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I recently came across an article reporting that the India's Supreme Court has passed a judgement which has the effect of diluting the THE SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989, enacted by Parliament, the apex legislative branch of Indian Government.

Earlier, a private individual could be arrested immediately when the victim filed a complaint. Now, the judgment provided for a seven day period where the SSP (District Police Chief) would direct DSP to inquire into the matter and based on the findings, the latter would either arrest the accused or dismiss the allegation. Furthermore, public servants are now granted pseudo-immunity i.e. no automatic arrest, as their appointing authority would now have powers to sanction the arrest if they are an accused.

In an earlier stance, the same court passed a judgment which also seemed to dilute the provisions against domestic violence.

My question concerns with Separation of Powers, a fundamental feature of Indian Constitution as well as of modern Democracies. Judiciary as I understand should not and must not pass orders or judgement which are of the nature of enacting or amending executive actions or legal statutes. Judiciary may struck down or read off those parts of a concerned text if they violate Constitution. Even Article 142 of the Constitution, which Supreme Court tends to use liberally to impart justice, doesn't explicitly empowers it to engage into such [mis]adventures.

What I want to know is :

  • Whether such judgment can be construed as ultra vires of the Constitution?
  • Alternatively, is judicial overreach constitutionally permissible?
  • If not, what recourse can the Indian Parliament undertake to nullify such judgment/order?
  • [Optional] Had there been such cases in other Democracies? Were they too ultra vires?
  • Please kindly let me know if it is a better fit for an another site, such as Politice.Se. – Firelord Mar 23 '18 at 12:36
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    "Constitutionally permissible overreach" is an oxymoron. Either it's permissible, or it's overreach. – cHao Mar 23 '18 at 12:41
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    But seriously, i hope this is constitutional. Judge says you can't just immediately arrest someone without any evidence, and that judgement is somehow a problem? – cHao Mar 23 '18 at 12:46
  • @cHao: I'm not arguing on the matter the judgement dealt with. I would ask separately if I find the substance as a problem. I'm only asking whether the Indian judiciary, at least, Supreme Court has the powers to enter the executive and legislative domain? If not, then is the judgement ultra vires of Constitution? It is a matter of principle and I have referred the two cases only because they were recent and came across me. – Firelord Mar 23 '18 at 14:33
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Separation of powers means that the judiciary can't pass laws or executive orders. It doesn't mean that the judiciary can't interfere with their passage and enforcement. Quite the opposite -- the checks and balances inherent in the system ensure that the judiciary can interfere in some cases.

One of the checks is the concept of judicial review: the courts' power to review each branch's actions for compliance with the constitution -- and more importantly, to strike down actions that are unconstitutional. When a court strikes down part of a law, though, they aren't writing a new law, or even repealing a law. They are overturning parts of the existing law -- basically declaring the unconstitutional parts of it void, to be treated as if they didn't exist.

In India's constitution, Article 13 provides the main basis for this power. Article 13.(2) (in Part III) states:

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

This article, aside from making it clear that laws passed by the State can be void, also gives the Supreme Court the inroads it needs to do the overturning. The catch is, the Court can not overturn most laws passed by Parliament, just the ones that Part III can be construed to prohibit.

(While the judiciary is not explicitly named, it's the only branch that can officially say whether or not a law is constitutional. It'd be a conflict of interest anyway for Parliament to do it. Parliament, in passing the law, presumably wanted it to be enforced, and thus has an interest in avoiding too much scrutiny.)

So the Court can already declare an unconstitutional law void, because it already is...and that's before we even get to Article 142.

Let's take a look at the article anyway:

(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

Note that (2) explicitly grants the power to issue subpoenas, contempt citations, etc. So we can't claim that's what (1) was intended for, and have to ask what it means.

The Court decided that the article gives it the power to order the government not to violate your rights, as such an order is "necessary for doing complete justice". And as the final arbiter of the meaning of the very text that defines it into existence, it has that prerogative.

And due process is one of the rights protected. Article 21 (also in Part III):

No person shall be deprived of his life or personal liberty except according to procedure established by law.

"Procedure established by law" is a much weaker phrase than "due process", and technically meant that anything that the government scribbled into law was good enough. But case law has all but removed the distinction. (See Maneka Gandhi vs Union Of India.) Basically, any procedure for depriving someone of life or liberty must be just, fair, and reasonable. (Otherwise a law declaring you a criminal, to be arrested on sight, would be constitutional.) "Someone filed a complaint" simply wasn't gonna fly.

  • My apologies if I failed to understand your answer in entirety, but would you please mind guiding me as where did you argue that Judiciary can actually amend an executive order or a law? I understand that within their ambit of duty Judiciary has very rights to struck down such parts violative of Constitution or certain principles but in the referred cases they went far beyond than striking down. They actually provided for alternative provisions something that is reserved exclusively for Parliament. This appears encroachment into legislative domain. – Firelord Mar 24 '18 at 18:31
  • The judiciary doesn't amend laws; if you check the statute, it hasn't changed. Generally, they reinterpret the law, not changing the words, but finding a meaning within them that's consistent with the constitution. But if the words of the law can't be reinterpreted to make it constitutional, the law is void. These "alternate provisions" probably aren't what you think they are; judges don't make statutes, and they don't dictate executive process to that degree. You'd have to look at the case. – cHao Mar 24 '18 at 21:48

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