Prospective Overruling in India

PROSPECTIVE OVERRULING IN INDIA:
GOLAK NATH AND AFTER
W. S. Hooker, jr.
I. INTRODUCTION
IS COMMONLY CONSIDERED in English jurisprudence that the

judiciary is an institution which speaks when it does pronounce a
holding both to the past as well as to the future, and that the
legislature is an institution which makes changes in the law which will
have effect on future actions only. The doctrine of prospective
overruling'-an exception to this concept of judicial and legislative
functions--has been evolved by some courts to meet the ends of
justice in those few cases where decision-making strictly within the
confines of these traditional descriptions would lead to an unjust
result. Using this doctrine the judiciary, through necessity of
circumstances and through purposeful interpretation of the reasons for
substantive changes in the law, able to leave past events undisturbed
after it has found that because of past errors of its decisions or
through obsolescence that a substantial change in the existing law is
called for. In a landmark case in the constitutional history of India,
the case of Golak Nath v. State of Punjab,2 Mr. Chief Justice Subba Rao
has introduced this principle into Indian jurisprudence. It is the
subject of this paper to examine the implications of this aspect of the
Golak Nath decision for thc future of judicial decision-making in India.
The need for such a doctrine has arisen because of the conception
which has been adopted of the function of the courts in thosc countrics
like India and the United States where British theories of political
institutions have been implanted. In such precedent-oriented countries
the judiciary has attained a very high place. It has stubbornly
maintained two fundamental principles that of the independence and
continued viability of the judiciary as an institution, and (outside of
England itself) the power to review actions of the other branches of
the government. But it cannot be overlooked that there are many
countries in which the same tenacious regard for precedcnt and
relation backward of judicial decisions is at least in theory not regarded
as a paramount element of justice. In the civil law countries the
*A. B. (Harvard) LL.B. (University of Virginia); Syracuse University Africa-Asia

Fellow at the Indian Law Institute, New Delhi (1966-1967).
I. For a fairly exhaustive comment collecting most of the relevant American
state and federal cascs, see Annot., "Prospective or Retroactive Operation of Overruling
Decision,'" 10 A L.R. 3d 1371 (1966). For an carlier version presenting only the federal
cases, sce Annot., 14 L. Ed. 2d 992 (1965).
2. [1967] 2 S.C.R. 762; A.I.R. 1967 S.C. 1643. (Hereinafter to be referred to as
Golak Nath.)
1967] PROSPECTIVE OVERRULING IN INDIA 597
judiciary is more free to examine each case on the merits and to decide
what ought to be the interpretation of the law in a particular case
rather than on the basis of what has been the interpretation in the
past. While it must not be forgotten that this conception of the
judicial function was originally grounded in systems which lacked the
power of judicial review,³ their example is enlightening in showing that
justice need not always be the victim of historical circumstances. It
has been suggested by some authors that the trend in common-law
countries away from stare decisis and this undoubtedly applies as
well to the introduction of the doctrine of prospective overruling
signifies a trend toward recognizing the utility of civil law theories of
jurisprudence.4 Differences in theory certainly still exist, and the high
position of the judiciary in British-influenced systems of law must not
be sacrificed. But where fidelity to the law in a strict sense will work
injustice to many relying upon a previously declared or generally
accepted legal position, a dilemma is reached in a court of law which
seeks to follow precedent. It is with the object of striking a balance
between the two objectives– doing justice in a particular case and
still maintaining a fidelity to the law in a broad sense -- that the
American courts and now also the Indian judiciary have asserted their
power to limit rulings to prospective operation.5
At bottom, the problem is one of attempting to fashion out a
solution in the face of two conflicting views of justice, one situational
and the other reaching beyond the situation to some higher goals. An
example from a recent debate between two legal philosophers may help
in understanding this problem better. The exanple deals with an
imagined nation state in which captured citizens of other vanquished
states are put to death at first and then under a change in policy are
given the opportunity to become the slaves of members of the victor
state. According to Professor John Rawls, this new state of affairs
would rightly be called "just" in view of its vast improvcment over
the prior policy. But this view has been criticized severely by
3. Cf. Golak Nath at 876-77 (per Hidayatullah, J.).
4. See W. Friedmann, Legal Theory 483-501 (4th ed. 1960); Goodhart, Prece
dent in English and Continental Law," 50 L.Q. Rev. 40 (1934,. One can cite as a parallel
instance the development from Dicey's famous retort to the continental jurists that
"England knows no administrative law'" to the recognition that the formulation of
administrative law is essential to the operation of a modern democracy. See Ind. L.
Inst., Cases and Materials on Administrative Law in India 13-19, 34-41 (1966).
5. After it admitted, as it seems impossible to deny if prospective overruling is
entertained, that judges do make law, the real problem is to defne the limits of judicial
lawmaking so as to substantially preserve the separation of the three areas of the govern
ment. See Friedmann, “Limits of Judicial Lawmaking and Prospective Overruling,"
29 Mod. L. Rev. 593, 59596 (1966).
6. See Rawls, "Constitutional Liberty and the Concept of Justice," in VI Nomos:
Justice 98, 110-11 (Friedrich & Chapman eds. 1963). But f. Rawls, Justice as
Fairness," in Justice and Social Policy 80, 102 (Olafson ed. 1961), criticizing uilitarianism
for not being able to account for the fact that slavery is always unjust under a view of
justice as fairness. The difference in these views may perhaps be explained by the
institutionalization" presumed in the former work. Chapman would deny that this
factor should make a difference in the issue of justness.
598 JOURNAL OF THE INDIAN LAW INSTITUTE [VoL. 9 : 596
Professor John Chapman? as laying too heavy emphasis On the

reciprocity or "fairness'" aspects of justice, what we should like to term
the "situational aspects" of justice. In his view this state of affairs is
in both instances lacking in what is conceived as a major clement and
a necessary ingredient in any determination of justice, the requirement
that the members of the society be treated equally. The Chapman
analysis presumes therefore to escape from the situational factors and
to appeal to higher goals or values. Suppose that in a concrete case
this state of affairs is attacked before a court of law in our imagined
societies. The plaintiff plcads that equality" whether grounded in
the urging of a new constitutional statutory interpretation or by some
or
other means -- demands that slavery be decared unjust. The dilemma
facing the judicial decision-maker is on two levels. First is the stare
decisis level at which one asks if conditions have so altered as to
warrant a change in the substantive law. Should slavery be
declared unjust because it is unequal even though practically everyone
in the society may for historical reasons agree that the slavery situation
is a fair" or just" one? Once this hurdle is over and slavery is
declared to be done away with, there is a second question for a
judicial decision-maker who conceives of his role as not necessarily
limited to binding the entire past with his decisions. He must decide
whether slavery is to be assumed in the eyes of the judiciary to have
been unlawful for all times and purposes, or should it be limited to
events which take place after slavery has been declared to be unjust
and unlawful. Can he afford to overlook all the transactions which
had been completed in the past on the assumption that the law was
fair and therefore just ? Where the institution of slavery must have
played such an important role in the everyday afairs of the people,
its overthrow retroactively would create enormous problems for the
administration of justice and the security of good faith transactions
in litigating and relitigating the innumerable possible cases in contracts,
torts, back wages, etc., which had occurred in the past. Where
furthermore the purpose of the abolition of slavery is to assert the
personal right to be equal and not to be a subject of property, the
ends of justice would not scem to compel rctroactive operation. Under
the circumstances the judicial decision-maker might well therefore
choose to disregard the past and confine his declaration that slavery is
unjust to the future.
The parallels of this examplc in the constitutional sphere are
immediately obvious. But as the American evolution has shown, there
are also parallels in other branches of the law where the impulse to
remove obstacles in the path of the future development of the law may
be so great as to warrant reconsidering and overruling past decisions,
7. See Chapman, Justice and Fairness," in VI Nomos, supra note 6, at 147,
165-69.
but where the nature of the activities and erents brought about in
rcliance on the past law are so great as to justify application of the
new ruling in the future only. Certainly where a past case has becen
overruled it would be difficult for any court to deny that the overruled
decision has any cffect at all.8 Prospective overruling sanctions the
eventuality that justice may require giving full effect to the prior
decision on all transactions which occurred prior to the date of the
overruling declaration. And from the point of view of a judge faced
with past precedent directly on point, the crucial point in recognizing
this doctrine is to acknowledge that the uncertainty or chaos which
might be caused by at one stroke uprooting past history need not by itself
veto the alternative of a substantive change where continuancc of the
old rule would stifle the future development of the law. As it has
been stated poignantly by one American court:
If rights have vested undera faulty rule, or a constitution
misinterpreted, or
a statute misconstrued, or where, as here, subsequent events demonstrate a
rule to be in error, prospective overruling becomes a logical and integral part
of stare decisis by enabling the courts to right a wrong without doing more
injustice than is sought to be corrected. Under prospective overruling,
courts need not strive for distinctions where none exist in order to escape the
implications of a bad rule. Better to overrule a case flatly, and say so, giving
the overruling decision prospective cffect, than attain the same end through
sophistry and evasion.... Prospective overruling imparts that final degree of
resilience, to the otherwise rigid concepts of stare decisis, so necessary to
prevent the system from becoming brittle. It enables the law under stare
decisis to grow and change to meet the ever-changing needs of an ever
changing society and yet, at once, to preserve the very society which gives it
shape.
:
II. GOLAK NATH AND PROSPECTIVE OvERRÜLING
PRELIMINARY INTERPRETATION
In the case of India in a closely

Golak Nath the Supreme Court of
divided eleven-judge bench has held that the fundamental rights of
the Constitution are not amendable by the Parliament, or more specifi
cally that an amendment" passed according to the proccdure laid
down in article 368 for amending unrctrcnched articles of the Consti
tution is a "law" within the meaning of article 13 and is thercfore
invalid if it takes away or abridges any of the fundamental rights in
part III.10 Of the six Justices who made up the majority, Mr. Chief
Justice Subba Rao in an opinion joined in by four others limited the
8. Sec Chicot County Drainage Dist. V. Baxter Stale Bank, 308 U.S. 371 (1940);
cases cited at Annot., 10 A.LR. 3d 1371. 1383-84 (1966).
Annot., 10 A.L.R. 3d 1371, 1397 (1966), quoting State ex rel. W'ashington State
Finance Comm. v. Martin, 62 Wash. 2d 645, 384 P. 2d 833 (1963). Prospective over
ruling "enables the court to bring about a smooth transition by correcting its errors
without disturbing the impact of those errors on past transactions." Golak Nath at
813-14 (per Subba Rao, C.J.).
10. Golak Nath.
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600 JOURNAL OF THE INDIAN LAW INSTITUTE [VoL. 9 596
operation of this principle by the doctrine of prospective overruling,11

whereas Mr. Justice Hidayatullah would have more selectively sustain
ed the prior amendments to the Constitution by means of the notion of
acquiescence."1g We shall have occasion further on to discuss in some
detail the significance and viability of the alternative suggested by Mr.
Justice Hidayatullah's opinion,13 but for now the important and it
would seem controlling opinion is that of the learned Chief Justice.
Mr. Justice Subba Rao has undoubtedly taken a bold and imagi
native step, challenging the very roots of traditional jurisprudence, in
order to accommodate smoothly a future which represents an accept
able working arrangement in the eyes of the Constitution with a past
which has seen a major transformation in the economic, social and
political structure of the country since Independence.l4 Since the
mcaning and propriety of his opinion have been misunderstood in sorne
quarters it is important first to lay out its significance in his own words
at the very beginning. Mr. Justice Subba Rao's opinion goes upon
the basis that the Golak Nath decision has introduced for the future a new
interpretation of the word *law" in article 13 as now inciuding an
"amendment" of the Constitution,5 thus overruling prospectively the
interpretation given in the cases Sankari Prasad v. Indial6 and Sajjan
Singh v. Rajasthan.1" One of the dissenting Justices has apparently taken
this to mean that all the amendments which have been introduced after
the adoption and have abridged the fundamental rights as they
originally were constituted would from the date of the Golak Nath
decision be inoperative.l8 But as we read his opinion, the Chief
Justice has contemplated that the amendmnents thus far introduced
will continue in effect. As he states in his conclusions, the first,
fourth and seventeenth amendments are valid" and hold the field,"
and therefore any acts passed which were protected by these amend
11. Id. at 779 (per Subba Rao, C.J., joined by Shah, Sikri, Shelat, Vaidia.
lingam, JJ-).
12 Id. at 893 (per Hidayatullah, J).
13. See part VII infra at 630-34.
14. Cf. Blackshield, «« Fundamental Rights' and the Institutional Viability of the
Indian Supreme Court," 87ILI. 139, 175-76 (1966).
15. Golak Nath at 815 (per Subba Rao, C.J.):
Amendment is 'law' within the meaning of Art. 13 of the Constitution and,
therefore, if it takes away or abridges the rights conferred by Part III thereof,
it is void.
On the application of the doctrinc of prospective overruling', as explained

by us carlier, our decision will have only prospective operation and, therefore,
the said amendments will continue to be valid.
16. [1952] S.C.R. 89; A.I.R. 1951 S.C. 458.
17. [1965) 1 S.C.R. 933; A.I.R. 1965 S.C. 845.
18. Golak Nath at 913 (per Bachawat, J., dissenting).
1967] PROSPECTIVE VERRULING IN INDIA 601
ments cannot be questioned."19 The effect of the decision is rather

to declare that from the date of this decision" Parliament shall have
no power to "take away or abridge'" the fundamental rights.20 And
in so doing, Mr. Justice Subba Rao states,
we do not see any acceptable reason why {the Supreme Court], in declaring
the law in supersession of the law declared by it earlier, could not restrict the
operation of the law as declared to the future and save the transactions, whether
statutory or otherwise that were effected on the basis of the earlicr law.21
"Saving" a statutory transaction as distinct from private transactions can

