Waiver Of Right: An Indian Scenario

• Published date: 17 August 2020
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Tax, Contracts and Commercial Law, Trials & Appeals & Compensation, Income Tax, Privilege
• Law Firm: RPV Legal
• Author: Mr Adarsh Chamoli

Introduction

A legal right of an individual cast duties and obligations on other private individuals or society towards such individuals. It also exists in the nature of an enforceable privilege sanctioned by legislation done in the context of certain established social structures. The Supreme Court of India, in the State of Rajasthan Case¹, has defined the term 'legal right' as an interest which the law protects by imposing corresponding duties on others. In the same case, the Supreme Court has defined the term 'right' (e.g liberty) as an exemption from the subjugation of legal power of another.

Be that as it may, a right which has been conferred on an individual, either by legislation or contractual provisions, such a right can be waived off by the individual which might result in complete abandonment of legal privilege cast by such legal or contractual provision. In India, the Doctrine of Waiver has been prevalent since the inception of the judiciary and at some point in time, it has even preceded the judiciary of Independent India. In the year 1945, the Bombay High Court² recognised the Doctrine of Waiver in India as different from the English Law and further stated that in India, the Doctrine of Waiver can be found in Section 63 of the Indian Contract Act, 1872 ("Contract Act").

Since then, there has been a significant development in the Doctrine of Waiver which has resulted in exploration of waiver of right beyond contractual conferment with limitations being determined simultaneously on such expansion of exercise of waiver of rights.

What is Waiver of Right?

According to the Black's Law Dictionary³, the term "Waiver" has been defined as the voluntary relinquishment or abandonment of a legal right or advantage. It is an act of surrender of benefit or privilege. The waiver of right requires a prior-knowledge of an existing right by the person who seeking waiver of such right. A person is required to be fully cognizant of his rights before waiving off such rights⁴ Therefore, there cannot be any waiver unless the person who has said to have waived off the right with full knowledge of such right, abandons the same⁵.

A person can waive off its right in many ways which inter alia includes waiver by estoppel or by election⁶. The Supreme Court has held that a waiver of a right gets its essence from estoppel and thus, there will be no waiver where there is no estoppel in place⁷. In Ramdev Food Products Case⁸, the Supreme Court while discussing the...