The Doctrine of Waiver of Rights: Fundamental Rights as Absolute Duties?
It is a joy to revisit the Constitution Bench decision in Basheshar Nath v. The Commissioner of Income Tax (delivered on 19 November, 1958) [i] by five of India’s top adjudicators who did a great deal to lay down the very foundations of constitutional law of India. The Bench comprised Justices, Sudhi Ranjan Das (CJI), Natwarlal H. Bhagwati, Sudhansu Kumar Das, Jivan Lal Kapur, and Koka Subbarao. The term ‘living legends in law’ was then not in vogue but the Court as a whole was regarded as the ‘living oracle’ of the law[ii] But this visitation is not only nostalgic, it serves to remind us that judicial disagreement and public dissent was very early an aspect of the Indian Supreme Court decision-making.[iii] Judicial dissensus was certainly not an exception and the authority of the Court was enhanced, not impaired by dissenting Justices; and such dissent was considered even when the Chief Justice led the ‘majority’ (I put this expression in quotes because we do not yet know whether there was any!). Early on, the tradition emerged where the Chief Justice of India was primus inter pares. Yet it is my belief (though yet to be empirically fully verified) that dissent as well as concurring opinions (often called plurality of opinions) lent much to the socialization (social acceptance and moral legitimacy) of the Indian Constitution or constitutionalism. As Rohit De has demonstrated, the Supreme Court early became the ‘people’s court’.[iv]
In contrast, the de facto pattern emerged early on when the Prime Minister of India (and Chief Ministers of states) developed a style el supremo, not fully accountable to the Cabinet or even Parliament (when in absolute majority). Heavy political propaganda against judicial review was not unusual, as the political class was unanimous in privileging the absolute parliamentary sovereignty. Legislatures were regarded as prime movers, the engines of social change and distributive justice. Two different cultures were evident: juridical and political, which competed and collaborated in the development of Constitutional India and they continue to do so even now. [v] Today, the supreme judiciary emerges as a co-governing institution alongside the executive power of the State.
The Bar then was eminent and distinctly Anglophile. It was compact and constitutional practice was a relatively specialized affair. The practice of a large number of lawyers representing each party had fortunately not yet emerged. And the judicial opinions, and the arguments at the Bar, were concise but fully canvassing the jural positions at stake. In this case, eminent counsel represented the two sides: M. C. Setalvad, Attorney-General for India, C. K. Daphtary, Solicitor-General of India, B. Sen and R. H. Dhebar.
The social fact that early cases concerned things that mattered to big as well as small persons who invoked Article 32 (the fundamental right to constitutional remedies) was significant, in a number of ways. If the propertiat (to use Justice Krishna Iyer’s fecund phrase)[vi] caused the Constitution and the courts to advance the right to own property in the means of production[vii], the small persons came to the courts, not for property or tax but for protecting their rights to profession and to carry on trade, commerce, and business.[viii] From early on, the socialization of the Constitution and the Court depended, and thrived, on limiting the overweening political and economic might of the State which would render fundamental rights merely the ‘playthings’ of the executive and executive-legislature combine.[ix]
However, two features strike out. First, a constitutional orthodoxy, or simply doxa, now prescribes that fundamental rights may not be waived and most textbooks/treatises on Indian Constitutional law simply reiterate this regardless of what Basheshar Nath actually decided. Is the anxiety about what the Court actually decided in the case a real problem? (call this the indeterminacy problem). Or, is it really the case that what the Court decided does not matter to the institutions that govern (the managers of people) because in lived reality, if not in the normative law, calculative rationality lies in de facto waiver by actual people? (call this the sociological situation).
I do not attend here to the sociological situation because (1) this awaits a nation- wide impact analysis; (2) the myth prevails that the Supreme Court decided that fundamental rights in Part III may not be waived; and (3) unenumerated, and even new, fundamental rights have been judicially invented in reading rights, besides those mentioned in Part III either by way of the basic structure/essential features doctrine or by the doctrines of constitutional morality.[x] I basically explore the problem of ‘indeterminacy’ here which arises because the judicial discourse therein developed defies all ratio-hunters and the judicial reiteration has not invited any significant re-visitation of this view.
