Can Fundamental Rights be waived?

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The Constitution of India guarantees certain fundamental rights to its citizens which are enshrined in Part III of the Constitution. These rights are subject to various limitations meaning thereby that these rights are not absolute and are subject to certain exceptions. Most of these rights are enforceable against the state and even the state is not empowered to take away these rights by way of any law, as has been provided under Article 13. So, does this mean that the Fundamental Rights cannot be breached and are they absolute?

It is well known that Fundamental Rights have certain limitations and they are not absolute, additionally, also by virtue of Article 31B wherein certain laws have been placed under Schedule 9 which have been exempt from Article 13. One aspect of Fundamental Rights which has not been pondered upon much is whether a person to whom a Fundamental Right is being guaranteed can himself waive the same? Waiver of a right means relinquishment of that right by the individual. A Constitution Bench of five judges of the Supreme Court in Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan, AIR 1959 SC 149 held that Fundamental Rights cannot be waived. In the above case there were different opinions there were four different judgments wherein Sudhiranjan Das, C.J. had written for J.L. Kapur, J. and himself and Bhagwati, S.K. Das and K. Subba Rao, JJ. had given separate judgments. It is interesting to note that although the Constitution of India has borrowed the concept of Fundamental Rights from the United States of America, where the Fundamental Rights can be waived.

Before the abovementioned Basheshar Nath case, it is pertinent to mention and discuss the case of Behram Khurshid Pesikaka v. The State of Bombay, (1955) 1 SCR 613 in which the question of waiver was mooted upon wherein Justice Venkatrama Aiyar, J. observed that there are two types of fundamental rights – firstly for the benefit of the individuals and the secondly for the benefit of the general public. He observed that the rights belonging to the first class which are for the benefit of the individual persons can be waived whereas the rights which are for the benefit of the general public cannot be waived by a person. Explaining the above, an example was given by him that if by any law, there is a violation of the fundamental right to property, it can be waived by the citizen. However, in contrary to his view, the majority opinion was that no distinction can be drawn between the fundamental rights as the fundamental rights are not merely for the benefit of the individual and thus they held that doctrine of waiver cannot be applicable to the fundamental rights. A citizen cannot invite discrimination by telling the state that “you can discriminate against me”, or get convicted by waiving the protection given to him under Articles 20 and 21.

In Basheshar Nath, an SLP was filed by the appellant questioning the validity of a settlement made by him under Section 8-A of the Taxation on Income (Investigation Commission) Act, 1947 because the Supreme Court vide Suraj Mall Mohta and Co. v. A. V. Visvanatha Sastri, [1955] 1 S.C.R. 448 had declared the said Act violative of Article 14 of the Constitution. Inspite of the said judgment, the appellant complied with the settlement for sometime but defaulted later on and his properties were attached. The appellant wrote to the authorities that since the said act was declared ultra vires of Article 14 of the Constitution of India, the said settlement did not apply to him and hence his properties should be released. The Commissioner of Income Tax (hereinafter referred to as the CIT) replied informing the appellant that the said settlement is valid and binding on the appellant and asked him to make good the arrears of the instalments which he has not paid, otherwise the recovery proceedings would be vigorously pursued through the usual recovery channels. Being aggrieved from the said decision of the CIT, the appellant approached the Supreme Court with Special Leave to Appeal against the order.

The Attorney General for India Mr. M. C. Setalvad argued that the submission made by the appellant that there is a breach of fundamental right of appellant by subjecting him to a discriminatory procedure laid down in the Investigation Act, the appellant, by voluntarily entering into a settlement must have waived such breach and cannot be permitted to set up his fundamental right. Hence the question before the Supreme Court was whether the assessee could waive the breach of fundamental right in question”. Sudhiranjan Das, C.J. and J.L. Kapur discussed the case of Behram Khurshid Pesikaka v. The State of Bombay, (1955) 1 SCR 613 in which a Constitution Bench of the Supreme Court had a general discussion whether a Fundamental Right can be waived. In Behram Khurshid Pesikaka, Mahajan, C.J. had in concurrence of Mukherjea, Vivian Bose and Ghulam Hassan, JJ. said at page 653 in the review of the said case:

