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 the later cases 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 become 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 is 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 concessions 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 that has been decided without reference to a statutory provision or earlier judgment that would have been relevant. The significance of 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 forgetfulness 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 the 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 the precedent of Delhi v Guram Kaur. AIR 1989 SC 38).
