In Supreme Court of India
Civil Appeal No. 208 of 1958
Citation
AIR 1959 SC 149
Equivalent Citation
AIR 2018 SC 357
Appellant
Basheshar Nath (The Assessee)
Respondent
Respondent No 1: CIT, Delhi
Respondent No. 2: Union of India
Date of Judgement
19/11/1958
Bench
(CJI) S.R. Das, N.H. Bhagwati, S.K Das, J.L. Kapur, K. Subba Rao
Background:
The Taxation on Income (Investigation Commission) Act, 1947 came into force on May 1, 1947. Section 3 of the act authorized the Central Government to constitute an income tax investigation commission to investigate and report to the Central Government on all matters relating to taxation on income. Further Section 5 says that the Central Government may refer to the Commission for investigation and report any case or points in a case in which the Central Government has prima facie reasons for believing that a person either alone or in combination with other persons has to a substantial extent evaded payment of taxation on income. The powers of the Commission are much more drastic and harsh than the powers to be exercised and the procedure to be followed by the income tax authorities acting under the provisions of the Indian Income Tax Act, 1922. Section 9 barred the jurisdiction of Courts to call in question any act or proceeding of the Commission or any authorised official appointed under section 6.
On July 22, 1948, the case of the assessee was referred to the Commission for it was alleged that the assessee has evaded payment of taxation on income to a substantial extent. The case against the assessee was that he carried on a business of supplying tents, executing contract works, and commission agency for some textile mills on a fairly extensive scale, both individually and in partnership with his brother.
On May 19, 1954, the Commission announced its view that the income, profits and gains that had escaped assessment in the hands of the assessee for the period beginning with April 1, 1939, and ending March 31 , 1947, were the sum of Rs. 4,47,915, that the Commission also held that should the assessee accept the said finding he would be granted the benefit of a settlement on the lower concessional basis of payment of 75% and a small penalty of Rs. 14,064 and that in the circumstances the assessee had no other alternative than to make the best of the bad job by proposing a settlement under section 8A offering to pay Rs. 3,50,000 by way of tax and penalty. The Commission on May 24, 1954, made a report under section 8A(1) to the Central Government that it was of the opinion that the terms of settlement contained in the application might be approved. The Central Government accepted the proposed settlement. The assessee was allowed to make payments by installments of Rs. 5,000, per month.
In the meantime on May 28, 1954, this Court delivered judgment in Suraj Mall Mohta and Co. v. A.V. Visvanatha Sastri. By that judgment this Court held that both section 34 of the Indian Income Tax Act, 1922, as it then stood, and sub-section (4) of section 5 of the Investigation Act dealt with persons who had similar characteristics of being persons who had not truly disclosed their income and had evaded payment of tax on their income but that as the procedure prescribed by the Investigation Act was substantially more prejudicial than the procedure under the Indian Income Tax Act, 1922, sub-section (4) of section 5 and the procedure prescribed by the Investigation Act, in so far as it affected persons proceeded against under that sub-section was a piece of discriminatory legislation which offended the provisions of Article 14 of the Constitution and was, therefore, void and unenforceable.
Sub-section (4) of Section 5 of the Investigation Act having been declared void, Parliament passed the Indian Income Tax Amendment Act (1954) amending section 34 of the Indian Income Tax Act, 1922. The result of this amendment was that persons who originally fell only within the ambit of section 5(1) of the Investigation Act and formed a distinct class of substantial tax evaders also came within the amended section 34 of the Indian Income Tax Act, 1922. The position after the amendment, therefore, was that the Income Tax Officers could pick out some of these persons and refer their cases under section 5(1) of the Investigation Act and thereby subject them to the drastic and harsh procedure of that Act, while they could deal with other persons similarly situated under section 34 as amended and apply to them the comparatively more beneficial procedure laid down in the Indian Income Tax Act, 1922.
Subsequently several applications were made under Article 32 of the Constitution complaining that after the amendment of section 34 of the Indian Income Tax Act, section 5(1) of the Investigation Act became discriminatory in that the persons falling within it could be dealt with under the drastic, prejudicial and harsh procedure prescribed by the Investigation Act, while other persons similarly situated and belonging to the same category could at the whim or pleasure of the Income Tax authorities be proceeded against under the more beneficial procedure prescribed under the Indian Income Tax Act.
