india judiciary
Can the Judiciary change the due process outlined in a law?
<p>I recently came across an <a href="https://thewire.in/law/dilution-of-sc-st-atrocities-act-will-have-a-crippling-effect-on-social-justice" rel="nofollow noreferrer">article</a> reporting that the India's Supreme Court has passed a <a href="https://main.sci.gov.in/supremecourt/2017/22086/22086_2017_Judgement_20-Mar-2018.pdf" rel="nofollow noreferrer">judgement</a> which has the effect of <em><strong>diluting</strong></em> the <a href="https://tribal.nic.in/actRules/SCSTpoaact1989.pdf" rel="nofollow noreferrer">THE SCHEDULED CASTES AND THE SCHEDULED TRIBES  (PREVENTION OF ATROCITIES) ACT, 1989</a>, enacted by Parliament, the apex legislative branch of Indian Government.</p>
<p>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.</p>
<p>In an earlier stance, the same court <a href="http://www.livelaw.in/breaking-misuse-of-s-498a-sc-directs-to-form-family-welfare-committees-to-examine-each-cases-no-arrests-before-committees-report-read-new-guidelines/" rel="nofollow noreferrer">passed a judgment</a> which also seemed to dilute the provisions against domestic violence.</p>
<p>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 <a href="https://indiankanoon.org/doc/500307/" rel="nofollow noreferrer">Article 142</a> of the Constitution, which Supreme Court tends to use liberally to impart justice, doesn't <strong>explicitly</strong> empowers it to engage into such [mis]adventures.</p>
<p>What I want to know is :</p>
<ul>
<li>Whether such judgment can be construed as <em>ultra vires</em> of the Constitution?</li>
<li>Alternatively, is judicial overreach constitutionally permissible?</li>
<li>If not, what recourse can the Indian Parliament undertake to nullify such judgment/order?</li>
<li>[Optional] Had there been such cases in other Democracies? Were they too <em>ultra vires</em>?</li>
</ul>

<p>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 <em>ensure</em> that the judiciary can interfere in some cases.</p>

<p>One of the checks is the concept of <em>judicial review</em>: 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 <em>overturning</em> parts of the existing law -- basically declaring the unconstitutional parts of it void, to be treated as if they didn't exist.</p>

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

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

<p>This article, aside from making it clear that laws passed by the State <em>can</em> 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.</p>

<p>(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.)</p>

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

<p>Let's take a look at the article anyway:</p>

<blockquote>
  <p>(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.</p>
  
  <p>(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.</p>
</blockquote>

<p>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.</p>

<p>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.</p>

<p>And due process is one of the rights protected. Article 21 (<em>also</em> in Part III):</p>

<blockquote>
  <p>No person shall be deprived of his life or personal liberty except according to procedure established by law.</p>
</blockquote>

<p>"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 <a href="https://indiankanoon.org/doc/1766147/" rel="nofollow noreferrer">Maneka Gandhi vs Union Of India</a>.) 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.</p>
