NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

Doctrine of Prospective
Overruling
Legal Methods Project
Aarathi Das (Roll No. 915)
Table of Contents
Abstract.................................................................................................................................................3
Introduction...........................................................................................................................................3
Origin of Doctrine of Prospective Overruling in India............................................................................4
Prospective Overruling: as defined by Indian Courts.........................................................................6
Shankari Prasad v. Union of India (1951)...........................................................................................6
Sajjan Singh v. State of Rajasthan (1965)...........................................................................................7
I.C Golaknath and Ors. v. State of Punjab and Anrs (1967)................................................................9
Facts..............................................................................................................................................9
Golaknath Case & the Doctrine of Prospective Overruling............................................................9
Significance of the Golaknath Case..............................................................................................12
Kesavananda Bharati v. State of Kerala (1973)................................................................................13
Facts............................................................................................................................................13
Verdict.........................................................................................................................................14
Basic Structure of the Constitution..................................................................................................14
Doctrine of Prospective Overruling in Modern Day India....................................................................16
Impact of Prospective Overruling....................................................................................................16
Integral Features for Prospective Overruling...................................................................................17
Importance of Prospective Overruling in India................................................................................18
Three fundamental rules of Prospective Overruling in India...........................................................18
Conclusion...........................................................................................................................................20
 Abstract

The doctrine of prospective overruling is an extremely pivotal concept that firmly rooted
itself in the Indian judicial system through the Golaknath case. The literal meaning of the
term “overruling” is to overturn or set aside a precedent by expressly deciding that it should
no longer be controlling law. Consequently, the term “prospective” means operative or
effective only in the future. Thereby, by combining the aforestated terms, prospective
overruling means construing an earlier decision in such a way that it would not have a
binding effect to the parties of the original suit or to the cases decided on the basis of that
judgement, and yet changing the law, applying it only prospectively to the future cases. In
this research paper, I shall trace the implementation of this doctrine in India with special
reference and attention being paid to the following cases:-

1) Shankari Prasad v. Union of India (1951)

2) Sajjan Singh v. State of Rajasthan (1965)
3) I.C Golaknath and Ors. v.State of Punjab and Anrs. (1967)
4) Kesavananda Bharati Sripadagalvaru and Ors v. State of Kerala and Anr (1973)

After scrutinizing the aforementioned cases with regard to the doctrine of prospective
overruling, I shall conclude my research paper with the significance of this doctrine in India
today as well as the criticisms faced regarding this doctrine.

Introduction

Whenever a judicial decision or verdict by a court is declared regarding a particular

matter, the general rule followed is that the verdict taken would act as a binding authority on
subsequent cases of a similar nature. This is the underlying essence behind the principle of a
precedent. Therefore, the law promulgated by the court is not descriptive but in fact
prescriptive as it plays an influential role on future judges as well. Common law countries,
such as India, give a lot of consideration and importance to precedents thereby making a
pivotal source of law.
 As stated earlier, precedents are both declaratory and constitutive of the law which
fundamentally means that they propound the rule of retrospectivity. This rule advocates that
when a law is proclaimed to be void, then it is presumed to be void from the date it was
created or the date it was implemented (void ab initio). Therefore, this aforementioned
principle of retrospectivity regarding the decision or verdict of a court, which is one of the
fundamental and inherent characteristics of a precedent, adheres to the declaratory nature of a
precedent. Hence, the declaratory principle William Blackstone advocated of “judges not
making the law but only declaring the law” can be witnessed in consonance with this
principle. In summary, it can be inferred that this declaratory theory goes hand in hand with
the rule of retrospectivity regarding precedents.

Moving on to the crux of this project, the Doctrine of Prospective Overruling is a

departure from the aforementioned retrospective principle of applying precedents, thereby
making it a digression from the principle propounded by William Blackstone as well. This
doctrine was inculcated into the Indian judicial system from the Constitution of the United
States of America and it succeeded in establishing itself in the Indian legal framework
through the case of Golaknath v. State of Punjab.

In essence, the implication of the invocation of this doctrine in the Indian judicial
environment is that the decision of such a case would not have retrospective operation but
would operate only in the future and have prospective operation. This project now seeks to
embark on a detailed analysis of the application and implications, both positive and negative,
of the doctrine of prospective overruling in the light of its invocation in the above mentioned
case.

Origin of Doctrine of Prospective Overruling in India

The doctrine of prospective overruling, as noted earlier, is a deviation from the

traditional Blackstonian perception of the law - that the duty of the Court was “not to
pronounce a new rule but to maintain and expound the old one”. This doctrine helps lay the
foundation for an extended view of the judicial function which primarily centres on discretion
and freedom of choice and also focuses on the time frame and the cases to which a particular
pronouncement in another case will be applicable to. For instance, in the case of Narayan
Nair v. State of Kerala, Mathew J explains the thrust of this doctrine by observing that it was
not meant to supplant the traditional Blackstonian doctrine but was essentially meant to
protect the interests of the litigants when judicial overruling of a precedent entailed a change
in the law.

