Prospective over ruling - A critique

‘Prospective overruling Doctrine’
Several times is a misplaced concept, Why?

A critical study on Indian Honorable Supreme Court Judgements 

GOVERNANCE DOCTRINE

The world is trembling in the balance between the orderly procedure of law and the processes of force

‘English law respecting the freedom of the individual has been built up from the procedure of the courts : and this simple instance of priority in point of time contains within it the fundamental principle that, where there is any conflict between the freedom of the individual and any other rights or interests, then ‘no matter how great or powerful those others may be, the freedom of the humblest citizen shall prevail over it’.

Lord Alfred Denning.

‘Rights are no good unless you can enforce them; and it is in their enforcement that English law has shown its ‘peculiar genius’.

The task is one of getting the right balance. The freedom of the individual, which is so dear to us, has to be balanced with his duty; for, to be sure every one owes a duty to the society of which he forms par, (or he belongs).

The balance has changed remarkably during the last 100 years.

‘Previously the freedom of the individual carried with it a freedom to acquire and use his property as he wished, a freedom to contract and so forth: but these freedoms were so much abused’ that in our time they have been counterbalanced by the duty to use one's property and powers for the good of society as a whole.

In some foreign countries this duty has been carried to such a pitch that freedom, as we know it, no longer exists.

All that needs to be said about it is that it [ ‘If those ( the people of those) countries choose to put up with such a system that is their affair], is not the English view of human society.

‘What matters in England is that  ‘each man should be free’

‘Personal Freedom is to develop his own personality to the full’: and the only duties which should restrict this freedom are those which are necessary to ‘enable everyone else to do the same’.

Whenever these interests are nicely balanced, the scale goes down on the side of freedom

By personal freedom I mean the freedom of every law-abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasions without let or hindrance from any other persons.

Despite all the great changes that have come about in the other freedoms, this freedom has in our country remained intact.

It must be matched, of course, with social security, by which I mean the peace and good order of the community in which we live.

The freedom of the just man is worth little to him if he can be preyed upon by the murderer or thief , says Lord Denning.

He adds by reiterating,

‘Despite all the great changes that have come about in the other freedoms, this freedom has in our country remained intact.  It must be matched, of course, with social security, by which I mean the peace and good order of the community in which we live. The freedom of the just man is worth little to him if he can be preyed upon by the murderer or thief. Every society must have the means to protect itself from marauders.

It must have powers to arrest, to search, and to imprison those who break the laws.

Despite all the great changes that have come about in the other freedoms, this freedom has in our country remained intact.

It must be matched, of course, with social security, by which I mean the peace and good order of the community in which we live.

The freedom of the just man is worth little to him if he can be preyed upon by the murderer or thief. Every society must have the means to protect itself from marauders.

It must have powers to arrest, to search, and to imprison those who break the laws.  So long as those powers are properly exercised, they are themselves the safeguards of freedom’.

Lord Denning says so in his ‘Hamlyn lectures’.

Indian judiciary reads in its own libraries,

what is the earthly use, when India follows the British Parliamentary system , she (India) says so? [But she needs to know she cannot be like the UK parliament for it can become some ‘dictator’ if it needs to ; but Indian Parliament is under strict control of her well written Constitution with its own checks and balances administered by her custodian Judiciary.

But powers may be abused, and, if those powers are abused,

As there are ‘6’ Freedom under the Law is -

No tyranny like them.

( It leads to a state of affairs when the police may arrest any man and throw him into prison without cause assigned. It leads to the search of his home and belongings on the slightest pretext—or on none. It leads to the hated ‘gestapo’ and ‘the police State’.)

It leads to ‘extorted confessions’ and to’ trials’ - which are a mockery of justice.

The moral of it all is that a true balance must be kept between’ personal freedom on the one hand’ and ‘social security’ on the other.

It has been done here, and is being done.

Never, thereafter, have the judges taken their ‘orders’, from anyone.

The law of England knows no color bar, whether it be the color of a man's skin or of his politics.

The ’ Executive Government has no right to deprive any man of his freedom except by due course of law.

This writ of Habeas Corpus is available, not only where the original detention is unlawful, but also when a man, who has been lawfully arrested on a criminal charge, is kept in prison, without trial.

The police have no right to hold him on their own authority for more than a day.

He must be brought before a magistrate within 24 hours and it is then for 4. ft. v. Governor of Wandsworth Prison, ex p. Bo/dell [1948] 2 K.B. 193. '

A note on Habeas Corpus, by Lord Goddard, 6; L.Q.R. 30.

So also whenever a man is found not guilty of an offence with which he is charged, there is ‘no appeal open to the prosecution who think him guilty’.

Personal Freedom

(9) The magistrate to decide whether he shall be further detained pending trial or let out on bail. If the magistrate refuses to let him out on bail, the man can apply to a High Court judge for bail.

No person in this country who is committed to prison on a charge of crime can be kept long in confinement because he can insist upon either being let out on bail or else of being brought to speedy trial which seems so much quicker and effective.

We must make our choice between these two, and it must be made in the very near future.

If we are to make that choice intelligently it would seem reasonable, whether in the end we decide for law or for force, that we should retrace the history of our constitutionalism—the history of force is plain enough—should try to estimate its past achievements, and should consider the nature and effects of the forces which have been arrayed against it.

In 1792 Arthur Young mentions with contempt the French notion of a constitution, which,

He says, “is a new term they have adopted; and which they use as if a constitution was a pudding to be made by a recipe.”

To Thomas Paine, writing at the same time, the recent American written constitutions are “to liberty, what a grammar is to language.”  (Pennsylvania was founded after Mr. Thomas Paine, in the  USA)

In another place, speaking of constitutions in general, he says:

“A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right.”

