DOCTRINE OF
PROSPECTIVE
OVERRULING
By: Bhanu Jindal
INTRODUCTION
Law declared by the court is not only descriptive as
the court holds it but also prescriptive
Traditionally, the Rule of Retrospectivity is the norm
Based on Balckstonian principle wherein he says
that judges do not make law, but only declare the
law.
Doctrine of Prospective Overruling, a deviation from
the principle of retroactive operation of a decision
What is the Doctrine of Prospective
Overruling?
APPLICATION IN INDIA
Naryanan Nair v. State of Kerela
Justice Mathew J.
Observed that the doctrine was not meant
to supplant the traditional Blackstonian
doctrine but meant to protect the interests
of the litigants when judicial overruling of a
precedent entailed a change in the law.
PRIMARY INTEREST
That courts always want to do justice and may
apply various criteria to reach their ends
To avoid reopening of settled issues and also
prevent multiplicity of proceedings
That all actions prior to the declaration do not
stand invalidated
I.C. GOLAKNATH V. STATE
OF PUNJAB
Golaknath v. State Of Punjab was a 1967
Indian Supreme Court case, in which the Court
ruled that Parliament could not curtail any of
the Fundamental Rights in the Constitution
Chief Justice Subba Rao first invoked the
doctrine of prospective overruling in this case
He had taken import from the American Law
where this doctrine had been considered to
be an effective judicial tool.
I.C. GOLAKNATH V. STATE
OF PUNJAB
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"
I.C. GOLAKNATH V. STATE
OF PUNJAB
Justice Subba Rao used this doctrine to
preserve the constitutional validity of the
Constitution (Seventeenth Amendment) Act,
legality of which had been challenged.
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
I.C. GOLAKNATH V. STATE
OF PUNJAB
further added that what is being laid down
cannot be considered to be obiter
According to Justice Subba Rao, 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.
PRINCIPLES
Principles of guidelines regarding the applicability of
prospective overruling:
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 the justice of the
cause or matter before it."
SEERVAI ON PROSPECTIVE
OVERRULING
Seervai engages in a devastating critique of the doctrine
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.
SEERVAI ON PROSPECTIVE
OVERRULING
The question that Seervai poses is that when
the amendments were non-existent, how
could the doctrine of prospective overruling
revive them?
SEERVAI ON PROSPECTIVE
OVERRULING
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.
CONCLUSION
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