All those applications were disposed of by a common judgment in Shree Meenakshi Mills Ltd. v. Sri A.V. Visvanatha Sastri. This Court held that section 34 of the Income Tax Act, as amended by the Indian Income Tax Amendment Act, 1954 operated on the same field as section 5(1) of the Investigation Act, and, therefore, section 5(1) had become void and unenforceable as the procedure applied to persons dealt with thereunder became discriminatory in character.
Finally on December 20, 1955, came the decision of this Court in M. CT. Muthiah v. The Commissioner of Income Tax, Madras. The majority of this Court held that section 5(1) of the Act was ultra vires the Constitution, as it was discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution and that different persons, though falling under the same class or category of substantial evaders of income-tax, were being subjected to different procedures, one a summary and drastic procedure and the other the normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed by the Investigation Act and, therefore, the assessments made under section 8(2) were void and unenforceable.
The assessee appellant in the present case had entered into a settlement under section 8 of the Investigation Act and had been assessed in accordance with the terms of the settlement continued to pay the tax by monthly installments of Rs. 5,000 as before in discharge of the balance due under the terms of settlement right up to September 8, 1957, when he made the last payment of Rs. 8,000 bringing the aggregate payment up to Rs. 1,28,000.
In the meantime the Income Tax Officer had sent a certificate requesting the Collector of Delhi for the recovery of the balance due by the assessee under the settlement. In execution of that certificate some of the properties belonging to the assessee situated in Dharamshala and Hisar were attached.
On December 27, 1957, the assessee filed a petition to the Income-tax Commissioner, Delhi, claiming that after the decision in Muthiah’s case [1955], the settlement made under section 8A of the Act had no force and was not binding on him and prayed that the attached properties should be released from attachment and the amounts recovered under the terms of settlement refunded to him. But the Commission On January 29, 1958, held that the settlement arrived at under section 8A(2) of the Taxation on Income (Investigation Commission) Act, 1947 is valid and binding on the assessee and he is therefore, requested to make good arrears of installments which he has not paid by the 5th February, 1958, and also to continue making the payments in accordance with the installments scheme agreed to.
Facts:
The special appeal has been filed by Shri Basheshar Nath (The Assessee), questioning the validity of a settlement made under Section 8A of the Taxation on Income (Investigation Commission) Act, 1947 aggrieved by an order dated January 29, 1958 passed by the Commissioner of Income Tax, Delhi.
Contention
Petitioner’s Contention:
(a) The report of the Investigation Commission dated May 24, 1954, be quashed.
b) The settlement made on the basis of the report and the directions given by the Central Government in pursuance thereof and the proceedings for recovery of arrears of tax be all quashed, and the amounts already recovered may be ordered to be refunded.
c) Referring to the decisions of this Court in Suraj Mall Mohta and Muthiah’s case, the assessee submitted that the settlement under section 8A of the Investigation Act had no force and did not bind the petitioner and that the settlement had been made under the pressure of the situation and in view of the coercive machinery of the Investigation Act.
d) 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 8A was the reference under section 5(1) and the very foundation for the report of the Investigation Commission has disappeared and settlement based thereon is neither valid, nor can it be enforced.
Respondent’s Contention:
a) None of the said decisions has held that section 5(1) is wholly void and inoperative. Section 5(1) only authorises the Central Government to refer certain cases to the Commission. Upon such a reference two lines of procedure are clearly indicated by the Investigation Act, namely, (1)that an investigation may be held following the procedure prescribed and exercising the powers conferred by the Investigation Act and (2) that a settlement may be made under section 8A. If the first procedure is followed and an assessment is made under section 8(2) such assessment will undoubtedly be invalid as has been held in Muthiah’s case, but if on a case being referred the settlement procedure is followed then the consequential order of assessment under section 8A cannot be questioned.
b) The Investigation Act was a pre-Constitution Act and that before the commencement of the Constitution when there was no such thing as a fundamental right, its provisions could not be questioned however discriminatory the procedure may have been. After the commencement of the Constitution the assessee has not been subjected to the coercive procedure laid down by the Investigation Act, but voluntarily proposed a settlement which was accepted by the Central Government on the recommendation of the Commission.
c) If there had been a breach of the assessee’s fundamental right by subjecting him to a discriminatory procedure laid down in the Investigation Act, the assessee, by voluntarily entering into a settlement, must be taken to have waived such breach and cannot now be permitted to set up his fundamental right.