In effect, what is contemplated through this doctrine is to lay down the scope of the
pronouncement in a particular case with regard to its applicability to future cases and
disputes. The primary interest behind the courts implementing this doctrine is that they want
to render justice and may apply to various strategies to reach this end. In these efforts of
theirs, there are instances when the courts themselves have invoked and laid down effective
principles which will guide them in future endeavours and the above doctrine bears testimony
to this point.

The essence of prospective overruling in India is that the Supreme Court lays down
the parameters within which a law enforced in a case overrules a previous judgement.
Therefore, the whole purpose is to avoid reopening of settled issues and also prevent
multiplicity of proceedings; in effect, this means that all actions prior to the declaration do
not stand invalidated. Also, as laid down in the case of Baburam v. C.C Jacob, all the
subordinate courts are bound to apply the law in future cases only. There may also be
instances where the Supreme Court may specify the date when the declaration shall come into
effect thereby not disturbing the decisions taken before such a date. All this happens during
the process of invalidating a law or overruling a decision. The doctrine of prospective
overruling was for the first time adopted in India in the case of Golaknath v. State of Punjab.
Since then it has been applied in many case laws and has also been a point of debate for many
jurists. It is very important in this context to analyze the holding of the judiciary in the
Golaknath’s case.

The doctrine of prospective overruling is a modern doctrine suitable for a fast moving
society. It does not do away with the doctrine of stare decisis but confines it to past
transactions. While in strict theory it maybe be said that the doctrine involves the making of
law, what the court does is to declare the law but refuses to give retroactivity to it. It is a
pragmatic solution that reconciles the two conflicting doctrines, namely, the tenet that a court
finds the law and that it does make law with the tenet that it finds law but restricts its
operation to the future. The doctrine of prospective overruling enables the court to bring
about a smooth transition by correcting its errors without disturbing the impact of those errors
on past transactions. By the application of this doctrine, the past maybe preserved and the
future protected. The Indian Constitution does not expressly or by necessary implication
speak against the doctrine of prospective overruling.

Prospective Overruling: as defined by Indian Courts

In the case of Sarwan Kumar v. Madan Lal Aggarwal, the Supreme Court of India
defined prospective overruling as “the law declared by the Court applies to the cases arising
in future only and its applicability to the cases which have attained finality is saved because
the repeal would otherwise work hardship to those who had trusted to its existence.”
Moreover, it has been laid down that the prospective declaration of law is a device innovated
by the apex court to avoid reopening settled issues and to prevent multiplicity of proceedings.
It is also a device adopted to avoid uncertainty and possible litigation. The very crux of
prospective declaration of the law is deemed to be that all actions taken contrary to the
declaration of law prior to its date of publication are validated. This is done with regard of the
wider public interest. Therefore, the subordinate forums which are legally bound to apply the
declaration of law made by this Court are also duty bound to apply such cases which would
arise in the future only.

Sankari Prasad v. Union of India (1951)

The question of law challenged in the Golaknath case was first raised in the Sankari
Prasad v. Union of India dispute. The crux of the Sankari Prasad case was the power of the
Parliament to curtail the fundamental rights of the people. Fundamental rights are the basic
human rights a citizen enjoys which are enforceable. These fundamental rights are protected
by the court of law through issuing writs. Though under Article 352 and Article 356 of the
Indian Constitution, the fundamental rights or some parts of them can be suspended during
emergency yet they can be amended by Parliament.

The constitutional validity of the first amendment (1951), which curtailed the right to
property, was challenged. The Supreme Court ruled out that the power to amend the
Constitution under Article 368. Moreover, the Supreme Court included the power to amend
fundamental rights and that the word “law” in Article 13 includes only an ordinary law made
in exercise of the legislative powers and does not include constitutional amendments which
are made in exercise of constituent power. Therefore, a constitutional amendment will be
valid even if it abridges or curtails any of the fundamental rights.
 Article 13 of the original constitution said that the state shall not make any law that
takes away or abridges the rights given to the citizens in Part III and any such law made in
contravention of this article shall be deemed void to the extent of contravention. Therefore,
the Parliament cannot amend the constitution in a way that takes away the fundamental rights
of the citizens. In the case of Sankari Prasad v. Union of India, the Supreme Court challenged
the aforestated concept.

