Doctrine of Prospective Overruling

CHAPTER—I

Introduction

1.1 Doctrine of Prospective Overruling – Meaning
The basic meaning of prospective overruling is to construe an earlier decision in a way so as to suit the present day needs, but in such a way that it does not create a binding effect upon the parties to the original case or other parties bound by the precedent. The use of this doctrine overrules an earlier laid down precedent with effect limited to future cases and all the events that occurred before it are bound by the old precedent itself. In simpler terms it means that the court is laying down a new law for the future.
There are two aspects to the doctrine of prospective overruling. The first aspect was laid down by Lord Blackstone, according to this theory Judges don't make the law; their job is to define the law. They should however follow the doctrine of Stare Decisis. The doctrine of Stare Decisis means "to stand by precedent and not to disturb the settled point of law"1; the logic behind this doctrine is that people should not get confused as to what is legal and what is illegal.
1. N.K Jayakumar “Judicial Process in India” APH Publishing Corporation.
The advocates should be able to clarify to their clients the exact law and not get confused themselves. So accordingly it connotes that it should be up to the judges to decide which decision should be affected retrospectively and which one should be adapted prospectively. This theory is in total conflict with the Doctrine of Prospective Overruling.
The second aspect was propounded by Cardozo J. and Lerned Hand J. who were strongly in support of the Doctrine of Prospective Overruling. According to them if this doctrine is not given effect it will wash away the whole dynamic nature of law, it will be against the concept of judicial activism. Cardozo J. was of the view that the law should keep up with the changes occurring in the society, the law has to be dynamic and not static. If in a new and changed society, the citizens are bound by an old law it will lead to grave injustice. The citizens whose lives are bound by the law of land should be given laws according to changed needs. Therefore the doctrine of Prospective Overruling is an important tool in the hand of judiciary to give fair and timely justice to its citizens.
The Doctrine of prospective overruling supplies the gap in legal theory and offers the doctrinal foundations for an extended view of judicial function with built in discretion in the Court to indicate the time dimension and the type of cases for which the holding in a particular case shall have operative effect. Mathew J. explains the thrust of the rationale behind the doctrine of prospective overruling by observing that it is not meant to supplant the Blackstonian doctrine but' is a necessary device in any system of law to protect the interest of the litigant public when judicial overruling of a precedent entails a change in the law2.

1.2 Doctrine of Prospective Overruling— Historical Importance
The doctrine of prospective overruling originated from the American judicial system. It was for the first time laid down by Cardozo J. and Lerned Hand J. The doctrine aims at overruling a precedent without causing a retrospective effect. The concept of prospective overruling is now an integral part of legal systems world over.

1.2.1 Prospective Overruling in American Constitution

Since the remarkable decision of Cardozo, J. in the famous Great

2. Narayan Nair v. State of Kerala, AIR 1971 Ker 98.




Northern Railway v. Sunburst Oil & Refining Co3. the Prospective overruling has earned a hallowed place in American jurisprudence.
It is significant that Cardozo, J., saw the choice between retrospectivity and prospectivity as a function of juristic philosophy of the judges of particular legal system, and not as one to be mechanically determined by recourse to a jurisprudence of conception which ignores the paramount necessity for a progressive and pragmatic adaptation of the judicial process to changing social circumstances. Further, Cardozo, J. was also careful to point out that a judicial choice between retrospectivity and prospectivity will involve no denial of a right protected by the Constitution by implication. This means that retrospectivity of judicial decision is not constitutionally mandated as being of the very essence of judicial function. There is thus no risk of the essential feature of the judicial function being impaired by this innovation. However, Cardozo, J. was careful to point out in the Sunburst case that it was not a case where the court in overruling an earlier decision was giving to the new ruling a retrospective effect that would make invalid what was valid when done. Since Sunburst case there has been lively debate as to the merits as well as limits of the doctrine of prospective overruling.
3. 287 US 358 (1932).


1.2.2 Applicability of Prospective Overruling in India
The concept of the Doctrine of prospective overruling has now been accepted in its full form in India. This doctrine was for the first time applied in India Golak Nath L.C. v State of Punjab4.
The Doctrine of Prospective Overruling is now an integral part of the Indian Legal System, it is enshrined in our jurisprudence but not in the fashion it is installed in American jurisprudence. After Golak Nath's case the judiciary has given different views over this doctrine. It can be said that the judiciary has itself tried to evade the discussion over this issue of prospective overruling.



