A legal right of an individual cast duties and obligations on other private individuals or society towards such individuals. It also exists in the nature of an enforceable privilege sanctioned by legislation done in the context of certain established social structures. The Supreme Court of India, in the State of Rajasthan Case1, has defined the term 'legal right' as an interest which the law protects by imposing corresponding duties on others. In the same case, the Supreme Court has defined the term 'right' (e.g. liberty) as an exemption from the subjugation of legal power of another.
Be that as it may, a right which has been conferred on an individual, either by legislation or contractual provisions, such a right can be waived off by the individual which might result in complete abandonment of legal privilege cast by such legal or contractual provision. In India, the Doctrine of Waiver has been prevalent since the inception of the judiciary and at some point in time, it has even preceded the judiciary of Independent India. In the year 1945, the Bombay High Court2 recognised the Doctrine of Waiver in India as different from the English Law and further stated that in India, the Doctrine of Waiver can be found in Section 63 of the Indian Contract Act, 1872 ("Contract Act").
Since then, there has been a significant development in the Doctrine of Waiver which has resulted in exploration of waiver of right beyond contractual conferment with limitations being determined simultaneously on such expansion of exercise of waiver of rights.
What is Waiver of Right?
According to the Black's Law Dictionary3, the term "Waiver" has been defined as the voluntary relinquishment or abandonment of a legal right or advantage. It is an act of surrender of benefit or privilege. The waiver of right requires a prior-knowledge of an existing right by the person who seeking waiver of such right. A person is required to be fully cognizant of his rights before waiving off such rights4. Therefore, there cannot be any waiver unless the person who has said to have waived off the right with full knowledge of such right, abandons the same5.
A person can waive off its right in many ways which inter alia includes waiver by estoppel or by election6. The Supreme Court has held that a waiver of a right gets its essence from estoppel and thus, there will be no waiver where there is no estoppel in place7. In Ramdev Food Products Case8, the Supreme Court, while discussing the Doctrine of Waiver pertaining to the right to object against a trademark infringement, held that if a person alters its position with respect to fulfilling its obligations, such person, after alteration cannot revert to its previous legal relationship.
Therefore, a person cannot retract from its exercise of waiver of rights in a situation where such person has communicated its intent to the other party pertaining to waiver of his/her rights and has acted on such intent. The principle of estoppel also prevents retraction where there has been a simultaneous change in conduct of the other party on account of communication regarding waiver.
Waiver of Contractual Rights
The Contract Act, has been enacted for defining the essential ingredients required to solidify private rights and obligations between the parties. The Doctrine of Waiver finds its place under Section 63 of the Contract Act which provides for relinquishment of rights between the parties. Rights that may be relinquished include obligations as well as claims that had been earlier consented to be performed and exercised by the parties. Thus, the waiver of right under Section 63 of the Contract Act has to be a matter of mutual consensus and there cannot be a waiver of a right which is not in existence9.
In the matter of Jagad Bandh Chatterjee Case10, the Supreme Court, while discussing waiver of a right under Section 63 of the Contract Act, has held that such waiver of right does not even require any consideration or an agreement. The Supreme Court also made a reference to the Waman Srinivas Case11 and held that waiver constitutes abandonment of a right and normally, everybody is at liberty to waive such a right.
Waiver of Statutory Rights
Over the years, the Doctrine of Waiver has also been applied in cases where parties wish to waive off rights conferred upon them by legislation. There have been instances where a statutory right has been sought to be waived off and the Supreme Court has given its observations on the same. The Waman Shriniwas Case was one of the first cases of such kind wherein the Supreme Court has held a waiver of statutory right to be permissible as long as such waiver does not infringes the rights of the others and is not against public policy or morals.
The Waman Shriniwas Case has provided enough insight for the judiciary to ponder upon the Doctrine of Waiver vis à vis statutory rights. Even though a contractual waiver is permissible, such exercise of waiver is, however, subject to certain limitations. Various judicial pronouncements have established that no person can waive off any of his statutory rights that have been enacted in public interest12. Such an exception is governed by the legal maxim, quilibet potest renuntiare juri pro se introducte. It means that all the conditions as stated under a statute are dispensable as long as such statutory conditions have not 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 the facts and circumstances of each case and there cannot be any waiver of a statutory condition enacted in public interest13. Thus, the statutory right can be waived off by parties via contract if it can be shown that such right was conferred only for the private benefit of such parties and does not involve any public interest14.
