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Introduction:
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
rights.
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.
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Prospective Overruling
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author can be reached at: modalipratap@legalserviceindia.com /
