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Doctrine of Prospective Overruling originated in the American Judicial System. The literal meaning ofthe term overruling is to overturn or set aside a precedent by expressly deciding that it should nolonger be controlling law. Similarly prospective means operative or effective in the future. So,combined together, prospective overruling means construing an earlier decision in such a way that itwould not have a binding effect to the parties of the original suit or to the cases decided on the basis ofthat judgment, and yet changing the law, applying it only prospectively to the future cases. Forexample, if principle A is laid down in the case of X v. Y and later on the court disagrees with thePrinciple A, it changes the principle prospectively without affecting the judgment of X v. Y and thus thenew principle will apply only to the future cases.

There are two views on the doctrine of Prospective Overruling. The first view is by Blackstone whobelieves that the Doctrine of Stare Decisis should be followed the courts in the administration of justice.Thus a precedent once set should be adopted by the lower courts also in their judicial processes and itmust be left to the judges to decide which decision shall be applied retrospectively and which shall beapplied prospectively. Thus it can be interpreted that there is no such requirement of this doctrine asthe judges can decide accordingly keeping in view the question in hand. This view is totally against thedoctrine of Prospective Overruling.

The second view is that of Cardozo J. who is known as the originator and propounder of Prospectiveoverruling. He laid down this doctrine in the case of Northern Railway v. Sunburst Oil and RefiningCo where he refused to make the ruling retroactive. He has specifically mentioned that

This is not a case where a court, in overruling an earlier decision, has given to the new ruling aretroactive bearing, and thereby has made invalid what was valid in the doing.

The basic objective of prospective overruling is to overrule a precedent without having a retrospectiveeffect. According to Cardozo J. if this doctrine is not given effect it will wash away the whole dynamicnature of law, it will be against the concept of judicial activism. Cardozo J. was of the view that the lawshould keep up with the changes occurring in the society, the law has to be dynamic and not static. If ina new and changed society, the citizens are bound by an old law it will lead to grave injustice. Thecitizens whose lives are bound by the law of land should be given laws according to changed needs.Therefore the doctrine of Prospective Overruling is an important tool in the hand of judiciary to give fairand timely justice to its citizens.

Prospective Overruling in IndiaThe doctrine of prospective overruling was for the first time adopted in the case of Golak Nath v. Stateof Punjab (herein referred as Golaknaths case). Since then it has been applied in many case lawsand has also been a point of debate of many jurists. Through this article, an attempt is made at brieflyanalyzing the stand of the Indian Judiciary on adopting the doctrine of Prospective overruling.

It is very important in this context to analyze the holding of the Judiciary in Golaknaths case. Thedoctrine is defined as

The doctrine of "prospective overruling" is a modern doctrine suitable for a fast moving society. It doesnot do away with the doctrine of state decision but confines it to past transactions. While in Strict theoryit may be said that the doctrine 'involves the making of law, what the court really does is to declare thelaw but refuse to give retroactivity to it. It is really a pragmatic solution reconciling the two conflicting

doctrines, namely, that a court finds the law and that it does make law and it finds law but restricts itsoperation to the future. It enables the court to bring about a smooth transition by correcting, its errorswithout disturbing the impact of those errors on past transactions. By the application of this doctrine thepast may be preserved and the future protected. Our Constitution does not expressly of by necessaryimplication speak against the doctrine of prospective overruling.

Propositions laid down in Golak Naths CaseBecause it was the first time that the Court was applying a doctrine which had evolved in a differentsystem of law so the Court laid down certain provisions restricting the application of the doctrine in theIndian system. It was laid down that

(1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution;

(2) It can be applied only by highest court of the country, ie. The Supreme Court as it has theconstitutional jurisdiction to declare law binding on all the Courts as it has India;

(3) The scope of the retrospective operation of the law declared by the Supreme Court superseding itsearlier decisions is left to its discretion to be moulded in accordance with- the justice of the cause ormatter before it.

In light of the above principles laid down for adopting the doctrine into our legal system, we see that theAmerican idea of Prospective overruling differs from what is adopted by the Indian Legal system.

Prospective Overruling: as defined by the CourtsFurther in the case of Sarwan Kumar v. Madan Lal Aggarwal , the Court defined prospective overrulingas

Under the doctrine of "prospective overruling" the law declared by the Court applies to the casesarising in future only and its applicability to the cases which have attained finality is saved because therepeal would otherwise work hardship to those who had trusted to its existence.

Furthermore, it has been laid down that the prospective declaration of law is a device innovated by theapex court to avoid reopening of the settled issues and to prevent multiplicity of proceedings. It is also adevice adopted to avoid uncertainty and avoidable litigation. By the very object of the prospectivedeclaration of law, it is deemed that all actions taken contrary to the declaration of law prior to its date ofdeclaration are validated. This is done in the larger public interest. Therefore, the subordinate forumswhich are legally bound to apply the declaration of law made by this Court are also duty bound to applysuch cases which would arise in future only.

