A STUDY ON “DOCTRINE OF PROSPECTIVE OVERRULING IN INDIA”

SCHOOL OF LAW

2020-2021

B.B.A., LL.B. (HONS.) VII SEMESTER

JURISPRUDENCE

INTERNAL ASSESSMENT- I

A STUDY ON “DOCTRINE OF PROSPECTIVE OVERRULING IN

INDIA”

_________________________________________________________________

SUBMITTED TO SUBMITTED BY

DR. BASEERAT FATIMA NUPUR GUPTA

ASSISTANT PROFESSOR 2017BBLH006

JLU, BHOPAL JLU00673

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 A STUDY ON “DOCTRINE OF PROSPECTIVE OVERRULING IN INDIA”

TABLE OF CONTENTS

NO. CONTENTS PAGE

NO.
1. INTRODUCTION 1

2. THE DOCTRINE OF PROSPECTIVE OVERRULING –ORGIN AND 2

MEANING
3. DEVELOPMENT OF THE DOCTRINE OF PROSPECTIVE 3
OVERRULING IN INDIA
4. CONSTITUTIONAL PROVISIONS REGARDING THE APPLICABILITY 6
OF THE DOCTRINE
5. APPLICATION OF THE DOCTRINE IN INDIA 7

6. CRITICAL ANALYSIS OF THE DOCTRINE 7

7. CONCLUSION 8
 A STUDY ON “DOCTRINE OF PROSPECTIVE OVERRULING IN INDIA”

A STUDY ON “DOCTRINE OF PROSPECTIVE OVERRULING IN

INDIA”

I. INTRODUCTION

Legal system of a country always implies the presence of a Judicial organ to adjudicate the rights
and duties of the citizens. The judicial decisions were given in the past by taking guidance from
customs. As the change is an essence of society, so the change makes the legislation as an
important source of law. Judges often rely on the past judicial decisions also to adjudicate a
matter. Therefore, the past judicial decisions can be taken as authority for deciding
a similar set of facts in subsequent cases are known as Precedent. Precedents are an important
source of law. Precedents often serve the purpose of securing justice by curtailing the gap
between the traditional and contemporary perspectives of law. The judicial decisions can have
both retrospective as well as prospective application. The traditional perspective allows the
judiciary to apply the decision in any of the ways. But, the change in the perspective of law
requires it to be applied in a way to ensure justice.

Therefore, it became essential to deviate from the traditional approach of retrospective operation
of judicial decisions which is referred as Blackstonian view of Law. Thereafter, the doctrine of
Prospective overruling was originated from the American legal system which states that a
decision made in a particular case would have operation only in the future and will not carry any
retrospective effect on any past decisions.

The basic objective of prospective overruling is to overrule a precedent without having a

retrospective effect to administer the justice. This doctrine plays an important role in maintaining
the dynamic nature of law. The basic notion of law is provide justice to the aggrieved. Therefore,
it is essential that the past judicial decision which has vested rights with parties can be overruled
for future cases, and not affecting the rights already vested with the parties. Now, The concept of
prospective overruling is an integral part of legal systems of most of the nations including India.
This doctrine has for the first time applied in the I.C. Golak Nath v. State of Punjab case1.

1
I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643.

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II. THE DOCTRINE OF PROSPECTIVE OVERRULING –ORGIN AND MEANING

The doctrine of Prospective overruling was originated from the American judicial system. The
two facets were present in the legal system at that time, First is the theory developed by Lord
Blackstone which states that the court is bound to follow the past decisions and not to develop
the new rules. Hence, this is retrospective in operation. But, the dynamic nature of law made it
possible to develop the second aspect which was propounded by Cardozo J. and Lerned Hand J.
who were firmly in support of the Doctrine of Prospective Overruling. According to them, this
doctrine is important to preserve the dynamic nature of law. Cardozo J. was of the view that the
law must always serve the needs of the society the essence of which is change only. Therefore
the doctrine of Prospective Overruling was considered as an important tool in the hand of
judiciary to give fair and timely justice to its citizens.

