According to Black’s Law Dictionary[1], Judicial discretion can be defined as, “The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right.”
In other words, judicial discretion occurs when a judge delivers a decision that cannot be directly derived from existing laws and instead uses their own judgment, abiding by precedents, rules, and other factors, without strictly adhering to them.
In the recent judgement of Sunita Devi vs. State of Bihar[2], the hon’ble Supreme Court suggested that a comprehensive policy must be introduced by the legislature in order to regulate the current sentencing policy as it is quite ‘judges – centric’ and thus leads to disparities in the judgement due to the discretion of different judges and consequently, the decision varies from one judge to the other.
In another case of Anurag Kumar Singh & Ors. Vs. State of Uttarakhand[3], the court held that judicial discretion must not be exercised in contradiction to any statute and must only come to picture when there is more than one lawful solution available. The court must exercise its power to select the best, lawful solution abiding by the statute.
Time and again, the issue of judicial discretion has been raised and there have been debates as to whether it is a necessary evil or must be to eradicate fully? Following article presents pros and cons of judicial discretion, its impact on the society and possible reforms regarding the same.
Constitutional Extent
There are many instances where constitution itself has empowered the judiciary, either directly or indirectly, to exercise its discretion. This can be derived from the fact that many laws include phrases such as “as courts deems appropriate”, “as the court thinks reasonable”, “as the court otherwise directs” and other similar language[4].
Apart from this, many articles of the constitution and numerous sections of different statutes imply the same. Following are few examples of the same.
- Article 142
- Article 136
- Section 437 of CrPC
- Section 151 of CPC
- Cases related to sentencing
- Cases related to temporary injunction
- Cases related to adjournment
Advantages of Judicial discretion
- Legislature cannot be for every situation
- The society today, is evolving at a rapid speed. In this scenario, it is not possible for the legislative bodies to make laws pertaining to each and every situation that could possibly take place. Therefore, judicial discretion becomes a necessity to take decisions in circumstances that are not explicitly mentioned by the law makers. Moreover, the laws are often crafted keeping in mind the broader aspects; it is for judiciary to interpret it and apply it in specific occurrences.
- Gives human touch to statutes
- When laws are not applied as a straight jack formula and instead judges apply those according to their reasoning, it gives an added advantage of providing those rules a sense of sensitivity, especially towards the accused. This can be mainly observed in the form of mitigating factor to reduce the punishment awarded. This courteous approach encourages rehabilitation and lowers recurrence of crime by acknowledging the intricate social and personal elements that influence unlawful conduct.
- Reasonableness to particular circumstances
- Judicial discretion provides practical logic and reasonability pertaining to the particular situation, ensuring that just and fair verdict is imparted in context of the societal reality. The most apt example for this can be the ‘test of reasonability’ in torts law where judges determine if the action is reasonable or not by putting themselves in the shoe of a common, prudent man.
- Flexibility
- The judiciary bridges the gap between the rigid statutes and the fluid realities of daily life. By employing a flexible approach, the judiciary maintains the values of fairness and adaptations, creating a legal framework that can effectively cater to the varied and ever-changing requirements of the community. The flexibility of the system by providing judicial discretion is important to keep progressing.
- Legal evolution
- Judges delivering a decision, that varies from the regular interpretation, leads to mutations in the meaning and thus helps the law to evolve along with the dynamic society. The constant process of legal evolution guarantees the continuing relevance, responsiveness, and ability of the legal system to handle the intricacies of modern society.
- Separation of Powers
- Judicial discretion empowers the judiciary to interpret and apply the law independently, free from the overpowering influence of the other two organs of the government, i.e. legislative and executive. Had there been no power of discretion conferred upon the judges, the legal system would have soon turned into an obsolete machinery doing more harm than good to the institution of democracy and the nation as whole.
Disadvantages of Judicial discretion
- Unpredictability
- One of the major drawbacks of judicial discretion is that it becomes unpredictable for the parties and the lawyers to predict as to what exactly will the judge deliver, deviating from the regular interpretation. This leads to uncertainty, incoherence and instability. Judges who deviate from well-established precedents produce a patchwork of inconsistent rulings that make it challenging for attorneys to counsel clients and for individuals to know their rights and responsibilities under the law.
- Inconsistency
- A significant disadvantage of judicial discretion, which the hon’ble Supreme Court of India has also pointed towards time and again, is that there can be inconsistency in the decision of the judges for the same crime, just on the sole basis of difference of opinion and individual subjective analysis. This is most commonly observed in the cases of ‘sentencing’ where two judges may think differently regardless of it being the same crime, in the same circumstance and having the same consequences. This undermines the principle of equal justice under the law.
- Overlaps with legislature
- There is a very thin line between judicial interpretation and judicial intervention. This often causes the judges to not just limit themselves to give an explanation of law but also to develop law themselves sometimes under the shade of interpretation. Thus, it indirectly interferes in the working of legislature, which at times may be morally correct and needed but in long run can be a threat to free and fair democracy.
