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..

Conscience Protection Act Passed ... What is Your Opinion?

What is you take on this Act Passed by the US Congress? In the Development discourse, how do you find this move? Can we adopt such practices / laws in India? Justify your answer.

In a bipartisan 245-182 vote, House members July 13 passed the Conscience Protection Act, which would provide legal protection to doctors, nurses, hospitals and all health care providers who choose not to provide abortions as part of their health care practice.

"We're grateful to House Speaker Paul Ryan for bringing the Conscience Protection Act to a vote, to all the co-sponsors for their leadership, and to those members of both parties who support the civil right of conscience," said Cardinal Timothy M. Dolan of New York and Archbishop William E. Lori of Baltimore in a statement.

As Found on: https://www.congress.gov/bill/114th-congress/house-bill/4828/text

Congress finds as follows:

(1) Thomas Jefferson stated a conviction common to our Nation’s founders when he declared in 1809 that “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority”.

(2) In 1973, the Supreme Court concluded that the government must leave the abortion decision “to the medical judgment of the pregnant woman’s attending physician”, recognizing that a physician may choose not to participate in abortion. Roe v. Wade, 410 U.S. 113, 164 (1973). The Court cited with approval a policy that “neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-held moral principles”, 410 U.S. at 143 n. 38, and cited State laws upholding this principle. Doe v. Bolton, 410 U.S. 179, 197–8 (1973).

(3) Congress’s enactments to protect this right of conscience in health care include the Church amendment of 1973 (42 U.S.C. 300a–7), the Coats/Snowe amendment of 1996 (42 U.S.C. 238n), and the Hyde/Weldon amendment approved by Congresses and Presidents of both parties every year since 2004.

(4) None of these laws explicitly provides a “private right of action” so victims of discrimination can defend their conscience rights in court, and administrative enforcement by the Department of Health and Human Services Office for Civil Rights has been lax, at times allowing cases to languish for years without resolution.

(5) Defying the Federal Hyde/Weldon amendment, California’s Department of Managed Health Care has mandated coverage for all elective abortions in all health plans under its jurisdiction. Other States such as New York and Washington have taken or considered similar action, and some States may go farther to require all physicians and hospitals to provide or facilitate abortions.

(6) Members of Congress have repeatedly questioned U.S. Health and Human Services Secretary Sylvia Burwell about California’s ongoing violation which began in August 2014. The Department of Health and Human Services has acknowledged California’s violations and indicated that the Department was taking them “seriously” and that the matter would be resolved “expeditiously”. Despite numerous complaints and calls for prompt enforcement of the Hyde/Weldon amendment in California, however, the Department has failed to resolve the matter.

(7) The vast majority of medical professionals do not perform abortions, with 86 percent of ob/gyns unwilling to provide them in a recent study (Obstetrics & Gynecology, Sept. 2011) and the great majority of hospitals choosing to do so in rare cases or not at all. Therefore, a policy requiring all health care providers to be involved in abortion could seriously disrupt the health care system, reducing the number and diversity of providers available to serve the basic health needs of American women and men.

(8) A health care provider’s decision not to participate in an abortion, like Congress’s decision not to fund most abortions, erects no new barrier to those seeking to perform or undergo abortions but leaves each party free to act as he or she wishes.

(9) Such protection poses no conflict with other Federal laws, such as the law requiring emergency stabilizing treatment for a pregnant woman and her unborn child when either is in distress (Emergency Medical Treatment and Active Labor Act). As the Obama administration has said, these areas of law have operated side by side for many years and both should be fully enforced (76 Federal Register 9968–77 (2011) at 9973).

(10) Reaffirming longstanding Federal policy on conscience rights and providing a right of action in cases where it is violated allows longstanding and widely supported Federal laws to work as intended.

...This is an Academic Discussion intended to initiate thought process in the Course: Economic Development and Policy... The issue is the conflict between being Liberal and Conservative. The legal interventions create social change but the moot question is what will be the mechanism of change?  

