Is the Muslim Women (Protection of Rights on Marriage) Act violative of fundamental rights? On July 31, 2019, Government of India published the concerned Act in its official gazette. Article 4 in the Act has penal provisions which turns the act of declaring instantaneous unilateral divorce by a Muslim man to his Muslim wife a criminal offence. Now, inter alia one problem I see with this Act is with Article 1(3) which states: (3) It shall be deemed to have come into force on the 19th day of September, 2018. That clause turns this law into an ex post facto criminal law. As I understand, Article 20(1) of the Constitution of India prohibits the governments in India from enacting an ex post facto criminal law. Here's what the relevant clause states: (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. So, is the Muslim Women (Protection of Rights on Marriage) Act, 2019 (aka Triple Talaq law) violative of fundamental rights guaranteed by the Indian Constitution? It is to be noted that the Act came into existence to prevent the violation of Article 14 and 21 (fundamental rights) guaranteed by the same constitution. Backstory: the Bill for the law was first introduced in the winter session (2018) of the Parliament of India in the wake of the Indian Supreme Court's judgement (August 2018) which declared such instantaneous divorces unconstitutional and asked the Government of India to frame a law to protect the rights of the concerned women. The Bill lapsed automatically following the dissolution of the 16th Lok Sabha (2014-19). Following the constitution of 17th Lok Sabha in mid 2019, an amended Bill was tabled in the Parliament and was passed by both of its Houses, and received the assent of the President by the end of July.
Not for that reason This would not make the Act invalid. The interaction between the two laws would simply mean that criminal prosecution would only succeed for acts on or after the Act came into effect. So, even though the law purports to invoke criminal sanction for acts before it came into effect, the Constitution says it can’t so it doesn’t. That doesn’t render the law invalid, just unenforceable for that period.
Only Parliament has the power to define crimes in law (well, also in the UK there are common law crimes, where ages ago the courts defined punishable wrongs). The police have the power to enforce existing law, but not the power to create new crimes. Part of police power is the power to use force to enforce laws. If a person is trying to kill another (which is a crime), the police can use force to stop the person from committing this crime. Police power can be statutorily encoded (Parliament passes a law saying what police can and cannot do), or it could be part of common law. As for laws regulating a suspect, there may be a specific statutory prohibition – &quot;you may not reach into your pocket&quot; – or there is a common law inference to be made, that if the police have the power to order you to not reach into your pocket you may be forced to comply. The subtle distinction here is that if it is a crime to reach into your pocket when told not to, you can be prosecuted and imprisoned. If there is no such crime, you just have the consequence that you can be roughed up to some extent for disobeying the police order. One act of Parliament is the Offences against the Person Act 1861 §38 which says Whosoever . . . shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, NB &quot;assault&quot; does not require physical contact: creating apprehension suffices. Another law is the Police Act 1996 §89 which says Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, or to both These laws do not exhaustively list all of the things that are forbidden (e.g. they do not say &quot;may not bite. nor scratch, nor kick...&quot;), instead, the prohibitions fall under the general rubric of assault and resisting. Under the circumstances, it is possible that the person could be criminally prosecuted, but even in lieu of a prosecution, it is strongly probable that the police use of force in this instance was lawful. One would have to await the outcome of investigations and litigation to know for sure.
I can think of three ways that your hypothetical bill could fail to become enforceable law. The Canadian Constitution contains unwritten constitutional principles. Among other things, in Reference Re Secession of Quebec [1998] 2 S.C.R. 217, the Supreme Court recognized that protection of minorities is an independent and fundamental part of the Constitution: Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government. [...] the preamble invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text. [...] the protection of minority rights is itself an independent principle underlying our constitutional order [...] The Supreme Court of Canada could rule such a law unconstitutional in order to protect minority rights. The Queen of Canada via her Governor General could decline to give such a bill royal assent, preventing it from becoming law. The Queen/Governor General can dissolve Parliament at any time to trigger an election.
Article 75 says that It devolves upon the Storting: (a) to enact and repeal laws; to impose taxes, dues, customs and other public charges, which shall not, however, remain operative beyond 31 December of the succeeding year, unless they are expressly renewed by a new Storting Article 97 says that "No law must be given retroactive effect" . The combined effect of these provisions is that any changes in the law effected this year could apply to tax years after 2020 but not including 2019. So the law as written supports your understanding. Skatteetatten seems to agree since the rules are listed as covering 2019.
The Fifth Amendment protection relates to a repugnant act, that of forcing a person to testify against themselves, and it is not about ways of looking at &quot;information&quot;. The relevant (legally-ancient) distinction is between a general inquiry and an accusation. The courts have always had the power to make a general inquiry, but there have been limits on the ability of the courts to make accusations. It is a fundamental requirement of law that there must be an accuser, if there is to be a criminal proceeding. But is it also considered to be morally repugnant to force a person to accuse themselves. The difference lies not in the informational content in question, it is in what act – compelled self-accusation – is excluded from the legal system.
The Constitutional proviso of Article I, Section 9, Clause 3 states that &quot;No Bill of Attainder or ex post facto Law shall be passed&quot;. This does not preclude a legal finding against the interest of an individual (e.g. a law can be passed whereby a person is punished for committing a certain act). It is important to understand that this clause means that Congress cannot pass a law declaring an individual to be guilty – this limits the legislative branch, not the executive or judicial branches. Congress can pass a general law and then the executive and judicial branches can enforce that law against an individual. Sanctions against an individual are routinely imposed by the executive branch (the IRS can fine you, Securities Exchange Commission can fine you, HUD can fine you, Homeland Security can sanction you in various ways...). Actions against an individual always start with the executive branch. You can contest an executive action on various grounds, such as &quot;exceeds authority&quot; or &quot;unconstitutionality of underlying law&quot;, which then brings in the judicial branch. A &quot;bill of attainder&quot; would be a law passed by Congress that declares Katerina and Maria Vladimirovna to be guilty, end of story, and no such law was enacted.