The peripheral aspects, however, can be said to have been unanimously decided. For example, the Court expressly negates the distinction 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’. It is no doubt that the Court examines various cases decided by the American Supreme Court (SCOTUS) and treatises on Constitutional law, but explicitly holds that 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’. [3, per Justice N. H. Bhagwati]
This is not judicial escapism or insularity crystallized much later in SCOTUS by Justice Antonin Scalia[xi] but rather a conclusion guided by different histories and objectives of two distinct experiences, experimentations, and expectations of constitutionalism. This is well expressed in the saying that, ‘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’. [Para 3, per Justice N.H. Bhagwati, emphasis added.]
And as the ‘limitations on those rights have been enacted in the Constitution itself, e.g., in Articles 19, 33 and 34’ and ‘enacted in the very provisions of the Constitution’, the Court sees ‘no reason why we should refrain from pronouncing our opinion on that question’. The unanimous opinion is that the ‘Preamble to our Constitution, Article 13 and the language in which the fundamental rights have been enacted lead to one conclusion and one conclusion only that whatever be the position in America, no distinction can be drawn here, as has been attempted in the United States of America…’  between ‘rights’ and ‘policy’ [Para 3 of Justice N.H. Bhagwati’s opinion].
It remains also important to underscore that the Court prescribes that it is its ‘sacred’ duty to enforce the right to constitutional remedies enshrined in Article 32. Some recent remarks recently attributed to Chief Justice Bobde favouring first the recourse to relevant High Court and emphasising the Article 136 jurisdiction as primary for the Court have to be understood within the context of this ‘sacred duty’.[xii]
I do not dwell here on the reported facts of the case but take seriously H.M. Seervai’s claim that, ‘no constitutional question of waiver of fundamental rights arose until it was first established that the appellant had waived his rights’.[xiii] Instead of going so far as to say that the entire judicial performance here was a massive obiter, he merely courteously says that ‘since judges expressed views on the waiver…these…must now be considered’.[xiv] I follow the learned author although I think, if no waiver was not established on evidence, the Court ought not to have decided an issue not before it.
What, in any case, did the Court decide? Logically, there are four possibilities:
the doctrine of waiver applies to all rights—legal, equitable, statutory, constitutional, fundamental, global human rights;
it does not extend to any of these;
it does extend to some classes of rights, namely fundamental rights;
it extends to all fundamental rights.
Obviously, the Court did not attend to propositions (1) and (2) but directed itself only to the last two propositions. Two Justices accepted proposition (3) above. Learned CJI Sudhi Ranajan Das (for himself and Justice Jeevan Lal Kapoor) did not find it ‘strictly necessary’  to address the wider question embraced by proposition (4) above but looked only at the issue whether Article 14 was capable of waiver. What did that Article confer by way of the right to equality? The Chief Justice was of the view that the Article was based on ‘sound public policy recognised and valued in all civilized states’ but ‘in form’ it is ‘admonition addressed to the State and does not directly purport to confer any right on persons as some other Articles, e.g. Article l9 do’ . But the Court also says that the Article is a ‘command issued by the Constitution’ and no person may waive it . A fine analytical question here is whether the two learned Justices held Article 14 merely to be an ‘admonition’ or held it as a ‘command’? The question remains important, even when the two learned Justices categorically ruled that Article 14 cannot be waived.
Three Justices take the view that all the fundamental rights, being fundamental, cannot be waived. Justice N. H. Bhagwati emphasises Dr. Durga Das Basu’s observation that the ‘tyranny of legislatures is the most formidable dread’  held that the fundamental rights are a ‘necessary consequence’[xv] of the declarations in the Preamble, which as a whole render the fundamental rights ‘absolutely inviolable’ save with the exceptions admitted by Part III .
