Can the Judiciary change the due process outlined in a law? 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?
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.
Because the 1860 law that criminalised “unnatural” sex is unconstitutional In essence, Navtej Singh Johar v. Union of India decided that criminalising sex between consenting adults violated the Constitutional right to equality. You have a Law in the Constitution that says people have to be treated equally. You have another law that says people in same-sex relationships are to be treated differently. The law in the Constitution wins. According to the BBC: Thursday's decision was delivered by a five-judge bench headed by India's outgoing chief justice Dipak Misra and was unanimous. Reading out the judgement, he said: &quot;Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional.&quot; Another judge, Indu Malhotra, said she believed &quot;history owes an apology&quot; to LGBT people for ostracising them. Justice DY Chandrachud said the state had no right to control the private lives of LGBT community members and that the denial of the right to sexual orientation was the same as denying the right to privacy. The courts in India, like they are in most common law/civil law jurisdictions are interested it questions of law. Questions of sin and morality they are happy to leave to religion.
Generally speaking, ex parte communications with a judge (i.e. communications to which all parties to a case are not notified) are prohibited, both by law and as a matter of judicial and attorney ethics, subject to some narrow exceptions (e.g. applications for arrest warrants prior to the arrest warrant being carried out). Generally speaking, communications with the court (which is to say with judges or their subordinates) are made a matter of public record, and if the communication is about a particular case, all attorneys in the case must be given notice of it (if someone is not represented by an attorney, the notice goes to the defendant rather than their non-existent attorney). The attorney may then communicate the communication to their client, and generally speaking should communicate it to the client. I don't see anything in the question that suggests that this proposed communication would fall outside the general rule. But, the question isn't very specific and I wouldn't rule out the possibility that an exception might apply in a case with very unusual facts. Also, usually, a request to reconsider a sentence has to be made by a formal motion filed by the prosecutor or the defendant. Generally speaking, a third-party cannot file that motion unilaterally. A third-party or victim would usually only have input into the decision through the prosecutor's office. Third parties and victims are not generally permitted to file motions to reconsider sentences that have been imposed even in states with "victim's rights" statutes, but can publicly provide input to the court before a sentence is imposed, usually at the behest of either the prosecutor or the defendant. Furthermore, generally a criminal defendant has a constitutional right to not have a sentence made more severe after being sentenced the first time around. Reconsideration of a sentence once it is imposed may only be in the direction of leniency. Once a sentence is imposed, it can't be reconsidered to be made more harsh.
Your question slightly misrepresents what the article says: Yes, the judge denied the motion which led to the collapse of the case, he did not make a ruling on the substance of the case. The distinction is significant to my mind as the judge was using non-evidentiary knowledge (i.e. what he read in the paper) to make a decision on process; in this case a process that would have put a lot of people to a lot of inconvenience. It would not be proper for the judge to have used such knowledge to inform a judgement. It is also not clear from the article if the academic paper in question was actually introduced by the defendant as evidence. If that was the case then it is only right and proper for the judge to consider it. As to why a judge is allowed to read the news and a jury is not, I can offer several ideas: A judge must document their reasoning process in a judgement which is subject to review - if they were to make a decision based on matters not supported by the evidence then an appeals court could correct it. Alternatively, juries are specifically prohibited from revealing their reasoning process to anyone. Judges do their jobs for years, perhaps a whole career - to prohibit them from consuming media is a) unworkable and b) a serious impediment on their lifestyle. Juries are empaneled for weeks or months - such sacrifices are more reasonable. Judges are (supposedly) trained and impartial professionals who are more readily able to make the distinction between evidence and news. Newsworthy cases are relatively rare
"Contempt of Congress" does not extend, in a legal sense, to insulting Congress as a whole, one house, a committee chair, or a member. (Congress and its committees have power to require both members and witnesses to abide by its rules of decorum, which forbid such insults, but as far as I know the remedy is merely to remove the disorderly person.) Contempt of congress is defined by 2 USC 192, which provides that: Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. Note that this is a Federal criminal statute like any other, and Congress does not normally "declare" a person guilty, much less "apply the imprisonment penalty". Charges would have to be brought before a federal court, and the person convicted by a jury, or by a judge if a jury trial was waived. Congress does have the "inherent power" to hold trials for contempt itself, but this has not been done since 1934. This power was upheld by the Supreme Cout in Anderson v. Dunn 19 U.S. 204 (1821) A conviction under 2 USC 192 for refusal to answer questions on the part of a witness under subpoena was upheld against a First Amendment challenge in Wilkinson v. United States, 365 U.S. 399 (1961) In that case, according to the Wikipedia article, a standard for testing subpoenas was declared by the US Supreme court: As announced in Wilkinson v. United States, a Congressional committee must meet three requirements for its subpoenas to be "legally sufficient." First, the committee's investigation of the broad subject area must be authorized by its chamber; second, the investigation must pursue "a valid legislative purpose" but does not need to involve legislation and does not need to specify the ultimate intent of Congress; and third, the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation. Thus, in considering such charges, it is a proper defense that the subject matter of the hearing was not withing the power of Congress to investigate, or that the questions were not relevant to the subject. The court would consider these issues if they were raised by the defense. But the political "merits" of the investigation -- whether it is a wise use of the Congressional power, would not be considered.
