Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis A PROJECT ON “Doctrine of Prospective Overruling and its Significance-A Jurisprudential Analysis”
Submitted By
Anant Ekka BA LLB (HONS) Semester VI Batch XIII SEC- A Roll No. 26
Submitted To
Mr. Manoj Kumar (Faculty: JURISPRUDENCE)
HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR CHHATTISGARH
Submitted On 23-10-2017
Page | 0
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis ACKNOWLEDGEMENT
First and foremost, I would like to thank my teacher Mr. Manoj Kumar, for offering this subject,” Doctrine of Prospective Overruling and its Significance-A Jurisprudential Analysis” and for his valuable guidance and advice. He inspired me greatly to work in this project. His willingness to motivate me contributed tremendously to my project. I also would like to thank him for showing me some example that related to the topic of my project. Besides, I would like to thank the Hidayatullah National Law University for providing me with a good environment and facilities to complete this project. Last but not least, I would like to thank all my friends who helped me do this project by sharing their ideas when we combined and discussed together.
_____________________
Anant Ekka Roll No. 26 Sec. A
Page | 1
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis LIST OF CASES
Narayan Nair v. State of Kerala, AIR 1971 Ker 98.
Northern Railway v. Sunburst Oil & Refining Co, 287 US 358 (1932).
Golak Nath L.C. v State of Punjab, AIR 1967 (SC) 1643
Sarwan Kumar v. Madan Lal Aggarwal, AIR (2003) SCW 819 LIST OF ABBREVATION
1)
(ed).
Editior
2)
AIR
All India Reporter
3)
Art.
Article
4)
Ch.
Chapter
5)
Co.
Company
6)
ed.
Edition
7)
Etc.
et cetra
8)
H.C.
High Court
9)
Hon’ble
Honorable
10)
i.e.
that is
11)
J
Justice
12)
Ors.
Others
13)
p.
Page Number
14)
para.
Paragraph
15)
S.C.
Supreme Court
16)
S.C.C.
Supreme Court Cases
17)
Sec.
Section
18)
v.
Verses
Page | 2
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis TABLE OF CONTENTS
1. Chapter-1 Introduction……………………………………………………………….02 2. Research Methodology……………………………………………………………….03 3. Chapter-2 Historical Importance.…………………………………………………....05 4. Chapter-3 Applicability of Prospective Overruling in India………………………...06 5. Chapter-4 Criticism by H.M. Seervai………………………………………………..08 6. Conclusion…………………………………………………………………………… 09 7. References……………………………………………………………………………10
Page | 3
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis CHAPTER-1 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. Doctrine of Prospective Overruling originated in the American Judicial System. The literal meaning of the term ‘overruling’ is to overturn or set aside a precedent by expressly deciding that it should no longer 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 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. For example, if principle A is laid down in the case of X v. Y and later on the court disagrees with the Principle A, it changes the principle prospectively without affecting the judgment of X v. Y and thus the new principle will apply only to the future cases. 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 basic objective of prospective overruling is to overrule a precedent without having a retrospective effect. According to Cardozo J. if this doctrine is not given effect it will wash away the whole dynamic nature of law, it will be against the concept of judicial activism. Cardozo J. was of the view that the law should keep up with the changes occurring in the society, the law has to be dynamic and not static. Page | 4
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis If in a new and changed society, the citizens are bound by an old law it will lead to grave injustice. The citizens 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 fair and timely justice to its citizens. The Doctrine of prospective overruling 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 indicate the time dimension and the type of cases 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 any system of law to protect the interest of the litigant public when judicial overruling of a precedent entails a change in the law.1 RESEARCH METHODOLOGY
This research project is largely based on secondary & electronic sources of data. Books, journals & other reference as guided by faculty of Jurisprudence are primarily helpful for the completion of this project.
ISSUES
The major issue which this research topic deals with is the “Doctrine of Prospective Overruling and its significance- a jurisprudential analysis”. H.M. Seervai is one of the Indian jurist concerns of criticism in Doctrine of Prospective Overruling. RATIONALE
This research topic on “Doctrine of Prospective Overruling and its significance- a jurisprudential analysis” is originated from the American judicial system. 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. Rather modifications have been made in the doctrine to suit our Indian system and furthermore even the scope of the doctrine has been extended to ordinary statutes as well. 1
Narayan Nair v. State of Kerala, AIR 1971 Ker 98.
Page | 5
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis
OBJECTIVES OF STUDY
To study the Doctrine of prospective overruling
To study about its significance.
NATURE OF STUDY
This research project is Doctrinal in nature since it is largely based on secondary & electronic sources of data and also since there is no field work involved while producing this research and it largely involves study of various theories and com parison from different books, journal and other online sources it is not empirical in nature. SOURCES OF DATA
Data that were used for the completion of this research project are all secondary sources of data ranging from books, journal, articles and other online sources and as far as case laws are concerned these cannot be said to be primary sources since they are not first-hand information or judgment reports but a modified form found in books or journals.
Page | 6
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis CHAPTER-2 Historical Importance
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. Northern Railway v. Sunburst Oil & Refining Co.2 the Prospective overruling has earned a hallowed place in American jurisprudence. It is significant that Cardozo, J., saw the choice between retrospectivity and prospectivity as a function of juristic philosophy of the judges of particular legal system, and not as one to be mechanically determined by recourse to a jurisprudence of conception which ignores the paramount necessity for a progressive and pragmatic adaptation of the judicial process to changing social circumstances. Further, Cardozo, J. was also careful to point out that a judicial choice between retrospectivity and prospectivity will involve no denial of a right protected by the Constitution by implication. This means that retrospectivity of 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. Since Sunburst case there has been lively debate as to the merits as well as limits of the doctrine of prospective overruling.
