Doctrine of Laches

Introduction and Definition

Black’s Law Dictionary defines ‘laches’ as:

“[French: remissness; slackness] 1. Unreasonable delay in pursuing a right or claim – always an equitable one – in a way that prejudices the party against whom relief is sought – Also termed ‘sleeping on rights’

            “Early in its history, Chancery developed the doctrine that where the plaintiff in equity delayed beyond the period of the statute applicable at law, relief would be refused on the ground of laches even though no specific prejudice to the defendant was shown. Today, in most states, there are statutes of limitations applying to suits inequity. Despite these, however, the doctrine still holds that even if the delay is for a shorter period of time than that of the statute, it may still bar equitable relief if it is unreasonable and prejudicial to the defendant.” John F. O’Connell, Remedies in a Nutshell..”

The abovementioned definition is quite a comprehensive one. It explains the general meaning of ‘laches’. The real difference between laches and limitation is ground of reasonableness. This aspect shall be explained later on in this post as to the difference between laches, limitation and delay. Apart from the time limit set in the Limitation Act of 1963, our Courts have held that laches and delay are an important factor to be considered in exercise of the discretionary relief under Article 226 of the Constitution.
Supreme Court on the Doctrine of Laches

The Hon'ble Supreme Court in Chairman, U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr., Appeal (Civil) 4790 of 2006, has beautifully explained the concept of 'laches'. Many of the case laws cited in this post have also been cited in U.P. Jal Nigam. For the sake of brevity, the facts of U.P. Jal Nigam shall not be reiterated here. Moving further, inRupDiamonds v. UnionofIndia, (1989) 2 SCC 356, it was observed that those people who were sitting on the fence till somebody else took up the matter to the court cannot be given the benefit. Thus when there is an unexplained and inordinate delay, then such a delay may be sufficient to persuade the Court to decline to interfere.  In State of Karnataka v. S.M. Kotrayya,(1996) 6 SCC 267, it was said that if any explanation for condonation of delay is given by the litigant, then the Court must satisfy itself that the explanation given is proper. Similar observations were also given in cases like Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, Union of India v. C.K. Dharagupta, (1997) 3 SCC 395 etc.

Halsbury’s Laws of England

‘Halsbury’s Laws of England’ has explained ‘laches’ as:

“In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

(i) acquiescence on the claimant's part; and

(ii) any change of position that has occurred on the defendant's part.

Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.”

Thus we see that ‘laches’ is lack of diligence on the part of a litigant in making a claim or seeking to enforce a legal right. The unreasonable delay in this respect can be treated to be prejudicial to the opposing party.

Difference between Laches and Limitation

‘Laches’ and the limitation period under the Limitation Act may seem similar or alike since both of them seek to ensure that the Litigants bring their claims in a time-bound manner. However, ‘laches’ and limitation are two completely different principles. On the one hand, Limitation Act is merely concerned with the time that has passed i.e. the delay and on the other hand, ‘laches’ is not only concerned with the time that has passed i.e. delay but is also concerned with the reasonableness of that delay. Thus ‘laches’ hits directly at the equitable conduct of the Litigant seeking to enforce his right or claim. We see that there are three components of ‘laches’:

1. A delay in bringing the action.

2. Unreasonableness of delay must exist.

3. The delay must be prejudicial to the Opposing Party.

When Limitation Begins?

As per Section 3 of the Limitation Act, every suit instituted, appeal preferred, and application made after the prescribed period is liable to be dismissed. However, it is not necessary that the period for ‘laches’ must coincide with that of the Limitation. ‘laches’ is a matter of equity and must be dealt with as such. Depending upon facts and circumstances, there might be cases where even though the Limitation Period has not ended, the Litigant may be denied relief if the delay is of such a nature which is prejudicial to the rights of the Defendant and is totally unreasonable. E.g. the Claim is sought to be enforced by the Claimant after the witnesses favourable to the Defendant have died or lost their memories.

Conclusion

Doctrine of Laches has existed since a long time yet it has not lost its relevance. We see that Delay, Laches, Limitation and Acquiescence are overlapping but not inter-changeable terms. The difference between these terms is thin and technical in nature. In our country, Limitation Act is the norm yet laches must not be ignored. In Courts of Writ Jurisdiction like High Courts and the Supreme Court, Limitation Act has limited applicability. ‘Laches’ is a potent tool in the hands of such Courts to prevent the Litigants from abusing the process of the Court and prevent any right accruing in favour of the Claimant that is prejudicial to the rights of the Defendant.

