The case of Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan and another (1958) is a landmark case on the question whether a person can waive his fundamental rights granted under the constitution?
Amongst other grounds, the plea taken by the Attorney General was that if there had been a breach of the assessee’s fundamental right by subjecting him to a discriminatory procedure laid down in the Investigation Act, the assessee, by voluntarily entering into a settlement, must be taken to have waived such breach and cannot now be permitted to set up his fundamental right.
The Hon’ble Supreme Court answered the following question in the manner as under:
12. Re. (1) : In Behram Khurshid Pesikaka v. State of Bombay, 1955-1 SCR 613 there was a general discussion whether a fundamental right could be waived. At page 638 (of SCR) Venkatarama Aiyar J. observe :
“The question is, what is the legal effect of a statute being declared unconstitutional. The answer to it depends on two considerations, – firstly, does the constitutional prohibition which has been infringed affect the competence of the Legislature to enact the law or does it merely operate as a cheek on the exercise of a power which is within its competence; and secondly, if it is merely a check, whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy. If the statute is beyond the competence of the Legislature, as for example, when a State enacts a law which is within the exclusive competence of the Union, it would be a nullity. That would also be the position when a limitation is imposed on the legislative power in the interests of the public, as, for instance, the provisions in Chap.13 of the Constitution relating to Inter-State trade and commerce. But when the law is within the competence of the Legislature and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals, it is not a nullity but is merely unenforceable. Such an unconstitutionality can be waived and in that case the law becomes enforceable. In America this principle is well settled. (vide Cooley on Constitutional Limitations, Volume I, pages 368 to 371; Willis on constitutional Law at pp. 524, 531, 542 and 558; Rottschaefer on Constitutional Law at pages 28 and 29-30).”
After referring to three decisions of the American Supreme Court which are also now relied on by the learned Attorney General, the learned Judge concluded as follows :
“The position must be the same under our Constitution when a law contravenes a prescription intended for the benefit of individuals. The rights guaranteed under Article 19(1)(f) are enacted for the benefit of owners of properties and when a law is found to infringe that provision it is open to any person whose rights have been infringed to waive it and when there is waiver there is no legal impediment to the enforcement of the law. It would be otherwise if the statute was a nullity; in which case it can neither be waived nor enforced. If then the law is merely, unenforceable and can take effect when waived it cannot be treated as non est and as effaced out of the statute book. It is scarcely necessary to add that the question of waiver is relevant to the present controversy not as bearing on any issue of fact arising for determination in this case but as showing the nature of the right declared under Article 19(1)(f) and the effect in law of a statute contravening it.”
When the case came up before the Court on review Mahajan C.J., with the concurrence of Mukherjea, Vivian Bose, and Ghulam Hassan JJ. said at p. 653 (of SCR) :
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 this 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.”
On that occasion one of us preferred not to express any opinion on this subject and said at p. 670 (of SCR) :
“In coming to the conclusion that I have, I have in a large measure found myself in agreements with the views of Venkatarama Aiyar 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 I prefer to express no opinion on this occasion.”
It will, however, be noticed 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.
13. The fundamental right, the breach whereof is complained of by, the assessee, is founded on Article 14 of the Constitution. The problem, therefore, before us is whether a reach of the fundamental right flowing from Article 14 can be waived.
14. Article 14 runs as follows :-
“The State shall not deny to any Person equality before the law or the equal protection of the laws within the territory of India.”
It is the first of the five Articles grouped together under the heading “Right to Equality.” The underlying object of this Article is undoubtedly to secure to all persons, citizens or non-citizens, the equality of status and of opportunity referred to in the glorious preamble of our Constitution.
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In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so ?
If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that “true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no, objection to my doing it.” I do not think the state will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State’s above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit.
It seems to us absolutely clear,’ on the language of Article 14 that it is a command issued by the Constitution to the State 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.
Reference
Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan and another (1958)