In a recent piece for Bar and Bench, Arvind Datar examines whether a fundamental right can be waived. I had long assumed that this question was settled in Basheshwar Nath’s Case. The Court declared, we learnt many years ago in law school, that there could be no waiver of fundamental rights. But the issue has lingered somewhat inconclusively. It featured in the recently decided nine-judge Supreme Court decision on the right to privacy. The bench largely reiterated Basheshwar Nath’s core holding.
Datar believes that the Basheshwar Nath principle is plainly wrong. He faults the Court for not adequately explaining its legal or constitutional basis. Advancing several hypotheticals, Datar suggests that when a citizen chooses not to enforce or exercise a right, that right may have been presumptively waived. The Supreme Court, for instance, has held that the fundamental right to carry on business under Article 19(1)(g) includes the right not to carry on business. This means that rights can be waived just as they can be vigorously exercised.
I admire Datar’s argumentation, but I am not entirely persuaded by this logic. It is true that citizens may expressly chose not to enforce or vindicate a fundamental right when presented with the opportunity to do so. Yet, it would be extreme to argue the citizens waive their fundamental rights by deciding not to do anything about them. Such a failure or neglect does not, in an and of itself, constitute a waiver especially when a constitutionally protected liberty or right is at stake. Moreover, the consequences of a waiver could possibly affect other citizens whose rights were not subject to the waiver . Indeed, in appropriate cases, the state may argue that the waivers automatically extend to similarly placed citizens who may have exercised no choice in the matter whatsoever.
The better explanation for a citizen’s failure to exercise a right is that the citizen may have simply forborne from exercising the relevant right. At any time, a citizen is free to end forbearance and proceed to exercise or enforce the right. Of course, this will be neither easy nor efficient. It may depend on a number of factors including applicable limitation and laches rules. The end of forbearance could also lead to claims from third-parties based on estoppel, detrimental reliance, or legitimate expectations.
In substance, these tradeoffs are worth making rather than surrendering to the idea that fundamental rights can be waived like everything else.