(The original title of your question suggested you might think that federal circuit precedent binds state courts: it generally does not, even on matters of federal law.) But regardless, Congress would not be able to legislatively lower the constitutional floor. If a certain police act is prohibited by the Constitution, Congress cannot legislatively allow that act, whether in a single state or uniformly across all states. That means that if the Fifth Circuit has decided that the use of some new investigatory tool is a search under the Fourth Amendment, no law that Congress passes could affect that holding. When congress creates laws that result in different effects for different people (e.g. people in Texas vs. people in Florida, as in your hypothetical), the distinction must be rationally related to a legitimate government purpose. Many of the enumerated powers allow for local distinction, some prohibit it. Some examples where Congress has distinguished between states include: localized agricultural programs, time zones, voting rights protections, and various others listed in ohwilleke's review. Some distinctions between states could also intrude on principles of federalism and state sovereignty (e.g. the Supreme Court has said that the Voting Right Act does this). Maybe I am unimaginative, but I cannot think of a legitimate federal government purpose that would call for the powers that police have against the people to vary from state to state. Any such variation would have to come from the states themselves: from their state constitutions, or legislative choices to provide heightened protections. Discord between circuits is problematic (see a list of examples of existing splits), and this is why the Supreme Court of the United States will often hear an appeal where there is a circuit split on a question of constitutional rights.
Decisions that break with precedent do happen with some regularity, but far &quot;from all the time&quot; in the US. When they do happen, they are generally only at the top level of a state or federal court system, that is a State supreme Court (or equivalent, some states use a different term) or the US Supreme Court. There are several factors which discourage judges from simply ignoring precedent. First of all, all the training a lawyer receives teaches him or her to respect precedent, and to find rules by examining past cases. precedent is literally the stuff with which a lawyer works, rather more than the wording of statutes (although those are also important). Secondly, as a lawyer works as a litigator, judges will usually ground their decisions on precedents, particularly in appellate cases, explaining their decisions largely in terms of how they conform to or extend precedents. Thirdly, if a lower court judge fails to follow precedent, that judge will often be criticized by an appellate judge or justice, often in the course of an opinion overturning the lower-court judge's ruling. This does not feel pleasant to such a judge. Fourthly, decision that fail to follow precedent are often (although not always) criticized by legal scholars, particularly in law review articles and treatises. Fifthly, lower-court judges who often fail to follow precedents, are less likely to be recommended by senior judges for promotion to appellate positions. However, the actual appointments are controlled by politicians (in most cases) not other judges, so this factor may not be as strong it it would first seem. Only once a judge gets to the level of the Supreme Court of a state, or the Federal Supreme Court, is that judge (now a Justice) expected to alter precedents as needed, and most justices have said that they make such changes only reluctantly. I am not aware of any US state or federal statute or regulation that specifically;y requires judges to follow precedent. The most common way to alter precedent is not to overrule or ignore it, but to distinguish a prior case. This happens when a judge says something like: In the previous case of A v B when had situation X which lead to outcome Q. But in this current case we have the very different situation X1. In the case of X1, the outcome should be S instead of Q. If the new case becomes persuasive the old case A v B may apply to only one specific set of facts that almost never comes up, and the new rule apply to almost all other possible situations. The old case may cease to be cited or applied without ever being formally overruled. And, of course, where the rule is statutory, it may be changed if the legislature alters the law. If the rule is constitutional, it may be changed by a constitutional amendment. For example the 1830s case Barron v Baltimore held that the US bill of rights did not apply to the states, only to the Federal Government. But after the 1868 14th amendment, courts started to incorporate much of the bill of rights into the Due process clause of the 14th, and apply it against the states. This took place gradually, mostly during the period starting with 1898, up until about 1970, but with some incorporation coming as late as 2010 (Heller)
Only for certain parts of the constitution, and not for the parts you are asking about. Accordingly, the Supreme Court has squarely stated that neither the First Amendment nor the Fifth Amendment "acknowledges any distinction between citizens and resident aliens."13 For more than a century, the Court has recognized that the Equal Protection Clause is "universal in [its] application, to all persons within the territorial jurisdiction, without regard to differences of ... nationality."14 The Court has repeatedly stated that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."15 When noncitizens, no matter what their status, are tried for crimes, they are entitled to all of the rights that attach to the criminal process, without any distinction based on their nationality.16 Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens? - David Cole, Georgetown University Law Center