Akshat.

Tiwary – D 238
Advocate A. Henriques & Prof Sushma Mhaske

JITENDRA CHAHUAN
COLLEGE OF LAW
Doctrine of Prospective
Overruling.
Serial No. Table of Contents Page No.

1 Acknowledgement 2

2 Introduction 3

3 Golaknath and Doctrine of Prospective Overruling 4

4 Critical Analysis of Doctrine of Prospective Overruling 6

5 Conclusion 7

6 Bibliography 8

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Acknowledgement

To complete any assignment successfully, a student requires a lot of guidance and

constructive feedback and I am very grateful that I have received it all along the way. Special
thanks to Advocate A. Henriques for giving me this opportunity to do this assignment and
always being supportive and helping out with the queries.

I would also like to place on record my gratitude to Prof. Sushma Mhaske for always taking
an extra step to provide me with information and conducting webinars which has helped me
during the assignment. I would also like to thank everyone who has helped in smallest of
ways, despite of their busy schedule.

Thank you,

Akshat. Tiwary (D-238)

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Introduction

The Doctrine of Prospective Overruling originated in the American Judicial System. The
literal meaning of the term ‘prospective overruling’ is to interpret 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 judgment, and yet to change the law, and apply it only
prospectively to the future cases.

There are two views on the doctrine of Prospective Overruling. The first view is by
Blackstone who believes that the Doctrine of Stare Decisis should be followed the courts in
the administration of justice. The Doctrine of Stare Decisis states that a precedent once set
should be adopted by the lower courts in their judicial processes and it must be left to the
judges to decide which decision shall be applied retrospectively and which shall be applied
prospectively. It can be interpreted that there is no such requirement of this doctrine as the
judges can decide accordingly keeping in view the question in hand. This view is totally
against the doctrine of Prospective Overruling.

The second view is that of Cardozo J. who laid down this doctrine in the case of Northern
Railway v. Sunburst Oil and Refining Co1, where he refused to make the ruling retroactive.
He has specifically mentioned that “this is not a case where a court, in overruling an earlier
decision, has given to the new ruling a retroactive bearing, and thereby has made invalid
what was valid in the doing.”

The basic objective of prospective overruling is to overrule a precedent without having a

retrospective effect. 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.

It is a well established fact that when a case has been decided it not only applies on a
particular case but its ratio is also applicable in the future upcoming cases. As Precedents is
one of the major sources of law. This American principle of Prospective overruling was first
mentioned in India, in the case of I.C. Golaknath v. State of Punjab 2 (herein referred as
Golaknath’s case).

1
287 US 358 (1932)
2
1967 AIR 1643

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Golak Nath Case and Doctrine of Prospective Overruling

The doctrine of prospective overruling was for the first time adopted in the Golaknath’s case.
Since then it has been applied in many case laws and has also been a point of debate of many
jurists. It is very important to analyze the holding of the Judiciary in Golaknath’s case.

Chief Justice Subba Rao believed that this doctrine is suitable for the modern fast moving
society. It is also a practical solution for the two overlapping doctrine that is whether court
finds law or does it make law also. He also mentioned that Indian Constitution does not
necessary speaks against this doctrine of Prospective overruling.

According to him Articles 32, 141, and 142 empowers this Court (Supreme Court) to
formulate legal doctrines to fulfil the ends of Justice. While giving his Judgment, he also
analyzed the objections which had been laid down against the use of this doctrine. However,
he refuted those objections and strongly supported the authority of the Doctrine of
Prospective overruling.

Chief Justice Subba Rao has also laid down some principles of guidelines regarding the
applicability of Doctrine of Prospective Overruling. These guidelines have been summarized
hereunder:

 This Doctrine of Prospective overruling can only be invoked in matters arising under
our Constitution.
 This Doctrine of Prospective overruling can only be applied by Supreme Court, as this
court has the constitutional jurisdiction to declare law that is binding to all the courts
in India.
 The specific version of retrospective to be applied is to be a matter of the Court’s
discretion, “to be moulded in accordance with the justice of the cause or matter before
it.”

In light of the above principles laid down for adopting the doctrine into our legal system, we
see that the American version of Prospective overruling differs from what is adopted by the
Indian Legal system.

The decision by Chief Justice Subba Rao was supported by a majority of five judges. There is
a minority who dissented with the view of the invocation of the doctrine. They basically
rested their arguments on the Blackstonian theory which says that court pronounce the law
and a declaration being the law of the land takes effect from the day the law enforced. They
also said that it might be obnoxious to disagree with the established principle and displace it
by the Doctrine of Prospective overruling.

It must be noted that in Golak Nath’s case, it was held that this doctrine can be invoked only
in matters arising under the Constitution and the same can be applied only by the Supreme
Court in its discretion to be moulded in accordance with the justice of the cause or matter
before it. However, in the cases of Waman Rao v. Union of India 3, Atam Prakash v. State of

3
(1981) 2 SCC 362

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Haryana4, Orissa Cement Ltd. v. State of Orissa 5, it has been held that the application of the
doctrine of prospective overruling has been extended to the interpretation of the ordinary
statutes as well.

