The freedom of exercising ‘discretion’

and the right to ‘dissent’

‘Based on a rationale’ or ‘intrinsic to judging’

In the morning itself, a thought occurred to me. I immediately penned it down. It would be
best read in original,

“The discretion of a Judge is to law, in its application in a given situation, what a

soul is to human body. The chance of its misapplication is no reason to scuttle it or to
inhibit it beyond reason.”

(healingthoughts 14.09.2018)

The freedom of exercising discretion is a freedom inherent in a Judge. For that taken
away, it would be comparable to take life out of a living thing. A judge sans discretion is
reduced to the stature of a machine which may not distinguish to answer only to the call
of his master. Justice certainly would be the first casualty the day a judge feels constrained
to decide something by abandoning reason of its truest sense.1

It would be a legitimate claim of the society against a judge to seek from him the
enforcement of the rights inherent in human existence or established by time and also to
seek the remedy in case such rights are violated. But then a judge may not be in a position
to form an opinion as to questions, whether the right in question is such which is
established beyond dispute or whether it is central to existence of the living; whether the
defence proposed against the exercise of such right is capable of admittance and so on.
He undoubtedly would need, more often than not, assistance in the formation of an opinion
on such questions. It is for this end that the notions of justice, equity and good conscience
and the concepts of precedence and legislation etc. emanated at different times in the
history of evolution of various jurisprudences. With the increasing number of aids, the job
of a judge in making of an opinion became easier in as much as he had the guidance of
already established principles as well as codified documents particularly intended to be
applied for deciding such controversies. It is here that this paper assumes significance. It
may not be out of place to consider here that it is human tendency to get used to and feel
dependent on the conveniences in life with the passage of time. It would be difficult to
establish with certainty of point in time as to when, in some instances at least, judges
started considering themselves absolutely bound by the written rules, though the rules

1 The reason that the law so provides is also a reason but only as to literal sense of the term.
may not have strict application in given facts, and when the society too started expecting
that there should be absolute straight-jacket formula for determining the disputed rights.
This tendency, to my mind, is dangerous, not only to the just determination of the rights
immediately in question but also to the development of the jurisprudence of any society.
The fact that a discretion is occasionally misapplied is not a justifiable reason to abandon
it altogether. The endeavour should always be to bring such improvements in the
jurisprudential system that such instances are minimised. The scuttling of the discretion
to prevent its misapplication would be like bringing to an end a diseased body to put an
end to the disease rather than taking measures for the treatment of the disease. The
existence of discretion in a judge is as essential as the existence of an independent and
sovereign judiciary in any society governed by rule of law.2

The concept of right to dissent is made a part of this discussion not only out of an
endeavour to emphasise the significance of the former concept but also as there is a
compulsive correlation between the two in as much as the right to dissent has its genesis
in the recognition of the freedom to have discretion. For if there were no such freedom,
applying the principle of ‘stare decisis’, on the ground that the majority has already formed
an opinion, the dissenting judge may well be barred from holding a contrary opinion. But
we do not do so. Rather we recognise the right of each of the judges to hold his
independent opinion on a given issue and rightly so. If I may here be permitted to say so,
the God has been rather unfair in gifting the ability of prophetic righteousness to some
few far in advance than others as to the notions of what should be considered as just and
reasonable. We are not short of instances when the reason to dissent expressed by a
Judge is adopted later on by the majority. In such cases, a layman may consider that the
majority had been unjust in the past but I’m afraid it is not so. Because the notion of
reasonableness is beyond doubt a relative concept, rightly so recognised at least in
reference to time. The principle of ‘dynamic constancy’ would require that the
reasonableness of any rule must be ascertained in reference to the contemporary times.
Without missing the point, the right to dissent is an important right not only for recognising
the opinion of an individual but also as not scuttling the discretion to have an opinion
individually. And here lies the essence.

©️ healingthoughts (14.09.2018)

2 The term also referred to as ‘Constitutionalism’ since the later half of twentieth century.