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| Doctrine of Waiver in Indian Constitution |
Doctrine of Waiver in Indian Constitution involves waiving of rights. The Constitution of India guarantees fundamental rights to all its citizens. Doctrine of waiver is the right that includes;
- Right to equality
- Right to freedom
- Right against exploitation
- Right to freedom of religion
- Cultural and educational rights
- Right to Constitutional Remedy
These fundamental rights are enumerated in Part - III of the Constitution of India. These fundamental rights will form the cornerstone of our democracy and any infringement can be challenged in the court of law. These fundamental rights are also known as the Magna Carta of India.
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However, in certain situations, individuals may choose to waive their fundamental rights voluntarily. This is the doctrine of waiver which simply means voluntarily waiving fundamental rights.
What is the Doctrine of Waiver?
Meaning of doctrine of waiver can be defined as it is a legal principle that allows an individual person to voluntarily waiver, relinquish or abandon his legal right. Moreover, the doctrine of waiver allows an individual person to waive, relinquish or abandon his fundamental rights enumerated under Part- III of the Constitution of India.
However, the doctrine of waiver must be made with full understanding and knowing the consequences of such waiving of their legal rights.
For example, if an individual person is arrested by the police, then the arrested person has a constitutional right to remain silent under Article, however, if an arrested person voluntarily decides to confess to the crime, therefore, it means that the arrested person is waiving his constitutional right to remain silent voluntarily and knowingly the consequences of such waiving of his legal right to remain silent.
Limitations of the Doctrine of Waiver
The doctrine of waiver is waiving the fundamental right voluntarily and with knowledge of the consequences of it. Therefore, the limitations of the doctrine of waiver can be derived as;
- Waiving of Fundamental Right
- Knowing the Consequences of Such Waiving
However, waiving a right made under duress, coercion, or undue influence would be considered invalid.
Furthermore, there are certain fundamental rights that cannot be waived such as the right to life, and the right to dignity. These fundamental rights are considered non-derogate and hence, these rights cannot be waived off.
Landmark Case Laws
In Behram vs State of Bombay, 1955, the Supreme Court held that the doctrine of waiver does not apply to the legislation entrenched in Part - III of the Constitution of India. Furthermore, the Supreme Court observed that the fundamental rights are not merely statutory rights, but also based on ideals enshrined in the Preamble of the Constitution of India, which cannot be renounced or relinquished by an accused person.
In Basheshar Nath vs Income Tax Commissioner, 1959, it was held that the Appellant had agreed to pay Rs. 5 Lakh per month to the Income Tax Department for the taxes payable as per the Income Tax Act.
However, the said Act was eventually found to be unconstitutional. Thereafter, the Appellant filed a lawsuit against the agreement but the Income Tax Department claimed that by agreeing to a settlement, he had renounced his right to appeal.
Salient Features of the Doctrine of Waiver
Intention
An intention is an essential element as one must intend such Waiver. Waiving a right can either be expressed or implied.
The express waiver can be done in writing or by giving a statement of waiver. Whereas, the implied waiver can be judged on the basis of conduct or act of person.
Knowledge
Knowledge here implies to the person waiving off his/her rights must know of the nature of such right and the consequences of such waiver. It's not necessary to have an absolute understanding of the right/privilege but be briefed about it.
Relevance
The doctrine of waiver of legal rights is of prime importance and its non-application on constitutional rights is a major check on the powers of the legislature.
When the doctrine of waiver was to be applicable, it could make an individual waive his rights in lieu of some benefits provided by the State.
Frequently Asked Questions
What is the doctrine of waiver in UPSC?
Ans: The doctrine of waiver explains that a person, entitled to a right or privilege, is free to waive that right or privilege. It is the voluntary relinquishment of a known existing legal right or privilege.
What is the doctrine of waiver in the Transfer of Property Act?
Ans: According to Section 113 of the Transfer of Property Act, 1882; a notice to quit is waived with the implied or express consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
What is meant by waiver in law?
Ans: What does Waiver mean? In contract law, 'waiver' is used to denote the granting of a concession by one party not insisting on the other party's precise performance of its obligations under the contract. It is also where one party gives up its rights to take action or enforce its rights under a contract.
Conclusion
In the Doctrine of waiver, the rights are privileges that are conferred upon individuals for their well-being. These Fundamental Rights are also known as the Magna Carta of India. The fundamental rights are a part of constitutional rights and public policy, thus, these fundamental rights cannot be waived by an individual. The doctrine of waiver is a fundamental principle in the law that allows individual persons to waive and relinquish their legal rights and privileges.