WAIVER OF FUNDAMENTAL RIGHTS:

The constitution of India Guarantees certain Fundamental Rights to the citizens of India and
the question of Waiver of Fundamental Rights is that whether a person can waive his
fundamental rights. This question been extensively discussed in the Case of Basheshar Nath
vs CIT
The Facts of the Case of Basheshar Nath vs CIT are that The Income Tax commissioner under
Section 6 of the Taxation of Income Act examined the accounts of Basheshar Nath and found
that he has not paid an amount of Rs4,50,000 Tax under section 5(1) of the act. Later
Basheshar Nath and Commissioner of Income Tax entered into settlement under the section
8A of the act to pay a sum of Rs3,00,000 in monthly installments. Meanwhile in another case
of Suraj Mall Mehta Vs AS Vishwanath Shastri the court held that section 5(1) of the act is void
as it is violative of Article 14. The appellant Basheshar Nath later wrote a letter to the
commissioner challenging the settlement under Section 8A on the grounds that Section 5(1)
of the act on which it was found being declared void and he requested him to release his
attached properties and also refund him the amount be paid but the commissioner replied
him that the settlement was valid and no refunds will be paid. The appellant aggrieved by his
reply filed a special leave petition in the Supreme Court asking them to direct the
commissioner to refund him money as the Section 5(1) was declared to be void. The
commissioner in the court contended that there were two different procedures for
investigation under section 5(1) and settlement under section 8A and said that the Appellant
by voluntarily accepting for the settlement has waived his fundamental right founded on
Article 14.
The court in this case upheld the contention of the petitioner and held that fundamental
rights cannot be waived

The Majority of the court expressed the following views:

1. It is not open to a citizen to waive his fundamental rights conferred by Part 3 of the
constitution. The Supreme Court is the protector of the fundamental rights which have
been for the first time enacted in the constitution and it would be a sacrilege to whittle
down these rights
2. 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.
3. Das, C.J. explained in his judgment that, 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, That would also be the position when
a limitation is imposed on the legislative power in the interest of the public, as, for
instance, the provisions in Chapter XIII of the Constitution relating to inter-State trade
and commerce. 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
unconstitutionality can be waived and in that case the law becomes enforceable.
4. 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, though ultimately, they
come into operation in considering individual rights. 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.