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Yashmitha P (Research Intern)
Traditionally, statutory provisions have been held to apply prospectively, whereas judicial pronouncements, which overrule the earlier status quo, have retrospective effect. However, due to certain circumstances, it was felt that the retrospective operation of certain rulings might create chaos and disturb the existing structures. Under this light, the doctrine of prospective overruling originated in the common law. This doctrine has been borrowed from the United States of America.
In this background, this paper attempts to study the origin and application of the Doctrine of Prospective Overruling in India, analyzing the various issues about it.
It is commonly acknowledged that when a judicial pronouncement is made, it not only applies to the particular case but the ratio would apply to future cases also. This, in other words, precedents, is considered as a major source of law.
Precedent is both declaratory and constitutive of law. It is usually retrospective. This means that when a law is declared invalid, then it is deemed to be invalid from its very inception. This is following the Blackstonian view of the law that the duty of the court is “not to pronounce a new rule but to maintain and expound the old one”.
Now, the concept of Prospective Overruling is a deviation from the traditional Blackstonian principle. This principle, borrowed from the American Constitution, was first mentioned in the case of L. C.Golaknath v. The State of Punjab. The Doctrine of Prospective Overruling means that the decision of such a case would not have a retrospective operation but would operate only in the future, i.e., have an only prospective operation.
In this paper, an attempt has been made to trace the origin of the doctrine in the common law. This is followed by a detailed analysis of the application and its implications, both positive and negative, of the doctrine in the light of its invocation in the above-mentioned case.
1. THE DOCTRINE OF PROSPECTIVE OVERRULING: MEANING
The basic meaning of prospective overruling is construing an earlier decision in such a way that it would not have a binding effect to the parties of the original suit or the cases decided based on that judgment, and yet changing the law, applying it only prospectively to the future cases. The doctrine overrules an earlier laid down precedent with effect limited to future cases and all the events that occurred before it is bound by the old precedent itself. It can be easily understood as the court is laying down a new law for the future.
The two aspects to the doctrine of prospective overruling are as follows: Firstly, according to Lord Blackstone's theory, Judges don't make the law, their job is to define the law. They should follow the doctrine of Stare Decisis. The doctrine of Stare Decisis means "to stand by precedent and not to disturb the settled point of law". This doctrine explains that people should not get confused as to what is legal and what is illegal. This theory is contrary to the Doctrine of Prospective Overruling. Secondly, Justice Cardozo and Justice Lerned Hand, who were strongly in support of the Doctrine of Prospective Overruling believed if this doctrine is not given the effect it will wash away the whole dynamic nature of law against the concept of judicial activism. Justice Cardozo was of the view that the law should change according to the changes in society, the law has to be dynamic and not static. If in a new and changing 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 changing needs. Therefore the doctrine of Prospective Overruling is an important tool in the hand of the judiciary to give fair and timely justice to its citizens.
The Doctrine of prospective overruling supplies the gap in legal theory and offers the doctrinal foundations for an extended view of judicial function with built-in the discretion in the Court to indicate the time dimension and the type of cases for which the holding in a particular case shall have an operative effect. Justice Mathew explains the rationale behind the doctrine of prospective overruling by observing that it is not meant to replace the Blackstonian doctrine but is a necessary principle in any system of law to protect the interest of the litigant public when judicial overruling of a precedent entails a change in the law.
2. THE DOCTRINE OF PROSPECTIVE OVERRULING: HISTORICAL IMPORTANCE
The doctrine of prospective overruling which aims at overruling a precedent without causing a retrospective effect was introduced by the American judicial system. It was for the first time laid down by Justice Cardozo and Justice Lerned Hand.
2.1.Prospective Overruling in American Constitution
Since the remarkable decision of Justice Cardozo in the famous Great Northern Railway v. Sunburst Oil & Refining Co., the doctrine has been highly identified. Significantly, Justice Cardozo saw the choice between retrospective and prospective as a function of the juristic philosophy of the judges of the particular legal system. He observed:
“A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forwarding operation and that of relation backwards. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed, cases are intimating, too broadly, that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted.”