Issues:
(1) Validity of a settlement made under section 8A of the Taxation on Income (Investigation Commission) Act, 1947 after the coming into force of the Constitution on January 26, 1950?
(2) Can a fundamental right guaranteed by the Constitution be waived?
Judgement:
Issue I:
The bench mutually held Section 8A of the Act to be void and unconstitutional. The important points from the judgements are:
S.R. Das writing for him and J kapur
Disagreeing with the attorney general’s contention that the Investigation Act prescribed two procedures, the court held that when the case of the assessee was referred to the Commission under section 5(1) on July 22, 1948, there was no provision for settlement in the Act at all. Therefore, that reference, when it was made, consigned the assessee to the only procedure of investigation that was then prescribed by the Act. After section 8A was added in the Investigation Act by section 33 of Act 67 of 1949 an authorised official was appointed under section 6(3) to investigate the affairs of the assessee and to examine the books and to interrogate any person or obtain any statement from any person and under sub-section (4) the authorised official was empowered to exercise the same powers as had been vested in the Commission under sub-section (1) and (2) of section 6. Further, by its own terms section 8A made it clear that the person concerned in any case referred to the Commission for investigation might apply to the Commission at any time during such investigation to have the case settled. Therefore this provision for settlement was an integral part of the entire investigation procedure. It was not a separate or independent procedure apart from the investigation procedure. Before the Commission could refer the proposal for settlement to the Central Government it had to be satisfied that the terms of settlement contained in the application were such as might be approved. For the purpose of satisfying itself the Commission had obviously to go into the facts either by itself or through an authorised official and to consider the materials collected by the authorised official and in the process of doing so had to hold an investigation of some sort and that investigation had necessarily to be made in accordance with the procedure prescribed by the Investigation Act itself. It is, therefore, not correct to say that there could be a proceeding for settlement without any investigation at all. In our opinion section 8A did not provide for a separate procedure at all. When a case was referred under section 5(1) it was really for investigation and a settlement was something which could crop up in the process of that investigation. The language of section 8A itself shows that a settlement can be proposed only during such investigation. And since there are no two procedures, Section 8A is invalid.
S.K. Das
Muthia’s decision holds in express terms that section 5(1) of the Act was hit by Article 14 of the Constitution on and after January 26, 1950. After 8th September, 1948, there were two procedures simultaneously in operation, the one under this Act and the other under the Indian Income tax Act with reference to persons who fell within the same class or category, viz., that of the substantial evaders of income-tax. After the 8th September, 1948, therefore, some persons who fell within the class of substantial evaders of income-tax were dealt with under the drastic and summary procedure prescribed under this Act, while other Persons who fell within the same class of substantial evaders of income-tax could be dealt with under the procedure prescribed in the Indian Income-tax Act. Different persons, though falling under the same class or category of substantial evaders of income-tax, would, therefore, be subject to different procedures, one a summary and drastic procedure and the other a normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed in this Act. The legislative competence being there, these provisions, though discriminatory, could not have been challenged before the advent of the Constitution. When, however, the Constitution came into force on the 26th January, 1950, the citizens obtained the fundamental rights enshrined in Part III of the Constitution including the right to equality of laws and equal protection of laws enacted in article 14 thereof, and whatever may have been the position before January 26, 1950, it was open to the persons alleged to belong to the class of substantial evaders thereafter to ask as to why some of them were subjected to the summary and drastic procedure and others were subjected to the normal procedure. The procedure prescribed in this Act being obviously discriminatory and, therefore, violative of the fundamental right guaranteed under article 14 of the Constitution.“
The discriminatory provisions are an integral part of the procedure prescribed under the Act which cannot be separated from the rest and the report which led to the settlement was made by the Investigation Commission in pursuance of and as a direct result of the discriminatory procedure which it followed. Indeed, the Investigation Commission followed the only procedure of investigation prescribed under the Act, which was a drastic and summary procedure, and if that procedure became void on the coming into force of the Constitution, the jurisdiction of the Investigation Commission practically came to an end.
