can be waived by him, however not when it is in public interest.14

The lack of uniformity in law, and the subsequent laying down of law With reference to Article 15, as regards the effect of waiver or acquiescence on the right to complain of the violation of fundamental right, there has been some controversy. In some cases it was held that a person who has acquiesced in an election15, or submitted to the jurisdiction of an authority functioning under an Act, cannot be allowed to challenge the constitutionality of that Act on the ground of contravention of Article 15.16 But these decisions are of questionable authority because of the view taken by the Supreme Court that there cannot be ay waiver of any fundamental right, such as under Article 14 17 or 1618. There is no reason why the same view cannot be taken in respect of Article 1519. The said controversy has now been settled by the unanimous decision of a Constitution Bench in the Olga Tellis case,20 where the following propositions were laid down: (a) The Indian Constitution makes no distinction between fundamental rights enacted for the benefit of the individuals and those enacted in public interest.21 Hence the American decisions22 on this point importing the doctrine of waiver of fundamental rights are not applicable in India. (b) There can be no estoppel against the Constitution, all the provisions of which are conceived in the public interest and to serve a public purpose. The high purpose behind the fundamental rights is not only to benefit individuals who are entitled to

12

Cf. Kameshwar v. State of Bihar, AIR 1962 SC 1166; Ghosh v. Joseph, AIR 1963 SC 812; State of Punjab v. Joginder AIR 1963 SC 913. 13 State of Gujarat v. MPSCT (1994) 3 SCC 552. 14 Rajendra Singh v. State of M.P. (1993) 4 SCC 727; Graphic India Ltd v. Durgapur Project Ltd. (1999) 7 SCC 645. 15 Nain Sukh v. State of U.P. AIR 1953 SC 384. 16 DD Basu, COMMENTARY ON THE CONSTITUTION OF INDIA,, Volume 2, 8 th Edition, p. 1861. 17 Basheshwar Case. 18 Dasartha v. State of A.P. AIR 1961 SC 564. 19 DD Basu, COMMENTARY ON THE CONSTITUTION OF INDIA,, Volume 2, 8 th Edition, p. 1861. 20 Olga Tellis v. B.M.C. AIR 1986 SC 180. 21 Ibid, para 28. 22 Eg: US v. Murdock (1931) 284 US 367.

enforce them but to secure the larger interests of the community. No individual can, therefore barter away the freedoms conferred upon him by the Constitution.23 (c) None of the fundamental rights guaranteed in Part II of the Constitution (including that under Article 15) can, therefore, be waived by the person aggrieved.24

Fundamental rights under the Constitution cannot be bartered away. They cannot be compromised nor there can be any estoppel against the exercise of fundamental rights available under the Constitution. This was held in Nar Singh Pal v. Union of India.25 In the instant case, a casual labourer with the Telecom Department had worked continuously for 10 years and had 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.26

The Peculiar condition of 20(3) Under Section 26 of the Evidence Act no confession made by a person while in police custody is to be proved against him unless it has been made in the immediate presence of a magistrate.27 A confession by an accused is recorded under Section 164 CrPC, but he later retracts it in a magistrates court. Can the confession be used against him further on? Wouldnt Article 20(3) apply? Can the person be deemed to have waived this right? The Supreme Court has ruled that the confession has to be voluntary; a confession made under threat, inducement or compulsion is inadmissible. The said article would not apply if confession is made otherwise. A retracted confession has little probative value but it is not inadmissible under Article 20(3).28 The wordings of the Article 20(3) make it all the more confusing to address the question as to whether the said right is actually being waived or not. The judiciary till now has only held

23 24

See n. 40, 41. Ibid, para 29. 25 Nar Pal Singh v. Union of India AIR 2000 SC 1401. 26 MP Jain, INDIAN CONSTITUTIONAL LAW, p.1214. 27 Ibid, p 1532. 28 Kalavati v. State of H.P. AIR 1953 SC 131/