Since Sunburst's case, there has been lively debate as to the merits as well as limits of the doctrine of prospective overruling.
The Sunburst approach was, however, subsequently reaffirmed by the US Supreme Court in Chicot County Drainage District v. Baxter State Bank. In Linkletter v. Walker, the US Supreme Court, for the first time, broke away with the usual declaration by granting relief to the aggrieved party as well.
2.2.Applicability of Prospective Overruling in India
The Supreme Court of India’s power to prospectively overrule its earlier decision was established in the case of L. C. Golak Nath v State of Punjab.
The Doctrine of Prospective Overruling is different from the traditional Blackstonian view of the law, viz., the duty of the Court was "not to pronounce a new rule but to maintain and expound the old one". This doctrine primarily centres on discretion and freedom of choice, to specify the time frame and the cases to which a particular pronouncement will apply.
In the case of Naryanan Nair v. State of Kerala, Justice Mathew explains the thrust of the doctrine by observing that it had been not meant to exchange the Blackstonian doctrine but was essentially meant to protect the interests of the litigants when judicial overruling of a precedent entailed a change within the law. In effect, the doctrine lays down the scope of the pronouncement in a particular case and mentions about its applicability to future cases and disputes. And the primary interest behind the courts applying this doctrine is to render justice. The nature of prospective overruling is that the Supreme Court lays down the parameters within which a law laid down during a case that overrules a previous judgment has got to operate with the purpose to avoid reopening of settled issues. Simply meaning, all actions before the declaration do not stand invalidated.
In Baburam v. C.C. Jacob,it was laid that all the subordinate courts are strictly bound to apply the law to future cases only. Furthermore, there can also be instances where the Supreme Court may specify the date when the declaration shall inherit effect thereby not disturbing the previous decisions to such date. All this takes place during the process of invalidating a law or overruling a decision.
3. THE CASE OF L. C. GOLAKNATH V. STATE OF PUNJAB
Chief Justice Subba Rao had first invoked the doctrine of prospective overruling in India. He determined it from American Law where Jurists like George F. Canfield, Robert Hill Freeman, John Henry Wigmore, and Cardozo had considered this doctrine to be an efficient judicial tool. In the words of Canfield:
"........ 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".
Chief Justice Subba Rao believed:
It 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 post transactions. It is a pragmatic solution reconciling the two conflicting doctrines, viz that the court finds law and that it does make law also. 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 these errors on the past transactions.
He further stated that,
“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 to take away or abridge the fundamental rights.”
He then went on to analyze the objections that had been laid down against the use of the doctrine of prospective overruling. It is as follows:
1) The doctrine involved legislation by courts;
(2) It might not encourage parties to prefer appeals as they might 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 that otherwise might be tempted to be so facile in overruling.
Justice Subba Rao rebutted these objections and 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 specific decision will have a retrospective effect or not. He further added that what’s being laid down cannot be considered to be obiter as to what the court is doing in effect is to declare the law and by the utilization of doctrine to restrict its scope. This may encompass making law but according to the Chief Justice, what is being done is practically balance between the two conflicting considerations, which are, a court finds law and a court makes law. Further, he says that such a practice will not lead to a retrogression or a violation of the constitutional provisions.
He mentions that the Indian Constitution does not expressly or by necessary implication speak against the doctrine of prospective over-ruling. He says Articles 32, 141, and 142enable this Court to formulate legal doctrines to meet the ends of justice. The only limitation thereon, he says, is the reason, restraint, and injustice. These articles enable the Supreme Court to declare the law and to give such directions or pass such orders as are necessary to do complete justice. He says that the power of the Supreme Court to declare law under Article 141 also inherits in it the power to declare that the law should have prospective effect only. He also says that the only consequence of denial to the application of the doctrine is going to be that the Supreme Court is going to be rendered impotent, thus being crippled of its power. In effect, he meant that it was high time we recognized the potential of the new doctrines applicable to the prevailing socio-economic environment and not deny the power to do this by masking it with outdated theories.
