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DOCTRINE OF WAIVER

 DOCTRINE OF WAIVER 

BY NUPUR GARG

INTRODUCTION 

An individual possesses certain legal rights which are conferred upon him either by the constitution, statute or a contract. A Right can be defined as an interest or a claim which gives the individual the power to control the act of others, i.e., to make someone do or abstain from doing an act. An important question arises as to whether these rights can be 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.

SALIENT FEATURES OF THE DOCTRINE:

  1. INTENTION

It is an essential element as one must intend such Waiver. Waiver of right can either be expressed or implied. Express waiver is done in writing or giving a statement of waiver. Implied waiver is judged based on the conduct or act of a person.

  1. KNOWLEDGE

Knowledge here implies to the person waiving off rights must know of the nature of such rights and consequences of such waiver. It's not necessary to have absolute understanding of the right/privilege but be briefed about it.

  1. RELEVANCE

The doctrine of waiver is of prime importance and its non-application on constitutional rights is a major check on powers of legislature. If the doctrine were to be applicable, it could make an individual waive his rights in lieu of some benefits provided by the State.

The doctrine is founded on justice and reason. It would be unfair and unjust to hear who alleges inconsistent facts. Allowing a person to first take benefit of the statute and then challenge its constitutionality is unreasonable. Moreover, it can be argued that ignorantia juris non excusat, a person alleging that he did not know about the unconstitutionality of the statute should not be excused.

Thus, it can be deduced that doctrine of waiver holds much importance and its unique characteristics ensure that no error of law takes place. Its applicability is justified and the landmark judgements delivered ensures that there is no conflict of views regarding it.

JUDGEMENT 

Behram Khurshed Pesikaka v. The State of Bombay: In this case, it was held,


“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.”

CONCLUSION

The doctrine of waiver is of prime importance and its non-application on constitutional rights is a major check on powers of legislature. If the doctrine were to be applicable, it could make an individual waive his rights in lieu of some benefits provided by the State. The doctrine could be made applicable in the Indian legal system through judicial interpretation. But it is in doubt whether the doctrine could have constitutional backing. Looking at the brighter side of the doctrine of waiver, it is founded on justice and reason. It would be unfair and unjust to hear who alleges inconsistent facts. Allowing a person to first take benefit of the statute and then challenge its constitutionality is unreasonable. Moreover, it can be argued that ignorantia juris non excusat and a person alleging that he did not know about the unconstitutionality of the statute should not be excused.


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