While pre-trial release on bail is a matter of judicial discretion in India (unlike many countries where it is a right), there is no question that incarcerating people based on a hunch about their guilt, or because of the din of public opinion against them, undermines civil liberties, and ultimately the legal process itself.
A recent Supreme Court judgment by Justices Doraiswamy Raju and Arijit Pasayat has dealt with judicial discretion. At the outset, the judges said: “When crave for materialistic possessions outweigh personal love and affection, the inevitable result is passing long times in the corridors of courts…” Long time in the corridors of courts is the basic problem with the justice system. People lose faith in the system due to such delays. All this happens due to the misinterpretation of the term “discretion” and its unjust use. Discretion, the apex court says, is discerning what is right with a critical eye and proper caution. It denotes knowledge and prudence. Sometimes, a trial court convicts an accused and a higher court acquits him. There have been cases where one court has awarded the extreme penalty of death and the higher court has either reduced the sentence to life term or even acquitted the accused. Since all the courts maintain that their decision is based on “facts and circumstances”, would it not be appropriate to describe such divergent decisions as exercise of judicial discretion? In the words of the Supreme Court: “The word ‘discretion’ standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste.” Thus, discretion cannot be “arbitrary but must be a result of judicial thinking”. However, judicial experience offers a contrary picture. Several petitions are disposed of within minutes in some courts? The judges aptly referred to the words of Lord Camden in 1680. “The discretion of a judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best, it is often times caprice; in the worst, it is every vice, folly and passion to which human nature is liable.”
Since there is no fixed ratio of a case, there is an element of choice in determining it. The orthodox Blackstonian view, however, is that judges do not make law, but only declare what has always been law. The doctrine is the product of many factors. It would appear to result from thinking exclusively in the present time –frame, which give rise to the belief that there must be some rule which always ‘there’ at any given moment and waiting to be applied. In Blackstone’s day another important foundation for the doctrine was the belief in natural law, which supposed to be part of English law. Despite the derision which this theory encountered, and in the face of evidence to the contrary, its validity is remarkable. Again, during the seventeenth century struggle against the prerogative the judges maintained that the king was subject to the law and could not legislate, the corollary of which was that they too, were subject to the law and unable to make the law and bound only to apply it. The doctrine of the separation of powers also insisted upon the theoretical dissociation of judicial and legislative functions. The climate of opinion in the nineteenth century was favourable to the theory in so far as the prevailing positivism concerned itself only with the law as found, whether thought to have been produced by custom or laid down by sovereign authority. Also, public confidence is more easily retained by fostering the illusion that judges do but administer the law impersonally and that none of them can make the rules, especially since judicial law making is necessarily retroactive.
The theory is also borne out in the simplest disputes, particularly those in lower tribunals, which constitute the bulk of litigation. Judges, for their part, seek refuge in the theory when giving a harsh decision. Indeed, it has even been suggested that the theory satisfies the psychological preference of human beings to led rather than have to find their own way, the need, in short, for a ‘father symbol’. Another factor is that judicial decisions in their nature have to pronounce on the legality of conduct after it has taken place. Anything savouring of attainder is unpopular and the orthodox theory conceals the suggestion under the pretence that the law has always been there. It should also be noted that, whether or not a creative element enters into a particular decision, it becomes for future purposes evidence of what the law is, and this evidential function overlays the creative factors that operated to bring it into being.
It is clear, therefore, that analogy can be pressed into service of justification, but a caution needs to be uttered in case an exaggerated impression is created. Judges, like all human beings, prefer to avoid having to make personal decisions and they are very much aware of the need for consistency, which is an important dictate of justice.