It was challenged that the amendment (in this case an amendment to Article 31A and
31B) which infringes upon the fundamental right of the citizens is not allowed under Article
13. It was also argued that the term “state” includes parliament and the term “law” includes
constitutional amendments. Therefore, it was held that “law” in Article 13 is ordinary law
made under the legislative powers and therefore, the Parliament had the power to amend the
constitution. The Supreme Court applied the principle of harmonic construction as there is
conflict between Article 368 and Article 13. The provisions of the Constitution should be
interpreted in a manner that there is no conflict with each other and thereby must be in
harmony among them. The crux of this case – “whether any part of the Fundamental Rights
provisions of the constitution could be revoked or limited by amendment of the constitution”
was once again raised in the case of Sajjan Singh v. State of Rajasthan 1

Sajjan Singh v. State of Rajasthan (1965)

The validity of the Seventeenth Amendment of the Indian Constitution was

challenged in this case. The main contention before the five-judge bench of the Supreme
Court was that the seventeenth amendment limited the jurisdiction of the High Courts and,
therefore, required ratification by one-half of the States under the provisions of Article 368.
The Courts unanimously disposed of this contention, but members of the court chose to deal
with a second submission, that the decision in the Shankari Prasad case should be
reconsidered.

The Chief Justice Gajendragadkar in delivering the view of the majority (Justice
Wanchoo and Justice Raghubar Dayal) expressed their full concurrence with the decision in
the earlier case. The words “amendment of this constitution” in Article 368 plainly and
unambiguously meant amendment of all the provision of the Constitution; it would, therefore,
be unreasonable to hold that the word “law” in Article 13(2) took in Constitution Amendment
1
Sankari Prasad v. Union of India, AIR 1951 SC, 458.
Acts passed under Article 368. They went on to point out that, even if the powers to amend
the fundamental rights were not included in Article 368, Parliament could by a suitable
amendment assume those powers. The Chief Justice also dealt in his judgement with the
wording of Article 31B. The aforementioned article, he considered, left it open to the
Legislature concerned to repeal or amend an Act that had been included in the Ninth
Schedule. But the inevitable consequence would be that an amended provision would not
receive the protection of Article 31B and that its validity could be examined only on its
merits.2

However, Justice Hidayatullah and Justice Mudholkar, in separate judgements, gave

notice that they would have difficulty in accepting the reasoning in Shankari Prasad’s case in
regard to the relationship of Articles 13(2) and Article 368. Justice Hidayatullah said that he
would require stronger reasons than those given in that case to make him accept the view that
the fundamental rights were not really fundamental, but were intended to be within the
powers of amendments in common with the other parts of the Constitution. According to him
“the Constitution gives so many assurances in Part III that it would be difficult to think that
they were the play things of a special majority”. Similarly, Justice Mudholkar took the view
that the word “law” in Article 13(2) included an amendment to the Constitution under Article
368. Article 368 does not say that when Parliament makes an amendment to the Constitution
it assumes a different capacity, that of a constituent body. The learned Judge recalled that
India had a written constitution, which created various organs at the Union and State levels
recognized certain rights as fundamental.

The judgements in Sajjan Singh’s case were to provide the outlines of what was to
become, and still is, a national debate on the method by which the Indian Constitution can be
amended. The doubts expressed by Justice Hidayatullah and Justice Mudholkar in the Sajjan
Singh case about the correctness of the decision in Shankari Prasad’s case were to be
confirmed by the majority in the next, and most important, case considered – the Golaknath
case. Golaknath’s case was itself overruled by a majority in the Keshvananda Bharti case,
this time in favour of Mudholkar’s view that certain features of the Constitution were basic
and unalterable. The minority judges in Keshvananda’s case were to return to the view of the
court in the Shankari Prasad case and the majority in Sajjan Singh’s case.

2
Sajjan Singh v. State of Rajasthan, AIR 1965 SC, 845.
I.C Golaknath and Ors. v. State of Punjab and Anrs (1967)

Golaknath v. State of Punjab was a 1967 Indian Supreme Court Case, in which the Court
ruled that the Parliament could not curtail any of the Fundamental Rights in the Constitution.3

Facts

The family of Henry and William Golaknath held over 500 acres of farmland in
Jalandar, Punjab. In the face of the 1953 Punjab Security and Land Tenures Act, the state
government held that the brothers could keep only thirty acres each, a few acres would go to
tenants and the rest was declared “surplus”. This was challenged by the Golaknath family in
the courts and the case was referred to the Supreme Court in 1965. The family filed a petition
under Article 32 challenging the 1953 Punjab Act on the ground that it denied them their
constitutional rights to acquire and hold property and practice any profession (Articles 19(f)
and (g) and to equality before and equal protection of the law (Article 14)). They sought to
have the seventeenth amendment which had placed the Punjab Act in the Ninth Schedule –
declared “ultra vires”. The issues involved were whether amendment is a “law” under the
meaning of Article 13(2), and whether Fundamental Rights can be amended or not. 4

Golaknath Case & the Doctrine of Prospective Overruling

It was in the case of Golaknath v. State of Punjab, that the then Chief Justice Subba
Rao had first invoked the doctrine of prospective overruling. He had incorporated this
doctrine from American Law where jurists like George F. Canfield, Robert Hill Freeman,
John Henry Wigmore and Cardozo had considered this doctrine to be an effective judicial
tool. In the words of Canfield, the said expression mean:

“A court should recognize a duty to announce a new and better rule for future transactions
whenever the court has reached conviction that an old rule (as established by the precedents)

3
I.C Golaknath and Ors. v. State of Punjab and Anrs., AIR 1967 SC, 1643.
4
G Austin, Working a Democratic Constitution – A History of the Indian Experience, 196-202 (1999).
is unsound even though compelled by stare decisis to apply the old and condemned rule to
the instance case and to transactions which had already taken place”.

