This article has been authored by Abhilekh Tiwari, a fourth year student at Institute of Law, Nirma University.
The idea that everybody should have basic human rights which are fundamental in nature is very much true. It has its history in traditions and culture and also in the religious books, such as the Vedas and Bible, which impart some duty and rights to the people that is in some way responsible for their welfare. What is known today as fundamental rights has its origin in various historical documents such as the English Bill of Rights, Magna Carta etc. After the recent judgement on right to privacy, the doctrine of waiver is again in discussion. The precedent established by a series of judgements, especially the landmark judgement of Basheshwar Nath v. IT Commissioner, lay that fundamental rights cannot be waived. Thus, the validity of Justice K S Puttaswamy v. UOI & Anr. in context of Waiver of Fundamental Rights ought to be understood.
In India, fundamental rights are considered to be the most important part of the Indian Constitution and the very essence of democracy. The concept of Fundamental Rights in the Indian Constitution has been borrowed from USA. Fundamental Rights in the Constitution of India is incorporated in Part III from Articles 12-35. The fundamental rights were incorporated into the Constitution since they were viewed as basic for the improvement of the identity of each person and to safeguard human dignity. The makers of the Constitution regarded democracy to be worthless if common liberties, like freedom of speech and religion were not provided and secured by the State. These rights are subjected to reasonable restrictions on the grounds of public order and morality. Fundamental rights in the Constitution of India include Right to Equality, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, Right to Constitutional Remedies etc.
Concept of Waiver and Suspension
The term ‘waiver’ can be defined as wilful surrender of one’s rights, privileges and benefits. Whether any person can waive the fundamental rights provided to him by the Constitution is a question that needs to be considered.
As defined in Black’s law dictionary, ‘waiver’ means ‘the voluntary relinquishment or abandonment (express or implied) of a legal right or advantage’. An essential element of waiver is that the party should have knowledge of the right and an intention to waive it off. The rights can’t be claimed again after waiving. On the other hand, suspension of rights is not done by an individual. Suspension is when the state takes away the rights of the people for the time being, whenever required like in emergency situations. Even during an emergency, some rights can’t be suspended in India like Arts. 20 and 21. Arts. 352, 356 and 360 talk about national, state and financial emergency respectively.
Under Art. 359, the President may suspend the enforcement of the fundamental rights in case of national or state emergency. The difference between waiver and suspension is that in waiver there is wilful surrender by the individual and in suspension an authority takes away the right for a particular amount of time.
Fundamental Rights and the Indian Judiciary
In the case of ADM Jabalpur v. Shivkant Shukla, popularly known as Habeas Corpus case, the Supreme Court established its independence. It was argued by the prosecution that under Art. 21 detainees had no right to approach the court as the provision extended to suspension of rights relating to life and personal liberty. However, this provision was subsequently amended. This shows that if the government can exploit the loopholes of the laws and subject the citizens to inhumane treatment, then the situation may become much worse if people wilfully surrender their rights.
In the case of Basheshwar Nath v. I.T. Commissioner, the petitioner was made liable under Section 5(1) of the Income Tax Act. The petitioner wanted to settle in this case after the amount of his income was decided as concealed. He agreed to pay 3 lakh rupees in 3 monthly instalments. However, back in 1955 the Supreme Court had held that Section 5(1) of the said Act is violative of Art. 14 of the Constitution. Again, the petitioner appealed to the Supreme Court and the defendants pleaded that the petitioner wilfully abandoned his right. Learned judges were of the view that Art. 14 cannot be waived as it is a matter of public policy. Moreover, protection of fundamental rights is a duty on the part of the State and citizens or persons shall not by their act remove the obligation on the part of government. India has a very diverse populace, rich and poor, different religion, educated and uneducated, people just can’t be let on the mercy of State and hence the judiciary shall protect the rights of individual.
In the minority opinion in the case of Behram v. State of Maharashtra, it was contended that fundamental rights are not just for individual benefits but these rights were provided keeping the concept of 'public policy' in mind. Hence, the doctrine of waiver should not be applied in case of fundamental rights.
In the case of Olga Tellis v. Bombay Municipal Corporation, pavement and slum dwellers gave an undertaking to the government stating that they did not have a right to construct huts and also that they would not restrict the Bombay Municipal Corp. from demolishing the huts after a particular date. Later, when the government began with the demolition of huts, the group of pavement dwellers claimed their fundamental right to life and personal liberty under Art. 21. The Government said, in reply, that they have submitted the undertaking and hence have waived off their right. The Supreme Court held that fundamental rights could not be waived. Again, Supreme Court held that fundamental rights are not only for the benefit of individual but for the collective interest of the public at large.
In most of the cases it was observed that fundamental rights cannot be waived as it could affect the public policy. The question that arises then is, what is public policy in India. There is no definite definition of public policy as it varies from country to country. For example, gambling at casinos may not be violative of public policy of USA, however in India it is violative of public policy. Public policy may be defined as general acceptance of law and order with reference to a particular society in making of which, the society and the leaders have a significant role to play. How can waiver of Fundamental Rights be violative of Public Policy?