Justice Koka Subba Rao agrees both with the opinions delivered by the Chief Justice and Justice S. K. Das but adds his own concurrent valuable opinion. There are two peculiarities here: first, these two opinions diverge on waiver such that the learned opinion of Justice S.K. Das may be called a not too disguised a dissent; and second, there is no reference here to Justice Bhagwati’s opinion.[xvi] All this suggests an institutionalized lack of a judicial conference based on exchange of judicial opinions— an institutional inheritance, now given the docket explosion makes any such suggestion for reform wholly utopian!
However, describing the situation of waiver as ‘most serious an important question’, Justice Subba Rao articulates the view that his concurring opinion will help ‘scope for conflicting decisions involving…unnecessary litigation and avoidable hardship’ . It seems that neither scenario has come to pass, which would seem to suggest that neither the senior Bar nor the general public has taken the decision very seriously. Yet, valuably, he regards the situation as akin to judicial ‘ouster’  by policy-makers or individual litigants for reasons which are not justified at all by Part III. This analogizing of waiver with ouster is, indeed, germinal. To endow individuals or groups to exit from Part III is fraught with the potential of disempowering the Supreme Court of India and eviscerating judicial process. Such a state of affairs may not come to pass, one hopes, if the Court were itself not to wholly rework the basis and justification of strong judicial review– the basic structure and essential features doctrine, the conceptions of constitutional morality, the discipline of ‘reasonableness’ and the doctrines of ‘purposive interpretation’ and ‘proportionality’ in invigilating legislative and bureaucratic conduct (which invade fundamental rights or threaten otherwise the values of the Constitution).
Justice Subba Rao did not quite put the matter this way, but his articulation justifying non-waiver of all fundamental rights in Part III is equally, if not more, summoning. He memorably said that it is a supreme judicial duty to regard fundamental rights in the Constitution as ‘transcendental in nature, conceived and enacted in national and public interest’ and ‘it is a duty of this Court to protect them against themselves’ . Before we begin to hurl the indictment of jural or judicial paternalism, it is well worth recalling that ‘a large majority of our people are economically poor, educationally backward, and politically not yet conscious of their rights’. Further, they ‘cannot be pitted against the State organizations and institutions, nor can meet them on equal terms’ . What overall again broadly at work here is Justice Subba Rao’s anti-‘statism’.[xvii]
Much of Justice Subba Rao’s opinion is devoted to a studious rebuttal [67-78] of Justice S. K. Das. I do not burden this essay with the notion that fundamental rights may not constitute ‘fetters’ or ‘using it as a means for getting out of an agreement freely entered into by the parties’ as this would not be the best way ahead of ‘advancing the cause of democracy’ . But seriously ‘objectionable’ remains a statement in the abstract and absolute terms that under no circumstances fundamental rights may be waived ; nor are fundamental rights to be conflated with natural rights as these latter ‘played no part in the formulation’ of Part III provisions and ‘the doctrine of “natural rights” affords nothing but a foundation of shifting sand…’. Having said this, however, Justice S. K. Das immediately seems to defer to the anti-waiver constitutional argument . This performance reminds one of the later judicial feat of Justice R. S. Pathak who agreed with the majority of two in Bandhua Mukti Morcha Case [xviii], but his entire reasoning pointed towards another and different direction![xix]
I have discussed the phenomenon of disguised dissent in foundational social action litigation.[xx] We may call it by any other name— say ‘reluctant concurrence’, but the reasoning points to actual dissent whereas the result points to an appearance of concurrence. Put somewhat colloquially, if the judicial reasoning goes South, the ultimate result (order) in the opinion travels North! This is a logically intolerable situation and an impossible feat if we regard (as conventionally done so) a judgment as expressing an organic passage between reasoning and result. Severing this connection leads to considerable judicial ambivalence in decision-making. Without further dilating this theme here, it may be said that this happening (dissent in reasoning but agreement with the outcome) complicates any serious legal or moral understanding of the judicial intention and social impact. The secret history of judicial approaches to decision-making process, perhaps, lies here.
