Doctrine of Waiver |
Doctrine of
Waiver
Definition
The Doctrine of
Waiver seems to be based on the premise that a person is his best judge and
that he has the liberty to waive the enjoyment of such rights as are conferred
on him by the state.
Black’s Law
Dictionary defines Waiver as “the voluntary relinquishment or abandonment
(express or implied) of a legal right or advantage”. It also says that
the party alleged to have waived a right must have had both knowledge of the
existing right and the intention of forgoing it.
Various Legal
luminaries and scholars have also tried to explain the Doctrine of Waiver.
1. William R.
Anson[1] – The term waiver is one
of those words of indefinite concoction in which our legal literature abounds;
like a cloak, it covers a multitude of sins.
2. Restatement
(Second) of Contracts[2] – Waiver is often
inexactly defined as the ‘voluntary relinquishment of a known right’. When the
waiver is reinforced by reliance, enforcement is often to rest on ‘estoppel’.
Since the more common definition of estoppel is limited to reliance on a
misrepresentation of an existing fact, reliance on a waiver or promise as to
the future is sometimes said to create a ‘promissory estoppel’. The common
definition of waiver may lead to the incorrect inference that the promisor must
know his legal rights and must intend the legal effect of the promise. But it
is sufficient if he has reason to know the essential facts.
3. Keeton – Waiver is often asserted as
the justification for a decision when it is not appropriate to the
circumstances.
4. Farnsworth on Contracts – Although it
has often been said that a waiver is ‘the intention relinquishment of a known
right’, this is a misleading definition. What is involved is not the
relinquishment of a right and the termination of the reciprocal duty but the
excuse of the non-occurrence of or delay in the occurrence of a condition of a
duty.
American
Conception of Doctrine of Waiver
In the famous
case of Miranda v. Arizona[3], the Supreme Court laid
down certain requirements known as the Miranda Rights. These
requirements include stipulations such as the right to remain silent and that
they may have an attorney present questioning.
However, in USA,
a Criminal Defendant may waive the right to remain silent as well as the other Miranda
Rights and make a confession, but the Prosecution must demonstrate to the
court that the ‘waiver’ was the product of a free and deliberate choice rather
than a decision based on intimidation, coercion, force or deception. It must
also be proved that the defendant was fully aware of the Miranda rights
being abandoned and the consequences thereof.
Doctrine of
Wavier in India
There have been
plethora of cases that have discussed the doctrine of Waiver. Some of the
important ones are.
1. Jaswantsingh
Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors.[4]– In this case, the court
said that everyone has a right to waive an advantage or protection which seeks
to give him/her. For e.g. In case of a Tenant-Owner dispute, if a notice is
issued and no representation is made by either the owner, tenant or a
sub-tenant, it would amount to waiver of the opportunity and such person cannot
be permitted to turn around at a later stage.
2. Krishna
Bahadur v. M/s. Purna Theatre & Ors.[5] – This case made a
differentiation between the principle of Estoppel and the principle of Waiver.
The court said that “the difference between the two is that whereas estoppel
is not a cause of action; it is a rule of evidence; waiver is contractual and
may constitute a cause of action; it is an agreement between the parties and a
party fully knowing of its rights has agreed not to assert a right for a
consideration”.
The court also
held that:
“A right can
be waived by the party for whose benefit certain requirements or conditions had
been provided for by a statute subject to the condition that no public
interest is involved therein. Whenever waiver is pleaded it is for the
party pleading the same to show that an agreement waiving the right in
consideration of some compromise came into being. Statutory right, however, may
also be waived by his conduct.”
3. Municipal
Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association & Ors.[6] – This case said that even
though Waiver and Estoppel are two different concepts, still the essence of a
Waiver is an estoppel and without Estoppel, there cannot be any Waiver. The
court also said “Estoppel and waiver are questions of conduct and must
necessarily be determined on the facts of each case”.
Doctrine of
Waiver and Fundamental Rights in India
Fundamental
Rights are the most special of the rights in Indian Context. These rights
though sacrosanct are not absolute in nature. Our Constitution imposes various
imposes various reasonable restrictions upon the exercise of fundamental
rights.
As stated above,
we saw that a right can be waived subject to the condition that no public
interest is involved therein. However, the scope of the Doctrine of Waiver
with respect to Fundamental rights is a bit different. It was discussed in the
case of Basheshr Nath v. Income Tax commissioner[7]. The Court said that:
“Without
finally expressing an opinion on this question we are not for the moment
convinced that this Doctrine 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 the Constitution merely for the
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.”
We find that the
primary objective of Fundamental Rights is based on Public Policy. Thus,
individuals are not allowed to waive off such fundamental rights. Also, it is
the constitutional mandate of the Courts to see that Fundamental Rights are
enforced and guaranteed even if one might wish to waive them.
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