Can a Fundamental Right be waived?: Legal Notes by Arvind Datar
By Team Legistify / 2017-09-12

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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 by default of not paying the instalments, he argued that the attachment itself was illegal because the Act had been struck down as unconstitutional.

Picture Courtesy- MoneyLife


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