CHANAKYA NATIONAL LAW

UNIVERSITY

Judicial Discretion
Legal Research Methods

Submitted to: Submitted by:

Dr. Ajay Kumar Apoorv Tiwari

(Faculty, Legal Methods) Roll No. 1208

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Table of Contents

ACKNOWLEDGEMENT III

RESEARCH METHODOLOGY IV

CHAPTER 1: INTRODUCTION: 1

1.1 DEFINING JUDICIAL DISCRETION 3

CHAPTER 2: POSITIONS ON JUDICIAL DISCRETION: 7

2.1 RONALD DWORKIN 7

2.2 THOMAS PERRY 10
2.3 KENT GREENAWALT 11
2.4 HOLMES 13
2.5 MAURICE ROSENBERG 14
2.6 DWORKIN VS. HART 16

CHAPTER 3: PROBLEMS WITH JUDICIAL DISCRETION: 18

3.1 STARE DECISIS 19

3.2 DEFERENCE TO LEGISLATURE AND ADMINISTRATION 19
3.3 HABEAS CORPUS AND QUO WARRANTO 20
3.4 PRIVATE PROSECUTION OF PUBLIC RIGHTS 20
3.5 CONTEMPT & COERCIVE DETENTION 20
3.6 ABSOLUTE IMMUNITY 21
3.7 PRO SE LITIGANTS 21
3.8 MENS REA DEFENSE 21

CHAPTER 4: JUDICIAL DISCRETION IN INDIAN COURTS: 22

4.1 SECTION 151, CODE OF CIVIL PROCEDURE, 1908 22

4.2 SCOPE OF SECTION 151, CPC 26
4.3 LIMITATIONS 27
4.4 JUDICIAL DISCRETION IN INDIAN LEGISLATION 29
4.5 LANDMARK CASES: 31
4.5.1 GHUZNAVI V. ALLAHABAD BANK LTD 31
4.5.2 HUKUM CHAND V. KAMALANAND SINGH 31
4.5.4 PADAM SEN V. THE STATE OF UTTAR PRADESH 32
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CHAPTER 5: CONCLUSION: 34

BIBLIOGRAPHY 36
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ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although

prepared by me, is a culmination of efforts of a lot of people. Firstly, I would like to
thank our Professor for Legal Methods, Dr. Ajay Kumar for his valuable suggestions
towards the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who were a
lot of help for the completion of this project. The contributions made by my classmates
and friends are, definitely, worth mentioning.

I would like to express my gratitude towards the library staff for their help also. I would
also like to thank the persons interviewed by me without whose support this project
would not have been completed.

Last, but far from the least, I would express my gratitude towards the Almighty for
obvious reasons.
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RESEARCH METHODOLOGY

 Method of Research
The researcher has adopted a purely doctrinal method of research. The researcher has
made extensive use of the library at the Chanakya National Law University and also the
internet sources.
 Aims and Objectives
The aim of the project is to present an overview of Trade Unions in India through case
studies and qualified information.

 Scope and Limitations

Though the study of the terms of Trade Unions an immense project and pages can be
written over the topic but due to certain restrictions and limitations the researcher has not
been able to deal with the topic in great detail. The researcher has made a comparative
analysis of the current trends of Trade Unions in India relating to its formation and
importance and not a separate analysis of law in each case.
 Sources of Data:
The following secondary sources of data have been used in the project-
1. Cases
2. Books
3. Websites

 Method of Writing:
The method of writing followed in the course of this research paper is primarily
analytical.
 Mode of Citation
The researcher has followed a uniform mode of citation throughout the course of this
research paper.
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CHAPTER 1:
INTRODUCTION:

Every time a lawyer in his practice comes across an instance in which custom or legislation
leaves anything to the discretion of the court, he is confronted with two series of dicta that are
repeated with but little variation almost as a matter of course. First, there is that group which
decries discretion as the rule of tyranny and would limit it in every possible way. A distinction is
drawn between discretion in the ordinary sense and judicial discretion, which is said to be "legal"
or regulated by rule. On the other hand there are pronouncements not to be neglected to the effect
that discretion involves the very opposite of rule. Impossible as it may be to reconcile these
conflicting statements and the results that they lead to, a great deal of obscurity can be avoided if
we simply attempt to distinguish among the various ideas that lawyers seek to convey, frequently
without consciousness of any ambiguity, by the word "discretion."

Judicial discretion is the power of the judiciary to make some legal decisions according to
their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise
discretion is an aspect of judicial independence. Where appropriate, judicial discretion allows a
judge to decide a legal case or matter within a range of possible decisions.

However, where the exercise of discretion goes beyond constraints set down by legislation,
by binding precedent, or by a constitution, the court may be abusing its discretion and
undermining the rule of law. In that case, the decision of the court may be ultra vires, and may
sometimes be characterized as judicial activism.

Chief Justice John Marshall wrote the following on this subject:

“Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are
the mere instruments of the law, and can will nothing. When they are said to exercise a
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discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course

prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial
power is never exercised for the purpose of giving effect to the will of the judge, always for the
purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”1

1
Osborn V. Bank of the United States, 22 U. S. 738 (1824)
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1.1 Defining Judicial Discretion:

Judicial discretion — the result of its exercise will be referred to herein as a discretionary
decision — is exercised when a judge is granted a power under either statute (‘statutory
discretion’) or common law that requires the judge to choose between several different, but
equally valid, courses of action. As de Smith has stated:

[The] legal concept of discretion implies power to make a choice between alternative courses of
action. If only one course can lawfully be adopted, the decision taken is not the exercise of a
discretion but the performance of a duty. To say that somebody has a discretion presupposes that
there is no uniquely right answer to his problem.2

Discretionary decisions are those where the judge has an area of autonomy, free from strict legal
rules, in which the judge can exercise his or her judgment in relation to the particular
circumstances of the case. As Hawkins has observed, discretion is ‘the space … between legal
rules in which legal actors may exercise choice’.3