It is difficult to understand how in the circumstances stated above, it can be said that the Commission followed a non-discriminatory procedure or that it had two jurisdictions – one relating to investigation and the other to settlement. The jurisdiction was really one, and the procedure followed also the same. It is not as though the Act provided a separate procedure for purposes of effecting a settlement; nor is this a case where a settlement has been made without applying any of the provision relating to investigation. A full investigation was made, and after the assessee had been subjected to the drastic and summary procedure under the Act, he was told what the result of the investigation was. Then, he made an application for settlement, which was approved by the Commission under section 8A.
Issue No 2
Waiver of fundamental rights. There were differing views on this subject
The Court taking reference from the case of Behram Khurshed Pesikaka v. State of Bombay, in which there was a general discussion that whether a fundamental right could be waived. The question dealt in the case was what is the legal effect of a statute being declared unconstitutional. The minority view was that the answer to it depends on two considerations – firstly, does the constitutional prohibition which has been infringed affect the competence of the Legislature to enact the law or does it merely operate as a check on the exercise of a power which is within its competence; and secondly, if it is merely a check, whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy. 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, 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 an unconstitutionality can be waived and in that case the law becomes enforceable. In America this principle is well settled and it was held in the case that the position must be the same under our Constitution when a law contravenes a prescription intended for the benefit of individuals.
But the majority view held that the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution. 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. 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. 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.“
S.R Das and J Kapur
The learned judges held that the observations made in Behram case did not relate to the waiver of a breach of the fundamental right under Article 14. The fundamental right, the breach whereof is complained of by the assessee, is founded on Article 14 of the Constitution. The problem, therefore, before us is whether a breach of the fundamental right flowing from Article 14 can be waived and they did not feel important to comment on the general waiver of constitutional rights.
It is the first of the five Articles grouped together under the heading “Right to Equality”. The underlying object of this Article is undoubtedly to secure to all persons, citizens or non-citizens, the equality of status and of opportunity referred to in the glorious preamble of our Constitution. There can, therefore, be no doubt or dispute that this Article is founded on a sound public policy recognised and valued in all civilised States. This Article is, in form, an admonition addressed to the State and the obligation thus imposed on the State, no doubt, ensures for the benefit of all persons, for, as a necessary result of the operation of this Article, they all enjoy equality before the law. The benefit of this Article is not limited to citizens, but is available to any person within the territory of India. By virtue of Article 12, ‘the State’ which is, by Article 14, forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities.
As regards the legislative organ of the State, the fundamental right is further consolidated and protected by the provisions of Article 13. Clause (1) of that Article provides that all laws in force in the territories of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III shall, to the extent of the inconsistency be void. Likewise clause (2) of this Article prohibits the State from making any law which takes away or abridge the rights conferred by the same Part and follows it up by saying that any law made in contravention of this clause shall, to the extent of the contravention, be void.
The very language of Article 14 of the Constitution expressly directs that “the State“, which by Article 12 includes the executive organ, shall not deny to any person equality before the law or the equal protection of the law. Thus Article 14 protects us from both legislative and executive tyranny by way of Discrimination.
Such being the true intent and effect of Article 14 the question arises, can a breach of the obligation imposed on the State be waived by any person? It seems to us absolutely clear, on the language of Article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State.
N.H. Bhagwati
He agreed with the judgment prepared by Subba Rao and held that it is not open to a citizen to waive the fundamental rights conferred by Part III of the Constitution.