Doctrine of Parens Patriae

Meaning and Definition

‘Parens patriae’ is a Latin term meaning ‘parent of his or her country’.

Black’s Law Dictionary defines ‘parens patriae’ as:

1. The State regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves.

2. A Doctrine by which a government has standing to prosecute a lawsuit on behalf of a citizen, especially on behalf of someone who is under a legal disability to prosecute the suit. The State ordinarily has no standing to sue on behalf of its citizens, unless a separate, sovereign interest will be served by the suit.

It is stated that parens patriae is the inherent power and authority of a State to provide protection to the person and property of persons non Sui juris[1], such as minor, insane, and incompetent persons.  Today, this term is used to designate the State referring to its sovereign power of guardianship over persons under disability.

In Heller vs. DOE[2], Justice Kennedy observed:

“The State has a legitimate interest under itsparens patriae powers in providing care to its citizens who are unable to care for themselves.”
Also, in the case of State of Kerala v. N.M. Thomas[3], it has been categorically held that the Court is also ‘State’ within the meaning ofArticle 12 of the Constitution of India. Thus, Court can also act as Parens Patriae so as to meet the ends of justice.

Relying on the above-mentioned reasoning, the Supreme Court has stated that “in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight”[4].

The doctrine of ‘Parens Patriae’ has been evolved in common law and is applied in situations where the State must make decisions in order to protect the interests of those persons who are unable to take care of themselves[5].

The Two Tests

There are two tests in relation to this doctrine. These tests help the court to ascertain the course of action that it can adopt depending upon the situation. It is important to remember that these tests are merely guiding principles so as to help the court to reach a logical conclusion.

1. ‘Best Interests’ Test – The ‘Best interests’ test requires the Court to ascertain the course of action which would serve the best interestsof the person in question. It is important to note that the Court's decision should be guided by the interests of the victim aloneand not those of other stakeholders such as guardians or society in general.

2. ‘Substituted Judgment’ Test – The application of the ‘Substituted Judgment’ test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if he/she was competent to do so. This is a more complex inquiry but this test can only be applied to make decisions on behalf of persons who are conclusively shown to bementally incompetent.

Doctrine of Parens Patriae and the Constitution of India

Conceptually, the Parens Patriae theory is the obligation of the State to protect and take into custody the rights and privileges of its citizens for discharging its obligations[6].

The Directive Principles as well as the Fundamental Rights enshrined in our Constitution make it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert these rights, the State comes into picture and protects the rights of such Citizens.

The Preamble to our Constitution read with Article 38[7], Article 39[8] and Article 39A[9]makes it amply clear that the State must take up these responsibilities. The State must strive to promote social, economic and political welfare of the people. A harmony needs to be maintained between the Fundamental Rights and the Directive Principles of State Policy by the State so as to effectively discharge its commitments towards the people. While discharging these commitments, the state may even deprive some rights and privileges of the individual victims or their heirs to protect their other important rights in a better manner and secure the ends of social welfare.

Some Scholars believe that Constitution is a Social Contract entered into by the people amongst themselves so as to live cooperatively and harmoniously. The values enshrined in our Constitution are a testimony of the standard of governance and welfare that the people expect from their representatives to maintain and carry out respectively. Doctrine of Parens Patriae is simply one of the links in this long chain. This doctrine makes sure that the voiceless, abandoned and disabled people are ultimately the responsibility of the State and the State must take all the steps to ensure their well-being as they are not in a position to do so.

DOCTRINE OF Implied Powers

Doctrine of Implied Powers v. Casus Omissus

The Doctrine of Implied Powers is neither similar to nor an offshoot of the latin maxim ‘casus omissus’. The Black’s Law Dictionary defines ‘Casus Omissus’ as:

“[Latin “case omitted”] A situation not provided for by a statute or contract, and therefore governed by caselaw or new judge-made law.”

The Latin Maxim governing the situation of‘casus omissus’ is “casus omissus et oblivioni datus dispositioni communis juris relinquitur”which means that “a case omitted and forgotten (not provided for in statute) is left to the disposal of the common law.

