How Law Can Be Made Dynamic: Principle of Prospective Overruling

Doctrine of Prospective Overruling – Meaning

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.
 

There are two aspects to the doctrine of prospective overruling. The first aspect was laid down by Lord Blackstone, according to this theory Judges don't make the law; their job is to define the law. They should however follow the doctrine of Stare Decisis. The doctrine of Stare Decisis means "to stand by precedent and not to disturb the settled point of law"(N.K Jayakumar “Judicial Process in India” APH Publishing Corporation); the logic behind this doctrine is that people should not get confused as to what is legal and what is illegal.

The second aspect was propounded by Cardozo J. and Lerned Hand J. who were strongly in support of the Doctrine of Prospective Overruling. According to them if this doctrine is not given effect it will wash away the whole dynamic nature of law, it will be against the concept of judicial activism. Cardozo J. was of the view that the law should keep up with the changes occurring in the society, the law has to be dynamic and not static. If in a new and changed society, the citizens are bound by an old law it will lead to grave injustice. The citizens whose lives are bound by the law of land should be given laws according to changed needs. Therefore the doctrine of Prospective Overruling is an important tool in the hand of judiciary to give fair and timely justice to its citizens.

The Doctrine of prospective overruling supplies the gap in legal theory and offers the doctrinal foundations for an extended view of judicial function with built in discretion in the Court to indicate the time dimension and the type of cases for which the holding in a particular case shall have operative effect. Mathew J. explains the thrust of the rationale behind the doctrine of prospective overruling by observing that it is not meant to supplant the Blackstonian doctrine but' is a necessary device in any system of law to protect the interest of the litigant public when judicial overruling of a precedent entails a change in the law.

 

Source: Blog: Indian Law, Owner: Pavithra, LL.M. Student, Mangalore

Strange Case of Fundamental Rights

As Reported in The Times of India, on January 6, 2016

Madurai: A member of the Southern Districts Women's Federation has filed an appeal in the Madurai bench of the Madras high court against its single judge order prescribing a dress code for devotees visiting temples.

The petitioner Sarika said that if the order was implemented, the women's right to worship would be affected and violated. "The restriction in the form of a dress code is against the fundamental rights guaranteed in the Indian Constitution. Temple is a public place which is visited by persons of diverse culture and thus prescribing a dress code is a violation of customary practices," said the petitioner.

Besides, the Tamil Nadu Temple Entry Authorisation Act also says that no person shall enter any temple premises unless he or she has had a bath and wears clothes of such materials and in such a manner as is customary in such temples. Hence there is no need for a court dress code, she said. On December 1, the Madras High Court bench directed the state government and the Hindu Religious and Charitable Endowments Department to implement the dress code.

Disposing of a petition, Justice S Vaidyanathan had said, "we should dress for public worship in a way that is generally considered appropriate." "The department should consider implementing the dress code as follows: for men dhoti or pyjamas with upper cloth or formal pants and shirts, and for women saree or half saree with blouse, churidhars with upper cloth, for children any fully covered dress," the judge had said.

What is your opinion on this matter?

Human Capital & Economic Development

Human capital is a term popularized by Gary Becker, an economist from the University of Chicago, and Jacob Mincer that refers to the stock of knowledge, habits, social and personality attributes, including creativity, embodied in the ability to perform labor so as to produce economic value.

Alternatively, human capital is a collection of resources—all the knowledge, talents, skills, abilities, experience, intelligence, training, judgment, and wisdom possessed individually and collectively by individuals in a population. These resources are the total capacity of the people that represents a form of wealth which can be directed to accomplish the goals of the nation or state or a portion thereof.

 

It is an aggregate economic view of the human being acting within economies, which is an attempt to capture the social, biological, cultural and psychological complexity as they interact in explicit and/or economic transactions. Many theories explicitly connect investment in human capital development to education, and the role of human capital in economic development, productivity growth, and innovation has frequently been cited as a justification for government subsidies for education and job skills training. 

 

Reference:

Simkovic Michael, (2013). "Risk-Based Student Loans". Washington and Lee Law Review. 70 (1): 527. SSRN 1941070. 

 

Spence, Michael (1973). "Job Market Signaling". Quarterly Journal of Economics. 87 (3): 355–374

 

Considering the above understanding of Human Capital, comment on the aspects that you have developed and the skills and competencies that you have not developed..