It is commonly acknowledged that when a judicial pronouncement is made, it not only applies to

any particular case but the ratio would apply to the future cases also. This is also the essence of
the concept of precedent. In other words, the law declared by the court is not descriptive as the
court holds it but also prescriptive in the sense the future judges have to use it. This, is other
words, places precedent on a higher pedestal- a major source of law.

Precedent, as a source of law, is both declaratory and constitutive of law. And traditionally, the
rule of retrospectivity is the norm. This means that when a law is declared invalid, then it is
deemed to be invalid from the date law had come into existence or the date on which it was
enacted. Thus, the rule of retrospective operation of a decision or pronouncement of a court,
which is also one of the indispensable features of a precedent, confirms to the declaratory
character of a precedent. This, in essence, is what is meant by Balckstonian principle wherein he
says that judges do not make law, but only declare the law. Thus, we see that the decalraratory
theory supports retroactive operation of a precedent.

Now, the concept of Prospective Overruling, as the title of the project reflects, is a deviation from
the principle of retroactive operation of a decision and thus, a deviation from the traditional
Blackstonian principle too. This principle, borrowed from the American Constitution, found its
application first in the famous case of Golaknath v. State of Punjab . To illustrate, in very simple
words, the implication of the invocation of the doctrine is that the decision of such a case would
not have retrospective operation but would operate only in the future, i.e., have only prospective
operation. This project now seeks to embark on a detailed analysis of the application and
implications, both positive and negative, of the doctrine in the light of its invocation in the above
mentioned case.

The Doctrine of ‘Prospective Overruling: Its Application In India

The Doctrine of Prospective Overruling, as noted above, is a deviation for the traditional
Blackstonian view of law, viz., the duty of the Court was "not to pronounce a new rule but to
maintain and expound the old one". This doctrine offers foundations for an extended view of
judicial function, which primarily centers on discretion and freedom of choice, to specify the time
frame and the cases to which a particular pronouncement in a case will be applicable to. In the
case of Naryanan Nair v. State of Kerela, Mathew J. explains the thrust of the 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 the doctrine is to lay down
the scope of the pronouncement in a particular case with regard to its applicability to future cases
and disputes. And the primary interest behind the courts actually applying this doctrine is the fact,
as already mentioned, that courts always want to do justice and may apply various criteria to
reach their ends. In this effort of theirs, there are instances when courts have themselves have
invoked and laid down effective principles which will guide them in their endeavor and the above
doctrine bears testimony to this point.

The essence of prospective overruling is that the Supreme Court lays down the parameters
within which a law laid down in a case which overrules a previous judgment has to operate. 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 to 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.
Golaknath Case and 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 taken import 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 means:

"........ a court should recognize a duty to announce a new and better rule for future transactions
whenever the court has reached the conviction that an old rule (as established by the
precedents) is unsound even though feeling compelled by stare decisis to apply the old and
condemned rule to the instant 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
situation 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 future Parliament will have no power to amend Part
III of the Constitution so as to take away or abridge the fundamental rights.

He then went on to analyse 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 therefrom; (3) the declaration for the future would only be
obiter; (4) it is not a desirable change; and (5) the doctrine of retroactivity serves as a brake on
courts which otherwise might be tempted to be so fascile 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 as a concept included within its
ambit the discretion to decide whether a particular decision will have retrospective effect or not.
He further added that what is being laid down cannot be 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 buttress his point, he said that there is no statutory provision 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 to judicial pronouncements where they entail a
change in the law.

To further substantiate and justify his stand on the invoking the doctrine, he says that such a
practice will not lead to a 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 over-ruling. 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 involves
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, i.e., 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 recognised 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 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, 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 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 he justice of the
cause or matter before it."

Thus, this decision by Justice Subba Rao saw the dawn of the principle of prospective overruling
in India. This principle has been invoked in other cases by the Supreme Court too and this will
looked at in greater detail later in the project. This judgment 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 sort of criticism coming in to Justice Subba Rao’s articulation of
the above doctrine. All this will be considered hereon.

Thus, we see 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 effect of
the decision is that from the ‘date of the decision’ the Parliament will have no power to make laws
which would affect the fundamental rights.