Thus the Doctrine of Implied Powers does not talk about cases or situations that have been omitted in the statute rather the Doctrine of Implied Powers is only concerned with situations where an express provision could not be given effect without assuming something. On the other hand, ‘casus omissus’specifically deals with a situation where a situation has been completely left out in the statute and there is nothing express in the statute to cover the said situation. Hence there is a thin yet a visible line of difference between the Doctrine of Implied Powers and ‘casus omissus’.
Let us revisit the celebrated Five Judges Bench Judgment of Bidi, Bidi Leaves & Tobacco Merchants' Association v. State of Bombay, 1962 Supp (1) SCR 381 (hereinafter to be referred to as “Tobacco Merchants”) M. This Judgment discussed the true scope and effect of the Doctrine of Implied Power which serves as a tool for interpretation. The Doctrine of Implied Powers is not to be confused with the interpretative tool ‘casus omissus’. The meaning of ‘casus omissus’ shall be discussed later on in this post.

Definition and Meaning

Before going through the manner in which our Supreme Court has dealt with this doctrine, let us discuss the dictionary meaning of the term ‘implied power’. Black’s Law Dictionary defines ‘implied power’ as:

“A political power that is not enumerated but that nonetheless exists because it is needed to carry out an express power.”

Thus as the name suggests, ‘implied power’ is something that has existence by virtue of express power and is something without which an express power cannot be exercised.

The Tobacco Merchants Case discusses various definitions relating to the Doctrine of Implied Powers. It starts with ‘Craies on Statute Law’ which says that:
“One of the first principles of law with regard to the effect of an enabling act is that if a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view.”

In Michael Fenton and James Fraser v. John Stephen Hampton, (1857-1859) 117 R.R. 32, it was observed that:

“Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something will be supplied by necessary intendment.”

Thus the importance of this Doctrine comes into play in cases where it is observed that the Statute confers a duty upon an Authority and that duty cannot be discharged or that power cannot be exercised unless some ‘other’ power is assumed to exist and in absence of such ‘other’ power, the obligation prescribed under the Statute becomes impossible to comply with. The impossibility must be of such nature that it has no exceptions and the Statute would become a dead letter if that ‘other’ power is not assumed.

Caution in invoking the Doctrine of Implied Powers

The Latin Maxim “Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa ease non potest”, is also relating to the Doctrine of Implied Powers. It means that:

“Whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect.”

However, in the Tobacco Merchants Case, the Hon’ble Supreme Court cautioned as to the applicability of the Doctrine of Implied Powers by stating that “the doctrine of implied power can be invoked where without the said power the material provision of the Act would become impossible of enforcement”.

Thus in no other circumstance can this doctrine be invoked. Only and only where there is an impossibility of enforcement to the express provisions of a Statute, the existence of some deemed power can be held to be valid. In all the other circumstances where the express power could be given effect to without assuming any ‘other’ power, the Doctrine of Implied Powers would have no applicability.

Urgency and the serious of the grievance can never be the grounds for invoking the Doctrine of Implied Powers. When the Statute itself is clear and does not suggest any existence of any implied power, then the same could not be done by invoking other grounds or reasons. The Statute must be read as a whole in order to arrive at this conclusion.

Conclusion

The Doctrine of Implied Powers has withstood the test of time and has been cited in a number of Supreme Court Cases. This doctrine is a technical one and would require a certain of ingenuity in order to convince the Court to invoke it. Normally, the Statutes are a self-contained code and it is hardly the case where something is needed to be assumed. In other words, wherever this doctrine is required to be invoked would reflect a poor instance of drafting by the legislators as it is always best to codify as far as possible through express provisions leaving no scope for any ambiguity in interpretation. Time and again, the Courts have said that if literal interpretation is able to give complete meaning and effect to a provision of law, then no other tool or aid of interpretation such as Doctrine of Implied Powers is required.

Doctrine of Eclipse

Doctrine of Eclipse

In the case of Keshavan Madhava Menon v. The State of Bombay[1], the law in question was an existing law at the time when the Constitution came into force. That existing law imposed on the exercise of the right guaranteed to the citizens of India by article 19(1)(g) restrictions which could not be justified as reasonable under clause (6) as it then stood and consequently under article 13(1)[2] that existing law became void “to the extent of such inconsistency”.

The court said that the law became void not in toto or for all purposes or for all times or for all persons but only “to the extent of such inconsistency”, that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens.