Application of the DoctrineWe must note that in Golak Naths case, it was held that this doctrine can be invoked only in mattersarising under the Constitution and the same can be applied only by the Supreme Court in its discretionto be moulded in accordance with the justice of the cause or matter before it.

But it has now been held that application of the doctrine of prospective overruling has been extended tothe interpretation of the ordinary statutes as well. In the cases of Waman Rao v. Union of India , AtamPrakash v. State of Haryana , Orissa Cement Ltd. v. State of Orissa , Union of India v. Mohd. RamzanKhan and Managing Director, ECIL v. B. Karunakar the device of prospective overruling was resortedto even in the case of ordinary statutes.

The doctrine of prospective overruling also finds reference in the case of Indra Sawhney v. Union ofIndia often know as the Mandal Commission Case. In this case, Justice Jeevan Reddy decided thatthe ruling in this case would be effective after five years from the date of the ruling. The Court thus

postponed giving effect to the ruling for five years from the date of the judgment. This case not onlysees the extension of the application of the doctrine but even the elongation of the time period when thejudgment would be effective.

Furthermore explaining the principle, in the case of Harsha Dhingra v. State of Haryana , theHonourable Supreme Court has held that since it is indisputable that a court can overrule a decisionthere is no valid reason why it should not be restricted to the future and not to the past. Prospectiveoverruling is not only a part of the constitutional policy but also an extended facet of stare decisis andnot judicial legislation.

But a critique of the doctrine can be found in Narayani Bai v. State of Maharashtra where it wasobserved that even the Judges for whom Subba Rao CJ spoke did not accept the doctrine ofprospective overruling in all its implications as understood by the American Courts.

Criticism by H.M. SeervaiEminent Indian jurist HM Seervai has been critical of the doctrine of prospective overruling or invalidityin the second edition his book Constitutional Law of India. He is basically against the uncriticaladoption of the doctrine into our Constitutional System as he thinks that it might cause radical changesin the interpretation of the Supreme most law of the land and also in the judicial process in the country.

His basic criticism is against the adoption of this doctrine into our judicial system as he feels that thereare fundamental differences in the roles assigned to the Supreme Court of India under the Constitutionas against the American Supreme Court and hence a doctrine originated there cannot be imported intoour system. The base for his criticism is the Deep Chand case where a law being held invalid forinfringing the fundamental rights was declared to be void ab initio. Now according to Seervai, thejudges in the Golak nath case agreed that the first, fourth and seventeenth amendments wereinfringing the fundamental rights and hence following the deep Chand case; these amendments shouldbe treated as if they never existed. So if these amendments never existed, so how can the doctrine ofprospective overruling revive them? Thus he contends that these amendments would remain validwithout any constitutional sanction because these should be treated as void ab initio.

But what must be brought to notice here is that none of the judges deciding Golak nathscase evermentioned that these amendments would become invalid from the date decided by the court. Thus thedoctrine applied here is that of prospective overruling whereby a new law will govern the future whilethe old law remains undisturbed. What Seervai talks in reference to Golak Naths case is doctrine ofprospective invalidity which would make this law invalid for the future.

ConclusionWe have seen through various case laws as to how this doctrine was incorporated in to Indian judicialsystem for the first time in Golak Naths case by then C.J. Subba Rao. What we have adopted in Indiais the view of Cardozo J. It is very important to note that we live in a dynamic society and for laws togovern us effectively constantly changes have to be brought in them to suit the present requirements. Atool like this doctrine thus can be adopted by the Courts to meet the requirements of the society. Butwhat we must keep in mind is that it can also pose a danger to our system if we recklessly adopt anydoctrine from other systems of law without analyzing and modifying it to suit our system.

The Supreme Court has effectively by laying down certain propositions since incorporation of thedoctrine into our system kept a check on it. By expressly laying down that only the Supreme Court candecide as to whether the law will apply prospectively or retrospectively, the court has made sure thatthere is no injustice caused to any person in the society. It is very essential that the doctrine is appliedwithin a definite scope for meeting the ends of justice. The application of the doctrine in MandalCommission case shows how the doctrine has been applied literally and not to meet the ends of justiceas the judgment of the court has been made to be effective from a particular date which doesnt signal

anywhere of application of the doctrine to meet the ends of justice and to avoid confusion.

If a critical date is set out from which the new law shall be applicable then it will help in the efficientapplication of the doctrine. Also it is suggested that to remove confusion and not avoid unnecessarylitigation, even the High Courts should be allowed to apply this doctrine under the supervision of theSupreme Court.

It is thus concluded that the doctrine has not been applied in toto by the Indian Courts in respect of theAmerican counterpart form which it is adopted. Rather modifications have been made in the doctrine tosuit our Indian system and furthermore even the scope of the doctrine has been extended to ordinarystatutes as well.

Jurisprudence Prospective Overruling in ReferenceProspective Overruling in IndiaPropositions laid down in Golak Naths CaseProspective Overruling: as defined by the CourtsApplication of the DoctrineCriticism by H.M. SeervaiConclusion