Doctrine of waiver of Fundamental Rights and

Doctrine of Progressive Realization of Rights

1. DOCTRINE OF WAIVER OF FUNDAMENTAL RIGHTS

Rights which are fundamental to a person’s well-being are called fundamental rights. The
fundamental rights of India are enshrined in Part III of the Constitution of India which
guarantees the civil liberties so that all Indians can live in peace and harmony as “Citizens of
India”. These includes individual rights that are common to most liberal democracies, such as
equality before the law, freedom of speech and expression, freedom of association and
peaceful assembly, freedom to practice religion, and the right to a constitutional remedy to
protect civil rights by written orders. Violations of these rights lead to penalties that are
stipulated in the Indian Penal Code, subject to the discretion of the judiciary.

Fundamental rights are defined as the basic human freedoms that every Indian citizen has the
right to enjoy for a harmonious and peaceful personal development. These rights generally
applicable to all citizens, regardless of their race, place of birth, religion, social class, creed,
colour, gender or language. It is enforceable by the courts with some limitations. The origin
of rights is derived from many sources, including the Bill of Rights in England, the United
States Bill of Rights, and the France Declaration of Human Rights.

The rights guaranteed under the Constitution of India are fundamental and are enforceable by
a court of law. However, this does not mean that these rights are rigid or immune from
constitutional amendment.

The principle of waiver explains that a person, who is entitled to a right or privilege, is free to
waive this right or privilege. It is the voluntary abandonment or renunciation of a known legal
right or privilege. Once a person waives his right, he will no longer be allowed to claim it.

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The question arises whether the principle of waiver applies to fundamental rights as well. In
the Muthiah v. CIT1 case, the court held that it was not the citizen's right to waive any of the
fundamental rights granted under Part III of the Constitution. These rights are not only in the
interest of the individual but as a matter of public policy for the benefit of the general public.

The law that has been followed up to date which is most likely to be followed is the opinion
of Justice Bhagwati and Subba Rao in Basheshar Nath v. Income Tax Commissioner2
that there can be no waiver not only of the fundamental right provided in Article 14, but also
to any other fundamental right guaranteed under Part III of the Constitution of India.
According to them, the Indian constitution did not distinguish between basic rights enacted in
favour of the individual and those enacted in the public Interest or based on public policy. It
is also certainly correct to cite the most recent rulings such as Nar Singh Pal v. Union of
India3 as the Supreme Court held that fundamental rights could not be waived and there
could be no suspension against them.

Most of the scholarly work in Indian Constitutional Law recounts the historical ruling of
Behram Khurshed Pesikaka V. State of Bombay4as the majority noted that fundamental
rights, although, in practice, benefiting individual beings, were incorporated as a matter of
public policy and therefore the principle of waiver could not be applied to these rights.

The vast majority of people in India are economically poor, educationally and politically
backward, who are not yet aware of their rights. Individually or collectively, they cannot
stand against the state, and therefore, it is the duty of the judiciary to protect their rights
against themselves.

But this issue also consisted of the minority opinion, as in the previous case, i.e. the case of
Behram, “that an individual can waive a fundamental right in his own interest, but he cannot
waive a basic right for the public benefit.”

1
AIR 1956 SC 269
2
AIR 1959 SC 149
3
(2003) 3 SCC 588
4
AIR 1955 SC 123
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Therefore, the opinion of the majority on the matter in the BashesharNathcase, was
considered a precedent in the upcoming cases.

Later, Bombay High Court, in the decision of Yousuf Ali Abdullah Fazalbhai v. M.S.
Kashikar5, that the state cannot impose itself the right to commit a violation of the
fundamental rights of any person by inferring the principles of waiver, cancellation, or other
similar principles.

Another important decision of the Supreme Court in this matter is Olga Tellis v. Bombay
Municipal Corporation6, under this case, the sidewalk residents filed a suit in the Supreme
Court pledging that they would not claim any fundamental right to build huts on sidewalks or
pavements and would not interfere between demolitions the huts after a specified date. Later
when the huts sought to be demolished after the specified date, the hut dwellers made the
appeal that they are protected under Article 21. The government claimed that they could not
raise any such request in light of their previous pledge.

