KIIT LAW SCHOOL

Constitutional law- II Basheshar Nath v. Commissioner of Income-tax,

Delhi & Rajasthan and Anr.

pAnKaJ Agarwal[982047]

3/21/2011

An article on the scope and ambit of the Doctrine of Waiver of fundamental rights.

Ours is an emerging democracy and situated as we are, socially, economically,

educationally and politically, it is the sacred duty of the Supreme Court to

safeguard the fundamental rights.1 The question arose before the court the Supreme

Court in this case, as to the waiver of fundamental rights, guaranteed by part 3 of

the constitution of India. The petitioner whose case was referred to the

investigation commission under section 5(1) of the Taxation on income

(investigation commission) act, 1947, was found to have concealed his income to

the tune of Rs. 4, 47,915. With a view to escape heavier penalty, he agreed to pay

Rs.3, 50,000 by installments of Rs.5000 per month, by way of arrears of tax and

penalty. This agreement was reached in May, 1954 under section 8-A of the said

act. The petitioner paid a number of installments.

In the meanwhile, the Supreme Court in Suraj Mall Mehto v. A.V. Visvanath

Sastri2 followed by Muthiah v. Commissioner of Income Tax

3, held section 5(1) of

the act inconsistent with article 14 of the constitution. On this the petitioner

stopped paying further installment and challenged the settlement between him and

the investigation commission. The petitioner contented that when section 5(1) of

the investigation act had been held unconstitutional, the settlement under section

8A could not be enforced, for the foundation of the proceedings under section 8

was reference under section 5(1) and the foundation having crumbled down, the

superstructure must fall with it. On the other hand, the respondent raised the plea

of waiver and argued that even section if section 5(1) was invalid, the petitioner,

by voluntarily entering into a settlement, must be taken to have waived his

fundamental right guaranteed under Article 14. The Supreme Court however,

upheld the contention of the petitioner and held that the fundamental rights could

not be waived.

The majority of the court expounded the following views:

1. It is not open to a citizen to waive his fundamental rights conferred by Part 3 of

the constitution. The Supreme Court is the protector of the fundamental rights

which have been for the first time enacted in the constitution and it would be a

sacrilege to whittle down these rights.

1 Narendar Kumar, Constitutional law of India, (ALLAHABAD LAW AGENCY,FARIDABAD,HARYANA) Pg-88

2 AIR 1954 SC 545

3 AIR 1956 SC 269

2. Whatever be the position in America, no distinction can be drawn here, as has

been attempted in the United States of America, between the fundamental rights

which may be said to have been enacted for the benefit of the individual and those

enacted in public interest or on grounds of public policy.4

3. Das, C.J. explained in his judgment that, If the statute is beyond the competence

of the Legislature, as for example, when a State enacts a law which is within the

exclusive competence of the Union, it would be a nullity, That would also be the

position when a limitation is imposed on the legislative power in the interest of the

public, as, for instance, the provisions in Chapter XIII of the Constitution relating

to inter-State trade and commerce. But when the law is within the competence of

the Legislature and the unconstitutionality arises by reason of its repugnancy to

provisions enacted for the benefit of individuals, it is not a nullity but is merely

unenforceable. Such unconstitutionality can be waived and in that case the law

becomes enforceable.

4. 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 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.

4 Yusuf ali Abdulla v. M.S. Kasbekar