Taking cue from such formulation, Justice Subba Rao used this doctrine to preserve
the constitutional validity of the Constitution (Seventeenth Amendment) Act, legality of
which had been challenged. He drew protective cover offered by the doctrine over the
impugned amendments while manifestly holding that the impugned amendments abridged the
scope of fundamental rights. Justifying his stand, he held that:

“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 situations that may be brought about by the sudden withdrawal at this stage of the
amendments from the Constitution, we think that considerable judicial restraint is called for.
We, therefore, declare that our decisions 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 the future the Parliament
will have no power to amend Part III of the Constitution so as to take away or abridge the
fundamental rights.”5

He then went on to analyze the objections that had been laid down against the use of
the doctrine of prospective overruling which are as under:

1) The doctrine involved legislation by courts

2) It would not encourage parties to prefer appeals as they would not get any benefit
from it
3) The declaration for the future would only be obiter dicta
4) It is not a desirable change
5) The doctrine of retrospectivity serves as a brakes on courts which otherwise might be
tempted to be so hasty in overruling.

Subba Rao J discarded these objections as not insurmountable. He supported the

legitimacy of the doctrine of prospective overruling and held that overruling a concept
included within its ambit the discretion to decide whether a particular decision will have to
retrospective effect or not. He further added that what is being laid down cannot be

5
G.G Mirchandani, Subverting the Constitution, 182 (1977).
considered to be obiter as what the court is doing in effect is to declare the law and by the use
of a doctrine restrict its scope. This is strict legal sense may encompass making law but
according to the Chief Justice, what is being done is to strike a pragmatic balance between
the two conflicting considerations, which are, a court finds law and a court makes law.

Further, to stress on his point, he said that there is no statutory provisions that in fact
prevents or bars him from employing the doctrine. He says that courts in India have the
inherent power to reject retroactivity of law when it affects vested rights. Similarly, he
questions vehemently as to why in the judicial process, should one not recognize a principle
of construction which tends to deviate from the principle of retrospectivity a judicial
pronouncements where they entail a change in the law. 6

To further substantiate and justify his stand on invoking the doctrine, he says that such a
practice will not be lead to retrogression or a violation of the constitutional provisions. For
this he says that the Indian Constitution does not expressly or by necessary implication speak
against the doctrine of prospective overruling. Talking about Articles 32, 141 and 142, he
says they are couched in such wide and elastic terms as to enable this Court to formulate legal
doctrines to meet the ends of justice. The only limitation thereon, he says, is reason, restraint
and injustice. These articles are designedly made comprehensive to enable the Supreme Court
to declare law and to give such directions or pass such orders as are necessary to do complete
justice.

The expression “declared” is wider than the words “found or made” wherein the latter
involved giving an opinion. He says that the power of the Supreme Court to declare law
under Article 141 also inheres in it the power to declare that the law should have prospective
effect only. He also says that the denial of this power to the most powerful instrument at the
highest level, that is the Supreme Court on the basis of some passé theory is not a pragmatic
thing to contemplate and the only consequence of this is going to be that the Supreme Court
is going to be rendered impotent, thus being crippled of its power. In effect what he means to
say is that it was high time we recognized the potential of the evolution of new doctrines
applicable to the prevailing socio-economic milieu and not deny the power to do this by
cloaking it with outdated theories which have rare application now. However, while doing
6
M.V.P Kumar, Prospective Overruling, 32 (2004).
this, since it was the first time this doctrine was being invoked, the Chief Justice laid down
the following principles of guidelines regarding the applicability of prospective overruling:

“As this court for the first time has been called upon to apply the doctrine evolved in a
different country under different circumstances, we would like to move warily in the
beginning. We would lay down the following propositions :-

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 – the Supreme Court and as
it had the Constitutional jurisdiction to declare law binding on all the courts in India
3) The scope of the retroactive 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 of the matter before it.”

