Prospective Overruling

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.

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