only mean that the "amendments" and the laws" passcd under
them will continue in force into the future. Before we undertake
in a later section to analyze the reasons behind the specific way in
which the Court has applied its rule prospectively,29 we shall trace out
the lines along which the doctrine of prospective overruling has been
evolved in the courts of the United States.
III. DEVELOPMENT OF PrOSPECTIVE OvERRULING IN AMERICA
A. State Matters
The development of prospective overruling has until now been
largely a history of the reaction in America to the early English dogma
that cases must always pronounce on issues arising in the past as well
as issucs arising in the future. Most of the experimentation and the
overwhelming majority of the cases have been decided on state non
constitutional mnatters in state courts rather than on federal questions,
no doubt partly because of the special nature of the American federal
system, where, in contrast to the situation in India, the American
federal courts have jurisdiction over only special matters enumerated in
the Constitution. But both the state and federal courts have however
come to realize that prospective overruling is the only workable solu
tion in a wide variety of situations which may present themselves.
19. Id. at 815 (per Subba Rao, C.J.) :
(3) The Constitution (First Amendment) Act, 1951, the Constitution
(Fourth
Amendment) Act, 1955, and the Constitution (Seventeenth Amendment)
Act, 1964, abridge the scope of the fundamental rights. But, on the
basis of carlier decisions of this Court, they were valid.
(6) As the Constitution (Seventecnth Amendment) Act holds the ficld, the
validity of the two impugned Acts, namely, the Punjab Security of
Land Tenures Act X of 1953, and the Mysore Land Reforms Act X of
1962, as anended by Act XIV of 1965, cannot be questioned on the
ground that they offend Arts. 13, 14 or 31 of the Constitution.
20. Id, at 815 (per Subba Rao, C.J.) :
(5) We declare that the Parliament will have no power from the date of
this decision to amend any of the provisions of Part III of the Constitu
tion so as to take away or abridge the fundamental rights enshrined
therein,
21. Id. at 813-14 (emphasis added.)
22. See part V of this paper, infra at 617 et seq.
602 7OURNAL OF THE INDIAN LAW NSTITUTE [VoL. 9 : 596
A large number of state court decisions have resolved around one of

two factual patterns: first, those which deal with so-called vested
rights of contracts or of property; and secondly, those which involve
a change in this historical responsibility of the political organs to the
populace it governs.
It has generally been held by state courts that a court has the power
to decide for itself whether or not to accord retrospective effect to
its decisions when to do so wquld upset any "vested rights'" arising Qut
of contract or property transactions.23 This power has been asserted
both in instances of overruling prior interpretation of state statutory or
constitutional provisions and in cases of change in purely decisional
law. A case illustrating the first type is the Kentucky case of Payne v.
Covington,4 in which a new judicial construction of a constitutional
provision restricted the government's authority to borrow money by
expanding the conditions upon which approval of the voters must be
obtained for further municipal indebtedness. To preserve the rights
vested under contracts for the purchase of bonds which had already
been entered into on the basis of the correctncss of the old decisions,
the court applied its new rule prospectively only. In a later extension
of this case it was held that where the fiscal year of a particular city
had alrcady begun before the time of the Paynme decision, the city
would be able to borrow money on the basis of the now-overruled
decisions until the end of their current fiscal years.25 This latter case
illustrates dramatically how far the state courts have gone to protect
the expectations and planning which immediate imposition of its new
rules would overthrow.26 In a case which involved neither statutory
nor constitutional construction, Hanks v. McDannell,91 the rights of two
groups of private parties were involved in the construction of a will.
In overruling prior decisions which would have given to a certain party
a fee simple ownership and granting instead to that person a life
estate, this court also limited its holding to prospective application. In
view of the greater reliance and higher sale value which might be placcd
upon ownership of a fee simple by purchasers from a taker under such
a will, this seems like a very wise decision. Another significant casc
involving a change in decisional law is the case of Muual Life Ins. Co.
v. Bryant, 28 in which a modern liberal interpretation was given to the
23. See generally Annot., 10 A.L.R. 3d 1371, 1388-89, 1409-12, 1442-47 (1966).
24 276 Ky. 380, 123 S.W. 2d 1045, 122 A.L.R. 321 (1938).
25. See 10 A.L R. 3d 1444-45, citing Chestnut v. Bowling Gren, 285 Ky. 800, 149
S.W. 2d 523 (1941).
26. Gf. Note “Prospective Overruling," 51 Minn. L. Rev. 119 (1966). For further
discussion of the government bond cases, sce Currier, «Time and Change in Judge
Made Law: Prospective Overruling," 51 Va. L. Rev. 201, 243-44(1965); Annot., 10
A.L.R. 3d 1371, 1444-45 (1966).
27. 307 Ky. 243, 210 S.W. 2d 784, 17 A.L.R. 2d 1 (1948). Sec gencrally 10
A.L.R. 3d 1445-47 (1956).
28. 296 Ky. 815, 177 S.W. 2d 588, 153 A.L.R. 422 (1943). See generally 10
A,L.R. 3d 1437 (1966).
1967) PROSPECTIVE OVERRULING IN INDIA 603
total disability clause of an insurance contract, requiring only that the

insured should be unable to continue his regular occupation in order to
recover, in spite of the contract's clear language that the insured must
be so disabled as not to be able to cngage in "any or all" gainful
employment. Since all carlier decisions had gone the other way on
this point, the court limited its holding to contracts which were made
and signed after the date of its judgment in order to allow insurance
companies sufficient warning to begin funding for claims which would
arise under the new ruling.
Under the second heading, there are many different facets to the
historical relationship between the political organs and the populace
they govern. Examples come readily to mind from the protean rules
in all the fields of criminal, tort and contract law. Since we are in no
way attempting to be exhaustive, comment will be made of one area
that of the venerable rule of governmental immunity. In a famous
Illinois case, Molitor v. Kaneland Community Uit Dist.,39 the court
overruled prior decisions in the state which had held that school
districts were immune from suit for damages based upon negligence.
While it was recognized that the tort situation could not be cquated
exactly with that of acquired contract or tort rights, it was felt that
nevertheless the school district had very heavily relied in its budgetary
considerations and in other ways upon its privilege not to be
sued for ordinary acts of negligence. The court therefore limited its
holding to the cxact parties before it and to situations arising therc
after 30 In a case from Minnesota overruling a similar rule, recovery
was denied as well to the party who had brought the challenge
before the court 31 Although it was opined that therefore its decision
would be dictum on the issue of overruling,32 the court nevertheless
proceeded to issue a clear warning to the government that its immunity
from tort suit was nOw at an end. It would from now on at its peril
continue not to insure its activities and continue not to regularly
investigate tort claims to prepare is defense. A view opposite to
that of these two jurisdictions has been put forward in the Kentucky
29. 18 111.2d 11, 163 N.E. 2d 89, 86 A.L.R. 2d 469 (1959), cert, den., 362 U.S.
968 (1960). For discussion of cases on charitable and governmental immunity, see 10
A.L.R. 3d 1423-28 (1966).
30. On later finding that Molitor had been a test case, the Illinois court then
applicd it also to the other parties on whose behalf the test case had been appealed. See
10 A.L.R. 3d 1425-26 (1966), citing Molitor v. Kaneland Community Unit Dist., 24 Il1.
2d 467, 182 N.E. 2d 145 (1962). This is a step towards rectifying the lack of equality
in using the new rule on the parties before the court and no others even if they may be
similarly situated. See Currier, supra note 26, at 215. Probably the best solution in
prospectively overruling a prior decision is not to apply the new rule at all to past
situations, including the case at bar. See Bender, The Retroactive Efect of an Over
ruling Decision : Mapp. v. Ohio,'" 110 U. Pa. L. Rev. 650, 678 (1962).
31. See 10 A.L.R. 3d 1427 (1966), citing Spanel v. Mounds View Schoo! Dist., 264
Minn, 279, 118 N.W. 2d 795 (1962).
32. See 10 A.L.R. 3d 1396-97 (1966).
:
case of Haney v. Lexinglon,83 where it has been held that a decision

revoking governmental immnunity of a municipality should be given
retroactive effect to cover all cases on which the statute of linitations
hd not run out. The court ruled out the alternative of prospective
overruling because it is difficult to believe a city or any of its agents
ever committed a tort deliberately and in reliance upon the doctrine of
governmental immunity.'939a
In view of the significant number of other jurisdictions in the
United States which had overthrown the doctrine of immunity and
the prior pronouncement of the Kentucky court that the doctrine
had outlived its usefulness, this statement is perhaps not so significantly
different from the decisions of other courts in favour of prospective
overruling. In any case, there is strong authority among the American
state court decisions that, at least until it became generally accepted
that this tortious immunity is not "just,"" even the government is
entitled, until there is a decision otherwise, to rely upon being immune
from actions based upon its negligence.
Although some of thesc state cases have almost rcached thc level
of philosophical dialogues, as in the Moliter-Haney dispute just men
tioned, which may be interpreted as centering on the justness"
of a government's reliance on its immunity from tortious claims, most
of the prospective overruling decisions in the state courts have been
outright acknowledgement that the difficulties involved in implementing
a decision are so grcat that the court must deny a remedy to a
right which it has held to cxist for all future transactions. This
limitation on the application of substantive rights has come under
attack as a violation of the right not to be deprived df one's property
by the state without due process of law which is embedded in the
fourteenth amendment of the United States Constitution. In the
landmark case of Great Northern Ry. v. Sunburst Oil & Ref. Co.,84 the
American Supreme Court speaking through Justice Cardozo laid to
rest all apprehensions on that score by ruling that there was no consti
tutional proscription against a court adopting any remedy, including
prospective overruling, which it considered the best under the circum
stances. It was therefore established, at least where rights under the
federal Constitution itself wee not at issue, that there was no basic
injustice done in a court at its discretion acknowledging the existence
of a right and at the same time refusing to apply it to past transac
tions.
33. 386 S.W. 2d 738, 10 A.LR. 3d 1362 (Ky. 1964).
33a. 10 A.L.R. 3d 1362, 1369 (Ky. 1966).
34. 287 U.S. 358 (1932).
A state in defining the limits of adherence to precedent may make a choice for
itself between the principle of forward operation and that of relation back
ward.
Id. at 364.
B. Federal Questions
At the threshold therefore of the entrance of the doctrine into

issues involving federal questions, the doctrine of prospective over
ruling had been thoroughly tested by the state courts and had received
the blessing of the federal courts not only in upholding the constitu
tionality of the doctrine5 but also in using it in diversity-of-citizenship
situations where the federal courts were faced with common law or state
statutory interpretations which had been overruled.36 The extension
from these instances to cases involving federal questions of a non
constitutional nature was then made with little difficulty by the federal
Courts.37 Thus, in so far as it be used outside of limitation on federal
constitutional rights, the doctrine of prospective overruling had long
ago been accepted and followed in all the American courts.
In cases involving federal constitutional rights the doctrine of
prospective overruling has come almost by the back door. We have
noted the remedy-like character of limiting the application of a holding
by prospective overruling. In some of the cases dealing with major
constitutional issues the American Supreme Court has recognized the
difficulty of attempting at once to eradicate or curtail an existing
unconstitutional practice. One such group of cases are the school
desegregation cases like Brown v. Board of Education,38 which
overturned the old 'separate but equal" interpretation of the equal
protection clause laid down in Plessy y. Furgeson.39 The second Brown
decision held that implementation of this new ruling should proceed
"with all deliberate speed" having regard to the relevant legal and
administrative changes necessary to put the new interpretation into
effect. 40 Several commentators have been of the view that this
remedial holding is little more than an application of the prospective
35. See Great Northern Ry. v. Sunburst Oil & Ref. Co., 287 U.S. 358 (1932).
36. Sec, e-g., Douglass v. Pike Counly, 101 U.S. 677 (1880); Gelpcke v. Dubuque, 68
U.S. (1Wall.) 175 (1864).
37. See Englandv. Louisiana State Bd. of Medical Examiners, 375 U.S. 411 (1964);
James v. United States, 366 U.S. 213 (1961). The former case involved overruling a
generally held misinterpretation of the Supreme Court's *doctrine of abstention" in
ruling on the validity of state statutes where to have applicd the corrected interpretation
retroactively would have in effect denied the plaintiff a procedure for raising the sub
stantive issues. James involved the overruling of a previous interpretation of the income
tax code, adding under the new ruling the procecds of cmbezzlement to the category of
<income." There was no clear holding in James on prospective overruling, but there
was a majority which concluded that reliance on the past law was a major factor ir
determining the guilt of an accused for criminal evasion of income-tax payments.
38. 347 U.S. 483 (1954) (judgment on constitutional merits), 349 U.S. 298 (1955)
(order for disposition and implementation of the case).
39. 163 U.S. 537 (1896).
40. Brown v. Board of Education, 349 U.S. 298, 301 (1955).
:
overruling doctr ine. 41 Where a new rule as in Brown sets in motion