Given this disposition, one may ask, how shall we count the ‘majority’ in this case? To reiterate, two Justices would leave the wider fields of waiver but say that Article 14 may not be waived; two justify taking the opposite view and decide that the Constitution prohibits any waiver of fundamental rights enshrined in Part III; and one Justice disagreeing in reasoning  with both these propositions and yet, finally ordering that: (1) where a right is ‘guaranteed by the Constitution’ and ‘is primary intended for his benefit and does not infringe the rights of others’ a person may waive any or all of his fundamental rights (2) provided however, that ‘such waiver is not prohibited by law and does not contravene public policy or public morals’ .
Each expression used here merits very careful and anxious reading, which we forego here, except saying that on a close reading, we realize that the learned judge actually dissents even when he expresses appreciation of Justices with whom he sharply disagrees. How then are we to determine the judicial outcome? It is clear that there is no majority for the proposition that no fundamental rights may be waived, unless we torment the opinion of Justice S. K. Das to somehow make a majority of 3:2? From this, we should return to the wider questions such as Justice Frankfurter’s William A. Adams decision[xxi], or problems posed by ‘Government by Waiver’[xxii]. The former posed the question in the administration of criminal justice where an accused chooses trial by a judge than jury if waiver was not permitted; the issue in other words, of non–waiver as posing ‘fetters’ to one’s basic democratic freedoms. Another, albeit Hohfeldian way, is to pose this as a question of converting a right-duty relation into a privilege- no right relation (put differently, no right of X is violated by Y exercising his/her/its privilege, because this jural relation defines privilege– liberty— as an absence of duty).
In contrast, Richard A. Epstein poses the hydra-headed problem of governance discretion that menaces the basic notions of the rule of law.[xxiii] If indeed ‘waiver’ has to be secreted even into the rule of law minimalism, the remedies we devise in India must lie in attaining that balance between individual freedoms and choice of neoliberal forms of governmentality. Do multiple readings of Basheshar Nath anticipate notions of ‘waiver’ which lead us to a new balancing of conflicting social interests? How may we construe the right to privacy decision?[xxiv] Further, I remain most anxious concerning constitutional rights: a major such right is the right to adult suffrage, which is guaranteed as a constitutional right. Do we need a totally fresh discourse on opportunities and risks of waiver given new forms of techno-science and techno-political fascinations and frustrations? And if we were to relate law to science and technology paradigm changes, is the best way ahead to maintain that no fundamental rights may be waived or to name some fundamental rights which may be held immune from such choice by individual right bearers? The genius of Basheshar Nath is that this foundational judicial ruling is extremely relevant, and some would say even ‘critical’, in the contemporary hyper-globalizing zodiac.[xxv]
[i] 1959 (Suppl.) 1 SCR 528. Paragraph numbers in the text of this article refer to this judgment, save Justice N. H. Bhagwati’s opinion which is numbered with serial paragraphs beginning number 1. This is odd unless we ascertain that the learned Justice field his opinion rather late, too late for his brethren even to fully read.
[ii] The earliest attribution of this description is traceable to Sir William Blackstone in Commentaries on Law of England (Chicago, University of Chicago Press, 1979), who prefaced the ‘oracle’ remark by saying that courts were the ‘depository of laws’. See, Nathan B. Oman, ‘The Living Oracles”: Legal Interpretation and Mormon Though’, available at https://nboman.people.wm.edu/TheLivingOracles.pdf. The phrase has entered common parlance of legal writing since then.
[iii] Yogesh Pratap Singh, Judicial Dissent and Indian Supreme Court: Enriching Constitutional Discourse (Delhi, Thompson Reuters, 2018).
[iv] Rohit De, A People’s Constitution (Princeton, Princeton University Press; 2018).
[v] M. C. Setalvad concludes his 623 page long autobiography (see Note 12. infra) by lamenting a growth of political culture’, where ‘dishonesty, chicanery, and corruption’ prevail, and ‘have increased alarmingly’ (in States and Union) as perils to democracy. He ends poignantly: ‘Dark clouds envelope) the future’ and ‘one’s innate optimism is put to heavy strain. Can one hope that Mother India will weather the difficult times that lie ahead of her?’. This was said as early as 1971 by a person who was universally regarded as India’s most eminent jurists, and her long serving first Attorney General and ace law reformer.