In speaking of autonomy and choice, however, it must be acknowledged that the exercise of
discretion is usually limited by guidelines or principles, or by reference to a list of relevant
factors to be considered. While discretion permeates both the common law and many, if not
most, statutory instruments, discretionary powers are never absolute and must also be exercised
within a broader legal and social context. As Schneider has remarked, ‘limitations on discretion
are as inevitable and abundant as the sources of discretion … discretionary decisions are rarely
as unfettered as they look’.4

Discretion of a judge is what swings the pendulum in favor of the right and against the wrong. It
is the discretion and the reason of the person which makes him fit for public office. The ability of

2
SA de Smith and JM Evans (eds), De Smith’s Judicial Review of Administrative Action (4th ed, 1980) 278.
3
Keith Hawkins, ‘The Use of Legal Discretion: Perspectives from Law and Social Science’
in Keith Hawkins (ed), The Uses of Discretion (1992) 11, 11.
4
Schneider, above n 13, 79.
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decide and also the power to decide are the essential ingredients of discretion vested in a judge.5
In a recent reported order the then Chief Justice of the Bombay High Court Justice Swatanter
Kumar (now a judge of the Supreme Court) has, sitting in a Full Bench of the High Court,
explained the concept in the following terms:

Discretion – “Power of the court or arbitrators to decide as they think fit. The word ‘discretion’
connotes necessarily an act of a judicial character, and, as used with reference to discretion
exercised judicially, it implies the absence of a hard and fast rule, and it requires an actual
exercise of judgment and a consideration of the facts and circumstances which are necessary to
make a sound, fair and just determination, and a knowledge of the facts upon which the
discretion may properly operate.”6

‘A discretion’, said Lord Wrenbury, ‘does not empower a man to do what he likes merely
because he is minded to do so, he must in the exercise of his discretion do not what in the
exercise of his discretion do not what he likes but what he ought. In other words, he must, by the
use of his reason, ascertain and follow the course which reason dictates.’7 This approach to
construction has two consequences: the statutory discretion must be truly exercised, and when
exercised it must be exercised reasonably.8 ‘Discretion’, said Lord Mansfield9, ‘when applied to
a court of justice, means sound discretion guided by law. It must be governed by rule, not by
humour, it must not be arbitrary, vague, and fanciful, but legal and regular.’10

Discretion means when it is said that something is to be done within the discretion of the
authorities that something is to be done according to the rules of reason and justice, not
according to private opinion according to law, and not humor. It is to be not arbitrary, vague and
fanciful, but legal and regular.11

When anything is left to any person, Judge or Magistrate to be done according to his discretion,
the law intends that it must be done with sound discretion, and according to law [Tomlin]. In its

5
Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, AIR 2010 Bom 178
6
[ Corpus Juris Secundum, Vol. 27, p. 289 as referred in Aero Trader [P] Ltd. V. Ravinder Kumar Suri, [2004]8 SCC
307: [2004]6 SLT 428, SCC p. 311, para 6 : SLT at p. 430 para 6.]
7
Roberts v. Hopwood 1925 AC 578 : 1925 All ER Rep 24 [HL]
8
[Maxwell]
9
R.v. Wilkes, [1970] 4 Burr 2527 : [15581774] All ER Rep 570 :98 ER 327 [HL]
10
[See Craies on Statute Law, 6th Edn., p. 273.]
11
Rooe’s case [1598] 5 Co Rep 99b, 100a : 77 ER 209
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ordinary meaning, the word signifies unrestrained exercise of choice or will; freedom to act
according to one’s own judgment; unrestrained exercise of will; the liberty of power of acting
without other control than one’s own judgment. But, when applied to public functionaries, it
means a power or right conferred upon them by law, of acting officially in certain circumstances
according to the dictates of their own judgment and conscience, uncontrolled by the judgment or
conscience of others. Discretion is to discern between right and wrong; and therefore whoever
hath power to act at discretion, is bound by the rule of reason and law12.

Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and
prudence, that discernment which enables a person to judge critically of what is correct and
proper united with caution; nice discernment, and judgment directed by circumspection;
deliberate judgment; soundness of judgment; a science or understanding to discern between
falsity and truth between wrong and right, between shadow and substance, between equity and
colorable glosses and pretenses, and not to do according to the will and private affections of
persons.

The very word discretion standing single and unsupported by circumstances signifies
exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste;
evidently therefore a discretion cannot be arbitrary but must be a result of judicial
thinking.13 The word ‘discretion’ in itself implies vigilant circumspection and care; therefore
where the legislature concedes wide discretion it also imposes a heavy responsibility.”14

The discretion of a Court is called judicial discretion and is regulated by well settled principles of
law. The court has to examine the facts and circumstances of the case and keeping in view the
provisions of Order 18 Rule 4 as a whole has to pass an appropriate order and direction whether
cross examination of a witness is to be conducted before the Court or Commissioner appointed
by it. Discretion of the Court cannot be taken away by any interpretative process particularly
when it is unambiguously provided for by the legislature itself.

There is inbuilt element of judicial discretion and deprivement of such a power is

impermissible in light of the scheme of the Code of Civil Procedure and settled canons of law.

12
2 Inst. 56, 298; Tomlin.
13
Lalbhai Tricamlal v. Municipal Commr., Bombay, ILR [1909] 33 Bom 334; 10 Bom LR 821.
14
Ibrahim v. Emperor, AIR 1933 Sind 49 : 34 Cr LJ 591.
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In terms of Section 151 of the Code of Civil Procedure, 1908, inherent powers are vested in
Court by the legislature which necessarily imply exercise of judicial discretion appropriately
and in consonance with the settled precepts.
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CHAPTER 2:
Positions on Judicial Discretion:

2.1 Ronald Dworkin :

Dworkin is concerned with defending the layman's view of a trial, according to which judges
always decide cases by applying established legal standards.15 From the layman's perspective a
legal system is a system of entitlements, so litigants always are entitled, even in so-called "hard"
cases, to the "correct" decision from a judge.16

Dworkin begins by trying to clarify the notion of judicial discretion. He distinguishes two
"weak" senses of discretion from a "strong" sense, which he views as the relevant sense in the
judicial context.17 According to one weak sense, a judge has discretion when his decision is final,
and according to the other weak sense, a judge exercises discretion when he must use judgment
to decide a case. A judge exercises discretion in the strong sense only when his decision is not
"bound," "dictated," or "controlled," by an authoritative legal standard.