Case Laws: Fundamental Rights Vs. DPSP

Sr.No.	Milestone	Description
1.	Champakam Dorairajan Case (1951)	Supreme Court (SC) in its verdict said that in case of conflict between Fundamental Rights and Directive Principles, Fundamental Rights would always prevail. It also said that Directive principles have to work as a supplement with Fundamental rights & Parliament can’t amend Fundamental Rights
2.	Golaknath Case (1967)	SC in it’s verdict said Parliament can’t amend Fundamental Rights to give effect to the Directive Principles
3.	24th Amendment Act, 1971	It was done in reaction to Golaknath Case judgement. It declared that Parliament has the right to amend the Fundamental Right by use of Constitutional Amendment
4.	25th Amendment Act, 1971	It was done in reaction to Golaknath Case judgement. It inserted a new Article 31c which contained the following two provisions: i) No law which gives effect to the directive principles can be declared invalid and unconstitutional on the grounds that it is violating fundamental rights namely Article 14 (equality before law and equal protection of laws), Article 19(protection of six rights in respect of speech, assembly, movement, etc) & Article 31(right to property). ii)No law containing a declaration for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a policy. Note: Remember, Right to Property was a fundamental right at this time.
5.	Kesavananda Bharti Case (1973)	SC in its verdict held that the second provision mentioned in the Article 31c is invalid & unconstitutional as it is taking away the power of court for judicial review. However, first provision of Article 31c is valid & constitutional.
6.	42nd Amendment  Act, 1976	Position of Directive Principles was made superior to Fundamental Rights
7.	Minerva Mills Case (1980)	SC in its decision declared that Directive Principles are subordinate to Fundamental Rights. But position of Fundamental Rights under Article 14 & Article 19 were made subordinate to Directive Principles. SC also said that Constitution demands to maintain balance between the Fundamental Rights & Directive principles. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. Note: Right to property (Article 31 – a fundamental right) was abolished by 44th Amendment Act (1978)
8.	Present Position	For now Fundamental Rights enjoy supremacy over Directive Principles (except Article 14 & Article 19). Parliament is entitled to amend Fundamental Right to give effect to the Directive Principles as long as it does not give effect to the basic structure of the constitution. Courtesy of; Taken from: www.erewise.com/current-affairs/directive-principles-of-state-policy_art53202097534ad.html#.V3EwFhKm0qE

Case laws on DPSP

Dear All,

While we discussed the various aspects of the DPSP, I felt it of essence to look into the position taken by the Supreme Court / High Court..I am providing with the links of some cases for your reference:

1. Ranjan Dwivedi Vs. Union of India - (Art. 39-A, the social objective of equal justice and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid. [986 C-E]) Available at: https://indiankanoon.org/doc/1693007 

2. Miss Mohini Jain vs State Of Karnataka And Ors on 30 July, 1992 (Article 41, Right to Education) Available at: https://indiankanoon.org/docfragment/40715/?formInput=Article%2041

Contribute more cases to develop a repository.

You can give a link of the case so that all of can learn more..

Inflation Measurement - WPI & CPI...Whats New?

The latest WPI  has a basket of 676 items with 5482 quotations.     The major criticism for this index is that 'the general public does not buy at the wholesale level',   thus WPI does not give the actual feeling of the amount of pressure borne by the general public.   However,  the increase in wholesale prices does affect the retail prices and as such give some feel of the consumer prices.

Consumer Price Index (CPI)

The CPI measures price change from the perspective of the retail buyer. It is the real index for the common people. It reflects the actual inflation that is borne by the individual.  CPI is designed to measure changes over time in the level of retail prices of selected goods and services on which consumers of a defined group spend their incomes.   Till January 2012, in India there were only  following four CPIs compiled and released on national level.    (In some countries like UK, Malaysia, Poland it is also known as Retail Price Index).

