Case ID: 669

Judgment:
Appeal No.208 of 1958. Appeal by special leave from the order dated January 29	 1958	 of the Commissioner of Income tax	Delhi & Rajasthan at New Delhi	 under section 8A(2) of the 532 Taxation on Income (Investigation Commission) Act	 1947. Harnam Singh and Sadhu Singh for the appellant. M. C. Setalvad	 Attorney General for India	 C. K. Daphtary	 Solicitor General of India	 B. Sen and R. H. Dhebar for the respondents. A. C. Mitra and B. P. Maheshwari	 for the interveners. November 19. The Judgment of Das	 C. J.	 and Kapur	 J.		 was delivered by Das	 C. J. Bhagwati	 section K. Das and Subba Rao	 JJ.	 delivered separate judgments. DAS	 C. J. This appeal by special leave filed by one Shri Besheshar Nath hereinafter referred to as "	the assessee " calls in question the validity of a settlement made under section 8A of the Taxation on Income (Investigation Commission) Act	 1947 (30 of 1947)	 hereinafter referred to as " the Investigation Act ". This Act	 which came into force on May 1	 1947	 by a notification issued by the Central Government under section (1) (3) thereof	 has had a short but chequered career	 as will appear from the facts hereinafter stated. In order to appreciate the several questions canvassed before us it is necessary to refer to the provisions of the impugned Act. Section 3 authorised the Central Government to constitute an Income Tax Investigation Commission (hereinafter called the Commission) and imposed on it the following duties: " (a) to investigate and report to the Central Government on all matters relating to taxation on income	 with particular reference to the extent to which the existing law relating to	 and procedure for	 the assessment and collection of such taxation is adequate to prevent the evasion thereof; (b) to investigate in accordance with the provisions of this Act any case or points in a case referred to it under section 5 and make a report thereon (including such interim report ' s as the Commission may think fit) to the Central Government in respect of all or any of the assessments made in relation to the case 533 before the date of its report or interim report	 as the case may be. " We may skip over section 4 which dealt with the composition of the Commission. Section 5	 which is of importance was as follows: " 5. (1) The Central Government may at any time ' before the 30th day of June	 1948	 refer to the Commission for investigation and report any case or points in a case in which the Central Government has prima facie reasons for believing that a person has to a substantial extent evaded payment of taxation on income	 together with such material as may be available in support of such belief	 and may at any time before the 30th day of June	 1948	 apply to the Commission for the withdrawal of any case or points in a case thus referred	 and if the Commission approves of the withdrawal	 no further proceedings shall thereafter be taken by or before the Commission in respect of the case or points so withdrawn. (2) The Commission may	 after examining the material submitted by the Central Government with reference to any case or points in a case and making such investigation as it considers necessary	 report to the Central Government that in its opinion further investigation is not likely to reveal any substantial evasion of taxation on income and on such report being made the investigation shall be deemed to be closed. (3) No reference made by the Central Government under sub section (1)	 at any time before the 30th day of June	 1948	 shall be called in question	 nor shall the sufficiency of the material on which such a reference has been made be investigated in any manner by any Court. (4) If in the course of investigation into any case or points in a case referred to it under sub section (1)	 the Commission has reason to believe (a)that some person other than the person whose case is being investigated has evaded payment of taxation on income	 or (b) that some points other than those referred to 534 it by the Central Government in respect of any case also require investigation	 it may make a report to the Central Government stating its reasons for such belief and	 on receipt of such report	 the Central Government shall	 notwithstanding anything contained in sub section (1)	 forthwith refer to the Commission for investigation the case of such other person or such additional points as may be indicated in that report. " The date " 30th day of June	 1948 " appearing in sub sections (1) and (3) was	 by Act 49 of 1948	 substituted by the words " 1st day of September	 1948 ". Section 6 set out the various powers conferred on the Commission and section 7 prescribed the procedure of the Comission. It is not necessary to set out the various powers and the details of the procedure in extenso and it will suffice to say that they have been considered by this Court and pronounced to be much more drastic and harsh than the powers to be exercised and the procedure to be followed by the income tax authorities acting under the provisions of the Indian Income Tax Act	 1922. The relevant portions of section 8 ran as follows: " 8. (1) Save as otherwise provided in this Act	 the materials brought on record shall be considered by all the three members of the Commission sitting together and the report of the Commission shall be in accordance with the opinion of the majority. (2) After considering the report	 tile Central Government shall by order in writing direct that such proceedings as it thinks fit under the Indian Income Tax Act	 1922	 the Excess Profits Tax Act	 1940	 or any other law	 shall be taken against the person to whose case the report relates in respect of the income of any period commencing after the 31st day of December	 1938; and	 upon such a direction being given	 such proceedings may be taken 'and completed under the appropriate law notwithstanding the restrictions contained in section 34 of the Indian Income Tax Act	 1922	 or section 15 of the Excess Profits Tax Act	 1940	 or any other law and notwithstanding any lapse of time or any decision to a different effect given 535 in the case by any Income tax authority or Income Tax Appellate Tribunal. (3). . . . . . . . . . (4) In all assessment or re assessment proceedings taken in pursuance of a direction under sub section ' (2)	 the findings recorded by the Commission on the case or on the points referred to it shall	 subject to the provisions of sub sections (5) and (6)	 be final; but no proceedings taken in pursuance of such direction shall be a bar to the initiation of proceedings under section 34 of the Indian Income Tax Act	 1922. (5). . . . . . . . . . (6). . . . . . . . . . (7) Notwithstanding anything to the contrary contained in this Act or in any other law	 for the time being in force	 any evidence in the case admitted before the Commission or an authorised official shall be admissible in evidence in any proceedings directed to be taken under sub section (2). (8). . . . . . . . . . Section 9 barred the jurisdiction of Courts to call in question any act or proceeding of the Commission or any authorised official appointed under section 6. Section 10 gave power to the Central Government to make rules by notification in the official gazette. On July 22	 1948	 the case of the assessee was referred to the Commission in the following terms: " Ministry of Finance (Revenue Division) New Delhi	 the 22nd July	 1948. Under section 5 (1) of the Taxation on Income (Investigation Commission) Act	 1947	 the cases of the following persons are hereby referred to the Investigation Commission for investigation and report	 as the Central Government has prima facie reasons for believing that each such person has either alone or in combination with the other persons mentioned below	 evaded payment of taxation on income to a substantial 536 extent. The material available in support of 'such belief accompanies. No. Name EP. 829/1 Beshashar Nath and Co. 829/2 Lala Beshashar Nath. Sd./ Pyare Lal	 Deputy Secretary	 Ministry of Finance (Revenue Division). The Secretary	Income tax	 Investigation Commission	 New Delhi. " It is not necessary to set out the annexures that accompanied this Orders It appears that the total wealth statement of the assessee was filed on November 10	 1948	 and was forwarded to the authorised official. It also appears that from January 8	 1949	 to October 14	 1949	 the authorised official was engaged in the collection of assessment records of the assessee from the territorial income tax offices and of materials from the Civil Supplies Directorate regarding the assessee. In the meantime by a. 33 of Act 67 of 1949 the following section was inserted in the Act as section 8A: " 8A. Settlement of cases under investigation:(1) Where any Person concerned in any case referred to or pending before the Commission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him	 the Commission shall	 if it is of opinion that the terms of the settlement contained in the application may be approved	 refer the matter to the Central Government	 and if the Central Government accepts the terms of such settlement	 the Commission shall have the terms thereof recorded and thereupon the investigation	 in so far as it relates to matters covered by such settlement	 shall be deemed to be closed. (2) For the purpose of enforcing the terms of any	 settlement arrived at in pursuance of sub section (1)	 537 the Central Government may direct that such proceedings as may be appropriate under the Indian Income tax Act	 1922 (XI of 1922)	 the Excess Profits Tax Act	 1940 (XV of 1940)	 or any other law may be taken against the person to whom the settlement relates	 and in particular the provisions of the second proviso to clause (a) of sub section (5) of section 23	 section 24B	 the proviso to sub section 2 of section 25A	 the proviso to subjection 2 of section 26 and sections 44 and 46 of the Indian Income tax Act	 1922	 shall be applicable to the recovery of any sum specified in such settlement by the	 Income Tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrear of income tax within the meaning of those provisions. (3) Subject to the provisions of sub section (6) of section 8	 any settlement arrived at under this section shall be conclusive as to the matters stated therein	 and no person whose case has been so settled be entitled to re open in any proceeding for the recovery of any sum under this section or in any subsequent assessment or reassessment proceeding relating to taxation on income or in any other proceeding before any Court or other authority any matter which forms part of such settlement. (4) Where a settlement has been accepted by Government under sub section (1)	 no proceedings under section 34 of the Indian Income Tax Act	 1922 (XI of 1922)	 or under section 15 of the Excess Profits Tax Act	 1940 (XV of 1940)	 shall be initiated in respect of the items of income covered by the settlement	 unless the initiation of such proceedings is expressly allowed by the terms of the settlement." On July 5	 1949	 the total wealth statement was received back from the authorised official. Our Constitution came into force on January 26	 1950. The order sheet shows that the authorised official on May 26	 1950	 issued a notice to the assessee fixing the hearing for June 10	 1950	 which indicates that the authorised official was proceeding with the investigation set in motion by the reference of the assessee 's 68 538 case to the Commission. The assessee appears to have attended on June 6	 1950	 with an application for extension of time which apparently was given. On September 30	 1950	 the assessee supplied certain statements of his firm. The entry in the order sheet 			against the date October 31	 1950	 shows that the assessee asked for further extension of time. There appears to be a hiatus of about 3 years and evidently nothing was done until June 9	 1953	 when the authorised official fixed the hearing of the case on June 15	 1953. The authorised official submitted his interim report to the Commission on June 9. 1953. The assessee was examined on October 9	 10 and 13	 1953	 and the authorised official submitted his final report on October 19	 1953. On January 30	 1954	 notice was issued to the assessee to appear before the Commission on February 15	 1954. Presumably to get ready for the hearing the assessee	 on February 5	 1954	 asked for inspection of certain assessment orders concerning his case 	 for the return of his lease deed filed by him and a copy of the statement of one L. Kalidas and for production of certain documents before the Commission. The hearing	 which had been fixed for February 15	 1954	 was adjourned till March 4	 1954. Witness Kalidas was examined on March 4	. On March 29	 1954	 the assessee asked for a	 copy of the deposition given by the witness Durgadas before the Commission. After the evidence was closed notice was issued to the assessee on May 1	 1954	 asking him to appear before the Commission on May 19	 1954. On that date the assessee attended	 arguments were heard and orders were reserved. Learned counsel for the assessee states that at the close of the arguments on May 19	 1954	 the Commission announced its view that the income	 profits and gains that had escaped assessment in the hands of the assessee for the period beginning with April 1	 1939	 and ending March 31	 1947	 were the sum of Rs. 4	47	915	 that the Commission also threw a hint that should the assessee accept the said finding he would be granted the benefit of a settlement on the lower concessional basis of. payment of 75% and a small penalty of Rs. 14	064 539 other alternative than to make the best of the bad job by proposing a settlement under section 8A offering to pay Rs. 3	50	000 by way of tax and penalty. This sequence of events is amply borne out by paragraphs 3 and 4 of the settlement application filed by the assessee on May 20	 1954	 a copy of which has been produced before us by the respondents. The Commission on May 24	 1954	 made a report under section 8A (1) to the Central Government that it was of opinion that the terms of settlement contained in the application might be approved. The Central Government having accepted the proposed settlement	 the Commission had the terms thereof recorded. The Central Government by its Order C No. 74 (9 IT) 54 made on July 5	 1954	 under section 8A (2) of the Investigation Act directed that demand notice in accordance with the said terms be served immediately by the Income Tax Officer and that all such other proceedings under the Indian Income Tax Act or other law as may be necessary be taken with a view to enforce the payment of the demand and that the entire sum of Rs. 3	50	000 be demanded in one sum. It appears	 however	 that the assessee was allowed to make payments by instalments of Rs. 5	000	 per month. In the meantime on May 28	 1954	 this Court delivered judgment in Suraj Mall Mohta and Co. vs A. V. Visvanatha Sastri (1). In that case in the course of investigation of the case of Messrs. Jute and Gunny Brokers Ltd. which had been referred to the Commission under section 5 (1) of the Investigation Act	 it was alleged to have been discovered by the Commission that Suraj Mall Mohta and Co. had made large profits which they had not disclosed and had thus evaded taxation. A report to that effect having been made on August 28	 1953	 by the Commission to the Central Government under section 5 (4) of the Investigation Act the Central Government on September 9	 1953	 referred the case against Suraj Mall Mohta and Co. to the Commission under the provisions of section 5 (4). On September 15	 1953	 the Commission notified Suraj Mall [1955] 1 S.C.R.448 540 Mohta and Co. that their cases had been referred for investigation and called upon them to furnish certain materials	 details of which were set out in annexure to the petition. On April 12	 1954	 Suraj Mall Mohta and Co. filed a petition under article 32 of the Constitution asking for an appropriate writ restraining the	 Commission from taking any action on the ground that the provisions of the Investigation Act had become void being discriminatory in character. By that judgment this Court held that both section 34 of the Indian Income Tax Act	 1922	 as it then stood	 and sub section (4) of section 5 of the Investigation Act dealt with persons who had similar characteristics of being persons who had not truly disclosed their income and had evaded payment of tax on their income but that as the procedure prescribed by the Investigation Act was substantially more prejudicial than the procedure under the Indian Income Tax Act	 1922	 sub section (4) of section 5 and the procedure prescribed by the Investigation Act	 in so far as it affected persons proceeded against under that sub section was a piece of discriminatory legislation which offended the provisions of article 14 of the Constitution and was	 therefore	 void and unenforceable. Sub section (4) of section 5 of the Investigation Act having been declared void	 Parliament passed the Indian Income Tax Amendment Act (33 of 1954) amending section 34 of the Indian Income Tax Act	 1922. Paradoxical as it may seem	 the result of this amendment was that persons who originally	 fell only within the ambit of section 5 (1) of the Investigation Act and formed a distinct class of substantial tax evaders also came within the amended section 34 of the Indian Income Tax Act	 1922. The position after the amendment	 therefore	 was that the Income Tax Officers could pick out some of these persons and refer their cases under section 5 (1) of the Investi gation Act and thereby subject them to the drastic and harsh procedure of that Act	 while they could deal with other persons similarly situate under section 34 as amended and apply to them the comparatively more beneficial procedure laid down in the Indian Income Tax Act	 1922. Promptly several applications were 541 made under article 32 of the Constitution complaining that after the amendment of section 34 of the Indian Income Tax Act	 section 5 (1) of the Investigation Act became discriminatory in that the persons falling within it could be dealt with under the drastic	 prejudicial and harsh procedure prescribed by the Investigation Act	 while other persons similarly situate and belonging to the same category could at the whim or pleasure of the Income Tax authorities be proceeded against under the more beneficial procedure prescribed under the Indian Income Tax Act. All those applications were disposed of by a common judgment reported as Shree Meenakshi Mills Ltd. vs Sri A. V. Visvanatha Sastri (1) This Court held that section 34 of the Income Tax Act	 as amended by the Indian Income Tax Amendment Act	 1954 (33 of 1954)	 operated on the same field as section 5 (1) of the Investigation Act	 and	 therefore	 section 5 (1) had become void and unenforceable as the procedure applied to persons dealt with thereunder became discriminatory in character. It should be noted that in none of those petitions disposed of by that judgment had any assessment been made under the Investigation Act and this Court only prohibited further proceedings before the Commission under the Investigation Act. The assessee appellant now before us who had entered into a settlement under section 8 of the Investigation Act and had been assessed in accordance with the terms of the settlement continued to pay the tax by monthly instalments of Rs. 5	000 as before. Finally on December 20	 1955	 came the decision of this Court in M. CT. Muthiah vs The Commissioner of Income Tax	 Madras (2). In that case the Central Government had under section 5 (1) of the Investigation Act referred the case to the Commission. The Commission after holding an enquiry recorded its findings and held that an aggregate sum of Rs. 10	07	322 4 3 represented the undisclosed income during the period under investigation. The Commission having submitted its report to the Central Government	 the latter acting under section 8 (2) of the Investigation Act directed that appropriate action under the (1) (2) ; 542 Indian Income Tax Act	 1922	 be taken against that assessee with a view to assess or re assess the income which had escaped assessment for the period 1940 41 to 1948 49. The Income Tax Officer accordingly issued notices and made the re assessment for the years 1940 41	 1941 42 and 1943 44 to 1948 49 based upon the finding of the Commission	 which was treated as final and conclusive. These assessment orders were served on that assessee. There was	 however	 no re. assessment order for the year 1942 43. In regard to the assessment orders which had been served the assessee concerned applied to the Commissioner of Income Tax under section 8 (5) of the Investigation Act for reference to the High Court on questions of law arising out of those re assessment orders. During the pendency of those proceedings the assessee	 in that case on December 6	 1954	 filed a petition contending that the provisions of the Investigation Act were illegal	 ultra vires and unconstitutional. The majority of this Court held that different persons	 though falling under the same class or category of substantial evaders of income. tax	 were being subjected to different procedures	 one a summary and drastic procedure and the other the normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed by the Investigation Act and	 therefore	 the assessments made under section 8 (2) were void and unenforceable. That was a case of assessment under section 8 (2) in invitum after an investigation under the Investigation Act. The assessee appellant before us	 who had at the end of the investigation entered into a settlement and been assessed in accordance with the terms of such settlement	 however	 went on making payments in discharge of the balance due under the terms of settlement right up to September 8	 1957	 when he made the last payment of Us. 8	000 bringing the aggregate payment up to Rs. 1	28	000. In the meantime the Income Tax Officer had sent a certificate requesting the Collector of Delhi for the recovery of the balance due by the assessee under the settlement. In execution of that certificate some of 543 the properties belonging to the assessee situate in Dharamsalla and Hissar were attached. On December 27	 1957	 the assessee made an application to the Income Tax Commissioner. After pointing out that between July 5	 1954	 and December 27	 1957	 the petitioner had paid in all Rs. 1	28	000 towards the ' discharge of his liability under the settlement and referring to the decisions of this Court in suraj Mall Mohta 's case (1) and Muthiah 's case (2) the assessee submitted that the settlement under a. 8A of the Investigation Act had no force and did not bind the petitio ner and that the settlement had been made under the pressure of the situation and in view of the coercive machinery of the Investigation Act and that from either point of view the settlement was not binding. His contention was that when section 5(1) of the Investigation Act had been held unconstitutional the settlement under section 8A could not be enforced	 for the foundation of the proceedings under section 8A was the reference under section 5(1) and the foundation having crumbled down the superstructure must fall with it. Under the circumstances the assessee submitted that the attached properties be released and the amount already recovered under the settlement be refunded. On January 29	 1958	 the Income Tax Commissioner sent the following communication to the assessee: No. L 228(1)/54 55/17590 Office of the Commissioner Income Tax Delhi and Rajasthan	 New Delhi. Dated	 New Delhi the 29th January	 1958. Shri Besheshar Nath	 9	 Barakhamba Road	 New Delhi. Dear