1.3 Prospective Declaration of Law

The purpose of prospective declaration of law by the Supreme Court is to avoid reopening of settled issues and to prevent multiplicity of proceedings by implication, all contrary actions taken prior to such declaration stand validated. The subordinate courts are bound to apply the law to future cases only5. Sometimes the Court itself may fix a
4. AIR 1967 (SC) 1643
5. Baburam v. C.C. Jacob, (1999) 3 SCC 362; Harsha Dhingra v.State of Haryana, (2001) 9 SCC 550.
date, decisions taken before which would not be disturbed, while invalidating a law or over ruling a decision. See Kailash Chand Sharma v. State of Rajasthan6.
The Supreme Court however, rejected the plea to apply the principle of prospective overruling to protect allottees of petrol pumps and gas agencies by the concerned minister, which was held to be indiscriminate in absence of any guidelines prior to the decision in Centre for Public Interest Litigation case7. This was stated in V. Purushotam Rao v. Union of India8.
6. (2002) 6 SCC 562: AIR 2002 SC 2877.
7. 1995 Supp (3) SCC 382.
8. (2001) 10 SCC 382

















CHAPTER— II
ANALYSIS OF THE DOCTRINE OF PROSPECTIVE OVERRULING

2.1 Applicability of Doctrine of Prospective Overruling in India

However now this situation has changed and this doctrine are applicable to other statutes also, which again is a very dynamic step taken by the judiciary in order to meet the ends of justice.
The court has very analytically defined this doctrine in the case of Ashok Kumar Gupta v. State of Uttar Pradesh1, as “... it was a method evolved by the courts to adjust competing rights of parties so as to save transactions whether statutory or otherwise, that were affected by the earlier law.". A similar definition of this doctrine was given by the Supreme Court in Sarwan Kumar v. Madan Lal Aggarwal2, "Under the doctrine of prospective overruling the law declared by the court applies to the cases arising in future only and its applicability to
1. AIR (1997) SC 201.
2. AIR (2003) SCW 819.
the cases which have attained finality is saved because the repeal would otherwise work hard ship to those who have trusted to its existence."
The Doctrine of Prospective Overruling is now an integral part of the Indian Legal System, it is enshrined in our jurisprudence but not in the fashion it is installed in American jurisprudence. After Golak Nath's case the judiciary has given different views over this doctrine. It can be said that the judiciary has itself tried to evade the discussion over this issue of prospective overruling. Some prominent lawyers and jurists have said that this doctrine is apt for American jurisprudence and not Indian legal system. In another landmark case in this field after the Golak Nath case, the court held that "Those judges who relied upon the doctrine of Prospective Overruling did not accept the doctrine in all its implications as understood by the U.S. Courts."3 The judges of Supreme Court of India have not always been keen on giving their thoughts on the doctrine of prospective overruling. In Orissa Cement Ltd. v. State of Orissa4 the judges said "In our view, we need not enter into a discussion on principle of prospective validation enunciated by at least some of the judges in Golak Nath."
3. Narayani Bai v State of Maharashtra (1969) SCC 3- 468.
4. AIR (1991) SC 1676.

Another important point raised by the court is that the when a case is decided by the doctrine of prospective overruling, it must be stated by the learned judges. This implies that the Indian aspect of this doctrine different on this point from American point of view, which states that prospective overruling, can be both express and implied. The court in Saurabh Choudhary v. Union of India5 held “Prospective application of a judgment by the court must, there, be expressly stated." The honorable Supreme Court further added that "A statute is applied prospectively only when thereby vested or accrued right is taken away and not otherwise."
In Indian judiciary the limit of retroactivity of the law is at the discretion of the judges. It is up to them to decide the limit to which the new law is retroactive, this power of the court gives the judiciary a fair chance to give the right justice to the parties bound by the earlier precedent6.
Indian judges have certainly relied greatly on the Golak Nath case and till date, in a matter relating to the doctrine of prospective overruling, the case is referred. Judicial Activism is a concept in which this
5. AIR (2004) SC 2212.
6. Ibid 6 at p 6

doctrine plays a very essential role, this concept of prospective declaration is very essential in order to keep up with changing needs of the society. Law does have a very dynamic nature and it cannot be kept too static as it will not match with the current needs of the people. It is also true that it should be left up to the judges to decide the limit of retroactivity of each case. However when in a case of prospective overruling a precedent is overruled the new decision is kept totally prospective and not at all retrospective, if it is given a retrospective effect it will certainly lead to chaos and people will not know what is the law.
It can be said that the aspects, the Blackstonian doctrine that is against prospective overruling and the doctrine of prospective overruling as lay down by Cardozo are right within themselves. Lord Blackstone is right when he says that one should always stand by the law and not change it on demands of time, but this aspect cannot fit in to the current needs of the society. On the other hand the doctrine of prospective overruling as laid down by Cardozo in Northern Railway v. Sunburst Oil Refining CO7, is a very useful tool in the hands of judiciary to meet the current needs.
7. Ibid 3 at p 4.