The preamble to our Constitution, Article 13 and the language in which the fundamental rights have been enacted lead to one conclusion that 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. Ours is a nascent 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 which have been for the first time enacted in Part III of our Constitution. The limitations on those rights have been enacted in the Constitution itself, e.g., in Articles 19, 33 and 34. But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution, there is no justification whatever for importing any notions from the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our Constitution.
Article 13 provided that the prohibition was effective both against past laws as well as future laws and both were equally void in so far as they are inconsistent with or in derogation of the fundamental rights enshrined in Part III of the Constitution. No distinction was made between the past laws and future laws in this respect and they were declared void to the extent of the inconsistency or the extent of the contravention as the case may be, leaving the unoffending parts thereof untouched. Under Article 13(2) an admonition was administered to the State not to enact any law which takes away or abridge the rights conferred by this Part and the obligation thus imposed on the State ensured for the benefit of all citizens of Bharat alike in respect of all the fundamental rights enacted in Part III of the Constitution. No distinction was made in terms between the fundamental rights said to have been enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy.
There is nothing in the terms of the various articles embodying the fundamental rights in Part III of our Constitution which warrants such a distinction. The fundamental rights are enacted with all precision and wherever limitations on their exercise are thought of they are also similarly enacted. Such constitutional limitations are to be found within the terms of the articles themselves and there is no justification for reading in the terms of the articles anything more than what is expressly stated therein. There is further this distinction between the American Constitution and ours that whereas the American Constitution was merely enacted in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare and secure the blessings of liberty and was an outline of government and nothing more, our Constitution was enacted to secure to all citizens, Justice, Liberty, Equality and Fraternity and laid emphasis on the welfare state and contained more detailed provisions, defining the rights and also laying down restrictions thereupon in the interest of the general welfare, etc.
The constitutional rights are those created and conferred by the Constitution. they are absolutely inviolable save as expressly enacted in the Constitution and cannot be waived by a citizen. The Constitution adopted by our founding fathers is sacrosanct and it is not permissible to tinker with those fundamental rights by any analogy of the decisions of the Supreme Court of the United States of America. The only manner in which that can be done is by appropriate amendment of the Constitution and in no other manner whatever.
The fundamental rights are a constitutional mandate to the State and no citizen can by any act or conduct relieve the State of the solemn obligation imposed on it and it is not open to a citizen to waive his fundamental rights conferred by Part III of the Constitution.
SK DAS: Dissenting opinion
The doctrine of waiver is grounded on the principle that a right, statutory or otherwise, which is for the benefit of an individual can be waived by him. The test is not whether in its operation it relates to an individual. The test is – for whose benefit the right has been primarily granted for the benefit of the general public or for individuals?
He then applied this test to some of the provisions in Part III of the Constitution. These provisions have been classified under different heads: (1) right to equality, (2) right to freedom, (3) right against exploitation, (4) right to freedom of religion, (5) cultural and educational rights, (6) right to property and (7) right to constitutional remedies. There can be no doubt that some of these rights are for the benefit of the general public. For example, Article 23 which prohibits traffic in human beings, etc.; so also Article 24 which says that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment. Several of these rights are rights which are meant primarily for the benefit of the general public and not for an individual. Then there are rights meant for private persons such as Article 31, which says that no person shall be deprived of his property save by authority of law and that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation, etc. Take a case where a man’s property is acquired under a law which does not fix the amount of compensation or specify the principles on which or the manner in which the compensation is to be determined and given. The man whose property is taken may raise no objection to the taking of his property under such law. Indeed, he may expressly agree to Government taking his land for a public purpose under the law in question, though it does not comply with the requirements as to compensation. Can such a man after two or three years change his mind and say that the law is invalid and his land on which a school or a hospital may have been built in the meantime should be restored to him, because he could not waive his fundamental right ? In his opinion, if this view is expressed the view in the abstract that no fundamental right can ever be waived, many startling and unforeseen results may follow. The position under the American Constitution is well settled and a succinct statement of that “There are certain constitutional provisions that may be waived by the person for whose protection they were intended. A person who has waived that protection in a given instance may not thereafter raise the issue that his constitutional rights have been infringed in that instance, since whatever injury he may incur is due to his own act rather than to the enforcement of an unconstitutional measure against him.