Minority judgement in Golaknath

The judges who delivered the minority judgment in the Golaknath case dissented with the view of
the invocation of the doctrine of prospective overruling. They seemed to rest their argument on
the traditional Balckstonian theory where they said that courts declare law and a declaration
being the law of the land takes effect from the date the law comes into force. This is a very
restricted way of looking at it. They further said that it would be loathsome to change the above
principle and supersede it by the doctrine of prospective overruling. It is submitted here that the
doctrine of prospective overruling in anyway does not supersede the already existing doctrine but
simply tries to enrich the existing and rather complex practice with regard to the effects of new
judicial decisions, by the adoption of an alternative discretionary device to be employed in
appropriate cases. So, the basic characteristics of the above doctrine are the flexibility of content
and fitfulness of occurrence.

Difference in the application of the doctrine in United States and

America:
It is pertinent to note that the doctrine of prospective overruling, which has its roots in the
American judicial system and from where the import was drawn from in the Golaknath case, has
been applied in a very narrow manner by Justice Subba Rao. In the case of Golaknath, it had
been used for invalidating constitutional amendments which had been in force for a long time
and which in turn had become the basis of mass legislation affecting agrarian economy. In
contract, in U.S.A., this doctrine had been applied in cases, as seen above in case of changes in
judicial views as regards the scope and interpretation of constitutional provisions generally.

Also, one more distinction lies in the application vis-à-vis the invalidation effect. This means that
in United States, the doctrine was used to hold the impugned law invalid from the date of the
decision and not earlier. But, in Golaknath, all the constitutional amendments were to remain
valid for ever; only the principle of non-amendability of fundamental rights was to apply in future.
If the American doctrine had been strictly imported into India, then the constitutional amendments
would have been declared invalid from the date of the judgment. Therefore, one sees that the
Supreme Court has diluted the application of the doctrine based on the needs and the social
scenario prevalent at that time.

The doctrine of Prospective overruling looked at from different

perspectives
It is no doubt that Justice Subba Rao, by the invocation of the doctrine of prospective overruling,
has left many people pondering on the law-making function of a judge. But what is the impact
that this formulation has had on the Indian jurisprudence has been looked at closely by
W.S.Hooker, Jr. in his article wherein he conceptualises this from different points of view. First,
looking at the relevance of British jurisprudence to India, it is an accepted fact that India having a
written constitution, more responsibility is placed on the Supreme Court as compared to the
English counterpart. Also, traditional British principles of statutory interprepatation do find
application today but one must also look at the radical changes that have taken place in English
jurisprudence itself wherein the ingrained concept of stare decisis does not find the same place
that it held quite a long time back. There are also a lot of cases which have rebuked the static
character of law and that judges may not upset what had previously been considered to be the
law.
Next, Wooker Jr., has also looked at the relevance of vested rights when it comes to accord
retrospectivity to a law. He says that where substantial interests have or may have been vested
in reliance of a law as it was prior to the statute, then retroactivity would be avoided. Also,
providing another gloss on it, he says that legislations made by the state having a retrospective
effect and thereby affecting the vested rights would stand invalidated. Such had also been held
in the case of Maharana Jayvantsighji v. Gujarat , wherein a law was held invalid because it
interfered with the right to recover compensation from the tenant when the land was compulsorily
transferred as the right had already been ‘vested’ under the stature before the amendment.

Thus, one can see that the step from this limitation on legislative power to the Golaknath case
where the doctrine of prospective overruling was laid down may be considered to be a noticeable
transformation in terms of the traditional conceptual rubrics.
Prospective overruling: Ideological cum Social Policy facets of the
problems in the setting of Golaknath case
The issue that arises and is of contemporary relevance is on the judicial policy front in the light of
Golaknath overruling Shankari Prasad and Sajjan Singh. The latter cases had held that courts do
not have the power to interfere with constitutional amendments in the area of fundamental rights.
Based on this expectation, the Parliament had enacted the various laws which had far reaching
social and economic effects. The flip side to this argument is that Parliament cannot be given
unbridled amendatory powers to which the fundamental rights would be subservient. So there
was a balance to be struck by the court, when formulating a principle, between efficacy of the
amendatory regime on one hand and the tradition of protecting democratic rights on the other.
This is what has been done by the invocation of the doctrine of prospective overruling. The
rationale of this case was ultimately to justify the standpoint that prospective overruling would not
be bound by any mechanical construction of rules using the analytical principle of stare decisis
and insisting on full retrospectivity to a judicial decision. It is also submitted that stare decisis is
an expression of judicial policy but the question whether the cause of justice can be furthered
only by giving full retrospectivity is a policy decision which lies outside the domain of the stare
decisis principle. Also, where the matter in dispute is the entrenched fundamental rights, then
one really cannot insists that the courts should be bound by the stare decisis rationale. In U.S.
too, arguments that have been advanced against judicial review in fundamental rights cases
have been received have been thwarted.
The whole basis of the above argument is to show that invocation of the doctrine of prospective
overruling by Subba Rao, J., given the socio-economic setting at that time, was in fact a
fascinating endeavour, keeping in mind the rhetoric of following traditional rules and principles.
Also, such an exercise of power is constitutionally upheld under Artcile141 which empowers the
Supreme Court to declare the law of the land. So, one can see that, the task of the courts in India
is to supply the gaps in legal theory such that it fosters the development of a culture of
respectability towards human and fundamental rights and it also imbues values into the Indian
culture. This has been done by the doctrine of prospective overruling which 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 decide the applicability of a decision. It has to be kept in mind
that all this has been done by the judges after being freed from the shackles of traditional
concepts which rely on theoretical models borrowed from elsewhere. In other words, exercise of
such discretion within the constitutional mandate is reflective of the judge’s attitude to consider
not only the immediate effects but also the long-term ramifications of their judgments.