Sir	 Sub: Taxation on Income (Investigation Commission) Act	 1947 Order u/s 8A(2) Your petition dated 27th December	 1957. With reference to your petition dated 27th December	 1957	 regarding the settlement arrived at (1) ; (2) ; 544 under section 8A(2) of the Taxation on Income (Investigation Commission) Act	 1947	 I am to inform you that the settlement is valid and binding on you. You are	 therefore	 requested to make good arrears of instalments which you have not paid recently by 5th February	 1958	 and also to continue making the payments in accordance with the instalments scheme agreed to	 failing which the recovery proceedings will be vigorously pursued through the usual recovery channels. Your 's faithfully	 Sd./ section K. Gupta	 Commissioner of Income tax	 Delhi & Rajasthan	 New Delhi. Being aggrieved by the above decision the assessee thereupon moved this Court and obtained special leave to appeal against that order. The appeal has now come up for final disposal before us. It may be mentioned here that as the respondents are anxious to have the matters of controversy raised in this appeal decided and set at rest by a decision of this Court	 the respondents	 for the purposes of this appeal	 have not insisted on their objection that an appeal does not lie under article 136 of the Constitution against an order of the Commissioner of Income Tax. Learned counsel for the assessee also has not pressed his claim for refund of the amounts already paid and has pressed the appeal regarding the balance that remains to be paid under the settlement which is characterised as invalid. Model Knitting Industries Ltd. which has a case pending in the High Court of Calcutta where the same questions as are in issue in the appeal before us	 are also in issue has been. permitted to intervene and we have heard counsel appearing for that intervener. In view of the three decisions referred to above learned Attorney General does not seriously contend that the powers conferred on the Commission by section 6 and the procedure laid down by section 7 of the Investigation Act are not discriminatory	 but what he urges is that none of the said decisions has held that section 5(1) is 545 wholly void and inoperative. He says that section 5(1) only authorises the Central Government to refer certain cases to the Commission. Upon such a reference two lines of procedure are clearly indicated by the Investigation Act	 namely	 (1) that an investigation may be held in invitum following the procedure prescribed and exercising the powers conferred by the lnvestigation Act and (2) that a settlement may be made under section 8A. If the first procedure is followed and an assessment is made under section 8(2) such assessment will undoubtedly be invalid as has been held in Muthiah 's case (1)	 but if on a case being referred the settlement procedure is followed then the consequential order of assessment under section 8A cannot be questioned. We are unable to accept this line of argument as permissible in view of the provisions of the Investigation Act. It will be recalled that when the case of the assessee was referred to the Commission under section 5(1) on July 22	 1948	 there was no provision for settlement in the Act at all. Therefore	 that reference	 when it was made	 consigned the assessee to the only procedure of investigation that was then prescribed by the Act. In the next place it should be remembered that after section 8A was added in the Investigation Act by section 33 of Act 67 of 1949 an authorised official was appointed under section 6(3) to investigate the affairs of the assessee and to examine the books and to interrogate any person or obtain any statement from any person and under sub section (4) the authorised official was empowered to exercise the same powers as had been vested in the Commission under sub sections (1) and (2) of section 6. Further	 by its own terms section 8A made it clear that the person concerned in any case referred to the Commission for investigation might apply to the Commission at any time during such investigation to have the case settled. Therefore this provision for settlement was an integral part of the entire investigation procedure. It was not a separate or independent procedure apart from the investigation procedure. It is true that there was nothing to prevent the assessee from straightaway (1) ; 69 546 making a proposal for settlement before any actual step towards investigation was taken by the Income Tax authorities	 but before the Commission could refer the proposal for settlement to the Central Government it had to be satisfied that the terms of settlement contained in the application were such as might be approved. For the purpose of satisfying itself the Commission had obviously to go into the facts either by itself or through an authorised official and to consider the materials collected by the authorised official and in the process of doing so had to hold an investigation of some sort and that investigation had neces sarily to be made in accordance with the procedure prescribed by the Investigation Act itself. It is	 therefore	 not correct to say that there could be a pro ceeding for settlement without any investigation at all. In our opinion section 8A did not provide for a separate procedure at all. When a case was referred under section 5(1) it was really for investigation and a settlement was something which could crop up in the process of that investigation just as in the course of a suit parties may arrive at some compromise. In recording the compromise and passing a judgment in accordance with the compromise thereof	 the court exercises the same jurisdiction as it exercises in entertaining and disposing of the suit itself. Likewise in entertaining a proposal for settlement the Commission exercised its jurisdiction of investigation under section 5	 followed the procedure prescribed by section 7 and exercised all its powers under section 6. As already stated the language of s.8A itself shows that a settlement can be proposed only during such investigation. In our judgment	 therefore	 the contention of the learned Attorney General that the Investigation Act prescribed two procedures is not well founded. Learned Attorney General then points out that the Investigation Act was a pre Constitution Act and that before the commencement of the Constitution when there was no such thing as a fundamental right	 its provisions could not be questioned however discriminatory the procedure may have been. He urges that after the commencement of the Constitution the 547 assessee has not been subjected to the coercive procedure laid down by the Investigation Act	 but voluntarily proposed a settlement which was accepted by the Central Government on the recommendation of the Commission. In that situation he was in the same position as Qasim Razvi had been in and the observations to be found in the judgment of Mukherjea	 J.	 who delivered the majority judgment in Syed Qasim Razvi vs The State of Hyderabad (1) applied to the present appeal. We do not think it is necessary	 for the purpose of this appeal	 to go minutely into the facts of Qasim Razvi 's case (1) with reference to which the observations relied on had been made	 or to analyse the correctness of the reasoning adopted in that case	 for that can only be done by a larger Bench. We are definitely of opinion	 however	 that the observations made in the majority judgement should not be extended but must be kept strictly confined to the special facts of that case. In our judgement those observations have no ~application to the facts of the present appeal before us	 for here even after the commencement of the Constitution	 the process of investigation continued in that the authorised official went on collecting materials by following the procedure prescribed by section 7 and exercising the powers conferred on him by section 6 of the Investigation Act. The last argument advanced by the learned Attorney General is that if there had been a breach of the assessee 's fundamental right by subjecting him to a discriminatory procedure laid down in the Investigation Act	 the asessee	 by voluntarily entering into a settlement	 must be taken to have waived such breach and cannot now be permitted to set up his fundamental right. Immediately two questions arise for consideration	 namely	 (1) whether the assessee could waive the breach of the fundamental right in question and (2) whether in the facts and circumstances of this case he had actually done so. (1): In Behram Khurshed Pesikaka vs State of Bombay (2) there was a general discussion whether a (1) (2) 548 fundamental right could be waived. At page 638 Venkatarama Aiyar	 J.	 observed: " The question is	 what is the legal effect of a statute being declared unconstitutional. The answer to it depends on two considerations firstly does the constitutional prohibition which has been infringed affect the competence of the Legislature to enact the law or does it merely operate as a check on the exercise of a power which is within its competence; and secondly	 if it is merely a check	 whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy. If the statute is beyond the competence of the Legislature	 as for example	 when a State enacts a law which is within the exclusive competence of the Union	 it would be a nullity. That would also be the position when a limitation is imposed on the legislative power in the interests of the public	 as	 for instance	 the provisions in Chapter XIII of the Constitution relating to inter State trade and commerce. But when the law is within the competence of the Legislature and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals	 it is not a nullity but is merely unenforceable. Such an unconstitutionality can be waived and in that case the law becomes enforceable. In America this principle is well settled. (Vide Cooley on Constitutional Limitations	 Volume 1	 pages 368 to 371 ; Willis on Constitutional Law at pages 524	 531	 542 and 558 ; Rottschaefer on Constitutional Law at pages 28 and 29 30). " After referring to three decisions of the American Supreme Court which are also now relied on by the learned Attorney General	 the learned Judge concluded as follows: " The position must be the same under our Constitution when a law contravenes a prescription intended for the benefit of individuals. The rights guaranteed under article 19 (1) (f) are enacted for the benefit of owners of properties and when a law is found to infringe that provision	 it is open to any person whose rights have been infringed to waive it and when there 549 is waiver there is no legal impediment to the enforcement of the law. It would be otherwise if the statute was a nullity; in which case it can neither be waived nor enforced. If then the law is merely unenforceable and can take effect when waived it cannot be treated as non and as effaced out of the statute book. It is scarcely necessary to add that the question of waiver is relevant to the present controversy not as bearing on any issue of fact arising for determination in this case but as showing the nature of the right declared under article 19 (1) (f) and the effect in law of a statute contravening it. " When the case came up before the court on review Mahajan	 C. J.	 with the concurrence of Mukherjea	 Vivian Bose	 and Ghulam Hassan	 JJ.	 said at page 653: " In our opinion	 the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. No inference in deciding the case should have been raised on the basis of such a theory. The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice	 social	 economic and political; liberty of thought	 expression belief	 faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit	 though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. 550 Reference to some of the Articles	 inter alia	 articles 15 (1)	 20	 21	 makes the proposition quite plain. A citizen cannot get discrimination by telling the State " You can discriminate "	 or get convicted by waiving the protection given under articles 20 and 21. " On that occasion one of us preferred not to express any opinion on this subject and said at page 670: " In coming to the conclusion that I have	 I have in a large measure found myself in agreement with the views of Venkatarama Aiyar	 J.	 on that part of the case. 1	 however	 desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment	 particularly those relating to waiver of unconstitutionality	 the fundamental rights being a mere check on legislative power or the effect of the declaration under article 13(1) being " relatively void ". On those topics I prefer to express no opinion on this occasion. " It will	 however	 be noticed that the observations of the learned judges made in that case did not relate to the waiver of a breach of the fundamental right under article 14. The fundamental right	 the breach whereof is complained of by the assessee	 is founded on article 14 of the Constitution. The problem	 therefore	 before us is whether a breach of the fundamental right flowing from article 14 can be waived. For disposing Of this appeal it is not necessary for us to consider whether any of the other fundamental rights enshrined in Part III of our Constitution can or cannot be waived. We take the view that this court should not make any pronouncement on any question which is not strictly necessary for the disposal of the particular case before it. We	 therefore	 confine our attention to article 14 and proceed to discuss the question on that footing. Article 14 runs as follows: " The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. " It is the first of the five Articles grouped together under the heading " Right to Equality". The underlying object of this Article is undoubtedly to secure to 551 all persons	 citizen or non citizens	 the equality of status and of oppotunity referred to in the glorious preamble of our Constitution. It combines the English doctrine of the rule of law and the equal protection T. clause of the 14th Amendment to the American Federal Constitution which enjoins that no State shall deny to any person within its jurisdiction the equal protection of the laws ". There can	 therefore	 be no doubt or dispute that this Article is founded on a sound public policy recognised and valued in all civilised States. Coming then to the language of the Article it must be noted	 first and foremost that this Arti cle is	 in form	 an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles	 e.g.	 article 19	 do. The obligation thus imposed on the State	 no doubt	 enures for the benefit of all persons	 for	 as a necessary result of the operation of this Article	 they all enjoy equality before the law. That is	 however	 the indirect	 though necessary and inevitable	 result of the mandate. The command of the Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy. The next thing to notice is that the benefit of this Article is not limited to citizens	 but is available to any person within the territory of India. In the third place it is to be observed that	 by virtue of article 12	 " the State " which is	 by article 14	 forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14	 therefore	 is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities. As regards the legislative organ of the State	 the fundamental right is further consolidated and protected by the provisions of article 13. Clause (1) of that Article provides that all laws in force in the territories of India immediately before the commencement of the Constitution	 in so 552 far as they are inconsistent with the provisions of Part III shall	 to the extent of the inconsistency be void. Likewise el. (2) of this Article prohibits the State from making any law which takes away or abridges the rights conferred by the same Part and follows it up by saying that any law made in contravention of this clause Shall	 to the extent of the contravention	 be void. It will be observed that so far as this Article is concerned	 there is no relaxation of the restriction imposed by it such as there are in some of the other Articles	 e.g.	 article 19	 cls. (2) to (6). Our right to equality before the law is thus completely and without any exception secured from all legislative discrimination. It is not necessary	 for the purpose of this appeal to consider whether an executive order is a " law" within the meaning of article 13	 for even without the aid of article 13 our right to the equal protection of the law is protected against the vagaries	 if any	 of the executive Government also. In this connection the observations of Lord Atkin in Eshugbayi Eleko vs Officer Administering the Government of Nigeria (1) are apposite. Said his Lordship at page 670 that in accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except when be can support the legality of his act before a court of justice That apart	 the very language of article 14 of the Constitution expressly directs that " the State "	 which by article 12 includes the executive organ	 shall not deny to any person equality before the law or the equal protection of the law. Thus article 14 protects us from both legislative and executive tyranny by way of discrimination. Such being the true intent and effect of article 14 the question arises	 can a breach of the obligation imposed on the State be waived by any person ? In the face of such an unequivocal admonition administered by the Constitution	 which is the supreme law of the land	 is it open to the State to disobey the constitutional mandate merely because 'a person tells the State that it may do so ? If the Constitution asks the State as (1) L.R. [1931] A	. C. 662. 553 to why the State did not carry out its behest	 will it be any answer for the State to make that " true	 you directed me not to deny any person equality before the law	 but this person said that I could do so	 for he had no objection to my doing it. " I do not think the State will be in any better position than the positions in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State 's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear	 on the language of article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State	 such as India	 is by her Constitution expected to do and no person can	 by any act or conduct	 relieve the State of the solemn obligation imposed on it by the Constitution. ever breach of other fundamental right a person or a citizen may or may not waive	 he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State. The learned Attorney General has relied on various passages in text books written by well known and eminent writers	 e.g.	 Cooley	 Willoughby	 Willis and Rottschaefer and on eight American decisions. In considering the statements of law made by American writers and judges the following observations of Patanjali Sastri	 C. J.	 in The State of Travancore Cocochin and others vs The Bombay Co. Ltd. (1) should conatantly be borne in mind: scope and purpose	 and a varying body of doctrines and tests have grown around them interpreting	 extending or restricting	 from time to time	 their operation and application in the context of the expanding American commerce and industry	 and we are of opinion that not much help can be derived from them (1) ; 	112O	 1121. 70 554 in the solution of the problems arising under article 286 of the Indian Constitution. " (See also The State of Bombay vs R.M.D. Chamarbaugwala(1)). The American authorities cited by the Attorney General relate to waiver of obligations under a contract	 of the deprivation of right to property without due process of law or of the constitutional right to trial by jury and the like. They have no bearing on the question of the waiver of the equal protection clause of the 14th Amendment which	 like our article 14	 is a mandate to the State. It is signifi cant that no American decision is forthcoming which upholds the waiver of the breach of that clause. When a case of breach of any of the fundamental rights akin to what are dealt with in the American authorities will come before us it will	 then	 be the time for us to discuss those authorities and to consider their applicability in the matter of the interpretation of the corresponding provisions of our Constitution. For the moment we prefer to confine our observations to a consideration of waiver of the breach of the fundamental right under article 14. Learned Attorney General has relied on three decisions of this Court: (1) Laxmanappa Hanumantappa Jamkhandi vs The Union of India (2)	 (2) Dewan Bahadur Seth Gopal Das Mohta vs The Union of India (3) and (3) Baburao Narayanrao Sanas vs The Union of India(4) in support of his thesis that a breach of article 14 may well be waived by a person. In none of those cases	 all of which were disposed of on the same day (October 21	 1954) was the question of waiver specifically or seriously discussed. As learned counsel appearing for the intervener points out	 the first of the above mentioned cases proceeded on the footing that as article 265 was not a fundamental right conferred by Part III	 it could not be enforced under article 32. Learned counsel for the intervener further submitted that the decision in the 2nd case mentioned above could also be explained on that basis and on the further ground that proceeding under article 32 was not (1) ; 	 918. (3) ; (2) ; (4) intended to be used for obtaining relief against the voluntary action of a person and that appropriate remedy for recovery of money lay in a suit. The decision in the 3rd case proceeded on the same basis and did not carry the matter any further. It is impossible to treat any of those decisions as representing the considered opinion of this Court on the question of waiver of a breath of the fundamental right under article 14 of the Constitution. Reference was also made by the learned Attorney General to the decision of a Single Judge of the Allahabad High Court in Subedar vs State (1) where it was held that article 20(3) conferred merely a privilege and that such privilege could always be waived It was overlooked that if a person volun tarily answered any question then there was no breach of his fundamental right at all	 for the fundamental right is that a person shall not be compelled to incriminate himself. That case	 therefore	 is not a case of waiver at all. The case of Pakhar Singh vs The State (2) is also	 for the same reason	 not a case of waiver. (2): The answer to this question depends upon facts which have not been properly investingated. The appeal is against the order of the income tax authorities which order makes no reference to the plea of waiver. Further the filing of the statements of case having been dispensed with	 we have not had the benefit of the statement of facts on which this plea is said to be founded. The view taken on question (1)	 however	 relieves us of the necessity of going into this question. On a consideration of the nature of the fundamental right flowing from article 14	 we have no doubt in our mind that it is not for a citizen or any other person who benefits by reason of its provisons to waive any breach of the obligation on the part of the State. We are	 therefore	 of the opinion that this appeal should be accepted	 the order of the Income Tax Commissioner	 Delhi	 dated January 29	 1958	 should be set aside and all proceedings now pending for implementation of the order of the Union Government dated July 5	 1954	 (1) A. I. R. 1957 All. (2) A. 1. R. 1958 Punj. 556 should be quashed and that the assessee appellant	 should get the costs of this appeal. BHAGWATI	 J. I agree with the reasoning adopted and the conclusion reached in the judgments prepared by My Lord the Chief Justice and my brother	 section K. Das	 J.	 in