The claim that the strong sense is the relevant notion of judicial discretion is not mere stipulation
on Dworkin's part. He offers arguments by analogy to defend this claim.18 The gist of his
arguments can be reconstructed by comparing a judge to a baseball umpire who must call balls
and strikes. The decision of the home plate umpire about whether a particular pitch is a ball or a
strike is final; it cannot be appealed to one of the other members of the umpiring crew. The home
plate umpire often must use his judgment in deciding whether a particular pitch is in the strike
zone because pitches can be fast (90+ mph), can curve, can drop, and can rise. Moreover, his
decisions can be controversial. An especially crucial call may cause Billy Martin to explode out
of the dugout. Dworkin's point, however, is that none of these would lead one to say that a home

15
Dworkin, 'Judicial Discretion,' pp. 624-25.
16
Ibid., p. 636.
17
Dworkin's 'Judicial Discretion,' p. 627,
18
See Dworkin's comparison of Scorer's Discretion, Limited Scorer's Discretion, and Policies in 'Judicial Discretion,'
and pp. 31-33 in Taking Rights Seriously
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plate umpire has discretion in calling balls and strikes. One would say a home plate umpire had
discretion only if he could call balls and strikes arbitrarily. Imagine a game identical to baseball
except that its rules contain no definition of a strike zone. A batter steps to the plate, the pitcher
throws a ball two feet over his head, and the umpire says, "Strike one." The next pitch is right
over the plate and the umpire calls it a ball. The third pitch again is two feet over the batter's
head, but this time the umpire calls it a ball. The fourth pitch, in the dirt, is strike two. In this
game the umpire is exercising discretion in calling balls and strikes because his decisions are not
controlled by any authoritative standards. They are made entirely ad hoc. The basis of Dworkin's
argument is an appeal to how the term "discretion" is used in ordinary language to describe the
decisions of officials.

Given this definition of "discretion", Dworkin's argument against discretion proceeds in four
steps:19

1. There is a distinction between a rule and a principle.

2. Principles in fact are used by judges in justifying their decisions.

3. Principles that have "institutional support" are binding legal standards.

4. The recognition of principles as binding legal standards eliminates discretion in the strong
sense.

This argument is intended to be a criticism of legal positivism. According to Dworkin, a legal

positivist is committed to the view that judges exercise discretion in the strong sense. On
Dworkin's account of legal positivism, a positivist sees the law as consisting of all and only
rules. Thus, when a case arises that cannot be handled by a clear, straightforward application of a
legal rule, the authoritative guidance offered a judge by the legal system "runs out," and a judge's
only recourse is to decide the case through an exercise of discretion in the strong sense.20
Dworkin's response is that a legal system consists of standards other than rules, namely
principles, and because legal principles offer authoritative guidance to judges, judges do not
exercise discretion in the strong sense. It is important to recognize that the disagreement between

19
This is a reconstruction of Dworkin's argument in Chapter 2 in Taking Rights Seriously.
20
Dworkin, Taking Rights Seriously, p. 17
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Dworkin and a legal positivist is not over what judges actually do. They would agree that judges
often use standards other than rules to decide cases. The disagreement is over how to interpret
this fact, and that interpretation will depend on the definition of discretion one uses and on
whether one wants to ascribe legal status to principles. Dworkin argues that a legal positivist
cannot construct a fundamental test for law that will recognize principles21, so that a positivist
must interpret a judge's use of a principles as an appeal to an extra-legal consideration to decide a
case. Because extra-legal considerations are not authoritative legal standards, judges who use
principles to justify decisions must be said to be exercising discretion in the strong sense.

21
Dworkin, Taking Rights Seriously, pp. 39-44.
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2.2 Thomas Perry

Perry understands the discretion issue in terms of the existence of a uniquely correct decision for
a case. As we have seen, however, claims about the existence of uniquely correct decisions can
be interpreted in a variety of ways. What is Perry's view?

Perry adopts a practical approach. He rejects as irrelevant the existence of uniquely correct
decisions merely in principle.
For him the notion of a uniquely correct decision makes sense only if it is practically possible to
identify the uniquely correct decision. This stand leads Perry to a consensus theory of judicial
justification:

If we can say that there is but one legally correct theory and result in a case where logically
applicable norms are in conflict, or where there is serious doubt as to which competing norm
does logically apply, is it not because the great majority of competent and disinterested lawyers
would find a certain argument from principles and policies convincing in that case? If we are to
speak of uniquely correct decisions in such cases, the notion of a consensus of competent
lawyers seems indispensable.22

...by a uniquely correct evaluation... we can only mean the one in which all, or the bulk, of
competent and disinterested lawyers in the field or fields of law concerned would concur. To
sum the matter up, we could only know that a case involving conflicting or doubtfully applicable
legal standards has a uniquely correct result by knowing that the experts do or would agree on
some particular result for that case.

Now, I think it is practically certain that there are many difficult cases on which there would be
no such consensus. If this is so, then it follows that there can be no way to identify the uniquely
correct or best decision in such cases, and that there is very little point in even speaking of such a
decision in such cases.23

22
Thomas D. Perry, 'Judicial Method and the Concept of Reasoning,' Ethics 80 (1969): 5.
23
Ibid., pp. 5-6. For a more recent statement of Perry's view, see Thomas D. Perry, Moral Reasoning and Truth
(Oxford: Clarendon Press, 1976), especially ch. 4
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When no consensus exists, according to Perry, a judge can only adopt the "judicial point of
view" and decide accordingly. The judicial point of view requires a judge to study a case
carefully paying close attention to relevant legal standards and legally significant facts, to be
impartial, to disqualify himself if any conflict of interest exists, and to be sincerely rational.24
The final requirement means a judge "...is not free to reach any result he pleases as long as he is
able to give some legally plausible argument for it," but rather a judge "...must give the decision
that he honestly thinks is best, and reasons which he sincerely regards as the best reasons he is
able to give."25 In such cases the notion of a legally correct decision can mean no more than that
a decision is "not definitely incorrect" and that a judge has conformed to the requirements of the
judicial point of view.26 So what Perry ends up with in cases in which no consensus exists is a
procedural theory of judicial justification. A decision is justified just in case a judge has followed
the required procedure in reaching it.