Present position
The Supreme Court in the landmark case of Keshvanandabharathi 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 canvass 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, is seen closely, bear the same practical
effects. What Golaknath said was that the Parliament cannot amend so as to take away the
fundamental rights enshrined in Part III, whereas in Keshavananda, it was held that it cannot
amend so as to affect the basic structure. As we all know, the basic structure is a figment of
judicial imagination. So what exactly constitutes basic structure cannot be clearly underlined. The
above case has laid that down and as a matter of fact, we all are bound by it as it is the law as of
today.
Seervai on Prospective Overruling
Eminent jurist Seervai engages in a devastating critique of the doctrine of prospective invalidity
(as he names it) and opines that an adoption of the doctrine into our constitution will result in dire
consequences and would entail a radical change it its interpretation and in the nature of judicial
process itself. Seervai has a number of objections to the import of this rule by the Supreme Court
of India. In the first place, he states that importing such a doctrine would mean that the whole
theory of ultra vires has to be reconsidered again. He bases his argument on the Deepchand
case wherein it was observed that the effect of a law being held invalid for violating a
fundamental right is to declare it a still-born law, void ab initito. Since the majority of the judges
held in Golaknath case that the Constitution First, Fourth and Seventeenth Amendments had
deeply infringed fundamental rights, the legal result on the basis of Deepchand is that they never
legally existed at any time. When the Parliament cannot revivify the still born law, neither can the
courts assume the power of law making. The question that Seervai poses is that when the
amendments were non-existent, how could the doctrine of prospective overruling revive them?
Since this cannot be logically possible, Seervai contended that the assertion of Justice Subba
Rao that these amendments continue to be valid and shall remain operative even for the future is
without constitutional sanction.

Seervai feels that as a result of the Golaknath case, a proviso to Article 13 (2) has to be added
and he indulgently also provides the text of such proviso as:
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.

One can see that Seervai indulges in vehemently criticising the judgment. But, he also falls short
at one crucial point and that is the point of comprehension. According to Seervai, by applying the
doctrine of prospective invalidity, the First, Fourth and Seventeenth Amendments will have to be
held void for the future. As opposed to this, Justice Subba Rao, on the other hand, did not hold
that these amendments shall be void as from the date of the decision in Golaknath. Here, the
court employed the doctrine of prospective overruling and not of prospective invalidating as what
it has done in effect was to overrule the two prospective decisions prospectively, keeping in mind
the socio-economic milieu of the country.

Golaknath v. Deepchand- Countering Seervai’s criticism

In Golaknath case, Justice Subba Rao had treated a constitutional amendment on the same
terms as an ordinary law and the ratio in this case was that the invalidity of an ordinary law must
also dealt with the invalidity of a constitutional amendment. This was the interpretation based
upon Article 13 (2). Blackshield deals with the criticisms thrown at Golaknath in the light of the
Deepchand case. First, he says that the Deep chand case does not lay down any proposition to
the effect that a law which is declared void under Article 13 (2) would have only a retrospective
effect. It was only talking about the ramifications of holding a constitutional amendment abridging
a fundamental right invalid. This is no way precludes a court from preserving a law which is found
to be constitutionally invalid valid, taking into account the practical reality, i.e., the fate of the
transactions that have been entered into based on the offending law. So, in effect, this means
that Deepchand case does not talk exhaustively about the past effects of unconstitutional
decisions. So, the Deepchand case can, in no way, be an absolute unfathomable bar against the
prospective operation of a judicial decision.

