Jurisprudence - The Doctrine of Prospective Overruling

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.