Therefore, this decision by Justice Subba Rao saw the dawn of the principle of
prospective overruling in India. This judgement by Subba Rao has been well received by
some jurists who claim that the adoption of this doctrine is a realistic response to the
awareness that the Supreme appellate body in the country is capable of making laws. On
the other hand, there has been some criticism regarding Justice Subba Rao’s articulation
of the above doctrine.
Thus we witness that Justice Subba Rao has tried to take a bold and imaginative step,
challenging the very roots of traditional jurisprudence, in order to accommodate a smooth
future which represents an acceptable working arrangement in the eyes of the
Constitution with a past which has seen a major transformation in the economic, social
and political structure since independence. The Chief Justice has contemplated this by
holding that the amendments thus introduced will continue in effect. This can be inferred
from his conclusion, where he states that the first, fourth and seventeenth amendments are
“valid” and “hold the field”, and therefore any acts passed which were protected by these
amendments cannot be questioned. The effects of the decision are that from the “date of
the decision” the Parliament will have no power to make laws which would affect the
fundamental rights. 7

7
Lok Sabha Secretariat, Constitution Amendment: Nature and Scope of the Amending Process”, 14-16 (2013).
Significance of the Golaknath Case

Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court
judgement. It amended the Constitution provided expressly that the Parliament has the power
to amend any part of the Constitution including the provisions relating to Fundamental
Rights. This was done by amending Article 13 and Article 368 to exclude amendments made
under Article 368, from Article 13’s prohibition of any law abridging or taking away any of
the Fundamental Rights. 8

The Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala
held that the Parliament under the Indian Constitution is not supreme, in that it cannot change
the basic structure of the Constitution. It also declared that in certain circumstances, the
amendment of fundamental rights would affect the basic structure and therefore, would be
void. Thus, one can see that this case is drawn on a larger canvas as compared to that of
Golaknath. It also overruled Golaknath and thus, all the previous amendments which were
held valid are now open to be reviewed. They can also be sustained on the ground that they
do not affect the basic structure of the constitution or on the fact that they are reasonable
restrictions on the fundamental rights in public interest. Both the cases, if seen closely, bear
the same practical effects. In the Golaknath case it was held that the Parliament cannot amend
so as to take away the fundamental rights enshrined in Part III whereas in Kesavananda, it
was held that it cannot amend so as to affect the basic structure.

Kesavananda Bharati v. State of Kerala (1973)

His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and
Anr. is a landmark decision of the Supreme Court of India that outlined the Basic Structure
Doctrine of the Constitution. Justice Hans Raj Khanna asserted through this doctrine that the
constitution possesses a basic structure of constitutional principles and values. The Court
cemented the prior precedent Golaknath v. State of Punjab which held that constitutional
amendments pursuant to Article 368 were subject to fundamental rights review. 9

Facts
In February 1970, Swami HH Kesavananda Bharati, Senior Pontiff and head of
“Edneer Mutt” - a Hindu Mutt situated in Edneer, a village in Kasaragod challenged the
8
V. Venkatesan, Revising a Verdict, The Frontline (Bangalore, 1/12/2013).
9
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, 1480.
Kerala government’s attempts, under two state land reform acts, to impose restrictions on the
management of its property. Although the state invoked its authority under Article 21, a noted
Indian jurist, Nanbhoy Palkhivala, convinced the Swami into filing his petition under Article
26, concerning the right to manage religiously owned property without government
interference. Even though the hearings consumed five months, the outcome would
profoundly affect India’s democratic processes. 10

Verdict

The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and
considered the validity of the 24th, 25th , 26th and 29th amendments. The case was heard by the
largest ever Constitutional Bench of 13 Judges. The Bench gave eleven separate judgements,
which agreed on some points and differed on others. Nanabhoy Palkivala, assisted by Fali
Nariman, presented the case against the government in both scenarios11.

Upholding the validity of clause (4) of Article 13 and corresponding provisions in

Article 368(3), inserted by the 24th Amendment, the Court settled in favour of the view that
Parliament has the power to amend the Fundamental Rights also. However, the Court
affirmed another proposition also asserted in the Golaknath case, by ruling that the expression
“amendment” of the Constitution in Article 368 means any addition or change in any of the
provisions of the Constitution within the broad contours of the Preamble and the Constitution
to carry out the objectives in the Preamble and the Directive Principles. 12Applied to the
Fundamental Rights, it would be that while Fundamental Rights cannot be abrogated,
reasonable abridgement of Fundamental Rights could be effected in the public interest. The
true position is that every provision of the Constitution can be amended provided the basic
foundation and structure of the Constitution remains the same. 13

Basic Structure of the Constitution

The basic structure doctrine is an Indian judicial principle that the Constitution of
India has certain basic features that cannot be altered or destroyed through amendments by
the Parliament. Key among these “basic features”, are the Fundamental Rights granted to
10
Supra 4.
11
S. Prateek, Today’s Promise, Tomorrow’s Constitution: ‘Basic Stucture’, Constitutional Transformations And
The Future of Political Progress In India”, 3 NUJ S Law Review 7 (2012).
12
Supra 5.
13
A. Datar, The Case that saved Indian Democracy, The Hindu 2 (Chennai, 24/04/2013).
individuals by the Constitution. The doctrine thus forms the basis of a limited power of the
Supreme Court to review and strike down Constitutional Amendments enacted by the
Parliament which conflict with or seek to alter this “basic structure” of the Constitution. The
basic structure doctrine applies only to Constitutional Amendments. The basic features of the
Constitution have not been explicitly defined by the Judiciary, and the claim of any particular
feature of the Constitution to be a “basic” feature is determined by the Court in each case that
comes before it. The basic structure doctrine does not apply to ordinary Acts of Parliament,
which must itself be in conformity with the Constitution. 14

