Bashesher Nath v. CIT

FACTS

The petitioner’s case was referred to the Income Tax investigation commission under Section 5(1) of the relevant act. After the commission had decided upon the amount of the concealed income, the petitioner agreed as a way of settlement to pay in monthly instalments over Rs. 3 lakhs by way of tax and penalty. In 1955, the Supreme Court declared Section 5(1) ultra vires to Article 14. The petitioner thereupon challenged the settlement between him and the commission but the plea of waiver was raised against him. The Supreme Court however upheld his contention.

JUDGEMENT AND ANALYSIS

It was observed that the learned judges expounded several views regarding waiver of Fundamental Rights:

• Majority View (Regarding Article 14): Article 14 cannot be waived for it is an admonition to the State as a matter of public policy with a view to implement its object of ensuring equality. No person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution.

• Broader Majority View (Regarding all Fundamental Rights): None of the Fundamental Rights can be waived by a person. The Fundamental Rights are mandatory on the State and no citizen can by his act or conduct relieve the State of the solemn obligation imposed on it. The Constitution makes no distinction between Fundamental Rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy. A large majority of the people in India are economically poor, educationally backward and politically not yet conscious of their rights. Individually or even collectively, they cannot be pitted against the State, and, therefore, it is the duty of the judiciary to protect their Rights against themselves.

• Minority View: The Minority Judges took the view that an individual could waive a fundamental right which was for his benefit, but he could not waive a Right which was for the benefit of the general public. This was reiteration of the view expressed in Behram, as stated above.

Hence, in view of the majority decision in Basheshar Nath, it is now an established proposition that an individual cannot waive any of his Fundamental Rights.

{pg 903, Indian Constitutional Law by MP Jain 8th ed}