In our opinion, the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. No inference in deciding the case should have been raised on the basis of such a theory. The learned Attorney-General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory 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 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.(emphasis supplied)

On this occasion Sudhi Ranjan Das, J. (as he then was), who had also authored the judgment in Basheshar Nath for himself and Kapur, J., preferred to express no opinion on waiver and observed,

“In coming to the conclusion that I have in a large measure found myself in agreement with the views of Venkatarama Ayyar, J. on that part of the case. I, however, desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment, particularly those relating to waiver of unconstitutionality, the fundamental rights being a mere check on legislative power or the effect of the declaration under Article 13(1) being “relatively void”. On those topics prefer to express no opinion on this occasion.” (emphasis supplied)

However, Sudhi Ranjan Das, C.J. further observed that the “observations of the learned Judges made in that case did not relate to the waiver of a breach of the fundamental right under Article 14….. For disposing of this appeal it is not necessary for us to consider whether any of the other fundamental rights enshrined in Part III of our Constitution can or cannot be waived. We take the view that this Court should not make any pronouncement on any question which is not strictly necessary for the disposal of the particular case before it. We, therefore, confine our attention to Article 14 and proceed to discuss the question on that footing.”

He further observed that “….It seems to us absolutely clear, on the language of Article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State”.

Thus, Sudhi Ranjan Das, C.J. and Kapur, J. held that since the present case relates to the law being violative of only Article 14, they are expressing their judgment over article 14 as for the disposal of the case it is not necessary to consider whether the other fundamental rights can be waived or not and held that there can be no waiver of a fundamental right guaranteed under Article 14 of the Constitution of India and thereby allowed the appeal.

Justice N.H. Bhagwati, who wrote a separate judgment for himself, opined that the fundamental rights guaranteed by Part III of the Constitution cannot be waived. Perhaps referring to the reasoning given by Das, C.J. and Kapur, J. that they should restrict themselves to deciding waiver only with respect to Article 14, he said that since the arguments raised before the Court extended to the whole fundamental rights and not specifically for waiver of Article 14, there is no reason why their opinion on right to waiver should be restricted only to article 14 and not to other fundamental rights. Various cases of the Supreme Court of the United States of America were relied upon by the Attorney General for India before the Supreme Court giving reasons why should there be a waiver of the Fundamental Rights and thereby he tried showcasing the similarity in the Fundamental Rights of India and the United States. Justice Bhagwati said that “the limitations on those rights have been enacted in the constitution itself e.g. in Articles 19, 33 and 34. But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution, there is no justification whatever for importing any notions of the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the Fundamental Rights enshrined in Part III of our Constitution.”(emphasis supplied) He further observed that Article 13(2) of the Constitution prevents the state from enacting any law that takes away or abridges the rights conferred by Part III. No distinction was made in terms between the fundamental rights said to have been enacted for the benefit of individuals and those enacted in the public interest or on grounds of public policy. He held that when rights conferred are put on a high pedestal and are given the status of fundamental rights, they are absolutely inviolable save as expressly enacted in the constitution and cannot be waived by a citizen. The constitution adopted by our founding fathers is sacrosanct and it is not permissible to tinker with those fundamental rights by any ratiocination or analogy of the decisions of the Supreme Court of the United States of America. The only manner in which that can be done is by appropriate amendment of the Constitution and in no other manner whatsoever.

Thus, Bhagwati, J. held that no fundamental right can be waived by a citizen and that the fundamental rights are sacrosanct and cannot be waived on the basis of the decisions of the Supreme Court of the United States of America as the Indian Constitution has a mechanism to check the violation of the fundamental rights as has been provided under article 13.