The Supreme Court’s initial position on Constitutional Amendments was that no part
of the Constitution is unamendable and that the Parliament might, by passing a Constitution
Amendment Act in compliance with the requirements of Article 368 amend any provision of
the Constitution, including the Fundamental Rights and Article 368. The “basic features”
principle was first expounded in 1953 by Justice J.R Mudholkar in his dissent in the case of
Sajjan Singh v. State of Rajasthan. He wrote “It is also a matter for consideration whether
making a change in a basic feature of the Constitution can be regarded merely as an
amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter,
would it be within the purview of Article 368?”15

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of
Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a
“transcendental position” and are beyond the reach of the Parliament. It also declared any
amendment that “takes away or abridges” a Fundamental Right conferred by Part III as
unconstitutional. By 1973, the basic structure doctrine triumphed in Justice Hans Raj
Khanna’s judgement in the landmark decision of Kesavananda Bharati v. State of Kerala.
Previously, the Supreme Court had held that the power of the Parliament to amend the
Constitution was unfettered. However, in this landmark ruling, the Court adjudicated that
while Parliament had “wide” powers, it did not have the power to destroy or emasculate the
basic elements or fundamental features of the Constitution. 16

Although Kesavananda was decided by a narrow margin of 7-6, the basic structure
doctrine has since gained widespread acceptance and legitimacy due to subsequent cases and

14
J. Randhawa, Understanding Judicialization of Mega-Politics: The Basic Structure Doctrine And Minimum
Core, Jus Politicum (2012).
15
Supra 11.
16
Supra 4.
judgements. Primary among these was the imposition of a state of emergency by Indira
Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th
Amendment. When the Kesavananda case was decided, the underlying apprehension of the
majority bench that elected representatives could not be trusted to act responsibly was
perceived as unprecedented. The Supreme Court’s position on Constitutional Amendments
laid out in its judgements is that the Parliament can amend the Constitution but cannot
destroy its “basic structure”.

Doctrine of Prospective Overruling in Modern Day India

The doctrine of prospective overruling can be perceived as a variation of normal

overruling decision whereby the new decision would not apply to already pending cases. This
research paper has already delved into the Supreme Court’s power to prospectively overrule
its earlier decision which was firmly established in the Golaknath case17. Until then,
prospective overruling was primarily a device used by the American Courts in specific
nstances to achieve certain ends. As this device has been borrowed from America, modern
Indian jurisprudence has not actually analyzed the role played by prospective overruling and
its actual impact and consequences which will be analyzed in this section of the paper.

Whilst the issues and concerns regarding prospective overruling were thought to have
been settled in 1967 by the Supreme Court, the criticisms levelled against the use of this
device are plenty. Therefore, it becomes necessary to examine and analyse the major issues
involved in cases wherein prospective overruling is resorted to. Such an analysis would
enable one to understand whether the propositions laid down by the Supreme Court in the
Golaknath case18, as a matter of caution, are necessary at all. Before doing so, it is imperative
to clarify the effect of an ordinary overruling, how a prospective overruling differs from an
ordinary one and the purpose served by such prospective overruling.

Impact of Prospective Overruling

17
I.C. Golaknath v. State of Punjab, AIR 1976 SC 1463.
18
Ibid 17
A normal overruling decision which applies both retrospectively and prospectively can never
be fully retrospective in its operation. This essentially means that it cannot apply to already
decided cases for the following reasons:-19

1) The principle of res judicata would prevent the reopening of already decided cases
2) Reopening of already decided cases would also result in an overwhelming amount of
litigation, further burdening the already pressurized judicial process.
3) The files of old cases may have been lost or destroyed thus making such reopening
impossible

It is clear from the above that a normal overruling decision has no impact on already
decided cases. It affects only pending cases and all transactions which occurred before the
overruling decision but have not yet come up before the courts. “Normal” overrulings enable
judges to make their decision based on the law as it stands at that time and not based on prior
laws which are invalid at the time of the decision. Thus, prospective overruling assumes
significance only for the pending cases and transactions completed prior to the overruling
decision. The overruling decision will not affect these pending cases. However, resorting to
prospective overruling gives rise to two problems:

1) Cases are decided based not on existing law but on prior law which is now invalid
2) This gives rise to problems in the functioning of the judiciary as the judge has to
determine the time in which the case arose and then decide accordingly.

