Judicial Creativity- Doctrine of Prospective Overruling

A PROJECT ON

JUDICIAL CREATIVITY – DOCTRINE OF PROSPECTIVE OVERRULING

___________________________________________

SUBMITTED TO: PROF. DR. ANIRUDH PRASAD

FACULTY, JURISPRUDENCE II
___________________________________________
SUBMITTED BY: MRINALINI KATULKAR
ROLL NO.: 28
SEMESTER: IV; BATCH: VIII
DATE: 25.10.2010

HIDAYATUL
LAH NATIONAL
LAW UNIVERSITY
(CHHATTISGARH)

1
Judicial Creativity- Doctrine of Prospective Overruling

TABLE OF CONTENTS

ACKNOWLEDGEMENT……………………………………………………………………….3

OBJECT ...………………………………… ……………………………………………………4

METHODOLOGY………………………………………………………………………………5

LIST OF ABBREVIATIONS…………………………………………………………………..6

INTRODUCTION……………………………………………………………………………….7

CHAPTER1 ORIGIN………………………………………………...………………………….9

CHAPTER 2 APPLICABILITY OF PROSPECTIVE OVERRULING……........................11

CHAPTER 3 MERITS AND DEMERITS OF PROSPECTIVE OVERRULING…………17

CHAPTER 4 PROSPECTIVE OVERRULING AND INDIAN CONSTITUTION...……...20

CHAPTER 5 REALIST JURISPRUDENCE AND PROSPECTIVE OVERRULING…....21

CONCLUSION…………………………………………………………………………………23

BIBLIOGRAPHY………………………………………………………………………………24
Judicial Creativity- Doctrine of Prospective Overruling

ACKNOWLEDGEMENT

I, Mrinalini Katulkar, consider it my most humble privilege to have been able to work on the
demanding yet most interesting and enthralling of all issues, as one of” Judicial Creativity –Doctrine of
Prospective Overruling”. Working on this paper has been one of the most enriching experiences of my
life and has not only amassed bulk of highly relevant and extremely functional information, but has also
endowed me with an empirical, at the same time empathetic perspective towards the subject. In this
context, I’d like to extend heartfelt thanks to the people who have rendered this project as a reality. I
would take this privilege to thank my Faculty, Dr. Anirudh Prasad, for his unwavering and unconditional
support, incomparable and illuminating knowledge and guidance, without which this project would not
have been feasible. I would also like to express my earnest gratitude to the HNLU library staff, I.T
department, ever-so-helpful seniors and my friends and colleagues and each and every person without
whose help, support and guidance, and in fact mere presence, this project would never have transformed
from strands and traces of mere thought into tangible black and white reality.

Mrinalini Katulkar

Batch VIII; Sem.V

Judicial Creativity- Doctrine of Prospective Overruling

OBJECT

This project seeks to analyses the doctrine of prospective overruling, its origin, and its
applicability, merits and demerits provisions in Indian constitution giving validity to it and realist
jurisprudence and prospective overruling
Judicial Creativity- Doctrine of Prospective Overruling

METHODOLOGY

The researcher would be following doctrinal research methodology and would be relying on primary and
secondary sources.
Judicial Creativity- Doctrine of Prospective Overruling

LIST OF ABBREVIATIONS

1. ¶ : paragraph
2. AIR: All India Reporter
3. All: Allahabad
4. AP: Andhra Pradesh
5. Art. : Article
6. Bom: Bombay
7. Cal: Calcutta
8. Cr.LJ: Criminal law Journal
9. Corp: Corporation
10. Del: Delhi
11. Edn. : Edition
12. Etc: et cetra
13. KER: Kerala
14. Lah-Lahore
15. MP: Madhya Pradesh
16. Ori:Orissa
17. Ors. :Others
18. Pg. : page
19. Pat :Patna
20. PLR: Punjab Law Reporter
21. T.P Act-Transfer of Property Act.
22. Sec. : Section
23. SC: Supreme Court
24. SCC: Supreme Court Cases
25. Supp.: Supplement
26. v. : versus
Judicial Creativity- Doctrine of Prospective Overruling

INTRODUCTION

The basic meaning of prospective overruling is to construe an earlier decision in a way so as to

suit the present day needs, but in such a way that it does not create a binding effect upon the
parties to the original case or other parties bound by the precedent. The use of this doctrine
overrules an earlier laid down precedent with effect limited to future cases and all the events that
occurred before it are bound by the old precedent itself. In simpler terms it means that the court
is laying down a new law for the future.