You are asking a different question The title to the earlier question -- &quot;Do the police have a civil duty to do their job&quot; -- is slightly misleading. The question is not whether the policy have an abstract &quot;civil&quot; duty to enforce the law, but whether they have a specific &quot;constitutional&quot; duty to do so. If they do have such a specific duty, then, as they OP says, they could &quot;be sued for not doing their job.&quot; As ohwilleke explains thoroughly, the answer to this question is &quot;no.&quot; The Supreme Court has consistently held there is no constitutional right to police enforcement of the law. In particular, the SCt has held that police aren't violating the 14th Amendment when they don't &quot;do their job.&quot; According to the Court, someone who is hurt when the police don't enforce the law, is not deprived of &quot;life, liberty or property without due process of law.&quot; This in turn means that the people who are hurt can't sue the police under §1983, which allows people to sue state or local officials who violate their constitutional rights. As you point out, the Nevada statute clearly requires officers to make an arrest in some cases. However, this requirement is not absolute; the statute also creates an exception to the requirement: a peace officer shall, unless mitigating circumstances exist, arrest a person when the peace officer has probable cause to believe that the person to be arrested has...committed a battery upon his or her spouse.. The statute goes on to explicitly exempt the officer and her department from liability if she decides not to make an arrest: Nothing in this section shall be construed to impose liability upon a peace officer or his or her employer for a determination made in good faith by the peace officer not to arrest a person pursuant to this section. Thus, the statute sends mixed signals to police officers. On the one hand, it requires them to make arrests in some domestic violence cases; on the other hand, it says they are not liable if they ignore this requirement. Taken together, the Nevada statute and the SCt's decisions mean people who are hurt if police don't make an arrest under 171.137 cannot sue the police under either state or federal law.
The top courts in both Ontario and Quebec have heard challenges to the Succession to the Throne Act, 2013, both upholding the Act, but for different and somewhat contradicting reasons. For reference, here is the Act's only substantive provision: The alteration in the law touching the Succession to the Throne set out in the bill laid before the Parliament of the United Kingdom and entitled A Bill to Make succession to the Crown not depend on gender; to make provision about Royal Marriages; and for connected purposes is assented to. Quebec I'll start with Quebec, since it provides a clear direct answer to your question. In Motard v. Attorney General of Canada, 2019 QCCA 1826 (English translation linked) the court concludes in paragraph 95 that: [...] Canada does not have rules of succession to the throne save for the unwritten constitutional principles of symmetry and hereditary succession determined by the United Kingdom. [...] Note that the principle of symmetry means maintaining the same monarch and/or rules of succession as the United Kingdom. Effectively, Canada only assented to the British changes as required by the Preamble to the Statute of Westminster 1931. Since there exist no separate Canadian rules of succession, there was no effective change to Canadian law, let alone one requiring constitutional amendment. Leave for appeal to the Supreme Court was denied. Ontario The Ontario challenge was Teskey v. Canada (Attorney General), 2013 ONSC 5046 (lower court decision cited, the Court of Appeal summarily affirmed). It relies mainly on precedent set in O’Donohue v. Canada, 2003 ONSC 41404. I'll outline my opinion, but unfortunately there is no direct answer to your question as both cases revolved around an attempt to invalidate the previous rules of succession on the basis that they violated the Charter by barring people who married Catholics (which the new rules also removed). As such, there was no clearly articulated reason in Teskey as to why the 2013 Act followed proper constitutional amendment procedure or whether it was required to begin with. O'Donahue is in agreement with Motard that symmetry and rules of succession are constitutional (para. 28 &amp; 36-37), but asserts that there exists separate Canadian and British rules in paragraph 34: The operation of this commitment to symmetry and union of Canada under the British Crown was demonstrated by the adoption in 1937 of the Succession to the Throne Act, 1 Geo. IV, c.16. This Canadian statute effected changes to the rules of succession in Canada to assure consistency with the changes in the rules then in place in Great Britain. The changes were necessary in light of the abdication of Edward VIII in 1936. Absent this Canadian statute, the statutory change in Great Britain to account for Edward VIII’s abdication would have been contrary to Great Britain’s commitment in the Statute of Westminster. Arguably, without this statute, Edwards [sic] VIII’s abdication would not have been effective in respect of the Crown of Canada. This results in a bit of a puzzle. If both symmetry and separate Canadian rules of succession are part of the constitution, then on a change in the British rules, Canada must either break symmetry (presumably a constitutional violation) or amend the rules of succession (presumably a constitutional amendment). This did not matter much for Edward VIII's abdication, as prior to patriation in 1982 this was all a bit moot since the Canadian constitution was effectively British, but it does matter for the 2013 Act. Here, Teskey paragraph 13 hints at a resolution: In the present case, the Applicant submitted in argument that Canada could and should adopt different succession rules from those which pertain in Great Britain with the possibility of recognizing a different monarch. I reject that argument on the same basis as Rouleau J. which is that this would change our present constitution in a fundamental manner and would involve the court changing, rather than protecting, our fundamental constitutional structure. and also paragraph 15: [...] the rules of succession and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy [...] I believe that the most sensible reading is that Canada was constitutionally required to adopt the 2013 Act both to maintain symmetry and to respect the constitutional Statute of Westminster 1931. In light of this, it's my opinion that a constitutional amendment for modifying Canadian rules of succession was not required, since the constitution already foresaw this scenario.