[vi] See, generally, K.M. Sharma, ‘The Judicial Universe of Mr. Justice Krishna Iyer’, Op. Ed. SCC Journal Section Archives (Published on November 15, 2020).
[vii] Upendra Baxi, ‘The Little Done, The Vast Undone”: Some Reflections on Reading Granville Austin’s The Indian Constitution’, Journal of the Indian Law Institute 9, 323-430 (1967).
[viii] Rohit De, Supra Note 4. The book can perhaps best be read a foray in ‘constitutional ethnography’ litigant biographies are here compellingly presented as social texts of history which embedded the belief that the right to constitutional remedies is a basic fundamental right of all (not some) peoples.
[ix] See, Upendra Baxi, ‘No Plaything: Legislators Are Bound to Uphold The Basic Structure of a Secular, Socialist Constitution’, Indian Express, February 4, 2015.
[x] Upendra Baxi, ‘How to Engender the Basic Structure Doctrine?: The Elusive Future of Women’s Rights as Human Rights’, 25thJustice Sunananda Bhandari Memorial Lecture, 29 November, 2019; available at http://jsbfoundation.com/memorial-lectures/memorial-lecture-25.html.
[xi] See, Justice Scalia’s dissenting opinion in Roper v. Simmons, 543 U.S. 551, at 622-28 (2005); see the erudite analysis in Michael C, Dorf, ‘Dynamic Incorporation of Foreign Law’, University of Pennsylvania Law Review, 157:103-169 (2008); and generally, Tomaso Pavone, ‘Judicial Minimalism in Constitutional Interpretation: A reply to Antonin Scalia’s “Common-Law Courts in a Civil-Law System”’(2014), available at https://static1.squarespace.com/static/5d653034873abb0001dd9df5/t/5d6ee30943eb7f0001967cca/1567548170503/A+Reply+to+Antonin+Scalia%27s+Judicial+Minimalism.pdf.
[xii] See, the discussion in Upendra Baxi, ‘Right to Constitutional Remedies is the Constitution’s Soul. Surely SC is Mindful of that’, Indian Express, November 23, 2020.
An interesting account of the case is provided in Motilal C. Setalvad, My Life: Law and Other Things 209-211 (Bombay, N.M. Tripathi Private Ltd., 1971). Ordinary mortals would learn the facts only from Setalvad’s autobiography that that it was Shri Vishwanath Satri, a leader of the Indian Bar, and a tax expert, who discussed the available constitutional law strategies in this case with Shri Setalvad. And interestingly, Shri Sastri also served as the Chair of the Income Tax Instigation Commission; the argumentative strategy which insisted that while the procedure under that proceeding was ‘drastic’, it applied only to those who had nastily evaded the tax, and therefore, constituted a valid class of assesses. The Court did not find any difference between this and assesses that were proceeded under Section 5(1) of the Income Tax Act.
[xiii] See, H.M. Seervai, Constitutional Law of India, 1 at 8:29, p. 256.
[xiv] Ibid. The position Seervai takes is fully justified; and is based, on the acute analysis of Justice Sudhanshu Kumar Das who explicitly elaborates the ‘why’ of proposition  above: see, paras 36-37 of his opinion.
[xv] Quoting from, and endorsing, Chief Justice Mahajan in Behram Khurseed Pasikakka v. State of Bombay, (1955) 1 SCR 613 at 643 .
[xvi] This second may suggest that he did not have access to it when he wrote his opinion; and the first suggests the chaotic and fragmented judicial discursivity, which matured the eighties (and since then has developed apace) but was already institutionalized early.
[xvii] See, Koka Subba Rao, Social Justice and Law (Delhi, National Law House, 1974); Vidya Dhar Mahajan, Chief Justice K. Subba Rao: Defender of Liberties, (Delhi, S. Chand, 1967); Twarakavi Venkata Subbarao, Constitutional Development in India: Contribution of Justice Subba Rao (Delhi, Deep& Deep, 1992).
[xviii] (1997) 10 SCC 549.