The Supreme Court overturned the government's objection, saying that fundamental rights
cannot be waived. There can be no stopping against the constitution, which is the basic law of
the country. The constitution grants fundamental rights not only for the benefit of individuals
but for securing greater interests of society. The court noted that "no individual can barter the
freedom granted to him by the Constitution."

2. DOCTRINE OF PROGRESSIVE REALIZATION OF

RIGHTS

5
AIR 1982 SC
6
AIR 1986 SC 180
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The UN committee on economic, social and cultural rights has defined progressive realisation
as “a necessary flexibility device, reflecting the realities of the world and difficulties involved
for any country ensuring full realisation of economic, social and cultural rights.” 7

Progressive realisation is an example of how human rights law including economic, social
and cultural rights are deeply pragmatic. The progressive realisation doesn’t mean the state
comp spoon the rights indefinitely.

The committee on economic, social and cultural rights have made clear that the progressive
realisation require states “to move expeditiously and effectively as possible towards that goal
of full realisation of [ICESCR rights]”. The burden is on state to prove that they have done it
properly.

The committee on economic, social and cultural rights further added that “while the full
realisation of relevant rights may be achieved progressively, steps towards that goal must be
taken within a reasonably short time after the Covenant’s entry into force”.

These steps must be deliberate, concrete and targeted as clear as possible towards meeting the
obligations recognised in the covenant. Such strategy may include adoption of national
strategy, plans and actions on specific rights, collection of information about the proper
functioning of the rights and the stages doing well in terms of ensuring the enjoyment of
rights and where needs to be doing more.

The doctrine of progressive realisation is concerned with progress in the actual

implementation of rights.

In India, the ruling of Section 377 of the Indian Penal Code, India's former Chief Justice
Deepak Mishra emphasized a constitutional concept called "non-derogation of rights", which

7
UN Committee on Economic, Social and Cultural Rights, General Comment No. 3 (1990), Para 9.
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means that judicial interpretation must be consistently progressive in line with the
transformative nature of the constitution.

The doctrine of the progressive realization of rights states that the laws of the state must be in
keeping with its contemporary spirit, and they must be reasonable and easily applicable.

In the case of Navtej Singh Johar V. Union of India8,where a five-judge Supreme Court
Judicial Council issued its important ruling in the long-awaited Section 377 (IPC) case, it not
only guaranteed compensation for its dark performance as a basic rights protector in the
Suresh Kumar Koushal v. Naz Foundation9 case (2013), but also paved a progressive way
to implement fundamental rights under our Constitution.

The Supreme Court ruling, Suresh Kumar Koushal is now buried and it decisively restores
judgment to members of the LGBTQ community, and its long-delayed access to full
citizenship experience.

This ruling gave a moment to the LGBTQ community to enjoy and, finally, “the full citizens
of India”.

The court also points to the nation on a constitutional path: “Let's move from darkness to
light, from fanaticism to tolerance and from the winter of survival to the spring of life - as a
harbinger of New India - to a more inclusive society.” Inclusiveness is a fundamental
constitutional value and shows the inherit attribute of progressive realisation.

Beyond the LGBTQ community in India, worldwide will be judged by other societies
searching for their place in the sun. Moreover, by formulating principles for the progressive
realization of rights, the court marked a new stage in the development of human rights
jurisprudence. Reassuringly, the constitution remains a source of hope and renewal.

8
W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
9
(2014) 1 SCC 1
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"The principle of the progressive realization of rights", as a natural consequence, breeds the
doctrine of non- retrogression. According to this doctrine, “there should be no regression of
rights. The doctrine of non-retrogression stipulates that the state must not take measures or
steps that intentionally lead to retrogression from the enjoyment of rights, whether under the
constitution or otherwise” – said by Justice Mishra.

Chief Justice Mishra also noted that in 2013, the Supreme Court was wrong in the judgment
of Suresh Koushal, which was later set aside the brief period of suspension given by the
historic Delhi Supreme Court ruling on Section 377 in 2009 and returned the collar of
criminality to the gay community.

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