2.3 Kent Greenawalt:

Greenawalt does two things: he criticizes a view, which he attributes to Dworkin that denies the
existence of discretion, and he suggests an alternative understanding of the discretion issue
according to which judges exercise discretion in deciding some cases. The basis for both is an
appeal to the "ordinary" or "usual" use of the term "discretion”.

Greenawalt sets out the view he criticizes as follows:

In essence, Dworkin deny that a judge has discretion in the strong sense because, they
say, a judge is always under a legal duty to reach that decision which would be reached by a
judge employing the soundest legal theory or which coheres best with authoritative legal
standards. Both believe that in theory there is an objective standard of what is the "soundest
theory of law" or "the decision that coheres best," so there is an ultimate standard of correctness
against which to measure a decision.27

24
Perry, 'Judicial Method and the Concept of Reasoning,' pp. 8-9.
25
Ibid., p. 9.
26
Ibid.
27
Kent Greenawalt, 'Discretion and Judicial Decision’
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Greenawalt criticizes the stance of Dworkin on judicial duty because, he alleges, it is at odds
with ordinary usage of the term "discretion":

The underlying problem with Dworkin's approach is their exclusive emphasis on a duty
of conscientiousness and the possibility of some standard for objectively determining if a
decision is right, and their conclusion that the presence of such a standard imposes a duty to
decide the right way and eliminates discretion in a strong sense. We do not usually speak of
someone as being under a duty to reach a particular decision when we think the grounds of
testing the correctness of that decision so complex that we cannot say with confidence if a
decision is correct, when we do not even know practically how to test correctness and when we
do not think the actor himself has a solid basis for choosing one decision rather than another.28

This criticism misses the mark entirely because it is directed at an oversimplified argument.
Greenawalt takes Dworkin to be arguing that the judicial duty to search for the uniquely correct
decision in every case follows solely from the alleged existence, in principle, of a uniquely
correct decision for every case. And Greenawalt's objection is that the mere theoretical
possibility of a uniquely correct decision is not enough to ground such a judicial duty. What is
required for such a duty, he contends, is the practical possibility of identifying the uniquely
correct decision. But Dworkin does not argue in this way. His argument, is much more
complicated and much more plausible.

Greenawalt's own understanding of discretion relies also on what is practically possible and on
an appeal to ordinary discourse:

...in ordinary discourse the existence of discretion turns on the range of performance that
will be deemed proper by those people to whom the person making decisions is responsible. It
does not turn on the duty of the decision-maker conscientiously to reach the best decision he can
under a standard that may theoretically provide an objectively "right" answer. The presence of a
duty to decide conscientiously and an external standard of correct decision are not sufficient by
themselves to signal the absence of discretion. These conditions are often met for officials with
the most sweeping discretion. In ordinary discourse discretion exists if there is more than one
decision that will be considered proper by those to whom the decision-maker is responsible, and

28
Ibid., p. 374.
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whatever external standards may be applicable either cannot be discovered by the decision-
maker or do not yield clear answers to the questions that must be decided. If I am correct about
ordinary discourse, there is no good reason to use the term "discretion" differently in describing
the responsibilities of judges in legal cases.29

Greenawalt obviously shares Perry's emphasis on the existence of a uniquely correct decision in
practice. I think his appeals to ordinary discourse and to the notion of duty are misleading,
however. Greenawalt's argument from ordinary discourse is not the standard ordinary language
kind of argument, because he offers no empirical evidence about how the ordinary person, the
ordinary lawyer, or the ordinary judge actually use the term "discretion." I am speculating now,
of course, but I think ordinary discourse for him means not what ordinary people actually do say,
but rather what ordinary people would say if they really understood, or should say, or ought to
say. This interpretation is supported by the following passage:

When authoritative standards yield no clear answers, when a judge must rely on
debatable personal assessments to decide a case, and when more than one result will widely be
regarded as a satisfactory fulfillment of his judicial responsibilities then it does not make good
sense to say that a judge is under a duty to reach one result rather than another; as far as the law
is concerned, he has discretion to decide between them.30

In sum, Greenawalt's understanding of judicial discretion is not substantially different from

views considered above. His discussion, and thus his subsequent criticism, of the position of
Sartorius and the later Dworkin is mistaken and can be rectified by turning to an explanation of
this position.

2.4 Holmes:

In "The Path of the Law," Holmes asserts that a judge deciding cases must, of necessity, act as a
legislator since the applicable legal rules cannot conceivably constrain him in the way the
Langdellian conception of law as a system of deductive propositions suggests it does. There is

29
Ibid., p. 368.
30
Ibid., p. 378.
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always some discretionary space (Holmes didn't say always, but his realist followers in the 1930s
did) in which the judge enjoys freedom of movement, freedom to decide that the case before him
calls for the application of one principle or policy-one legislative program-rather than another, a
discretionary space in which the judge's decisional processes are not and cannot be mechanically
predetermined by the applicable rules of law.

The idea that there is an irreducible element of free creativity, of interpretative freedom, in the
adjudicative process which is left over, so to speak, after one has taken account of all the rules
that might conceivably bear on the case at hand is today an idea so familiar, so patently obvious,
that it has lost all of its original power to shock or disturb. Despite its prosaic obviousness,
however, Holmes's characterization of adjudication as a species of legislation gave rise to a
problem that is still very much at the center of our concerns-the problem of how to account for
the legitimacy of adjudication when it is conceived in this new Holmesian light.

If judges are legislators and not adjudicators who are merely applying the rules they have been
authorized to apply in the cases that come before them, what is it that gives their decisions
legitimacy or authority? This is a difficult question, and however obvious the Holmesian view
may seem as a starting point of analysis, it is a question to which we do not yet have a single
confident answer.

