Retrospective Overruling
English
courts have always followed the practice of overruling. It means that the
overruled case is regarded as never having been law and will not be applied
either in later case or in the instant case.
Why operates
retrospectively?
Retrospective
overruling accords with the declaratory theory of common law that the judges do
not make or change the law but merely declare it. The common law is never
changed: it is merely restated correctly. Consequently all judicial overruling
operates retrospectively. It is this which distinguishes judicial overruling
from overruling statutes by since the latter operates only when statutes
becomes operative.
This doctrine
allows old Transactions to be reopened.
Prospective
overruling
The basic
meaning of prospective overruling is to construe an earlier decision in a way
so as to suit the present day needs, but in such a way that it does not create
a binding effect upon the parties to the original case or other parties bound
by the precedent. The use of this doctrine overrules an earlier laid down
precedent with effect limited to future cases and all the events that occurred
before it are bound by the old precedent itself. In simpler terms it means that
the court is laying down a new law for the future.
Both in
Bangladesh and India legal system normally overruling has a retrospective
effect. However, in order to avoid hardship the Indian Supreme Court has
developed in Golak Nath (1967) SCR 2 the doctrine of prospective overruling. It
is however, subject to the following limitations:
1. The
doctrine can be invoked only in matters arising under the Constitution:
2. It can be
applied only by the Supreme Court: and
3. The scope
of retrospective operation is to be molded according to the justice of the
matter.
Doctrine on
compromise or concession
In order to
be binding the opinion on the law must be a considered one and therefore a
decision given on concession of the parties and not on any analysis or
examination of the relevant provisions (is of no help as judicial precedent)
cannot operate as a law laid down by the Supreme Court (Laksmi Shankar v.
Stale. SIR 1979 SC 45 ), However, if the statement of law is a considered
opinion, it qualifies as a law binding on the subordinate courts even if it has
been given ex parte (Pradiul v Suryakant AIR 1979 Bom 166).
Doctrine of per
incuriam
Per incuriam,
literally translated as "through lack of care", refers to a judgment
of a court which has been decided without
reference to a statutory provision or earlier judgment which would have been
relevant. The significance of a judgment having been decided per
incuriam is that it does not then have to be followed as precedent by a lower court. Ordinarily, in
the common law, the rationes of a judgment
must be followed thereafter by lower courts hearing similar cases. A lower
court is free, however, to depart from an earlier judgment of a superior court
where that earlier judgment was decided per incuriam.The Court of Appeal in Morelle Ltd v Wakeling [1955] 2 QB 379
stated that as a general rule the only cases in which decisions should be held
to have been given per incuriam are those of decisions given in
ignorance or forg etfulness of some inconsistent statutory provision or of some
authority binding on the court concerned: so that in such cases some part of
the decision or some step in the reasoning on which it is based is found, on
that account, to be demonstrably wrong.In R v Northumberland Compensation
Appeal Tribunal ex parte Shaw [1951] 1 All ER 268, a divisional court of
the King's
Bench division
declined to follow a Court of Appeal decision on the ground that the decision
had been reached per incuriam as a relevant House of Lords decision had not been cited to the Court of Appeal.
Some academic critics have suggested that Polemis [1921] 3 KB 560 was
decided per incuriam as it did not rely upon the earlier decision
in Hadley
v Baxendale.
Doctrine of sub
silento
Sub
silentio is legal latin meaning "under" or
"in silence" It is often used as a reference to something that is
implied but not expressly stated. Commonly, the term is used when a court
overrules the holding of a case without specifically
stating that it is doing so.
A decision is
passed sub silento when point of law involved in the decision is not perceived
by the court or was not present to its mind or is not consciously determined by
the court. a decision is also not binding as precedent of Delhi v Guram Kaur.
AIR 1989 Sc 38). Where a particular question though involved in the case was
not argued or considered, the decision. (Called a precedent sub However, the
bin silento) is of persuasive by procedural irregularity value of a judgment is
not affected SC hearing the case (State of Gujrat v kasturchand)
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