Short Speech on the Doctrine of Waiver

Justice Venkatarama Aiyer gave the opinion that a law, unconstitutional by reason of its repugnancy to a fundamental right which is enacted for the benefit of individuals and not for the benefit of the general public, is not a nullity but merely enforceable and such an unconstitutionality could be waived, in which case the law becomes unenforceable for that Individual, e.g., the right guaranteed under Article 19 (1) (f) is for the benefit of the owners of property and when a law is found to infringe that provision, it is open to any person whose right has been infringed to waive It, and when there is a waiver there is no legal Impediment to the enforcement of the law.

The question of waiver directly arose in Bashesher Nath v. Income Tax Commissioner, AIR 1959 S.C. 149. The petitioner, whose case was referred to the Income tax Investigation Commissioner under Section 5 (1) of the Act, was found to have concealed large amount of Income.

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He thereupon agreed at a settlement in 1954 to pay Rs. 3 lacs in monthly instalments by way of arrears of tax and penalty. In 1955, the Supreme Court in other cases declared Section 5 (1) ultra vires Article 14. The petitioner thereupon challenged the settlement between him and the Commissioner.

The main question that arose for consideration was whether or not, the assessee had waived his fundamental right under Article 14 by entering into the settlement. In this case the Supreme Court held,

“A large majority of our people are economically poor, educationally backward and politically not conscious of their rights. Individually or even collectively, they cannot be pitted against the State organisations and institutions, nor can they meet them on equal terms. In such circumstances it is the duty of the court to protect their rights against themselves.”

The court upheld unanimously that the petitioner could not waive his rights under Article 14 of the Constitution. The Court further held that it is not open to a citizen to waive any of his fundamental rights conferred by the Constitution. These rights have been kept not merely for the benefit of the individual but as a matter of public policy for the benefit of the general public.

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