Integral Features for Prospective Overruling

It is clear that retrospective overruling is the better option as it causes fewer problems.
This is why retrospective overruling is used in an overwhelming majority of decision. But
there are certain exceptional circumstances which warrant the application of prospective
overruling in order to prevent confusion and inconvenience. 20These factors which must be
taken into consideration may be briefly summarized as:

19
A.R. Blackshield, Fundamental Rights and the Economic Viability of the India Nation, Part Three: Prospective
Overruling, 10 JILI 183 (1968) at 184-7
20
Blachshield, Supra 19, 188.
 1) Degree of reliance on the old rule 21– If the old rule has been greatly relied upon in
the conduct of past transactions, the court may choose to apply the new rule only
to future cases to prevent injustice to such people.
2) Purpose of the new rule – If the objective of the new rule is to facilitate social
change giving the rule retrospective operation would be self defeating and serve
no purpose whatsoever besides causing undue hardship to the people who had
relied upon the old rule.22
3) Administrative inconvenience – This doctrine might be enforce by the courts if
retroactivity were to effect the functioning of the administrative network and bring
confusion and chaos into the citizens’ lives. 23
4) Stare-Decisis – A normal overruling doctrine could order values which stare-
decisis seeks to promote such as certainty in the law, protection of reliance and
enforcement of accrued rights. However, applying the prospectivity balances the
interests of stare decisis and justice by reducing the ill effects of normal
overruling. Moreover, prospective overruling may be utilized with regard to the
general mindset and norms observed by society.

It follows from the above that while retrospective overruling is the rule in the majority
of the cases as it involves fewer complications, certain exceptional circumstances may
warrant a departure from this rule in the form of prospective overruling. It is merely a
modification of the normal overruling in that, the court, while declaring a new rule of
law, also decides the time frame in which such a new rule operates, keeping several
factors in mind. Deciding the time-frame of the new rule is merely a logical extension
of the court’s role in ensuring justice.

Importance of Prospective Overruling in India

Prospective overruling enables a court to perform its role more efficiently with less
hardship being created and is a tool which facilitates justice that is put into effect only in
special circumstance24. Keeping in mind that prospective overruling is an exception; it
becomes necessary to examine the Mandal case where the Supreme Court adopted a modified

21
Annot, Overruling Decisions: Application, 10 ALR 3d 1371, 1384
22
Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L J (1962)
23
Supra 16.
24
Union of India v. Mohd. Ramzan Khan, 3 SCC 1991, 588.
version of prospective overruling25. In overruling Rangachari’s case prospectively, it was said
that the new rule would operate only for five years after the judgement26. While there may
have been political reasons involved for the Supreme Court deciding as it did, it must be kept
in mind that the judiciary in India has to walk a tightrope balancing the interests of justice
with those of not antagonizing the public. The issue involved in this case was a sensitive one
regarding the right to continue reservations even in cases of promotions. The Supreme Court
while holding that the government could no longer reserve posts in the case of promotions
added that its decision would be operative only after five years from the date of the decision.
Thus the Supreme Court clearly recognized its role as a facilitator of social change and it
used prospective overruling as a device to make such change less abrupt. 27

Three fundamental rules of Prospective Overruling in India

Having examined the true nature and uses of prospective overruling, it must be noted
that the purpose for using this device in India is severely limited by the Golaknath decision28.
As it was the first case in which this device was being used in Indian jurisprudence, the
Supreme Court felt the need to move cautiously and laid down three rules to be adhered to
when resorting to the mechanism of prospective overruling.

The first rule is that this device is only to be used in constitutional matters. This
appears to be a rather self-defeating rule as the rationale behind invoking this device is to
render justice and justice can never be limited to solely constitutional matters. There are
many non-constitutional issues where exceptional circumstances may warrant prospectivity,
but this rule would prevent the use of prospective overruling in such a situation. It appears to
be more of an obstacle to judicial relief and the sooner this rule is removed, the better it
would be in order to facilitate justice in matters of property rights, criminal law and the like.
This rule is also quite out of context when one considers the progressive role played by the
Apex Court in the Mandal case29. However, the most pivotal pillar of support for the
proposition that prospective overruling should be applied to non-constitutional matters is
Article 142 of the Constitution which enables the Supreme Court to do complete justice in all
matters and not merely constitutional matters.

25
Supra 17.
26
General Manager S Rly. v. Rangachari, AIR 1962 SC, 36.
27
T.S Currier, Time and Change in Judge Made Law: Prospective Overruling, 51 Va L Rev 214 (1965)
28
Supra 16.
29
Supra 16.
 Secondly, the apparatus of prospective overruling can only be used by the Supreme
Court. This again appears to be a very restrictive proposition for it completely prevents the
High Court from resorting to the use of this tool in any circumstance whatsoever. This may
result in the decisions of the High Court as rendering injustice and undue hardship. Moreover,
such a restriction also serves no purpose since if a High Court does abuse this device, the
wide supervisory powers of the apex court would enable it to correct this abuse when the case
comes up before it on appeal. 30Consequently, Article 226 has been given such a wide ambit
that the High Court has the power to use this prospective overruling while enforcing any legal
right provided for by the Constitution itself. Thus this rule seems futile when one analyses it
in context with the true nature of prospective overruling. Both these propositions appear to be
needless hindrances and it is for the best interests of the Indian judicial system that they be
done away with.