(1) Industrial Workers (IW) (base 2001),

(2) Agricultural Labourer (AL) (base 1986-87) and

(3) Rural Labourer (RL) (base 1986-87)

(4) Urban Non-Manual Employees (UNME) (base 1984-85),

The first three are compiled by the Labour Bureau in the Ministry of Labour and Employment, and the fourth is compiled by Central Statistical Organisation (CSO) in the Ministry of Statistics and Programme Implementation.   These four CPIs reflect the effect of price fluctuations of various goods and services consumed by specific segments of population in the country.   These indices did not encompass all the segments of the population and thus, did not reflect the true picture of the price behaviour in the country as a whole.  

New Series of CPI Started in 2012

Therefore, there was a strong feeling that there is a need for compiling  CPI for entire urban and rural population of the country to measure the inflation in Indian economy based on CPI.    Thus, now Central Statistics Office (CSO) of the Ministry of Statistics and Programme Implementation has started compiling a new series of CPI for with the following measures:

(a) CPI for the entire urban population viz CPI (Urban);

(b) CPI for the entire rural population viz CPI (Rural)

(c) Consolidated CPI for Urban + Rural will also be compiled based  

     on above two CPIs

These  would reflect the changes in the price level of various goods and services consumed bythe Urban and rural population.   These new indices are now compiled at State / UT and all India levels.

The CPI inflation series is wider in scope than the one based on the wholesale price index (WPI), as it has both rural and urban figures, besides state-wise data. The new series, with 2010 as the base year, also includes services, which is not the case with the WPI series.   However, this new series will become comparable only in 2013 when the data for 2012 will also be available for comparison.

A comparison of this new series with WPI is given below :-

	WPI	CPI - New Series wef Feb 2012
Base Year	2004-05	2010
Elementary Items	676	200 (Weighted items)
Weightage of Food products (%)	243	49.71
Weightage of Energy products (%)	14..91	9.49
Weightage of Miscellaneous Items (%)	Services not included	26.31

Producer Price Indexes (PPI) – 

These are indices that measure the average change over time in selling prices by producers of goods and services. They measure price change from the point of view of the seller. Majority of OECD countries measure inflation based on Producer Price Indiex (PPI) while only some others use WPI.  Countries like Japan, Greece, Norway and Turkey use WPI.   Already WPI has been replaced in most of the countries by PPI due to the broader coverage provided by the PPI in terms of products and industries and the conceptual concordance between PPI and system the national account.   PPI is considered to be more relevant and technically superior compared to one at wholesale level.   However, in India we are still continuing with WPI.

Cost-of-living indices (COLI):  

This is different from CPI.   This index aims to measure the effects of price changes on the cost of achieving a constant standard of living (i.e. level of utility or welfare) as distinct from maintaining the purchasing power to buy a fixed consumption basket of good and services.   Maintaining a constant standard of living does not imply continuing to consume a fixed basket of goods and services. A COLI allows for the fact that households who seek to maximize their welfare from a given expenditure can benefit by adjusting their expenditure patterns to take account of changing relative prices by substituting goods that have become relatively cheaper, for goods that have become relatively dearer.   The use or preference for particular goods may also change.  

In the long run, the various PPIs, WPIs and the CPI show a similar rate of inflation. In the short run PPIs often increase before the WPI and CPI. Investors generally follow the CPI more than the PPIs. In India WPI is used instead of CPI.

In News Recently :

What is Core Inflation : The concept is used to estimate the inflation by excluding food and energy prices from the basket of goods and services that represents a typical household's consumption.   In mid 2012, RBI Governor threw up the conundrum posed by this "Core"inflation by saying "In our economy, where food constitutes nearly 50% of consumption basket and fuel has a weight of 15%, can a measure of inflation that excludes them can be called "Core".   He suggested that India should move towards developing and using a Producer Price Index (PPI) to gauge inflation more accurately as wholesale price index does not capture the price movement of services and is a hybrid of consumer and producer price quotes.