- Possibility of error/biasness in judgements
- Error and prejudice in decisions are inherent risks associated with the exercise of judicial discretion. Due to their human nature, judges are prone to cognitive assumptions, individual biases, and logical mistakes that might influence their decision making. Further, the complexity and uncertainty of the legislation increase the likelihood of prejudice and inaccuracy in decisions. It is difficult for judges to get the right conclusion because they frequently have to negotiate complex legal concepts, contradictory precedents, and complicated factual events.
- Social and political pressures
- Sometimes, the decision takers are under the undue influence of the societal pressure or the dominance of any higher authority to deliver a particular judgement in one party’s favour, although that might not be lawful. This can generally be observed in high profile cases. Public opinion, political dynamics, and institutional biases all pose significant challenges to the integrity of judicial decision-making. Recently, media trial[5] has also been an important issue that unconsciously influences the judges. This leads to deviation from true justice.
- Effects rule of law
- Inconsistencies in the decisions of the courts often leads to unwanted inequality between the offenders due to varied treatment, without any strong reason of the same except that the judges are opinionated differently. This violates the rule of law which says that everyone is equal before law and therefore should be treated similarly.
Suggested Reforms for Judicial Discretion
- Activism vs. Overreach
- The distinction between judicial activism (actively interpreting and explaining the law and applying it as necessary) and judicial overreach (going beyond mere interpretation which may also lead to judiciary taking up law making task) is quite unclear. This sometimes causes the judiciary to cross the line and go ahead of its scope while interpreting the law. Therefore, it is necessary for the judges to identify the distinction between the two and balance its duties accordingly for the smooth working of all the organs of the government. The extent of judicial action must be clearly defined in order to strike a balance between activism and overreach. Courts should refrain from interfering until there is a strong constitutional requirement or egregious violation of rights, and they should show caution and deference to the legislative and executive institutions.
- In addition, it is crucial to cultivate an atmosphere of judicial responsibility in order to avoid overreach. It is possible to assure that judicial decisions stay within the confines of constitutional power by implementing procedures like appellate review, control of judicial conduct, and public examination. Engaging with the legislature and executive branch can further encourage cooperation while honouring the unique duties and responsibilities of each branch of government.
- Define guidelines
- Guidelines must be issued by the legislature in order to make the decision-making process more consistent and unbiased. This is something that has been talked about by the Supreme Court very often to implement and thus reduce discrepancies arising out of judicial discretion. Guideline-based procedures can reduce the likelihood of arbitrary decisions, improving the objectiveness and integrity of the legal system. Creating specific norms and parameters that judges must take into account while exercising their discretion is the process of defining guidelines. These rules ought to be based on established legal doctrine, historical case law, and factual information, striking a balance between the demand for personalized justice and the significance of legal consistency. Sentence guidelines, for example, might specify the range of acceptable punishments in criminal cases depending on the gravity of the violation, the offender’s prior criminal history, and mitigating or aggravating circumstances. By ensuring that similar crimes carry comparable punishments, these standards serve to close gaps and advance symmetry in sentencing.
- Training and awareness
- Judges, being humans, tend to have certain fear and biasness. But this can adversely affect the decision-making institution as whole. Therefore, they must be provided with rigorous training to reduce biasness, maintain calm in pressure and be mentally strong enough to not get influenced by various external factors. Practices such as meditation, emotional and mental tests, various seminars from time to time can help the judges to detach from the externalities while examining any case and take decisions ethically and judiciously. Moreover, teaching subjects like psychology, ethical standards and sociology can help judges to understand these aspects better and thus prevent themselves from falling into an unconscious impropriety.
- Peer review and feedback from lawyers
- A good and easy way to keep a check on judicial discretion is to form a community of all judges and lawyers who can review the decision of their peers and recommend as to the given verdict is in the scope of judiciary or beyond that. This can be implemented effortlessly and is also a cheap and effective way to help judges using the pool of knowledge already available in the judicial ecosystem of the nation. This culminates a culture of accountability, transparency and high standards of judicial performance. Clear criteria and procedure for the evaluation must be laid down. Apart from this, an added advantage to such system will be that the judges and lawyers will be more up to date and vigilant due to the added duty of duly reviewing the judgements.
Conclusion
To summarize, while judicial discretion is necessary for the adaptation and humanization of law, it also poses issues such as unpredictability, inconsistency, and possible prejudice. To address these concerns, improvements are required, such as distinguishing between judicial activism and overreach, creating explicit norms, improving judge training to reduce biases, and adopting peer reviews and feedback systems. These policies seek to strike a balance between the need for judicial flexibility and the necessity for consistency and justice, ensuring that the court may efficiently and morally traverse the complexity of current legal environments.
[1] Bryan A. Garner, Black’s Law Dictionary 1405 (West 2004).
[2] Sunita Devi v. State of Bihar, 2024 SCC Online SC 984.
[3] Anurag Kumar Singh & Ors. Vs. State of Uttarakhand, AIR 2016 SC 4542.
[4] Uttarakhand Judicial Academy, https://ujala.uk.gov.in/files/Ch8.pdf (last visited June 24, 2024)
[5] State Of Maharashtra vs Rajendra Jawnmal Gandhi, AIR 1997 SC 3986.
Author: Jhalak Bhatia
Juris Centre 