However, 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 precise version of retrospective to be imposed 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.”
The judges who delivered the minority judgment within the Golaknath case dissented with the view of the invocation of the doctrine of prospective overruling. They appeared to rest their argument siding with the traditional Balckstonian theory where they said that courts pronouncethe law and a declaration being the law of the land takes effect from the date the law comes into force. They further said that it might be loathsome to vary the above principle and supersede it by the doctrine of prospective overruling.
The decision by Justice Subba Rao, supported by a majority of 5 judges, saw the beginning of the principle of prospective overruling in India. The adoption of this doctrine received support from various jurists as it is a realistic response to the awareness that the supreme appellate body in the country is capable of making laws. On the other hand, it has received criticism too.
In Waman Rao v. Union of India, a question was raised on the validity of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, and the device of prospective overruling was used by the Court.
In L. Chandra Kumar v. Union of India, the Supreme Court held that Article 32 and Article 226 of the Constitution of India are part of the basic structure of the Consitution and that the clause 2(d) of the Article 323A and clause 3(d) of the Article 323B, to the extent they exclude the jurisdiction of the High Court and the Supreme Court, are unconstitutional. The judgment was however prospective in nature.
In Indra Sawhney v. Union of India (known as Mandal 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 when the judgment would be effective.
4. CRITICISM ON PROSPECTIVE OVERRULING
The doctrine received various objections based on Deep Chand case reasoning which needs a little closer analysis. The ratio of this case although evolved within the context of the invalidity of a standard law must apply also to a judicial holding involving an amendment of the Constitution because, in the context of Article 13(2), Justice Subba Rao had placed an amendment on the same footing as an ordinary law.
Blackshield answers to this objection, based on the Deep Chand case rationale in this way. First, the Deep Chand case did not purport to enshrine the normal retrospective operation of judicial decisions as to the only possible operation for holdings as to voidness under Article 13(2).
Deep Chand case was rather concerned to invalidating a law abridging a fundamental right. Blackshield feels that the Deep Chand case does not erect an impassable barrier against a power of prospective limitation of the effects of a "judicial holding".
4.1.Seervai on Prospective Overruling
Critiquing, Seervai object that the claims of the new doctrine are so extensive and their consequences so grave that an uncritical adoption of the doctrine into our Constitution would entail a radical change in its interpretation and like the judicial process itself. He feels that there are such fundamental differences of seminal import in the constitutional roles assigned to the Indian Supreme Court and its American counterpart which precludes the application of the American doctrine of prospective overruling to Indian judicial decisions.
Since the objections raised by Seervai are not basic to the understanding of the doctrine it is better to declutter them. In the first place,Seervai places a constitutional roadblock to the reception of prospective overruling in our jurisprudence by pointing out that the whole theory of ultra vires would have to be reconsidered if the theory of prospective invalidity is to be applied to our Constitution. The burden of the argument is that under the Deep Chand case, the effect of a decision of a law being held invalid for violating a fundamental right is to declare it a stillborn law, void ab initio. Since the majority of judges ruled in Golak Nath's case that the Constitution, First, Fourth, and Seventeenth amendments abridged pertinent fundamental rights, the legal result based on the Deep Chand case would be that they never legally existed at any time. If the amendments were not in the sense of their being legally non-existent, how could the doctrine of prospective overruling revive them? Since this is a logical impossibility, Seervai would contend that the assertion of Justice Subba Raothat these amendments continue to be valid and shall remain operative even for future use without constitutional sanction.
