Two reasons invalidating legislature

01-Jan-2018 14:15

two reasons invalidating legislature-61

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He says that courts in India have the inherent power to reject retroactivity of law when it affects vested rights.Similarly, he questions vehemently as to why in the judicial process, should one not recognize a principle of construction which tends to deviate from the principle of retrospectivity to judicial pronouncements where they entail a change in the law.Now, the concept of Prospective Overruling, as the title of the project reflects, is a deviation from the principle of retroactive operation of a decision and thus, a deviation from the traditional Blackstonian principle too.This principle, borrowed from the American Constitution, found its application first in the famous case of Golaknath v. To illustrate, in very simple words, the implication of the invocation of the doctrine is that the decision of such a case would not have retrospective operation but would operate only in the future, i.e., have only prospective operation.This doctrine offers foundations for an extended view of judicial function, which primarily centers on discretion and freedom of choice, to specify the time frame and the cases to which a particular pronouncement in a case will be applicable to. In effect, what is contemplated through the doctrine is to lay down the scope of the pronouncement in a particular case with regard to its applicability to future cases and disputes.And the primary interest behind the courts actually applying this doctrine is the fact, as already mentioned, that courts always want to do justice and may apply various criteria to reach their ends.Precedent, as a source of law, is both declaratory and constitutive of law.And traditionally, the rule of retrospectivity is the norm.

We, therefore, declare that our decisions will not affect the validity of the constitution (Seventeenth Amendment) Act, 1964, or other amendments made to the Constitution taking away or abridging the fundamental rights.This is strict legal sense may encompass making law but according to the Chief Justice, what is being done is to strike a pragmatic balance between the two conflicting considerations, which are, a court finds law and a court makes law.Further, to buttress his point, he said that there is no statutory provision that in fact prevents or bars him from employing the doctrine.Canfield, Robert Hill Freeman, John Henry Wigmore and Cardozo had considered this doctrine to be an effective judicial tool.

two reasons invalidating legislature-77

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In the words of Canfield, the said expression means: "........

This project now seeks to embark on a detailed analysis of the application and implications, both positive and negative, of the doctrine in the light of its invocation in the above mentioned case.