Fundamental Rights are the limitations for state and the government has to work within this ambit and if fundamental rights don’t exist then it is possible for the government to take the form of dictatorship or tyranny, thus affecting the public policy and the very essence of the democracy may become null and void. In India the fundamental rights are an obligation on the part of government, and it cannot be bartered away. There is no such law or provision giving the differentiation between the fundamental rights for individual and rights for the benefit of general public. Unlike USA, where fundamental rights are allowed to be waived, this can’t be done in India because in India there is still illiterate and uneducated populace. It might be possible that since they are not aware of their rights, they might be exploited. If anyone waives off his right to life then the government may exploit the person, forcing him to work day in and day out. This may result in violation of public policy of India.
In the case of Rattan Chand Hirachand v. Askar Nawaz Lung, the Supreme Court stated that the “Doctrine of public policy is not immutable. With the passage of time, it changes as per the need of the society.” The current scenario is that, due to vast diversity, illiteracy, gap between rich and poor and lack of education, it would be perilous to permit waiver of fundamental rights. With the passage of time, it might be possible to allow waiver of fundamental rights. The population is yet to be mature enough to understand the concept of human rights.
Contemporary Concerns Regarding Waiver]
We have observed that, in India, fundamental rights cannot be waived because of various reasons, majorly due to the potential threat it might cause to the public order by allowing the government to exploit the human resource of the country. There has been a lot of debate regarding the Aadhar review petition and Right to Privacy. The Supreme Court of India, in the judgement of Justice K. S. Puttaswamy and Anr. vs Union of India And Ors.,held that Right to privacy is a fundamental right. The government has now made Aadhar card mandatory for availing the benefits of various government schemes which makes it seem like the government is asking the citizens to choose between availing benefits from schemes and not waiving off their fundamental right to privacy. It should be observed that the government is not leaving any choice but taking away the citizens’ fundamental right. Also, it is questionable whether the reasonable restrictions extend to waiving of fundamental rights. There is provision for the filing of RTI for the disclosure of certain information. If a person wants any personal information regarding a public official then consent of that official is necessary. Now considering the fact that right to privacy is a fundamental right, if that officer permits to disclose the personal information regarding, for example, their wealth, the question arises whether it will be considered that the official has waived off his fundamental right to privacy.
The issue is not just limited to Aadhar card or Right to Information. It also relates to ongoing prevalent method for alternate dispute resolution mechanism i.e., arbitration. One of the major clauses in arbitration agreement, the very reason for which parties opt for arbitration is the confidentiality of the proceedings. Sec. 34 of Arbitration and Conciliation Actgives provision for setting aside of arbitral award. In courts, the proceedings are public and hence, people would be compelled to waive off their fundamental rights if they want to proceed further. The matter became debatable after thePuttaswamy judgement.
With regards to this issue, Justice Nariman observed that the provisions regarding privacy will be tested on the grounds of ‘balancing test’ i.e., whether the public interest outweighs the particular aspect of the claimed privacy. Further, there should be sufficient safeguard if the information is disclosed in furtherance of statutory requirement.
Under what Circumstances is Waiver of ‘Rights’ Acceptable
There is a difference between not practicing the right and waiving off the right. As discussed, the waiver of fundamental rights is not permitted in India due to various reasons like it being violative of public policy, state has an obligation to provide rights, furthermore judiciary shall protect the fundamental rights as it is bound to do so and a vast populace of India is still vulnerable.
Though fundamental rights can’t be waived, other rights can be waived in India. Rights which are civil in nature can be waived like inheritance of property, or right to property. For example, when a land transfer deed is signed then the transferor completely waives off his rights and claims from that particular land may be in return of consideration. The reason for the acceptability of the waiver is that it will not affect the public policy as these contracts are personal in nature and the society as a whole has nothing to do with it.
Justice PN Bhagwati, in the judgement of Basheshwar Nath v. IT Commisioner, stated that the Constitution is ‘sacrosanct’ and it is not permissible to manipulate fundamental rights just by analogy of US Supreme Court. Further, His Lordship stated that the Indian democracy is nascent one and it is the duty of the Supreme Court to protect fundamental rights.There are many classes of people who are exploited and marginalised continuously, despite the existence of the rights and specific laws for their protection. Instances of Mob lynching are very frequent and if a person from any minority group is made to waive off his right then they would be more vulnerable and prone to exploitation. Despite provisions for reservation, marginalised communities like ST, SC, Dalits are facing atrocities. Keeping in mind the vast diversity, lack of education, income disparities and large population, it would not be rational to permit the waiver of fundamental rights. It would certainly be against the public policy of India to impart right of waiver of fundamental rights.
 What is WAIVER? definition of WAIVER, Black’s Law Dictionary, (last visited Mar 4, 2019), https://thelawdictionary.org/waiver/. Nishith Desai Associates: Supreme Court holds that the right to privacy is a fundamental right guaranteed under the Constitution of India, Nishith Desai(Mar 4, 2019), Nishith Desai Associates: Supreme Court holds that the right to privacy is a fundamental right guaranteed under the Constitution of India, Nishith Desai. Nathaniel L. Nathanson, Waiver OF CONSTITUTIONAL RIGHTS IN INDIAN AND AMERICAN CONSTITUTIONAL, Indian Law Institute Stable, Vol. 4, No. 2,157–166 (1962).