[xix] See, Upendra Baxi, ‘“Uprooting Injustice”, “Organizing Negation: The Enduring Legacy of Justice Bhagwati’ in M. C. Sharma (ed),Law, Power, and Justice: Bhagwati’s Judicial Approach’, 113- 132 (Delhi, Oak Bridge Press; 1999).
[xx] I call it ‘social action litigation’ (SAL) in preference to ‘Public Interest Litigation’(PIL). I have several times justified this naming by pointing out many differences in these two distinct pathways and my preferred naming has been accepted (along with SAL ‘epistolary jurisdiction’, ‘socio-legal commission , and other devices) by Justice Bhagwati and some of his brethren but the label PIL has stuck and is a shorthand that persists among judges, lawyers, and academic. While bowing to the conventions of naming, I continue to believe in using the expression SAL because while labels can be borrowed, histories cannot. See the further references in the article cited in the preceding footnote.
[xxi] Referred to by Justice S. K. Das in para 54.
[xxii] Richard A. Epstein, ‘Government by Waiver’, National Affairs, 45: Fall 2020 (2020); available at https://www.nationalaffairs.com/publications/detail/government-by-waiver.
[xxiii] Epstein says upfront that these notions require at least that ’every party must have notice of the charge against him and an opportunity to be heard in response; each governing rule must be consistent with all the others, so that no person is forced to violate one legal requirement in order to satisfy a second. In the United States, our respect for such principles has made our economy the world’s strongest, and our citizens the world’s freest’. And the ‘challenge is to strike a proper balance — between limiting the discretion of these officials so that they do not undermine the rule of law, while also allowing them enough leeway to perform their essential roles’. He provides instances of many American policy/administration arenas where waiver is the rule rather than an exception. For example, the waiver power that makes employees submit to ‘other private parties’, the Food and Drug Administration’s vast powers to license drugs, and the recent Affordable Care Act. The ending of the ‘era of discretion’ requires ‘a total transformation of the role of government’ which ‘will not happen any time soon. Meanwhile, the problem of government by waiver — like the larger danger of excessive discretion — can be limited only by a greater awareness of these perils on the part of judges and administrators. The best we can hope for then is enlightened leaders’, who however remain in very short supply!
[xxiv] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. The Court holds the right to privacy is not just a constitutional right, a fundamental right but also as a natural right. We are confronted here with several questions, even short of refinement: May then ‘natural rights’ be ever waived? May individuals waive this right in favour of the digital platforms and corporations controlling digital access but may not do so in favour of the State? What shall we say of judicial interpretation: may it divest some fundamental rights to the status of constitutional rights or even to the status of no –rights by acts of judicial interpretation? Do people of India have a fundamental constitutional right to the basic structure of the Constitution?
These, and allied, concerns still await a further nuanced formulation, which should also include the basic question whether core human rights norms, standards, and values apply to states as well as all other aggregations of techno scientific actors/ actants— this is a term (what we normally call ‘non-state actors) coined by Bruno Latour: see Prince of Networks: Bruno Latour and Metaphysics Graham Harman, A Prince of Networks, (Australia, Melbourne (Re.Press, 2009). Or, should these remain forever beyond the pale of globally accepted human rights discipline?
[xxv] The brief and pointed summation of some comparative law and jurisprudence aspects of waiver attempted by editors Ms. Anandita Bhargava and Ms. Stuti Srivastava (RGNUL Student Research Review) appears now as an independent work. This is as it should be, though I was inclined to draw upon it, especially as concerns the US law, but reasons of space intervened. I commend this Note (Research Note- Comparative Analysis on Doctrine of Waiver) for further research in this area. An emerging select trend seems to suggest that the Courts should err on the side of caution; a waiver should be established as a matter of operative legal fact. There is no scope for judicial notice or the presumption of waiver.
This article has been authored by Prof. (Dr.) Upendra Baxi, Emeritus Professor of Law at University of Warwick and University of Delhi. This blog is a part of the RSRR Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues. A PDF form of this article is available here: Doctrine of Waiver of Fundamental Rights- Prof. (Dr.) Upendra Baxi.