There are two aspects to the doctrine of prospective overruling. The first aspect was laid down
by Lord Blackstone, according to this theory Judges don't make the law; their job is to define the
law. They should however follow the doctrine of Stare Decisis. The doctrine of Stare Decisis
means "to stand by precedent and not to disturb the settled point of law"1; the logic behind this
doctrine is that people should not get confused as to what is legal and what is illegal.

The doctrine of prospective overruling supplies the gap in legal theory and offers doctrinal
foundations for an extended view of judicial function with built in discretion for which the
holding in a particular case shall have operative effect. Mathew, J., explains the thrust of the
rationale behind the doctrine of prospective overruling by observing that it is not meant to
supplant the Blackstonian doctrine but is a necessary device in system of law to protect the
interest of litigant public when judicial overruling of a precedent entails a change in the law.2

The prospective declaration of law is a devise innovated by the SC to avoid reopening of

settled issues and to prevent multiplicity of proceeding. It is also devise adopted to avoid
uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is
deemed that all actions taken contrary to the declaration of law prior to its declaration are
validated. This is done in larger public interest. Therefore, the subordinate forums which is
duty-bound to apply such dictum to cases which would arise in future only. In matter where
decisions opposed to the said principle have been taken prior to such declaration of law cannot
be interfered with on the basis of such declaration of law.3

1
JAYAKUMAR N.K., JUDICIAL PROCESS IN INDIA 90 (1st Ed, 1997).
2
V.N Narayanan Nair v. State of Kerala, AIR 1971 Ker 98
3
Baburam v.C.C Jocob, AIR 1999 SC 1845
Judicial Creativity- Doctrine of Prospective Overruling

Prospective overruling is a part of the principles of constitutional cannon of interpretation. It is

only an extended fact of stare decisis and not judicial legislation and can rightly be resorted to
the SC while superseding law declared by it earlier. 4 The doctrine of prospective overruling does
not do away with on the basis of such declaration of law.5

4
Ashok Kumar Gupta v. State of Uttar Pradesh,(1999)5 SCC 201
5
Golak Nath v. State of Punjab, AIR 1967 SC 1643
Judicial Creativity- Doctrine of Prospective Overruling

CHAPTER 1- ORIGIN

The doctrine of prospective overruling says that the case The Blackstonion traditional view that
“precedents do not create law but only declare them” caused considerable hardship and injustice
to the affected parties who relied and acted on previous decisions. The historic decision in the
6
case of People v. Graves given by Supreme Court of America amply highlights the dangers
arising from retrospective operation to decisions which overrule previous ones. The fact of the
case briefly as follows:-

The US Supreme Court in 1928 decided that a State had no right to tax the income from
copyright royalties. The decision was overruled in 1932 on the ground that it was erroneous.
During the three intervening years Elmer Rice, a noted dramatist of New York had received large
sums by the way of royalties from his plays for which he had paid no income tax in New York.
After the overruling of the decision in 1932, New York authorities demanded three years income
tax from Elmer Rice on these royalties. The New York Court not only held that Rice liable for
the previous three year tax but also ordered him to pay interest for the intervening period. This
decision of the Court is based on the theory that when a precedent is overthrown, the overruling
decision must be viewed as enunciating the law and the discarded decision must be treated as
nullity. Relying on the theory that courts merely declare pre-existing law, it logically follows that
an overruling decision operates retrospectively.7

In order to avoid such hardships resulting from overruling, the Supreme Court of United States
has expressly given constitutional recognition to the doctrine of prospective over-ruling which
denies retrospective effect to the overruled decisions.

The doctrine of prospective overruling was formulated in remarkable decision of Cardozo, J. in

the famous Great Northern Railway v. Sunburst Oil & Refining Co 8explained the thesis of the
prospective overruling in the words which merit repetition:

“he point out that a judicial choice between retrospectively and prospectively will involve no
denial of a right protected by the Constitution by implication. This means that retrospectively of

6
273 NYS 582(US) 1934.
7
DR. PARANJAPE N.V, STUDIES IN JURISPRUDENCE AND LEGAL THEORY 226,(4TH ED. 2004)
8
287 US 358 (1932).
Judicial Creativity- Doctrine of Prospective Overruling

judicial decision is not constitutionally mandated as being of the very essence of judicial
function. There is thus no risk of the essential feature of the judicial function being impaired by
this innovation. However, Cardozo, J. was careful to point out in the Sunburst case that it was
not a case where the court in overruling an earlier decision was giving to the new ruling a
retrospective effect that would make invalid what was valid when done.