"a major reorganization of the school systems? of many of the Ameri
can states,,49 it is clear that imagination and restraint in the application
of the new ruling is called for. Furthermore, had the Court not been
restrained in the application of the Brown case itself, many different
subsidiary situations would undoubtedly have arisen calling for serious
consideration in each case whether to apply the rule retrospcctivcly or
not. For cxample, if as one authority has suggested the old American
Civil Rights Act of 1875, containing provisions for damages recovery
in cases of denial of federal constitutional rights, has been rejuvenated
by the recent Supreme Court cases expanding the reach of the
commerce power of the federal government,48 then a court might be
faced with such damage suits arising on grounds of the Brown decision's
definition of the scope of federally-protected civil rights but on pre
Brown facts. Then the judiciary would be required to answer the
question similar to that of Molitor and the other state cases on abolition
of governmental immunity whether to allow recovery where the
government had relied on its immunity in not creating a fund to
satisfy the prospect of payment to private citizens because of its
activities. 44
Another area in which momentous decisions have caused a major

re-organization of various facets of American life are the reapportion
ment cases.5 In one of the most important of these cases, Reynolds v.
Sims, 46 it was held by the Supreme Court that the equal protection
clause of the Constitution prohibited a state from maintaining unequal
or discriminatory voting districts in elections for the state assemblies.
As a guide in the implementation of the principle, the Supreme Court
adyised that judicial relief would be appropriate only when the
legislature fails to reapportion "in a timely fashion'" after having had
41. See The Legal Process 182 (Auerbach, Garrison, Hurst & Merman cds. 1961):
CCurrier, Time and Change in Judge Made Law: Prospective Overruling," 51 Va. L.
Re. 201, 231-32 (1965) ;Friedmann, supra note 5, at 600. It has been pointed out that
in his brief in the Broun decision the United States Solicitor-General had made parti.
cular mention of the Sunburst case, supra note 35, obviously with the aim of establishing
that there was no basic objection to prospective imitation of holdings. See The Laga!
Precess, supra, at 182.
42. See Friedmann, supra note 5, at 600. For further discussion of the diffculties
which must be faced in the implementation of the desegregation cases, sce Schwartz,
American Constitutional Law 233-39 (1955); Groves,
Problems of Integration Following
the School Desegregation Cases in the United States," 2 7.L.LI. 509 (1960). Much
resistance still remains on the part of state governments and courts to the changes intro
duced by the Brown decision. Cf. Watson v. Memphis, 373 U.S. 256 (1963).
43. See Nimmer, Proposal for Judicial Revalidation of a Previously Unconstitu
tional Law: The Civil Rights Act of 1875," 65 Co lum. L. Rev. 1394 (1965).
44. See supra at 601-04.
45. Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964); Reynolds v. Sims,
377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964); Baker v. Carr, 369
U.S. 186
(1962). See also Auerbach, The Reapportionment Cases: One Person, One
Vote-
One Vote, One Value,"" [l964] Sup. Ct. Rev. 1.
46. 377 U.S. 533 (1964).
adequate opportunity to do so,47 thus leaving it open to the lower

federal courts to refrain from giving immediate effect to Reynolds even
to the point of validating elections which had been carried out after
the Reynolds decision under circumstances which would not meet the
stringency of the new equal protection requirement. Just as in the
school desegregation cases, here again is a recognition that even though
a change in the law is constitutionally called for, an
imaginative
equitable remedy must sometimes be fashioned so as to preserve the
stability of the social and political order. Such an cquitable remedy
when it is fashioned in such a manner that it restricts in tme the
operation of a new point of law may be for all practical purposes
indistinguishable from the doctrine of prospective overruling.
But the first suggestion that the Supreme Court in a constitutional
case limnit its holding squarely on the basis of the doctrine
of prospcc
tive overruling came soon after the decision in Mabp v. Ohio, 48 the 196!
case which had held that illegally seized evidence would not be
admissible in a criminal trial in the state courts. Formerly, this rule,
the federal exclusionary rule," had been applied in trials in the
federal courts oniy. Faced with the prospect of retria! of so many
criminals confined in state prisons whose convictions had become final
had Mabp been applied retroactively, several commentators suggested
that the decision apply prospectively only, 49 Of those who advised
this course perhaps the best analysis is represented by that of Professor
Bender, who pointed out that the purpose 'of Mapp was not directed
to the past but to the future and that the imperative of judicial
integrity" had been the most compelling reason for applying such
essential rules of evidence uniformly in both state and federal courts, 50
The chief critic of application of prospective overruling in this situation
has been Professor Currier, wh0 speaks not in terms of purpose of the
overruling decision but in terms of cffects, listing the following âve
factors as relevant to the decision whether or not to apply a decision
retrospectively --- equality, the image of justice, reliance on law as
contemporaneously interpreted, stability and efficiency of the
administration of justice,51 Yet another commentator has opted, as an
alternative to prospective overruling, for a redefîinition of the scope of
habeas corpus through which mast criminal cases which have become
fînalized must be attacked - so as to re-open criminal convictions only
where the reliability of the guilt-determining process is called into
47. Id. at 586.
48. 367 U.S. 643 (1961).
49. See Bender, The Retroactive Efect of an Overruling Constitutional
Decision: Mapp v. Ohio,'" 110 U. Pa. L. Rev. 650 (1962); Freund, “New Vistas in Con
stitutional Law," 112 U. Pa. L. Rev. 631 (1964); Traynor, Mapp v. Ohio at Large in
Fifty States," 1952 Duke L. J. 319; Note, «Prospective Overruling and Retroactive
Application in the Federal Courts," 71 Yale L.J. 907 (1962).
50. See Bender, supra note 49 at 660, 663.
51. Sce Curricr, subra note 26, at 257-58.
question.° The reason for preferring habeas corpus limitations over

prospective overruling is that a general theory of prospective overruling
in cases of constitutional rights will lead to ill-considered decisions"58
and that the Court's *image" as an impartial law-giver will suffer.54
It has bcen suggested however that the logical consequence of these
reasons should be to give relief generally to those convicted in the past
but that by the habeas corpus limitation suggested a result even more
stringent than prospective overruling would be achieved,5
The uncertainty over the trend in the American Supreme Court's
views was laid to rest when the question of the retroactivity of Mapp
7. Ohio finally came before the Court in Linkletter v. Walker. The
Supreme Court there adopted in essence a modified Bender approach.
Mr. Justice Clark speaking for the majority stated the test which was
being adopted as follows:
In short, we must look to the purpose of the Mapp rule; the reliance placed
upon the Wolf doctrine; and the effect on the administration of justice of a
retrospective application of Mapp.37
The most important aspect of this test is the vicw that the Court was
justified in examining the thrust or purpose of the overruling decision.
Jn those instances where the decision was not intended to benefit
specific litigants so much as to re-pattern socicty and to deter the
governmental auhoritics from infringing the constitutionally-protected
zone of privacy,s8 the Court will be inclined not to upset past convictions
based on evidence gathered in such infringement. Thus since the
Mapp result does not cast doubt on the purpose for which the evidence
was brought before the courts
-i.e. to determine the guilt or innocence
of the convicted party or the validity of the evidence then those
convictions which had become finalized would not be disturbed.
Two American Supreme Court cases coming after Linkletter have
used the same three factors to determine whether or not to apply
52. See Mishkin, «Foreword: The High Court, The Great Writ, and the Due
Process of Time and Law," 79 Harv. L. Rev. 56 (1965).
53. Id. at 70-72.
54. Id. at 68-69.
55. See H. Schwartz, Retroactivity, Reliability and Due Process : A Reply to
Professor Mishkin," 33 U. Chi. L. Rev. 719 (1965-66).
56. 318 U.S. 618 (1965).
57. Id. at 636.
58. The striking nature of the substantive holding in Mapþ and other cases which
bave erected and preserved this constitutional zone of privacy has been commented
upon by several authors. See J. w. Landynski, Searches and Seizures and the Supreme
Court 47 (1966), describing the fourth amendment as cmbodying a 'spiritual concept"
elevating privacy" to a place no less valuable than "human dignity." See aiso
Mascolo, «The Role of Functional Observations in the Law of Search and Seizure:
A Study in Misconception," 71 Dickin L. Reu. 379 (1967). The Supreme Court has
later referred to the fourth amendment as protecting the "security'" which has been
relied upon within a "constitutionally protected area." Hofja v. United States, 385 U.S.
293, 301 (1966).
decisions retrospectively, but have in view of the circumstances under

which they were applied resulted in distinguishable extensions of the
Linkletter case. In Tehan v. Unied States ex rel Shott, 89 the Court denied
retroactive effect to the new rule that the privilege against self
incrimination clause of the American Constitution prohibits the
prosecution in a state or federal trial from commenting upon the fact
that the accused had not taken the stand to testify at his trial. It has
been rightly observed that this is an extension of Linkletter in the
sense that Shott involved a rule which had several purposes, the main
one of which the Court found had nothing to do with the "ascertain
ment of truth. But Shott did preserve one important aspect of
Linkletter- the standard of no likelihood of unreliability.'v61 In the
second case, Johnson v. Mew Jersey,68 however the Court denied
retroactive effect to the new rules recently introduced as a constitutional
minimum to be followed in the process of interrogating criminals for
the purpose of gathering evidence or obtaining confessions. During
the course of its decision the Court admitted that in this instance
it was not concerned with a situation in which the reliability of the
guilt-determining process could not be called into question but
with a matter of weighing the probability of unreliability were
the old rule to be sustained for past convictions,63 This balancing
of factors the extent to which enhancement of reliability is the
purpose of the overruling decision versus inconvenience of retrying
past decision84 goes beyond Linkletter in terms of rationale. And in
result also Johnson goes beyond Linkletter in denying application
not only to cases which had become “fnal'" prior to the new rulings
but also to those cases the trial proceedings of which had been begun
beforehand. The extent to which the Court has gone in Johnson has
been criticized by some commentators from several different angles.
One objection has been65 that there is no rational distinction to be
made between reliability of convictions hit by the new rulings discussed
in Joknson and others like for example the determination that under
the Constitution voluntariness of a confession must be decided by the
judge and not the jury,6 the latter of which the Court has suggested
in dictum is to be applied retroactively." Another caveat is that the
Johnson result may be envisioning flexibility in the substantive law
59. 382 U.S. 406 (1966).
60. See Note, Linkletter, Shott, and the Retroactivity Problem in Escobedo," 64
Mich. L. Rev. 832, 838-39 (1966).
61. Id. at 844.
62. 384 U.S. 719 (1966).
63. Id. at 729.
64. Note, "The Supreme Court, 1965 Term," 80 Haru. L. Rev. 123, 138 (1966).
65. See Hall and Kamisar, Modern Criminal Procedure 503 (2d ed. 1966).
66. Jackson v. Denno, 378 U.S. 368 (1964); sec also Gideon v. Wainright, 372 U.s.
335 (1963).
67. Sce Johnson v. Neo Jersey, 384 U.S. 719, 727 (1966).
:
through use of non-retroactivity.68 Thus insofar as Johnson purports to

be grounded on exactly the samne test as Linkletter it is on somewhat
shaky ground. But there may be another ground hinted at in the
opinions of the Court upon which Johnson and other cases like it in the
future may be supported based upon considerations of institutional
purposes and conflicts which may arise in unusual situations. In Miranda
69 one
V. Arizona," of the overruling decisions the retrospective applica
tion of which was at issue in ohnson, the holding of the Court was
prefaced by the following remarks :
It is impossible for us to foresee the potential alternatives for protecting the
privilege against self-incrimination which might be devised by Congress or the
States in the cxercise of their creative rule-making capacities. Therefore we
cannot say that the Constitution necessarily requires adherence to any parti
cular solution for the inherent compulsions of the interrogation process as it is
presently conducted. Our decision in no way creates a constitutional strait
jacket which will handicap sound efforts at reform nor is it intended to have
this effect. We encourage Congress and the States to continue their laudable
search for increasingly effective ways of protecting the rights of the individual
while promoting eficient enforcement of the criminal laws. However, unless
we are shown other procedures which are at least as effective in apprising
accused persons of their right of silence and in assuring a continuous oppor
tunity to exercisc it, the following safeguards must be observed,70
It that this statement was made without the

is difficult to believe
knowledge that week later the Court would in Johnson v. New Jersey
a
rule that Miranda applied only to cases in which the trial process was
begun after the date of Miranda. As a reflection on both Miranda and
Joinson the passage quoted raises and rebuts the possibility of a conflict
of an institutional kind between the Court doing its duty in preserving
justice and individual rights and the law enforcement officers in
developing procedures for the efficient enforcement of criminal laws
for the protection of society. It is our contention here that a cogent
argument may be made out that this very possibility of erecting an
obstacle to the duty of the law enforcement officers is an important
reason for the Court to have limited application of the Miranda
decision to the future. A similar suggestion was made in a recent
article by Professor Kamisar who though disagrecing with the Joknson
result Suggests1 that since thc problems and possible policc
procedures are so various the Miranda Court was wise not to
have attempted a comprehensive definition of constitutionally
permissable procedures in all areas. To have done otherwise in Miranda
would have invited evasion and hamper the authorities in developing
See Note, 64 Mich. L. Rev. 832, 855 n. 136 (1966).
68.
384 US. 436 (1966).
69.
70. ld. at 467.
71. See Kamisar, "A Dissent from the Miranda Dissents: Some Comments on the
New' Fifth Amendment and the Old Voluntariness' Test,'" 65 Mich. L. Reo. 59, 100
n. 163 (1966).
1967] PROSPECTIVE oVERRULING IN INDIA 611
72
effectivc, constitutionally permissible procedures on their own. An
analogous problem can in his view be made out on the issue of pros
pective overruling, where the Court has the power of overturning
police procedures which were presumably made in a rational manner
in the reliance on the fact that the state of the law as announced by
the Supreme Court and Or as extrapolated from its decisions by
implication. If the authorities should reasonably have known that a
particular practice adoptcd in the enforcement of law would be
unconstitutional on the basis of the past-declared law, then the use of
such a practice should not be sustaincd by prospective overruling.73
But where as in the Johnson-Miranda cases the authorities could
not have known that the Miranda Court would lay down specific rules to
be followed in the investigatory process, the application of these rules
should be limited to future events. Otherwise, in the anticipation of
possible major steps forward in the protection of fundamental rights,
the law enforcement authorities would be likcly to be either highly
evasive in their tactics or overly timid at cnforcing the law for the
beneft of society. Recognition of a conflict between the Court and
the law enforcement authorities would seem to be a logical outcome of
the limitation in 7ohnson to only those cases in which the trial had
begun after the date of the Miranda decision. But whether this kind
of a rationale will be adopted in the future by the Amnerican Supreme
Court or not is unclear. Nevertheless what is apparent is that there
are serious strains in the later applications of the Linkletter doctrine.
The weight of American judicial and non-judicial opinion would
seem therefore to be in favour of the attempts in the Linkletter decision
toformulate an objective test for determining prospectives overruling.74
While there are some serious doubts whether the same test announced
in the Linkletter case itself is one which is appropriate to the situations
encountered in some of the later cases, the point has at least been well
established by American prccedent that prospective overruling cven as
a limitation on constitutional rights is a proper exercise of judicial
power.
IV. INDIAN BACKGROUND
It is a very agonizing task for any judicial decision-maker to

