doctrine of waiver
Waiver means the intentional giving up of a known right. In private law, a person may waive a right meant for his own benefit. In Basheshar Nath the Supreme Court held that a taxpayer who had agreed to a settlement under a provision later held discriminatory could still challenge it: fundamental rights, at least under Article 14, are not for the individual alone but are part of public policy and constitutional obligation, and cannot be waived.
The judges differed on whether every fundamental right is beyond waiver, but the majority view is now generally followed. The doctrine is relevant to estoppel too: there is no estoppel against the Constitution.
Example
His earlier settlement did not bar the challenge, because under the doctrine of waiver as explained in Basheshar Nath a fundamental right cannot be bargained away.
In Indian law
See also
estoppel · doctrine of eclipse · equality before law
Read more in the study notes
- The rule against bias (Administrative Law)
- Audi alteram partem: the right to a fair hearing (Administrative Law)
- Arbitrators: qualities, appointment, challenge and substitution (Alternative Dispute Resolution Systems)
- Negotiation: meaning, styles and approaches (Alternative Dispute Resolution Systems)
- Juvenile Justice Act, 2015: salient features and the Juvenile Justice Board (Bharatiya Nagarik Suraksha Sanhita)
- Facts which need not be proved, and oral evidence (sections 51 to 55) (Bharatiya Sakshya Adhiniyam)