regard to the ultra vires character of the proceedings adopted under section 8 A of the Taxation on Income (Investigation Commission) Act	 1947 (30 of 1947)	 and the void character of the settlement reached thereunder. As regards the parts of the judgments which deal with the question whether a fundamental right guaranteed by the Constitution can be waived at all	 I find myself in agreement with the judgment prepared by my brother	 Subba Rao	 J.	 and am of the opinion that it is not open to a citizen to waive the fundamental rights conferred by Part III of the Constitution. The question of waiver came to be argued before us in this way. If the proceedings and the settlement under section 8 A of the Act were void as aforesaid	 the respondent contended that the appellant had waived the fundamental right enshrined in article 14 of the Constitution and was therefore not entitled to challenge the settlement. This was only by way of reply to the contention of the appellant and was not set out in proper details in any affidavit filed on behalf of the respondent. The learned Attorney General	 however	 relied upon the application made by the appellant before the Investigation Commission and the contents thereof as also the payments made by the appellant from time to time both before and after the pronouncement of our decision in M. Ct. Muthiah vs The Commissioner of Income tax	 Madras (1) in order to support this plea of waiver and the arguments before us proceeded on that basis. No objection was taken by either of the parties before us to the issue of waiver being decided on such materials and the question was argued at considerable length before us. The arguments moreover extended to the whole field of fundamental rights and were not confined to article 14 only. (1) ; 557 We	 therefore	 see no reason why we should refrain from pronouncing our opinion on that question. The preamble to our Constitution	 article 13 and the language in which the fundamental rights have been enacted lead to one conclusion and one conclusion only that whatever be the position in America	 no distinction can be drawn here	 as has been attempted in the United States of America	 between the fundamental rights which may be said to have been enacted for the benefit of the individual and those enacted in public interest or on grounds of public policy. Ours is a nascent democracy. and situated as we are	 socially	 economically	 educationally and politically	 it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution. The limitations on those rights have been enacted in the Constitution itself	 e.g.	 in articles 19	 33 and 34. But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution	 there is no justification whatever for importing any notions from the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our Constitution. The genesis of the declaration of fundamental rights in our Constitution can be traced to the following passage from the Report of the Nehru Committee (1928): " Canada	 Australia and South Africa have no declaration of rights in their Constitutions but there are various articles to be found in the Constitution of the Irish Free State which may properly be grouped under the general head " fundamental rights ". The reason for this is not far to seek. Ireland is the only country where the conditions obtaining before the treaty were the nearest approach to those we have in India. The first concern of the people of Ireland was	 as indeed it is of the people of India to day	 to secure fundamental rights that have been denied to them. The other dominions had their rise from earlier British 558 settlements which were supposed to have carried the law of England with them. Ireland was taken and kept under the rule of England against her own will and the acquisition of dominion status by her became a matter of treaty between the two nations. We conceive that the constitutional position in India is very much the same. That India is a dependency of Great Britain cannot be denied. That position can be altered in one of two ways force or mutual consent. It is the latter in furtherance of which we are called upon to recommend the principles of a constitution for India. In doing so it is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances. " At the Round Table Conference that preceded the making of the Government of India Act	 1935	 therefore	 the	 Indian leaders pressed for a Bill of Rights in the proposed Constitution Act	 in order to bind the administration with certain declarations of individual rights. This was	 however	 rejected by the Simon Commission with these observations: " We are aware that such provisions have been inserted in many Constitutions	 notably in those of the European States formed after the War. Experience	 however	 has not shown them to be of any great practical value. Abstract declarations are useless unless there exist the will and means to make them effective. " The framers of our Constitution however followed the American view represented by the famous words of Jefferson in preference to that expressed by the Simon Commission : " The inconveniences of the declaration are	 that it may cramp government in its useful exertions. But the evil of this is short lived	 moderate and reparable. The inconveniences of the want of a declaration are permanent	 afflictive and irreparable. They are in constant progression from bad to worse. The executive in our governments is not the sole	 it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread. . . . 559 (Vide Basu 's Commentary on the Constitution of India	 Vol. 1	 p. 74). and incorporated the fundamental rights in Part III of our Constitution. The object sought to be achieved was as the preamble to the Constitution states " to secure to all its citizens: JUSTICE	 social	 economic and political; ]LIBERTY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation and article 13 provided: " 13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution	 in so far as they are inconsistent with the provisions of this Part	 shall	 to the extent of such inconsistency	 be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall	 to the extent of the contravention	 be void. . . " Laws in force " were defined in article 13(3) to include : " Laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed	 notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas " and they were declared void	 in so far as they were inconsistent with the provisions of this Part	 to the extent of such inconsistency. As regards laws to be enacted after the commencement of the Constitution	 the State	 in the wider significance of the term as including " the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India " (Vide article 12) was enjoined not to make any law which takes away or abridges the rights conferred by this Part and 'any law made in con travention of this clause was to the extent of the 560 contravention declared void. It will be seen that the prohibition was thus effective both against past laws as well as future laws and both were equally void in so far as they were " inconsistent with " or " in derogation of " the fundamental rights enshrined in Part III of the Constitution. no distinction was made between the past laws and future laws in this respect and they were declared void to the extent of the inconsistency or the extent of the contravention a		; the case may be	 leaving the unoffending parts thereof untouched. It will be also seen that under article 13(2) an admonition was administered to the State not to enact any law which takes away or abridges the rights conferred by this Part and the obligation thus imposed on the State enured for the benefit of all citizens of Bharat alike in respect of all the fundamental rights enacted in Part III of the Constitution. No distinction was made in terms between the fundamental rights said to have been enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy. The question then arises whether a breach of the obligation thus imposed on the State can be waived by a citizen. To borrow the words of My Lord the Chief Justice " In the face of such unequivocal admonition administered by the Constitution	 which is the supreme law of the land	 is it open to the State to disobey the Constitutional mandate merely because a citizen told the State that it may do so ? if the Constitution asks the State as to why the State did not carry out its behest	 will it be any answer for the State to make that " True	 you directed me not to take away or abridge the rights conferred by this Part	 but this citizen said that I could do so	 for he had no objection to my doing so. " I do not think the State will be in any better position than the position in which Ad am found himself when God asked him as to why he had eaten the forbidden fruit and the State 's above answer will be as futile as that of Adam who pleaded that the woman had tempted him and Bo he ate the forbidden fruit. " It is absolutely clear on a perusal of article 13(2) of the Constitution that it is a constitutional mandate 561	 to the State 'and no citizen can by any act or conduct relieve the State of the solemn obligation imposed on it by article 13(2) and no distinction can be made at all between the fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy. What then is the basis of this distinction which has be strenuously urged before us that there are certain fundamental rights which are enacted only for the private benefit of a citizen	 e.g.	 rights of property	 which can be waived by him and there are other fundamental rights enacted for the public good or as a matter of public policy which it would not be open to a citizen to waive even though he were affected by the breach thereof. Reliance is placed in this behalf on certain decisions of the Supreme Court of the United States of America	 passages from Willoughby	 Willis and Rottschaeffer	 quoted in the judgment of T. L. Venkatarama Aiyar	 J.	 in Behram Khurshed Pesikaka vs The State of Bombay (1) and the observations of the said learned Judge in that case adopting the said distinction. (Vide pp. 638 643 of the Report). I am afraid this distinction cannot be accepted. There is nothing in the terms of the various articles embodying the fundamental rights in Part III of our Constitution which warrants such a distinction. The fundamental rights are enacted with all precision and wherever limitations on their exercise are thought of they are also similarly enacted. Such constitutional limitations are to be found within the terms of the articles themselves and there is no justification for reading in the terms of the articles anything more than what is expressly stated therein. There is further this distinction between the American Constitution and ours that whereas the American Constitution was merely enacted in order to form a more perfect union	 establish justice	 insure domestic tranquillity	 provide for common defence	 promote the general welfare and secure the blessings of liberty and was an outline of government and nothing more	 our Constitution was (1) 71 562 enacted to secure to all citizens	 justice	 Liberty. ' Equality and Fraternity and laid emphasis on the welfare state and contained more detailed provisions		 defining the rights and also laying down restrictions thereupon in the interest of the general welfare	 etc. As observed by Wills in his Constitutional Law at p. 477: "The conflict between man and the state is as old as human history. For this reason some compromise must be struck between private liberty and public authority. There is some need of protecting personal liberty against governmental power and also some need of limiting personal liberty by governmental power. The ideal situation is a matter of balancing one against the other	 or adjusting conflicting interests." " In the United States Constitution an attempt has been made to strike a proper balance between personal liberty and social control through express limitations written into the Constitution and interpreted by the Supreme Court	 by implied limitations created by the Supreme Court	 and by the development of the governmental powers of regulation	 taxa tion	 and eminent domain by the Supreme Court." (Ibid pp. 477 478)	 whereas our Constitution has expressly sought to strike the balance between a written guarantee of individual rights and the collective interests of the community by making express provisions in that behalf in Part III of the Constitution. (Vide Gopalan vs State of Madras) (1). Moreover in the matter of considering the statements of law made by the text book writers in America and the dicta of the judges of the Supreme Court there in the various decisions cited before us	 we must bear in mind the following admonition of Patanjali Sastri	 C. J.	 in the State of Travancore Cochin vs The Bombay Co.	 Ltd. (2). " These clauses are widely different in language	 scope and purpose	 and a varying body of doctrines (1) ; (2) [1952] S.C.R.1112	 1120 and tests have grown around them interpreting	 extending or restricting	 from time to time	 their operation and application in the context of the expanding American commerce and industry	 and we are of opinion that not much help can be derived from them in the solution of the problems arising under article 286 of the Indian Constitution" or for the matter of that	 articles embodying the fundamental rights in Part III of our Constitution (see also The State of Bombay vs R. M. D. Chamarbaugwala(1) The rights conferred on citizens may be thus classified : (i) statutory rights; (ii) constitutional rights; and (iii) fundamental rights. One need not consider the statutory rights in this context but the constitutional rights are those created and conferred by the Constitution. They may or may not be waived by a. citizen	 as stated in the text books and the decisions of the Supreme Court of the United States of America above referred to. But when the rights conferred are put on a high pedestal and are given the status of fundamental rights	 which though embodied in the Constitution itself are in express terms distinguished from the other constitutional rights (e.g.	 fundamental rights which are enshrined in Part III of the Constitution and are enacted as immune from any legislation inconsistent with or derogatory thereto and other constitutional rights which are enacted in other provisions	 for instance in articles 265 and 286 and in Part XIII of the Constitution)	 they are absolutely inviolable save as expressly enacted in the Constitution and cannot be waived by a citizen. The Constitution adopted by our founding fathers is sacrosanct and it is not permissible to tinker with those fundamental rights by any ratiocination or analogy of the decisions of the Supreme Court of the United States of America. The only manner in which that can be done is by appropriate amendment of the Constitution and in no other manner whatever. There is no difficulty whatever in working out this position and to my mind the difficulties pointed out (1) ; 	 918. 564 are more imaginary than real. If a citizen wanted to assert his fundamental right under the circumstances envisaged for instance in the judgment of my brother section K. Das	 J.	 and made an application for a writ under article 32 or article 226 of the Constitution he would be promptly confronted with the argument that the Court should in the exercise of its discretion refuse him the relief prayed for. The remedy is purely discretionary and no Court in those circumstances would exercise @ its discretion in his favour (Vide Dewan Bahadur Seth Gopal Das Mohta vs Union of India (1)	 Baburao Narayan Savas vs Union of India(2) and Laxmanappa Hoonmantappa Janakhandi vs Union of India (3). Even then he might merely obtain a relief declaring the legislation ultra vires the Constitution and the Court would not grant him any consequential relief For that relief he would have to approach the regular courts of law	 when all questions of law	 apart from the mere constitutionality of the provision would be considered by the Court on a contest between the par. ties	 e.g.	 estoppel	 acquiescence	 limitation and the like (Compare our observations in Sales Tax Officer	 Banaras vs Kanayalal Mukundlal Saraf (4) ). The only thing which parties would be concluded by would be the adjudication as to the ultra vire 's character of the measure in question and the citizen would not be entitled to the relief claimed merely for the asking. These considerations	 therefore	 do not militate against the position that a citizen cannot waive the fundamental rights conferred upon him by Part III of the Constitution. I fully endorse the opinion expressed by Mahajan	 C. J.	 in Behram Khursheed Pesikaka vs The State of Bombay (5) at page 653 : 		We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a (1) [1955] I S.C.R. 773. (3) [19551 1 S.C.R. 769. (2) (4) Civil Appeal No. 87 Of 1957 decided on September 23	 1958. (5) 565 sovereign democratic republic and to secure to all its citizens justice	 social	 economic and political; liberty of thought	 expression	 belief	 faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit	 though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a	 matter of constitutional policy. " This	 in my opinion is the true position and it cannot therefore be urged that it is open to a citizen to	 waive his fundamental rights conferred by Part III of the Constitution. The Supreme Court is the bulwark of the fundamental rights which have been for the first time enacted in the Constitution and it would be a	 sacrilege to whittle down those rights in the manner attempted to be done. The result is however the same and agree with the order proposed by My Lord the Chief Justice. section K. DAS J. This is an appeal by special leave from an order dated January 29	 1958	 passed by the Commissioner of Income tax	 Delhi	 respondent No. 1 before us	 in circumstances which are somewhat unusual and out of the ordinary. We shall presently relate those circumstances; but at the very outset it may be stated that two questions of far reaching importance fall for consideration in this appeal. One is the validity of a settlement made under section 8A of the Taxation on Income (Investigation Commission) Act	 1947 (30 of 1947) hereinafter referred to as the Act	 after the coming into force of the Constitution on January 26	 1950	 and the second is if a fundamental right guaranteed by the Constitution can be said to have been waived by the appellant in the circumstanoes of this case. 'The appellant before us is Basheshar Nath	 whom we shall hereafter call the assessee. As we have already stated	 the Commissioner of Income tax	 Delhi	 is the first respondent	 The second respondent 566 is the Union of India. We also allowed the Model Knitting Industries	 a limited liability Company with its registered office in Calcutta	 to intervene in the appeal	 on the ground that the intervening Company has a case pending in the High Court of Calcutta where the same questions are in issue. We have also heard the intervener in support of the appeal. On behalf of the appellant it has been ' contended that the Commissioner of Income tax	 Delhi	 is a tribunal within the meaning of Art	 136 of the Constitution and exercised judicial functions when it passed the impugned order of January 29	 1958. The respondents pointed out	 however	 that the so called order was nothing but a reply which respondent No. 1 gave to a communication received	 from the assessee. However	 the respondents have waived any prelimi nary objection to the maintainability of the present appeal	 and the learned Attorney General appearing for the respondents has frankly stated before us that he is raising no such preliminary objection	 as the Union Government is equally anxious to have a decision on the question	 very important from its point of view and with far reaching financial consequences	 as to whether a settlement made under section 8A of the Act after January 26	 1950	 and the orders passed thereon by the Union Government are valid. We have	 therefore	 proceeded on the footing that the present appeal is competent	 and have considered it unnecessary to decide in the abstract the more general question as to the circumstances in which an order made by a revenue authority like the Commissioner of Income tax partakes of the character of A judicial or quasi judicial order. Now	 for the facts and circumstances which have led up to this appeal. The Act received the assent of the Governor General on April 18	 1947	 and came into force on May 1	 1947. On July 22	 1948	 the case of the assessee was referred to the Investigation Commission	 constitued under section 3 of the Act. The reference was made under section 5(1) of the Act	 and it 	stated that the Central Government had prima facie reasons for believing that the assessee either alone or 567 in combination with ' other persons evaded payment of taxation on income to a substantial extent	 and therefore the case of the asseesee was sent to the Investigation Commission for investigation and report. The period of investigation was from April 1	 1939 to March 31	 1947. The report of the Investigation Commission which has been made available to us shows that the case against the assessee was that he carried on a business of supplying tents	 executing contract works	 and commission agency for some textile mills on a fairly extensive scale	 both individually and in partnership With his brother. It appears that the total wealth statement of the assessee was filed on November 10	 1948	 and was forwarded to an authorised official appointed under section 6(3) of the Act. From January 8	 1949 to October 14	 1949 the authorized official was engaged in the collection of assessment records of the assessee from the income tax authorities and of materials from the Civil Supplies Directorate. On July 5	 1949	 the total wealth statement was received back from the assessee and the order 	sheet shows that on May 26	 1950	 (that is	 after the coming into force of the Constitution) the authorised official is sued a notice to the assessee fixing the hearing for June 10	 1950. The assessee then asked for time	 and it appears that for a period of about three years till June	 1953	 nothing was done. Thereafter	 the authorised official held a preliminary investigation and computed intially that the undisclosed income 	of the assessee for the period in question was Rs. 12	07	000; on further scrutiny and examination of accounts and after heating the assessee 's explanation	 the authorised official reduced the amount in his final report	 submitted sometime towards the end of 1953	 to Rs. 9	56	345. The Investigation Commission considered the report of the authorised official	 heard the assessee	 and came to the conclusion that the total amount to be assessed in the hands of the assessee was Rs ' 4	47	915. In their report dated May 24	 1954 the Investigation Commission said: " During the course of the hearing before us	the assessee as well as his Auditors applied for a 568 settlement after admitting liability for the aforesaid sum. In the circumstances	 we consider it proper to allow the assessee the benefit of a settlement on the lower concessional basis of 75% of evaded income payable by way of tax and a moderate penalty of Rs	 14	064. . The assessee accepting our findings both as regards the amount of income that escaped assessment and the amount of tax and penalty payable	 offered a settlement. In the circumstances	 we re commend the acceptance by the Government of the assessee 's offer of a settlement. " The Central Government accepted the settlement under section 8A of the Act and on July 5	 1954	 passed an order