The remarkable decision of Cardozo, J. in the famous Great Northern Railway v. Sunburst Oil &
Refining Co.2 has played an important role in the origin of this doctrine. In this case, a decision
was given which overruled its earlier decision without giving its ruling retroactive operation.

The doctrine of Prospective overruling consist of two terms- “Prospective” and “Overruling” The
literal meaning of the term Prospective is being termed as any event which has future operation
while the term Overruling means is to set aside the already established rule. Therefore, the entire
phrase would be read as “The setting aside of past decision of the court but confined it with the
future operation and thereby it will not affect the past decision”. It simply mean that passing a
decision which would have effect to override the previous decision based on the same matter but
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. 

The intention of the court in applying this doctrine is to serve the justice to the society. This
doctrine has laid down a scope of the past rule in the ever changing society which always wants
the rule in favour of their needs. The basic idea of this doctrine is not to invalidate the judicial
decision which was passed in the past according to the situation merely on the ground of

2
Great Northern Railway v. Sunburst Oil & Refining Co., (1932) 287 US 358, 77 Led 360.

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subsequent change in law. This Doctrine serves as an important tool in catering to the changing
needs of the society and offering fair justice.3

III. DEVELOPMENT OF THE DOCTRINE OF PROSPECTIVE OVERRULING IN

INDIA

In Indian legal system, the traditional jurisprudence was the basis of the development which did
not give recognition to the doctrine of prospective overruling. The doctrine has been recognized
in Indian Jurisprudence for the very first time in the I.C. Golak Nath v. State of Punjab in 19674.
Justice Subba Rao has put forth the view in his opinion that the doctrine of Prospective
overruling must be recognized in the Indian Legal System as well to meet the ends of justice.

3.1 The Golaknath case- Applicability of the prospective overruling Doctrine in India

In I.C. Golak Nath v. State of Punjab, the writ petition was filed to challenge the 1953 Punjab
Act on the ground that it denied them their constitutional rights to acquire and hold property and
practice any profession Articles 19(1)(f) and 19(1)(g) and to equality before and equal protection
of the law Article 14. Apart from that, the constitutional Amendments were also challenged
which granted protections to the land reform Acts. The Supreme Court, by majority of 6:5 held
that a constitutional amendment under Article 368 of the Constitution was an ordinary 'law'
within the meaning of Article 13(3) of the Constitution. Further, the Parliament will have no
power from the date of-this decision to amend any provision of Part III of the Constitution so as
to take away or abridge the fundamental rights enshrined therein.

It was in this case that the then Chief Justice Koka Subba Rao had first invoked the doctrine of
prospective overruling. The court overruled the decisions laid down in Sajjan singh v State of
Rajasthan5 and Shankari Prasad v. Union of India 6 which held that Parliament can amend
fundamental rights through Article 368. Further, the honorable Judges of Supreme Court of India
were of the view that, "The doctrine of prospective overruling is a modern doctrine suitable for
a fast moving society as change is the essence of society”. Chief Justice Koka Subba Rao was of
the opinion that Golak nath decision has introduced for the future a new Interpretation of the

3
National Westminster Bank Pic v. Spectrum Plus Limited, (2005) UKHL41.
4
Golaknath v. State of Punjab, AIR 1967 SC 1643.
5
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
6
Shankari Prasad v. Union of India, AIR 1951 SC 455.

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word “Law” in Article 13 as it now includes Constitutional Amendments as well. The effect of
his opinion was that, Parliament shall have no power to abridge the fundamental Rights.
Therefore, by those words it was made clear by the side of the judiciary that the Indian courts are
willing to apply the doctrine of Prospective overruling. It has been observed by the judiciary that
whatever had already been done under the constitutional Amendments was not to be disturbed.

