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CITATION- 1959 AIR 149 1959 SCR SUPL. (1) 528 






Respondent no-2 Union Of India 


SECTION– 8A, 5(1), 6, of The Taxation of Income (Investigation Commission) Act, 1947, Article  14 of the constitution of india. 

DATE OF JUDGMENT– 19 November 1958


• On July 22, 1948, the Central Government referred the appellant’s matter to the  Investigation Commission for investigation and report pursuant to Section 5(1) of the  Act. The Commission instructed the designated official pursuant to Section 6 of the  Act to review the appellant’s financial records.On July 22, 1948, the Central  Government referred the appellant’s matter to the Investigation Commission for  investigation and report pursuant to Section 5(1) of the Act. The Commission  instructed the designated official pursuant to Section 6 of the Act to review the  appellant’s financial records. 

• Following this, on May 20, 1954, the appellant sought to the Commission for a  settlement of his case under Section 8A of the Act, pledging to pay Rs. 3,50,000 in tax  and penalties at a reduced rate. The Commission informed the Central Government  that the settlement was approved, the Central Government accepted it, and the  Commission then recorded it. 

• The Commissioner of Income Tax responded to the appellant on January 29, 1958,  stating that the settlement was genuine and that the appellant was required by it to  pay the arrears of installments and requesting that he do so going forward. By special  leave, the appellant approached the Supreme Court to challenge this Commissioner  of Income Tax ruling. 


1. Can a fundamental right of the Indian Constitution be waived? 

2. Whether the settlement made under section 8A of the Taxation on income  (Investigation Commission) Act, 1947 is valid?


Raised by appellant:- 

• The fact that the appellant willingly engaged into a settlement does not imply that he  forfeited his fundamental rights or that he is not eligible to assert those rights. 

• It was incorrect to claim that the Taxation of Income (Investigation Commission) Act,  1947, set forth two distinct procedures, one for investigation and assessment under  section 8(2) of the Act and another for settlement under section 8A of the Act and  assessment in accordance with such settlement, and that the decision of this Court in  M. Ct. Muthiah v. The Commissioner of Incometax, Madras, declaring section 5(1) of  the Act to be discriminatory and therefore void, only affected the foregoing 

• The aim to balance individual freedom and state control is reflected in Part III of the  Constitution. Therefore, the Court is not permitted to impose any additional  restrictions on the fundamental rights by any theory, such as “waiver,” or otherwise,  beyond those that are stated in Part III. The fundamental rights enshrined in Part III of  the Constitution cannot be surrendered. 

• people, the latter may forfeit his right out of fear of coercion or in anticipation of  favouritism. Although it is claimed that in this situation coercion or influence can be  proven in a court of law, doing so will be next to impossible in reality. The same  justification will hold true for Arts 15 and 16. The detrimental effects of the doctrine  of waiver’s influence on fundamental rights are demonstrated in Art. 17. 

• Our population is largely uneducated, economically underprivileged, and politically  unaware of their rights. They are unable to compete on an equal footing with the  institutions and organisations of the State, either individually or even collectively. It is  the responsibility of this Court to defend their rights against oneself in such situations. 

• A person may not practise any profession or acquire any property at all, but he or she  may not be told that they have already given up their right to do so. A freedom to do  something also includes a freedom to not do it.

• Due to the fact that the party surrendered his basic right, the State is not expected to  enforce any rights that are in violation of the Constitution. No situation can develop  where the State would be biased if this restriction is kept in mind. The State would  suffer any harm, if any, from its own actions that violated the Constitutional ban  placed on it rather than from the non-application of the theory of waiver. 

Raised by Respondent:- 

• It was contended on behalf of the respondent that only the investigation procedure  was affected by the court’s rulings, not the settlement procedure, and that the Act  established two distinct and separate Basheshar Nath vs. The Commissioner Of… on  19 November 1958 procedures, one for inquiry and the other for settlement. and that  the appellant deliberately waived his fundamental constitutional right under Article  14 of the Constitution by taking part in the settlement. 

• According to the argument, if the appellant’s fundamental rights were violated by  subjecting him to a discriminatory procedure under the Investigation Act, he forfeited  those rights by willingly engaging into a settlement. 

• It was argued that the appellant forfeited his fundamental right and was therefore  ineligible to contest the settlement because he did so.


The language of Article 14 is a command given by the Constitution to the State to implement  its goal by preserving equality, as every welfare state, like India, is expected to do, and no one  can prevent the State from carrying out its obligation, according to Justice Sudhi Ranjan Das.  A person or citizen could or could not waive off his or her basic rights, and he or she cannot  waive a violation of those rights that the State implicitly regards as his or her responsibility  under the constitution. Article 13 of the Indian Constitution provides a unique procedure to  invalidate unconstitutional laws. 

Justice SK Das disagreed with Justice Subba Rao and held that fundamental rights could be  waived, saying that they must first be tested to determine whether they are being decided  for the benefit of the public or for the benefit of the individual. Justice Subba Rao also agreed  with other judges that fundamental rights cannot be waived. 

For the aforementioned reasons, it is believed that our Constitution’s basic rights do not fall  within the notion of waiver. On November 19, 1958, Basheshar Nath sued The Commissioner  of. ORDER Appellation is accepted. All current actions for implementing the directive of the  Union Government dated July 5, 1954 are overturned, and the order of the Income Tax  Commissioner, Delhi, dated January 29, 1958, is annulled. The costs of this appeal will go to  the appellant. 

When an application is dismissed, for whatever reason it may be-whether on merits or on  admission-, the order of the Court becomes final and it can be reopened only in the manner  prescribed by law. There is no scope for the application of the doctrine of waiver in such a  cage




This Article is written by Vaibhav Singh of University of Allahabad, Faculty of Law, Intern at  Legal Vidhiya


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