Justification for the invocation of the doctrine: the use of this doctrine has been justified on the
ground that the court which decides a particular issue, by exercising certain amount of judicial
discretion and power, also has the inherent discretion to decide as to the applicability of the law,
i.e., whether it has to have a retrospective effect or not. This flows from the consideration that the
courts do make law and in the law-making process, there is a certain amount of discretion that
comes in. Also, law is considered to be a dynamic body with rules and their application changing
from time to time and which can be actually established only through judicial decisions, as that is
the point where the judges indulge in the process of interpretation.

The Mandal Case

One more case where the doctrine of prospective overruling finds application is the Mandal case,
otherwise called the Indra Sawhney v. Union of India . 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 mandal ruling for five years from the date of the
judgment. This case not only sees the extension of the application of the doctrine but even the
elongation of the time period when the judgment would be effective.

In this case, the ruling of Rangachari was overturned. This case had been in operation for about
three decades under which a number of persons of the SCs and STs had got promotion. But, the
Supreme Court showed some judicial creativity in the Mandal case so as to bring about a smooth
transition instead of holding the ratio in Rangachari invalid from the date of ruling. If this was to
happen, then all the promotions that accrued to the SC and ST candidates would stand
invalidated and this would cause utter chaos and confusion. To avoid such a situation, Justice
Jeevan Reddy invoked this doctrine and held that the judgement in the Mandal case would not
affect the prior transactions and those transactions already contemplated under the scheme. So,
he decided that the judgment would be effective only five years hence.

The Mandal Case and Seervai’s criticism

We have seen how the criticism of Seervai based on the Deepchand doctrine has been
effectively countered by Blackshield’s argument. To summarise it here, Seervai’s criticism saying
that what Subba Rao, C.J. had in fact applied was not prospective overruling but prospective
invalidity will not really hold because what was contemplated by Subba Rao, C.J., was not
rendering the amendments invalid from the date of the decision. What was laid was that the
amendments would stand valid and the Parliament cannot in the future amend the constitution so
as to abridge the fundamental right
.
Now Seervai’s criticism may have some hold and will be formidable in the Mandal case that has
already been discussed earlier. This is because here, it was held that reservations in promotions
were constitutionally impermissible. So the question arises as to how the judges could give only
prospective operation to the decision. This is because this was inconsistent with the doctrine laid
down in the Deepchand case that a law that is declared invalid will be void ab initio, i.e., it would
be considered void from the date of its enactment. But there is a way of countering the above
argument. Justice Ramasawami laid down in the Ashok Kumar case that a judicial
pronouncement or law laid down by the courts is not law under Article 13. So, the Deepchand
doctrine would not hold here. Also, as Balckshield argues, what the judges did in the Indra
Sawhney case did not involve invalidating a particular legislation but dealt with interpreting a
constitutional provision, i.e., Article 16 (4).

Similarly, the judges in 1962 in the Rangachari case had interpreted Article 16 (4) that
appointments included promotions. But, in 1993, in the Indra Sawhney case, the court rejected
this proposition and gave an interpretation of its own. So, as Blackshield argues, it is a matter of
constitutional interpretation that is involved in this case and not a case of invalidating a
legalisation. So, Seervai’s criticism based on the Deepchand doctrine here holds no water
because according to the Deepchand doctrine, any law inconsistent with Article 13 would be void
ab initio. Here, there is no legislation that is being invalidated nor does a judicial pronouncement
come within Article 13; so, in effect, Seeervai’s criticism would not hold true here.
Prospective Overruling In Non-Constitutional Context
The doctrine of prospective overruling, although invoked by Subba Rao, C.J., in a constitutional
set-up has been later used in non-constitutional set up too. One of these cases is the case of P.
Rajendran v. State of Madras, Justice Wanchoo, who had criticised Justice Subba Rao for the
invocation of the doctrine, himself uses it without specifically mentioning it. This case concerned
the rules by which the government of Madras had regulated admission to medical colleges in the
state. The unanimous holding was that Rule 8, providing for allocation of admissions among the
various districts on the basis of the ratio of the population of each district to the total population of
the State and thus allowing balance amongst districts to override allocation of places on the
basis of merit, was unconstitutional as it infringes the right to equality conferred by Artcile 14. The
immediate challenge was to the selection, in 1967, of the new intake of students for the
beginning of 1968. But, of course, the court’s holding meant that not only this selection but all
selection since the year had been improperly conducted.