The doctrine of prospective overruling also finds reference in the case of Indra Sawhney v.
Union of India6, often know as the Mandal Commission Case. In this case, Justice Jeevan
Reddy decided that the ruling in this case would be effective after five years from the date of
the ruling. The Court thus postponed giving effect to the ruling for five years from the date of
the judgment. This case not only shows the extension of the application of the doctrine but
even the elongation of the time period when the judgment would be effective.

Furthermore explaining the principle, in the case of Harsha Dhingra v. State of Haryana 7, the
Honourable Supreme Court has held that since it is indisputable that a court can overrule a
decision, there is no valid reason why it should not be restricted to the future and not to the
past. Prospective overruling is not only a part of the constitutional policy but also an extended
facet of stare decisis and not judicial legislation.

Further in the case of Sarwan Kumar v. Madan Lal Aggarwal 8, the Court defined prospective
overruling as:

“Under the doctrine of “prospective overruling” 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.”

Furthermore, it has been laid down that the prospective declaration of law is a device
innovated by the apex court to avoid reopening of the settled issues and to prevent
multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable
litigation.

By the very object of the prospective declaration of law, it is deemed that all actions taken
contrary to the declaration of law prior to its date of declaration are validated. This is done in
the larger 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 future only.

4
(1986) 2 SCC 249 657
5
1991 Supp (1) SCC 430
6
AIR 1993 SC 477
7
(2001) 9 SCC 550)
8
AIR 2003 SC 1475

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Critical Analysis of Doctrine of Prospective Overruling

A critique of the doctrine can be found in Narayani Bai v. State of Maharashtra 9, where it was
observed that “even the Judges for whom Subba Rao CJ spoke did not accept the doctrine of
prospective overruling in all its implications as understood by the American Courts.”

Eminent Indian jurist HM Seervai has been critical of the doctrine of prospective overruling
or invalidity in the second edition his book Constitutional Law of India. He is basically
against the uncritical adoption of the doctrine into our Constitutional System as he thinks that
it might cause radical changes in the interpretation of the Supreme most law of the land and
also in the judicial process in the country.

His basic criticism is against the adoption of this doctrine into our judicial system as he feels
that there are fundamental differences in the roles assigned to the Supreme Court of India
under the Constitution as against the American Supreme Court and hence a doctrine
originated there cannot be imported into our system. The base for his criticism is the Deep
Chand case10 where a law being held invalid for infringing the fundamental rights was
declared to be void ab initio. Now according to Seervai, the judges in the Golak nath case
agreed that the first, fourth and seventeenth amendments were infringing the fundamental
rights and hence following the Deep Chand case; these amendments should be treated as if
they never existed. So if these amendments never existed, so how can the doctrine of
prospective overruling revive them? Thus he contends that these amendments would remain
valid without any constitutional sanction because these should be treated as void ab initio.

However, what must be brought to notice here is that none of the judges deciding Golak
nath’scase ever mentioned that these amendments would become invalid from the date
decided by the court. Thus the doctrine applied here is that of prospective overruling whereby
a new law will govern the future while the old law remains undisturbed. What Seervai talks
in reference to Golak Nath’s case is doctrine of prospective invalidity which would make this
law invalid for the future.

9
 [1969] INSC 317
10
1959 AIR 648

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Conclusion

Overall, it can be concluded that by incorporating Doctrine of Prospective Overruling in the

Judicial set up of India has proved to be very fruitful. This doctrine has provided enormous
flexibility to the judicial discretion to Judiciary as far as India is concerned. In the same time
proper caution should be taken while invoking this doctrine. Till now High courts has not
been provided with this Doctrine. The proper adaption of this doctrine of Prospective
overruling has provided fair justice to the citizens of our nation and is expected to provide
them in future too.

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 proposal provided in the Golak Nath case not only provides the guidelines for the usage
Prospective overruling but also provide us with a logical and convincing explanation that
how this doctrine will prove very fruitful for Indian legal Jurisprudence. This doctrine not
only shows the law making power of Judges but also in the same time it soundly strikes the
balance with the Doctrine of Stare Decisis.

The Supreme Court has effectively by laying down certain propositions since incorporation
of the 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.
The application of the doctrine in Mandal Commission case shows how the doctrine has been
applied literally and not to meet the ends of justice as the judgment of the court has been
made to be effective from a particular date which doesn’t signal anywhere of application of
the doctrine to meet the ends of justice and to avoid confusion.

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 not
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 has not been applied in Toto 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 statutes as well.

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Bibliography

1. Doctrine of Prospective Overruling - https://www.lawcolumn.in/doctrine-of-

prospective-overruling/#Doctrine_of_Prospective_Overruling

2. All Answers ltd, 'Jurisprudence - The Doctrine of Prospective Overruling'

https://www.lawteacher.net/free-law-essays/administrative-law/jurisprudence-
prospective-overruling-in-reference-administrative-law-essay.php?vref=1

3. Constitutional Law: Prospective Overruling-

https://lexlife.in/2020/07/21/constitutional-law-prospective-overruling/

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