Prospective Overruling in India
Prospective Overruling in India
W. S. Hooker, jr.
I. INTRODUCTION
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.
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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
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.
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B. Federal Questions
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.
1967] PROSPECTIVE oVERRULING IN INDIA 613
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).
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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
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.
1967] PROSPECTIVE oVERRULING IN INDIA 617
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 ?
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.
1967] PROSPECTIVE OVERRULING IN INDIA 619
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].
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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.
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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
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.).
:
628 JOURNAL 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.
1967] PROSPECTIVE OVERRULING IN INDIA 633
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