2.5 Maurice Rosenberg:

In the judicial context, Rosenberg31 distinguishes between primary discretion and secondary
discretion.32 Primary discretion arises when a decision maker has "a wide range of choice as to
what he decides, free from the constraints which characteristically attach whenever legal rules
enter the decision process."33 Used in this sense, discretion can mean simply that a person has the
authority to decide. Courts, judges, and legal scholars often use the term discretion in this sense,
referring simply to authority to decide, or unconstrained choice. For example, in his dissent in

31
Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 SYRACUSE L.REV. 635 (1971).
32
Rosenberg, supra note 1, at 637
33
Id.
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Heckler v. Day,34 Justice Marshall declared: "Although Congress has delegated to the Secretary
'full power and authority to make rules and regulations and to establish procedures,' 42 U.S.C. §
405(a), that discretion is limited by the requirement that procedures be consistent with the Social
Security Act ...." Presumably, if the discretion had not been limited it would have been
equivalent to the unconstrained authority to decide. Legal scholarship provides another example
of this usage of the term discretion in Professor Westen's statement: "'Discretion' means.., an area
within which the discretion-holder has authority to adopt, or not to adopt, whatever rule he
deems fit."35 When used in this sense, discretion is quintessentially associated with variability of
result, Rosenberg contrasts the primary form of discretion with "the secondary form, [which] has
to do with hierarchical relations among judges."36

The secondary form of discretion

..enters the picture when the system tries to prescribe the degree of finality and authority
a lower court's decision enjoys in the higher courts. Specifically, it comes into full play when the
rules of review accord the lower court's decision an unusual amount of insulation from appellate
revision. In this sense, discretion is a review-restraining concept. It gives the trial judge a right to
be wrong without incurring reversal. 37

In the limiting case, the choice made by a person exercising primary discretion is by definition
the correct choice. The correctness of the choice cannot be attacked because there are no external
criteria on which to base such an attack. When secondary discretion is involved, one can attack
the correctness of a choice, although the authority of the person to make that choice may be
beyond attack. Thus secondary discretion involves the authority to make the wrong decision.

A cynic might contend, however, that Rosenberg's notion of secondary discretion merges with
what he calls primary discretion when an inferior is given the authority to make wrong choices
that cannot be overturned. There is no practical difference between the authority to make
whatever decision one chooses and the authority to make decisions that will be enforced even if

34
467 U.S. 104, 120 (1984) (Marshall, J., dissenting)
35
Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 MICH. L. REV. 604, 642 (1983)
36
Rosenberg, supra note 1, at 637
37
Id.
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they are felt to be wrong. Indeed, primary and secondary discretion do sometimes seem to merge
at the edges, but one clear distinction exists-different types of criticism can be leveled at
decisions made under different types of discretion. Any decision, whether decided under primary
or secondary discretion, can be criticized for such failings as being dumb, stupid, impractical, or
counterproductive. But only decisions made through the exercise of secondary discretion can
additionally be criticized as wrong. Obviously, in a legal context, this distinction assumes that
one can determine the legally correct solution.

2.6 Dworkin vs. Hart:

This debate arises due to the fact that the expression “judicial discretion” is not always used to
mean the same thing. Some authors, as in the case of Dworkin, assume that discretion is always
necessary to adjudication, even though they argue that there is always a correct judicial answer
that judge should identify. Other authors, including Hart, argue that there will always be a
margin for discretion, because, given the open texture of the language, some cases will lack a
correct judicial solution. In addition to the substantive differences that we may identify between
these two legal theories, both employ different understandings of the word “discretion.”

While Dworkin refers to that which is usually called “weak discretion,” and rejects the existence
of “strong discretion”, Hart argues that “strong discretion” cannot be avoided in the application
of the law. It is useful to point out these verbal distinctions and to clarify the two meanings of
“discretion” in order to avoid misunderstandings later. We affirm that a judge has weak
discretion when the identification of law requires a complex intellectual process. Here we
encounter cases whose judicial qualification presents epistemological difficulties. In this way,
despite the existence of a correct solution, to discern which is the course of action demanded by
the law requires the articulation of interpretive arguments. Strong discretion, on the other hand,
is usually defined as the possibility of electing between diverse, permissible courses of action
when no correct judicial answer exists. The judge, in this context, should act like a conscious
 P a g e | 17

legislator, adopting that decision which s/he considers best, according to his own convictions and
preferences.38

38
Iglesias (1999, Ch. I)
 P a g e | 18

CHAPTER 3:
Problems with Judicial Discretion:

The essence of nomocracy, the rule of law, is limitation of the discretion of officials, and
providing a process by which errors or abuse of discretion can be corrected. Some discretion is
unavoidable, because law cannot anticipate every eventuality or how to decide which law may
apply to a given situation. What guidance the law cannot provide is supposed to be provided by
standard principles of justice and due process, reason, and the facts of each case. Ideally,
officials should be mutually consistent and interchangeable, making similar decisions in similar
cases, so that no one can gain an undue advantage by choosing the official or exercising undue
influence on the official or on the process he operates. We trust officials to exercise such
discretion as they have with wisdom, justice, and competence, to avoid government that is
arbitrary, insolent, discriminatory, prejudiced, intrusive and corrupt.

Within the public sector, discretion can be exercised by legislative, executive, or judicial
officials. Within the private sector, discretion may be exercised by private officials, such as
agents, trustees or corporate officers, who are in principle subject to the supervision of the courts.
The focus here is on judicial discretion, and the abuse of it. It will not discuss every area of
judicial discretion.

The first major check on the discretion of judges was the jury. A judge, holding office over the
course of multiple cases, and selected by appointment or election, is susceptible to undue
influence. A jury, chosen by sortation, or lot, for a single case, just before the case, is less likely
to be corrupted, and having multiple jurors render verdicts collectively provides a check by each
on the others. What they might lack in knowledge of the law is offset by their connection to the
non-legal environment in which most people subject to the law must operate.

In courts that try to save time and money by not using juries, such as family courts in some
states, complaints about abuse of judicial discretion have led to calls for juries to decide
questions of custody, visitation, child support, and the distribution of marital property.

