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.

[1] Principles of the Law of Contract.

[2] 84 cmt. b (1979).

[3] 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

[4] (1992) Supp. 1 SCC 5.

[5] AIR 2004 SC 4282.

[6] AIR 1988 SC 233.

[7] AIR 1959 SC 149.