Rule of Waiver

Introduction:

An individual possesses certain legal rights which are granted to him by either the constitution, statute or a contract. Rights are often defined as an interest or a claim which provides the individual with the facility to regulate the act of others, i.e., to make someone do or abstain from doing an act. A crucial question arises as to whether these rights can be waived.

 In India, the rule of waiver has been present in since the conception of the judiciary and at a point of time, it even has preceded the judiciary of Independent India. In the year 1945, The High Court of Bombay separated the rule of waiver in India from its counterpart in the English Law and further expressed that the rule of waiver in India can be found in Section 63 of the Indian Contract Act, 1872.

Since then, there have been numerous large advancements in the rule of waiver which has brought about the investigation of waiver of right beyond contractual conferment with limitations being determined simultaneously on such expansion of exercise of waiver of rights.

What is Rule of Waiver?

As per Black’s Law Dictionary rule of waiver is the intentional surrender of a person’s right. Waiver is when an individual purposefully and with full intention, gives away his right to exercise or choose not to exercise that right which would be available to that person under normal circumstances. Waiving of a right means that an individual can no longer assert that right and is prohibited from challenging the constitutionality of that law for the advantage of which, the right is waived

A document of waiver is generally a document which provides the details of giving up of certain rights of an individual. There are various kinds of waivers that can be utilized in a legal environment these include damage waivers, procedural waivers and liability waivers. Waivers are important documents which should not be underestimated as could affect your case.

A waiver typically details the specific terms to which a person is agreeing to. The terms stated under this should be concise and the person should have a complete and clear understanding before signing the waiver.

This doctrine is based on the principle that an individual is the best judge of his own interest and when that person is provided with full knowledge, that person should be allowed to make a decision for himself. The law in India permits an individual to waive the rights arising out of contractual or statutory provisions but he cannot waive off his fundamental rights.

The Supreme Court has stated that the fundamental rights which exist within the constitution are not present merely for an individual’s benefit but are there as a matter of public policy. Therefore, rights which are a part of the public policy can’t be waived by an individual for any reason. Additionally, the Constitution imposes an obligation on the state to safeguard these rights. ^[1]

Different types of waiver

1. Waiver of Contractual Rights

The Indian Contract Act,1872 has been instituted for illustrating the key ingredients required to solidify rights and commitments among two or more persons. The rule of waiver is placed under section 63 of the Indian Contract Act which accommodates surrender of rights among two parties. Rights which can be given up incorporate commitments and furthermore claims which earlier had been assented to be used and performed by the parties. Thus under this section, the right to waiver must involve shared agreement and a person cannot waive a right which doesn’t exist.^[2]

In the matter of Jagad Bandhu Chatterjee vs Nilima Rani & Others, the Supreme Court, while examining waiver of a held that waiver of right doesn’t require any consideration or an agreement. The Supreme Court additionally referenced to the Waman Srinivas Case and held that waiver establishes abandonment of a right and ordinarily, everybody is at liberty to waive such a right.

2. Waiver of Statutory Rights

The rule of the waiver is often applied in situations where parties wish to waive rights conferred upon them by legislation. There have been numerous examples where a statutory right has sought to be waived off and accordingly the Supreme Court has given its decision on the same. In the case of Waman Shriniwas Kini vs Ratilal Bhagwandas & Co which was among one of the first cases of such kind wherein the Supreme Court has held a waiver of statutory right to be permissible as long as such waiver does not encroach the rights of the others and is not against public policy or morals.

As per the Supreme Court, the statutory right can be waived subject to the following conditions:

• The parties involved should have an immediate benefit from the right which is sought to be waived.
• The right conferred should not be concerning to any matter involving public interest. The following can be ascertained by looking into the intent of the legislative statute.

3. Waiver of Fundamental Rights

The law in India does not permit the waiver of Fundamental Rights. The decisions regarding this were delivered by the Supreme Court by a bench of five judges in the case of Basheshar Nath. Here, it was held that the fundamental rights which are cherished under Part III of the Constitution cannot be waived as these rights are not present merely for the individual’s benefit but are a part of public policy and thus cannot be subjected to the rule of Waiver.^[3]

Whom does it Benefit?

Waivers are a common practice in places of employment. Many professional players, such as baseball players, skiers, skateboarders, professional lifters or just about any sport you might have heard of, are made to sign waivers to be allowed to join a team. Any job which has a potential risk, it is common for the employees to sign a form of waivers. Even cab drivers are often made to sign waivers before driving for a cab company, as many possibilities can occur on the way to their destination.

A waiver form referred to as a “release of liability” form, is a crucial document to possess if you are doing any of the following-Handling an event, such as a charity run or food eating contest, Electing to start out a business during which participants face physical risk. This can include everything from hot air ballooning to skydiving to dancing on stage etc.

The following are the reasons why you should never underestimate the purpose of waiver in your business: –

•  A waiver form saves you the time you would be spending in courtrooms fighting battles rather than focusing on your businesses.
•  Court processes will demand huge sums of money for attorneys and damages caused.
•  Court processes are often not easy to handle.  You will most likely not organize an event in the future due to this fear.

Waivers are an essential requirement to have for any business because it helps them to remain out of trouble. However, this does not permit you to be careless or negligent. They are meant to safeguard you from the damages involved in activities that are not within your powers to control.

Examples

Nowadays everyone is regularly bombarded with user agreements online, on our phones, at the bank, etc. Most people sign these agreements without reading through them. The following are a few examples of the services which use the form of waiver to provide their services: –

Ridesharing Apps – Lyft, Uber,OLA

Arbitration clauses are an enormous legal issue with ride-sharing companies. Companies are frequently facing legal action challenging the legal validity agreements made for their driver.