This doctrine was for the first time applied in India Golak Nath L.C. v State of Punjab 9. The
Doctrine of Prospective Overruling is now an integral part of the Indian Legal System, it is
enshrined in our jurisprudence but not in the fashion it is installed in American jurisprudence.
After Golak Nath's10 case the judiciary has given different views over this doctrine. It can be said
that the judiciary has itself tried to evade the discussion over this issue of prospective overruling.
In the case of Golak Nath,11 the SC of India adopted the Doctrine of prospective overruling. In
this case validity of the First, Fourth and Seventeenth Amendments of the Indian Constitution
were challenged and it was contended that those were invalid. Prior to that case, the SC had held
in Shankari Prasad Singh Deo v.UOI12 and Sajjan Singh v. State of Rajasthan13 that those
amendments were valid. The earlier decision enables the Government to put an end to the
Zamindari system and distribute land among the peasants. In case of Golak Nath14 ,the SC held
by the majority of 6 to 5 that the above mentioned amendments were invalid and prejudicially
affected the fundamental right to property. Ordinarily, this would be upset everything done so far
in the agrarian field and would have created many complications. The result was that the SC
restricted the effect of decision to future cases. It was laid down that the fundamental rights
could not be taken away or abridged by the constitutional amendment in future but whatever had
been done under the First, Fourth and Seventeenth Amendments was not to be disturbed. This is
called the Doctrine of Prospective Overruling.15

9
AIR 1967 SC 1643
10
Ibid.
11
Ibid.
12
AIR 1951 SC 458
13
AIR 1965 SC 845
14
Supra footnote no. 9
15
MAHAJAN V.D, JURISRUDENCE & LEGAL THEORY 215(5TH ED.,2008)
Judicial Creativity- Doctrine of Prospective Overruling

CHAPTER2-APPLICABILITY OF PROSPECTIVE OVERRULING

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.

 Australia

16
It appears that the doctrine is not applicable in Australia. In Ha v. New South Wales the High
Court of Australia rejected the plea to give effect to its finding of unconstitutionality of a license
fee after twelve months from the decision because of serious implication of this decision on
revenue of State. The High Court unanimously considered it to be a “prevision of judicial power
to maintain in forces that which is acknowledge not to be the law”.

 Canada

Until 2007, courts had taken divergent views on the applicability of this doctrine. In the words of
Bayda, CJS,”the most cogent reason for rejecting this technique is the necessity for our courts to
maintain their independent, neutral and non legislative role”. 17However, in Language Rights
under the Maintoba Act,1870, In re the Supreme Court of Canada declined to give retroactive
effect to its decision on the constitutional invalidity of all statute and regulations of Province of
Maintoba that were not printed and published in both English and French, as a country view of
matter would created several problems.

The Supreme Court of Canada18 once again dealt with the issue of prospective overruling and
held that the declaratory theory approach of Blackstone would normally apply and decisions
would have retrospective effect. However, in exceptional cases, the courts had the power to
prospectively overrule the previous decisions. The Supreme Court of Canada adopted the view of
House of Lords in Spectrum Plus case19 and in particular, followed the observations of Lord

16
(1997)189 CLR 456.
17
Edward v.Edward, 1987 Sask. R. Lexix 674
18
Canada (Attorney General) v. Hislop(2007)SCC 10 (Cad)
19
(2005)2 AC 680
Judicial Creativity- Doctrine of Prospective Overruling

Nicholls of Birkenhead who held that the Blackstonian rule should be followed where a previous
decision was overruled as being wrong when it was given but later decision represents a response
to “change in social conditions” then the declaratory approach is inapt and at odds with reality.
Thus, the Canadian Supreme Court has also adopted the doctrine of prospective overruling20.

 India

In the case of Naryanan Nair v. State of Kerela 21 , 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.

It was in the case of Golaknath v. State of Punjab22 , 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".

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

20
Datar P Arvind, PROPECTIVE OVERRULING: CORRECT DOCTRINE, INCORRECT APPLICATION (2008) 7SCC J-41
21
AIR 1971 Ker 98
22
Supra footnote 9.
Judicial Creativity- Doctrine of Prospective Overruling

impugned amendments abridged the scope of fundamental rights. Justifying his stand, he held
that:

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.