“A constitution is a thing antecedent to a government, and a government is only the  “creature of a Constitution.”

It seems probable that - Paine means by "constitution"

[‘nothing less than the written constitutions of America or France.’]

For, he says, “the continual use of the word ‘Constitution’ in the English parliament-  shows ‘there is none’;

and that the ‘whole is merely a form of government without a Constitution, and constituting itself with what power it pleases.”

“The act by which the English Parliament empowered itself to sit for seven years, shows there is no constitution in England.

It might, by the “same authority have stated any greater number of years, or for life.”

{But you have in India a well Written Constitution, so Indian Parliament ought to fall in line with the Constitution  is the prescription  - by the 13 member bench in ‘Kesavananda Bharati v St of Kerala’, detailed judgement; and that, judgement revived of Art 13 and 13 (1) as also Art 31 - so obviously 13(2) created by Mr. Seeravai as a legal draftsman  for Indian law makers, is dead and gone, one needs to know.}

‘Prospective overruling’ doctrine

Prospective overrule doctrine is original of the USSC concept, for civil laws, so we have to source from this end, our comments from the Americans’ perceptions. (obviously perspective overruling cannot be applied like in civil laws, not on Constitutional amendments controlling fundamental rights - that way deterrence is already there in the very Art.368 of the Constitution of India to be read with Art 13, (ref . CJI SR Das (FB) in ‘Champakkam Duraiswamy v St of Madras, (1951),( I many times wonder what impelled CJI Subba Rao in Golaknath v st of Punjab wherein he used the prospective over ruling’ quoting irrelevant economy and this economy aspect is for the government not for the court to indulge in, for the Indian Custodian Judiciary is the custoian of the Constitution of India how CJI forgot this very main aspect or may be by error I presume; indeed the Kesavananda judgement rightly held and upset that predicament caused by CJI. K SubbhaRao.). CJI Mr Subbarao ‘did not suggest any better of new rule’ as suggested by Mr Canfield’, when he revived 17th Constitutional amendment and some others of earlier amendments  - the ball is on the government not on the hn SC here, that way CJI messed up by oversight, i believe. [ please don’t adopt foreign doctrines unless fully delved in the circumstances in that situation the very other foreign court faced.] - So obviously, Golaknath ought to have followed Champakkam v st of Madras (1951)(FB) decision- a ‘stare decis’. That full bench need to be treated more bigger than 5 judge bench by very Mr. CJI K Subbarao}.

CJI Mr K Subbarao did not realise his prescription cannot work for the future legislations - he said ‘ in future parliament shall not indulge -

He has no control over prospective actions by the government that way Mandal and other things surfaced, he only opened the floodgates by his so-called perspective over the ruling.

He allowed the parliament ‘to behave as it liked'.

It affected CJI Jeevan Reddy in his Mandal decision in ‘Indira Shahany v ST of Kerala, he said that ‘creamy layer issue’, can take effect after five yrs of his decision but it is just preposterous proposition, just because our CJI  Mr K. SubbaRaoo decision in Golaknath facilitated all wrongdoers, till it was shut  out, by the decision  in  Kesavanandabharati v ST of Kerala, and ‘yet  the damage is done’, by very Indian custodian  judiciary itself .

All wrongdoer lawmakerss like Mr Karunakaran, then CM of Kerala would indulge in -and then ‘vote monger politicians’ all over India would do all kind of acrobatics to upset the constraints laid by the very Constitution of India, that being the palatable mechanism for Advocacy, infact, in a lot of occasions custodian judiciary in india messed up and created more problem to the common man, that it needs to realise.

If the government wants to restore, let it fight its way in the majoritarian situation, besides in India obviously, Parliament is barred by very Art 368 itself, one needs to know.

If the government wants let is make some meaningful policies, not by resorting to amending the fundamental rights in Part III of the Constitution of India.

In the words of  jurist George F. Canfield, the said expression means:

"A court should recognize a ‘duty to announce a new and better rule’ for future transactions whenever the court has reached the conviction that an old rule (as established by the precedents) is unsound even though feeling compelled by stare decisis to apply the old and condemned rule to the instant case and to transactions which had already taken place".

In light of Casey, (a civil case)  previously unenforced statutes, became enforceable without the need for any post-Casey legislative action.

Americans too think that ‘Such long-term consequences reflect the fact that our governmental system is not one of pure majoritarianism and that the burden of inertia in our legislative process is heavy:

As we will discuss, statutes on the books can stay on the books even if a current majority, no longer desires them; in contrast, proposed statutes need supermajoritarian support to secure passage.}

Statutes that were ‘unconstitutional’ under the rule enunciated,  in the invalidating decision, should not be revived when the invalidating decision is overturned.

We base this conclusion upon two separate and independent theoretical bases.

First, full examination of the revival issue demonstrates the interactive nature of the relationship between judicial invalidation of statutes and majoritarian decision-making.

Judicial review is not purely external to the legislative process:

the very act of judicial invalidation powerfully shapes subsequent legislative deliberations (if it is possible, in the Indian context).

Belief in the finality of judicial judgments is so pervasive that when a statute is struck down or when a judicial decision establishes a rule of law, under which a statute is unconstitutional, its opponents frequently act as if, the statute were gone for all time.

At the very least, even if political actors realize the potential for the reversal, the finding of unconstitutionality alters the way in which they spend their political capital.

A statute that has once been unconstitutional under governing case law, should not be revived if it constrains ‘individual liberty’.

My humble suggestion ‘If the Honorable Supreme Court  of India overturns a constitutional amendment, let it not become some government institution to provide some relief to the lawmakers - that is their job not the job of judiciary’, always constitution custodians ought to be very prudent , else very judiciary itself might cause havoc on common man. (ends)

 

Published in Constitutional Law
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