under section 8A(2) directing the issue of a demand notice by the Income tax Officer concerned for a sum of Rs. 3	50	000 (including the penalty of Rs. 14	064) on the assessee and further directing that " all such other proceedings under the Indian Income tax Act or under any other law	 as may be necessary	 should be taken with a view to enforcing the payment of the demand and the terms and conditions of settlement." Though under the terms of settlement no instalments were given	 it appears that the assessee was allowed to pay the amount at the rate of Rs. 5	000 per month. It further appears that up to and including September 8	 1957	 the assessee had paid in all a sum of Rs. 1	28	000 towards the demand. In December	 1955 was given the decision of this Court in M. CT. Muthiah vs The Commissioner of Income tax	 Madras (1)	 in which the majority of Judges held that section 5(1) of the Act was ultra vires the Constitution	 as it was discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution by reason of two amendments which were made in section 34 of the Indian Income tax Act 1922 one in 1948 by the enactment of the Income. tax and Business Profits Tax (Amendment) Act	 1948 (48 of 1948) and the other in 1954 by the enactment of the Indian Income tax (Amendment) Act	 1954 (33 of 1954). Sometime earlier than the aforesaid deci sion	 the Income tax Officer concerned had sent a (1) ; 	 569 recovery certificate to the Collector	 New Delhi	 and the assessee stated that in execution of the said certificate his properties situated in Dharamsala and Hissar were attached. On December 27	 1957	 the assessee filed a petition to the Income tax Commissioner	 Delhi	 in which after stating the relevant facts	 the assessee claimed that	 after the decision in Muthiah 's case (1)	 the settlement made under section 8A of the Act had no force and was not binding on him: the assessee then prayed that the attached properties should be released from attachment and the amounts recovered under the terms of settlement refunded to him. On January 29	 1958	 the Commissioner of Income tax sent the following reply " With reference to your petition dated 27th December 1957 regarding the settlement arrived at under section 8A(2) of the Taxation on Income (Investigation Commission) Act	 1947	 1 am to inform you that the settlement is valid and binding on you. You are ' therefore	 requested to make good the arrears of instalments which you have not paid recently by 5th February	 1958 and also to continue making the payments in accordance with the instalments ' scheme agreed to	 failing which the recovery proceedings will be vigorously pursued through the usual recovery channels. " The assessee asked for and obtained special leave from this Court on February 17	 1958	 to appeal from the aforesaid order. In the appeal as orginally filed in pursuance of the special leave granted to the assessee	 the prayer portion was inadvertently left out. Subsequently	 the assessee prayed that (a) the report of the Investigation Commission dated May 24	 1954	 be quashed	 (b) the settlement made on the basis of the report and the directions given by the Central Government in pursuance thereof and the proceedings for recovery of arrears of tax be all quashed	 and (c) the amounts already recovered may be ordered to be refunded. With regard to the last prayer	 we may state here that it was not pressed before us and we are relieved from the task	 at least in this appeal	 of (1) ; 72 570 deciding in what circumstances and on what considerations a refund of tax voluntarily paid can be claimed. Therefore	 the first and foremost question before us is the validity of the settlement made under section 8A of 	 the Act. On behalf of the assessee the main argument is that section 5(1) of the Act having been held ultra vires the Constitution	 the very foundation for the report of the Investigation Commission has disappeared and a settlement based thereon is neither valid	 nor can it be enforced. On behalf of the respondents	 the learned Attorney General has contended that there is no decision of this Court which has held that section 5(1) of the Act is wholly void and on a proper construction of the various sections of the Act	 it will be found that there are two separate and distinct procedures or jurisdictions which the Investigation Commission may follow or exercise: one is investigation and the other relates to settlement. He has submitted that the jurisdiction conferred on the Investigation Commission under section 8A	 which was inserted in the Act in 1949 by section 33 of Act 67 of 1949	 is not affected by the decision in Muthiah 's case (1)	 and if the Investigation Commission had jurisdiction to entertain an application from the assessee for settlement	 approve of the same	 and refer it to the Central Government	 the latter had also jurisdiction to accept it under sub s.(1) and make necessary orders under sub.s. (2) of section 8A.In short	 the argument of the learned Attorney General is that there is nothing in Muthiah 's decision (1)	 which renders section 8A constitutionally invalid. It is necessary to read at this stage the relevant provisions of the Act in so far as they bear upon the problems before us. We have said that the Act came into force on May 1	 1947. This was before the coming into force of the Constitution of India	 and no question of the violation of any fundamental rights guaranteed by the Constitution arose on that date. Section 3 of the Act empowers the Central Government (now Union Government) to constitute a Commission to be called the Income tax Investigation (1) ; 571 Commission	 whose duties shall be (to quote the words of the section) " (a) to investigate and report to the Central Government on all matters relating to taxation on income	 with particular reference to the extent to which the existing law relating to	 and procedure for	 the ' assessment and collection of such taxation is adequate to prevent the evasion thereof ; (b)to investigate in accordance with the provisions of this Act any case or point in a case referred to it undersection 5 and make a report thereon (including such interim reports as the Commission may think fit) to the Central Government in respect of all or any of the assessments made in relation to the case before the date of its report or interim report	 as the case may be. " We are concerned in this appeal with the duty of the Commission referred to in section 3(b) above. Section 4 deals with the composition of the Commission	 details whereof are unnecessary for our purpose	 Sub sections (1)	 (2) and (4) of section 5 are relevant to the problems before us and must be read : " 5(1). The Central Government may at any time before the 1st day of September 1948 refer to the Commission for investigation and report any case or points in a case in which the Central Government has prima facie reasons for believing that a person has to a substantial extent evaded payment of taxation on income	 together with such material as may be available in support of such belief	 and may at any time before the 1st day of September	 1948 apply to the Commission for the withdrawal of any case or points in a case thus referred	 and if the Commission approves of the withdrawal	 no further proceedings shall thereafter be taken by or before the Commission in respect of the case or points so withdrawn. (2) The Commission may	 after examining the material submitted by the Central Government with reference to any case or points in a case and making such investigation as it considers necessary	 report to the Central Government that in its opinion further investigation is not likely to reveal any substantial 572 evasion of taxation on income and on such report being made the investigation shall be deemed to be closed. (3). . . . . . . . . . (4) If in the course of investigation into any case or points in a case referred to it under sub section (1)	 the Commission has reason to believe (a)that some person other than the person whose case is being investigated has evaded payment of taxation on income	 or (b) that some points other than those referred to it by the Central Government in respect of any case also require investigation	 it may make a report to the Central Government stating its reasons for such belief and	 on receipt of such report	 the Central Government shall	 notwithstanding anything contained in sub section (1)	 forthwith refer to the Commission for investigation the case of such other person or such additional points as may be indicated in that report. " Section 5 as originally enacted mentioned the date	 30th of June	 1948	 but by Act 49 of 1948 the date substituted was " 1st day of September	 1948 ". Section 6 states the powers of the Commission	 and they may be summarised thus: (a) the Commission has power to require any person or banking or other Company to give information on relevant points; (b) it has power to administer oaths and all the powers of a civil court to take evidence	 enforce the attendance of witnesses etc; (c) it has power to impound and retain a document in its custody; (d)it has power to ask an authorised official to examine accounts and interrogate any person; (e) it has power to give directions to an authorised official; (f) it has power to close the investigation and make a best of judgment assessment in respect of a person who refuses or fails to attend in person to give evidence or produce documents etc; and 573 (g) it has power of seizure	 search etc. in certain specified circumstances. Sections 6A and 6B deal with the power of the Commission to tender immunity from prosecution and to withdraw such tender. Section 7 states the procedure to be followed by the Commission	 sub sections (2)	 (4) and (6) whereof need only be referred to here: " 7(2) In making an investigation under clause (b) of section 3	 the Commission shall act in accordance with the principles of natural justice	 shall follow as far as practicable the principles of the (1 of 1872)	 and shall give the person whose case is being investigated a reasonable opportunity of rebutting any evidence adduced against him; and the power of the Commission to compel production of documents shall not be subject to the limitation imposed by section 130 of the (1 of 1872)	 and the Commission shall be deemed to be a court and its proceedings legal proceedings for the purpose of sections 5 and 6 of the (XVIII of 1891). (3). . . . . . . . . . (4) No person shall be entitled to inspect	 call for	 or obtain copies of	 any documents	 statements or papers or materials furnished to	 obtained by or produced before the Commission or any authorised official in any proceedings under this Act; but the Commission	 and after the Commission has ceased to exist such authority as the Central Government may in this behalf appoint	 may	 in its discretion	 allow such inspection and furnish such copies to any person: Provided that	 for the purpose of enabling the person whose case or points in whose case is or are being investigated to rebut any evidence brought on the record against him	 he shall	 on application made in this behalf and on payment of such fees as may be prescribed by Rules made under this Act	 be furnished with certified copies of documents	 statements	 papers and materials brought on the record by the Commis Sion. (5). . . . . . . . . . 574 (6) In any proceedings under this Act	 the Commission may	 in its discretion	 admit in evidence and act upon any document notwithstanding that it is not duly stamped or registered. " Section 8 states in effect what the Commission shall do on the conclusion of the investigation: it states that the materials brought on the record shall be considered by all the members	 and the report shall be in accordance with the opinion of the majority. Subsection (2) of section 8 gives the Central Government power to direct reopening of assessment proceedings on the report of the Commission. Sub section (4) states that in the assessment or reassessment proceedings in pursuance of a direction given under sub section (2)	 the findings recorded by the Commission shall be final	 subject to the provisions of sub sections (5) and (6). Then comes section 8A which must be quoted in full: "section 8A(1) Where any person concerned in any case referred to or pending before the Commission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him	 the Commission shall	 if it is of opinion that the terms of the settlement contained in the application may be approved	 refer the matter to the Central Government	 and if the Central Government accepts the terms of such settlement	 the Commission shall have the terms thereof recorded and thereupon the investigation	 in so far as it relates to matters covered by such settlement	 shall be deemed to be closed. (2) For the purpose of enforcing the terms of any settlement arrived at in pursuance of subsection (1)	 the Central Government may direct that such proceedings as may be appropriate under the Indian Income tax Act	 1922 (XI of 1922)	 the Excess Profits Tax Act	 1940 (XV of 1940) or any other law may be taken against the person to whom the settlement relates	 and	 in particular	 the provisions of the second proviso to clause. (a) of sub section (5) of section 23	 section 24B	 the proviso to sub section (2) of section 25A	 the proviso to sub section (2) of section 26 and sections 44 and 46 of the Indian Income tax Act	 1922 575 shall be applicable to the recovery of any sum specified in such settlement by the Income tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrear of income tax within the meaning of those provisions. (3) Subject to the provisions of subsection (6) of section 8	 any settlement arrived at under this section shall be conclusive as to the matters stated therein	 and no person whose case has been so settled shall be entitled to reopen in any proceeding for the recovery of any sum under this section or in any subsequent assesssment or reassessment proceeding relating to taxation on income or in any other proceeding before any court or other authority any matter which forms part of such settlement. (4) Where a settlement has been accepted by Government under sub section (1)	 no proceedings under section 34 of the Indian Income tax Act	 1922 (XI of 1922)	 or under section 15 of the Excess Profits Tax Act	 1940 (XV of 1940)	 shall be initiated in respect of the items of income covered by the settlement unless the initiation of such proceedings is expressly allowed by the terms of the settlement. " Section 9 bars the jurisdiction of courts	 but it is not disputed that if any of the provisions of the Act are ultra vires the Constitution	 section 9 will neither cure the defect nor stand in the way of the assessee. Section 10	 the last section	 gives the Central Government power to make rules. The above recital gives a brief conspectus of the main provisions of the Act. It is necessary now to refer to a few earlier decisions of this Court with regard to some of these provisions. The earliest in point of time is the decision in Suraj Mall Mohta and Co. vs A. V. Viswanatha Sastri where sub section (4) of section 5 of the Act and the procedure prescribed by the Act in so far as it affected the persons proceeded against under that sub section	 were held to be discriminatory and therefore void and unenforceable. No opinion was	 however	 expressed on the validity of section 5(1) of the Act. (1) ; 576 In Shree Meenakshi Mills Ltd.	 Madurai vs Sri A. V. Viswanatha Sastri (1)	 it was held that after the coming into force on July 17	 1954	 of the Indian Income tax (Amendment) Act	 1954	 (33 of 1954) which operated on the same field as section 5(1) of the Act	 the provisions of section 5 (1) became void and unenforceable as being discriminatory in character. It was further held that when an Act was valid in its entirety before the date of the Constitution	 that part of the proceedings regulated by the special procedure and taken during the pre Constitution period could not be questioned how. ever discriminator it might have been	 but the discriminatory procedure could not be continued after the coming into force of the Constitution. In that case (Meenakshi Mills ' case(1)) the Investigation Commission had not even commenced the proceedings though a period of seven years had elapsed and the investigation was pending when the writ petitions were filed. In those circumstances it was held that the proceedings before the Investigation Commission which had become discriminatory could no longer be continued. Then came the decision in M. CT. Muthiah vs The	 Commissioner of Income tax	 Madras(2). The facts relevant to that decision were that the Investigation Commission held an enquiry into three cases and submitted a report on August 26	 1952	 finding a particular sum to be the undisclosed income during the investigation period. The Central Government accepted the report and passed an order under section 8(2) of the Act on September 16	 1952. Notices under section 34 of the Indian Income tax Act were then issued and reassessments except for one year were made on the findings of the Commission	 which were treated as final and conclusive. The re assessment orders were served on the assessees in February and May 1954. On December 6	 1954	 the assessees filed their writ petitions challenging the constitutionality of section 5 (1) of the Act. It was held by the majority that section 5 (1) was discriminatory and violative of the fundamental right guaranteed under article 14 of the Constitution	 because section 34 of the Indian Income tax Act	 1922 as (1) (2) ; 577 amended in 1948 operated on the same field and from and after January 26	 1950	 it included the strip of territory which was also occupied by section 5 (1) and two substantially different laws of procedure	 one more 	 prejudicial to the assessee than the other	 could not be allowed to operate on the same field in view of the 	 guarantee of article 14 of the Constitution. In the result it was held that barring those cases which were already concluded by reports made by the Commission and directions given by Government before January 26	 1950	 the cases which were pending before the commission for investigation as also assessment or reassessment proceedings which were pending on January 26	 1950	 were hit by article 14. The assessment orders were accordingly quashed as being unconstitutional. Now	 we come back to the problems before us: (1) what is the effect of Muthia 's decision(1) in the present ease	 and (2) does the Act contemplate two separate and distinct	 but severable	 procedures or jurisdictions one relating to investigation and the other to settlement	 so that the vice of discrimination (if any) attaches to the investigation procedure only and not to the other ? We do not see how the learned Attorney General can escape from the position that Muthia 's decision (1) holds in express terms that section 5 (1) of the Act was hit by article 14 of the Constitution on and after January 26	 1950. The ratio of the decision was thus explained in the majority judgment at page 1260	 1261: " After the 8th September	 1948	 there were two procedures simultaneously in operation	 the one under Act XXX of 1947 and the other under the Indian Income tax Act with reference to persons who fell within the same class or category	 viz.	 that of the substantial evaders of income tax. After the 8th September	 1948	 therefore	 some persons who fell within the class of substantial evaders of income tax were dealt with under the drastic and summary procedure prescribed under Act XXX of 1947	 while other (1) ; 73 578 persons who fell within the same class of substantial evaders of income tax could be dealt with under the procedure prescribed in the Indian Income tax Act after service of notice upon them under the amended section 34 (1) of the Act. Different persons	 though falling under the same class or category of substantial evaders of income tax	 would	 therefore	 be subject to different procedures	 one a summary and drastic procedure and the other a normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed in Act XXX of 1947. The legislative competence being there	 these provisions	 though discriminatory	 could not have been challenged before the advent of the Constitution. When	 however	 the Constitution came into force on the 26th January	 1950	 the citizens obtained the fundamental rights enshrined in Part III of the Constitution including the right to equality of laws and equal protection of laws enacted in article 14 thereof	 and whatever may have been the position before January 26	 1950	 it was open to the persons alleged to belong to the class of substantial evaders thereafter to ask as to why some of them were subjected to the summary and drastic procedure prescribed in Act XXX of 1947 and others were subjected to the normal procedure prescribed in section 34 and the cognate sections of the Indian Income tax Act	 the procedure prescribed in Act XXX of 1947 being obviously discriminatory and	 therefore	 violative of the fundamental right guaranteed under article 14 of the Constitution. " That ratio is equally applicable in the present case	 and if section 5(1) of the Act is unenforceable after January 26	 1950	 the reference made thereunder against the assessee must also fall after that date and with it must go overboard all that was done under the drastic and summary procedure prescribed under the Act after January 26	1950. Two possible arguments that (1) substantial evaders whose s were referred by the Central Government for investigation by the Commission 579 before September 1	 1948	 formed a class by themselves and (2) that proceedings having started before the Commission under a reference valid at the time when it was made cannot be affected by any subsequent amendment of the Income tax Art	 1922	 were raised	 but not accepted in Suraj Mall Mohta 's Meenakshi Mills ' or Muthia 's case (1) (2) (3). There has been some argument before us as to how the two procedures one prescribed under the Income tax Act	 1922	 and the other under the Act compare and contrast with each other; but this is a point which was canvassed at great length in each of the three cases mentioned above. This Court found in unequivocal terms that the procedure prescribed under the Act was more summary and drastic	 and in Suraj Mall Mohta 's case the substantial differences between the two procedures were summarised at pp. 463 466 of the report. We do not propose to cover the same ground again	 but cop tent ourselves with drawing attention to what was pointedly said in Suraj Mall Mohta 's case namely	 that it was conceded on behalf of Government that the procedure prescribed by the impugned Act in sections 6 and 7	 which we have read earlier	 was more drastic than the procedure prescribed in sections 37 and 38 of the Indian Income tax Act. It was stated therein that though in the first stages of investigation there was some similarity between the two procedures	 the overall picture was not the same. The learned Attorney General has not seriously contested the correctness of this position	 but has argued that what we are concerned with in the present case is not the mere possibility of a differential treatment	 but what actually was done by the Commission in the case of the present assessee after January 26	 1950. He has submitted that the assessee was not subjected to any differential treatment in fact	 and has invoked to his aid the ratio of our decision in Syed Qasim Razvi vs The State of Hyderabad (4)	 where the majority judgment laid down the following tests: in a case where part of the trial cannot be challenged as (1) [1955] 1S.C.R.448 (2) (3) [1955) 2 