However now this situation has changed and this doctrine are applicable to other statutes also,
which again is a very dynamic step taken by the judiciary in order to meet the ends of justice.
The court has very analytically defined this doctrine in the case of Ashok Kumar Gupta v. State
of Uttar Pradesh23, as “... it 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.". A similar definition of this doctrine was given by the Supreme Court in Sarwan Kumar v.
Madan Lal Aggarwal24, "Under the doctrine of prospective overruling the law declared by the
court applies to the cases arising in future only and its applicability to the cases which have
attained finality is saved because the repeal would otherwise work hard ship to those who have
trusted to its existence."
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
23
AIR (1997) SC 201.
24
AIR (2003) SCW 819
Judicial Creativity- Doctrine of Prospective Overruling

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.25

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.

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.26
25
PROF. LAKSHMINATH A, PRECEDENT IN INDIAN LAW 219 (2ND EDN.,2005).
26
Ibid
Judicial Creativity- Doctrine of Prospective Overruling

One more case where the doctrine of prospective overruling finds application is the Mandal case,
otherwise called the Indra Sawhney v. Union of India. 27 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.

Present position
The Supreme Court in the landmark case of Keshvanandabharathi v. State of Kerala28 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.

27
AIR 1993 SC 477
28
AIR 1973 SC 1461
Judicial Creativity- Doctrine of Prospective Overruling

 United Kingdom

The applicability of this doctrine in United Kingdom had been discussed in detail in the article
by Lady Arden referred to earlier. She observed that the earlier view of several English Judges
doctrine had no place in the English Judges was that this doctrine had no place in English legal
system. Lord Reid observed that it was not permissible that the law is one thing yesterday but
was to be something different tomorrow.29Lord Goff remarked that the system of prospective
overruling “has no place in our legal system”30

The House of Lords finally found it difficult to resist the applicability if this doctrine. In, 2002,
the House of Lords31 had the occasion to consider the prospective overruling of an earlier case. 32
The House set out the steps to be followed by a bank with regard to future transactions. In the
other words, it did not disturb the earlier practice that had been followed by the bank. In 2005 the
House of Lords had another occasion to consider this doctrine. In National Westminster Bank
Plc v. Spectrum Plus Ltd.33 Lord Nicholls of Birkenhead held that it could not be considered as
judicial overstepping if the doctrine of prospective overruling were to be applied in cases where
a decision on an issue of law, whether common law or statute law, was unavoidable but the
decision would have such ‘’gravely unfair and disruptive consequences for past transactions or
happening that this House would be compelled to depart from the normal principle s relating to
retrospective and prospective effect of court decisions.

Thus, the doctrine as applied in the United States and the United Kingdom has not been
confined to constitutional cases.

 United States of America

29
West Midland Baptist (Trust)Assn. Inc. v. Birmingham Corpn.(1970) AC 874
30
Kleinwort Benson Ltd. v. Lincoln City Council (1999) 2 AC
31
Royal Bank of Scotland plc v. Etridge (2002) 2 AC 773
32
Barclays Bank Plc v. O’Brien (1994) 1AC 180
33
(2005) 2 AC 680
Judicial Creativity- Doctrine of Prospective Overruling

The doctrine of prospective overruling originated from the American judicial system. It was for
the first time laid down by Cardozo J. and Lerned Hand J. The doctrine aims at overruling a
precedent without causing a retrospective effect. The concept of prospective overruling is now an
integral part of legal systems world over. It is applicable not only in the constitutional matters
but in several civil disputes as well. It has been not only applied not only the United States
Supreme Court but also Supreme Courts of several States.

CHAPTER 4- MERITS AND DEMERITS OF PROSPECTIVE OVERRULING

Judicial Creativity- Doctrine of Prospective Overruling

Merits

 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 retrospectively to a judicial
decision.
 The socio-economic setting at that time was in fact a fascinating endeavor, keeping in
mind the rhetoric of following traditional rules and principles.
 Courts have 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.
 The prospective declaration of law is a devise innovated to avoid reopening of settled
issues and to prevent multiplicity of proceeding.
 It is also devise adopted to avoid uncertainty and avoidable litigation. By the very object
of prospective declaration of law, it is deemed that all actions taken contrary to the
declaration of law prior to its declaration are validated. This is done in larger public
interest. Therefore, the subordinate forums which is duty-bound to apply such dictum to
cases which would arise in future only.