Judges who impose lenient sentences, to avoid prison overcrowding and the early release of
violent offenders, often provoke demands for mandatory minimum sentences or sentencing
 P a g e | 19

guidelines that reduce their discretion to do things like impose reduced sentences on defendants
thought to be remorseful or unlikely to commit another offense.

Most complaints of abuse of judicial discretion, and calls to limit it with more laws, concern
questions of policy or equity. But there is another broad category, which concerns constitutional
questions of due process and civil rights. This is too large a field to discuss adequately in a short
article, so only a few of the more important kinds of judicial discretion that are often being
abused will be presented.

3.1 Stare decisis

Stare decisis is the doctrine according to which a judge in a current case treats decisions in past
similar cases as authoritative precedents, and refuses to make the decision in a way that departs
from such precedents, regarding all of them as correctly decided. There is a place for giving
weight to precedents, especially in civil cases and matters of equity, and to clarify ambiguities in
the black letter law, but it is an abuse of judicial discretion to treat precedents as though they are
law, equal or superior to black letter law, especially when that black letter law is a written
constitution. Only the edict, the finding and the order, are law in a judicial decision, and only for
the parties involved. The opinion concerning how the decision was reached may be persuasive
on its merits, and indicative of how the same court might decide a similar case, but it is dictum,
or commentary, not law, and it is an abuse of judicial discretion to fail to exhaust textual analysis
and legislative history before considering precedent, and making sure that the chain of
precedents has not wandered away from the bounds of the black letter law.

3.2 Deference to legislature and administration

While it is appropriate to defer to the legislative and executive branches on questions peculiar to
those branches and their constitutional duties, all too often judges abuse their discretion by so
deferring in cases where officials of those branches have clearly exceeded their authority. This is
sometimes signaled in a decision that declares the matter a "political question". Sometimes it is,
at least in part, but judges have a duty to act where constitutional bounds are clearly exceeded,
and their failure to do so indicates a lack of true judicial independence of the other branches and
the pressures those branches can bring to bear. The result is the Administrative State, the result
of failure to enforce the non-delegation doctrine. Part of the solution may be to select judges
by sortation.
 P a g e | 20

3.3 Habeas corpus and quo warranto

Any person has the right to petition for release of a prisoner if the official holding him does not
prove sufficient authority to do so. A writ of habeas corpus is a subspecies of a writ of quo
warranto, the right to have an official cease or refrain from some action unless he proves
sufficient authority for it. Only the first is explicitly protected in the U.S. Constitution, but the
latter is implied by the due process and non-delegation clauses and amendments. The principle
involved is the presumption that an official lacks authority for an action unless he can prove he
has it, so that a petition for either writ does not imply a right to both oyer (fair hearing)
and terminer (decision on the merits) for the petitioner, but only terminer. The right of oyer
belongs to the respondent for such a petition. If the response is inadequate, or the court does not
have time for oyer, then its duty is to grant the writ. The problem is that judges, especially
federal judges when the respondent is a federal official, are too often failing to act
on habeas petitions, on various pretexts, thereby reversing the presumption in favor of the
official and his actions. Petitions for writs of quo warranto are systematically ignored or
dismissed, sometimes on the grounds of lack of legislative authority, but no legislative authority
is needed. There is no appeal from such inaction. Law provides petitioners only the option of
trying again with another judge, thereby encouraging forum shopping. Complaints of judicial
misconduct for such denial or inaction are also being systematically ignored. This should not
really be called an abuse of judicial discretion because by law a judge has no discretion on
terminer, but it has emerged as a practice that undermines all the other protections of the
Constitution.

3.4 Private prosecution of public rights, Qui tam and ex relatione

There is a right for any person to seek declaratory or injunctive relief against any illegal action
by government officials without having to have been personally injured, but the courts have been
abusing their judicial discretion by denying standing to plaintiffs who cannot prove personal
injury. There is a related right, qui tam, of any person to act in the place of the government, ex.
rel., when the government will not do so, to protect the rights of persons and to enforce the law.

3.5 Contempt & coercive detention

There is no power delegated in the U.S. Constitution for a federal judge to prosecute anyone for
contempt of court, except on federal territory, under Art. I Sec. 8 Cl. 17 or Art. IV Sec. 3 Cl. 2,
 P a g e | 21

or to imprison someone indefinitely to coerce him into doing something. It was anticipated by
the Founders that all federal courthouses would be sited in federal enclaves, but not all of them
are, and the orders and contempt actions are often extended beyond the territorial limits of such
enclaves, where federal courts have no such jurisdiction.

3.6 Absolute immunity

It is appropriate for judges to have a limited immunity from being sued for their judicial
decisions if they are merely the result of error or incompetence. The remedy for that is appeal to
a higher court. The problem is that judges abuse their judicial discretion to protect themselves
and other judges from civil and criminal liability for being unduly influenced, such as by bribery,
intimidation or cronyism.

3.7 Pro se litigants

Instead of accommodating to the lack of legal knowledge of lay persons who either cannot afford
a lawyer, or who don't trust lawyers who are subject to the control of the courts, judges and court
personnel systematically discriminate against litigants who appear pro se or in propria persona,
often dismissing their petitions or motions out of hand, regardless of their merits. That is abuse
of judicial discretion.

3.8 Mens rea defense

In criminal cases, by original constitutional standards, the elements of proof of a criminal charge
are mens rea, actus reus, concurrence, causation, and harm. The first, mens rea, is "criminal
intent", and judges are allowing criminal prosecutions to proceed without proof of it, especially
when the statutes prohibit acts that are malum prohibitum instead of malum in se. In this judges
are aided by abuse of discretion by legislators, but it is still abuse of discretion.
 P a g e | 22

CHAPTER 4:
Judicial Discretion in Indian Courts:

4.1 Section 151, Code of Civil Procedure, 1908:

There is inbuilt element of judicial discretion and deprivement of such a power is impermissible
in light of the scheme of the Code of Civil Procedure and settled canons of law. In terms of
Section 151 of the Code of Civil Procedure, 1908, inherent powers are vested in Court by the
legislature which necessarily imply exercise of judicial discretion appropriately and in
consonance with the settled precepts. Section 151 of the Code of Civil Procedure, reads:

Saving of inherent powers of court:

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of
the court to make such orders as may be necessary for the ends of justice or to prevent abuse of
the process of the court.