inject such a fundamental reform as the recognition of the fact that the
basic elements of justice do not require that judicial decisions should
72. See id. at 60-61 n.8. See also La Fave and Remington, "Controlling the
Police: The Judge's Role in Making and Reviewing Law Enforcement Decisions," 63
Mich. L. Rev. 987 (1965).
73. For a discussion of some decisions applied retrospectively'" on the grounds
that they could have rcasonably been anticipated on the basis of an extrapolation of
see Kamisar, subra
the prior voluntary-involuntary test of reliability of confssions,
note 71, at 100.
74. See, e.g., Note, 80 Harv. L. Rev. 123, 137-38 (1966).
:
612 70URNAL OF THE INDIAN LAW INSTITUTE (VoL. 9 596
always speak to the past as well as to the future. No doubt Mr. Chief
Justice Subba Rao was fully aware of the significance of his step in the
Golak Nath decision. We need not blame him however for not going
more deeply into the background of Indian law within which he has
made the eventful introduction of the doctrine of prospective overruling.
To have done so where it is admitted that he was making a basic
change in the nature of the task of the judiciary would have run the
serious risk of being understated or misunderstood about the implications
of his decision for the future. In a later commentary however we may
dig a little more deeply into the judicial and institutional past of India
and ofer some suggestions as to what kind of a difference has been
injected into Indian jurisprudence by the holding against relation
backward of the Golak Nath result. We shall consider this matter
under three headings : the relevance and direction of English jurispru
dence ; the effect of the phrase "void" in article 13 of the Constitution;
and the development in Indian jurisprudence of the recognition
*vested rights" and other basic factors to be considered in deciding the
issue of prospective overruling.
In considering the relevance of the British cxperiencc to India
today, we must preface our discussion with the observation that
because of the fact that India possesses a written constitution there is a
much higher responsibility placed upon the Indian judiciary than upon
their English counterparts. The very fact that the Supreme Court has
been established in the same instrument which constitutes the Parlia
ment suggests in itself the prominent position accorded to the Court.
Insofar as the notion of constitutional interpretation is concerned, we
may search in vain through the Constitution for anything which
resembles a peculiar British notion of the supremacy of the Parliament
under the Constitution.75 But even supposing that the traditional
British principles of statutory interpretation and of precedent have
special relevance to constitutional decision-making in India today, one
must take note of the remarkable change in the flexibility of English
jurisprudence itself over the last few years. In addition to out-of
court pronouncements by jurists that stare decisis no longer holds
the same place which it had in the past,76 there have been cases also
75 See Blackshield, Fundamental Rights' and the Institutional Viability of the
Indian Supreme Court," 8J.I.L.I. 139, at 148 n. 26 (1966). See generally id. at 147-50;
1 Basu, Comnentary on the Constitution
of India 6 (5th rev. cd. 1965) [hereinafter cited
as Basu, Commentary]. Contra Seervai, Constitutional Law af India 1021-22 (1967).
Mr. Seervai distinguishes the American and Indian Constitutions on grounds that the
former is a brief document" and contains a due process" clause, and recommends
that India follow instead the stringent rules of precedent of the Privy Council and the
Australian courts. To us the principal factor should be that in both the American and
Indian Constitutions the fundamental rights are expressly guaranteed whereas in the
Australian Constitution there is no such guarantec.
76. See House of Lords, «Practice Statement (Judicial Review)," 1 Weekly L.R.
1234 (1966), cited by Subba Rao, C.J., in Golak Nath at 811-12.
which have rebuked the theory that judges may not upset what had
previously generaly been considered to be the law.?7 Moreover, the
case of Hedley Byrne & Co. v. Heller & Partners Ltd." in the House of
Lords is a decision which has gone even farther toward cutting the
underpinnings from the traditional Blackstonian fiction that judges
only "fnd" the law. In that case the petitioner brought an action for
negligence in the making of certain financial statements supplied to
him. The defence relied upon the 1951 Court of Appeals' decision of
Candler v. Crane, Ghristmas G Co.,79 which had ruled that there was no
liability for such actions. Although the House of Lords held that
there had been a valid disclaimer of liability by the defendant and
therefore whether under the Candler case or under application of
negligence principles there was no responsibility on the part of the
defendant to the plaintiff, it went on in a series of elaborate opinions
to declare that in the future there would be an action for negligence
for financial statements and to dictate the circumstances under which a
third party could reasonably be expected to rely upon these statements.
As has been suggested by One authority, this opinion is not really a
dictum but "in effect operates as a prospective overruling"' of the
Candler case.80 Thus, although the cases may still be couched in the
traditional language of British jurisprudence and debatcs may rage over
the propriety of cases which depart from the generally-accepted law,81
the fact is that the English case law too has recognized a wide degree
of judicial inventivcness in the fashioning and timing of relief to
litigants.
The next topic concerns the relationship between the decisions
which have interpreted the term void" in article 13(2) 82 and the
Golak Nath decision. According to Mr. Justice Wanchoo83 and others, 84
77. See Rookes v. Bernard, [1964] A.C. 1129; Shaw v. Director of Pub. Prosecutions,
[962] A.. 220. For a controversial statement that there exists an undeined realm
within which the court has the power to protect public morals, see id. at 268 (per
Simonds, V. C.).
78. [1964] A.C. 465.
79. [1951] 2 K.B. 164.
80. See Friedmann, "Limits of Judicial Law Making and Prospective Over
ruling," 29 Mod. L. Rev. 593, 605 (1966). Gf. Hughes &- Vale Pot. Ltd. v. M.S.W. (No. 2),
93 Commw. L.R. 127 (Aust. 1955); Blackshield, supra note 75, at 176-80.
81. See Hart, Crimina! Law and the Enforcement of Morality (1965); Devlin, The
Enforcement of Morals (1965); Hart, Law, Liberty and Moralily (1962); Devlin, "Law,
Democracy and Morality,'" 110 U. Pa. L. Rev 635 (1962).
82. Ind. Const., article 13(2) :
The State shall not make any law which takes away or abridges the rights con
ferred by this Part and any law made in contravention of this clause shall, to
the extent of the contravention, be void.
83. Golak Nath at 852-53 (per Wanchoo, J., dissenting).
84. See Seervai, supra note 75, at 1115-16; f. Golak Nath at 921-22 (per Bacha
wat, J., dissenting).
614 7OURNAL OF THE INDIAN LAW INSTITUTE [VoL. 9 : 596
cases like Deep Chand v. Uttar Pradesh85 have held that "laws" within
the meaning of article 13(2) are void ab initio and cannot be acted
upon at all. Therefore they feel that by construction of article 13
the doctrine of prospective overruling cannot be introduced into
India. 86 One way around this argument is to consider that the point
of law which is being overruled deals not with an abplication of article 13
but only with an interpretation of one of its phrases. Thus the question
whether a certain "law'" is void" or not does not enter the picture.
But it seems clear that this technical consideration is not what the
learned Chief Justice is relying on in making a limitation of his
substantive findings. For as he states in plain language,
The result is that the Constitution (Seventeenth Amendment) Act, 1964, inas
much as it takes away or abridges the fundamental rights is void under
Art. 13(2) of the Constitution. 87
While the majority opinions do not go into distinguishing Deep Chand

and other similar cases, we can imagine what might be their answer to
this criticism. Insofar as Deep Chand spcaks so broadiy and absolutely
as to characterize laws hit by article 13(2) as being still-born"88
and Saghir Ahmad v. Uttar Pradesh89 speaks in dramatic terms of such
statutes being “dead'" they go beyond their actual facts. Beforc the
Court in those cases was the question whether or not an act which had
been hit by article 13 would be validated merely by the enactment of
an amendment to the Constitution removing the conflicting provisions
or whether the statute must thereafter be re-enacted itself. Under those
circumstances there can hardly have been much opportunity for
85. [1959] Supp. 2 S.C.R. 82, A.I.R. 1959 S.C. 648; see also Mahendra Lal v.
Utar Pradesh, [1963] Supp. 1 S.C.R. 912, A.I.R. 1963 S.c. 1019; Basheshar Nalh v.
Collector of Income-tax, [1959]Supp. 1S.C.R. 528, A.I.R. 1959 S.C. 149.
86. Curiously enough, even while arguing against Golak Nath on the basis of Deep
Chand, Mr. Seervai has disputed that Deep Chand in fact represents the present state of
law. Compare Seervai, supra note 75, at 1115-16, with id. at l69-71. Instead he points
for a less stringent interpretation of the phrase tvoid" in article 13(2) to M. Sundara
ramaier v. Andhra Pradesh, [1958] S.C.R. 1422, A.I.R. 1958 S.c. 468, though that case
dealt with article 286 and has not since then been cited in any of the cases directly on
the point of voidness"" in article 13(2}. See cases cited note 85 supra. See Scervai,
subra note 75, at l64-68. Though there are many dificulties with the Deep Chand
approach, it is probaby the most satisfactory. F. Blackshield, supra note 75, at 176 n
105, 183 n. 125, 184 n. 128.
87. Golak Nath at 805 (emphasis added.) The use of the word inasmuch" is
significant. But for the use of this word and not to the extent that" this passage could
have been taken from Mr. Justice Hidayatullah's opinion. But for his application of
prospective overruling, the learned Chief Justice would have held all of the seventeenth
amendment invalid. It would seem that far from being on the substance a denial of
Deep Chand it is an affirmance of the strong stand in that case against
uncertainty in
the intent to pass legislation, subject now however to the Court's power to rule prospec
tively.
88. Deep Chand v. Uttar Pradesh, [1959] Supp. 2 S.C.R. 8, 21, A.I.R. 1959 S.C.
648, 656.
89. (1955] 1 S.C.R. 707, 728, A.I.R. 1954 S.C. 728, 739.
argument that a particular point of law should not be applied to past

transactions because of some reliance on vested rights interests. A closer
case from our point of view is the case of Bengal Immunity Co. v. Bihar,90
in which inter alia it was established that the Supreme Court had the
power to overrule its earlier decisions. In this instance, the earlier
judgment, Bombay v. United Motors India Lid.,91 had held that acts which
would otherwise have been legislatively incompetent under article
286(1)(a) would be valid where the President had by notification under
article 372(2) "explained" that they would be sustained within the
state power to legislate. A few ycars later in Bengal Immunity, the Court
overruled this case, holding that this would not suffice to make the
statutes valid. While the plea was made before the Court that there
would be many transactions upset by the Court's overruling United
Motors, the Court did not find this sufficient reason not to correct its
earlier decision. It did however indicate quite plainly that it would be
receptive to a law by Parliament under article 286(2) in which would
be formulated principles for interpretation of article 286(1) situations
Iby the courts, 92 though in a later case93 it was held that such legislation
again could not by itself revive a law struck down but would only
provide the power to the state legislature to enact the legislation again.
While Bengal Immunity is a decision in which historical factors were
raised only with referencc to the issue of stare decisis one can imagine
that the same result would have becn reached if the issue of prospective
overruling had been raised. Prospective overruling demands a pragmatic
solution to the problem of fashioning relief. Where it is clear as in arti
cle 286(1) and (2) that it is the legislature which was meant to make the
rules under which the legislative power would be apportioned, then it
would seem to be a wise decision to hold court rulings in abeyance
until such legislative action. Morcover, the reliance interests working
in the field of taxes are generally considered to be less than elsewhere, 94
In truth therefore these decisions on the "voidness" of laws struck
by the Indian Constitution are not directly on point with the facts within
which the Golak Nath decision has been decided, and insofar as they
speak in language broad enough to include the circumstances of Golak
Nath they have of course been overruled by it. For Indian jurisprudence
to accommodate the doctrine of prospective overruling will not be an
overwhelming task. As the experience of the United States indicates,
it will be seldom in any branch of law that circumstances will warrant
90. [1955] 2 S.C.R. 1069, A.LR. 1953 S.C. 252.
91. [1953] S.C.R. 1069, A.I.R. 1953 S.G. 252.
92. Bengal Immunity Co. v. Bihar, [1955] 2 S.C.R. 603, 631, A.I.R. 1955 S.C.
661, 674.
93. M. Sundararamier v. Andhra Pradesh, [1958] S.C.R. 1422, A.I.R. 1958 S.a. 468
94. Cf. 1 Basu, Commentary 585-86.
616 JOURNAL OF THE INDIAN LAW INSTITUTE (VoL. 9: 596
its being resorted to,95 But Golak Nath provides the judiciary with a
tool whereby even while declaring the prior law void' it may, where
justice does speak out, fashion its relief so as not to upset transactions in
the past.
Lastly, for more illumination of the place accorded "vested rights'"
and other events occurring in reliance on the contemporaneous state of
the law, we go to those cases which have dealt with retroactive legisla
tive enactments. It is an established point of statutory interpretation
that retroactivity will be avoided wherever substantial interests have or
may have become vested in reliance on the law as it was prior to the
statute, 96 Beyond this principle of interpretation is the question
whether the legislature has the power to pass a statute if it operates retros
pectively so as to upset transactions among private parties or of private
parties with the government. In the case of Rai Ramkrishna v. Bihar, 97 a
retroactive taxing statute came under attack. The Supreme Court in that
case agreed with the contention of the petitioner that retroactivity of the
act was a factor to be weighed in determining the reasonableness of an
act under article 19,98 but the Court felt that under the circumstances
and the species of provision at issue the term of retroactivity of ten years
was not excessive enough to violate article 19 standards of reasonable
ness, 99 In a very signifcant case of Maharana Jayvantsinghji v. Gujarat, 100
Mr. Justice Das wrote an opinion, joined in by one other Justice with a
concurrence by a third, in which he held that a law was invalid because
it had interfered with the right to recover a certain compensation from
the tenant when land was compulsorily transferred, a right which was
hcld to have "vested" under statute beforc the amendment. The facts
roughly were that under a 1958 amendment of the Bombay Taluqdari
95. It should be noted that Mr. Chief Justice Subba Rao in his opinion in Deep
Chand had purported only to apply the American notions of voidness" of laws in the
context of the Indian provisions. For the early absolutist American view, compare
Norton v. Shelby County, 118 U.S. 425, 440 (1885) (Field, C.J.), stating that an unconsti
tutional law is, in legal contenmplation, as inoperative as though it had never been
passed." It has also surprised some that in the face of the phrase void" in article 13(2),
both India and the United States should have in common the requircment that a litigant
have "standing" before he can address the Court. See 1 Basu, Commentary 182-83.
Also compare Behram Persikaka v. Bombay, (1955] 1 S.C.R. 613, A.I.R. 1955 S.C. 123,
and Bombay v. F. Balsara. (1951] S.C.R. 682, A.I.R. 1951l S.C. 318, with James Uniled
States, 366 U S. 213 (196l).
96. See Narottamdass v. Madhya Pradesh, [1964] 7 S.C.R. 820, A.LR. 1964 s.c.
1667; Garikapati v. Subbih Chaudhary. (1957] S.C.R. 488, A.I.R. 1957 S.C. 540 (Das, J.);
Abida Khatoon v. Utar Pradesh, A.I.R. 1963 All. 260.
97. [1964] 1 S.C.R. 897, A.I.R. 1963 S.C. 1667.
98. Id. at 914-19, A.I.R. at 1675-76. See also Express Newspapers Put. Ltd. v.
India, [l959] S.C.R. 12, 139, A.I.R. 1959 S.a. 578, 621; West Bengal v. Subodh Gopal,
[19541 S.C.R. 537, 626, A.I.R. 1954 S.C. 92, 104.
9). This result on the facts has been criticized severely. See 1 Basu, Commentary
585-86.
100. [19627 Supp. 2 S.C.R. 411, A.I.R. 1962 S.C. 821.
Tenure Abolition Act, 1949, a change was made in the rules by which
a court would determine whether a tenant in possession was a permanent
tenant. Prior to the amendment the onus of proof had been on the
tenant to show he was a permancnt tenant and hence get the benefit of
a lower price payable to the tenure holder on the date fixcd by statute
for the compulsory transfer of lands. The transfer date fixed for non
permanent tenancies was April 1, 1957. Under the 1958 amendment
however, a "presumption" was created that the tenant was permanent
unless within six months of the date of the amendment the tenure
holder proved certain facts. Mr. Justice Das hcld that rights had by
statute vested before the amendment and that the creation of this pre
sumption in favour of a permanent tenancy was an unreasonable restric
tion under article 19(5),101 In this case the Court has certainly gone a
long way in limiting the power of legislation in order to accommodate
completed transactions and expectations raised in the past. The step from
this limitation on legislative power to the Golak Nath recognition that vested
rights and other considerations can support limiting decisions to prospec
tive effect may be a noticeable transformation in terms of the traditional
Conceptual rubrics, but it is in substance and effect a rather small
change.
V. PROSPECTIVE OVERRULING IN GOLAK NATH: AN ExAMPLE
OF ExPENDABLE RIGHTS OR REMEDIAL LIMITATION ?
Prospective overruling is an avowedly remedial limitation on the