Yet, it was impossible to undo the effects of the 1961-66 selections. This was clearly a case
where the past cannot be erased by a new judicial decision. This also meant that the intake of
students for the year 1968 could also not be affected because the decision had come after the
selection process was undertaken and this could not have happened without serious disruption
of the administrative and teaching arrangements. In such circumstances, the court declared the
earlier transactions based on the unconstitutional rule, including the 1967 selection, valid. The
effect of the holding was that Rule 8 would not hold and enforced hereafter. Blackshield is of the
opinion that what was done by Wanchoo here was no different from what Justice Subba Rao had
done in Golaknath case. Also, such a result as above could have been arrived at only by
deviating from the Deepchand doctrine. This was a case where the principle of prospective
invalidity was applied taking into account the special circumstances of the case. So we see that
Justice Wanchoo in this case had applied this principle, although by not expressly articulating it.
This again takes us back to the proposition that the power of prospective overruling is to be
found in Articles 32, 141 and 142 and is in no way affected by the broad statement of law in the
Deepchand case. Such was also reiterated by Blackshield in his article.

Further, this doctrine was also used in the case of State of Kerela v. Alassery Mohd. where a
larger bench was constituted to reconsider the correctness of the interpretation of Rule 22 of the
Food Adulteration Rules in the case of Gurunamal Rajaldad Pamanani v. State of
Maharashtra. The Supreme Court in the Alassery case held that the earlier decision was not
properly decided and in any case the view taken on the question of interpretation of Rule 22 was
not supported by reasons but appears to have been taken in the very special circumstances of
the case. It held that ratio is Pamanani case was based on a false syllogism and the conclusion
was not warranted either on fact or on law. This case was based on a wrong interpretation of
Rule 22 and there were a lot of prosecution which had initiated based on this interpretation
where some of them had been decided whereas some of them were still pending.

Thus, the Supreme Court overruled this decision and held that the decision in that court was
never the law. In view of this finding, it would have been natural for the courts to pass appropriate
orders interfering with the orders of acquittals in all the cases under appeal thereby remitting
some to the High Court for retrial. The normal course of retrospectivity would have demanded the
court to see that all the consequential steps should be logically followed to their ruthless limits.
But the court did not do this. Taking the facts and circumstances of the case into consideration,
the court merely disposed of the appeals by laying down the correct proposition of law without
making any consequential orders. The new rule was thus to apply only prospectively. One more
interesting aspect of this case was that the court held that the import of Rule 22 was the same
even before the amendment in 1977 where Rule 22(B) was enacted to clarify the legal effect of
Rule 22. The new rule which the court has enunciated in this case was not applied to the facts
before it because it said the law before 1977 was also the same. The legal effect of this decision
was thus, that it had retroactive operation and the new legal operation would, therefore, relate
back to the date on which Rule 22 (B) was added to the State legislature.

Therefore, this decision illustrates as to how the doctrine of prospective overruling was used in
yet another manner, although Justice Subba Rao had contemplated its application only to
constitutional matters.

Conclusion
The doctrine of ‘prospective overruling’, thus, can be considered to be a figment of legal fiction or
an aberration, keeping in mind 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 de-facto become invalid and this would have in turn created a furore against
such arbitrary decision-making. Instead, Justice Subba Rao has, 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.

So, one can say that invocation of the doctrine has been very well justified in context. And
considering that judges in India do have an inherent power of judicial review, asking them to
adhere to the traditional Blackstonian norms would be notoriously cutting into their powers. At the
same time, the application of this principle should not be left to the vagaries of judges. For
example, there was no apparent reason for Justice Jeevan Reddy to hold that his judgement
in Indra Sawhney case would be applicable only five years. This does not seem justifiable by
any strand of argument because on one hand, you are condemning the activities of the
government and on the other, by giving the judgement a futuristic effect, you are giving more levy
for the government and authorities to behave in a manner which is constitutionally not valid.
Instead, Justice Jeevan Reddy could have held that all the pending appointments would have to
be completed within six months after the date of the judgment after which the decision would
come into force. This is the point where the argument of uncertainty which is a criticism against
prospective overruling also finds root. This is because people are not aware which judgment they
are bound by and ultimately, it creates a lot of chaos and confusion.

