In the recent nine-judge decision of the Supreme Court on the right to privacy, one argument raised was that if the right to privacy was held to be a fundamental right, it could not be waived. Such a finding would have unfortunate consequences, it was urged.

The leading judgment by Justice Chandrachud also refers to this proposition and a reference is made to the decision in Behram Khurshed Pesikaka v. The State of Bombay. That a fundamental right cannot be waived is an erroneous proposition of law that has survived for over 60 years; it is necessary that this principle is overturned at the earliest.

Although this principle was briefly discussed in Behram Pesikaka, the leading judgment on this point is Basheshar Nath v CIT . It is important to note the facts of this case. Mr. Nath had entered into a settlement scheme that was established by the Taxation of Income Act, 1947 but this Act had been struck down as violative of Article 14 in Suraj Mall Mohta v. Visvanatha Sastri .

Even after this judgment was delivered, Mr. Nath continued to  pay instalments under the settlement scheme for some time, but defaulted thereafter. When his properties were attached on default of not paying the instalments, he argued that the attachment itself was illegal because the Act had been struck down as unconstitutional.

In response to this, the then Attorney-General took the plea that Mr. Nath had not challenged the validity of the statute and voluntarily entered into a settlement whereby he had waived his right to take advantage of the invalidity of the statute. Although the law was struck down in 1954, Mr. Nath continued to make payments up to September, 1957.

While dealing with the plea of waiver, different judges gave different reasons for holding that a fundamental right cannot be waived. Consequently, the Supreme Court allowed the appeal of Mr. Nath and not only set aside the attachment order passed in 1958, but also quashed all proceedings that had begun from July 1954.

Chief Justice SR Das and Justice Jivanlal Kapur confined their views to holding that only Article 14 could not be waived, but Justice NH Bhagwati expressed the view that a citizen could not waive any of the fundamental rights in Part-III. Justice Subba Rao relied on the poverty and backwardness of many Indians as a ground to support the plea that a fundamental right could not be waived.

These judges also did not follow the decisions of the United States Supreme Court, which had permitted waiver of rights. It should be noted that most of the US cases that were cited in this case were rejected because of the conduct of the parties. For the sake of brevity, it is not possible to deal with these decisions in detail.

Justice SK Das, however, took a different view and observed that fundamental rights which were given for the benefit of an individual could be waived, but those given for the general public could not be.

The decision in Basheshar Nath has been cited and followed in a number of  High Court cases thereafter. In all these judgments, there is no examination as to why a person cannot waive his fundamental rights. Hardly any case has examined the principle of waiver, estoppel and acquiescence in detail and given a logical reason as to why a waiver is not permissible.

It is submitted that there is no presumption that a statute violates any fundamental right. It is for the aggrieved person to file a writ petition either under Article 226 or under Article 32 to challenge any statutory provision that violates his fundamental rights. The High Courts/Supreme Court will then examine the issue and declare a statutory provision to be unconstitutional if such violation is established.

Now, there is no reason why a person cannot choose not to challenge an offending legislation. The violation may not be egregious or a person may simply choose to adopt other measures to mitigate the violation of his fundamental right.

For example, a service rule which discriminates in matters of promotion may not be challenged by an employee who may choose to resign his present job and take up another employment. If waiver is not permissible, it will follow that he is under an obligation to necessarily challenge the offending provision. If a right cannot be waived, then the logical consequence is that necessary action must be taken for its enforcement.

It is suggested that the proper principle is that the State cannot take a defense that relief should be granted on the ground of waiver of fundamental right by the petitioner. Coming back to the case of Mr. Nath, he chose to pay the instalments for almost three years after the initial law had been struck down. When he did not pay any further instalments, his properties were attached. The attachment was clearly invalid as the very law under which the settlement was made had been declared as unconstitutional. Any further collection would be violative of Article 265.

Therefore, if a person had chosen to pay the instalments but subsequently stopped paying, there is no question of any waiver of his fundamental rights. The plea of acquiescence would also not arise to a statute which had been declared as ultra vires Article 14 or any other right in Part III. On such a declaration, the statute becomes void and any demand made thereafter was also not valid. In fact, it was the fault of the Department which continued to collect instalments under an unconstitutional provision and, indeed, Mr. Nath may be entitled for a refund.

Therefore, it is submitted that it is incorrect to state as a legal proposition that fundamental rights cannot be waived. The right to file a petition to enforce the fundamental right includes a right not to do so. In Excel Wear v Union of India, the Supreme Court held that the fundamental right to carry on business under Article 19(1)(g) includes the right not to carry on business. Similar examples can be given with regard to other rights.

In the context of privacy, intimate personal details can be shared with the world at large. For example, an autobiography may reveal several facts of an intimate nature to the world at large. A person may also choose to post detailed information, including those of private nature, on the internet. Can one say that this is impermissible because he has waived his right to privacy? The answer is clearly in the negative.

Interestingly, the recent decision on the right to privacy also holds that an individual has control over the dissemination of material that is personal to her/him. (see pages 203, 449 and 523 of the decision). As Justice Nariman points out, privacy is only with regard to those details which one does not choose to part with. Once details are in the public domain, republishing them cannot be objected. In such a case, one can certainly take the plea that a person has waived his fundamental right and cannot complain of violation of privacy. (See Naomi Campbell v. MGN Ltd., 2004 UKHL 22)

In fine, the correct principle is that it will not be open to the State or to a defendant or respondent to contend that a person is not entitled to enforce his fundamental right because he has waived it. The nine-judge bench has recognized that the right to privacy includes “decisional autonomy”. This would include the right of a person to make an informed decision not to enforce his fundamental right. In other words, he can “waive” it. The decision in Basheshar Nath is yet another judgment that deserves to be overruled even though it is almost 60 years old.

Arvind Datar is a Senior Advocate of the Madras High Court. Datar writes a fortnightly column for Bar & Bench, titled Legal Notes by Arvind Datar.