Since 2013, Uber’s agreement prevents drivers from suing the company in court (they are instead made to use private arbitration). Uber drivers also are prohibited from forming a class action lawsuit. Uber’s driver agreement establishes a driver’s status as “self-employed,” rather than employees because of which they are not required to pay their drivers minimum wage.

Netflix and other show streaming services

The company’s rights:

When you sign up for a streaming service, users are required to sign an arbitration agreement in their terms of service. This user agreement limits their rights to use. For example, you cannot use Netflix for commercial purposes, which incorporates streaming Netflix in a place of business such as waiting rooms or bar etc.

Landmark Cases

2. Jaswant Singh Mathura Singh & Anr. vs. Ahmedabad Municipal Corporation & Ors

In this case, it was declared by the court that each and every person has a right to waive an advantage or protection which seeks to help him/her. For example In case a where there is a dispute between the tenant and owner, if a notice is issued by the court and neither the owner, tenant or a sub-tenant makes any representation it would then amount to a waiver of the right and such individual won’t be permitted to pivot at a later stage.^[5]

3. Behram Khurshed Pesikaka vs. The State of Bombay

In this case, it was declared that the fundamental rights are a necessary part of the constitution of India which promises to each of its citizens’ justice, equality of opportunity and status. These fundamental rights were not placed within the Constitution for the mere benefit of the individual but for the public policy at large.^[6]

4. Krishna Bahadur v. M/s. Purna Theatre & Ors.

This differentiated the principle of Estoppel from the principle of Waiver. It was held by the court that the key distinction between the two is that estoppel is a rule of evidence and not a cause of action whereas a waiver is contractual in nature and it may constitute a cause for action; it is a mutual agreement between the two parties and the parties are fully aware of the rights it has agreed to not assert a right for consideration.^[7]

5. Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association & Ors.

In this case, the court held that even if the concept of waiver and estoppel are different they still are co-related to each other and that they cannot exist without each other.

^[8]

International Law Comparison

Even though the Constitution of India And the United States is basically made for the same purpose there still a few key contrasts between the issues put inside them.

In India, the Supreme Court held that a resident can’t waive his fundamental rights conferred by the constitution as these rights exist not only to serve an individual but are made to serve the public policy.

However, it may astound you to hear that, In America just opposite to India the fundamental rights can be waived, and the reason behind this is that in America the fundamental rights which are embodied in the constitution are created for the benefit of an individual as opposed to the advantage of the public at large.”

According to professionals in India, this is because the constitution of the United States was made with the motive of mere ruling only and it is not as detailed as the Indian constitution.

But the experts from the US scrutinize the Indian concept as could be noted in a well-known case law Daniels v Tearney where the judges condemn the Indian concept. Their view is that since bot of the constitution are nearly the same and since US constitutions permit the rights which include a public policy to be waived why don’t the Indian constitution permit that as well? Their view is that Indian democracy is a young one and developing in nature and it will become ill if it begins by allowing bad faith and discredit the pledged word given after full knowledge.

It is also interesting to see in the case of Basheshar Nath v IT commissioner where justice SK Das was in the support of the US view of the subject was in the minority opinion. Before we further dive into the minority opinion we should first look into the majority view which was elaborated by justice Bhaghavathi which stated that “the constitution of the United States and India show that they were made for entirely different purposes and objectives in mind. Aside from that the constitution of United States is a guideline for the governments to follow and nothing more, whereas our constitution is a definite one wherein the rights and the limitations to which residents are liable to be referenced itself in the constitution. Therefore, to permit the waiver of fundamental rights would be to weaken our constitution for which there is no justification at all”

 Justice SK Das pointed out that there were incredibly few contrasts between the Indian and the United States constitutions and in this way the rule of waiver would be made relevant to the previous, not later. The right test applies to every fundamental was to inquire whether it conferred a right an individual primarily for his benefit. If it did, therefore, the rights might be waived.

Justice S K Das’s view was considered right however the majority, in this case, advised that it should be analysed more intently, then a verdict is to be given and justice Bhaghavathi told that the explanations justice SK das told to support his arguments were more imaginary than real.

So in the Indian constitution, the fundamental rights can’t be waived while in the constitution of the United States they can be waived.^[9]

Conclusion

From the discussion above, it can be said that the person has the ability to waive off its rights, whether contractual or statutory. Waiver always requires two or more parties to put it into effect as it is consensual in nature. There is no consideration required to exercise the right of waiver. Also, it cannot be ignored that the statutory rights are subject to the public policy and so limitations of its waiver may differ from case to case. Whereas the fundamental rights are so crucial to the interest of the public policy that their waiver is forbidden and there is no exception to this.

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References:

^[1] waiver, Academic Dictionaries and Encyclopedias, https://blacks_law.enacademic.com/43803/waiver

^[2]  Section 63, Indian Contract Act 1872

^[3] Waiver Of Right: An Indian Scenario – Corporate/Commercial Law – India, www.mondaq.com,

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^[4] Basheshar Nath v. Commissioner of Income Tax, AIR 1959 SC 149

^[5] Jaswant Singh Mathura Singh & Anr. vs. Ahmedabad Municipal Corporation & Ors AIR 1991 SCR 385

^[6] Behram Khrushed Pesikaka v. The State of Bombay AIR 1955 SC 123

^[7]  Krishna Bahadur v. M/s. Purna Theatre & Ors AIR 2001

^[8] Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association 1988 Supp SCC 55

^[9] The Doctrine of Waiwer, www.lawteacher.net,