Lastly, the nature of prospective overruling to be applied in each case is left to the
discretion of the court to be used in accordance with the circumstances of that particular case.
This is in stark contrast to the proposition that prospective overruling is a flexible device
whose use depends upon individual facts as was seen in the Mandal case. 31

In summary, the doctrine of prospective overruling in India can be seen as a tool of

general application which enables the Supreme Court to meet the ends of justice. It is one of
the many judicial innovations that has been evolved over the years and can also be viewed as
a general equivalent to res judicata (or at least an extension of it) as it ensures that past
transactions are decided by the earlier rule and not by the new rule of which the parties
involved were unaware of. 32Keeping the purpose which this device serves in mind, the
hindrances laid down by the Golaknath case 33are more self defeating than directory and need
to be reconsidered in order to allow more efficient use of this device by High Courts and in
cases of non-constitutional matters as well. The aforementioned steps would enable the ends
of justice to be served more effectively by the courts. The first step taken towards
reconsideration of prospective overruling came when the Supreme Court adopted a hitherto
unused format of prospective overruling in India in 1993. More such progressive measures
must be taken to ensure more efficient use of this doctrine in the Indian legal framework.

30
Supra 25.
31
Supra 17.
32
Supra 20.
33
Supra 16.
 Conclusion

The doctrine of “prospective overruling”, thus, can be considered to be a figment of

legal fiction or an aberration, keeping in minds the tradition Blackstonian doctrine. But, this
aberration, as already seen does prove fruitful and attains a value of being an indispensable
factor which has to be acted upon in certain situations to preserve the social and economic
conditions in the country. One could very well imagine the ramifications that would have
arisen had Subba Rao C.J, held the amendments to be invalid. In such a situation, the various
legislations passed under the amendments would be de-facto and become invalid and this
would in turn create uproar against such arbitrary decision-making. Instead, Justic Subba Rao
had, notwithstanding the criticisms raised against his application of the doctrine, applied the
doctrine in a very effective manner taking into account the situation at hand at that particular
period of time.

We have seen through various case laws as to how this doctrine was incorporated in
to Indian judicial system for the first time in Golaknath’s case by then C.J. Subba Rao. What
we have adopted in India is the view of Cardozo J. It is very important to note that we live in
a dynamic society and for laws to govern us effectively constantly, changes have to be
brought in them to suit the present requirements. A tool like this doctrine thus can be adopted
by the Courts to meet the requirements of the society. But what we must keep in mind is that
it can also pose a danger to our system if we recklessly adopt any doctrine from other systems
of law without analyzing and modifying it to suit our system.

The Supreme Court has effectively by laying down certain propositions since the
incorporation of this doctrine into our system kept a check on it. By expressly laying down
that only the Supreme Court can decide as to whether the law will apply prospectively or
retrospectively, the court has made sure that there is no injustice caused to any person in the
society. It is very essential that the doctrine is applied within a definite scope for meeting the
ends of justice.

If a critical date is set out from which the new law shall be applicable then it will help
in the efficient application of the doctrine. Also it is suggested that to remove confusion and
avoid unnecessary litigation, even the High Courts should be allowed to apply this doctrine
under the supervision of the Supreme Court.
 It is thus concluded that the doctrine or prospective overruling has not been applied on
a whole by the Indian Courts in respect of the American counterpart form which it is adopted.
Rather modifications have been made in the doctrine to suit our Indian system and
furthermore even the scope of the doctrine has been extended to ordinary Indian statutes as
well thereby making it an efficient instrument for rendering justice.
 Bibliography

Cases
 Sankari Prasad v. Union of India, AIR 1951 SC, 458
 Sajjan Singh v. State of Rajasthan, AIR 1965 SC, 845
 I.C Golaknath and Ors. v. State of Punjab and Anrs., AIR 1967 SC, 1643
 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, 1480
 Union of India v. Mohd. Ramzan Khan, 3 SCC 1991, 588.
 General Manager S Rly. v. Rangachari, AIR 1962 SC, 36.
 T.S Currier, Time and Change in Judge Made Law: Prospective Overruling,
51 Va L Rev 214 (1965)

Newspaper Articles
 Revising a Verdict – V. Vekatesan (The Frontline)
 The Case that save the Indian Democracy – A. Datar (The Hindu, Chennai)

Books
 Working a Democratic Constitution – A history of the Indian Experience – G.
Austin
 Subverting the Constitution – G.G. Mirchandani
 Prospective Overruling – M.V.P Kumar
 Fundamental Rights and the Economic Viability of the India Nation:
Prospective Overruling – A.R Blackshield
 Understanding Judicialization of Mega-Politic: The Basic Structure Doctrine
and Minimum Core – J. Randhawa

Law Reviews/Journals

 Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional

Transformation and the Future of Political Progress in India – S Prateek
(NUJS Law Review)
 Overruling Decisions: Application – Annot (American Law Reports)
 Prospective Overruling and Retroactive Application in the Federal Courts
(Yale Law Journal)