Doctrine of Waiver – Explain With Relevant Cases


A Right is often defined as an interest or a claim which provides the individual the facility to regulate the act of others, i.e., to form someone do or abstain from doing an act. A crucial question arises on whether these rights are often waived.

According to the doctrine of waiver, a person who is entitled to any right or privilege can waive off such a privilege, if he does so together with his discretion. This doctrine operates on the idea that a person is that the best judge of his interest under any legal liability, which he has the knowledge of the results while intentionally abandoning the privilege of such right.

But, the doctrine of waiver doesn’t apply to the fundamental rights of the people guaranteed under the Constitution of India. the elemental rights were kept within the Constitution for the general public at large and not merely for the individual’s benefit. Thus, the ‘doctrine of waiver’ can’t be used for abandoning fundamental rights.

In Basheshar Nath v. Commissioner of tax, an identical question arose whether a fundamental right could also be waived off by the one that has it. therein case, the petitioner was found to hide an outsized amount of his income under Section 5(1) of Taxation of Income (Investigation Commission) Act, 1947. The petitioner to flee an important penalty agreed to enter into a settlement under Section 8A with the Commissioner. within the meantime, the Supreme Court in another case held Section 5(1) as ultra vires of the Constitution, and as a result, it had been struck down. Counting on this decision of the Court, the petitioner approached the Apex Court and contended that he’s not susceptible to pay any penalty, thanks to absolvent of Section 5(1) of the impugned act.

The respondent on the opposite hand contended that albeit Section 5(1) was invalid, the petitioner, by making the settlement had waived his right under Article 14. It was held that Article 14 can’t be waived off because it may be a public policy of the state. nobody can relieve the state of this obligation.

In Olga Tellis & Ors vs Bombay Municipal Corporation, the pavement dwellers gave an undertaking to the MCD that they might not claim any fundamental right to place up huts on pavements and public roads, and also that they might not obstruct the demolition of the huts after a particular date. But later when the huts were sought to be demolished after the required date, the pavement dwellers pleaded that they’re protected under Article 21 of the Constitution of India. The municipal corporation contended that the dwellers cannot raise any such plea within the view of their previous undertaking. The Supreme Court, overruled the objection of the municipal corporation saying fundamental rights can’t be waived off by a person. There is often no estoppel against the elemental rights guaranteed under the Constitution.


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. The doctrine might be made applicable within the Indian system through judicial interpretation. But it’s unsure whether the doctrine could have constitutional backing.

This article has been written by Mauli Bisen, BBA.LLB [2nd Year] student at LNCT University.

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