The doctrine was introduced in this case as a part of constitutional jurisprudence. Further, the
court restricted the applicability of this doctrine by the highest court of the country. It can be
inferred from the judgment of this case that though the Apex court had applied this doctrine but
they kept the scope of this doctrine very restrictive.

3.2 After the Golak nath case

As the doctrine of Prospective overruling has secured its position in Indian Jurisprudence but the
judiciary had played major role to further develop the doctrine by refining its Applicability.
Though the judgment of Golak nath case7 was overruled by the larger bench of the Supreme
court in Kesvananda Bharti v. State of Kerala case8, but the applicability of the doctrine was not
impaired by that overruling and even this case has strengthen the applicability and the
importance of this doctrine.

In India Cement Ltd.  v. State of  T.N., this Court not only held that the levy of the cess was ultra
vires the power of the State Legislature brought about by an amendment to the Madras Village
Panchayat Amendment Act, 1964 but also directed that the State would not be liable for any
refund of the amount of that cess which has been paid or already collected.9

Further, the doctrine had been applied in a very significant manner by the judiciary in
the Mandal case. In this case, the court ruled that the Mandal ruling would come into effect after
5 years. The court thus postponed giving effect to the Mandal ruling for five years from the date
of the judgment. This was not only extending the principle of prospective overruling but even
further elongating the same for 5 more years by postponing the operation of the Mandal ruling.10

7
Golaknath v. State of Punjab, AIR 1967 SC 1643.
8
Kesvananda Bharti v. State of Kerala, (1973) 4 SCC 225.
9
India Cement Ltd. v. State of T.N., AIR 1990 SC 85.
10
Indra Sawhney v Union of India, AIR 1993 SC 477.

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The court has very analytically defined this doctrine in the case of Ashok Kumar Gupta v. State
of Uttar Pradesh11. It has been established that the doctrine was a method evolved by the courts
to adjust competing rights of parties so as to save transactions whether statutory or otherwise,
that were affected by the earlier law."

In addition to the constitutional matters, the apex court has held that the doctrine of ‘prospective
overruling was initially made applicable to matters arising under the Constitution but it has now
become applicable to matters arising under the statutes as well. Further, the court again reiterated
the literal meaning of the doctrine as 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 hard ship to those who have trusted to its existence.12

The court in Saurabh Choudhary v. Union of India held “Prospective application of a judgment
by the court must, there, be expressly stated." The honorable Supreme Court further added that
"A statute is applied prospectively only when thereby vested or accrued right is taken away and
not otherwise." Further, this doctrine has been used in various cases as this doctrine is become
important to secure justice. 13

11
Ashok Kumar Gupta v. State of Uttar Pradesh, (1997) 5 SCC 201.
12
Sarwan Kumar v Madan Lal Aggarwal, (2003) 4 SCC 147.
13
Saurabh Choudhary v. Union of India, (2003) 11 SCC 146.

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IV. CONSTITUTIONAL PROVISIONS REGARDING THE APPLICABILITY OF THE

DOCTRINE

In India, there are no specified provisions or rules to govern the applicability of the doctrine of
Prospective Overruling. The doctrine is entirely dependent upon the discretion of the court.
Therefore, it can be said that precisely Apex court has the power to apply this doctrine in the
cases refer to the court and the Apex court derives this power from the constitution of India
itself. There are constitutional provisions which entitle the Supreme court of India to adopt or
disregard the legal doctrines to ensure the administration of justice.

These constitutional provisions constitute Article 32, 141 and 142 which are subject to wide
interpretation. The law laid down by the Supreme Court shall be binding on all courts within the
territory of India.14  Every court is under an obligation to follow the precedent laid down by a
court superior to itself. Therefore, the supreme court being a superior court is under an obligation
to lay down a law which is to be followed by the courts inferior to it. A precedent, therefore,
writes Salmond, is a judicial decision which contains in itself a principle. 15 Further, the Apex
court can apply any legal doctrine by virtue of these provisions. In consonance with these
provisions, the supreme court had applied the Doctrine of prospective overruling in the Golak
nath case in 1967.