2
287 US 358 (1932).
Page | 7
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis CHAPTER-3 Applicability of Prospective Overruling in India
The concept of the Doctrine of prospective overruling has now been accepted in its full form in India. This doctrine was for the first time applied in India Golak Nath L.C. v State of Punjab.3 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's case the judiciary has given different views over this doctrine. It can be said that the judiciary has itself tried to evade th e discussion over this issue of prospective overruling. Since then it has been applied in many case laws and has also been a point of debate of many jurists. Through this article, an attempt is made at briefly analyzing 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 Golaknath’s case. The doctrine is defined as “The doctrine of "prospective overruling" is a modern doctrine suitable for a fast moving society. It does not do away with the doctrine of state decision but confines it to past transactions. While in Strict theory it may be said that the doctrine 'involves the making of law, what the court really does is to declare the law 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 its operation to the future. It enables the court to bring about a smooth transition by correcting, its errors without disturbing the impact of those errors on past transactions. By the application of this doctrine the past may be preserved and the future protected. Our Constitution does not expressly of by necessary implication speak against the doctrine of prospective overruling.”4
3
AIR 1967 (SC) 1643 Jurisprudence Prospective Overruling in Reference at http://www.lawteacher.net/administrativelaw/essays/jurisprudence-prospective-overruling-in-reference-administrative-law-essay.php (last seen 04/04/2014) 4
Page | 8
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis Propositions laid down in Golak Nath’s Case
Because it was the first time that the Court was applying a doctrine which had evolved in a different system of law so the Court laid down certain provisions restricting the application of the doctrine in the Indian 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 the constitutional 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 its earlier decisions is left to its discretion to be moulded in accordance withthe justice of the cause or matter before it. In light of the above principles laid down for adopting the doctrine into our legal system, we see that the American idea of Prospective overruling differs from what is adopted by the Indian Legal system. Prospective Overruling: as defined by the Courts
Further in the case of Sarwan Kumar v. Madan Lal Aggarwal 5 , the Court defined prospective overruling as “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 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 the apex court to avoid reopening of the settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of the prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law prior to its date of declaration are validated. This is done in the larger public
5
AIR (2003) SCW 819
Page | 9
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis interest. Therefore, the subordinate forums which are legally bound to apply the declaration of law made by this Court are also duty bound to apply such cases which would arise in future only. CHAPTER-4 Criticism by H.M. Seervai
Eminent Indian jurist HM Seervai has been critical of the doctrine of prospective overruling or invalidity in the second edition his book Constitutional Law of India. He is basically against the uncritical adoption of the doctrine into our Constitutional System as he thinks that it might cause radical changes in 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 there are fundamental differences in the roles assigned to the Supreme Court of India under the Constitution as against the American Supreme Court and hence a doctrine originated there cannot be imported into our system. The base for his criticism is the Deep Chand case where a law being held invalid for infringing the fundamental rights was declared to be void ab initio. Now according to Seervai, the judges in the Golak nath case agreed that the first, fourth and seventeenth amendments were infringing the fundamental rights and hence following the deep Chand case; these amendments should be treated as if they never existed. So if these amendments never existed, so how can the doctrine of prospective overruling revive them. Thus he contends that these amendments would remain valid without 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 nath’s case
ever mentioned that these amendments would become invalid from the date decided by the court. Thus the doctrine applied here is that of prospective overruling whereby a new law will govern the future while the old law remains undisturbed. What Seervai talks in reference to Golak
Page | 10
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis Nath’s case is doctrine of prospective invalidity which would make this law invalid for the future.6
CONCLUSIONS AND SUGGESTIONS
Conclusions In India we have adapted the doctrine given by Cardozo J. 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. It is thus concluded that the doctrine has not been applied in toto by the Indian Courts in respect of the American counterpart form which it is adopted. Rather modifications have been made in the doctrine to suit our Indian system and furthermore even the scope of the doctrine has been extended to ordinary statutes as well. Suggestion In my suggestion I would like to say that the doctrine of prospective of overruling is a good concept if it is applied with clear-cut manner, like this doctrine should used by the learned judges and the matter should be clear. For example- in order remove the difficulties created by the decision of Supreme Court in Golak Nath case 24th amendment act was passed and this amendment ones again restored the power of the parliament for amendment. Then one’s again it
6
I bid No. 4
Page | 11
Doctrine of Prospective Overruling and its Significance: A Jurisprudential Analysis was challenged in Keshavananda Bharathi V State of Kerala Likewise if it is going on creating confusion then the doctrine ultimately lose its scope. So here I wanted to say that the doctrine of Prospective overruling should be pronounced by the highest court of land and by learned judges. And there should not be any chances to confusion, rather it must be clear. This doctrine is a important tool in the hands of the judiciary and it should not be misused by the judiciary. REFERENCES
WEBSITE
http://www.lawteacher.net/administrative-law/essays/jurisprudence-prospectiveoverruling-in-reference-administrative-law-essay.php
Page | 12
