Waiver Of Right: An Indian Scenario - Privilege

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Introduction

A legal right of an individual cast duties and obligations onother private individuals or society towards such individuals. Italso exists in the nature of an enforceable privilege sanctioned bylegislation done in the context of certain established socialstructures. The Supreme Court of India, in the State ofRajasthan Case1, hasdefined the term 'legal right' as an interest which the lawprotects by imposing corresponding duties on others. In the samecase, the Supreme Court has defined the term 'right' (e.g.liberty) as an exemption from the subjugation of legal power ofanother.

Be that as it may, a right which has been conferred on anindividual, either by legislation or contractual provisions, such aright can be waived off by the individual which might result incomplete abandonment of legal privilege cast by such legal orcontractual provision. In India, the Doctrine of Waiver has beenprevalent since the inception of the judiciary and at some point intime, it has even preceded the judiciary of Independent India. Inthe year 1945, the Bombay High Court2 recognised the Doctrine of Waiver inIndia as different from the English Law and further stated that inIndia, the Doctrine of Waiver can be found in Section 63 of theIndian Contract Act, 1872 ("Contract Act").

Since then, there has been a significant development in theDoctrine of Waiver which has resulted in exploration of waiver ofright beyond contractual conferment with limitations beingdetermined simultaneously on such expansion of exercise of waiverof rights.

What is Waiver of Right?

According to the Black's Law Dictionary3, the term "Waiver" hasbeen defined as the voluntary relinquishment or abandonment of alegal right or advantage. It is an act of surrender of benefit orprivilege. The waiver of right requires a prior-knowledge of anexisting right by the person who seeking waiver of such right. Aperson is required to be fully cognizant of his rights beforewaiving off such rights4.Therefore, there cannot be any waiver unless the person who hassaid to have waived off the right with full knowledge of suchright, abandons the same5.

A person can waive off its right in many ways which interalia includes waiver by estoppel or by election6. The Supreme Court has held that awaiver of a right gets its essence from estoppel and thus, therewill be no waiver where there is no estoppel in place7. In Ramdev Food ProductsCase8, the Supreme Court,while discussing the Doctrine of Waiver pertaining to the right toobject against a trademark infringement, held that if a personalters its position with respect to fulfilling its obligations,such person, after alteration cannot revert to its previous legalrelationship.

Therefore, a person cannot retract from its exercise of waiverof rights in a situation where such person has communicated itsintent to the other party pertaining to waiver of his/her rightsand has acted on such intent. The principle of estoppel alsoprevents retraction where there has been a simultaneous change inconduct of the other party on account of communication regardingwaiver.

Waiver of Contractual Rights

The Contract Act, has been enacted for defining the essentialingredients required to solidify private rights and obligationsbetween the parties. The Doctrine of Waiver finds its place underSection 63 of the Contract Act which provides for relinquishment ofrights between the parties. Rights that may be relinquished includeobligations as well as claims that had been earlier consented to beperformed and exercised by the parties. Thus, the waiver of rightunder Section 63 of the Contract Act has to be a matter of mutualconsensus and there cannot be a waiver of a right which is not inexistence9.

In the matter of Jagad Bandh Chatterjee Case10, the Supreme Court, whilediscussing waiver of a right under Section 63 of the Contract Act,has held that such waiver of right does not even require anyconsideration or an agreement. The Supreme Court also made areference to the Waman Srinivas Case11 and held that waiver constitutesabandonment of a right and normally, everybody is at liberty towaive such a right.

Waiver of Statutory Rights

Over the years, the Doctrine of Waiver has also been applied incases where parties wish to waive off rights conferred upon them bylegislation. There have been instances where a statutory right hasbeen sought to be waived off and the Supreme Court has given itsobservations on the same. The Waman Shriniwas Case was oneof the first cases of such kind wherein the Supreme Court has helda waiver of statutory right to be permissible as long as suchwaiver does not infringes the rights of the others and is notagainst public policy or morals.

The Waman Shriniwas Case has provided enough insightfor the judiciary to ponder upon the Doctrine of Waiver visà vis statutory rights. Even though a contractualwaiver is permissible, such exercise of waiver is, however, subjectto certain limitations. Various judicial pronouncements haveestablished that no person can waive off any of his statutoryrights that have been enacted in public interest12. Such an exception is governed bythe legal maxim, quilibet potest renuntiare juri pro seintroducte. It means that all the conditions as stated under astatute are dispensable as long as such statutory conditions havenot been inserted by the legislature in the interest of the public.It can also be said that waiver of rights has to be examined in thefacts and circ*mstances of each case and there cannot be any waiverof a statutory condition enacted in public interest13. Thus, the statutory right can bewaived off by parties via contract if it can be shown thatsuch right was conferred only for the private benefit of suchparties and does not involve any public interest14.

The Supreme Court has at many times, while relying on theliterature of eminent theorists, explained the principle ofcontractual waiver which has to be examined under the legislativeintent of the statute under which such right is governed. TheSupreme Court has also explained that it has to be seen whether theintent behind conferring of such rights involves any publicinterest or not15.

Thus, it can be said that a statutory right can be waivedsubject to the following conditions:

The parties should have a direct private benefit from the rightsought to be waived.
The conferred right should not be pertaining to any matterinvolving public interest. This can be ascertained by looking intothe legislative intent of the statute.

Waiver of Fundamental Rights is Impermissible

The waiver of Fundamental Rights is not permissible under theIndian law. One of the early decisions dealing with this aspect wasdelivered by a five-judge bench of the Supreme Court in the matterof Basheshar Nath Case16.Therein, it was held that there could be no waiver of any of thefundamental rights enshrined under Part III of the Constitution.The fundamental rights, being rights entrusted as a matter ofpublic policy, cannot be subjected to the Doctrine of Waiver andthus, waiver cannot have any applicability to the provisions whichhave been enacted as a matter of constitutional policy17.

As regards to waiver by way of estoppel, similar observation hasbeen given by the Supreme Court in Nar Singh Pal Case18, wherein it has been held that thefundamental rights cannot be bartered away nor can there be anyestoppel against the exercise of such fundamental rights. TheSupreme Court has also applied the similar principle in its earlierdecision passed in Olga Tellis Case19, wherein the pavement dwellershad, earlier, waived off their right to object to the demolition oftheir huts and, later, objected to the same while claiming theirright under Article 21 of the Constitution. The Supreme Courtstated that for fulfilling the purpose of the Preamble of theConstitution, fundamental rights have been conferred on citizenswith certain rights granted to non-citizens as well, and thus,cannot be bartered away by any individual. Thus, the fundamentalrights, in any case, cannot be waived off by a person as suchrights have been constituted in order to safeguard interests whichare protected as a matter of public policy.

Conclusion

From the preceding discussion, it can be said that the person isalways at liberty to waive off its rights, whether contractual orstatutory. The principle of estoppel has a key role in an act ofwaiver and thus, goes hand in hand with the Doctrine of Waiver inall respects. Waiver, being consensual in nature, will alwaysrequire two or more parties to put it into effect but there is noeffective consideration that is required to exercise waiver ofright. One can also not ignore that the waiver of statutory rightsis subject to the public policy and interest vested in the rightsought to be waived and thus, has its own limitations that are tobe examined from the facts of each case. On the other hand, thefundamental rights are so intrinsic and vital to the interest ofthe public, that as of now, there is an absolute bar on waiver offundamental rights with no exceptions to the same.

Footnotes

1. State ofRajasthan v. Union of India (1977) 3 SCC 592

Waiver Of Right: An Indian Scenario - Privilege - India (2024)