The Honorable Supreme Court of India in the landmark case of I.C. Golaknath and Ors. v. State of Punjab and Anr.[1] made an attempt to soften the impact of declaring a law as unconstitutional after it had remained in the statute books for a while.[2]

A judicial declaration that a law is unconstitutional is deemed to be effective prospectively as well as retrospectively. An unconstitutional law is regarded to be void ab initio i.e. invalid since inception. The theory is that a judge doesn’t make a law but finds it. Therefore, when a judicial decision changes a legal preposition it is not regarded as new but something which was already there but has now been discovered.

Retrospective overruling may cause inconvenience of varied nature and may cause hardship to those who have acted on basis of old rule. All this is avoided in case of prospective overruling.[3]

The application of the doctrine, however, remains uncertain. As noted by the U.S. Supreme Court:
….there is no inflexible rule requiring in all circumstances either absolute retroactivity or complete prospectivity for decisions construing the broad language of the Bill of Rights….Rather we have proceeded to weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.[4]

The apex court however in I.C. Golaknath case put certain restrictions on the application of the doctrine, such as:

1. The doctrine for the time being be used only in constitutional matters
2. It would be applied only by Supreme Court itself and by no other court
3. The precise version of prospectivity to be imposed is a matter of court’s discretion

A significant use of the doctrine was seen in the famous Mandal Commission case.[5] The Apex court in this matter overturned its judgment in The General Manager, Southern Railway v. Rangachari[6] decided in 1962. However, the court ruled that the Mandal ruling would come into effect after five years.

In Githa Hariharan v. RBI[7] the apex court gave a new interpretation to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 so as to protect it from being declared unconstitutional vide Articles 14 and 15. But the court gave a prospective effect to the new interpretation. No past transactions were to be reopened or questioned on the basis of this verdict.[8]

In Suman Gupta v. State of Jammu and Kashmir[9] the court ruled that vesting of absolute power in State Government to nominate candidates for admission to the medical colleges outside the State of Jammu and Kashmir infringed Article 14 but refused to disturb the nominations already made.

Conclusion
This doctrine has established its importance in jurisprudence across the globe in two ways. First, it protects those rights that have already been determined. Secondly, it lays down basis for any law to develop with the changing scenarios and thus establishing a base for future legal developments.

End-Notes:

1. AIR 1967 SC 1643
2. Ibid
3. Great Northern Railway v. Sunburst Oil and Ref. Co., 287 US 358 (1932).
4. Williams v. U.S., 401 US 646 (1971).
5. Indra Sawhney v. Union of India, AIR 1993 SC 477.
6. AIR 1962 SC 36.
7. AIR 1999 SC 1149
8. Ibid
9. AIR 1983 SC 1235

Written By: Syed Aatif - The author is a practicing advocate at the Central Administrative Tribunal, Delhi High Court and Supreme Court.
Email: [email protected]