The Doctrine of Waiver of Fundamental Rights in Indian Constitutional Law

The Doctrine of Waiver of Fundamental Rights in Indian Constitutional Law

Introduction

Whether a person may voluntarily surrender the protection afforded by Part III of the Constitution of India has long pre-occupied courts and academics alike. The issue – commonly expressed as “can a fundamental right be waived?” – lies at the intersection of constitutional supremacy, public policy, and individual autonomy. This article critically analyses the evolution of the waiver doctrine in Indian jurisprudence, with particular emphasis on the seminal decisions in Basheshar Nath v. Commissioner of Income-Tax[1], State of Madhya Pradesh v. Thakur Bharat Singh[2], and Olga Tellis v. Bombay Municipal Corporation[3]. Drawing upon statutory provisions, later High Court authorities, and comparative insights, the discussion elucidates the present contours of the doctrine and its normative justification in Indian constitutional law.

Constitutional Framework

Part III confers a catalogue of rights that are judicially enforceable through Articles 32 and 226. Article 13(2) prohibits the State from enacting laws that abridge these rights, implying their status as constitutional mandates superior to ordinary legislation. While the Constitution is silent on waiver, two textual elements are noteworthy:

  • Article 12 defines “State”, signalling that fundamental rights are primarily shields against State action[4].
  • Articles 17, 23 and 24 expressly impose obligations erga omnes, suggesting certain guarantees are enforceable even against private actors[5].

Any doctrine allowing individuals to renounce such rights must therefore reconcile with the constitutional hierarchy and the public interest embedded within these guarantees.

Jurisprudential Evolution

Early Ambiguity: Gopal Das Mohta and the Pre-1959 Position

In Dewan Bahadur Seth Gopal Das Mohta v. Union of India (1954) the Supreme Court refused to entertain an Article 32 petition challenging the Taxation on Income (Investigation Commission) Act because the assessee had accepted a settlement under that Act. Although the Court did not expressly employ the language of “waiver”, the decision created an impression that acquiescence could bar constitutional relief.

The Watershed: Basheshar Nath (1959)

The Constitution Bench fractured on reasoning but united in result: Article 14 could not be waived. Das C.J. (for Kapur J. concurring) held that equality is a matter of public policy and, therefore, “no individual can barter away a right granted for the benefit of the general public”[1]. Bhagwati and Subba Rao JJ. went further, declaring that no fundamental right is waivable. S.K. Das J., dissenting in part, suggested a narrow class of purely individual rights might be relinquished. The majority rationale rested on three pillars:

  • Fundamental rights form part of the basic public policy of the Constitution.
  • Allowing waiver would enable the State to achieve indirectly what it cannot do directly.
  • Uniformity and certainty in constitutional protections outweigh individual consent.

Post-Basheshar Consolidation

Subsequent cases reinforced the non-waiver principle, though occasional dicta hinted at exceptions:

  1. Behram Khurshed Pesikaka v. State of Bombay (1955) – Mahajan C.J.’s remark that the doctrine of waiver is irrelevant to fundamental rights has been repeatedly cited by High Courts[6].
  2. Rajit Ram v. State (1961, Allahabad HC) – interpreting Article 20(3), the Full Bench opined that certain individual privileges could be waived if not contrary to public policy[7].

From Equality to Liberty: Thakur Bharat Singh (1967)

Challenging restrictive orders under the Madhya Pradesh Public Security Act, the respondent never “consented” to the curbs, yet the State argued emergency circumstances justified them. Hidayatullah J., striking down clauses (b) and (c) of Section 3(1), reaffirmed that fundamental freedoms in Article 19 cannot be curtailed except by constitutionally compliant legislation – emergency or no emergency[2]. Though waiver was not squarely in issue, the judgment underscored that non-derogable constitutional norms trump executive bargains.

Estoppel and Waiver Rejected: Olga Tellis (1985)

The Bombay Municipal Corporation contended that pavement dwellers, having earlier undertaken to vacate, were estopped from asserting Article 21. Chandrachud C.J. dismissed the objection, holding that “there can be no estoppel against fundamental rights” and that the right to livelihood is inseparable from the right to life[3]. The Court thus merged the doctrines of waiver and estoppel, treating both as impermissible shields for unconstitutional State action.