S.C.R. 1247. (4) 580 bad	 it is incumbent on the court to consider	 first whether the discriminatory provisions of the law can be separated from the rest and even without them a fair measure of equality in the matter of procedure can be secured	 and secondly	 whether the procedure actually followed 'did or did not	 proceed upon the discriminatory provisions and it was stated that a; mere threat or possibility of unequal treatment was not sufficient to invalidate the subsequent proceedings. A reference was there made to the earlier decisions	 of this Court in Keshavan Madhava Xenon vs The State of Bombay (1)	 and Lachmandas Kewalram Ahuja vs The State of Bombay (2 )	 and the decision in Lachmandas case (supra)	 again a majority decision	 was distinguished on two grounds: first	 the question as to whether after eliminating the discriminatory provisions it was still possible to secure a fair measure of equality with the normal procedure was neither raised nor considered ; secondly	 it was assumed that it was not possible to proceed with the trial without following the discriminatory procedure and as that procedure became void on the coming into force of the Constitution	 the jurisdiction to proceed under that procedure came to an end. Applying the tests laid down in the majority decision of Syed Qasim Razvi 's case (3)	 the learned Attorney General has contended that in the present case the discriminatory provisions can be separated from the rest of the Act	 and the assessee was not in fact subjected to any discriminatory procedure. He has sought to distinguish Muthia 's case on the same ground	 viz.	 that the re assessments made in that case were actually based on a discriminatory procedure. In our view the ratio of the majority decision in Syed Qasim Razvi 's case (3) has no application in the case under our consideration	 and the principle which applies is what was laid down in Lachmandas 's case (2). The majority decision is Syed Qasim Razvi 's case proceeded on the finding (to quote the words of Mukherjea	 J.	 who delivered the majority judgment) that " although there were deviations in certain particulars	 (1) ; (2) (.3) 581 the accused had substantially the benefit of a normal trial". The minority judgments	 however	 very pertinently pointed out that the discriminatory provisions were an integral part of the Regulation under which the accused person in that case was tried and in fact the discriminatory provisions were applied. Bose	 J. (as he then was expressed the view (at p. 618) " that in testing the validity of a law	 it is irrelevant to consider what has been done under it	 for a law is either constitutional or not and the validity or otherwise cannot depend upon what has been accomplished under its provisions. " It is	 we think	 unnecessary to go into the controversy which arises out of the two views expressed above. For the present case	 it is sufficient to say that (1) the discriminatory provisions are an integral part of the procedure prescribed under the Act which cannot be separated from the rest; and (2) we are satisfied that the report which led to the settlement was made by the Investigation Commission in pursuance of and as a direct result of the discriminatory procedure which it followed. Indeed	 the Investigation Commission followed the only procedure of investigation prescribed under the Act	 which was a drastic and summary procedure	 and if that procedure became void on the coming into force of the Constitution	 the jurisdiction of the Investigation Commission practically came to an end (see Lachmandas 's case	 supra). It is necessary to explain here why we cannot accept the contention of the learned Attorney General that there are two procedures or two jurisdictions under the Act. What in substance is the effect of the provisions of the Act	 in so far as they relate to the Commission 's duty under section 3 (b)? The Commission receives a reference under section 5 (1) if it does not proceed under section 5 (2)	 it exercises such of its powers under section 6 as it considers necessary. It then follows the procedure laid down in section 7 and submits its report under section 8. On that report	 the Central Government takes action under section 8 (2). If	 however	 the assessee applies for settlement	 even then the Commission has the	 duty to report to Government if the terms of settlement are 582 approved by it. To fulfil this duty	 the Commission must get the materials by exercising its powers under section 6 and by following the procedure laid down in section 7. That is exactly what was done in the present case. An authorised official was asked to examine the accounts etc. under section 6 (3). He examined the accounts and submitted an interim report in 1953. He followed the procedure laid down in the Act with regard to inspection of documents	 examination of witnesses etc. He then submitted a final report. The Commission then heard the assesee on May 19	 1954	 and reserved orders. On May 20	 1954	 after the assessee knew what the final finding of the Commission was going to be	 he filed an application for settlement. The Commission made its final report four days after. It is difficult to understand how in the circumstances stated above	 it can be said that the Commission followed a non discriminatory procedure or that it had two jurisdictions one relating to investigation and the other to settlement. The jurisdiction was really one	 and the procedure followed also the same. It is not as though the Act provided a separate procedure for purposes of effecting a settlement; nor is this a case where a settlement has been made without applying any of the provisions relating to investigation. A full investigation was made	 and after the assessee had been subjected to the drastic and summary procedure under the Act	 he was told what the result of the investigation was. Then	 he made an application for settlement	 which was approved by the Commission under section 8A. We are accordingly of the view that the learned Attorney General has failed to make out his case that (1) Muthia 's decision (1) does not apply and (2) the settlement under section 8A of the Act is a legally valid settlement by reason of the severability or non application of the discriminatory procedure under the Act in the case of the assessee. This brings me to the second question	 that of waiver of a fundamental right	 which is as important as it is complex. It is a question on which unfortunately we (1) [1955] 2 S.C.R.1247. 583 have not been able to achieve unanimity. It is beset with this initial difficulty that the present appeal is not from a judgment or order rendered after the trial of properly framed issues; it is from an order which merely rejected the prayer of the assessee that his properties attached in execution of the recovery certificate should be released and the amounts paid under the terms of the settlement refunded. The question of waiver was neither raised	 nor tried; and the necessary facts were not ascertained or determined by the revenue authority concerned. Unfortunately	 the filing of a statement of their case by the parties was also dispensed with	 the result whereof has been that the question of waiver has been urged for the first time in the course of arguments here. We have	 however	 heard full arguments on it	 and proceed to consider it on such materials as have been placed before us. It is necessary to make one point clear. The respondents have raised the plea of waiver	 and the onus lies heavily on them to establish the essential requirements in support of the plea. Two points arise in this connection: (1) have the respondents established	 on the materials before us	 the necessary facts on which a plea of waiver can be founded ; and (2) if so	 can a fundamental right guaranteed by the Constitution be waived at all. If the first point is answered in the negative	 the second point need not be answered in the abstract. On behalf of the respondents	 it has been submitted that assuming (without conceding) that the discriminatory provisions of the Act were applied in the case of the assessee before he asked for a settlement	 the materials on record show that he never objected to the procedure adopted	 voluntarily asked for a settlement	 got by the settlement the benefit. of reducing his liability for both tax and penalty	 and paid without demur the following instalments (some even after Muthia 's decision (1) ) (1) [1955] 2 S.C.P. 1247. 584 Payments made up to April 55 10	000 Payment made on 10 5 55 5	000 19 6 55 5	000 7 7 55 5	000 13 8 55 5	OOO 7 9 55 5	000 15 10 55 5	000 10 11 55 5	000 15 12 55 5	000 8 2 56 5	000 13 2 56 5	000 7 3 56 5	000 14 5 56 5	000 19 5 56 5	000 13 6 56 5	000 6 8 56 5	000 7 9 56 5	000 9 10 56 5	000 10 11 56 5	000 23 12 56 5	000 14 1 57 5	000 29 3 57 5	000 4 6 57 5	000 8 9 57 8	000 1	28	000 The learned Attorney General has in this connection referred us to the application for settlement which the assessee had made to the Commission	 wherein the following statements were made: " in view of the fact that though no disclosure statement had been made before the submission of his reports by the authorised official		 still during the enquiry before the Commission		 the assessee and his auditors admitted their liability to tax in respect of the aforesaid sum of Rs. 4	47	915	 the Commission was of the opinion that the assessee should be granted the benefit of a settlement on the lower concessional basis of payment of 75 per cent. of the undisclosed income by way of tax. The Commission was also of the opinion that the assessee should pay by way of penalty a sum of Rs. 14	064. 585 The assessee accepts the conclusions of the Commission as regards the amount of income that escaped assessment	 the tax payable thereon and the penalty payable as aforesaid. " On the basis of these statements	 the learned Attorney General has argued that there is no foundation for the suggestion made on behalf of the assessee that the application for settlement was made " under the pressure of circumstances and in view of the coercive machinery of the Act." He has submitted that the necessary facts on which the plea of waiver is founded have been established	 and he has relied on three cases decided by this Court	 where according to him the effect of the decisions was to accept such a plea in circumstances very similar: Dewan Bahadur Seth Gopal Das Mohta vs The Union of India(1); Baburao Narayanrao Sanas vs The Union of India (2); and Laxnanappa Hanumantappa Jamkhandi vs The Union of India (3) On behalf of the assessee	 it is contended on the contrary that the necessary facts to found a plea of waiver are totally absent in the present case	 and none of the aforesaid three decisions which were all pronounced on the same day proceed on a plea of waiver. Two of the three decisions referred to above relate to a settlement made under section 8A and the third to an order made under section 8(2) of the Act. All the three decisions were pronounced on applications made under article 32 of the Constitution	 and not on any appeal from an order of the revenue authority. In Gopal Das Mohta 's case (1) the argument urged was	 inter alia	 that sections 5	 6	 7 and 8 of the Act were invalid and ultra vires as they contravened the provisions of articles 14	 19 (1) (f)	 and 31 of the Constitution and the prayer made was that the entire proceedings should be quashed as also all orders made by the Central Government in pursuance of the settlement under section 8A. In rejecting the argument and prayer	 Mahajan	 C. J.	 who delivered the 	 judgment of the Court said at p. 776 (1) ; (2) (3) ; 74 586 " In our judgment this petition is wholly misconceived. Whatever tax the petitioner has already paid	 or whatever is still recoverable from him	 is being recovered on the basis of the settlement proposed by him and accepted by the Central Government. Because Of his request for a settlement no assessment was made against him by following the whole of the procedure of the Income tax Act. In this situation unless and until the petitioner can establish that his consent was improperly procured and that he is not bound thereby he cannot complain that any of his fundamental rights has been contravened for which he can claim relief under article 32 of the Constitution. Article 32 of '		the Constitution is not intended for relief against the voluntary actions of a person. His remedy	 if any	 lies in other appropriate proceedings. " There has been a good deal of argument before us as to the true effect of the decision in Gopal Das Mohta 's case (1). While I recognise that the reason stated for the decision	 viz.	 that article 32 is not intended for relief against voluntary actions of a person	 comes very near to saying that a person has waived his protection in a given case since whatever injury he may incur is due to his own act rather than to the enforcement of an unconstitutional measure against him	 I am unable to hold that the decision proceeded strictly on the doctrine of waiver; it is perhaps true to say that some of the observations made therein are of a " Delphic nature to be translated into concreteness by the process of litigating elucidation" (to borrow the words of Frankfurter	 J.	 in Machinists vs Gonzales (2). It seems to me that the decision proceeded more upon the scope of article 32 than upon the doctrine of waiver. I am fortified in this view by the circumstance that in a decision given only a month earlier (see Behram Khurshed Pesikaka vs The State of Bombay (3)) the same learned Chief Justice expressed himself strongly	 though tentatively	 against introducing in our Constitution the doctrine of waiver as enunciated by some American Judges in construing the American Constitution	 without a full discussion of the matter. The report of Gopal (1) [1955] 1 S.C.P. 773. (2) ; 	619 (3) 653	654. 587 Das Mohta 's case (1) does not contain any reference to the doctrine of waiver	 and it is obvious that no 	fuller discussion of the doctrine took place in that case. It is not	 therefore	 reasonable to hold that the effect of Gopal Das Mohta 's case is to uphold the doctrine of waiver. Babu Rao 's case (2) merely followed Gopal Das Mohta (1) and gave no separate reasons. Laxmanappa Jamkhandi 's case (3) dealt with an order under section 8(2) of the Act and said at p. 772: " From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September	 1952	 more than two years before this petition was presented in this Court. The assessment orders under the Income tax Act itself were made against the petitioner in November	 1953. In these circumstances we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal vs Income tax Officer	 Mohindar garh; 	 	 that as there is a special pro. vision in Article 265 of the Constitution	 that no tax shall be levied or collected except by authority of law	 clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax	 and inasmuch as the right conferred by article 265 is not a right conferred by Part III of the Constitution	 it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court. " Here	 again	 there is no reference to the doctrine of waiver	 and the case was decided on the ambit and scope of article 32 of the Constitution. I would hold	 therefore	 that the decisions of this Court relied on by the learned Attorney General do (1) ; (2) (3)[1955] 1 S.C.R.769. 588 not help him in establishing waiver. Let me now examine the circumstances on which the learned Attorney General founds his plea of waiver. Indeed	 it is true that the assessee submitted to the discriminatory procedure applied to him by the Commission; he also asked for a settlement under which he agreed to pay 75% of his alleged tax liability and a small amount of penalty; he made some payment in instalments even after Muthia 's decision in December	 1955. Do these circumstances amount to waiver ? It is to be remembered that in 1953 1954 when the discriminatory procedure of the Act was applied to him and the report against him was made by the Commission on which the settlement is based	 the assessee did not know	 nor had it been declared by a court of competent jurisdiction that section 5(1) of the Act was ultra vires. In his application for a settlement	 he said clearly in paragraph 3 that the Commission announced it as its view that the income	 profits and gains that had escaped assessment in the hands of the assessee was Rs. 4	47	915. The assessee also knew that under the Act this finding was final and binding on him. If in these circumstances	 the assessee made an application for settlement	 can it be said that it is a voluntary or intentional relinquishment of a known right ? I venture to think not. It has been said that ' waiver ' is a troublesome term in the law. The generally accepted connotation is that to constitute ' waiver '	 there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right	 or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right; estoppel is a rule of evidence. (See Dawson Bank Limited vs Nippon Menkwa Kabushiki Kaisha) (1). What is the known legal right which the assessee intentionally relinquished or agreed to release in 1953 1954 ? He did not know then that any part of the Act was invalid	 and I doubt if in (1) (1935) L.R.62 I.A.100	108. 589 the circumstances of this case	 a plea of 'waiver ' can be founded on the maxim of 'ignorance of law is no excuse '. I do not think that the maxim 'ignorance of law is no excuse ' can be carried to the extent of saying that every person must be presumed to know that a piece of legislation enacted by a legislature of competent jurisdiction must be held to be invalid	 in case it prescribes a differential treatment	 and he must	 therefore	 refuse to submit to it or incur the peril of the bar of waiver being raised against him. I do not think that such pre science is a necessary corollary of the maxim. On the contrary	 the presumption	 if any	 which operated at the relevant time was the presumption that a law passed by a competent legislature is valid	 unless declared unconstitutional by a court of competent jurisdiction. Furthermore	 I do not think that any inference of waiver can be retrospectively drawn from the instalments paid in 1956 57	 particularly when the question of refund of the amounts already paid is no longer a live issue before us. It would	 I think	 be going too far to hold that every unsuspecting submission to a law	 subsequently declared to be invalid	 must give rise to a plea of waiver: this would make constitutional rights depend for their vitality on the accident of a timely challenge and render them illusory to a very large extent. I hold	 therefore	 that the necessary foundation for sustaining the plea of waiver has not been laid in this case	 and the onus being on the respondents	 the plea must fail. In view of my finding that the necessary foundation on facts for sustaining the plea of waiver has not been laid in this case	 it becomes unnecessary to decide	 in the abstract	 the further question if a right guaranteed by any of the provisions in Part III of the Constitution can be waived at all. I am of the view that this Court should indeed be rigorous in avoiding to pronounce on constitutional issues where a reason. able alternative exists; for we have consistently followed the two principles (a) that " the Court will not anticipate a question of constitutional law in 590 advance of the necessity of deciding it " (Weaver on Constitutional Law	 p. 69) and (b) " the Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied " (ibid	 p. 69). My Lord the Chief Justice and my learned brother Kapur	 J.	 have however expressed the view that the fundamental right guaranteed under article 14 cannot be waived; my learned brethren	 Bhagwati and Subba Rao	 JJ.	 have expressed the view that none of the fundamental rights guaranteed by the Constitution can be waived. I greatly regret to have to say that I have come to a conclusion different from theirs with regard to this question	 and as they have thought fit to express their views on it proceed now to explain why I have come to a conclusion different from those of my learned brethren on this question. This question was mooted	 though not fully answered	 in Behram Khurshed Pesikaka 's case (1). Venkatarama Aiyar	 J.	 expressed his views at pages 638 to 643 of the report. Mahajan	 C. J.	 with whom Mukherjea	 Vivian Bose and Ghulam Hasan	 JJ.	 concurred	 expressed his views at pages 651 to 655 of the report	 and my Lord the Chief Justice as Das	 J.	 reserved his opinion on the question. The view which Venkatarama Aiyar	 J.	 expressed was this: if the constitutional provision which has been infringed affects the competence of the legislature which passed the law	 the law is a nullity; as for example	 when a State enacts a law which is within the exclusive competence of the Union; when	 however	 a law is within the competence of the legislature which passed it and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals	 it is not a nullity	 but is merely unenforceable; such unconstitutionality can be waived and in that case the law becomes enforceable. He said that in America this principle was well settled and he referred to Cooley on Constitutional Limitations	 Volume 1	 pages 368 to 371 ; Willis on Constitutional Law at (1) 	 653	 654. 