This reasoning was also adopted in the case of Bhikaji Narain Dhakras And Others v. The State Of Madhya Pradesh And Another[3]. This case also held that “on and after the commencement of the Constitution, theexisting law, as a result of its becoming inconsistent with the provisions of article 19(1)(g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right. Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether the statute, book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution. The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right”
The court also said that article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with fundamental right as it then stood, ineffectual, nugatory and devoid of any legal force or binding effect, only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution. Finally the court said something that we today know of as the crux of Doctrine of Eclipse.

“The true position is that the impugned lawbecame, as it were, eclipsed, for the time being, by the fundamental right.”

We see that such laws are not dead for all purposes. They exist for the purposes of pre-Constitution rights and liabilities and they remain operative, even after the commencement of the Constitution, as against non-citizens. It is only as against the citizens that they remain in a dormant or moribund condition.

Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate fundamental rights upon the premise that such laws are not null and void ab initiobut become unenforceable only to the extent of such inconsistency with the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.

[1] [1961] S.C.R. 288.

[2] Article 13 (1) – All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

[3] AIR 1955 SC 781.

Doctrine of Repungnancy

Introduction

It is Article 254 of the Constitution of India that firmly entrenches the Doctrine of Repugnancy in India. According to Black’s Law Dictionary, Repugnancy could be defined as“an inconsistency or contradiction between two or more parts of a legal instrument (such as a statute or a contract)”. Before understanding the Doctrine of Repugnancy, let us first understand a bit about the legislative scheme envisaged in our Constitution.

Article 245 states that Parliament may make laws for whole or any part of India and the Legislature of a State may make laws for whole or any part of the State. It further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

Article 246 also talks about Legislative power of the Parliament and the Legislature of a State. It states that:

1. The Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I or the Union List in the Seventh Schedule.

2. The Legislature of any State has exclusive power to make laws for such state with respect to any of the matters enumerated inList II or the State List in the Seventh Schedule.

3. The Parliament and the Legislature of any State have power to make laws with respect to any of the matters enumerated in the List III or Concurrent List in the Seventh Schedule.

4. Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

The Legislative Scheme in our Constitution is both complex and lengthy. In the present post, I will confine myself only to Repugnancy and its niceties. I will not deal not with any other provisions relating to the Legislative Scheme of our Constitution. The only articles that I will be touching in this respect are article 245, article 246 and article 254.

Supreme Court’s Interpretation of Doctrine of Repugnancy

Article 254[1] has been beautifully summarized by the Supreme Court in M. Karunanidhi v. Union of India[2]. The court said that:

“1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable,the Central Act will prevail and the State Act will become void in view of the repugnancy.

2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List,the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.

3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List, the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.

4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only.

Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.

Now, the conditions which must be satisfied before any repugnancy could arise are as follows:

1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.”

Thereafter, the court laid down following propositions in this respect:

“1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.

4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.”

Further in the case of Govt. of A.P. v. J.B. Educational Society[3], the court held that:

“1. There is no doubt that both Parliament and the State Legislature are supreme in their respective assigned fields. It is the duty of the court to interpret the legislations made by Parliament and the State Legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non obstante clause in clause (1) of Article 246, the parliamentary legislation would prevail notwithstanding the exclusive power of the State Legislature to make a law with respect to a matter enumerated in the State List.

2. With respect to matters enumerated in List III (Concurrent List), both Parliament and the State Legislature have equal competence to legislate. Here again, the courts are charged with the duty of interpreting the enactments of Parliament and the State Legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict.”

The Court also said that:

1. Where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of the non obstante clause in Article 246(1), in the second, by reason of Article 254(1).

2. Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation.

In the case of National Engg. Industries Ltd. v. Shri Kishan Bhageria[4], it was held that “the best test of repugnancy is that if one prevails, the other cannot prevail”. All the above mentioned cases have been upheld by the Supreme Court in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra[5].

Thus, we see that Doctrine of Repugnancy is firmly entrenched in our constitutional scheme and is here to stay for a long time to come. In the subsequent posts, I will try to discuss doctrines like Pith and Substance, Colourable Legislation, Legislative Competence, Doctrine of Eclipse etc.

[1] Article 254 – (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

[2] (1979) 3 SCC 431.

[3] (2005) 3 SCC 212.

[4] (1988) Supp. SCC 82.

[5] CIVIL APPEAL NO. 1975 OF 2008.

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.

Doctrine of colorable legislation and Fraud on Constitution

Doctrine of Colorable Legislation like any other constitutional law doctrine is a tool devised and applied by the Supreme Court of India to interpret various Constitutional Provisions. It is a guiding principle of immense utility while construing provisions relating to legislative competence.