High Court Trajectory

Several High Courts have invoked Basheshar Nath to invalidate contractual or statutory clauses premised on waiver:

Conceptual Foundations

Public Policy and Non-Derogation

Fundamental rights are not merely individual entitlements; they encapsulate collective constitutional values such as equality, dignity, and the rule of law. Permitting waiver would erode these basic features by enabling piecemeal abdication, thereby undermining doctrinal coherence and setting dangerous precedents for executive bargain.

Distinguishing Statutory, Constitutional and Fundamental Rights

The Supreme Court in Nirajkumar Dubey v. Addl. Commissioner, Konkan Division (2024) reiterated that while statutory and even some constitutional rights may be contractually waived, fundamental rights remain inalienable[11]. This tripartite classification accords with the hierarchical structure of the Constitution and obviates conflation of ordinary and fundamental legal interests.

Residual Autonomy: Possible Exceptions?

Despite the predominant rejection of waiver, dicta in Rajit Ram and S.K. Das J.’s separate opinion indicate a narrow window where rights that are: (a) exclusively individual in nature, (b) unconnected to public policy, and (c) waiveable without injuring third-party interests, may be surrendered. The Supreme Court, however, has never expressly upheld such waiver post-Basheshar Nath, and later rulings trend towards categorical non-waivability.

Interaction with Statutory Provisions

Several statutes attempt to secure purported “consent” to measures impinging upon fundamental rights – e.g., Section 8A of the Taxation on Income (Investigation Commission) Act, 1947; Section 314 of the Bombay Municipal Corporation Act, 1888; or consent awards under Section 11(2) of the Land Acquisition Act, 1894. Courts have uniformly struck down or read down such provisions when they conflict with Part III protections, despite contractual assent by affected parties[1][3][10]. The message is unequivocal: statutory clauses cannot procure what the Constitution forbids.

Contemporary Significance

In the era of privatisation and regulatory State, contracts frequently incorporate arbitration clauses, liability waivers, or “voluntary” undertakings affecting speech, privacy, or due-process safeguards. The doctrine elaborated above serves as a bulwark against commodification of constitutional rights and ensures that private bargains do not dilute public norms. The Supreme Court’s recent observation in Kaushal Kishor v. State of Uttar Pradesh (2023) – that Part III is primarily a restraint on State action – does not displace the waiver doctrine; it merely clarifies that, absent State involvement, a violation may not be cognisable under Article 32. Where State imprimatur exists, individual assent is immaterial.

Conclusion

Indian constitutional jurisprudence has crystallised a near-absolute prohibition on waiver of fundamental rights. Rooted in Basheshar Nath and fortified by later decisions such as Thakur Bharat Singh and Olga Tellis, the doctrine underscores the non-derogable nature of Part III guarantees. While a theoretical distinction persists between “individual” and “public” rights, judicial practice demonstrates an enduring reluctance to validate any waiver that could legitimise unconstitutional State action. The result is a robust constitutional culture in which fundamental rights operate as inalienable constraints on power rather than negotiable privileges – a cornerstone of India’s democratic order.

Footnotes

  1. Basheshar Nath v. Commissioner of Income-Tax, Delhi & Rajasthan, 1959 Supp (1) SCR 528 (SC).
  2. State of Madhya Pradesh & Anr. v. Thakur Bharat Singh, AIR 1967 SC 1170.
  3. Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., (1985) 3 SCC 545.
  4. Constitution of India, Art. 12.
  5. Constitution of India, Arts. 17, 23, 24; see also People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.
  6. Behram Khurshed Pesikaka v. State of Bombay, AIR 1955 SC 123.
  7. Rajit Ram v. State, AIR 1961 All 190 (FB).
  8. Vareed Porinchukutty v. State of Kerala, 1971 KLT 380.
  9. West Bengal Board of Secondary Education v. Siliguri Hindi High School, 2003 SCC OnLine Cal 525.
  10. Krishnabai & Ors. v. SLAO, 2009 SCC OnLine Kar 292.
  11. Nirajkumar Dubey v. Addl. Commissioner, Konkan Division, 2024 SCC OnLine Bom ––.