Faced with the dilemma of the Deep Chand case, Seervai contends that as a result of the decision in the Golak Nath case, a proviso to Article 13(2) has been added by way of a judicial amendment. Indulgently, Seervai himself supplies the text of the amendment when he drafts it in the following manner:
"Notwithstanding anything contained in sub-Article 13(2), the law so enacted shall not be void except for the future if the majority of the Supreme Court is of the opinion that to hold otherwise would produce chaos in the country or cause grave injury to its well being."
His formulation of the proviso is quite interesting. Firstly, the proviso distorts the true effect of the majority holding in the Golak Nath case. Under the proviso, the First, Fourth and Seventeenth amendments of the Constitution will have to be held void for the future because that is what the thesis of prospective invalidity as understood by Seervai would need him to hold.
Contrary to it, neither Chief JusticeSubba Rao nor Justice Hidayatullah in their opinions held that these amendments shall be void as from the date of decision in the Golak Nath case. It is to be noted here that chief Justice Subba Rao employed the technique of prospective overruling and not that of prospective invalidity. The two prior decisions were overruled prospectively.
In the Rajendran case,a formidable challenge was presented as to the theoretical difficulty barring the forensic device of restricting in time dimension the operative effect of a holding. It was decided in this case that Rule 8 of Madras Medical College Rules being constitutionally void for breaching a fundamental right (Article 14) could not operate as a valid basis for the admission made from 1961 till the date of this decision. Yet, these admissions were not invalidated by the Court. The principle of prospective invalidity as a legitimate judicial technique was applied.
The case was decided by Justice Wanchoo. Rajendran's case is a clear illustration of the use of prospective limitation much more far-reaching in its effects than the principle invoked in the Golak Nath case and is vulnerable to all the objections that Deep Chand case suggests. The source of the power of prospective overruling of limitation is to be found in Articles 32, 141, and 142 and is not in any way affected by the broad statement of the law in the Deep Chand case.
5. RELEVANCY OF DOCTRINE OF PROSPECTIVE OVERRULING
In Ganga Ram Moolchandani v. The State of Rajasthan, the Supreme Court categorically stated that the application of the scope of the doctrine of prospective overruling was not limited to matters arising out of the Constitution, as held in Golak Nath case but extended to the interpretation of ordinary statutes as well.
The Supreme Court again elaborated on the relevance of the doctrine of prospective overruling in Kailash Chand Sharma v. State of Rajasthan.The petitioner, in this case, had challenged the constitutionality of recruitment of teachers in Panchayat Schools, where a provision in State Government Circular was made for awarding bonus marks to residents of the district concerned and rural areas thereof. It was held to be discriminatory. There was no guidance in the circular for identification of residents of the candidates which was also held to be another factor for rendering the circular ultra vires Article 14.
However, given the peculiar circumstances of the case and the need to balance the competing claims of the parties, the Supreme Court directing the High Court's decision rendered it to be effective prospectively with effect from the date of that decision and confining the relief only to the petitioners who had approached the High Court.
6. PROSPECTIVE OVERRULING IN NON-CONSTITUTIONAL CONTEXT
The doctrine of prospective overruling as invoked by Justice Subba Rao was in a constitutional set-up, which now has been used in the non-constitutional set up too. Rajendran's case, Justice Wanchoo, who had criticized Justice Subba Rao for the invocation of the doctrine himself used it without specifically mentioning it. This was a case that illustrated the past cannot be erased by a new judicial decision.
Blackshieldbelieves that what was done by Wanchoo here was no different from what Justice Subba Rao had done in the Golaknath case, he applied the principle of prospective invalidity taking into consideration the special circumstances of the case. Also, such a result could be decided only by differing from the Deepchand doctrine.
