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Doctrine of Waiver and The Constitution of India

The Doctrine of Waiver allows individuals to voluntarily relinquish their legal rights, provided they are aware of those rights and the implications of waiving them. In the U.S., defendants can waive their Miranda Rights, but such waivers must be made knowingly and voluntarily. In India, while waiver is recognized, it cannot be applied to fundamental rights as these are considered a matter of public policy and cannot be waived by individuals.

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11 views3 pages

Doctrine of Waiver and The Constitution of India

The Doctrine of Waiver allows individuals to voluntarily relinquish their legal rights, provided they are aware of those rights and the implications of waiving them. In the U.S., defendants can waive their Miranda Rights, but such waivers must be made knowingly and voluntarily. In India, while waiver is recognized, it cannot be applied to fundamental rights as these are considered a matter of public policy and cannot be waived by individuals.

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Mahammad Motiulla
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Doctrine of Waiver

Definition

The Doctrine of Waiver seems to be based on the premise that a person is his best judge and that he has
the liberty to waive the enjoyment of such rights as are conferred on him by the state.

Black’s Law Dictionary defines Waiver as “the voluntary relinquishment or abandonment (express or
implied) of a legal right or advantage”. It also says that the party alleged to have waived a right must
have had both knowledge of the existing right and the intention of forgoing it.

Various Legal luminaries and scholars have also tried to explain the Doctrine of Waiver.

1. William R. Anson[1] – The term waiver is one of those words of indefinite concoction in which our
legal literature abounds; like a cloak, it covers a multitude of sins.

2. Restatement (Second) of Contracts[2] – Waiver is often inexactly defined as the ‘voluntary


relinquishment of a known right’. When the waiver is reinforced by reliance, enforcement is often to rest
on ‘estoppel’. Since the more common definition of estoppel is limited to reliance on a misrepresentation
of an existing fact, reliance on a waiver or promise as to the future is sometimes said to create a
‘promissory estoppel’. The common definition of waiver may lead to the incorrect inference that the
promisor must know his legal rights and must intend the legal effect of the promise. But it is sufficient if he
has reason to know the essential facts.

3. Keeton – Waiver is often asserted as the justification for a decision when it is not appropriate to the
circumstances.

4. Farnsworth on Contracts – Although it has often been said that a waiver is ‘the intention
relinquishment of a known right’, this is a misleading definition. What is involved is not the relinquishment
of a right and the termination of the reciprocal duty but the excuse of the non-occurrence of or delay in the
occurrence of a condition of a duty.

American Conception of Doctrine of Waiver

In the famous case of Miranda v. Arizona[3], the Supreme Court laid down certain requirements known
as the Miranda Rights. These requirements include stipulations such as the right to remain silent and
that they may have an attorney present questioning.

However, in USA, a Criminal Defendant may waive the right to remain silent as well as the other Miranda
Rights and make a confession, but the Prosecution must demonstrate to the court that the ‘waiver’ was
the product of a free and deliberate choice rather than a decision based on intimidation, coercion, force or
deception. It must also be proved that the defendant was fully aware of the Miranda rights being
abandoned and the consequences thereof.
Doctrine of Wavier in India

There have been plethora of cases that have discussed the doctrine of Waiver. Some of the important
ones are.

1. Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors. [4]– In this
case, the court said that everyone has a right to waive an advantage or protection which seeks to give
him/her. For e.g. In case of a Tenant-Owner dispute, if a notice is issued and no representation is made
by either the owner, tenant or a sub-tenant, it would amount to waiver of the opportunity and such person
cannot be permitted to turn around at a later stage.

2. Krishna Bahadur v. M/s. Purna Theatre & Ors. [5] – This case made a differentiation between the
principle of Estoppel and the principle of Waiver. The court said that “the difference between the two is
that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may
constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights
has agreed not to assert a right for a consideration”.

The court also held that:

“A right can be waived by the party for whose benefit certain requirements or conditions had been
provided for by a statute subject to the condition that no public interest is involved therein.
Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the
right in consideration of some compromise came into being. Statutory right, however, may also be waived
by his conduct.”

3. Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association & Ors. [6] –
This case said that even though Waiver and Estoppel are two different concepts, still the essence of a
Waiver is an estoppel and without Estoppel, there cannot be any Waiver. The court also said “Estoppel
and waiver are questions of conduct and must necessarily be determined on the facts of each case”.

Doctrine of Waiver and Fundamental Rights in India

Fundamental Rights are the most special of the rights in Indian Context. These rights though sacrosanct
are not absolute in nature. Our Constitution imposes various imposes various reasonable restrictions
upon the exercise of fundamental rights.

As stated above, we saw that a right can be waived subject to the condition that no public interest is
involved therein. However, the scope of the Doctrine of Waiver with respect to Fundamental rights is a
bit different. It was discussed in the case of Basheshr Nath v. Income Tax commissioner[7]. The
Court said that:
“Without finally expressing an opinion on this question we are not for the moment convinced that this
Doctrine has any relevancy in construing the fundamental rights conferred by Part III of our
Constitution. 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 the 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. Reference to some of the articles, inter alia, Articles 15(1) 20, 21, makes the proposition quite
plain. A citizen cannot get discrimination by telling the State 'You can discriminate', or get convicted by
waiving the protection given under Articles 20 and 21.”

We find that the primary objective of Fundamental Rights is based on Public Policy. Thus, individuals are
not allowed to waive off such fundamental rights. Also, it is the constitutional mandate of the Courts to see
that Fundamental Rights are enforced and guaranteed even if one might wish to waive them.

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[1] Principles of the Law of Contract.


[2] 84 cmt. b (1979).
[3] 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[4] (1992) Supp. 1 SCC 5.
[5] AIR 2004 SC 4282.
[6] AIR 1988 SC 233.
[7] AIR 1959 SC 149.

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