that the question of violation of this right does not come into the picture in confessions, therefore the question whether or not it is being waived cannot be directly addressed. As far as Narco analysis is concerned, the Bombay29, Madras30 and Kerela High Courts have held that an accused can be compelled to undergo a narco analysis or truth serum test and that the question of violation of 20(3) would arise only if as a result of the test the accused makes a statement which is incriminatory and the prosecution seeks to introduce it as evidence. Narco analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India. The judgment of an eleven-judge bench in the case of State of Bombay v. Kathi Kalu Oghad31 where it was observed that self-incrimination means conveying information based upon personal knowledge of the person and cannot include merely the mechanical process of producing documents in court. It has been held in Ram Jawayya Kupars case32 that executive power cannot intrude on either constitutional rights and liberty, or for that matter any other rights of a person and it has also been observed that in absence of any law ant intrusion in fundamental rights must be struck down as unconstitutional. Lie detection test comes under the general power of investigation (Sections 160-167, Cr.P.C.). But it must be realized that it is prerogative of the person to allow himself/herself to be put to polygraph test or not and it should not be left to the discretion of police. Unless it is allowed by law it must be seen as illegal and unconstitutional33. But if it is conducted with free consent of the person it may be permitted. Free consent means it is voluntary and is not given under coercive circumstances. Voluntariness can be understood by the example- If a person says, I wish to take a lie detectors test because I wish to clear my name. It shows his/her voluntariness but it is still to be shown that whether this voluntariness was under coercive circumstances or not. If a person is told by police If you want to clear your name take a lie detector test or take a lie detector test and we will let you go then it shows that police has linked up the freedom to go with the lie detector test and as such it cannot be held voluntary. These kinds of statements are held to be self incriminatory.

29 30

Ramachandra Ram Reddy v. State of Maharashtra 2004 All MR (Cri) 1704. Dinesh Dalmia v. State 2006(3)CrLJ2410(Mad). 31 AIR 1961 SC 1808 32 1955(2)SCR225 33 Kharak singhs case ,1964(1)SCR332

CHAPTER IV - WAIVER IN INDIA WHAT THE LAW OUGHT TO BE - A COMPARITIVE ANALYSIS OF U.S. AND INDIAN LAW
In Basheshar Naths case34, the appellant had entered in to a settlement of his income tax liabilities under s. 8A, Taxation of Income (Investigation Commission) Act, 1947, and had made part payment of money due under the settlement. After the settlement was made the Supreme Court held that s 5(1) of the Act violated Article 14 and was void. When an attempt was made to recover the balance of the moneys from the appellant, he disputed the validity of the settlement on the ground that s. 8A of the Act was void since s. 5(1) of the Act on which it was founded was void. The respondent contended that the settlement was not void, but that even if it was, the appellant had entered into the agreement voluntarily and therefore waived his right under Article 14.35 A comparison of the US Bill of Rights (the first ten amendments) and Amendment 13 and 14, with the Chapter of Fundamental rights in our Constitution shows that both in the nature and the extent of the rights guaranteed and in the procedure for vindicating them, the US Constitution on the whole goes further. According to HM Seervai, It has become necessary to say this because it seems surprising that anyone can compare fundamental rights in the US and the Indian Constitution without realizing that these rights are as fundamental in America as they are in India, and that on the whole the American Bill of rights goes further and contains no reservation for preventive detention.36 In the decision in Basheshar Nath, Justice Bhagwati himself stated that the framers of the Constitution followed the American view of the Bill of rights espoused by Jefferson: (1959) Supp. 1 SCR, 528. Sastri CJ said the same thing in WB v. Subodh Gopal Bise.37 The ground to say that in India, fundamental rights, esdpecially as Bhagwati put it, all fundamental rights are based on public policy, would be wrong, primarily because it would be extravagant to say that fundamental rights incorporated in the US Constitution were not embodied as a matter of public policy. The same principle that India proudly upholds that Fundamental Rights can never be waived in India has more than one fallacy. Consider the case of Tilokchand Motichand v. HB

34 35

AIR 1959 SC 149. HM Seervai, CONSTITUTIONAL LAW OF INDIA, Vol 1, Fourth Edition, Rep 2010, p. 421 8.32. 36 Ibid, p. 424. 37 (1954) SCR 587.