Saving clause:

It is a saving clause and only gives legislative recognition of an age-old and well
established principle that every court has inherent power to do that real and substantial justice
between the parties for the administration of’ which alone it exists. It does not confer any
substantive right on parties but is meant to get over the difficulties arising from rules of
procedure.

Section 151 gives no right to a party to make an application. It gives power to the court to pass
such orders as it thinks fit. Section 151 is really intended to prevent courts from being rendered
impotent by any omission in the Code; but it is not intended to override the main enactment of
the law.

The inherent powers are inherent in the court itself and have not been ‘conferred by the Code;
these powers are independent of and in addition to any other powers that the court may exercise
under the Code.
 P a g e | 23

Illustrations:

The court has an inherent power under S. 151, C.P.C.:

(a) To consolidate suits and appeals including appeals to the Supreme Court;

(b) To postpone the hearing of suits pending the decision of a selected action or where some of
the issues are common in another pending suit;

(c) To stay cross-suits on the ground of convenience;

(d) To allow a defense in forma pauperis,

(e) To grant restitution apart from the provisions of S. 144, C.P.C.; Where the court rectifies a
mistake in a decree in the exercise of its inherent powers, it has jurisdiction to order restitution of
any benefit which may have been received wrongly by the persons who were not entitled to such
benefits but for the mistake in the decree;

(f) To add a party or to transpose parties, or where the appeal is filed against dead persons to
allow the appellant to add legal representatives of the deceased as parties in a proper case;

(g) To entertain the application of a third person to be made a party;

(h) To punish summarily by imprisonment for contempt’s of court committed by the publication
of a libel out of court;

(i) To stay the drawing up of the court’s own orders or to suspend their operation, if the
necessities of justice so require;

(j) To stay the carrying out of a preliminary order pending appeal;

(k) To amend decrees by correcting errors in cases not covered by S. 152. The court has an
inherent jurisdiction to rectify its own mistake and to do justice between the parties where
injustice has been done to them due to the mistake of the court;

(1) To restrain by injunction a person from proceeding with a suit in another court;

(m) To vacate an order obtained by fraud practised upon it or by abusing the process of the court;
 P a g e | 24

(n) To set aside an order made ex parte and without notice to the parties to be affected thereby if
a proper case is substantiated;

(o) To remand a suit in a case to which neither Order XLI, Rule 23 nor Order XLI, Rule 25
applies the court, by reason of its inherent jurisdiction, may order remand in cases other than the
case specified in Order XLI, Rule 23, if it is necessary for the ends of justice;

(p) To interfere where its decree is being executed in a manner manifestly at variance with the
purpose and intent of the decree;

(q) To set aside a compromise decree when the court has been misled into recording it by a
statement of the pleader that he was specially authorised to compromise when in fact he was not
so authorised;

(r) To stay a suit even when it does not come within S. 10, C.P.C.;

(s) To apply the principles of res judicata to cases not falling within S. 11 of the Code;

(t) To recall and cancel the court’s invalid orders, etc. The court has jurisdiction under S. 151,
C.P.C., to restore a suit previously dismissed by it if it thinks that such restoration is necessary in
the ends of justice.

A court can entertain an application for restoration of an application dismissed for default under
inherent powers. There is, therefore, no reason to suppose that it cannot restore that also under
S. 151 if it is dismissed for default.

The power which gives the court a discretion to entertain an application must necessarily give
the residuary powers to pass other orders ex debito justitiae. Thus it is not possible to construe an
order dismissing an application which has itself been dismissed for default as an order dismissing
the suit itself so as to be appealable under Order XLIII, Rule 1 (c), C.P.C.

Every court has an inherent power, quite independently of Order VI, Rule 16, C.P.C. to strike out
scandalous matter in any record of proceedings. Under S. 151, the court has power to expunge
scandalous allegations which are irrelevant to the proceedings, even though they are contained in
an affidavit. But the allegations cannot be scandalous when they are relevant.
 P a g e | 25

The court has inherent powers, in order to advance the cause of justice and not to allow justice to
be defeated, to issue orders in the nature of even injunctions. Therefore, it cannot be said that the
court has no power to issue stay of a suit under its inherent powers unless the case clearly falls
within the four corners of Order XXXIX, Rules 1 and 2.

The court has jurisdiction under S. 151, C.P.C. to enquire into an allegation that the defendant
who was shown as minor at the time of the institution of the suit and against whom a preliminary
decree has been passed, was really not a minor but a major at that time, and, therefore, the
preliminary decree passed against him is not binding on him.

In the case of a preliminary decree the court does not become functus officio, but the suit still
continues in that court and if before a final decree is passed, it is brought to the notice of that
court that the preliminary decree was obtained by the plaintiff against a person who is not on the
record, it is certainly open to that court to go into that question and amend its decree.

Statutory recognition of the inherent power of the Court:

The Code of Civil Procedure is not exhaustive and S. 151 does not confer any new
powers but only makes statutory recognition of the inherent power of the court to do certain
things ex debito justitiae (to act as justice demands). It is in the ends of justice to avoid needless
expense and inconvenience to parties. So the court will not refuse relief merely because the
application there for is made under a wrong section or because there is some technical defect.

The abuse of the process of the court may be the result of an act of The court itself (default its
officers) or may be done by the party (misrepresentation). In all such cases the court is
empowered to remedy the wrong.
 P a g e | 26

4.2 Scope of Section 151, CPC:

The scope of Section 151 has been explained by the Supreme Court in several decisions which
was summarised by the Supreme Court itself in the case of K.K. Velusamy v. N. Palanisamy39,
as follow:

(a) Section 151 CPC is not a substantive provision which creates or confers any power or
jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a
necessary corollary for rendering justice in accordance with law, to do what is “right” and undo
what is “wrong”, that is, to do all things necessary to secure the ends of justice and prevent abuse
of its process.

