“DOCTRINE OF WAIVER”

0

This post has been written by Shaily Jain, a second year law student from Amity Law School, Amity University, Chhattisgarh.

Waiver means an act or instance of waiving a right or claim. The assumption behind the waiver is that a man is the best to judge his interest. If he waives his right, he cannot claim it later. In order to establish waiver, it is necessary to establish that the person waiving his rights had full knowledge of his rights or privileges and that right or privilege was conferred principally for his benefit and not principally for the benefit of the public, the supreme court has observed: “A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and facts enabling him to take effectual action for the enforcement of such right.”

Waiver of Fundamental Rights

The question of whether the fundamental rights guaranteed by the constitution of India could be waived reached the supreme court of India in case of Bashes her Nat v C.I.T; the facts of the case were as follow:

  • That the appellant whose matter had been referred to the investigation commission in pursuance of section 5(1)  of the Taxation of Income Act,1947 entered into a settlement with the department with respect to his income liability arising out of concealment of a large amount of his income. He was allowed to pay his tax liability under the settlement in installment.
  • In the meanwhile, Supreme Court in another case had declared that section 5(1) of the same act as ultra virus as it violates Article 14 of the Constitution of India.
  • The appellant had paid few installments after the court’s ruling, but then he stopped paying the due installments on the ground that settlement became invalid in the view of ultra virus character.
  • He invited the court to hold that he absolved of his obligation under the settlement. On the other hand, the government argued that the settlement was enforceable as the appellant had waived his Fundamental Right under Article 14 by his conduct.

Judgment:

In a unanimous decision, the court pronounced its judgment in the favor of the appellant and held that there was no waiver, the court observed: –

According to this test, there was no waiver on the appellant’s part as he could not be presumed to know that the act in question was constitutionally invalid. Although it was a unanimous decision the judges delivered a separate opinion in the court, Chief Justice S.R Das and Justice Kapoor confined their opinion to the fundamental rights involved in the case only and opined that the right under Article 14 cannot be waived. Justice Bhagwati and Justice Subba Rao opined that it is not open for a citizen to waive of any fundamental right guaranteed to him under the Part III of the constitution. Justice S.K Das opined that fundamental rights may be waived, except on the ground of public policy.

By the passage of time, Justice Bhagwati’s opinion has become the binding norm and the position is that no fundamental rights could be waived.

Waiver of Statutory Right

Whether a person can waive his rights or not depends on the consideration of two factors. First, whether the statue guaranteed rights exclusively in favor of the person concerned of third persons as well. The doctrine of waiver cannot be applied in the latter case. Secondly, even if the statue vests rights exclusively in the person waiving that right, still the waiver may not be allowed on the grounds of public policy, public interest or public morality.

Murlidhar v State of U.P

In Murlidhar v State of U.P, the question of waiver of statutory right reached court, the facts of the case are as follow:

  • Section 3 of U.P (temporary) control of Rent and Eviction Act provided that no suit would be filed by a landlord against a tenant for his eviction without the permission of District Magistrate.
  • However, an agreement was concluded between the parties that neither party would claim the statutory benefit.
  • The landlord filed a suit for eviction of the tenant without obtaining the permission of the district magistrate.

The question before the court was whether Section 3 was enacted for the benefit of tenants? Or, whether there was a public policy underlying it which precluded a tenant from waiving its benefit. It was held by the court that Section 3 was founded on public policy. It was “intended to protect the weaker section of the community with a view to uplift the interest of the community in general by creating equality of bargaining power”. On the other hand, such provisions were for the benefit of the landlords. It can be waived by him, for he is not in the same bargaining position as a tenant.

The mistake cannot be considered as a waiver

Waiver of Natural Justice

A person may waive his objection to his matter being decided by a person subject to the disqualification of bias. The same happened during the trial of R.C Cooper v Union of India, the bench adjudicating upon the constitutionality of the statue nationalizing the 14 major banks consisted of two judges having some shares in some nationalized banks. On behalf of the Government of India, Attorney-General waived the objection against those judges hearing the case. Thereafter the bench proceeds.

In this respect, Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of its right to take down the objection in question.

Waiver of Government Contracts

The Fundamental Principle is that waiver is a question of facts and it must be properly pleaded and proved. In Motile padamat case, the government raised the plea of waiver. But Justice Bhagwati did not allow it on the ground that the government had not raised it in its affidavit filed in reply to the writ petition. Here the government had not taken the waiver at its first opportunity.

It is an established proposition that the requirements of Article 299 are mandatory and, therefore they cannot be waived by the government.

In the Union of India v Rallia Ram, it was held that even if the contention that the agreement did not fulfill the requirements of Article 299was not raised before the arbitrator and that it can be raised in judicial proceedings, the doctrine of the waiver shall not apply.

References

  • Motilal Padampat Sugar Mills v. State of Uttar Pradesh And Ors 1979 AIR 621.
  • Basheshar Nath v. The Commissioner of Income-tax, Delhi & Rajasthan & Another 1959 AIR 149.
  • Taxation on Income (Investigation Commission) Act, 1947 § 5(1).
  • Taxation on Income (Investigation Commission) Act, 1947, No.30, Acts of Parliament, 1947 (India)
  • IBID
  • INDIAN CONST. Art 14
  • INDIAN CONST. Part III
  • Murlidhar Agarwal and Anr v. State of U.P. And Ors 1974 AIR 1924
  • P (Temporary) Control of Rent and Eviction Act, 1947, No.3 Act of the legislature, 1947 § 3.
  • P (Temporary) Control of Rent and Eviction Act, 1947, No.3 Act of the legislature, 1947(Uttar Pradesh, India)
  • State of Kerala v. Aluminum Industries Limited 196 16 S.T.C. 689
  • Rustom Cavasjee Cooper v. Union of India 1970 AIR 564
  • Motilal Padampat Sugar Mills v. State of Uttar Pradesh And Ors 1979 AIR 621.
  • INDIAN CONST. Art 299
  • Union of India v. A.L. Rallia Ram 1963 AIR 1685
  • INDIAN CONST. Art 299
Subscribe to Latest Posts !

Subscribe For Latest Updates

Signup for our newsletter and get notified when we publish new articles for free!