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16. 'Prospective overruling' is an-example of judicial law-making. Under this device the instant case is decided under the old rule but warning is given that future cases would come under a rule which the Court then announced. It puts a limitation on the application of the principal findings in the case. It connotes that a decision laying down a principle which had held the field is overruled and a new principle is propounded. The technique of prospective overruling germinated in Bingham v. Miller, (1848) 17 Chio 445 and was referred to by Wigmore in his editorial preface to Science of Legal Method (9 Modern Legal Philosophy Series, 1917), In his eloquent speech made before the New York Bar Association Justice Cardozo emphasised the need of the doctrine of prospective overruling and put it succinctly in his decision in Great Northern Rly. Co. v. Sunburst Oil and Ref. Co., (1932) 77 Law Ed 360. Rejecting the plea that the decision of a Court overruling its earlier decision and not giving its rule retroactive operation violated the due process clause of the 14th Amendment Justice Cardozo said:

18. The doctrine of prospective overruling came in the forefront soon after the decision in Mapp v. Ohio, (1961) 6 Law Ed 2nd 1081 wherein it was held that the exclusion of evidence seized in violation of the search and seizure provisions of 14th Amendment wag required of the states by the Due Process Clause of the l4th Amendment. Illegally seized evidence was held to be not admissible in a criminal trial in the state courts. Faced with the prospect of retrial of many criminals whose convictions had become final had Mapp been applied retrospectively, it was suggested by several eminent jurists of the day that Mapp should apply prospectively only. Professor Bender in his article. "The Retroactive Effect of An Overruling Constitutional Decision: Mapp v. Ohio suggested that the purpose of Mapp was not directed to the past but to the future and that "the imperative of judicial integrity" had been the most compelling reason for applying such essential rules of evidence uniformly in both State and Federal Courts, Prof. Freund in his article "New Vestas in Constitutional Law'' and Traynor in his paper "Mapp v. Ohio at Large in Fifty States" also came out with their suggestions pointing out the efficacy of the doctrine of prospective overruling. Prof. Currier, however, was critical of the application of the doctrine of prospective overruling and pointed out five factors as relevant to the decision whether or not to apply a decision retroactively equality, the image of justice, reliance on law as contemporaneously interpreted, stability and efficiency. Of the Administration of Justice, Prof. Mishkin and Prof. H. Shschwartz also dealt with the doctrine in their own way. Ultimately the United States Supreme Court considered the question of applicability of the doctrine of prospective overruling in Linkletter v. Walker, (14 Law Ed 601) when the question of retroactivity of Mapp v. Ohio came before it. Mapp had overruled, J. A. Wolf v. State of Colorado, (95 Law Ed 1782) to the extent that it failed to apply the exclusionary rule to the States. Linkletter was convicted on May 28, 1959 by the District Court. At the time of his arrest he had been under surveillance for two days as a suspect in connection with another burglary. He was taken to the police station, searched, and keys were taken from his person. After he was booked and placed in jail, other officers took his keys, entered and searched his house and seized certain property and papers. Later his place of business was entered and searched and seizures were effected. These intrusions were made without a warrant. The State District Court held that the arresting officers had reasonable cause for the arrest under Louisiana Law and finding probable cause to search as an incident to arrest it held the seizures valid. The Supreme Court of Louisiana affirmed in February, 1960. On June 19, 1961 Mapp was announced. Linkletter then filed a habeas corpus petition in the State Court on the basis of Mapp. The writ being denied in the Louisiana courts, he then filed a like application in the United States District Court. After denial there he appealed and the Court of Appeals affirmed. It found the searches too remote from the arrest and therefore illegal, but held that the constitutional requirement of exclusion of evidence under Mapp was not retrospective. He then approached the United States Supreme Court. Clark, J., expressing the view of seven members of the Court held that the Mapp rule did not operate retrospectively upon cases 'finally' decided prior to the Mapp case. Dealing with the question of prospective overruling it was held that retroactive operation of an overruling decision is neither required nor prohibited by the Constitution; whether and to what extent a new rule adopted in an overruling decision will be given retroactive effect is not a matter of constitutional compulsion but a matter of judicial policy to be determined by the court after weighing the merits and demerits of the particular case, by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation. Further it was observed that the new rule would also be applicable to cases still pending on direct review at the time the overruling decision was rendered but would not be applicable to convictions which had become 'final' before rendition of the overruling decision. The Court explained that by 'final' it meant that the judgment of conviction had been rendered, the availability of appeal had been exhausted and the time for petition for certiorari had elapsed. Although the overruling decision involved the admissibility of evidence obtained through an unreasonable search and seizure, the Court rejected the contention that the operation of the decision should date from the day of the seizure in the overruling case, rather than the date of the judgment of the court. It was said that the date of seizure had no legal significance and that the date of the overruling decision was the crucial date and the better cut off time. The prospective and retroactive techniques were thus combined in Linkletter while it was held that the rule established was to apply to cases where direct appeals were pending when the decision was made.

20. In England, Lord Simon in Jones v. Secy. of States, (1972 AC 944) commended the technique of prospective overruling in his after-thought note added to his judgment, though he preferred to leave the question and extent of its interpretation to Parliament. The House of Lords in Hedley Byrne v. Heller, (1964 AC 465) indulged in what amounted to prospective overruling inasmuch as while they should have limited themselves to the exclusion of liability clause in the dependent's statement they 'chose instead to enunciate ...... a future principle of responsibility.'

21. Mr. M. D. A. Freeman while dealing with the doctrine of prospective overruling in his article 'Standards of Adjudication, Judicial Law Making and Prospective Overruling' published in Current Legal Problems, 1973 Vol. 26, p. 166 concluded that 'prospective overruling does not and, in spite of superficial attractions, it is a technique which does not commend itself."

22. C. K. Alien in 'Law in the Making' has observed that the "function of the Judge is to interpret, not to legislate; but in the process of interpretation he inevitably affects the development of the law. He 'makes' law only in a secondary or derivative sense; but the formative effect of his interpretation on all the most essential principles of law is of the highest and most lasting importance". He further proceeds to observe: "The handicap of case-law is its rigidity and the 'time-lag' from which it suffers in relation to changing social conditions. Although the Common Law is constantly, but in many cases very slowly, passing through transformations, its inherent rigidity is inconsistent with the claim of flexibility. ............ There is, however, at the present time, a marked disposition to mitigate, by various devices, the severity of precedent which it tends merely to perpetuate error, and the whole system seems to be passing through a critical phase in its long history."