application of a substantive holding, and only in the sense of result runs
counter to the substantive holding. This characteristic is the essential
reason why prospective overruling can be conceived of as a judicial
function and not as a legislative function. The same thing has been
emphasized by the learned Chicf Justice in his opinion,
While in strict theory if may be said that the doctrine involves making of law;
what the court really does is to declare the law but refuse to give retroactivity
to it.l02
It iscorollary of this proposition that in the course of making a
determination that prospective overruling should apply, a court should
not in the process downgrade one substantive point of law in relation to
other. As the United States Suprene Court has been very quick tov.
emphasize in making their prospective overruling decision in Tohnson
New Jerse),
We here stress that the choice between retroactivity and nonretroactivity in no
way turns on the value of the constitutional guarantee involved.
Id. at 437-39, A.I.R. at 832-33. On the administrative side, for sugges

a
101.
tion that disfavouring the retroactive operation of rules may go beyond interpretation
sce M.P. Jain,
of rules and constitute a limitation on the power of rulemaking,
Pub. L. 33, 56-57 n. 48.
Parliamentary Control of Delegated Legislation in India,"" 1964
102. Golak Nath at 813.
:
We also stress that the retroactivity or non-retroactivity of a rule is not auto

matically determined by the provision of the Constitution on which the dictate
is based, 108
We have seen that Mr. Justice Hidayatullah has put forth the
view in his opinion that the right to property should not have been
added to the fundamental rights in drafting the Constitution in the first
place, and has hinted that this may in fact be the basis of his particular
holding in Golak Nath, 104 But in truth there would seem to be no way
except by interpretation in specific cases to regulate the cnphasis placed
on the different fundamental rights. This could havc of course been
done in Sajjan Singh by an enormous re-interpretation of prior cases which
had interpreted the fundamental rights, arriving at substantially the
same result as the amendments had written into the fundamental rights
section.105 But in Golak Nath the choice of this alternative seemed to
have been foreclosed. In Golak Nath we are looking through the eye
of article 13, and there is no way from that perspective except by
assuming a completely legislative role for the Court to have distinguished
in its hoiding between the various fundamental rights provisions. If
Golak Nath has in fact done this by the device of prospective overruling
then it has gone beyond the American authorities certainly, and it is
submitted into a realm from which it would have to in future retreat.
With this in mind, let us examine the possible ways in which from the
lcarned Chief Justice's holding or otherwise we might support his use of
prospective overruling here.
It is certainly clear that as a theory and method of limiting the
application of a point of law, at least in instances of the Supreme
Court interpreting the Constitution, Mr. Chief Justice Sublba Rao has
established that there is no prohibition in the Constitution against the
Court employing any degree of limitation which it in its discretion finds
to be just. In discussing the advisability of the course adopted by the
learned Chief Justice we are therefore dealing not with constitutional
proscriptions, but with charting the course which best befits the Court
in its role as a justice-giving institution. As we have scen before, the
substantive point which has been established by the majority opinions is
that the word law" in article 13 encompasses an amendment of the
Constitution and that therefore the seventeenth amendment at least in
sofar as it conflicts with the fundamental rights is void, with Mr. Chief
Justicc Subba Ro perhaps going further then Mr. Justicc Hidayatullah
in suggesting that the entire amendment is substantively void. By the
learned Chief Justice's us: of prospectivc overruling, the amendments
will continuc in the future to be an integral part of the Constitution,
and the fundamental rights as amended by them will continue to
103. Johnson v. Nw Jersey, 384 U.S. 719, 728 (1966).
104. Golak Nath at 886-888 at 887.
105. This route had been suggested prior to the date of the Golak Nath case. See
Blackshield, supra note 75, at 176-80.
represent the provisions protecting individual freedoms and privileges.

It is this peculiar way of leaving future non-legislative events at the
mercy of unlawful amendments which bears some further investigation.
Resisting the temptation to inquire into the bevy of fascinating
substantive problems which have been spawned as a result of this
combination of substantive holding and prospective application,108 we
shall concentrate here on the reasons why Mr. Chief Justice Subba Rao
may have taken the route which he did take to reach his result in the
Golak JNath case.
The archetype application of prospective overruling is concerned
with past events and the prospect of overturning them by applying the
law backwards. To the extent that Mr. Justice Subba Raos opinion
refuses to upset non-statutory transactions completed in the past under
reliance on the legality of the amendments and on the correctness of
the Court's decision in Sankari Prasad and Sajan Singh, the opinion
easily finds support among the American authorities.
There are many opinions among the state courts in the United
States, undoubtedly some of which deal with interpretations of the state
constitutions, in which the likelihood of upsetting vested rights hardly
of the magnitude found in the Golak Nath case have caused the courts
to refuse to give their decisions retroactive effect. If we move to a
more sophisticated analysis represented by Professor Currier's article,
the same result may be suggested by using his five factors equality, –
reliance on the law as contemporaneously declared, the image of justice,
stability and efficient judicial administration.107 In the context of non
constitutional changes in property law, he has stated :
Thus a change in property law fairly cries out for prospective overruling.
This is so because of the obviously great societal interest in stability in this
area, in land titles for instance. Reliance too is a particularly strong value
106. One example will suffice. That is the question whether or not the ninth
schedule has remained open. This question did not arise as a practical matter prior to
Golak Nath since Parliament had been free to add more acts by special majority. Mr.
Justice Hidayatullah has made the succint, not altogether clear, pronouncement with
reference to the ninth schedule that this list may grow." Golak Nath at 899 (per
Hidayatullah, J.). There is a hint in his opinion that the chief defect in the seventeenth
amendment's additions to the ninth schedule were in giving advance protection to acts
apprehended to have violated the fundamental rights, implying perhaps that arti
cle 31B contains, in addition to immunity for the acts already in the schedule a sub
stantive power to add by law further acts which have been invalidated by courts
action. See id. at 898-99. There is nothing in the learned Chief Justice's opinion
which rules out specifically such Parliamentary power, because he does not speak in
terms of interpretation of article 31B. But there are many cases holding that the
legislatures may not by law amend" any acts now in the ninth schedule so as to
abridge any of the fundamental rights. See Abdul Rahiman v. Vithal, A.I.R. 1958 Bom.
94, 97-98, approved in Sri Ram v. Bombay, [1959] Supp.1 S.C.R. 489, A.I.R. 1959
S.C. 459; Sant Singh v. Jammu & Kashmir, A.I.R 1959 J & K. 35. One finds it diffi
cult to imagine therefore that Parliament could by law add whole new acts to the
schedule.
107. Currier, *Time and Change in Judge-Made Law: Prospective Overruling,"
51 Va. L. Rev. 201, 257-59 {1965].
here.... On the other hand though prospective limitation of an overruling

decision in the property field applies different rules to persons in somewhat
similar stuations, it impairs the values of cquality and the image of justice
only slightly Those who (transferred or acquirrd property prior to the
overruling decision] might and ought to have expected that their transaction
would be governed by the old rule, and this is not true of those who did so
afterwards.108
His criticism of the Linkletter result on the other hand is grounded

on the view that in thc area of individual liberties the like treatment
of persons in like circumstances is a paramount consideration and the
interests of reliance not very important 109 Constitutional decisions like
Golak Nath which overthrow prior decisions dealing with right to property
and not right to individual liberties per se are matters which stand
in the middle, bearing resemblance to both types of situations. Perhaps
what it is most like is the protection of the constitutional right to
equality, which in common with property rights presupposes a much
greater reliance on contemporaneous law than do individual civil
liberties. In analyzing the application of equal protection to the school
segregation cases mentioned before,110 Professor Currier concludes that
although it is a constitutional issue at stake the American Supreme
Court's refusal to apply their substantive ruling retrospectively was
a proper course of action. 111 Elements of reliance and efficiency of
judicial administration suggest the same result in the case of the right
to proprty. Thus, American authority might have been cited to
support, had the Chief Justiceso chosen, a holding that the amendments
would be considered valid only prior to the date of the Golak Nath
decision and thereafter would be unenforceable.
But Mr. Chief Justice Subba Rao chose instead to declare that the
amendments continucd to be enforceable in the future as well as the
past,l19 What has been established as a substantive matter in Golak
Nath is the privilege of the people not to havc the government
by
legislative amendment as well as by ordinary law abridge the provisions
of part IIl as they are written now. Whether it was proper to leave
it at this or not deserves consideration, particularly firstly from the point
of view of the feasibility or in Professor Currier's terms, the stability
and efficiency of administration.
It is certainly true as the learned Chief Justice points out
many changes have been introduced by the various amendments that
affect
ing fundamental rights–
108. Id. at 242.
109. Sec id. at 204. But he also suggests that it would not be
irrelevant in
certain cases involving constitutional standards of criminal responsibility. See
id. at
257 n. 179.
110. See notes 38-42 supra.
111. Sec supra note 107 at 231-32.
112. See notes 19-20 supra.
zamindaries, inams and other intermediary estates were abolished, vested rights
were created in tenants, consolidation of holdings of villages was made, ceilings
were fixed and the surplus lands transferred to tenants, !18
But to say that the "agrarian structure of our country has been
revolutionised on the basis of the said laws1 does not really help us
analytically to see the roots of the decision. If there had been one law
which was at issue, certainly it would not have been sustained into the
future at the expense of what had been acknowledged to be the funda
mental rights of the persons affected. Although it is not at all clear,
because the Court has presented no concrete evidence on the matter, one
can imagine that the Constitution as it was originally enacted could
feasibly be put into effect once again. The zamindari abolition
programmes have by now undoubtedly been almost fully implemented
and the resultant land vested in the state or the tenants. Consolidation
of village land holdings if they have not been effectuated till now would
seem to be able to be effectuated if done properly even on the basis of
the Constitution as it originally was enacted.Ceilings on land hold
ings have undoubtedly not been completely effectuated, but appropria
tions under these acts in the future can be separated from those which
have occurred in the past.
Apparently Mr. Justice Hidayatullah foresaw little difficulty in his
opinion over the prospect of throwing into doubt the legality of the 44
acts which had been added to the ninth schedule by the seventeenth
amendment. Though the matter is, to say again, not completely free
from doubt, it seems that the changes which have been introduced by
the amendments and the laws passed under them are not insurmount
able obstacles to re-constituting the fundamental rights as they were at
the adoption of the Constitution. On the other hand another of
Professor Currier's factors, that of "equality," can be furthered by
allowing the amendments to continue into the future to effect private
rights as they have affected private property rights in the past. But as
a matter of principle, however, for a court to establish a particular
substantive holding and then to refuse to apply it either in the past or
in the future would be to destroy its very function as a court to wit,
emasculate what Professor Currier has labelled a court's image of
justice." We have indicated above that the past applications of the
amendments and laws passed thereunder are probably separable from
possible future applications. If therefore the central purpose of the
ma
jority's opinion in Golak Nath was to establish that the provisions of
part IIT as they were originally enshrined into the Constitution were
not subject to amendment, the American authorities cannot be cited in
support of the wiy in which prospective overruling has been applied.
l13. Golak-Nath, at 807.
114. Ibid.
I15. G. Ajit Singh v. Punjab, (1967]2 S.C.R. 149, A.I.R. 1967 S.C. 856.
622 JOURNAL OF THE INDIAN LAW INSTITUTE [VoL. 9: 596
The learned Chief Justice, in supporting the reasons why he has

