Can a citizen waive off its fundamental rights

Basheshar Nath v. The Commissioner Of Income-Tax,Delhi & Rajasthan & Another.

Bench: Justice Sudhi Ranjan Das, JusticeNatwarlal H.Bhagwati,JusticeS.K. Das,JusticeJ.L.Kapur and JusticeK. Subbarao

Issue:

• The appeal was filed to question the validity of settlement under Section 8A of Taxation on Income (Investigation Commission) Act, 1947.
• Can the appellant waive the breach of the fundamental right?
• Is it possible according to the facts of the case to do so?

Facts:

• A Special Leave Petition was filed by the appellant for questioning the settlement made by him under Section 8A of Taxation on Income (Investigation Commission) Act, 1947 and its validity.
• The ground for questioning the validity of settlement was that the Supreme Court in another case namely Suraj Mall Mohta and Co. v. A. V. Visvanatha Sastri[1], held that the act was in violation of fundamental rights under Article 14 of the Constitution.
• Regardless of the court’s decision in the above stated judgment, the appellant agreedto the settlement but after some time he evadedthe payment and his properties were attached.
• Then, the appellant wrote to the authorities that the SC declared the said act ultra vires of Article 14 of the Constitution and thus the settlement declared earlier does not apply upon him.Therefore, his properties should be freed.
• The Commissioner of Income Tax (CIT) conveyed to the appellant that the settlement is valid and binding on him and asked him to pay the instalments against the arrears which he has defaulted in paying or the recovery proceedings would be followed.
• Hence the present appeal was filed before the SC against the decision of CIT.

Argument raised by Appellant:

• The appellant contended that there was a breach of fundamental right by subjecting him to a discriminatory procedure as laid down in the Act.
• The fact that appellantvoluntarily entered into a settlement does not mean he waived his fundamental rights and that he cannot be permitted to set up his fundamental right.

Argument raised by Respondent:

• The respondent contentedthat the Investigation Act prescribed two procedures i.e. one is for investigation and theother is forsettlement and it was the investigation that affected by the decisions of this Court.
• It was contended that the Act is a pre-Constitutional Act and that when the act was passed there were no Constitution or fundamental right. Therefore, this act can’t be questioned even if the procedure may have been discriminatory. It was contended that after that passing of Constitution the assessee was not faced to the procedure forcefully but voluntarily offered settlement.
• It was contended that if the appellants fundamental rights were breached by exposing him to a discriminatoryprocedure under the Investigation Act, the appellant by voluntarily entering into a settlement has waived fundamental right.
• It was contended that the appellant waived off his fundamental right and is therefore not entitled to challenge the settlement.

Judgment:

Justice Sudhi Ranjan Das observed that the language of Article 14 is a command issued by the Constitution, rather than a right, to the State to implement its objective by safeguarding the equality that every welfare State, such as India, is supposed to do and that no person can stop the State from fulfilling its obligation. A person or a citizen could or could not waive off his fundamental right and he cannot waive a breach of the fundamental right that is indirectly envisaged upon him by the State as a duty under constitution.

Justice N.H. Bhagwati, who wrote a separate judgment stated that no fundamental right can be waived off and that are holy and cannot be waived becauseSC of USA decision said so. The Constitution of India has its separate mechanism under Article 13 to struck down the unconstitutional law.

Justice Subba Rao, also agreed with other judges and said that fundamental rights can’t be waived off, but Justice SK Das dissented the view and held that waiver of fundamental rights can be done. According to him the fundamental rights shall be tested first so as to ascertain for whose benefit the right isdecidedis it for the benefit of the general public or for the individuals.