THE ERA of illiberalism in India and beyond has offered many lessons to those studying constitutions, constitutionalism and the nature of the judicial process. It has shown that the demise of constitutionalism does not necessarily take the form of the dramatic dismemberment of existing institutions and systems. Instead, it can fester through the exploitation of existing weaknesses and contradictions within our systems. For the same reason, we have learned that the distinction, when it concerns legal form, between liberal and illiberal political rule is often hard to discern in both theory and practice. Illiberal actors typically rely on the same toolkit as liberal actors, with the primary difference between the two lying in the ends to which that toolkit is used and the ferocity with which it is deployed.
The overlap between liberal and illiberal rule pushes back against the tendency to bracket off the illiberal era as a unique period in our constitutional history. This, in turn, calls upon court-watchers and constitutionalists alike to extend insights derived from this era to the broader canvas of constitutional history and theory. In this spirit, and taking the inability of the Indian Supreme Court to act as a bulwark against executive aggrandizement over the last decade as a contextual backdrop, I reflect on the broader issue of judicial discretion.
Before jumping to judicial discretion, it’s worth noting that recent commentary on our courts has shed considerable light on the techniques through which the political branches have tampered with the judiciary’s institutional independence. As other interventions in this special issue will undoubtedly demonstrate, these techniques—chief among them the interference in judicial appointments—inform the behavior of the Supreme Court and hold substantial explanatory value for its lackluster performance of late.
With that said, an excessive or exclusive focus on these techniques risk obscuring other factors that influence judicial decision-making. These other factors include the law itself, which acts as an abstract source of power that regulates the behavior of legal actors, including judges themselves. Through legal rituals and methods for deciding cases, the “law” prevents judges from acting in a purely self-interested rationalist manner. In other words, the “law,” if followed, constrains judges transforming their preferences—or that of the political branches in the case of so-called captured courts—into judicial pronouncements.
This attribute of the law gets tested in cases where judges are required to exercise discretion. For this reason, I focus on these types of cases to make the claim that even where judicial discretion is involved, a judge is not free to do as they please. This, in turn, implies that techniques such as tampering with judicial appointments, though important, cannot—or at least ought not to—have the effect of rendering the court a mouthpiece for the executive. If this were to become the case, the court should no longer hold the privilege of being referred to as a court of law.
Why judicial discretion?
Judges, especially those serving on apex or constitutional courts, are routinely called upon to exercise discretion. This feature of judicial decision-making provides fertile ground for the executive to transform its legal or policy preferences into judicial pronouncements. Through the use of carrots and sticks, the executive can, for instance, induce judges to exercise discretion in its favor while deciding politically sensitive matters. Crucially, it can do so while appearing to remain within the bounds of the law, for if the law grants discretion, who is to say it cannot be exercised in favor of the executive?
In light of this question, it is essential to think through three overlapping questions concerning judicial discretion: When do judges exercise discretion? What should they do when they are called upon to exercise discretion? And what can we—who are not the judges ourselves—do to help ensure that judges fulfill their institutional calling? In our present context, these questions also converge into a broader question: At what point does a captured court cease to be a court altogether, and what can we do to prevent this from happening?
Illiberal actors typically rely on the same toolkit as liberal actors, with the primary difference lying in the ends to which that toolkit is used and the ferocity with which it is deployed.
When do judges exercise discretion?
The English legal theorist H.L.A Hart in an essay titled “discretion,” identifies two types of judicial discretion - “avowed” (or explicit) discretion and “tacit” discretion. Avowed discretion, for Hart, refers to the discretion that the law explicitly grants to judges through the use of concepts such as negligence, reasonableness, or proportionality. These concepts invite judges to make assessments that are guided by legal rules or principles but not wholly determined by them. By contrast, tacit discretion refers to the discretion that is not explicitly sanctioned by the law but emerges as a consequence of the nature of legal rules. Since rules do not apply themselves, but rather require application, they necessarily call for their interpretation. And since no rule on how to interpret a rule—or if you want to go further, no rule on how to interpret a rule of interpretation—can exist, judges always enjoy a certain degree of discretion.
The degree of tacit discretion a judge enjoys depends on the type of case at hand. In so-called , which deal with rules or principles whose interpretation is largely uncontroversial due to repetition or consensus among legal actors, the degree of discretion is narrow. However, in so-called or cases that are in the the discretion enjoyed by judges is vast, since no consensus regarding the meaning of a rule or principle exists.
Institutions like our Supreme Court often find themselves dealing with hard cases. They issue clarifications on the meaning and scope of ambiguous, conflicting, and contradictory rules and principles. They also stretch existing rules and principles to fill the inevitable gaps in the law that persist despite legislative and executive efforts to enact comprehensive rules. These actions, by their very nature, invite judges to exercise discretion. When combined with avowed discretion--which is also a necessary part of judicial craft--it becomes clear that discretion is not anomalous to judicial decision-making but one of its core constituent elements.
What should judges do when they are called upon to exercise discretion?