chosen the alternative he did under the docirine of prospective over
ruling, has been somewhat vague in specifying the reasons for his broad
limitation. At one point he has enveigled us with the spectre of the
chaotic situation that may be brought about by the sudden withdrawal
at this stage of the amendments from the Constitution.""116
This being the first use in India of the doctrine of prospective
overruling, it was undoubtedly unwise to proceed too far beyond the
appearance of an ad hoc result.117 Nevertheless the real reasons behind
the Court's opinion and the meaning of the terms it has used to arrive
at its conclusion should not be totally obscure. We may question first
whether the use of the term “chaotic situation" can mean anything more
than the direct effects of the impugned constitutional amendments.
Reliance by the various gove nments in preparing their budgets on the
fact that under the amended Constiution the requirement of paying
compensation is substantially less stringent than it was before the amend
ments is a factor which continues into the future, but probably not
beyond the next budgetary session. Another factor is the political
stability of the legislative branch of the government. Undoubtedly, if
a decision of the Court had the effcct of invalidating for the future a
series of amendments to the Constitution by upsetting or sceming to
upset the programmes of the legislatures, it would have great impact on
the tenure and perhaps stability of that branch of the government. But
this is an unacceptable reason for the Supreme Court's conclusion for
the simple reason that it is too close to the motive which the American
Supreme Court's decision in the žoknson case has been accused further
ing-namely that of using prospective overruling to cushion the impact
of its decision on the merits in order to reduce its unpopularity.118
But if fcasibility is not a valid reason for the Chief Justice's
refusal to render the impugned amendments unenforceable for the
future, we must search for another justification, bearing in mind always
the bounds of judicial decision-making. On the substance the Court
has reasoned that amendments are laws within the meaning of article 13
and therefore they are and were invalid if they infringe fundamental
rights. If the reason for not applying this principle to the amend
ments enacted up to this time is that the rights which have been
infringed by them--largely the property provisions of the fundamental
rights - are in some sense inferior or expendable, then the Chief
Justice has done more than restrict an otherwise consistent and logical
holding in order to save the government from embarrassmnent. He has
substantively changed or rewritten the Constitution. And this extension
beyond the doctrine of prospective overruling the Court should not be
116. Golak Nath at 814 (per Subba Rao, C,J.).
117. See J. Stone, Social Dimensions of Law and Justice 664 (1966).
118. See Schwartz, American Constitutional Law 724, 767-68 (1955).
1967) PROSPECTIVE OVERRULING IN INDIA 623
taken lightly to have done. Two alternate reasons may be suggested

to support the holding of the learned Chief Justice, both of which are
within the confines of prospective overruling as we have viewed it
the first grounded in considerations of institutional purposes and
conflicts, and the second grounded in the "purpose" aspects of the
Linkletter decision.
The first of these reasons is suggested by certain portions of the
Golak Nath decision itself and certain other statements by the learned
permanence
Chief Justice on the significance of "part III" as having the
of an institution and being the written embodimnent of the basic rights
reserved to the people. This is analogous to the reasons which we have
indicated may have prompted the United States Supreme Court in
Johnson and Miranda to apply the doctrine of prospective overruling
where otherwise it might seriously hamper the law enforcement
of
agencies in their attempts to experiment in finding the best method 119
as a whole. The
enforcing the law for the protection of the society
Court in Miranda hesitatingly adopted certain
very minimal rules to
to go any
guide the enforcement authorities in the future, but refused
farther before it was clear what complications would arise from these
in Johnson involves quite
rules. The prospective overruling result
these rules it
patently an admission by the Court that by setting down
is making new law advancing personal rights and privileges
into new
arcas, and that no stigma need therefore attach to the actions of
purpose of law
authorities who in carrying out in good faith the
would be
enforcement could not have foreseen that their actions
violating a constitutional right.
may be seen in the
There are several institutional conflicts which course
Golak Wath result. The first and most evident
is of the conflict
power and the Court using
between the legislature using its legislative
its power of judicial review.
120
The Joknson type of question to be
or not the legislature will bc hampered
asked in this context is whether
a decision which would hold unenforceable
in its legislative function by we
for the future the provisions of the
original fundamental rights. As
as in Miranda of a court
are not dealing with the same problem case
rules into new fields, the
continually expanding its decisions and many new
is not exactly the same. No doubt there would have to be
which were thereby overthrown
acts passed to take the place of those
Parliament would suffer somewhat from
and no doubt image of the actions, but this in itself should
embarrassment" on account of its past legislatures done in good faith
not hamper in the future actions of the as
powers. Another conflict is that between part III
exercise of their provisions to which a citizen
an institution embodying in writing the
text.
119. Sce notes 58-70 supra and accompanying
120. See Golak Nath at 807-08.
624 70URNAL OF THE INDIAN LAW INSTITUTE (VoL. 9 : 596
may look for knowledge of his fundamental rights. If the decision

did overthrow the prior amendments for the future, an unprecedented
situation would arise in which the words of the Constitution expressed
a set of fundamental rights which were different from those which in
fact were cognizable by the courts. But this also does not seem
however to be a valid reason for the Court to have limited its holding
in the way in which it did. Aside from being hit by the same
criticism which we may level at Mr. Justice Hidayatullah's notion of
acquiescence, it is undoubtedly true that the image of the fundamental
rights in the eyes of the citizen of any society would not really be
mitigated by his being told that his rights are now greater than is
indicated literally by the words of the Constitution.
The second and more convincing ground for sustaining the use of
the doctrine of prospective overruling is contained in the element of
purpose" of the overruling decision which was introduced into
American jurisprudence in the Zinkleter case, the judgment of which is
The passages quoted deal
122
quoted at length by the Chicf Justice.
with the three considerations laid down in Linkletter for determining
whether or not to give retroactive cfect to an overruling decision
purpose of the overruling of the prior cases, administration of justice
and the integrity of the judicial process of which the most important
is the purpose of the overruling decision. In the Mapp decision, the
central purpose had been to deter the police from invading the consti
tutional right of privacy declared by the Court as an adjunct of the
fourth amendment by refusing to give cognizance in a court of 123 law to
any evidence which has been gathercd in violation of this right." In
Golak Nath the reasons for the decision are easy enough to gueS. In
Sajjan Singh, insofar as the holding of the Court was concerncd, the
was not clearly
issue of the fundamentalness of thc fundamental rights
at issue. Therefore whatever was said therc on the word law" in
article 13 had not the same force as a norm:l holding. But in Golak
Nath, the issue of whether or not Parliament could amend the funda
mental rights by the proccdure ou:lined for unentrenched provisions of
the Constitu:ion was immediately bfore the Court. The arguments of
121. In a passage' from his judgment in Golak Nath the learned ChiefJustice
stated that: as conducive to
It is not what the Parliament regards at a given moment
the public bencfit, but wha! Part I! declares protected, which delermines the
ambit of frecdom.
as he has stated on another occasion with
Golak Nath at 972 (emphasis added.) And
respect to the implications of Sankari Prasad and Sjjan Singh,
the fublic
It must be realized that a reverential attachmnent to the constitution in
mind is the only elfective guarantee against the infringement of fundamental
rights preserved for the peopl thereunder.
70 (University of
K. Subba Rao, Fundamental Rights under the Constitution of India
Madras, n.d. ca 1963-66). (Emphasis added.)
:
122. Golak Nath at 81(0-1l1.

123. Sece generally part IIIB of this article.
counsel outlined by the learned Chief Justice proceeded almnost exclusively

upon this issue. The Court had to decide that issue for or against the
petitioner, and in the latter case it would be presumed that the Parlia
ment could by a special majority amend part III so as to erase all the
fundamental rights from the Constitution. Analytically there was no
alternative before the Court but to acknowledge that Parliament in
India, albeit here by a 'special'" majority, had in matters of fundamental
rights the power of parliamentary supremacy enjoyed by the legislature
in Britain, or to rule that it was curtailed in India by the Court's right
of judicial review as contained in article 13."
123a
In any case the question whether Parliament's power of constitu

tional amendment was limited by article 13 or not was assumed by the
majority to be before the Court and no clear objection to this assump
tion seems to have been raised by the minority. Thus for discerning
the purpose in the overruling of Sankari Prasad we can assume that this
was in fact the position. As Mr. Chief Justice Subba Rao stated in his
opinion :
[If the decisions in Sankari Prasad's case and Sajjan Singh's case laid down the
correct law, enables the...Parliament to abrogate [the fundamental rights]
with one stroke.... Such a conclusion would attribute unreasonableness to the
makers of the Constitution, for, in that event they would be speaking in two
voices.124
And referring to the design of the Constitution-makers in drafting

the original document, he has further stated:
Nor can we appreciate the argument that all the agrarian reforms which the
Parliament [sic] in power wants to effectuate cannot be brought about without
amending the fundamental rights. It was exactly to prevent this attitude and
to protect the rights of the people that the fundamental rights were inserted in
the Constitution. ...(B]oth Parts III and IV form an integrated scheme and
is clastic enough to respond to the changing needs of the society. The verdict
of the Parliament on the scope of the law of social control of fundamental
rights is not final, but justiciable. 195
And as Mr. Justice Hidayatullah has emphasized in his concurring
opinion,
Since Dicey had said that the proclamation in a Constitution or Charter of
the right to personal freedomn or indeed of any other right, gives of itself but
123a. For a pre-Golak Nath criticism of the fact that the legislature was at that
time generally held to be supreme and a suggestion that it may have weakened the
Supreme Court's effectiveness as an instrument for the protection of fundamental
rights, see Irani, The Courts and The Legislature In India," 14 nt'l & Comp. L. 2
950, 959-62 (1965).
On the other hand a cogent argument has been made for the avoiding if at all
possible of a decision on such an ulimate question as was in fact taken up and decided
in the Golak Nath judgment. See Baxi, « The Litle Done, the Vast Undone'-Some
Refections on Reading Granville Austin's The Indian Constilution,"" 9 J.IL.I. 323
387-88, 406-11 (1967).
124. Golak Nath at 792-93.
125. Golak Nath at 815-16. (Emphasis added.)
:
626 70URNAL OF THE INDIAN LAW INSTITUTE [VoL. 9 596
slight security that the right has more than a nominal cxistence", provision
had to be made for guaranteeing them and to make them justiciabls and
enforceable.. The High Courts and finally this Court have been made the
Judges of whether any legislative or executive action on the part of the State
considered as comprehensively as is possible, offends the Fundamental Rights
and Art. 13(2) declares that legislation which so offends is to be deemed to be
void, 126
I am apprehensive that the erosion of the right to property may bc practiced

against other Fundamental Rights. If a halt is to be called, we must declare
[against] the right of Parliament to abridge or take away Fundamental Rights
.. ThisCourt has the power and jurisdiction to make the declaration.l97
As these opinions and the comments of others imply, the immediate
and central purpose of the Golak Nath decision is the preservation of the
power of judicial review against the prospect that the legislature could
otherwise abridge all the rights in part III. It is not the protection of
any one fundamental right which is at issue in Golak Nath, nor is it the
preservation of the fundamental rights as they were originally drafted
into the Constitution. It is to vouchsafe the power of the Supreme
Court to interpret and measure against the yardstick of the fundamental
rights all actions of the Parliamnent, no matter how much of a
majority may be in favour of disrcgarding the dictates of that part of
the Constitution.
On top of the fact that the purpose of Golak Nath would not be
served by re-constituting the fundamental rights as they were at the
adoption of the Constitution, in terms of stability and eficiency of
administration the task of rendering all the amendments unenforceable
after the date of the Golak Nath decision is indeed a formidable one
even though as we have suggested before it may not be an infeasible
one. The third factor in the Linkletter rationale, that of the integrity
of the judicial process, will undoubtedly suffer somewhat from continu
ing to enforce the past amendments. In the Mapb case the evidence
presented before the judiciary in the past was not inherently false but
had become tainted by having been gathered in violation of the newly
held constitutional zone of privacy. As the purpose of Mapp was to
stop the use of evidence gathered in this manner and there was no other
substantive purpose to be achieved, the practice of accepting such
evidence in the courts of law could not be allowed to continue into the
future. After Golak Nath, no doubt many of the laws which the courts
will use to readjust property interests will be tainted ones. But to a large
extent the integrity of the judicial process is preserved by the way in
which Golak Nath has achieved its main substantive purposethe declara
tion that in future all legislative actions will be laws' subject to judicial
review, leaving as a legislative function the modification of the past
126. See Mr. Justice Hidayatullah's opinion in Golak Nath at 859-60, quoling
Dicey, Introduution to the Study of the Law of he Constitution 207 (10th ed. 1962.)
(Emphasis added.)
127. Golak Nath at 898. (Parenthsis added.]
amendments. 128 And measured against the difficulty in the administra

tion of justice otherwise, thc amount to which the integrity of the judicial
process will suffer will be small. On balance therefore it would seem to
have been wise for the learned Chief Justice to have limited in the
fashion which he did the application of the law declared in Golak Nath.
There are some other aspects of Mr. Chief Justice Subba Rao's
use of the doctrine which deserve to be commented upon. The first is
his choice of deciding the issue of prospective overruling in the same
opinion as the substantive matter is adjudicated in. There has been
much criticism of the American cases which have chosen the other root
of declaring the substantive law in one decision first and then in a
separate judgment later deciding whether or not to apply the law
retrospectively or not. It is submitted that the learned Chief Justice
has adopted a wise solution in settling the whole matter in one hearing
especially in the area of property rights where throwing titles and
Cxpectations into dispute over a matter not stricly substantive law would
cause much uncertainty. Secondly, it is likewise advisable not to give
relief to the litigant before the court at that time in order to satisfy any
reward theory or in order to create a technical ground for supposedly
transforming the substantive ruling from one of dictum to a holding on
facts. The chance that he may convince the court to reverse a
substantive point of law and also apply the new ruling to his case is in
every branch of law sufficient to give incentive to a prospective litigant
to raise a question in the courts. Thirdly, one cannot imagine that the
Court's very hesitant steps into the use of prospective overruling will
either bring it disrepute or will give the judiciary in gencral temptation
to reach too far. In Golak Nath, no doubt the Court could have been
very hesitant indeed to overrule Sankari Prasad without knowing that
the doctrine of prospective overruling would be available to cushion the
blow upon the changes which had taken place upon the assumption that
Sankari Prasad represented the correct state of the law. But where the
result is just in itself as a legal matter this is the function which pros
pective overraling is meant to perform. Fourthly, it isdistressing to note
that apparently in Golak Nath there was no argument on the point
whether or not the Court's holding should be prospective.
129
With such
a difficult and important point hanging in the balance, onc should hope
that the Court in future will as a general practice give more considered
thought to whether to limit its holding or not.
:
VI. THE FUrURE USE OF PROSPECTIVE OvERRULING IN INDIA
ATTEMPTS TO STEM THE TIDE
During the course of his opinion Mr. Chief Justice Subba Rao
exprcssed some apprchension over his introduction of the doctrine of
128. Compare Bengal Immunity Co. v. Bihar, [1955] S.C.R. 603, A.I.R. 1955 S.C.
661. See also supra note I19.
129. See Golak Nath at 807-08, 812 (per Subba Rao, C.J.).
:
prospective overruling into Indian jurisprudencc. To guard against

