The Doctrine of Prospective Overruling II

Posted on by Rudrajyoti Nath Ray

If criteria for promotion is merit-­cum­-seniority, comparative merit has to be evaluated. In case of merit­-cum­-seniority, even a Junior may steal a march over his Seniors for accelerated promotion.

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What was done in Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604 was actually a declaration of law. Therefore, same will have retrospective effect. P.V. George v. State of Kerala, (2007) 3 SCC 557 held, power to apply Doctrine of Prospective Overruling must be exercised in clearest possible term.

Therefore, it is clear, anything done as a consequence of P.S. Ghalaut v. State of Haryana, (1995) 5 SCC 625 cannot stand since this Court did not apply Doctrine of Prospective Overruling in Bimlesh Tanwar in express terms.

– Two-Judge Bench of Hon’ble Supreme Court of India, Manoj Parihar v. State of J&K, [Special Leave Petition (Civil) No. 11039 of 2022].

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In Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287 this Court was seized with an issue where frivolous complaints were being filed before Magistrates only to harass people and therefore, in order to check this trend, it was directed, Section 156(3), CrPC applications before Court made must be supported by an affidavit duly sworn by applicant who seeks to invoke Magistrate’s jurisdiction. Such a step could only be prospective in nature and this is clearly reflected from very language used by Learned Judges in Priyanka Srivastava.

Now, law of prospective and retrospective operation is absolutely clear. Whereas a law made by Legislature is always prospective in nature unless it has been specifically stated about its retrospective operation, reverse is true for a law which is laid down by a Constitutional Court or law as it is interpreted by Court. Court’s Judgment will always be retrospective in nature unless it has been specifically stated about its prospective operation. A prospective operation is done not to unsettle something which has long been settled.

– Hon’ble Justice Sudhanshu Dhulia, Kanishk Sinha v. State of West Bengal, [Special Leave Petition (Criminal) Nos. 8609-8614 of 2024] decided on 27.02.2025.

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Priyanka Srivastava mandated following of a certain procedure before invoking provisions of Section 200, CrPC.  

One of us (Justice Sudhanshu Dhulia) as a Single Judge of Uttarakhand High Court in Sachin Chamoli v. State of Uttarakhand, 2016 (3) NCC 68, where no affidavit had been filed, held, filing of affidavit was a mandatory requirement as per Priyanka Srivastava. We may also refer to Kanishk Sinha v. State of West Bengal, 2025 SCC OnLine SC 443 where, speaking through Justice Sudhanshu Dhulia, this Court upheld an Order of Calcutta High Court, to the effect, direction in Priyanka Srivastava to file the affidavit was prospective in nature.

– Hon’ble Justice Justice Ahsanuddin Amanullah, S.N. Vijayalakshmi v. State of Karnataka, [Special Leave Petition (Criminal) No. 8626 of 2024] decided on 31.07.2025.

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Kanishk Sinha v. State of West Bengal, 2025 SCC Online SC 443 affirms, while statutes operate prospectively, unless expressly stated, Judgments of Constitutional Courts are presumed to be retrospective unless Court expressly limits their effect.

– Hon’ble Justice Sanjay Karol, Vasanta Sampat Dupare v. Union of India, [Writ Petition (Criminal) No. 371 of 2023].

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'The Last Word' seeks to include not only wise and witty sayings but also curiosities. These words are not of obligation but of delight. I am not alone in my refusal to believe, law is tedious. For all who escaped these percipient eyes, mea culpa maxima. History, after all, has many cunning passages, contrived corridors and issues.