Subba Rao
The American Law on the subject may be summarized: The doctrine of waiver can be invoked when the Constitutional or Statutory guarantee of a right is not conceived in public interest or when it does not affect the jurisdiction of the authority infringing the said right. But if the privilege conferred or the right created by the statute is solely for the benefit of the individual, he can waive it. But even in those cases, the Courts invariably administered a caution that having regard to the nature of the right some precautionary and stringent conditions should be applied before the doctrine is invoked or applied.
Now the question arises whether the fundamental rights enshrined in the Indian Constitution pertain to that category of rights which could be waived? While it is true that the judgments of the Supreme Court of the United States are of a great assistance to this Court in elucidating and solving the difficult problems that arise from time to time, it is equally necessary to keep in mind the fact that the decisions are given in the context of a different social, economic and political set up, and therefore great care should be bestowed in applying those decisions to cases arising in India with different social, economic and political conditions. While the principles evolved by the Supreme Court of the United States of America may in certain circumstances be accepted, their application to similar facts in India may not always lead to the same results. It is therefore necessary to consider the nature of the fundamental rights incorporated in the Indian Constitution, the conditions of the people for whose benefit and the purpose for which they were created, and the effect of the laws made in violation of those rights. The Constitution of India in its preamble promises to secure to all citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity of the nation. One of the things the Constitution did to achieve the object is to incorporate the fundamental rights in the Constitution.
Part III is enacted for the benefit of all the citizens of India, in an attempt to preserve to them their fundamental rights against infringement by the Institutions created by the Constitution; for, without that safeguard, the objects adumbrated in the Constitution could not be achieved. For the same purpose, the said chapter imposes a limitation on the power of the State to make laws in violation of those rights. The entire part, in my view, has been introduced in public interest, and it is not proper that the fundamental rights created under the various Articles should be dissected to ascertain whether any or which part of them is conceived in public interest and which part of them is conceived for individual benefit. Part III reflects the attempt of the Constitution makers to reconcile individual freedom with State Control. While in America this process of reconciliation was allowed to be evolved by the course of judicial decisions, in India, the fundamental rights and their limitations are crystallized and embodied in the Constitution itself; while in America a free hand was given to the judiciary not only to evolve the content of the right but also its limitations, in the Indian Constitution there is not much scope for such a process. The Court cannot therefore import any further limitations on the fundamental rights other than those contained in Part III by any doctrine, such as “waiver“ or otherwise.
By express provisions of the Constitution, the State is prohibited from making any law which takes away or abridge the rights conferred by Part III of the Constitution. The State is not, therefore, expected to enforce any right contrary to the constitutional prohibition on the ground that the party waived his fundamental right.
A large majority of our people are economically poor, educationally backward and politically not yet conscious of their rights. Individually or even collectively, they cannot be pitted against the State organizations and institutions, nor can they meet them on equal terms. In such circumstances, it is the duty of this Court to protect their rights.
He therefore held that the fundamental rights created by the Constitution are transcendental in nature, conceived and enacted in national and public interest, and therefore cannot be waived.
Summing up the case Das and Kapur held that only Article 14 cannot be waived. Subba Rao and Bhagwati held that no fundamental right can be waived and the minority dissenting view of S.K. das stated that only the rights which were for the individual benefit of a person can
Order
The appeal is allowed. The order of the Income Tax Commissioner, Delhi, dated January 29, 1958, is set aside
Overview
After this judgement the position was clear that a fundamental right cannot be waived. This judgement has been quoted and upheld innumerable times by various courts in the Country. However, recently in the case of Justice KS Puttaswamy V. Union of India in which Right to Privacy was held to be a fundamental right, the case of Basheshar Nath and Behram Singh was discussed by Justice Chandrachud and he observed that the Right to Privacy includes ‘decisional autonomy’ which means that there can be waiver with respect to the Right to Privacy (For Example: posting something on Facebook, that material can be used by anyone and the person cannot claim that his right to privacy has been infringed). Other Fundamental rights still cannot be waived unless the entire judgement of Basheshar Nath is overruled by the Apex Court.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
