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Doctrine of Waiver | 11 Dec 2023
Introduction
Doctrine of waiver, as defined by Black’s Law Dictionary, is the intentional or voluntary
relinquishment of a known right.
Article 13 of the Indian Constitution provides the ‘doctrine of waiver’.
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.
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.
Doctrine of Waiver
It means any person who is entitled to any right or privilege can waive off such a privilege, if he does
so with his free will. This doctrine operates on the assumption that a man is the best judge of his
interest under any legal liability, and that he has the knowledge of the consequences while
intentionally giving up the privilege of such right.
But, the doctrine of waiver does not apply to fundamental rights of the people guaranteed under the
Constitution of India. The fundamental rights were kept in the Constitution for the public at large and
not merely for the individual’s benefit. Thus, the ‘doctrine of waiver’ cannot be used for giving up the
fundamental rights.
Salient Features of the Doctrine
Intention: It is an essential element as one must intend such waiver. Waiver of right can either be
expressed or implied. Express waiver is done in writing or giving a statement or waiver. Implied
waiver is judged based on the conduct or act of a person.
Knowledge: Knowledge here implies to the person waiving off rights must know of the nature of such
rights and consequences of such waiver. It’s not necessary to have absolute understanding of the
rights/privilege but be briefed about it.
Relevance: 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 benefit provided by the State.
Case Laws
Olga Tellis & Ors v. Bombay Municipal Corporation (1985):
The pavement dwellers gave an undertaking to the MCD that they would not claim any
fundamental right to put up huts on pavements and public roads, and also that they would not
obstruct the demolition of the huts after a certain date. But, later when the huts were sought to be
demolished after the specified date, the pavement dwellers pleaded that they are protected under
Article 21 of the Constitution of India. The municipal corporation contended that the dwellers
cannot raise any such plea in the view of their previous undertaking.
The Supreme Court, overruled the objection of the municipal corporation saying fundamental
rights cannot be waived off by any person. There can be no estoppel against the fundamental
rights guaranteed under the Constitution.
Behram Khurshed Pesikaka v. The State of Bombay (1954):
Supreme Court held that the fundamental rights are based on such principles which are
embodied in the preamble of the Indian Constitution. Fundamental rights are a matter of
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public policy and the same cannot be waived. The doctrine of waiver has no application on
matters that are a part of constitutional policy.
Conclusion
The doctrine of waiver is of prime importance and its non-application on constitutional rights may be a major
check on powers of the legislature. If the doctrine were to be applicable, it could make a private waive his
rights in lieu of some benefits provided by the State.
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