Justice Subba Rao, also opined that none of the Fundamental Rights in Part III of the Constitution can be waived by a citizen. He observed that although the judgments of the Supreme Court of the United States are of great assistance to the Supreme Court of India for solving the difficult problems that arise from time to time, it is equally necessary to keep in mind the fact that the decisions are given in the context of different social, economic and political set up, and therefore great care should be bestowed in applying those decisions to cases arising in India with different social, economic and political conditions. While the principles evolved by the Supreme Court of United States may in certain circumstances be accepted, their application to similar facts in India may not always lead to the same results. Article 13 not only declares that all laws in force before the commencement of the Constitution and made thereafter taking away or abridging the said rights would be void to the extent of the contravention but also prohibits the state from making any law taking away or abridging the said rights. He thus said that Part III is therefore enacted for the benefit of all the citizens of India and the entire part has been introduced in public benefit and it is not proper that the fundamental rights created under the various articles should be dissected to ascertain whether any or which part of them is conceived in public interest and which part of them is conceived for individual benefit. Part III reflects the attempt of the Constitution makers to reconcile the individual freedom with state control. While in America this process of reconciliation was allowed to be evolved by the course of judicial decisions, in India, the fundamental rights and their limitations are crystallized and embodied in the Constitution itself; while in America a free hand was given to the judiciary not only to evolve the content of the right but also its limitations, in the Indian constitution there is not much scope for such a process. “The court cannot therefore import any further limitations on the Fundamental Rights other than those contained in Part III by any doctrine, such as “waiver” or otherwise. I would, therefor, hold that the fundamental rights incorporated in Part III of the Constitution cannot be waived.” (emphasis supplied)

With regard to the freedoms granted under Part III, he observed, “A freedom to do a particular act involves the freedom not to do that act. There is an essential distinction between the non-exercise of a right and the exercise of a right subject to the doctrine of waiver.”

Thus, all the arguments stating that there is already a waiver of the fundamental rights since a right to speak includes a right to not to speak and a right to work includes a right to not to work have no merit as  Justice Subba Rao very emphatically cleared the stand that this does not amount to waiver and a freedom to do a particular thing includes a freedom to not to do that thing.

Justice SK Das who gave a dissenting decision held that waiver of fundamental rights can be done. He said that the fundamental rights should be tested for whose benefit the right has been primarily granted – for the benefit of the general public or for the individuals. He observed,

“51. Let me now apply this test to some of the provisions in Part III of the Constitution. These provisions have been classified under different heads: (1) right to equality, (2) right to freedom, (3) right against exploitation, (4) right to freedom of religion, (5) cultural and educational rights, (6) right to property and (7) right to constitutional remedies. There can be no doubt that some of these rights are for the benefit of the general public. Take, for example, Article 23 which prohibits traffic in human beings etc; so also Article 24 which says that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment. I do not wish to multiply examples and it is sufficient to state that several of these rights are rights which are meant primarily for the benefit of the general public and not for an individual. But can we say the same thing in respect of all the rights? Let us take Article 31, which says that no person shall be deprived of his property save by authority of law and that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation etc. Take a case where a man’s property is acquired under a law which does not fix the amount of compensation or specify the principles on which or the manner in which the compensation is to be determined and given. The man whose property is taken may raise no objection to the taking of his property under such law. Indeed, he may expressly agree to Government taking his land for a public purpose under the law in question, though it does not comply with the requirements as to compensation. Can such a man after two or three years change his mind and say that the law is invalid and his land on which a school or a hospital may have been built in the meantime should be restored to him, because he could not waive his fundamental right? In my opinion, if we express the view in the abstract that no fundamental right can ever be waived, many startling and unforeseen results may follow. Take another example. Suppose a man obtains a permit or a licence for running a motor vehicle or an excise shop. Having enjoyed the benefit of the permit for several years, is it open to him to say when action is proposed to be taken against him to terminate the licence, that the law under which the permit was granted to him was not constitutionally valid? Having derived all the benefit from the permit granted to him, is it open to him to say that the very Act under which a permit was granted to him is not valid in law? Such and other startling results will follow if we decide in the abstract, by a general negative, that a fundamental right can never be waived. Take Article 32, which is a right to a constitutional remedy, namely, the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III. It is now well settled by several decisions of this Court that the right under Article 32 is itself a fundamental right. Suppose a person exercises that right and initiates appropriate proceedings for enforcement of a fundamental right. Later he thinks better of it and withdraws his application. Still later he changes his mind. Can he then say that he could not waive his right under Article 32 and the order passed on his application for withdrawal had no legal validity? We may take still another example. Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice. Suppose, there is a minority educational institution, and the minority has the right to administer that institution, but they want grant from Government. The minority may have to surrender part of its right of administration in order to get government aid. Can the minority waive its right? Such a question arose for consideration in the advisory opinion which we gave in connection with the Kerala Education Bill and, so far as I have been able to understand, the effect of our opinion is that the minority can surrender part of its right of administration of a school of its own choice in order to get aid from Government. If we now hold that the minority can never surrender its right, then the result will be that it will never be able to ask for government aid.”