Before knowing what this doctrine is and how it is applied in India, let us first understand the genesis of Doctrine of Colorable Legislation.

Doctrine of Colorable Legislation is built upon the founding stones of the Doctrine Of Separation of Power. Separation of Power Mandates that a balance of power is to be struck between the different components of the State i.e. between the Legislature, the Executive and the Judiciary. The Primary Function of the legislature is to make laws.Whenever, Legislature tries to shift this balance of power towards itself then the Doctrine of Colorable Legislation is attracted to take care of Legislative Accountability.

Definition

Black’s Law Dictionary defines ‘Colorable’ as:
1. Appearing to be true, valid or right.

2. Intended to deceive; counterfeit.

3. ‘Color’ has been defined to mean ‘Appearance, guise or semblance’.

The literal meaning of Colorable Legislation is that under the ‘color’ or ‘guise’ of power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.

This Doctrine also traces its origin to a Latin Maxim:

“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”

This maxim implies that “when anything is prohibited directly, it is also prohibited indirectly”. In common parlance, it is meant to be understood as “Whatever legislature can’t do directly, it can’t do indirectly”.

In our Constitution, this doctrine is usually applied to Article 246 which has demarcated the Legislative Competence of the Parliament and the State Legislative Assemblies by outlining the different subjects under List I for the Union, List II for the States and List III forboth, as mentioned in the Seventh Schedule.

This doctrine comes into play when a Legislature does not possess the power to make law upon a particular subject but nonetheless indirectly makes one. By applying this principle the fate of the Impugned Legislation is decided.

Supreme Court on Colorable Legislation

One of the most cogent and lucid explanations relating to this doctrine was given in the case of K.C. Gajapati Narayana Deo And Other v. The State Of Orissa[1]:

“If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers.

Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression ‘Colorable Legislation’ has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere presence or disguise.”

This Doctrine is also called as “Fraud on the Constitution”. The failure to comply with a Constitutional condition for the exercise of legislative power may be overt or it may be covert. When it is overt, we say the law is obviously bad for non- compliance with the requirements of the Constitution, that is to say, the law is ultra vires. When, however, the non-compliance is covert, we say that it is a ‘fraud on the Constitution’, the fraud complained of being that the Legislature pretends to act within its power while in fact it is not so doing. Therefore, the charge of ‘fraud on the Constitution’ is, on ultimate analysis, nothing but a picturesque and epigrammatic way of expressing the idea of non-compliance with the terms of the Constitution[2].

Limitations on the Application of Doctrine of Colorable Legislation

1. The doctrine has no application where the powers of a Legislature are not fettered by any Constitutional limitation.

2. The doctrine is also not applicable to Subordinate Legislation.

3. The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the, question of competency of a particular legislature to enact a particular law.

If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all.Whether a statute is constitutional or not is thus always a question of power[3].

4. A logical corollary of the above-mentioned point is that the Legislature does not act onExtraneous Considerations[4]. There is always a Presumption of Constitutionality in favour of the Statute. The principle of Presumption of Constitutionality was succinctly enunciated by a Constitutional Bench in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.[5]:

“That there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.”

There is a very famous rule of interpretation as well that explains why the courts strongly lean against a construction which reduces the statute to a futility. The Latin Maxim “construction ut res magis valeat quam pereat” implies that a statute or any enacting provision therein must be so construed as to make it effective and operative. The courts prefer construction which keeps the statute within the competence of the legislature[6].

5. When a Legislature has the Power to make Law with respect to a particular subject, it also has all the ancillary and incidental power to make that law an effective one.[7]

6. As already discussed above that the transgression of Constitutional Power by Legislature may be patent, manifest or direct, but may also be disguised, covert and indirectand it is only to this latter class of cases that the expression “Colorable Legislation” is being applied(8)

[1] AIR 1953 SC 375.

[2] The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889.

[3] K.C. Gajapati Narayana Deo And Other v. The State Of Orissa, AIR 1953 SC 375.

[4] Mohan Lal Tripathi v. District Magistrate, Rae Bareilly & Others, AIR 1993 SC 2042.

[5] AIR 1958 SC 538.

[6] CIT v. Teja Singh, AIR 1959 SC 352.

[7] I.N. Saksena v. The State of Madhya Pradesh, AIR 1976 SC 2650, [1976] 3 SCR 237.

[8] The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889.