Doctrine of Waiver

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The doctrine of waiver involves waiving of rights. The Constitution of India guarantees fundamental rights to all its citizens. These rights include the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and the right to constitutional remedies. 

These fundamental rights form the cornerstone of our democracy, and any infringement of these rights can be challenged in the courts of law. However, there are certain situations where individuals may choose to waive their fundamental rights voluntarily. This is where the doctrine of waiver under fundamental rights comes into play.

What is the Doctrine of Waiver?

The doctrine of waiver is a legal principle that allows an individual to voluntarily relinquish or abandon a right that is otherwise available to them. In the context of fundamental rights, the doctrine of waiver allows an individual to waive their rights voluntarily and knowingly. However, the waiver must be made with full understanding of the consequences of such waiver.

For instance, if an individual is arrested by the police, they have the right to remain silent and not incriminate themselves. However, if the individual voluntarily decides to confess to the crime, they are waiving their right to remain silent. Similarly, if an individual is asked to undergo a medical test, they have the right to refuse such a test. However, if the individual voluntarily agrees to undergo the test, they are waiving their right to refuse the test.

Limitations of the Doctrine of Waiver

While the doctrine of waiver can apply to fundamental rights, it is subject to certain limitations and conditions. Any waiver of fundamental rights must be made voluntarily and with full understanding of the consequences. A waiver made under duress, coercion, or undue influence would be considered invalid.

Furthermore, certain fundamental rights, such as the right to life and the right to dignity, cannot be waived as they are considered non-derogate. This means that these rights cannot be suspended or set aside even during times of emergency or national crisis.

Landmark case laws on Doctrine of Waiver

In the landmark case of Behram v. State of Bombay (1955), the Indian Supreme Court held that the Doctrine of Waiver does not apply to the legislation entrenched in Part III of the Indian Constitution. It was observed that fundamental rights are not merely statutory rights, but are based on ideals enshrined in the Indian Constitution’s preamble, which cannot be renounced or relinquished by an accused person. Fundamental rights are an issue of national policy that cannot be abrogated, and thus this doctrine does not apply to issues involving constitutional policy.

Similarly, in the case of Basheshar Nath v. Income Tax Commissioner (1959), the Appellant had agreed to pay 3 lakh rupees per month to the Income Tax Department for taxes payable under the Income Tax Act. However, the Act was eventually found to be unconstitutional. The Appellant filed a lawsuit against the agreement, but the Income Tax Department claimed that by agreeing to a settlement, he had renounced his right to appeal. 

The Supreme Court ruled that the Indian Constitution does not adopt the Waiver Doctrine and that no one can absolve the government of its responsibility. The Court further stated that our democracy is a budding democracy, and given our social, economic, educational, and political circumstances, it is the Supreme Court’s solemn obligation to protect the basic rights enshrined for the first time in Part III of our Constitution.

In Olga Tellis & Ors vs Bombay Municipal Corporation, it was further held that there can be no estoppel against the Constitution. The Preamble of the Constitution states India to be a democratic republic and no citizen could barter away with fundamental rights.

However, the Doctrine of Waiver does apply to other legal rights and privileges. In the case of Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors, the Court ruled that anyone has the right to waive a legal right or privilege that has been bestowed upon them. For instance, in the event of a tenant-owner dispute, if a notice is provided, and no representation is made by the owner, tenant, or sub-tenant, it is a waiver of opportunity, and that party cannot be permitted to change their mind afterward.


The Doctrine of Waiver is a fundamental principle in law that allows individuals to waive their legal rights and privileges. However, this doctrine has certain limitations and conditions, and it cannot be applied to fundamental rights enshrined in the Indian Constitution’s Part III.

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