591 pages 524	 531	 542 and 558; Rottschaefer on Constitutional Law at pages 28 and 29 30. He then referred to certain American decisions in support of his views and then said: " The position must be the same under our Constitution when a law contravenes a prescription intended for the benefit of individuals. . It is open to any person whose rights have been infringed to waive it and when there is waiver	 there is no legal impediment to the enforcement of the law. It will be otherwise if the statute was a nullity; in which case it can neither be waived nor enforced. If then the law is merely unenforceable and can take effect when waived	 it cannot be treated as non est and as effaced out of the statute book. " The contrary view expressed by Mahajan	 C. J.	 can be best explained in his own words: " We think that it is not a correct proposition that constitutional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the lawmaking power of a State is restricted by a written fundamental law	 then any law enacted and opposed to fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of want of legislative power. The legislative power of the Parliament and the State legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of the Constitution. " His Lordship then referred to article 13 of the Constitution and said that it was a clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which came into conflict with Part III of the Constitution. His Lordship added: " In our opinion the doctrine of	 waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. . Without finally expressing an opinion on this question	 we 592 are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of the Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the 	preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice	 social	 economic and political; liberty of thought	 expression	 belief	 faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit	 though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can	 have no application to provisions of law which have been enacted as a matter of constitutional policy. " It would appear that the two main reasons which Mahajan	 C. J.	 gave in support of the views expressed by him were these. Firstly	 he held that the effect of article 13 of the Constitution was to prohibit the State from making any laws which came into conflict with Part III of the Constitution and he recognised no such distinction as was drawn by Venkatarama Aiyar	 J.	 between absence of legislative power (that is	 incompetence of the legislature) and non observance of provisions which operate merely as a check on the exercise of legislative power. He thought that absence of legislative power and check on the exercise of legis lative power were both aspects of want of legislative power. Secondly	 he referred to the preamble and the scheme of Part III of the Constitution in support of his view that the doctrine of waiver did not apply. I shall take these reasons in the order in which I have stated them. First	 as to the effect of article 13 of the Constitution. Article 13 is in two parts: the first part deals with " all laws in force in the territory of India immediately before the commencement of this Constitution " 'and says that so far as such laws are inconsistent with the provisions of Part III	 they shall to the extent of such inconsistency be void; the second part deals with laws made after the commencement of the Constitution and says that " the State shall not make any law which takes. away or abridges the rights conferred by Part III " of the Constitution and any law made in contravention of cl. (2) of article 13 shall to the extent of the contravention be void. It seems clear to me that the Article itself recognises the distinction between absence of legislative power which will make the law made by an incompetent legislature wholly void	 and exercise of legislative power in contravention of a restriction or check on such power	 which will make the law void to the extent of the inconsistency or contravention. The use	 of the words " to the extent of the inconsistency " and " to the extent of the contravention " indubitably points to such a distinction	 and indeed this was pointed out in Bhikaji Narain Dhakras vs The State of Madhya Pradesh (1). This was an unanimous decision of this Court and several earlier decisions including the decision in Kesavan Madhava Menon 's case (2)	 on which Mahajan	 C. J.	 placed so much reliance	 were considered therein. The decision in Behram Khurshed Pesikaka (3)was also considered	 and then the following observations were made with regard to article 13 of the Constitution at p. 598 " Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution	 as was held in Keshavan Madhava Menon 's case. The law continued in force even after the commencement of the Constitution	 with respect to persons who were not citizens and could not claim the fundamental right. In short	 article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with article 19(1)(g) read with el. (6) as it then stood ineffectual	 nugatory and devoid of any legal (1) [1055] 2 S.C.R. 589 (2) ; (3) 	653. 654. 75 594 force or binding effect only in respect of the exercise of the fundamental right on or after the date of the commencement of the Constitution. . All laws	existing or future	 which are inconsistent with the provisions of Part III of our Constitution are	 by the express provision of article 13	 rendered void I to the extent of such inconsistency '. Such laws were not dead for all purposes. " The aforesaid view expressed in Bhikaji Narain 's case (1) was accepted in many later decisions including the decision in Muthia 's case (2). The same distinction was again referred to in another unanimous decision of this Court in The State of Bombay vs R.M.D. Chamarbaugwala (3) where at p. 885 it was observed: The Court of Appeal has rightly pointed out that when the validity of an Act is called in question	 the first thing for the court to do is to examine whether the Act is a law with respect to a topic assigned to the particular Legislature which enacted it. if it is	 then the court is next to consider whether	 in the case of an Act passed by the Legislature of a Province now a State)	 its operation extends beyond the boundaries of the Province or the State	 for under the provisions conferring legislative powers on it such Legislature can only make a law for its territories or any part thereof and its laws cannot	 in the absence of a territorial nexus	 have any extra territorial operation. If the impugned law satisfies both these tests	 then finally the court has to ascertain if there is anything in any other part of the Constitution which places ~any fetter on the legislative powers of such Legislature. The impugned law has to pass all these three test. " Therefore	 the mere use of the word ~(6 void " in article 13 does not necessarily militate against the application of the doctrine of waiver in respect of the provisions contained in Part III of our Constitution. Under the American Constitution also	 a law made in violation of a constitutional guarantee is struck down	 because under article VI of that Constitution	 " the Constitution and the laws of the United States which (1) ; (2) ; (3) ; 595 shall be made in pursuance thereof. . shall be the supreme law of the land. " I am unable	 therefore	 to accept the view that article 13 shows that the doctrine of waiver can never be applied in respect of the provisions in Part III of the Constitution. Let me now go to the second reason. Is there any thing in the preamble and the scheme of our Constitution	 with particular reference to Part III	 which will make the doctrine of waiver inapplicable ? Let me first place the two preambles side by side: Premple to our Premple to the American Constitution. Constitution	1787. "We the people of India "We the people of the United having solemny resolved to States	 in order to form a constitute India into a so more perfect Union	establish vereign democratic republic justice	insure domestic tra and to secure to all its ci nquillity	provide for the tizens:justice	social	ecc common defence	promote the nomic and political; liber general welfare	and secure ty of though	expression	 the blessing of liberty to belief	faith and worship; ourselves and our posterity equality of status and of do ordain and establish opportunity;and to promote this Constitution for the among them all fraternity United State of America." assuring the dignity of the individual and the unity of the nation;in our Constitu ent Assemply this twenty sixth day of November	1949 do hereby adopt	enact and give to ourselves this Co nstitution. " 596 American Constitution were : (a) to form a more perfect Union; (b) to establish justice; (c) to insure domestic tranquillity; (d) to promote general welfare; and (e) to secure the blessings of liberty. In our Constitution	 the emphasis is on the Welfare State on Justice	 Liberty	 Equality and Fraternity. But the question before us is the limited question of the application of the doctrine of waiver. I do not find any. thing in the two preambles which will make the doctrine applicable in one case and not applicable in the other. It is necessary to refer here to one important distinction between the two Constitutions. Speaking broadly	 the American Constitution of 1787	 except for defining the enumerated powers of the Federal Government and limiting the powers of the States	 was an outline of government and nothing more. Its provisions were written in general language and did not provide minute specifications of Organisation or power. It contemplated subsequent legislation and interpretation for carrying the provisions into effect. In other words	 it was early recognised that the Constitution was not self executing. The Indian Constitution is more detailed	 and in Part III of the Constitution are provisions which not merely define the rights but also state to what extent they are subject to restrictions in the interests of general welfare	 etc. In other words	 there is an attempt at adjustment of individual rights with social good	 and in that sense the limitations or restrictions are also defined. But I do not think that this distinction has any particular bearing on the question at issue before us. The rights as also the restrictions are justiciable	 and an interpretation of the rights given and of the restrictions imposed	 by courts of competent jurisdiction is contemplated. Indeed	 I recognise that there is a constitutional policy behind the provisions enacted in Part III of the Constitution. In a	 sense	 there is a legislative policy in all statutory enactments. In my opinion	 the crucial question is not whether there is a constitutional or legislative policy behind a particular provision	 but the question is is the provision meant 597 primarily for the benefit of individuals or is it for the benefit of the general public ? That distinction has	 I think	 been recognised in more than one decision. Take	 for example	 an ordinary statutory enactment like section 80 of the Code of Civil Procedure which says that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after a notice in writing has been given	 etc. There is undoubtedly a reason of public policy behind this provision	 but it is open to the party for whose benefit the vision has been made to waive notice and indeed the party may be estopped by his conduct from pleading the want of notice. As the Privy Council pointed out in AL. Villavar Chettiar vs Government of the Province of Madras (1)	 there is no inconsistency between the propositions that the provisions of a section are mandatory and must be enforced by the court and that they may be waived by the authority for whose benefit they are provided. The question then is is there anything in the statute which militates against the application of the doctrine of waiver to such right	 subject to the safeguards and precautions necessary for the application of the doctrine	 provided the right is for the benefit of individuals ? I am conscious that rights which the Constitution itself characterises as fundamental must be treated as such and it will be wrong to whittle them down. But are we whittling down fundamental rights when we say that the question of waiver of fundamental rights cannot be answered in the abstract by a general affirmative or a general negative; the question must always depend on (a) the nature of the right guaranteed and (b) the foundation on the basis of which the plea of waiver is raised. It is to be remembered that the rights guaranteed by Part III of the Constitution are not confined to citizens alone. Some of the rights are guaranteed to non citizens also. Moreover	 they are not all rights relating to justice	 liberty	 equality and fraternity; some of the provisions define the rights (A) (1947) L.R. 74 I.A. 223	 228. 698 while others indicate the restrictions or checks subject to which the rights are granted. Article 33	 for example	 does not give any right to any person; on the contrary it gives power to Parliament to modify the rights conferred by Part III in their application to persons. Article 34 lays down a conferred by Part III while in any area. It is not	 there fore	 quite correct to say that all the provisions in Part III grant fun amental rights	 though the heading is 'Fundamental Rights '. There is	 I think	 a three fold classification: (1) a right granted by an ordinary statutory enactment; (2) a right granted by. the Constitution; and (3) a right guaranteed by Part III of the Constitution. With regard to an ordinary statutory right there is	 I think	 no difficulty. It is well recognised that a statutory right which is for the benefit of an individual can in proper circumstances be waived by the party for whose benefit the provision has been made. With regard to a constitutional right	 it may be pointed out that there are several provisions in our Constitution which do not occur in Part III	 but which yet relate to certain rights; take	 for example	 the rights relating to the Services under the Union and the States in Part XIV. I do not think that it can be seriously contended that a right which is granted to a Government servant for his benefit cannot be waived by him	 provided no question of jurisdiction is involved. I may refer in this connection to the provisions in Part XIII which relate to trade	 commerce and intercourse within the territory of India. These provisions also impose certain restrictions on the legislative powers of the Union and of the States with regard to trade and commerce. As these provisions are for the benefit of the general public and not for any particular individual	 they can not be waived	 even though they do not find place in Part III of the Constitution. Therefore	 the crucial question is not whether the rights or restrictions occur in one part or other of the Constitution. The crucial question is the nature of the right given: is it for the benefit of individuals or is it for the general public? 599 That	 in my opinion	 is the true test. I may here state that the source of the right contractual or statutory is not the determining factor. The doctrine of waiver is grounded on the principle that a right	 statutory or otherwise	 which is for the benefit of an individual can be waived by him. I am aware that a right which is for the benefit of the general public must in its actual operation relate to particular individuals	 in the same way as a right for the benefit of individuals will in its actual operation arise in connection with individual A or individual B. The test is not whether in its operation it relates to an individual. The test is for whose benefit the right has been primarily granted for the benefit of the general public or for individuals ? Let me now apply this test to some of the provisions in Part III of the Constitution. These provisions have been classified under different heads: (1) right to equality	 (2) right to freedom	 (3) right against exploitation	 (4) right to freedom of religion	 (5) cultural and educational rights	 (6) right to property and (7) right to constitutional remedies. There can be no doubt that some of these rights are for the benefit of the general public. Take	 for example	 article 23 which prohibits traffic in human beings	 etc ; so also article 24 'which says that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment. I do not wish to multiply examples and it is sufficient to state that several of these rights are rights which are meant primarily for the benefit of the general public and not for an individual. But can we say the same thing in respect of all the rights ? Let us take article 31	 which says that no person shall be deprived of his property save by authority of law and that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation	 etc. Take a case where a man 's property is acquired under a law which does not fix the amount of compensation or specify the principles on which or the manner in which the compensation is to be determined and given. The man whose 600 property is taken may raise no objection to the taking of his property under such law. Indeed	 he may expressly agree to Government taking his land for a public purpose under the law in question	 though it does not comply with the requirements as to compensation. Can such a man after two or three years change his mind and say that the law is invalid and his land on which a school or a hospital may have been built in the meantime should be restored to him	 because he could not waive his fundamental right ? In my opinion	 if we express the view in the abstract that no fundamental right can ever be waived	 many startling and unforeseen results may follow. Take another example. Suppose a man obtains a permit or a licence for running a motor vehicle or an excise shop. Having enjoyed the benefit of the permit for several years	 is it open to him to say when action is proposed to be taken against him to terminate the licence	 that the law under which the permit was granted to him was not constitutionally valid ? Having derived all the benefit from the permit granted to him	 is it open to him to say that the very Act under which a permit was granted to him is not valid in law ? Such and other startling results will follow if we decide in the abstract	 by a general negative	 that a fundamental right can never be waived. Take article 32	 which is a right to a constitutional remedy	 namely	 the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III. It is now well settled by several decisions of this court that the right under article 32 is itself a fundamental right. Suppose a person exercises that right and initiates appropriate proceedings for enforcement of a fundamental right ' Later he thinks better of it and withdraws his application. Still later he changes his mind. Can he then say that he could not waive his right under article 32 and the order passed on his application for withdrawal had no legal validity ? We may take still another example. Under article 30(1) of the Constitution	 all minorities	 whether based on religion or language	 have the right to establish and administer educational institutions of 601 their choice. Suppose	 there is a minority educational institution and the minority has the right to administer that institution	 but they want grant from Government. The minority may have to surrender part of its right of administration in order to get Government aid. Can the minority waive its right? Such a question arose for consideration in the advisory opinion which we gave in connection with the Kerala Education Bill and 	 so far as I have been able to understand	 the effect of our opinion is that the minority can surrender part of its right of administration of a school of its own choice in order to get aid from Government. If we now hold that the minority can never surrender its right	 then the result will be that it will never be able to ask for Government aid. I do not see any such vital distinction between the provisions of the American Constitution and those of our Constitution as would lead me to the conclusion that the doctrine of waiver applies in respect of constitutional rights guaranteed by the American Constitution but will not apply in respect of fundamental rights guaranteed by the Indian Constitution. Speaking generally	 the prohibition in Part III is against the State from taking any action in violation of a fundamental right. The word 'State ' in that Part includes the Government and Parliament of India as also the Government and Legislature of each of the States and also all local or other authorities within the territory of India or under the control of the Government of India. The American Constitution also says the same thing in effect. By article VI it states that the Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land. It is well settled in America that the first ten amendments to the original Con stitution were substantially contemporaneous and should be construed in pari materia. In many of the amendments the phraseology used is similar to the phraseology of the provisions of Part III of our Constitution. The position under the American Constitution is 76 602 well settled and a succinct statement of that position will be found in Rottschaefer on Constitutional Law	 pp. 28 29. The learned author has summarised the position thus: " There are certain constitutional provisions that may be waived by the person for whose protection they were intended. A person who has waived that protection in a given instance may not thereafter. raise the issue that his	 constitutional rights have been infringed in that instance	 since whatever injury he may incur is due to his own act rather than to the enforcement of an unconstitutional measure against him. A person who would otherwise be entitled to raise a constitutional issue is sometimes denied that right because he is estopped to do so. The factor usually present in these cases is conduct inconsistent with file present assertion of that right	 or conduct of such character that it would be unjust to others to permit him to avoid liability on constitutional grounds. A person may not question the constitutionality of the very provision on which he bases the right claimed to be infringed thereby	 nor of a provision that is an integral part in its establishment or definition. The acceptance of a benefit under one provision of an Act does not ordinarily preclude a person from asserting ' the invalidity of another and severable provision thereof	 but there are exceptions to this rule. The. ' promoters of a public improvement have been denied ' the right to contest the validity of the rule apportioning its cost over the benefited lands	 and a person who has received the benefits of a statute may not there ' after assert its invalidity to defeat the claims of those	 against whom it has been enforced in his own favour. A state is estopped to claim that its own statute deprives it. of its property without due process of law but it is permitted to assert that its own statute invades rights that its constitution confers upon it. Prior inconsistent conduct will not	however preclude a person from asserting the	 invalidity of an act if under all the circumstances its assertion involves no 603 unfairness or injustice to those against whom it is raised. " The learned Attorney General placed reliance on the following decisions: (1) Pierce vs Somerset Railway (1); (2) Wall vs Parrot Silver and Copper Company (2); (3) Pierce Oil Corporation vs Phoenix Refining Company (3) ; (4) Shepard vs Barron(4) ; (5) United States V. Murdock(5); (6) Patton vs United States (6) ; and (7) Adams vs United States (7). The position in America is so well settled that I think it is unnecessary to examine the aforesaid decisions in detail. I need only refer to the observations of Frankfurter	 J.	 in William A. Adam 's case (supra). The observations were made in connection with a case where a trial was held without a jury at the request of the accused person himself in spite of the guarantee of Amendment VI. The observations were " What was contrived as protections for the accused should not be turned into fetters. To assert as an absolute that a layman	 no matter how wise or experienced he may be	 is incompetent to choose between judge and jury as the tribunal for determining his guilt or innocence	 simply because a lawyer has not advised him on the choice	 is to dogmatize beyond the bounds of learning or experience. " I have not been able to find any real reason on the basis of which the decisions given above with regard to the American Constitution can be held to be inapplicable to similar cases arising under the Indian Constitution. Two subsidiary reasons have been given for holding that the position under the Indian Constitution is different. One is that ours is a nascent democracy and	 therefore	 the doctrine of waiver should not apply. With respect	 I am unable to concur in this view. I do not think that we shall be advancing the cause of democracy by converting a fundamental right into a fetter or using it as a means for getting out of an (1) ; (2) (1917) 244.U.S.407. (3) (1922) 259.U.S.125. (4) (1904) 194.U.S.553. (5) (1931) 284.U.S.141. (6) (1930) 281.U.S.276. (7) (1942) 317.U.S.269. 