2.1.1 Doctrine of Prospective Overruling in Golak Nath case

The concept of the Doctrine of prospective overruling has now been accepted in its full from in India. This doctrine was for the first time applied in India Golak Nath L.C. v State of Punjab8. The court overruled the decisions laid down in Sajjan singh v State of Rajasthan9 and Shankari Prasad v. Union of India10. The honorable Judges of Supreme Court of India laid down its view on this doctrine in a very substantive way, by saying "The doctrine of prospective overruling is a modern doctrine suitable for a fast moving society

Few questions which focus attention on the nature, scope and functions of judicial decision-making have engaged the attention of jurists and judges so much as the questions which concern the controversial doctrine of prospective overruling.
Introduced the doctrine of prospective overruling in a modified form into our Constitutional jurisprudence. Subbarao, C.J.'s resort to the doctrine of prospective overruling by observing that such a naked power of amendment is not given to the judges of the 11 judges who
8. AIR (1967) SC 1643.
9. AIR (1965) SC 845.
10. AIR (1951) SC 458.


took part in Golak Nath case. Subbarao, C.J. gave judicial power to
invoke the power of prospective overruling, a central basis under Article 141, it is possible to contend that by a judicial construction of Article 141, supported by a majority of 5 judges, the doctrine has not been a part of the law of India. The Supreme Court decision in State of Kerala vs. Alasserry Mohd.11, substantially adopted this doctrine without mentioning it by name. Stare Decisis and prospective overruling are only important facts to judicial practice in the area of precedent. The doctrine only relates to judicial practice and is not a part of positive law.
The refusal of the Chief Justice to test the validity of the controversial amendments on the touchstone of Article 13(2) as re-interpreted in Golak Nath case is explained by him in words which reflect the policy considerations that impelled him to hold in favour of the continuing validity of the amendments on the faith of prior case law:
"What then is the effect of our conclusion on the instant case? Having regard to the history of the amendments, their impact on the "social and economic affairs of our country and the chaotic situation that may be brought about by the sudden withdrawal at this stage of
11. (1978) 2 SCC 386: AIR 1978 SC 933.

the amendments from the Constitution, we think that considerable judicial restraint is called for. We, therefore, declare that our decision will not affect the validity of the Constitution (Seventeenth Amendment) Act 1964, or other amendments made to the Constitution taking away or abridging the fundamental rights. We further declare that in future the Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights."
However, since the doctrine was being invoked in India for the first time, the Chief Justice laid down the following guidelines as regards the future use of the doctrine12:
"(1) The doctrine of prospective overruling can be invoked only in matters arising 'under our Constitution; (2) it can be applied only by the highest court of the country, i.e. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retrospective operation of the law declared by the Supreme Court superseding its 'earlier decisions' is left to its discretion to be moulded in accordance with the justice of the cause or matter before it."
12. Ibid 8 at p 11.

2.1.2 Prospective overruling-some theoretical consideration
In every judicial system where a decision is required to be related to a prior decision under the doctrine of precedent, the judicial decision is not only descriptive of the law as the judge holds it to be but it is prescriptive in the sense that future judges should apply it. Traditionally when a precedent is overruled, the overruling operates retroactively on the footing that the law is deemed to have been always so from the very beginning. Of course, the overruling decision will also operate for the future. In the setting of Golak Nath case, to cite an instance, the authority of two prior decisions was allowed continued operation so as to keep alive impugned amendments which were by themselves invalidated by the overruling decision.
‘Two points are worthy of note in connection with the doctrine of prospective overruling. First, the critical date of which can act as a cut-off point to distinguish the prior case law should be the date overruling. The second point which is a logical concomitant following on the first is that the old rule should be applied in the overruling case itself. If these two conditions are accepted we are stating the case for prospective overruling at its best.



2.2 Restriction on the Doctrine Prospective Overruling
However the Supreme Court gave certain restrictions to the usage of the doctrine of Prospective Overruling. The court said that this doctrine can only be used by the Apex court and it would be applicable only to the laws and cases relating to the Constitution of India. It was further added that this doctrine is no where against the Constitution and Articles 32, 141 and 142 of the Constitution of India give Supreme Court the power to "declare" the law, and the term declare is a very wide meaning term. By not giving retrospective effect to the above mentioned case the court certainly saved the parties bound by it from a lot of chaos and injustice. It was also stated that giving or not giving a retrospective effect to the overruled precedent is to be left on the learned Judges depending on the facts of the case.








