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.
