Judicial discretion in the era of Illiberalism

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?