604 agreement freely entered into by the parties. I appreciate that waiver is not to be light heartedly applied	 and I agree that it must be applied with the fullest rigour of all necessary safeguards and cautions. What I seriously object to is a statement in the abstract and "in absolute terms that in no circumstances can a right given by any of the provisions in Part III of the Constitution be waived. Another point taken is that the provisions in Part III embody what are called natural rights ' and such rights have been retained by the people and can never be interfered with. I am unable to acquiesce in this. The expression natural rights ' is in itself somewhat vague. Sometimes	 rights have been divided into natural rights ' and civil rights '	 and natural rights ' have been stated to be those which are necessarily inherent or innate and which come from the very elementary laws of nature whereas civil rights are those which arise from the needs of civil as distinguished from barbaric communities. I am unable	 however	 to agree that any such distinction is apparent from the provisions in Part III of our Constitution: all the rights referred to therein appear to be created by the Constitution. I do not think that Locke 's doctrine of natural rights '	 which was perhaps the authority for the American Declaration of Independence	 played any part in the enactment of the provisions of Part III of our Constitution. The doctrine which has long since ceased to receive general acceptance	 has been thus explained by E. W. Paterson (see Natural Law and Natural Rights	 Southern Methodist University Press	 Dallas	 1955	 p. 61): " The theory of natural rights	 for which we are indebted to the seventeenth century English philosopher	 John Locke	 is essentially different from the theories of natural law just discussed in that it lacked the two important characteristics above mentioned: the concept of an immutable physical order and the concept of divine reason. . He begins with the purpose of justifying the existence of a government with coercive powers. What inconveniences would arise if there were no government? Men would live in a " stage of nature '; to avoid confusion with the 605 political state I shall call this a condition of nature '. In such a condition man would be free to work	 to enjoy the fruits of his labour	 and to barter with others; he would also be free to enforce the law of nature (whose precepts Locke did not define) against every other man. Since Locke was an optimist about human nature he thought men would get along pretty well in this lawless condition. Yet the condition of nature is for Locke a fiction like the assumption of a frictionless machine in mechanics. The chief disadvantages that men in this condition would suffer were	 he thought	 the absence of an established law		 the absence of a known and impartial magistrate to settle disputes	 the absence of a. power sufficient to execute and enforce the judgment of the magistrate. Moved by these inconveniences	 men would enter into a social compact with each other whereby each would transfer to a third person	 the government	 such rights over his person and property as the government must have in order to remove these inconveniences. All other rights	 privileges	 and immunities he reserved	 as a grantor of land conveys the fee simple to his son and reserves a life estate to himself. These reserved rights were natural ' rights because they had originated in the condition of nature and survived the social compact. " There are	 in my opinion	 clear indications in Part III of the Constitution itself that the doctrine of ' natural rights ' had played no part in the formulation of the provisions therein. Take articles 33	 34 and 35 which give Parliament power to modify the rights conferred by Part III. If they were natural rights	 the Constitution could not have given power to Parliament to modify them. Therefore	 I am of the view that the doctrine of 'natural rights ' affords nothing but a foundation of shifting sand for building up a thesis that the doctrine of waiver does not apply to the rights guaranteed in Part III of our Constitution. The true position as I conceive it is this: where a right or privilege guaranteed by the Constitution rests in the individual and is primarily intended for his benefit and does not impinge on the right of others	 it 606 can be waived provided such waiver is not forbidden by law and does not contravene public. policy or public morals. In the case before us	 I have held that there is no foundation on facts to sustain the plea of waiver. Therefore	 I would allow the appeal with costs. The order of the Commissioner of Income tax	 Delhi	 dated January 29	 1958	 must be set aside and all proceedings now pending for implementation of the order of the Union Government dated July 5	 1954	 must be quashed. SUBBA RAO	 J. I have had the advantage of perusing the judgments of my Lord the Chief Justice and my learned brother	 section K. Das	 J. I agree with their conclusion	 but I would prefer to express my opinion separately in regard to the question of the applicability of the doctrine of waiver to the fundamental rights. This case raises a most serious and important question	 viz.	 whether the doctrine of waiver operates on the fundamental rights enshrined in the Constitution	 a question not confined to the immediate purpose of this litigation	 but to the public in general. The question is bound to arise frequently	 and the varying observations already expressed by the learned Judges of this Court would lend scope for conflicting decisions involving parties in unnecessary litigation and avoidable hardship. The question was directly raised and fully argued before us. In the circumstances	 I cannot share the opinion of my learned brother	 section K. Das	 J.	 that this Court should avoid a decision on this question and leave it to be decided in a more appropriate case. The facts have been fully stated by my Lord the Chief Justice in his judgment and I need not restate them. The learned Attorney General contended that in the American Law the principle of waiver was applied to rights created by the Constitution except in cases where the protection of the rights was based upon public policy and that	 by the same analogy	 if no public policy was involved	 even in India	 the person 607 affected by the infringement of the fundamental rights could waive the constitutional protection guaranteed to him. It was said that in the present case the appellant waived his fundamental right under article 14 of the Constitution as the right was only in respect of his liability to tax and he could legitimately waive it. To	 appreciate this argument it would be convenient at the outset to notice the American Law on the subject. Certain rights	 which are sometimes described as the Bill of Rights	 have been introduced by the Amendment; to the Constitution of America. They declare the rights of the people of America in respect of the freedom of religion speech	 press	 assemblage and from illegal seizurs. They guarantee trial by jury in certain criminal and civil matters. They give protection against self incrimination. The Fifth Amendment of the Constitution of the United States prescribes that no person shall be deprived of life. 	 liberty or property without due process of law; nor shall private property be taken for public use without just compensation. The Fourteenth Amendment of the Constitution introduces the rule of due process as a protection against the State action. The said amendments are intended as a protection to citizens against the action of the Union and the States. Though the rights so declared are general and wide in their terms	 the Supreme Court of America	 by a long course of judicial	 interpretation	 having regard to the social conditions ' in that country	 has given content to those rights and imposed limitations thereon in an attempt to reconcile individual rights with social good	 by evolving counterbalancing doctrines of police power	 eminent domain		. and such others. During the course of the evolution. of the law	 attempts were made to apply the doctrine of waiver to the provisions of the Constitution of America. American Courts applied the doctrine with great caution and in applying the same	 laid down definite principles. The said principles were culled out from the various decisions and clearly summarized in the authoritative	 text books on the Constitution of America under different heads: 608 WILLIS ON 'CONSTITUTIONAL LAW ': 1. Self incrimination: The privilege against self incrimination ' like any other privilege	 is one which may be waived. Double jeopardy: Double jeopardy is a privilege and may be waived expressly or impliedly. Immunity against unreasonable searches and seizures: The immunity is one which may be waived and by consent one can make a search and seizure reasonable. Jury Trial: The United States Supreme Court. . held that neither a jurisdictional question nor the interest of the State was involved	 but only the privilege and right of the accused	 and that these were subject to waiver in accordance with the usual rules. Due Process of Law as a matter of jurisdiction: In order to delimit personal liberty by exercising social control	 the branch of the government undertaking to do so must have jurisdiction. If it does not have jurisdiction	 it is taking personal liberty (life	 liberty or property) without due process of law. To this rule there are no exceptions. It cannot be waived. 'COOLEY 'S CONSTITUTIONAL LIMITATIONS ': Where a constitutional provision is designed for	 the protection solely of the property rights of the. citizen	 it is competent for him to waive the protection	 and to consent to such action as would be invalid if taken against his will. In criminal cases the doctrine that a constitutional privilege may be waived must be true to a very limited extent only. A party may consent to waive rights of. property	 but the trial and punishment for. public offences are not within the provinces of individual con. sent or agreement. CORPUS JURIS SECUNDUM: It has been stated supra (p. 1050	 note 32) that the doctrine of waiver extends to rights and privileges 609 of any character	 and since the word ' waiver ' covers every conceivable right	 it is the general rule that a person may waive any matter which affects his property	 and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled	 whether secured by contract	 conferred by statute	 or guaranteed by constitution	 provided such rights and privileges rest in the individual	 are intended 'for his sole benefit	 do not infringe on the rights of others	 and further provided the waiver Of the right or privilege is not forbidden by law	 and does not contravene public policy	 and the principle is recognized that everyone has a right to waive	 and agree to waive	 the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity	 if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large. . As a general rule	 rights relating to procedure and remedy are subject to waiver	 but if a right is so fundamental in its nature as to be regarded by the state as vitally integrated in immemorially established processes of the administration of justice	 it cannot be waived by anyone. The cases cited at the Bar illustrate the aforesaid principles. The doctrine was applied to the obligations under a contract in Pierce vs Somerset Railway (1); to deprivation of property without due process of law in Pierce Oil Corporation vs Phoenix Refining Company(2) and Shepard vs Barron (3) to trial by jury in Patton vs United States (4) and Adams vs United States(5); and to self incrimination in United States vs Murdock (6). It is true	 as the learned counsel for the appellant contended	 that in some of the aforesaid decisions	 observations are in the nature of obiter	 but they clearly indicate the trend of judicial opinion in America. (1) (1898) 43 L. Ed 316; ; (2) ; ; (3) ; ; (4) ; ; (5) ; (6) ; ; 77 610 The American Law on the subject may be summarized thus: The doctrine of waiver can be invoked when the Constitutional or Statutory guarantee of a right is not conceived in public interest or when it does not affect the jurisdiction of the authority infringing the said right. But if the privilege conferred or the right created by the statute is solely for the benefit of the individual	 he can waive it. But even in those cases the Courts invariably administered a caution that having regard to the nature of the right some precau tionary and stringent conditions should be applied before the doctrine is invoked or applied. This leads me to the question whether the fundamental rights enshrined in the Indian Constitution pertain to that category of rights which could be waived. To put it differently	 whether the Constitutional guarantee in regard to the fundamental rights restricts or ousts the jurisdiction of the relevant authorities under the Constitution to make laws in derogation of the said rights or whether the said rights are for the benefit of the general public. At the outset I would like to sound a note of warning. While it is true that the judgments of the Supreme Court of the United States are of a great assistance to this Court in elucidating and solving the difficult problems that arise from time to time	 it is equally necessary to keep in mind the fact that the decisions are given in the context of a different social	 economic and political set up	 and therefore great care should be bestowed in applying those decisions to cases arising in India with different social	 economic and political conditions. While the principles evolved by the Supreme Court of the United States of America may in certain circum stances be accepted	 their application to similar facts in India may not always lead to the same results. It is therefore necessary to consider the nature of the fundamental rights incorporated in the Indian Constitution	 the conditions of the people for whose benefit and the purpose for which they were created	 and the effect of the laws made in violation of those rights. The Constitution of India in its preamble promises to secure to all citizens justice	 social	 economic and 611 political; liberty of thought	 expression	 belief	 faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity of the nation. One of the things the Constitution did to achieve the object is to incorporate the fundamental rights in the Constitution. They are divided into seven categories: (i) right to equality articles 14 to 18; (ii) right to freedom articles 19 to 22; (iii) right against exploitation articles 23 and 24; (iv) right to freedom of religion articles 25 to 28 ; (v) cultural and educational rightsArts. 29 and 30; (vi) right to property articles 31	 31 A and 31B; and (vii) right to Constitutional remediesArts. 32 to 35. Patanjali Sastri	 J.	 as he then was	 pointed out	 in Gopalan vs The	 State of Madras(1)	 that fundamental rights contained in Part III of the Constitution are really rights that are still reserved to the people after the delegation of rights by the people to the institutions of Government both at the Centre and in the States created by the Constitution. Article 13 reads : (1) All laws in force in the territory of India immediately before the commencement of this Constitution	 in so far as they are inconsistent with the pro. visions of this Part	 shall	 to the extent of such inconsistency	 be void. (2) The State shall not make any law which takes away or	 abridges the rights conferred by this Part and any law made in contravention of this clause	 shall	 to the extent of the contravention	 be void. " This Article	 in clear and unambiguous terms	 not only declares that all laws in fore before the commencement of the Constitution and made thereafter taking away or abridging the said rights would be void to the extent of the contravention but also prohibits the State from making any law taking away or abridging the said rights. Part III is therefore enacted for the benefit of all the citizens of India	 in an attempt to preserve to them their fundamental rights against infringement by the institutions created by the Constitution; for	 without that safeguard	 the objects (1) ; 612 adumbrated in the Constitution could not be achieve	 ]. For the same purpose	 the said chapter imposes a limitation on the power of the State to make laws in violation of those rights. The entire part	 in my view	 has been introduced in public interest	 and it is not proper that the fundamental rights created under the various Articles should be dissected to ascertain whether any or which part of them is conceived in public interest and which part of them is conceived for individual benefit. Part III reflects the attempt of the Constitution makers to reconcile individual freedom with State Control. While in America this process of reconciliation was allowed to be evolved by the course of judicial decisions	 in India	 the fundamental rights and their limitations are crystallized and embodied in the Constitution itself; while in America a freehand was given to the judiciary not only to evolve the content of the right but also its limitations	 in the Indian Constitution there is not much scope for such a process. The Court cannot therefore import any further limitations on the fundamental rights other than those contained in Part III by any doctrine	 such as " waiver " or otherwise. I would	 therefore	 hold that the fundamental rights incorporated in Part III of the Constitution cannot be waived. It is said. that such an inflexible rule would	 in certain cases	 defeat the very object for which the fundamental rights are created. I have carefully scrutinized the Articles in Part III of the Constitution of India	 and they do not	 in my view	 disclose any such anomaly or create unnecessary hardship to ' the people for whose benefit the rights are created. Article	 14 embodies the famous principle of equality before the law and equal protection of the laws	 and articles 15 to 18 and article 29(2) relate to particular applications of the rule. The principle underlying these Articles is the mainspring of our democratic form of government and it guarantees to its citizens equal protection in respect of both substantive and procedural laws. If the doctrine of waiver is engrafted to the said fundamental principles	 it will mean that a citizen can agree to be discriminated. ' When one realizes the unequal 613 positions occupied by the State and the private citizen	 particularly in India where illiteracy is rampant	 it is easy to visualize that in a conflict between the State and a citizen	 the latter may	 by fear of force or hope of preferment	 give up his right. It is said that in such a case coercion or influence can be established in a Court of law	 but in practice it will be well nigh impossible to do so. The same reasoning will apply to articles 15 and 16. article 17 illustrates the evil repercussion of the doctrine of waiver in its impact on the fundamental rights. That Article in express terms forbids untouchability; obviously	 a person cannot ask the State to treat him as an untouchable. Article 19 reads: "(1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India ; (e)to reside and settle in any part of the territory of India; (f) to acquire	 hold and dispose of property ; and (g) to practice any profession	 or to carry on any occupation	 trade or business. " The right to freedom is the essential attribute of a citizen under democratic form of government. The freedoms mentioned in article 19 are subject to certain restrictions mentioned in cls. (2) to (6) of that Article. So far as the freedoms narrated in sub cls. (a) to (g) of Cl. (1) of article 19 are concerned	 I cannot visualise any contingency where a citizen would be in a worse position than he was if he could not exercise the right of waiver. In regard to freedom to acquire	 hold and dispose of property	 a plausible argument may be advanced	 namely	 that a citizen should have a right to waive his right to acquire	 hold and dispose of property ; for	 otherwise he might be compelled to acquire and hold his property	 even if he intended to give it up There is an underlying fallacy in this argument. The Article does not compel a citizen to acquire	 hold and 614 dispose of property just as it does not compel a per. son to do any of the acts covered by the other freedoms. If he does not want to reside in any part of the territory of India or to make a speech or to practise any profession	 he is at liberty not to do any of 		these things. So too	 a person may not acquire the property at all or practise any profession but if he seeks to acquire property or practise any profession	 he cannot be told that he has waived his right at an earlier stage to acquire property or practise the profession. A freedom to do a particular act involves the freedom not to do that act. There is an essential distinction between the non exercise of a right and the exercise of a right subject to the doctrine of waiver. So understood	 even in the case of the right covered by sub cl. (f) of cl. (1)	 there cannot be any occasion when a citizen would be worse off than when he had no fundamental rights under the Article. The preservation of the rights under article 19 without any further engrafting of any limitations than those already imposed under the Constitution	 is certainly in the interest of the public ; for	 the rights are essential for the development of human personality in its diverse aspects. Some comment is made in regard to the right covered by el. (3) of article 20	 and it is asked that if a person has no liberty to waive the protection under that clause	 he could not give evidence even if he wanted to give it in his own interest. This argument ignores the content of the right under cl. (3) of article 20. The fundamental right of a person is only that he should not be compelled to be a witness against himself. It would not prevent him from giving evidence voluntarily. Under article 21	 no person shall be deprived of his life or personal liberty except according to procedure established by law and article 22 gives protection against arrest and detention in certain cases. I do not think that any situation can be conceived when a person could waive this right to his advantage. Article 23(1) prohibits traffic in human beings and forced labour. It is not suggested that a person can waive this Constitutional protection. So too	 the right under article 24	 which prohibits employment 615 of children in factories	 cannot be waived. That apart	 so far as this Article is concerned	 no question of waiver can arise as a child cannot obviously waive his right under this Article. Article 25 gives guarantee for religious liberty subject to certain restrictions contained therein. It declares that all persons are equally entitled to freedom of conscience and the right freely to profess	 practise and propagate religion. This right is certainly conceived in the public interest and cannot be waived. So too	 freedom to manage religious affairs	 freedom as to payment Of taxes for promotion of any particular religion and freedom as to attendance at religious instruction or religious worship in certain educational institutions are all conceived to enforce the religious neutrality of the State and it cannot be suggested that they are not in public interest. The cultural and educational rights of the minorities and their right to establish and administer educational institutions of their choice are given for the protection of the rights of the minorities and it cannot be said that they are not in public interest. Article 31	 which prohibits the State from depriving a person of his property save by authority of law or to acquire any property without paying compensation	 is intended to protect the properties of persons from arbitrary actions of the State. This Article is conceived in the interest of the public and a person cannot say that he can be deprived of his property without authority of law or that his land can be acquired without compensation. It is suggested that if a person	 after waiving his fundamental right to property and allowing the State to incur heavy expenditure in improving the same	 turns round and claims to recover the said property	 the State would be put to irreparable injury. Firstly	 no such occasion should arise	 as the State is not expected to take its citizens ' property or deprive them of their property otherwise than by authority of law. Secondly	 if the owner of a property intends to give it to the State	 the State can always insist upon conveying to it the said property in the manner known to law. Thirdly	 other remedies may be open to the 616 recover compensation or damages for the improvements bonafide made or the loss incurred	 having regard to the circumstances of a particular case. These considerations	 in my view	 are of no relevance in considering the question of waiver in the context of fundamental rights. By express provisions of the Constitution	 the State is prohibited from making any law which takes away or abridges the rights conferred by Part III of the Constitution. The State is not	 therefore	 expected to enforce any right contrary to the Constitutional prohibition on the ground that the party waived his fundamental right. If this prohibition is borne in mind	 no occasion can arise when the ' State would be prejudiced. The prejudice	 if any	 to the State would be caused not by the non application of the doctrine of waiver but by its own action contrary to the Constitutional prohibition imposed on it. It is then said that if the doctrine of waiver is to be excluded	 a person can apply to the Supreme Court under article 32 of the Constitution for the relief provided therein	 withdraw the petition	 get the order of the Supreme Court dismissing it and then apply over again for issue of a writ in respect of the same right. The apprehension so expressed is more imaginary than real; for	 it has no foundation either in fact or in law. 