In common usage, the word “discretion” is often used synonymously with “choice.” However, tracing the etymology of the term reveals that it implies a specific type of choice – a “rational perception”, a “good judgment”, or a choice that presupposes “prudence.” Understood in this manner, the ability to exercise discretion requires the acquisition of certain qualities or skills. This meaning of discretion becomes clearer when one takes into account translations of the term. In Hindi, for instance, discretion is often translated as “Vivek,” which implies a certain type of “Gyaan” or “Samajh,” both of which can be rendered into English as knowledge or prudence.
The exercise of discretion, though it does not amount to the programmatic application of existing rules or principles, is nonetheless far from pure choice.
All of these understandings of discretion point to Hart’s description of the term as something that “occupies an intermediate place between choices dictated by purely personal or momentary whim and those which are made to give effect to clear methods of reaching clear aims or to conform to rules whose application to particular cases is obvious.” Put differently, the exercise of discretion, though it does not amount to the programmatic application of existing rules or principles, is nonetheless far from pure choice. Instead, it requires a certain application of mind that is informed by the broader legal method.
What is this legal method? Here, the writings of two scholars are deeply insightful. First, consider Gerald Postema, who argues that the introduction of new legal material, such as a judgment, is not akin to “adding an item to a list.” Rather, it should be understood as “a modification of the corpus juris,” by which he means a change to the entire body of the law. Such change, he argues, comes with a “demand for systemic integration,” which in simple terms implies the need to ensure that the law appears as a single unified system and not a haphazard set of norms. The demand for systemic integration calls upon judges to ensure that their decisions, even when they involve the use of discretion, sit well with existing rules, principles, and precedents. To invoke an often-cited metaphor, it implores judges to treat their decisions as part of a “chain novel,” where each decision—which is comparable to a chapter from a novel or a scene from a play—flows from previous, so as to give the appearance of the existence of single, coherent novel rather than a collection of fragments.
On a somewhat different but connected note, Shivprasad Swaminathan argues that judges do not start with the law but rather use the law as a rhetorical counter to justify their decisions in an ex-post manner. In his understanding, judges first decide on matters based on their personal preference, and then go about convincing the legal community—which includes the bar, bench, and legal commentators—about the appropriateness of their decisions. A judgment that is either incomprehensible or unconvincing to the legal community simply would not stand. This, in turn, imposes hegemonic pressures on the judge to ensure that their interpretation of the law broadly conforms to prevailing understandings within the community.
Postema’s and Swaminathan’s analysis of the legal process reaches a similar conclusion - Judges, because of their institutional calling, must act in a manner whereby their decisions conform to the corpus juris, understood either narrowly as the text of the law or broadly as the expectations of the legal community. In neither of these understandings is discretion equivalent to free choice or arbitrariness. Instead, as in all other cases, in cases where judges enjoy discretion, they are required to apply their mind and ensure that their decision sits well with previous decisions or conforms to the legal community’s expectations.
What can we, who are not the judges ourselves, do to help ensure that judges fulfill their institutional calling?
For judges, the need to ensure that their decisions conform to the legal method is—and ought to be—self-evident. Complying with this need forms a part of a judge’s entry-ticket to the bench and thereafter remains a part of their common sense or doxa. Our legal system enforces this need at the time of appointments by requiring that judges appointed to the higher judiciary possess a legal education and display excellence in the bar, bench, or academy. After their appointment, the system routinely reinforces the need to conform to the rigors of the legal method through its web of appeals, revisions, curatives, and now, recalls, through which judges keep their fellow judges in check.
However, what if these mechanisms fail? What if our collegium ignores the need to appoint individuals who conform to their institution’s calling and instead appoints undisciplined partisan voices? Similarly, what if those at the very top of the legal hierarchy misuse, or fail to use, the tools at their disposal to ensure conformity with the legal method?
If legal commentators are ignored, the judiciary, which possesses neither the power of the sword nor that of the purse, risks losing its primary source of legitimacy.
In these instances, other members of the legal community must step in. As Pierre Bourdieu reminds us, even “the most lowly judge is tied to the pure legal theorist and to the specialist in constitutional law by a chain of legitimation that removes his acts from the category of arbitrary violence.” Legal commentators provide legitimacy to the law, both by masquerading its violence as the work of reason and by directing the law through the use of reason. This makes the judge both indebted and responsible to these members of the legal community. With this power in hand, legal commentators have two options: they could either, following critical theorists, stop investing the law with reason and thereby break their tie with the court; or they could use this position of power to steer judges when they go astray.
What does all of this mean for the state of our judiciary in this era of illiberalism? The question of judicial discretion and how it ought to be managed tells us that discretion is an essential feature of judicial craft that ought not to be confused with pure choice. Judges, when they are called upon to exercise discretion, must act prudently. For this reason, even a captured court, if it wants to be called a court, must display prudence. If it does not, legal commentators could, if they so desire, use their power to call out the court to ensure that prudence prevails. If legal commentators are ignored, the judiciary, which possesses neither the power of the sword nor that of the purse, risks losing its primary source of legitimacy – the members of the legal community.
As a final word, it’s worth noting that judicial prudence, though it is important, is a far cry from judicial righteousness. Indeed, judicial prudence can, in some instances, come in the way of judicial righteousness for discretion, when properly exercised, limits choice, which, in turn, limits the possibility of legal transformation. With that said, if a responsible court is what we desire, then that is a pill we must swallow.