One more aspect of prospective overruling that may be taken into consideration is the matter of
its application only in the Supreme Court. This does not seem to hold that true taking into
consideration the fact the purpose for which it is invoked. If the purpose is ultimately to avoid
chaos and uphold the rights of the parties involves and the general public as such, then the High
Court must also be empowered to invoke such a doctrine and such a decision will invariably be
subject to the scrutiny of the Supreme Court on appeal. So such application of the doctrine may
also foster the development of a pattern which may guide the application of such a doctrine.

Lastly, in conclusion, what can be said is that the doctrine of prospective overruling should be
used but the courts should be cautious and must use it sparingly. Otherwise, one may have to
contemplate a situation wherein all the criticisms stated above may be thrown back at it again,
this time with full force. But, one should commend and appreciate Justice Subba Rao’s
application of this doctrine and recognise the fact that this doctrine must be exalted inasmuch as
it reduces the uncertainty attached to the overruling of a decision.
Or

Doctrine of Prospective Overruling originated in the American Judicial System. 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. [1] Similarly
‘prospective’ means operative or effective in the future. [2] So, combined together,
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 judgment, and yet changing the law, applying it only
prospectively to the future cases. For example, if principle A is laid down in the case
of X v. Y and later on the court disagrees with the Principle A, it changes the principle
prospectively without affecting the judgment of X v. Y and thus the new principle will
apply only 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. Thus a precedent once set should be adopted
by the lower courts also 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. Thus 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 is known as the originator and propounder
of Prospective overruling. He laid down this doctrine in the case of Northern Railway
v. Sunburst Oil and Refining Co [3] 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. According to Cardozo J. 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. [4]

Prospective Overruling in India

The doctrine of prospective overruling was for the first time adopted in the case of
Golak Nath v. State of Punjab [5] (herein referred as Golaknath’s case). Since then it
has been applied in many case laws and has also been a point of debate of many
jurists. Through this article, an attempt is made at briefly analyzing the stand of the
Indian Judiciary on adopting the doctrine of Prospective overruling.

It is very important in this context to analyze the holding of the Judiciary in

Golaknath’s case. The doctrine is defined as

“The doctrine of “prospective overruling” is a modern doctrine suitable for a fast

moving society. It does not do away with the doctrine of state decision but confines
it to past transactions. While in Strict theory it may be said that the doctrine ‘involves
the making of law, what the court really does is to declare the law but refuse to give
retroactivity to it. It is really a pragmatic solution reconciling the two conflicting
doctrines, namely, that a court finds the law and that it does make law and it finds
law but restricts its operation to the future. It 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 may be
preserved and the future protected. Our Constitution does not expressly of by
necessary implication speak against the doctrine of prospective overruling.”

Propositions laid down in Golak Nath’s Case

Because it was the first time that the Court was applying a doctrine which had
evolved in a different system of law so the Court laid down certain provisions
restricting the application of the doctrine in the Indian system. It was laid down that

(1) The doctrine of prospective overruling can be invoked only in matters arising
under our Constitution;

(2) It can be applied only by highest court of the country, ie. The Supreme Court as it
has the constitutional jurisdiction to declare law binding on all the Courts as it has
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.
In light of the above principles laid down for adopting the doctrine into our legal
system, we see that the American idea of Prospective overruling differs from what is
adopted by the Indian Legal system.

Prospective Overruling: as defined by the Courts

Further in the case of Sarwan Kumar v. Madan Lal Aggarwal [6] , 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. [7]

Application of the Doctrine

We must note 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.

But it has now been held that application of the doctrine of prospective overruling
has been extended to the interpretation of the ordinary statutes as well. [8] In the
cases of Waman Rao v. Union of India [9] , Atam Prakash v. State of Haryana [10] ,
Orissa Cement Ltd. v. State of Orissa [11] , Union of India v. Mohd. Ramzan
Khan [12] and Managing Director, ECIL v. B. Karunakar [13] the device of prospective
overruling was resorted to even in the case of ordinary statutes.

The doctrine of prospective overruling also finds reference in the case of Indra
Sawhney v. Union of India [14] 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 sees 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 [15] , 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.

But a critique of the doctrine can be found in Narayani Bai v. State of

Maharashtra [16] 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.”

Criticism by H.M. Seervai

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. [17] 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 case [18] 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.

But 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.
Conclusion
We have seen through various case laws as to how this doctrine was incorporated in
to Indian judicial system for the first time in Golak Nath’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
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.