“24. An apprehension was, however, voiced that the principle of secrecy enshrined in Section 94 of the Act having been enacted in public interest and it being a prohibition based on public policy, it cannot be waived. Reliance was placed on Basheshar Nath v. CIT [AIR 1959 SC 149 : 1959 Supp 1 SCR 528, 610 : 35 ITR 190] where the question whether 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, was examined. It was held that if the privilege conferred or the right created by the statute is solely for the benefit of the individual, he can waive it. It was, however, said that even in those cases the courts invariably administered a caution that having regard to the nature of the right some precautionary and stringent conditions should be applied before the doctrine is invoked or applied. In Bikram Khurshed Pesikaka v. State of Bombay [AIR 1955 SC 123 : (1955) 1 SCR 613, 654 : 1955 SCJ 73] it was observed that 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. Undoubtedly, where a prohibition enacted is founded on public policy courts should be slow to apply the doctrine of waiver but this approach overlooks the fact that if a privilege was granted for the benefit of an individual, in the instant case for the benefit of voter, even if it was conferred to advance a principle enacted in public interest nonetheless the person for whose benefit the privilege was enacted has a right to waive it because the very concept of privilege inheres a right to waive it. And where a voter waives his privilege not to be compelled to disclose for whom he voted, if he wants to run the gamut of risk of disclosure it does not violate any other principle because it was enacted to help him to vote free from any inhibition or fear or apprehension of being subjected to some calamity. To hold otherwise is to perpetuate the very mischief which is sought to be suppressed. The inescapable conclusion is that Section 94 enacts a qualified privilege in favour of a voter not to be compelled to disclose for whom he voted but if he chooses to volunteer the information Section 94 is not violated.”