The Supreme Court has at many times, while relying on the literature of eminent theorists, explained the principle of contractual waiver which has to be examined under the legislative intent of the statute under which such right is governed. The Supreme Court has also explained that it has to be seen whether the intent behind conferring of such rights involves any public interest or not15.
Thus, it can be said that a statutory right can be waived subject to the following conditions:
- The parties should have a direct private benefit from the right sought to be waived.
- The conferred right should not be pertaining to any matter involving public interest. This can be ascertained by looking into the legislative intent of the statute.
Waiver of Fundamental Rights is Impermissible
The waiver of Fundamental Rights is not permissible under the Indian law. One of the early decisions dealing with this aspect was delivered by a five-judge bench of the Supreme Court in the matter of Basheshar Nath Case16. Therein, it was held that there could be no waiver of any of the fundamental rights enshrined under Part III of the Constitution. The fundamental rights, being rights entrusted as a matter of public policy, cannot be subjected to the Doctrine of Waiver and thus, waiver cannot have any applicability to the provisions which have been enacted as a matter of constitutional policy17.
As regards to waiver by way of estoppel, similar observation has been given by the Supreme Court in Nar Singh Pal Case18, wherein it has been held that the fundamental rights cannot be bartered away nor can there be any estoppel against the exercise of such fundamental rights. The Supreme Court has also applied the similar principle in its earlier decision passed in Olga Tellis Case19, wherein the pavement dwellers had, earlier, waived off their right to object to the demolition of their huts and, later, objected to the same while claiming their right under Article 21 of the Constitution. The Supreme Court stated that for fulfilling the purpose of the Preamble of the Constitution, fundamental rights have been conferred on citizens with certain rights granted to non-citizens as well, and thus, cannot be bartered away by any individual. Thus, the fundamental rights, in any case, cannot be waived off by a person as such rights have been constituted in order to safeguard interests which are protected as a matter of public policy.
From the preceding discussion, it can be said that the person is always at liberty to waive off its rights, whether contractual or statutory. The principle of estoppel has a key role in an act of waiver and thus, goes hand in hand with the Doctrine of Waiver in all respects. Waiver, being consensual in nature, will always require two or more parties to put it into effect but there is no effective consideration that is required to exercise waiver of right. One can also not ignore that the waiver of statutory rights is subject to the public policy and interest vested in the right sought to be waived and thus, has its own limitations that are to be examined from the facts of each case. On the other hand, the fundamental rights are so intrinsic and vital to the interest of the public, that as of now, there is an absolute bar on waiver of fundamental rights with no exceptions to the same.
1. State of Rajasthan v. Union of India (1977) 3 SCC 592
2. Phoenix Mills, Ltd. v. M.H. Dinshaw & Co. AIR 1946 Bom 469
3. Bryan A. Garner, Black's Law Dictionary (8th Edn., Thomson Reuters 2009)
4. Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC 425
5. M.P. Sugar Sugar Mills Co. Pvt. Ltd v. State of U.P. AIR 1979 SC 621
6. Halsbury's Laws of England, 4th Edn., Vol. 45
7. Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association 1988 Supp SCC 55
8. Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel (2006) 8 SCC 726
9. P. Dasa Munni Reddy v. P. Appa Rao (1974) 2 SCC 725
10. Jagad Bandhu Chatterjee v. Smt. Nilima Rani & Ors. (1969) 3 SCC 445
11. Waman Shriniwas Kini v. Ratilal Bhagwandas and Co. AIR 1959 SC 689
12. All India Power Engineer Federation v. Sasan Power Ltd. (2017) 1 SCC 487
13. Shalimar Tar Products v. H.C. Sharma (1988) 1 SCC 70
14. Murlidhar Aggarwal v. State of U.P. (1974) 2 SCC 472
15. Lachoo Mal v. Radhey Shyam (1971) 1 SCC 619
16. Basheshar Nath v. Commissioner of Income Tax, AIR 1959 SC 149
17. Behram Khrushed Pesikaka v. The State of Bombay AIR 1955 SC 123
18. Nar Singh Pal v. Union of India (2000) 3 SCC 588
19. Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180
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