misuse and misunderstanding of the doctrine in the near future, he laid
down three "propositions" under which he purported to limit its use by
Indian courts hereafter,130 The two conditions which are relevant for
our discussion here are that the doctrine may be employed only by the
Supreme Court and only where there is a constitutional matter at issue.
It shall be our task here to consider whether these limitations are wise
and whether they are binding upon future case development.
Taking first the advisability of limiting the subject-matter to
constitutional issues, it would appear that this restriction runs counter to
its statement that the foundation for the doctrine of prospective over
ruling has been foreshadowed by the cases on res judicata and the
interpretation of statutes so as not to disturb vested rights.181 To impose
such a subjectwise limitation on the evolution from these cases to a more
sophisticated doctrine of prospective overruling seems almost self-defcat
ing and would undoubtedly hinder a broader understanding of the
functioning of judicial relief when faced with a decision of wide impact.
Certainly there are many non-constitutional areas of the law, like for
example the transfer of property or land acquisition act, where a new
judicial construction may have consequences on past property transactions
at least as great as those left in the wake of a judicial interpretation of
a constitutional provision. The American Sunburst case, quoted with
evident approval in the opinion of the Chief Justice, 199, establishes that
there can be no fundamental objection to limiting prospectively judg
ments on non-constitutional matters. Moreover, the fact that the
doctrine has been applied in Golak Nauh to limit the application of the
fundamental rights themselves should logically negate any view that it
is improper to rule prospectively on situations either inside or outside of
the Constitution.
The Court may be on firmer ground in its limitation of the use of
prospective overruling to only the judgments of the Supreme Court,
since this form of relief involves questions of a basic nature concerning
the institution and functioning of the judiciary. A similar limitation has
also been suggested by one of the opponents of the doctrine in the United
States, Professor Mishkin, who feels it is a wise alternative to prevent
We would lay down the following propositions : (1) The doctrine of prospec
tive over-ruling can be invoked only in matters arising under our Constitu
tion; (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 the justice of the canse or
matter before it.
131. See ibid.
132. See id. at 809.
what he terms "problems beyond the effective capacity of the regular

judicial machinery" which may arise by creating a general theory of
prospective overruling. 133 But it is ironic tlat Professor Mishkin should
sOon thereafter in a discussion of the role of the Supreme Court conclude
that, because the large number of uniyue questions which are put before
it, the Supreme Court is the one court which cspecially should not employ
the doctrine of prospective overruling.1s4 It is difficult to fathom more
over what kind of problems will result if the lower courts are allowed to
make use of a doctrine which the Supreme Court has by its opinion in
Golak Nath affirmed to be in certain cases at least the most just reslt.
The party against whom the prospective overruling judgment goes is
free to file an appeal to higher authority to assert his substantive rights.
The Supreme Court of the United States seems to have felt no uneasiness
over the fact that in the companion case to Lnkletter the lower courts
had applied their decisions prospectively. 135 And in latter cases there,
the Court can hardly have been hurt by the lower federal courts and
the state courts having investigated from the perspective of the prospec
tive overruling issue the various problems which might arise by apply
ing their decision retrospectively.l35
Having reached the conclusion that Mr. Chief Justice Subba Rao's
list of limitations on the future use of prospective overruling are perhaps
not wise restrictions, the next question is whether they may be sustained
as legal principles. In the first place it seems clear that both restrictions
have at best the status of dictum in this opinion. In Golak Nath neither
has there been a High Court decision using prospective overruling nor has
it been used outside the context of the Constitution. What weight
should be accorded a dictum of the Supreme Court an unsolved
is
question at this point, though many High Courts have considered it
binding, 138sa But even if a dictum is regarded binding, it is arguable
that the limitations which the Chief Justice has attempted to impose
are not legal dictum in the sense that they do not have the character
of applicable legal statements. Otherwise it would be entirely plau
sible, yet anomalous indeed, for the Supreme Court, in an appeal rom
a High Court judgment in which prospective overruling were applied,
to declare that the High Court's use of the doctrine is improper and then
go on to conclude on the merits that the High Cort's overruling of its
133. See Mishkin, supra note 52, at 65 & n. 35.

134. See id. at 67-70.
135. See Angelet v. Fay, 381 U.S. 654 (1965), afirming 333 F. 2d 12 (2d Cir.
1964).
136. See, e.g.. Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966).
136a. See Saxena, The doctrine of Precedent in India," 3 Jaipur L.j. 188
some of these High Court cases, see
205-13 1963). For an alternate interpretation of
Popkin. Prematurity and Obiter Dictum in Indian Judicial Thought," 4 J.LLI. 254
(1962). See generally id. at 247-60. Certainly article 141 of the Indian Constitutjon pro
is relevant in emphasizing the heavy weight to be accorded to Supreme Court
nouncements, but it would be old-fashioned to maintain that the phrase law declared
by the Supreme Court" in article 131 includes obiter dicta. See id.
at 259.
:
630 JOURNAL OF THE INDlAN LAW INSTITUTE [VoL. 9 596
prior decision is correct but will be applied only prospectively in order to

protect prior transactions. In the second place there is some uncertainty
over whether the Supreme Court could in a future holding refer to some
power to deny that prospective overruling may be used beyond consti
tutional issues or by other courts. In determining that “the Constitution
does not speak against the doctrine of prospective overruling," the Court
refers to articles 32, 141 and 142 for support.137 The second and third
of these articles cannot be taken to limit prospective overruling to
constitutional issues and articie 32, which speaks to jurisdiction more
directly than to relief, seems to be considerably narrower in matters of
general relief than article 142 and the authorization there in to do
complete justice'"' in any cause or matter on any subject. On the
other hand, the efficacy of a limitation to use only by the Supreme
Court is on a surer footing, though it is not clear that Mr. Chief Justice
Subba Rao was attempting to construct a substantive argument in his
opinion to support this proposition. Professor Mishkin has noted that
in the American context it is hard to find a rationale" for prospective
overruling that would not apply to all courts cqually, and that in any
case the Linkletter decision was not one which was "uniquely suited'" to
the Supreme Court, 138 Though Mr. Chicf Justice Subba Rao was
concerned to establish that there were no restrictions against prospective
overruling in the Golak Nath situation, his judgment also hints that the
power for the doctrine may be found in the phrase "law declared'" in
article 141.'39 As it is our view that the doctrine is not uniquely
suited" to the Indian Supreme Court, we would hope that this sugges
tion is not adopted but instead that the doctrine be recognized as it is
in the United States as a general concommitent of the power and duty
of a court to give just relief when it has jurisdiction Over a matter.
The Constitution in article 226 has given the High Courts power of
relief at least as flexible as was given to the Supreme Court in the
provisions of article 32. There seems no reason to suggest that the
High Courts must deny "complete justice" in case which is appro
priate for application of prospective overruling merely because a corres
ponding article to article 142 has been omitted from the chapter on
the High Courts and their powers.l40
VII. THE PITFALLS OF AcQUIESCENCE :
MR. JUSTICE HrDAYATULLAH'S OPINION
Mr. Justice Hidayatullah while concurring on the merits has
adopted an approach alternate to the one adopted by the learned Chief
138, See Mishkin, supra note 52, at 65 n. 35.
139. Golak Nath at 813-14.
140. Asicle from the anomalous position in which the Hiyh Courts would be placed
if the discretion to rule prospectively is not conceived as within the power of any
court, the question would arise whetier by an amcndment ratified by the states
articles 141 and 42 could be altered so as to deny the power of prospective overru'ing
to the Supreme Court as well.
1967 PROSPECTIVE OVERRULING IN INDIA 631
Justice to sustain past actions of the legislature. In his vicw it is appro

priate to refuse to strike down past constitutional amendments if it can
be determined that such amendments have been "acquicsced" in "for a
long timne'" since their passage. "41 Partly on this basis and partly
because the validity of the first, fourth and seventh amendments were
not before the Court in Golak Nath, he was of the opinion that the
additions of these first amendments could not be questioned."42 Rcgard
ing the seventeenth amendment, which was before the Court in Golak
Nath, the first step was to rule that the Sajjan Singh case was overruled
as a substantive matter.-43 And since the seventeenth amendment
could not be said to have been "part of the constitution by acquicsccnce
for a long time," it must therefore be tested part-by-part to determinc
whether its various parts can be sustained under articles 31 and 31A as
they stood after amendment by the first, fourth and seventh amend
ments. 144
Mr. Justice Hidayatullah in his use of the so-called doctrine of
"acquiescence" has pointed for support to American authorities.
Specifically he refers to the 1922 American Supreme Court case of
Leser v. Garnett,"145 in which the validity of the nineteenth amendment
was challenged on the grounds of "its character."4 Mr. Justice
Brandeis for the Court in that case cquated the character of the
nineteenth amendment with that of the fifteenth amendment. Then
to settle the whole matter in one stroke he wrote the following sentence :
The suggestion that the 15th (amendment] was incorporated into the Constitu
tion not in accordance with law, but practically as a war measure, which has
been validated by acquiescence, cannot be accepted.147
This comment had led Professor Orfield, whose work is extensively
cited in Mr. Justice Hidayatullah's opinion, to suggest exactly the
opposite on the question of the existence of a general theory of
acquiesccnce in American jurisprudence."148 Orficld however goes on
to suggest that acquiescence may be found in the proposition in certain
142. Id. at 893.
143. Id. at 898.
144. ld. at 898-900.
145. 258 U.S. 130 (1922); Golak Nath at 893-94 (per Hidayatullah J.).
146. Id. at 136.
147. Tbid.Leser is in certain respects an application of the "hot-potato" theory
of avoiding ultimate constitutional issues unless they are directly before the Court. If
we reduce Mr. Justice Brandeis' remarks to semi-logical termns, there are three proposi
tions and a conclusion: (1) the 15h is valid'; (2) the fiteenth and nineteenth amend
ments are in character and phraseology" the same; (3) the fifteenth cannot be con
ceived as having been validated by acquiescence; " conclusion: an attack on the
nineteenth amendment that it is "out of character" cannot be sustained. In this one
can hunt in vain either for a support of acquiescence as theory, or for a definite
repudiation of the view that there may be substantive objections to amendments and
for a categorical statement that the nineteenth amendment is valid,'"
148. Sce L. B. Orfield, The Amending of the Federal Constilution 79 (1942).
632 J0URNAL OF THE INDIAN LAW INSTITUTE [VoL. 9 :596
American cases that the court will not delve into matters which it
considers political in nature. 149 It is difficult for us also to imagine how
the doctrine of acquiescence could be established on a footing
independent of the notion of "political questions" and saved from the
"quicksands" of certain other endemic American doctrines. 150 But as
Mr. Justicc Hidayatullah has rightly pointed out even in America
the proscriptions against cxamining"political questions" has been eroded
away by later decisions. 151 We may conclude therefore that the
interpretation of the American Constitution lends little support to
Mr. Justice Hidayatullah's formulation of a doctrine of acquiescencc.
But going beyond the lack of support for the doctrinc among
American authorities, we are entitled to question whether the cstablish
ment of acquiescence as a general theory would be a wise step or not
and whether its use in the Golak Nath context would be appropriate.
As Mr. Justice Hidayatullah has used it the notion of acquiescence
seems to be reducible to the statement that tme alone is a cure to even
substantive defects in a written constitution. At one point in his opinion
he expresses the idea very aptly by asserting that the validity of
article 31A is unquestionable because it was not specifically before the
Court and because it has stood for a long time as part of the Consti
tution under the decision of this Court and has been acquiesced in by the
people.02 This cannot of course be taken to mean that the amendments
willstand because the people have not resorted to self-help. Its meaning
must be that the people" have not acted by electing representatives
to "the legislature" who will make a law or constitutional amendment
torepeal article 31A, then "the Court" will consider after"a long time"
that the amendment is valid.
But in the context of the Golak Nath decision especially there are
reasons why such a doctrine should not be used. Firstly, as Mr.
Justice Hidayatullah has ruled, where the amendments which were
attempted by the Parliament were all laws" for the purpose of testing
them against the fundamental rights, the doctrine of acquiesccnce if
applied in this instance goes against the clear weight of authority that the
passage of time will not cause the judiciary to shirk its duty of passing
149. Id. at 79-80. See also Coleman v. Miller, 307 U.S. 433 (1939).
150. See Blackshield, supra note 75, at l74-75.
151. See Golak Nath at 862-63 (per Hidayatullah, J.) citing Baker v. Carr, 369 U.S.
186 (1962). Thus, recent comment in the United States on the old but still-disputed
amendments bas attempted to tackle them on substantive grounds. See, e.g.,
Fernandes, The Constitutionality of the Fourteenth Amendment,"" 39 U.C.L.A.L. Rev.
378, 407 (1966), where the power exercised in promulgating that amendment is descri
bed as 'an alloy of specific constitutional provisions and historical factors."
152. Golak Nath at 890 (Emphasis addcd.)
153. See, e.g., Grace Bros. v. Commonwealth, 76 Commw. L. R. 269 (Aust. 1946);
Toronto Elec. Comm' rs v. Snider, L.R. (1952] A.C. 396 (from Canada); Myers v.
United States, 272 U.s. 52 (1926) (statute invalidated after 50 years). There is no
reason why the foregoing principles should not be followed in India." 1 Basu, Com
mentary 233.
on the constitutionality of an enactment. 1D In India, where the doctrine