Demerits

 In the first place, it is said that retroactivity is an essential component of the adjudicatory
function of the court.34According to this argument, courts insulation from political
pressure and entrenched expectation of retroactivity demand that the courts should
operate backwards.35
 There is separation of power between different branches of State such as legislature,
executive, judiciary there is overlap of functions in this doctrine the judiciary start
performing the function of legislature.
 Professor Nicol argues, the adversary process tries to set up a zero-sum game(one wins
and the other loses). Prospective overruling however set up the possibility of non-zero-
sum game (where both sides win).36

34
Mishkin, (1979)Harv. L. Rev. 56 (1966)
35
Supra footnote 25 212.
36
Ibid 200.
Judicial Creativity- Doctrine of Prospective Overruling

 Prospective overruling allows a court to make new law without applying it to the case
theory of declaratory function of the judges. It can be given basis in the separation of
powers rationale too. It can be further seen as an explication for the thrust of the
traditional argument which is that judges expound the law only on the basis of the facts
before them.37
 Prospective overruling would make overruling more common and undermine the value of
certainty which is protected by stare decisis.
 Judicial law making when entails prospective overruling crosses the Rubicon that divides
judicial from legislative function and that such method of law- making should not be
open to a non elected judiciary being undemoractic.38

CHAPTER 5 -PROSPECTIVE OVERRULING AND INDIAN CONSTITUTION

The legal position as regards applicability of doctrine of prospective overruling is no longer res
integra. The SC in exercise of its jurisdiction under Article 32 or 142 of the Constitution may
declare a law to have prospective effect. The Division Bench of High Court may be correct in
37
Ibid.
38
Ibid 202
Judicial Creativity- Doctrine of Prospective Overruling

opining. That having regard to the decision of SC in Golak Nath, 39the power of prospective
overruling is vested only in SC and that too in Constitutional matters, but High Court in exercise
of its jurisdiction under Article 226, even without applying the doctrine of prospective
overruling, indisputably may grant a limited relief in exercise of its equity jurisdiction.40
Indian Constitution does not expressly or by necessary implication speak against the doctrine of
prospective over-ruling. Talking about Articles 32, 141 and 142, Justice Subbarao 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.41

CHAPTER 6- REALIST JURISPRUDENCE AND PROSPECTIVE OVERRULING

The spread of prospective overruling may have been impeded not only by the philosophic hurdle
of a traditional jurisprudence lingering on in its dying gasps but also and more specifically by the
climate of jurisprudential discussion since the thirties. The Realist critique placed its emphasis on
other facets of the judicial process. This critique has been in the direction of rule skepticism, as
39
Supra footnote 9.
40
P.V George v. State of Kerala (2007)3 SCC 577
41
Ibid 212
Judicial Creativity- Doctrine of Prospective Overruling

with Llewellyn, which emphasized the malleability of rules, their distinguish-ability, their
multiplicity, and the naïveté of a single-line precedent doctrine.
Courts have been remaking law with Increased frankness and deliberateness and in doing so
have been more sensitive to social implications and social data. 42 There has been a greater
tendency on the part of judges to assume overt responsibility for the changes they make. “The
potter, and not the pot, is responsible for the shape of the pot.”43
Neither the force nor the value of our inherited judicial methods should be underestimated.
They are an implicit and constant discipline to any judge who might feel egocentrically licensed
to go on a legislative rampage. “When we examine how a society bends its individual members to
function in conformity with its needs, we discover that one important operative agency is our
vast system of inherited symbolism.”44
But if hypocrisy is the tribute which wickedness pays to virtue, then courts have been freed
from the onus of hypocrisy to the extent that their lawmaking is no longer regarded as a
departure from judicial chastity. That is a very significant stride, and one which deserves to be
elaborated and celebrated. “The art of free society consists first in the maintenance of the
symbolic code; and secondly fearlessness of revision, to secure that the code serves those
purposes which satisfy an enlightened reason. Those societies which cannot combine reverence
to their symbols with freedom of revision, must ultimately decay either from anarchy, or from the
slow atrophy of a life stifled by useless shadows.” 45
Prospective overruling is only one of many positive ways of placing newly formulated
judicial law on a sound basis. These other ways remain a program of inquiry. The future beckons
us to experiment, once the dead past has buried its long since dead. For when we see the judge as
himself, a partial legislator in a period of legislative dominance, we shall be freed to devote a
disciplined and unencumbered imagination to the task of aiding judicial lawmakers to perform
their duties with facilities more appropriate to their function.