Munshi38, the petitioner contended that as Article 32 confers a fundamental right, that right could not be defeated by the plea of laches or delay. Justice Bachawat held that in giving relief under Article 32, the court must not ignore and trample under the foot all laws of procedure, evidence, limitation, res judicata and the like.39 Not only was this case immediately upheld and affirmed in 1970 itself in the case of Rabindra Nath v. Union of India40, but lso, as recently by a division bench of the Supreme Court in Tamil Nadu Housing Board v. M. Meiyappan41, where a 16 year delay in filing a writ petition before the Court was unexaplined and unacceptable. Furthermore, waiver and estoppel are themselves part of the general law and that too on the grounds of public policy itself.42 Res Judicata is frequently referred to as estoppel by record.43 The US Supreme Court held in Daniels v. Tearney44 that this principle promotes fair dealing and it gives triumph to right and justice and like the statute of limitations, it is a conservator, without it society could not well go on. In England the view is the same, and well established by leading cases like Canadian and Dominion Sugar Co. Ltd. V. Canadian National (West Indies) Steamships Ltd.45 Even in India, the view with regards to waiver of rights that confer a private benefit to the parties is well established. The general rule46 to ascertain what is a derogable provision and what is a non-derogable provision can be deduced from what provision constitutes an important public purpose and what provision is merely a right that can be waived.47 The Supreme Court of India has also adopted the same view and has noted on several occasions that there is no bar to holders of rights waiving rights under statutes if the right is one conferred for individual benefit and abnegation of the same would not lead to any harm to public interest or violation of public policy.48

38 39

AIR 1970 SC 898. AIR 1970 SC at p.908. 40 (1970) 2 SCR 697. 41 CIVIL APPEAL NO. 1757 OF 2002 decided on 29 October, 2010 42 Seervai, p. 426. 43 Halsbury, (3rd ed.) Vol. 15, pp 168-9. 44 (1880) 102 US 415. 45 (1947) AC 46 PC. 46 Francis Bennion, Statutory Interpretation (Butterworths 1984) 27; William Craies, Craies Statute Law (7th edn, Sweet & Maxwell 1971) 269; Peter Maxwell, The Interpretation of Statutes (P St J Langan ed, 12th edn, Lexis Nexis Butterworths 1969) 328-30. 47 Babulal Badrisprasad Varma v. Surat Municipal Corporation (2008) 12 SCC 401 (DB) [29] (Sinha, J); Krishna Bahadur v. Purna Theatre (AIR 2004 SC 4282, 4286 (DB) (Sinha, J); Indira Bai v. Nand Kishore (1990) 4 SCC 668 (DB) [5] (Sahai, J) 48 BSNL v Motorola India Pvt Ltd AIR 2009 SC 357, 369 (DB) (Chatterjee, J); BSNL v Subhash Chandra Kanchan AIR 2006 SC 3335, 3339 (DB) (Sinha, J); Lachoo Mal v Radhye Shyam AIR 1971 SC 2213, 2216 (DB) (Grover, J); Nain Sukh Das v State of UP AIR 1953 SC 384 (CB-5) [7] (Sastri, J).

CONCLUSION AND SUGGESTIONS

In the present Indian law, there can therefore be no waiver of fundamental rights, as has explicitly been held by the Supreme Court of India in a catena of cases. This has been held keeping in mind the role of the Supreme Court as being the guardian of the Constitution and the fact that Fundamental Rights are sacrosanct and it would be equivalent to a sacrilege if they could be waived. Moreover, keeping in mid the conditions and awareness of people in India, the court thought that such a waiver, if allowed, would only lead to its misuse to a gross extent. Further, the doctrine of waiver being applicable to fundamental rights, was an idea that was sought to be borrowed from the US law, and the rationale given by the judges in rejecting them was that the Constitutions of both nations are entirely different. However, despite a strict laying down of the law with regard to waiver of fundamental rights in India, it has to be appreciated that the conditions and the levels of awareness of people in India is now considerable different from what it used to be in the 1950s. The law is old and needs to be changed. The argument that waiver could be misused, can be addressed by the legislature if it passes a law that extensively deals with this very issue, as to how and what would constitute a waiver. As argued in the research paper, the Constitutions of US (wholly) and India, are very similar, and therefore there is no ground for dismissing the application on the reason that they are different. The judiciary is already progressing in this regard, considering the fact that in the recent judgment passed in the Aruna Shanbaug case, it was suggested by the court that passive euthanasia be legalized. This could very well be construed as a waiver of the fundamental right to life. There needs to be more clarity in the law, which would be provided by an efficient law made by the legislature on the guidelines of the Law Commission and the judiciary.

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