Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency

a decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency as it is assumed that what is enunciated by this Court is in fact the law from inception. There can be no prospective overruling unless expressly indicated in clear and positive terms. If the Constitution Bench in the case of Subramanian Swamy (supra) had any intentions of declaring that the same would be prospective in application, then the same should have been specifically and discretely stated therein. In absence of such declaration, the natural assumption is that the same is retrospective applying the Blackstonian theory of precedence.

cases of I.C. Golaknath & Ors. Vs. State of Punjab and Anr.21 and Managing Director, ECIL, Hyderabad and Others Vs. B. Karunakar and Others22 for the proposition that prospective overruling is to be exercised as an exception in rare circumstances and such power should be seldom exercised. He has further placed reliance upon a judgment of this Court in the case of M.A. Murthy Vs. State of Karnataka and others23 for the proposition that if prospective overruling is not specifically provided in the decision, it would not be open for Courts in future to declare such a decision to be prospective in nature. If prospective applicability of a decision is not provided in the said decision, then it is presumed that it will have retrospective effect and declaration of any law as invalid would be unenforceable and nonexistent from the statute book from the time of its inception. The judgment in the case of Subramanian Swamy (supra) would, therefore, 21 (1967) 2 SCR 762 22 (1993) 4 SCC 727 23 (2003) 7 SCC 517 Crl. Appeal No.377 of 2007 Page 24 of 106 operate retrospectively and at least would be unenforceable ab initio.

1.Merely because the Court takes time to decide the matter or merely because the challenge to statutory provisions is made subsequently, it would not make an unconstitutional statutory provision legal or constitutional even if such provision has operated for some time till it is struck down by the Court. Such a violation is void ab initio, as settled by a large number of decisions of this Court. It is only rarely that in some cases in order to obviate the hardships and on equitable grounds, this Court had protected an action taken under an unconstitutional statute. However, that does not mean that the statute was not unconstitutional or bad during the period it was on the statute book.