Constitutional Law: Doctrine of Waiver

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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. 

At this juncture, it becomes essential to first understand the 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.

This 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. The leading case till date on the Doctrine of Waiver is Basheshar Nath v. The Commissioner of Income Tax Delhi & Rajasthan & Another.

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. Herein, it was observed that fundamental rights are based on higher principles embodied in the preamble of the Indian Constitution. Fundamental rights are a matter of public policy and the same cannot be waived. The doctrine of waiver has no application on law enacted as a matter of constitutional policy.

The leading case which settled the law with respect to the applicability of doctrine of waiver on fundamental rights is 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 features-

  • Intention: It is an 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: Knowledge here implies that the person waiving their right must know of the nature of right and consequences of such waiver. Knowledge includes the instrument of understanding. By knowledge, it is not meant that the party waiving should know the intricacies of the right. It is not required to have an absolute understanding of the exact scope of right but a virtual and general understanding. 

Landmark judgements 

1.      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. 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.”

2.      Basheshar Nath v. The Commissioner of Income-Tax, Delhi & Rajasthan & Another: This case is the leading authority till date. Herein, the Supreme Court held that a person cannot waive his fundamental rights. However, minority opinion, held by Justice S.K.Das, was that the determining factor of the waiver is not the source of right.

3.      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. 

Critical analysis

Having discussed the meaning of doctrine of waiver, some might get confused between doctrine of waiver and that of estoppel. The effect of waiver and estoppel is more or less the same, i.e., both prevent a person from challenging the constitutionality of a statute. But there is a considerable difference between the two. Waiver means to give away the right whereas estoppel is an impediment on a person, preventing him from making inconsistent facts. The basis of estoppel is that a person cannot rely upon a statute and at the same time challenge it. Estoppel is not a cause of action but a rule of evidence, meaning hereby, an alleged matter of fact. Waiver can be construed as contractual, as the party has agreed not to assert his right for some benefit. 

Article 13 of Indian Constitution states that laws in force prior to commencement of the Constitution shall be void to the extent inconsistent with part III of Constitution and laws made by State inconsistent with part III, after such commencement, shall be to that extent void. It directs the State to not to make any law which is a contravention of part III of the constitution. However, an amendment made under Article 368 of the constitution is not subject to Article 13.

Article 14, which is “The State shall not deny to any person equality before the law or the equal protection of the laws”, is a reflection of English doctrine of rule of law and equal protection guaranteed under the American constitution. It is based on sound public policy appreciated in a civilised society. The words of the article are directed towards the State instead of an individual. It obliges and imposes a burden on the state. The State cannot do away with this responsibility by saying that the individual wanted so. It cannot violate its constitutional mandate solely by arguing that it was asked by the individual.

Fundamental rights are based on declarations made by the preamble of the Indian Constitution, which encompasses higher principles of justice, liberty, equality. No distinction of individual interest and public interest is made in fundamental rights. These fundamental rights exist as a part of public policy and doctrine of waiver can have no applicability on rights operating as a matter of public policy.  But doctrine of waiver is applicable to waive some of the rights in America.

This brings us to note reasons as to why there is such a difference between applicability on doctrine of waiver in India and America.  The American constitution is aimed at striking a proper balance between personal liberty and social control. It was enacted in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for common defence, promote the general welfare and secure the blessings of liberty. However, the Indian Constitution was enacted to secure to all citizens, justice, liberty, equality and fraternity.

At the early stage, it was understood that the American constitution is not self-executing. The provisions were wide and general. It required subsequent legislation and judicial interpretation to bring its provision into effect. Independence was given to the judiciary to evolve the content of the right as well as its limitations. On the other hand, the Indian constitution is more detailed than that of America. It consists of limitations imposed on rights. It would be inappropriate to include doctrines, by judicial interpretation, on which the constitution is silent. 

In Basheshar Nath v. CIT, Justice S.K.Das made an important point that a source of right, contractual or statutory or constitutional, should not be the basis for allowing waiver. Rather the test should be for whose benefit the right is conferred – the benefit of the general public or of the individual. He contended that the right which is for individual benefit can be waived. However, some rights are written in the Constitution and are regarded as fundamental. This places them at a higher pedestal and subsequently, they cannot be treated alike with other rights. Thus, the source is very much relevant. 


The doctrine of waiver is of prime importance and its non-application on constitutional rights is a major check on powers of legislature. If the doctrine were to be applicable, it could make an individual waive his rights in lieu of some benefits provided by the State. The doctrine could be made applicable in the Indian legal system through judicial interpretation. But it is in doubt whether the doctrine could have constitutional backing. 

Looking at the brighter side of the doctrine of waiver, it is founded on justice and reason. It would be unfair and unjust to hear who alleges inconsistent facts. Allowing a person to first take benefit of the statute and then challenge its constitutionality is unreasonable. Moreover, it can be argued that ignorantia juris non excusat and a person alleging that he did not know about the unconstitutionality of the statute should not be excused.

But it cannot practically be expected from every person to know the law especially when it is applied retrospectively, when a law is made void retrospectively. It could be highly unfair to deny security of law to such a person. Also, the applicability of the doctrine could make enforceable, on certain persons who have waived their rights, the law which could otherwise be unenforceable. 

Author: Tanish Gupta from Dharmashastra National Law University (DNLU), Jabalpur.

Editor: Avani Laad from Symbiosis Law School, Pune.