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. Articles 33 and 34 contain some of the Constitutional limitations on the application and the enforcement of the fundamental rights. The former. Article confers power on Parliament to modify the rights conferred by Part III of the Constitution in their application to facts and the latter enables it to impose restrictions on the rights conferred by ' that Part	 while martial law is in force in any area. These two Articles	 therefore	 do not create fundamental rights	 but impose limitations thereon and I 617 cannot appreciate the argument that their presence in Part III either derogates from the content of the fundamental rights declared therein or sustains the doctrine of waiver in its application to the said rights. Article 35 confers on the Parliament	 the power to legislate for giving effect to the provisions of Part III to the exclusion of the Legislatures of the	 States. This Article also does not create a fundamental right	 but provides a machinery for enforcing that right. A startling result	 it is suggested	 would flow from the rejection of the doctrine of waiver and the suggestion is sought to be illustrated by the following example : A person takes a permit for several years from the State for running a motor vehicle or an excise shop. Having enjoyed the benefit for several years and when action is proposed to be taken against him to terminate the licence	 he contends that the law under which the permit was granted to him offended his fundamental rights and therefore constitutionally not valid. It is asked whether it would be open to him to say that the very Act under which the permit was granted to him was not valid in law. To my mind	 this illustration does not give rise to any anomaly. Either a person can run a motor vehicle or an excise shop with licence or without licence. On the basis the law is valid	 a licence is taken and the motor vehicle is run under that licence and if that law offends his fundamental right and therefore void	 he continues to ran the business without licence	 as no licence is required under a valid law. The aforesaid illustration does not	 there. fore	 give rise to any anomaly and even if it does	 it does not affect the legal position. I have considered the various provisions relating to the fundamental rights with a view to discover if there is any justification for the comment that without the aid of the doctrine of waiver a citizen	 in certain circumstances	 would be in a worse position than that he would be if he exercised his right. I have shown that there is none. Nor is there any basis for the suggestion that the State would irreparably suffer under certain contingencies; for	 any resulting hardship would be its 78 618 own making and could be avoided if it acted in accordance with law. A large majority of our people are economically poor	 educationally backward and politically not yet conscious of their rights. Individually or even collectively	 they cannot be pitted against the State organizations and institutions	 nor can they meet them on equal terms. In such circumstances	 it is the duty of this Court to protect their rights against themselves. I have	 therefore	 no hesitation in holding that the fundamental rights created by the Constitution are transcendental in nature	 conceived and enacted in national and public interest	 and therefore cannot be waived. That apart	 I would go further and hold that as section 5(1) of the Act XXX of 1947 was declared to be void by this Court in M. Ct. Muthiah vs The Commissioner of Income tax	 Madras (1)	 the appellant can. not	 by the application of the doctrine of waiver	 validate the enquiry made under the said Act. It is suggested that there is a distinction between a case where the enactment is beyond the legislative competence Of the Legislature which made it and the case where the law is unconstitutional on the ground of existence of a constitutional limitation	 that while in the former case the law is null and void	 in the latter case the law is unenforceable and may be revived by the removal of the limitation by an amendment of the Constitution. On this distinction an argument is sought to be built to the effect that as in the present case section 5(1) of the Act XXX of 1947 was declared to be invalid only on the ground that it was hit by article 14 of the Constitution	 the law must be deemed to be on the statute book and therefore the appellant was within his right to waive his constitutional guarantee. I am unable to appreciate this	 argument. The scope of article 13(1) of the Constitution was considered by this Court in Keshavan Madhava Menon vs The state of Bombay (2). This Court by a majority held that article 13(1) of the Constitution does not make (1) ; (2) ; 619 existing laws which are inconsistent with the fundamental rights	 void ab initio	 but only renders such laws unenforceable and void with respect to the exercise of the fundamental rights on and after the date of commencement of the Constitution. Mahajan	 C. J.	 who was a party to that decision	 explained the word 	void ' in article 13(1) of the Constitution in Behram Khurshed Pesikaka vs State of Bombay (1). He observed at page 652 thus: " It is axiomatic that when the law making power of a State is restricted by written fundamental law	 then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of want of legislative power. The legislative power of Parliament and the State Legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights Chapter of the Constitution. " This decision in clear and unambiguous terms lays down that there cannot be any distinction on principle between Constitutional incompetency and Constitutional limitation. In either case	 the Act is void	 though in the latter case	 the pre constitutional rights and liabilities arising under the statute are saved. This Court again dealt with the meaning of the word void ' in Bhikaji Narain Dhakras vs State of Madhya Pradesh (2). There the question was whether an Act 'Which was declared void on the ground of inconsist ency with the Constitution	 can be revived by any subsequent amendment to the Constitution removing the inconsistency. This Court answered the question in the affirmative. Das	 acting C.; J.	 observed at page 598 thus: " As explained in Keshavan Madhava Menon 's case	 the law became void not in toto or for all purposes or for all times or for all persons but only to the extent of such inconsistency that is to	say	 to the extent	 it became inconsistent with the provisions of Part (1) (2) ; 620 III which conferred the fundamental rights on the citizens. It did not become void independently of the existence of the rights guaranteed by Part III. In Short	 Article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with article 19(1)(g) read with clause (6) as it then stood ineffectual	 nugatory and devoid of any legal force or binding effect only with the exercise of the fundamental right on and after the date of the commencement of the Constitution. . . . It is only as against the citizens that they remained in a dormant or moribund condition. In our judgment	 after the amendment of clause (6) of article 19 on the 18th June	 1951	 the impugned Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against non citizens. " This judgment does not say anything different from that expressed in Keshavan Madhava Menon 's case (1) nor does it dissent from the view expressed by Mahajan	 C. J.	 in Behram Khurshed 's case (2). The problem that confronted the learned Judges was a different one and they resolved it by applying the doctrine of "eclipse '. The legal position	 vis a vis	 the law declared to be void either on the ground of legislative incompetence or for the reason of constitu tional limitation	 as stated in the earlier decisions	 remains unshaken by this decision. So long as the inconsistency remains the law continues to be void	 at any rate vis a vis the fundamental rights of a person. We are not concerned in this case with the doctrine of revival; for the inconsistency of section 5(1) of the Act with the fundamental right under article 14 of the Constitution has not been removed by any amendment of the Constitution. So long as it is not done	 the said section is void and cannot affect the fundamental rights of the citizens. In M. Ct. Muthiah vs The Commissioner of Income tax	 Madras (3)	 it was declared that section 5(1) of Act XXX of 1947 was unconstitutional on the ground that it infringed the fundamental rights of the citizens under article 14 of the Constitution. (1) ; (2) (3) ; 621 Under article 141 of the Constitution	 the law declared by the Supreme Court is binding on all the Courts in India. It follows that the Income tax Commissioner had no jurisdiction to continue the proceedings against the appellant under Act XXX of 1947. If the Commissioner had no jurisdiction	 the appellant could not by waiving his right confer jurisdiction on him. The scope of the doctrine of waiver was considered by this Court in Behram Khurshed 's case(1). There a person was prosecuted for an offence under section 66(b) of the Bombay Prohibition Act and he was sentenced to one month 's rigorous imprisonment. One of the questions raised there was whether section 13(b) of the Bombay Prohibition Act	 having been declared to be void under article 13(1) of the Constitution in so far as it affected the consumption or use of liquid medicinal or toilet preparation containing alcohol	 the prosecution was maintainable for infringement of that section. The Court held that in India once the law has been struck down as unconstitutional by the Supreme Court	 no notice can be taken of it by any Court	 because	 after it is declared as unconstitutional	 it is no longer law and is null and void. Even so	 it was contended that the accused had waived his fundamental right and therefore he could not sustain his defence. Mahajan	 C. J.	 delivering the judgment of the majority	 repelled this contention with the following observations at page 653: " The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice	 social	 economic and political ; liberty 	of thought	 expression	 belief	 faith and worship; (1) 622 equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for the individual benefit though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy. Reference to some of the articles	 inter alia	 Articles 15(1) 20	 21	 makes the proposition quite plain. A citizen cannot get discrimination by telling the State 'You can discriminate '	 or get convicted by waiving the protection given under Articles 20 and 21. " On the question of waiver	 Venkatarama Aiyar	 J.	 in his judgment before review	 considered the American decisions and was inclined to take the view that under our Constitution when a law contravenes the provisions intended for the benefit of the individual	 it can be waived. But the learned Judge made it clear in his judgment that the question of waiver had no bearing to any issue of fact arising for determination in that case but only for showing the nature of the right declared under article 19(1)(f) and the effect in law of a statute contravening it. Das	 J.	 as he then was	 in his dissenting judgment	 did not state his view on this question but expressly reserved it in the following words: " In coming to the conclusion that I have	 I have in a large measure found myself in agreement with the views of Venkatarama Aiyar	 J.	 on that part of the case. I	 however	 desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment	 particularly those relating to waiver of 'unconstitutionality	 the fundamental rights being a mere check on the legislative power or the effect of the declaration under article 13(1) being relatively void '. On those topics prefer to express no opinion on this occasion. " I respectfully agree with the observations of Mahajan	 C. J. For the aforesaid reasons	 hold that the doctrine of waiver has no application in the case of fundamental rights under our Constitution. 623 ORDER The appeal is allowed. The order of the Income Tax Commissioner	 Delhi	 dated January 29	 1958	 is set aside and all proceedings now pending for implementation of the order of Union Government dated July 5	 1954	 are quashed. The appellant shall get costs of this appeal.

Summary:
The two questions for determination in this appeal were	 (1) whether a settlement under section 8A of the Taxation of Income (Investigation Commission) Act	 1947 (30 Of 1947) made after the commencement of the Constitution was constitutionally valid and (2) whether the waiver of a fundamental right was permissible under the Constitution. The appellant 's case was on July 22	 1948	 referred by the Central Government under section 5(1) of the Act to the Investigation Commission. for investigation and report. The Commission directed the authorised official under section 6 of the Act to examine the appellant 's accounts. He submitted his final report by the end of 1953. The Commission considered the report heard the assessee and came to the conclusion that Rs. 4	47	915 had escaped assessment. Thereupon the appellant on May 20	 1954	 applied to the Commission for a settlement of his case under section 8A of the Act	 agreeing to pay Rs. 3	50	000 by way of tax and penalty at the concessional rate. The Commission reported to the Central Government approving of the settlement	 the Central Government accepted it and it was recorded by the Commission. The Central Government directed the recovery of the said amount under section 8A(2) of the Act. The appellant was permitted to make payments by monthly instalments of Rs. 5	000 and the total amount thus paid up to September 8	 1957	 aggregated to Rs. 1	28	000. In the meantime the Income Tax Officer issued a certificate and certain properties of the appellant were attached. Relying on the decisions of this Court in Suraj Mall Mohta and Co. vs A. V. Visvanatha Sastri	 ; and M. Ct. Muthiah vs The Commissioner of Income tax	 Madras	 ; 	 the appellant applied to the Commissioner of Income tax challenging the validity of the settlement made under section 8A of the Act on the ground that section 5(1) Of the Act on which it was founded had been declared void by this Court	 and claimed that his properties might be released from attachment and the amount paid under the settlement might be refunded to him. 	 On January 29	 1958	 the Commissioner of Income Tax sent a reply to the appellant maintaining that the settlement was valid and 529 that the appellant was bound thereunder to pay up the arrears of instalments and requesting him to continue to pay in future. Against this decision of the Commissioner of Income Tax the. appellant came up to the Supreme Court by special leave. It was contended on behalf of the respondent that the Act laid down two distinct and separate procedures	 one for investigation and the other for settlement and it was the former alone and not the D	 latter that was affected by the decisions of this Court. and that the appellant by voluntarily entering into the settlement had waived his fundamental right founded on article 14 of the Constitution. Held (Per Curiam)	 that both the contentions must fail. It was not correct to say that the Taxation of Income (In vestigation Commission) Act	 1947	 laid down two different 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 terms of such settlement and that while the decision of this Court in M. Ct. Muthiah vs The Commissioner of Incometax	 Madras	 declaring section 5(1) of the Act to be discriminatory and therefore void	 affected only the former procedure and not the latter. The Act laid down but one procedure and in entertaining a proposal for settlement as in the investigation itself the Commission exercised the same jurisdiction	 and powers and followed the one and the same procedure as laid down by sections 5	 6 and 7 Of the Act. Since the settlement in the instant case was no exception to that rule	 it was covered by the decision and must be held to be violative of article 14 Of the Constitution. M. Ct. Muthiah vs The Commissioner of Income tax	 Madras	 ; 	 applied. The observations made in the majority judgment of this Court in Syed Qasim Razvi vs The State of Hyderabad	 [1953] S.C.R. 589	 must be kept strictly confined to the special facts of that case and had no application to the facts of the present case. Syed Qasim Razvi vs The State of Hyderabad	 [1953] S.C.R. 589	 held inapplicable. Per Das	 C. J.	 and Kapur J. There could be no waiver of the fundamental right founded on article 14 Of the Constitution and it was not correct to contend that the appellant had by entering into the settlement under section 8A of the Act	 waived his fundamental right under that Article. Article 14 was founded on a sound public policy recognised and valued all over the civilised world	 its language was the language of command and it imposed an obligation on the State of which no person could	 by his act or conduct	 relieve it. As it was not strictly necessary for the disposal of this case	 the question whether any other fundamental right could be waived need not be considered in this connection. Laxamanappa Hanumantappa jamkhandi vs The Union of India; 	 ; Dewan Bahadur Seth Gopal Das Moht 67 530 vs The Union of India	 [1955] 1 S.C.R.773; Baburao Narayanrao Sanas vs The Union Of India	 [1954] 26 I.T.R. 725; Subedar vs State	 A.I.R. 1957 All. 396 and Pakhar Singh vs The State	 A.I.R. 1958 Punj. 294	 distinguished and held inapplicable. Per Bhagwati and gubba Rao	 jj. There could be no waiver '.	not only of the fundamental right enshrined in article 14 but also of any other fundamental right guaranteed by Part III of the Constitution. The Constitution made no distinction between fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of the public policy. There could	 therefore	 be no justification for importing American notions or authority of decided cases to whittle down the transcendental character of those rights	 conceived in public interest and subject only to such limitations as the Constitution had itself thought fit to impose. Article 13(2) was in terms a constitutional mandate to the State in respect of all the fundamental rights enacted in Part III of the Constitution and no citizen could by waiver of any one of them relieve the State of the solemn obligation that lay on it. The view expressed by Mahajan	 C. J.	 in Behram Khurshed Pesikaka vs The State of Bombay	 	 correctly laid down the law on the point. Since the arguments in the instant case had covered the entire field of fundamental rights	 there was no reason why the answer should be confined to article 14 alone. Behram Khurshed Pesikaka vs The State of Bombay	 ; State of Travancore Cochin vs The Bombay Co.	 Ltd.	 and The State of Bombay vs R. M. D. Chamarbaugwala; 	 	 referred to. Per section K. Das	 J. It seems clear that article 13 itself re cognises the distinction between absence of legislative power which will make the law made by an incompetent legislature wholly void	 and exercise of legislative power in contravention of a restriction or check on such power	 which will make the law void to the extent of the inconsistency or contravention; therefore the mere use of the word " void " in article 13 does not necessarily militate against the application of the doctrine of waiver in respect of the provisions contained in Part III of the Constitution. Behram Khurshed Pesikaka vs The State of Bombay	 	 considered. Bhikaji Narain Dhakyas vs The State of Madhya Pradesh	 ; ; M. Ct. Muthiah vs The Commissioner of Income tax	 Madras	 ; and The State of Bombay vs R.M.D. Chamarbaugwala	 ; 	 referred to. There was nothing in the two preambles to the Indian and the American Constitutions that could make the doctrine of waiver applicable to the one and not to the other; since the doctrine 531 applied to the constitutional rights under the American Constitution	 there is no reason why it should not apply to the fundamental rights under the Indian Constitution. Case law considered. But it must be made clear that there is no absolute rule	 or one formulated in the abstract	 as to the applicability of that doctrine to fundamental rights and such applicability must depend on (1) the nature of fundamental right to which it is sought to be applied and (2) the foundation on the basis of which the plea is raised. The true test must be whether the fundamental right is one primarily meant for the benefit of individuals or for the benefit of the general public. Where	 therefore	 the Constitution vested the right in the individual	 primarily intending to benefit him and such right did not impinge on the rights of others	 there could be a waiver of such right provided it was not forbidden by law or did not contravene public policy or public morals. As in the instant case the respondents who had raised the plea	 had failed to prove the necessary facts on which it could be sustained	 the plea of waiver must fail. Per Subba Rao	 J. Apart from the question as to whether there could be a waiver in respect of a fundamental right	 section 5(1) of the Taxation of Income (Investigation Commission) Act	 1947	 having been declared void by this Court in M. Ct. Muthiah vs The Commissioner of Income tax	 Madras	 as being violative of the fundamental right founded on Art ' 14 Of the Constitution and such decision being binding on all courts in India	 the Commissioner of Income tax had no jurisdiction to continue the proceedings against the appellant under that Act and the appellant could not by a waiver of his right confer jurisdiction on him. No distinction could be made under article 13(1) of the Con stitution between the constitutional incompetency of a legislature and constitutional limitation placed on its power of legislation	 for a statute declared void on either ground would continue to be so	 so long as the inconsistency continued. As the inconsistency of section 5(1) of the Act with article 14 continued	 it must continue to be void. Keshavan Madhava Menon vs The State of Bombay	 [1951] S.C.R. 228; Behram Khurshed Pesihaka vs State of Bombay	 and Bhikaji Narain Dhakras vs State of Madhya Pradesh	 ; 	 referred to.