Judicial Activism is a concept in which this doctrine plays a very essential role, this concept of
prospective declaration is very essential in order to keep up with changing needs of the society.

42
CAHILL, JUDICIAL LEGISLATION: A STUDY IN AMERICAN LEGAL THEORY 157(5th ed. 1952)
43
WHITEHEAD, SYMBOLISM: ITS MEANING AND EFFECT 8-9 (1927).
44
Ibid.
45
Ibid.
Judicial Creativity- Doctrine of Prospective Overruling

Law does have a very dynamic nature and it cannot be kept too static as it will not match with
the current needs of the people. It is also true that it should be left up to the judges to decide the
limit of retroactivity of each case. However when in a case of prospective overruling a precedent
is overruled the new decision is kept totally prospective and not at all retrospective, if it is given
a retrospective effect it will certainly lead to chaos and people will not know what is the law.

CONCLUSION AND SUGGESTIONS

Today we are witnessing a unique phenomenon – as the world rapidly grows closer due to
globalization, the legal systems of the world are working in harmony with each other towards the
common good. As a result, there has been a global trend of convergence in legal systems lately.
Judicial Creativity- Doctrine of Prospective Overruling

The Civil and Common Law systems have started borrowing from each other and treading a
common path. One of the first instances of this growing trend was the reflected in the position of
precedents. Slowly, over the last few decades, it has been seen that the effect of precedents in
common law has diminished while the standing of precedents in civil law has only grown
greater, as more and more civil law judges have started to give precedents argumentative value.
In the words of Merryman, “Those who contrast the civil law and the common law traditions by
a supposed non use of judicial authority in the former and a binding doctrine of precedent in the
latter exaggerate on both sides. Everybody knows that civil law courts do use precedents.
Everybody knows that common law courts distinguish cases they do not want to follow, and
sometimes overrule their own decisions. ”46
In India we have adapted the doctrine of prospective overruling that has helped the judiciary over
the years to yield fair justice to the citizens of India. However the judiciary has to be careful in
implementing this doctrine as careless usage of this doctrine can also lead to injustice to the
society. The Doctrine of Prospective Overruling is an integral part of our legal system and it
should be explored more by the Judiciary. Prospective overruling, far from being undemocratic
can serve as a healthy warning to a democratic legislature that its future acts should be brought in
consonance with the constitutionally mandated authority as ascertained and established by the
court.

BIBLIOGRAPHY

46
John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal System of Western Europe and
Latin America 15 (2nd ed., 1985)
Judicial Creativity- Doctrine of Prospective Overruling

BOOKS

1. JAYAKUMAR N.K., “JUDICIAL PROCESS IN INDIA”, 1ST ED, 1997.

2. LAKHIMINATH A., “PRECEDENT IN INDIAN LAW”, 2ND ED , 2005.
3. PANDEY J.N., “CONSTITUTIONAL LAW OF INDIA”, 40TH ED, 2003.
4. SEERVAI H.M., “CONSTITUTIONAL LAW OF INDIA”, VOL 3, 4TH ED, 1996.
SHUKLA V.N., “CONSTITUTION OF INDIA”, 10TH ED, 2001.
5. DIAS R.W.M., “JURISPRUDENCE”, 4TH ED, 1976.
6. CAHILL, JUDICIAL LEGISLATION: A STUDY IN AMERICAN LEGAL THEORY (5th ed.
1952)
7. MAHAJAN V.D, JURISRUDENCE & LEGAL THEORY (5TH ED.,2008)
8. DR. PARANJAPE N.V, STUDIES IN JURISPRUDENCE AND LEGAL THEORY (4TH ED.
2004)

WEBSITES

1. www.westlaw.com
2. www.indlaw.com
3. www.manupatra.com
4. www.jstor.org

ARTICLES
1. James G. Apple and Robert P. Deyling, “A Primer on the Civil-Law System”, Federal
Judicial Centre 33 (1994).
2. Wright, “Precedent”, 4 (2) The University of Toronto Law Journal 247 (1942).
3. Frederick Schauer, “Precedent”, 39 (3) Stanford Law Review 571 (1987).
4. Stephen R. Perry, “Judicial Obligation, Precedent and the Common Law”, 7 (2) Oxford
Journal of Legal Studies 215 (1987).