He held that where a right or privilege guaranteed by the Constitution rests in the individual, it is primarily intended for his benefit and does not infringe on the right of the others and it can be waived provided such waiver is not forbidden by law and does not contravene public policy or public morals.

So, summing the case up, Das, C.J. and Kapur, J. held that only article 14 cannot be waived; Subba Rao, J. and Bhagwati, J. held that no fundamental right can be waived, and the minority dissenting view of S.K. Das, J. stated that only the rights which were for the individual benefit of a person can be waived. After this judgment, the position was clear that a fundamental right cannot be waived. This judgment has been quoted and upheld innumerable times by the Hon’ble Supreme Court of India and various other High Courts. However, recently, in the case of Justice K.S. Puttaswamy v. Union of India in which the Right to Privacy was held to be a fundamental right, Justice Chandrachud has discussed Basheshar Nath along with Behram Khurshid Pesikaka and has observed that the Right to Privacy includes “decisional autonomy”. Decisional autonomy means that there can be a waiver with respect to the Right to Privacy for example if a person posts something on Facebook, that person cannot claim that his right to privacy has been infringed as he himself has posted such information and so it can be used by anyone. However, if under some statutory compulsion/obligation, a person has to give some information to the Government or a Government body, in that case the Government authority cannot dissipate the information and if it does so, it definitely is an infringement of the Right to Privacy as here the data is not shared with the government with the intention that it would be shared with the public rather only with the intention that it would be under the control of the Government.

Mr. Arvind Datar, Senior Advocate who had argued the Right to Privacy case before the Supreme Court has in an article on Bar and Bench said, “The decision in Basheshar Nath is yet another judgment that deserves to be overruled even though it is almost 60 years old.

Having discussed the legal position in India, it is pertinent to note that there are certain situations in which even today the right to waiver of a fundamental right is being practiced. For example, if a citizen joins the service under the government, he is under certain rules and regulations which may stop him from exercising his free speech and expression and may stop him from commenting on certain issues, speaking against the government, etc. Here, the rules are not laws that infringe the Fundamental Right to Speech and Expression, but it is sort of an agreement that if the citizen is under the service of the government, he would have to abide by the rules, and in such a case, he is willfully doing the waiver of his fundamental right. Another example may be that if a person wants to become a witness in a case in which he is accused, he may be subject to cross examination by the prosecution. He may be asked questions which might implicate himself in the case. Even if that particular statement may not be used to convict him, an inference can be made, and a conviction can be sought, thus appearing in a case as a witness and providing evidence and then being subject to cross examination which might implicate oneself, is to my limited understanding an example of the right to waiver of the fundamental rights.

The situation till now was that there cannot be a waiver of a fundamental right, however after the Right to privacy judgment, the right to privacy can be waived. However, the other fundamental rights still cannot be waived until and unless obviously, a situation arises by which why the Supreme Court today in the changed circumstances overrules the judgment of Basheshar Nath.

About Alabhya Dhamija

Alabhya is an Advocate practicing at Delhi High Court and other courts in Delhi. Contact: alabhya@dhamija.com

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