Further, the Apex court had provoked the Article 141 to apply the doctrine with prospective
effect. It has been laid down by the court that there are no statutory provisions which are against
the applicability of the Doctrine. In furtherance of that, the court had found it as an efficient tool
to apply the doctrine to do justice.

The doctrine of prospective overruling is a device innovated to avoid reopening of settled issues,
to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. There
shall be no prospective overruling, unless it is so indicated in a particular decision. The law as
declared applies to future cases. 16

14
Article 141, Constitution of India.
15
Salmond, Jurisprudence, eleventh edn, pp 223-24
16
M.A. Murthy v. State of Karnataka, (2003) 7 SCC 517.

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V. APPLICATION OF THE DOCTRINE IN INDIA

The application of the doctrine of prospective overruling remains uncertain in India. It is relevant
to note that though the Supreme court had applied this doctrine but applied it in very restrictive
sense. At that time, it had been applied in an extremely narrow area, i.e.in the case of invalidity
of constitutional amendments which had been in force for a long time. But, the court had applied
it in another area also such as the court declares a statute unconstitutional, it may make the ruling
operational in future from the date of the decision without affecting the validity of the past
transactions.17

It may be noted that this doctrine initially made applicable to the matters arising under the
constitution but then the same has been made applicable to the matters arising under the statutes
as well.  Precisely, the doctrine recognises the discretion of the Court to prescribe the limits of
retroactivity of the law declared by it. It is a great harmonizing principle equipping the Court
with the power to mould the relief to meet the ends of justice. 18 Ordinarily the doctrine has a
limited application and applies where a statute is declared ultra vires and not in a case where the
decree or order is passed by a Court/tribunal in respect whereof it had no jurisdiction.19

VI. CRITICAL ANALYSIS OF THE DOCTRINE

The doctrine of Prospective overruling had witnessed criticism also other than the appreciation
by various jurist including Renowned Jurist Mr. H.M. Seervai. It has been pointed out that the
doctrine was applied initially to overrule the past decisions regarding the Constitution
Amendment but with the future effect. The doctrine held the Constitutional Amendment which
violated the fundamental rights as unconstitutional but applied it prospectively. This application
was against the view of the jurist that the Constitutional amendment which abridges fundamental
rights must be void ab initio. Another point was that the doctrine was come under the ambit of
judicial discretion. Therefore, the applicability of this doctrine for socio-economic setup of
Indian legal jurisprudence is a dynamic nature of law.

17
Githa Hariharan v Reserve Bank of India, AIR 1999 SC 1149.
18
Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562.
19
Rajasthan S.R.T.C. v. Bal Mukund Bairwa, (2009) 4 SCC 299.

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VII. CONCLUSION

On the whole, the attempt made by the Indian judiciary to apply the doctrine of Prospective
overruling in Indian context, was the productive one to attain justice. The doctrine though finds
its roots in the American Jurisprudence but the doctrine had finally secured its place in the Indian
Jurisprudence by the landmark judgment of the Apex court. The doctrine was applied for the
very first time in Golak Nath case wherein the constitutional Amendments which had abridged
the right to property which was the Fundamental right as that time, were challenged.

The Supreme Court finally found it important to apply the doctrine of overruling through which
the Apex court had not only overruled the previous decisions on the same matter but also kept
the future effect of judgment. It simply means that the court had of the view that whatever had
already been done by virtue of these constitutional Amendments should not be affected because
the retrospective application would have created complications as far as agrarian field is
concerned. Therefore, by this case the doctrine had become an important tool in the hand of
judiciary to overrule the previous judicial decision but with prospective application. Precisely,
the application of this doctrine is entirely based upon the discretion of the court.

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