CHAPTER—III
PROSPECTIVE OVERRULING AND INDIAN CONSTITUTION

3.1 Seervai on Prospective Overruling
In a devastating critique on the modern theory of prospective invalidity Seervai objects that the claims of the new doctrine are so extensive and their consequences so grave that an uncritical adoption of the doctrine into our Constitution would entail a radical change in its interpretation and in the nature of the judicial process itself. He feels that there are such fundamental differences of seminal import in the constitutional roles assigned to the Indian Supreme Court and its American counterpart which preclude the application of the American doctrine of prospective overruling to Indian judicial decisions. Since the objections raised by Seervai are not basic to the understanding of the doctrine it is better to set them out in full, though not in the order in which Seervai lists them. In the first place Seervai places a constitutional road block to the reception of prospective overruling in our jurisprudence by pointing out that the whole theory of ultra vires would have to be reconsidered if the theory of prospective invalidity is to be applied to our Constitution. The burden of the argument is that under the Deep Chand case,1 decision the effect of a law being held invalid for violating a fundamental right is to declare it a still born law, void ab initio. Since the majority of judges ruled in Golak Nath case that the Constitution, First, Fourth, and Seventeenth amendments abridged pertinent fundamental rights, the legal result on the basis of Deep Chand case would be that they never legally existed at any time. If the amendments were non est in the sense of their being legally non-existent, how could the doctrine of prospective overruling revive them? Since this is a logical impossibility, Seervai would contend that the assertion of Subba Rao, C.J. that these amendments continue to be valid and shall remain operative even for the future is without constitutional sanction. Faced with the dilemma of Deep Chand case, Seervai contends that as a result of the decision in Golak Nath case, a proviso to Article 13(2) has been added by way of a judicial amendment. Indulgently, Seervai himself supplies the text of the amendment when he drafts it in the following manner:
"Notwithstanding anything contained in sub-Article 13(2), the law so enacted shall not be void except for the future if the majority of the Supreme Court is of the opinion that to hold otherwise would produce chaos in the country or cause grave injury to its well being."
1. Deep Chand v. State of U.P., AIR (1959) SC 48:1959 Supp (2) SCR 8.

Seervai's formulation of the proviso is interesting for more than one reason.
Firstly the proviso distorts the true effect of the majority holding in Golak Nath case. Under the proviso the Constitution, First, Fourth and Seventeenth amendments will have to be held void for the future because that is what the thesis of prospective invalidity as understood by Seervai would require him to hold. As against this it is elementary knowledge that neither Subba Rao, C.J. nor Hidayatullah J., in his separate opinion held that these amendments shall be void as from the date of decision in Golak Nath case2. It is pertinent to note that Subba Rao, C.J. employed the technique of prospective overruling and not that of prospective invalidity. By this juristic technique the two prior decisions were overruled prospectively.

3.2 Criticism on Prospective Overruling
The objections to the doctrine on the basis of the Deep Chand case reasoning needs a little closer analysis. The ratio of this case although evolved in the context of the invalidity of an ordinary law must apply also to a judicial holding involving an amendment of the Constitution
2. See Dhavan .R. “The Supreme Court of India – A Socio-Legal Critique of its Judicial Techniques” 1997, p.55.
because in the context of Article 13(2), Subba Rao, C.J. had placed an amendment on the same footing as an ordinary law. Blackshield answers this objection, based on the Deep Chand case rationale in this way. First, the Deep Chand case did not purport to enshrine the normal retrospective operation of judicial decisions as the only possible operation for holdings as to voidness under Article 13(2). Deep Chand case was rather concerned to declare in constitutional law terms the consequences of invalidating a law abridging a fundamental right. Deep Chand case is not an exhaustive statement of law as regards the past effects of the unconstitutional decisions. Blackshield feels that Deep Chand case does not erect an impenetrable barrier against a power of prospective limitation of the effects of a "judicial holding". Third, even if Deep Chand cases were held to cover the field so far as' ordinary laws are concerned, Blackshield would argue that there is no logical compulsion that Deep Chand case should govern where the subject matter of invalidity is a constitutional amendment.