The doctrine was also invoked in The State of Kerala v. AlasseryMohd. In this case, a larger bench was constituted to reconsider the correctness of the interpretation of Rule 22 of the Food Adulteration Rules. The Supreme Court overruled the decision held inGurunamalRajaldadPamanani v. State of Maharashtra and held that the decision in that court was never the law. Taking into consideration the facts and the circumstances of this case, the court merely disposed of the appeals by laying down the correct proposition of law without making any consequential orders. The new rule was only to apply prospectively. It is to be noted here that the court held that the import of Rule 22 was the same even before the amendment in 1977. Rule 22(B) was inserted to clarify the legal effect and its stand of Rule 22. The legal effect of this decision was thus, that it had a retroactive operation and the new legal operation would, therefore, relate to the date on which Rule 22 (B) was added to the State legislature. Therefore, although Justice Subba Rao had contemplated its application only to constitutional matters, it has now been used in various other aspects.
The Indian judiciary has unfortunately misunderstood the doctrine of prospective overruling with prospective effect given to decisions. The doctrine of prospective overruling applies in the case of the overruling an earlier judgment. Thus, there is a conceptual distinction between the above two mentioned concepts. Giving prospective effect to judicial pronouncements is an inherent power of the courts and might not necessarily involve an overruling of an earlier decision. On several occasions, the Supreme Court has failed to draw his crucial distinction between the two and has gone about using both the concepts as a synonym to each other. TheState of Himachal Pradesh v. Nurpur (B) Bus Operators Union is a classic example for the same.
The right adaption of the doctrine has helped the judiciary over the years to yield fair justice to the citizens of India. One can very well understand the serious repercussions that would’ve arisen if the constitutional amendments considered in Golak Nath’s case were held invalid. In such a scenario, it would have resulted in a chaotic situation as all the land reform legislation enacted by various states would have fallen to the ground. Thus, the invocation of the doctrine is acceptable in such situations as it is within their inherent power of judicial review.
The principle of prospective overruling should be applied only where an earlier judgment is overruled to enable the ends of the justice to be served more effectively by the courts. However, the application of this principle should not be left to the vagaries of judges.
It can be rightly concluded that the use of these devices makes changes less disruptive, thereby making an appellate court less apprehensive of introducing a change when it considers a new rule to be more sound than the previous one. However, the judiciary should be cautious and must use this sparingly, as careless usage could lead to grave injustice being caused. If the courts use the principle cautiously and sparingly, it will be fruitful. If not, one may have to face a situation wherein all the criticism stated above may be thrown back at it again in full force.
1. Lakhiminath A., “Precedent in Indian Law”, 2nd Ed, Lucknow: Eastern Book Company (P) Ltd, 2005.
2. Edition IX March 2020, Indian Constitutional Law Review.
L. C. Golaknath v. State of Punjab, 1967 SCR (2) 762.  N.K Jayakumar, “Judicial Process in India” (APH Publishing Corporation).  Narayan Nair v. State of Kerala, AIR 1971 Ker 98. Great Northern Railway v. Sunburst Oil & Refining Co, 287 US 358 (1932). Narayan Nair v. State of Kerala, AIR 1971 Ker 98. Baburam v. C.C. Jacob, (1999) 3 SCC 362. Per Subba Rao J., L. C. Golaknath v. State of Punjab, 1967 SCR (2) 762. Supra note. 8 Supra note 8. Waman Rao v. Union of India, AIR 1981 SC 271. L. Chandra Kuman v. Union of India, 1997 (2) SCR 1186. Deep Chand v. The State of Uttar Pradesh &Ors  INSC 3 (15 January 1959). 3. P. Rajendran v. State of Madras, AIR (1968) SC 1012. Ganga Ram Moolchandani v. State of Rajasthan, (2001) 6 SCC 89: AIR 2001 SC 2616. Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562: AIR 2002 SC 2877. State of Kerala v. AlasseryMohd, 1978 AIR 933. GurunamalRajaldadPamanani v. State of Maharashtra, AIR 1975 SC 189. State of Himachal Pradesh v. Nurpur (B) Bus Operators Union, (1999) 9 SCC 559.