of waiver of constitutional rights is particularly frowned uponl54 and
where it is difficult to infer that the people'" had any thought about
the fundamental rights in electing their representatives, the notion of
acquiescence is hard to sustain. Secondly, if "acquiescence'" is to be
the test, how is the Court to separate conceptually acquiescence in a
series of three inclusions into the Constitution which have abridged the
fundamental rights from acquiescence in the proposition that "law"
does not include an amendment under article 368. Mr. Justice
Bachawat's point in his dissent is well taken that the American case of
Leser v. Garnett stands for the proposition that if all the amendments
prior to the seventeenth are valid then the seventcenth is valid us
well. i55 Thirdly, in comparison to the various factors which are relevant
in the question whether or not to use prospective overruling, the single
factor of the passage of time in the notion of acquiescence would seem
to be a much less adequate justification for limiting the application of
fundamental rights.
Before closing it must be mentioned that Mr. Justice
Hidayatullah's use of acquiescence is undoubtedly tempered by the
significant fact that he does at the same time declare for the future
that "law'" in article 13 will include amendments to the Constitution.156
The archety pe instance of acquiescence is presumably one in which
absent a declaration of law a court refused to rule on an issue of law
merely because of the passage of time. That Mr. Justice Hidayatullah
in Golak Nath has issued the caveat that the term law'" in article 13
will be given an expanded definition in the future is a factor going to
mitigate substantially the danger to fundamental rights from the notion
of acquiescence. But it is not completely true to say that, had it bcen
accepted in Golak Nath, there would not be an instance in the future in
fundamental rights -
which it might be used again. The various other provisions of the
particularly articles It, 19, 21 and 31 carry in
themselves the seceds of change and expansion of the protection accordcd
by the fundamental rights. Were an amendment of the Constitution
enacted in the past now to be hit by a new interpretation of one of
these provisions of part III the notion of acquiescence might well have
been applied again to sustain the past "amendment" merely because
of the passage of time.
154. See Basheshar Nath v. Commissioner of Income-tax, [1959] Supp. 1 S.C.R. 528,
617-18, A.I.R. 1959 S.C. 149, 158-59. Bui cf. Nathanson, Waiver of Constitutional
Rights Indian and American Constitutional Law," J.J.L.I. 157 (1962), suggesting
in 4
a difference in the factual patterns which have thus far conme before the American and
Indian courts.
155. Golak Nathat 921-22 (per Bachawat, J., dissenting).
156. For pointing out the importance of Mr. Justice Hidayatullah's statement
that henceforth fundamental rights could be amended only be constituting a constituent
assembly, I am indebted to conversation with Associate Professor Upendra Baxi of the
Indian Law Institute.
634 70URNAL OF THE INDIAN LAW INSTITUTE (VoL. 9: 596
In conclusion we would urge that it best not to use the notion

is
of acquiescence in sustaining constitutional anendments from attack
on the basis of conflict with the fundamental rights. Its use even in
Mr. Justice Hidayatullah's opinion does not seem to be central to or
perhaps even consistent with, his main theme. Why for example are
we told on the one hand that it had been said in a Bench of five
Judges on one occasion and by a majority of 3 to 2 on another" that
an amendment was not a law, and yet on the other hand told that only
157
Sajjan Singh stands overruled now. It is a rather technical answer to
say that nothing besides the scventeenth amendment was before the
Court in Golak Nath, for Mr. Justice Hidayatullah seems to be
implying that both Sajjan Singh and Sankari Prasad determined the same
point of law. The answer, it is submitted, may lie in a distinction in
substance which Mr. Justice Hidayatullah discerns between the
:
seventecenth amendment and its predecessors
Although Duguit, who is ahead of others, thinks that the institution of
property has undergone a revolution the rights of the Individual are not quite
gone, cxcept where Cormnunism is firmly entrenched. The rights are qualifed
but property bclongs still to the owner. The Seventeenth Amendment.
however, scems to take us far away from even this qualified concept, at least
so far as "estates'" as defined by Art. 31-A,159
Furthermore, from his discussion throughout the opinion of the

appropriateness of the language in the Constitution and the advisability
of the early restrictive Supreme Court and High Court judgments
scem clear where his sympathies lie with regard to the amendments
prior to the seventeenth. He seems to have regarded these first
amendments more in the nature of clarifications than amendments or
transformations. One may in this regard cite Mr. Justice Hidayatullah's
strange but significant argument that the expansion of the definition
of *estate" in the second scction of the seventeenth amendment may
bc upheld as an exercise of power granted in article 3lA(1)(a) as it
existed after being inserted by the first amendment even though that
article itsclf applies only to *estates. l60 It can only be regretted that
these fascinating thrcads of wisdom have remained unknitted beneath
the covcr of acquiescence.9
VIII. CoNCLUSION
The use of prospective overruling by Mr. Chicf Justice Subba Rao

in Golak Nath is therefore in our view an appropriate exercise of judicial
discretion. On the onc hand it could be supported on the facts if we
could find it infcasible to declare unenforceable for the futurc all the
laws and amendments to the Constitution which had violated the
157. Golak ath at 898.
158. Id. at 898-99.
I59. ld. at 895.
160. Id. at 899.
fundamental rights when they were enacted. On the other hand it

seems more appropriate to view the case as analogous to the American
decision of Linkletter v. Walker,161 where the paramount consideration
was whether the purposes in introducing the newly-established rule
would be furthered by applying the law retrospectively. In Golak Nath
the purpose of establishing the new interpretation of the term law'
in article 13 was to preserve the power of judicial review, and this
purpose would not be served by reconstituting the fundamental rights
as they were at the adoption of the Constitution. At the cost of the
disruption which would have been caused by overthrowing all the
impugned laws for the future it was therefore inadvisable to apply the
new ruling to past enactments. And no less pragmatic a regard for
ffexibility in the legal system has been shown in the majority's declara
tion of what point of law Golak Nath will stand for in the future
namely that any amendment which conflicts with the fundamental
rights will be void. Both Mr. Chicf Justice Subba Rao6% and Mr.
Justice Hidayatullahl63 have suggested that there are means by which
the political organs of the government may initiate a revision of the
power of judicial review by calling upon the people to exercise their
Sovereignty over the fundamental rights reserved to them under the
Constitution.l64 The result in Golak Nath cannot be said to have erected
an impossible barrier to the future development of the country. Both
in fashioning the tool of prospective overruling and in suggesting the
proper course for political changes in the future, Mr. Chief Justice
Subba Rao has taken a rcalistic but difficult stand in the application of
a firm decision in favour of preserving the fundamental rights.
Now that the doctrine of prospective overruling has been intro
duced by the Supreme Court in constitutional matters, there is every
likelihood that it will be used in other matters and by the High Courts.165
Moreover, prospective overruling is not a matter which can be limited
to situations in which there are actual cases which have been overruled
but applies to any situation in which the court has upset a previous
generally-held point of law. 166 With this broader application in mind,
it may be helpful to point out some factors which should be considered
161. 381 U.S. 618 (1965).
162. See Golak Nath 816. (per Subba Rao, C.J.) (dictum).
163. See id. at 878 (per Hidayatullah, J.) (dictum).
164. Among the states of the United States whose constitutions have no provi
sion for alteration by exercise of popular franchise or no provision for amendment at
all it has generally been held that popular sovereignty may be exercised either along
the lines of referendum as suggested by the learned Chief Justice in Golak Nath through
a convention constituted by popular vote. See White Amendment and Revision of
State Constitutions," 100 U. Pa. L. Rev. I132, 1134-35 (1952); Note, "Constitutional
Convention: Its Nature and Powers-and the Amending Proces," [1966] Utah. L. Rev.
390, 39+, 415. But cf. Lucas v. Forty-Fourth Legislative Assembly, 377 U.S. 713 (1964).
165. See Part VIsupra.
166. Sec England v. Louisiana Slate Bd. of Medical Examiners, 375 U.S. 411
(1964). Mishkin, supra note 52, at 70.
636 7OURNAL OF THE INDIAN LAW INSTITUTE [VoL. 9 : 596
in deciding the issue whether to apply decisions to past transactions or

to restrict their operation to the futurc. First, an important matter
which bears repeating is that this issue is deserving of careful atten
tion from the courts, based upon arguments by counsel on feasibility of
retroactive operation as well as on the purpose for which the new rule
has been introduced. Secondly, the decision whether or not to rule
retroactive should gencrally be made in the same judgment which
determines that a change in a point of law is called for.167 Thirdly,
a court should resist the temptation to apply the new rule specially to
the parties before them merely as a reward or to avoid the argument
that its judgment would be dictum otherwise. l68 The values of
cquality and the image of justice arc too precious to be sacrificed for
the sake of such technicalities. Fourthly, prospective overruling can
work both for and against the government as well as in the context of
private rights. In all kinds of cases the major factors which will
generally be weighed are the need not to upset past vested rights and
other reliance interests and the clarification of whether or not the
purpose for overruling the past law will be served by applying the
decision to prior transactions. And lastly, both Linkietter and Golak
Nath stand for the proposition that there is no constitutional proscrip
tion against the court fashioning its relief in the manner it finds most
appropriate under the circumstances. The courts are restricted in
their power to declare law prospectively only by the requiremnent that
its decisions should not operate in derogation of its independence and
separation from the other politically-created branches of the state.
As a concrete example of an instance in which the Court or
other courts may be called upon in the near feature to apply the
doctrine of prospective overruling, we mnay cite the precedent of the
recent leading case of Superintendent and Legal Remembrancer v. Corpora
tion of Calcutta.169 That case involved a municipal ordinance of the
City of Calcutta which required any "person" engaged in a certain
kind of commercial activity to register with the city authorities. Upon
failure by the West Bengal government to so register even though it
was engaged in that kind of commercial activity in Calcutta, the
Corporation imposed a penalty as prescribed under the ordinance.
Overruling its 1960 judgment in Director of Rationing and Distribution v.
Corboration of Calcutta, 170 the Supreme Court held that the old doctrine
originating in English and pre-Independence Indian case law that "the
Crown is not bound by statute save by express provision or necessary
implication" is a "rule of construction," and since it conflicts with the
"principle of equality'" enshrined in article 14 of the Constitution will
167. See Bender, supra note 49, at 678, But see Note, 71 Yale L.j. 907, 936-37
(1962).
168. See Currier, supra note 107, at 215.
169. [1967] 2 S.C.R. 170, A.I.R. 1967 S.C. 997.
170. [1961] 1 S.C.R. 158, A.IR. 1960 S.C. 1355.
be construed, in contrast to other common law rules, not to be a "law in

force" saved at the adoption of the Constitution by article 372(1).
Thus without express exemption written into the ordinance the govern
ment of West Bengal would be considered to be subject to its provisions
if its activities fell within the subject matter of the legislation. The
implications of this holding appear to go far beyond the facts presented
to the courts. Suppose that in the future a case arises in which a
governmnental body is sued, under a statute giving a general cause of
action in tort, for negligence in the operation of a hospital or in the
maintenance of a public building. The plea might be made by the
government that the traditional common law immunity of governmental
bodies from suit in tort applies in this case. But on the precedent of
the Legal Remembrancer's case the Court might very well find that
wherever not exprcssly provided for this immunity should not be given
cognizance in a court of law in the modern day because it also is a
rule of construction" of statutes and, particularly in view of its in
herent inequality and arbitrariness, should not be accorded the same
status as those aspects of the "common law'' saved by article 372 of
the Constitution. If such an eventuality does arise, a court will be
faced with the same situation which confronted American courts in
cases like Moliter170-the prospect that the various governmental bodies
in reliance on their immunity had neglected to maintain funds for the
payment of tortious liability claims. The wisest course under these
circumstances might then be to limit recovery to actions arising in the
future by use of the doctrine of prospective overruling.
In such an application of the doctrine of prospective overruling
there need be little to fear. The Golak Nath case itself, though sup
portable on the basis of past decisions, is one of the most bold steps so
far in the use of prospective overruling in view of the fact that its
result is to sustain all the legislation already passed into the future.
Through the wisdom of Mr. Chief Justice Subba Rao in declaring that
that it was within the power of the judiciary to exercise discretion in
the application of the Golak Naih holding the judiciary has impliedly
been provided with a tool of general application. Where the interests
of justice clearly demand in the wake of substantial change in the law,
one can expect from now on to see a broader application of the
doctrine of prospective overruling.
171. See note 29 supra.

Prospective Overruling in India

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Prospective Overruling in India

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PROSPECTIVE OVERRULING IN INDIA:

GOLAK NATH AND AFTER

IS COMMONLY CONSIDERED in English jurisprudence that the

*A. B. (Harvard) LL.B. (University of Virginia); Syracuse University Africa-Asia

Professor John Chapman? as laying too heavy emphasis On the

In the case of India in a closely

operation of this principle by the doctrine of prospective overruling,11

On the application of the doctrinc of prospective overruling', as explained

ments cannot be questioned."19 The effect of the decision is rather

"Saving" a statutory transaction as distinct from private transactions can

III. DEVELOPMENT OF PrOSPECTIVE OvERRULING IN AMERICA

A large number of state court decisions have resolved around one of

total disability clause of an insurance contract, requiring only that the

case of Haney v. Lexinglon,83 where it has been held that a decision

At the threshold therefore of the entrance of the doctrine into

overruling doctr ine. 41 Where a new rule as in Brown sets in motion

Another area in which momentous decisions have caused a major

adequate opportunity to do so,47 thus leaving it open to the lower

question.° The reason for preferring habeas corpus limitations over

decisions retrospectively, but have in view of the circumstances under

through use of non-retroactivity.68 Thus insofar as Johnson purports to

It that this statement was made without the

IV. INDIAN BACKGROUND

It is a very agonizing task for any judicial decision-maker to

While the majority opinions do not go into distinguishing Deep Chand

argument that a particular point of law should not be applied to past

Prospective overruling is an avowedly remedial limitation on the

Id. at 437-39, A.I.R. at 832-33. On the administrative side, for sugges

We also stress that the retroactivity or non-retroactivity of a rule is not auto

represent the provisions protecting individual freedoms and privileges.

here.... On the other hand though prospective limitation of an overruling

His criticism of the Linkletter result on the other hand is grounded

The learned Chief Justice, in supporting the reasons why he has

taken lightly to have done. Two alternate reasons may be suggested

may look for knowledge of his fundamental rights. If the decision

122. Golak Nath at 81(0-1l1.

counsel outlined by the learned Chief Justice proceeded almnost exclusively

In any case the question whether Parliament's power of constitu

And referring to the design of the Constitution-makers in drafting

I am apprehensive that the erosion of the right to property may bc practiced

amendments. 128 And measured against the difficulty in the administra

prospective overruling into Indian jurisprudencc. To guard against

what he terms "problems beyond the effective capacity of the regular

133. See Mishkin, supra note 52, at 65 & n. 35.

prior decision is correct but will be applied only prospectively in order to

Justice to sustain past actions of the legislature. In his vicw it is appro

on the constitutionality of an enactment. 1D In India, where the doctrine

In conclusion we would urge that it best not to use the notion

Furthermore, from his discussion throughout the opinion of the

The use of prospective overruling by Mr. Chicf Justice Subba Rao

fundamental rights when they were enacted. On the other hand it

in deciding the issue whether to apply decisions to past transactions or

be construed, in contrast to other common law rules, not to be a "law in

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