3.2.1 Rajendran case
In Rajendran case3, the theoretical difficulty barring the forensic
3. P. Rajendran v. State of Madras, AIR (1968) SC 1012.
device of restricting in time dimension the operative effect of a holding did present a formidable challenge and yet the Supreme Court reached a solution of whose incongruity in face of Deep Chand case, it was not even aware. The net result of the holding in this case, was that Rule 8 of Madras Medical College Rules being constitutionally void for breaching a fundamental right (Article 14) could not operate as a valid basis for the admission made from 1961 till the date of this decision. Yet, these admissions were not invalidated by the Court, a result which can be reconciled only by departing from the logic of Deep Chand case in favour of practical sense and by applying the principle of prospective invalidity as a legitimate judicial technique in the special circumstances of the case. Rajendran case was a decision of Wanchoo, J. It is difficult to conceive how the Chief Justice could have invoked Deep Chand case as a shield of Golak Nath case to bar the use of the principle of prospective limitation in that case and yet could have circumvented Deep Chand case to assert a power of prospective limitation without making any articulate acknowledgement of such a power in Rajendran case. Be that as it may, Rajendran case is a clear illustration of the use of prospective limitation much more far reaching in its effects than the principle invoked in Golak Nath case and is vulnerable to all the objections that Deep Chand case suggests.4
4. Venkatarama v. Madras, AIR (1951) SC 229.
The source of the power of prospective overruling of limitation is to be found in Articles 32, 141 and 142 and is not in any way affected by the broad statement of the law in Deep Chand case.

3.3 Relevancy of Doctrine of Prospective Overruling
In Ganga Ram Moolchandani v. State of Rajasthan5 the Supreme Court categorically stated that the application of scope of the doctrine of prospective overruling, was not limited to matters arising out of the Constitution, as held in Golak Nath case, but extended to the interpretation of ordinary statutes as well.
The Supreme Court explained the relevance of doctrine of prospective overruling once again in Kailash Chand Sharma v. State of Rajasthan.6 Petitioner challenged the constitutionality of recruitment of teachers in Panchayat Schools, where a provision in State Government Circular was made for awarding bonus marks to residents of the district concerned and rural areas thereof. It was held to be discriminatory. There was no guidance in the circular for identification of residents of the candidates which was also held to be
5. (2001) 6 SCC 89: AIR 2001 SC 2616.
6. Ibid 6 at p 6.
another factor for rendering the circular ultra vires Article 14. However, in view of the peculiar circumstances of the case and the need to balance the competing claims of the parties, the Supreme Court directing the High Court's decision rendered subsequent to the selection in question, to be effective prospectively with effect from the date of that decision and confining the relief only to the petitioners who had approached the High Court.










CHAPTER – IV
CONCLUSIONS AND SUGGESTIONS


4.1 Conclusions
In India we have adapted the doctrine given by Cardozo J. that has helped the judiciary over the years to yield fair justice to the citizens of India. However the judiciary has to be careful in implementing this doctrine as careless usage of this doctrine can also lead to injustice to the society. The Doctrine of Prospective Overruling is an integral part of our legal system and it should be explored more by the Judiciary.
Prospective overruling, far from being undemocratic can serve as a healthy warning to a democratic legislature that its future acts should be brought in consonance with the constitutionally mandated authority as ascertained and established by the court.
4.2 Suggestion
In my suggestion I would like to say that the doctrine of prospective of overruling is a good concept if it is applied with clear-cut manner, like this doctrine should used by the learned judges and the matter should be clear. For example- in order remove the difficulties created by the decision of Supreme Court in Golak Nath case 24th amendment act was passed and this amendment ones again restored the power of the parliament for amendment. Then one’s again it was challenged in Keshavananda Bharathi V State of Kerala1 Like wise if it is going on creating confusion then the doctrine ultimately loose its scope.
So here I wanted to say that the doctrine of Prospective overruling should be pronounced by the highest court of land and by learned judges. And there should not be any chances to confusion, rather it must be clear. This doctrine is a important tool in the hands of the judiciary and it should not be misused by the judiciary.


1. AIR (1973) SC 1461.














BIBLIOGRAPHY

BOOKS

Dias R.W.M., “Jurisprudence”, 4th Ed, London: Butterworth& Co (publishers Ltd), 1976.

Jayakumar N.K., “Judicial Process in India”, 1st Ed, New Delhi: APH Publishing Corporation, 1997.

Lakhiminath A., “Precedent in Indian Law”, 2nd Ed, Lucknow: Eastern Book Company (P) Ltd, 2005.

Pandey J.N., “Constitutional Law of India”, 40th Ed, Allahabad: Central Law Agency, 2003.

Seervai H.M., “Constitutional Law of India”, Vol 3, 4th Ed, New Delhi: Universal Law Publishing Co. Pvt Ltd, 1996.

Shukla V.N., “Constitution of India”, 10th Ed, Lucknow: Eastern Book Company Publisher, 2001.