(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if
the Code does not expressly or impliedly cover any particular procedural aspect, the inherent
power can be used to deal with such situation or aspect, if the ends of justice warrant it. The
breadth of such power is coextensive with the need to exercise such power on the facts and
circumstances.

(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise
of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect,
and such provisions either expressly or by necessary implication exhaust the scope of the power
of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power
cannot be invoked in order to cut across the powers conferred by the Code or in a manner
inconsistent with such provisions. In other words the court cannot make use of the special
provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a
court is free to exercise them for the purposes mentioned in Section 151 of the Code when the
matter is not covered by any specific provision in the Code and the exercise of those powers
would not in any way be in conflict with what has been expressly provided in the Code or be
against the intention of the legislature.

39
(2011) 11 SCC 275 (at page 283 in para 12 of SCC)
 P a g e | 27

(e) While exercising the inherent power, the court will be doubly cautious, as there is no
legislative guidance to deal with the procedural situation and the exercise of power depends upon
the discretion and wisdom of the court, and in the facts and circumstances of the case. The
absence of an express provision in the Code and the recognition and saving of the inherent power
of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under Section 151 will have to be used with circumspection and care, only where
it is absolutely necessary, when there is no provision in the Code governing the matter, when the
bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice
and to prevent abuse of process of court.

4.3 Limitations:
The limitations of the inherent power may be noted, In the first place, the court has no inherent
power to do what is prohibited by the Code so as to defeat a statutory provision of the law of the
land. Section 151, C.P.C. does not invest the court with jurisdiction over matters which are
excluded from its cognizance.

Thus no appeal can be allowed from a non-appealable order. Similarly, when once a judgment is
signed it cannot be altered or added to save as provided by S. 152 or on review. In the same way
an ex parte decree cannot be set aside when no case has been made out within the meaning of
Order IX, Rule 13 of the Code.

In the second place, the inherent power is not to be exercised where the applicant has remedy
provided elsewhere in the Code but has neglected to avail himself of it.

In the third place, the inherent power must not be exercised so as to come in conflict with the
general principles of law. The court cannot entertain a suit arising in a place where it has no
jurisdiction, nor can it acting under S. 151 recall its own previous order or hear appeal from its
own judgment except as provided in order to cure a legal defect.

In the fourth place, the inherent powers of the court should not be invoked to circumvent the
mandatory provisions of the Code of Civil Procedure. Independently of the provisions of Order
IX, Rule 13 of the Code of Civil Procedure, under which provision an application for setting
 P a g e | 28

aside an ex parte decree has to be made, the court is not entitled to set aside an ex parte decree
under its inherent powers.

In the fifth place, the inherent power vested in the court is discretionary. The mere fact that there
is remedy will not attract the provisions of S. 151, C.P.C., unless it is necessary for the ends of
justice or to prevent abuse of the process of the court.

In the sixth place, in exercising jurisdiction under its inherent powers, the court is influenced by
the justice of the case in favour of the party who invokes its aid. Where the party has been guilty
of laches or has been negligent in prosecuting his remedy, a court of law would be most reluctant
to exercise its inherent powers in his favour. Equity aids the vigilant and not the indolent.

Lastly, if there be specific provision in the Code, which would meet the necessities of the case,
inherent powers cannot be invoked.

The court is not to invoke its inherent powers under S. 151 for the purpose of impleading the
legal representatives of the deceased respondent if the suit had abated on account of the appellant
not taking appropriate steps within time to bring the legal representatives of the deceased party
on the record and when its application for setting aside the abatement is not allowed on account
of its failure to satisfy the court that there was sufficient cause for not impleading the legal
representatives of the deceased in time and for not applying for the setting aside of the abatement
within time.

It is not permissible to invoke the inherent jurisdiction of the court as defined by S. 151 in cases
where the applicant has his remedy provided elsewhere in the Code and has neglected to avail
himself of it. So also the inherent jurisdiction vested in courts is to be exercised only to further
the ends of justice and not to create complication in a cause by introducing matters, the
adjudication of which may be impossible without reception of additional evidence.

The inherent power of a court is in addition to and complementary to the powers expressly
conferred under the Code. But that power will not be exercised if its existence is inconsistent
with, or comes into conflict with, any of the powers expressly or by necessary implication
conferred by the other provisions of the Code.
 P a g e | 29

Under the inherent power of courts recognised by S. 151, C.P.C., a court has not power to do that
which is prohibited by the Code. Inherent jurisdiction of the court must be exercised subject to
the rule that if the Code does contain specific provisions which would meet the necessities of the
case such provisions should be followed and inherent jurisdiction should not be invoked.

In other words, the Court cannot make use of the special provisions of S. 151 of the Code where
a party had his remedy provided elsewhere in the Code and he neglects to avail himself of the
same. Further, the power under S. 151 of the Code cannot be exercised as an appellate power.

Where a compromise decree was challenged and S. 151, C.P.C. was invoked on the ground that
the compromise decree was defective as the parties did not sign the compromise or that the terms
of the compromise were vague or uncertain, it was held that the petition invoking inherent
powers under S. 151 was not maintainable and the proper remedy is to prefer an appeal.

4.4 Judicial Discretion in Indian Legislation:

Section 311 of CrPC: Power to summon material witness, or examine person present.

Any court may, at any stage of any inquiry, trial or other proceeding under this Code,
summon any person it’s a witness, or examine any person in attendance, though not summoned
as a witness, or recall and re-examine any person already examined; and the court shall summon
and examine or recall and re-examine any such person if his evidence appears to it to be essential
to the just decision of the case.

Section 427 of CrPC: Sentence on offender already sentenced for another offence

When a person already undergoing a sentence of imprisonment is sentenced on a

subsequent conviction to imprisonment or imprisonment for life, such imprisonment or
imprisonment for life shall commence at the expiration of the imprisonment to which he has
been previously sentenced, unless the Court directs that the subsequent sentence shall run
concurrently with such previous sentence
Recent Case: Shakti Mill case
 P a g e | 30

Section 125 CrPC: In the matters involving 'maintenance'

The court has discretion to award maintenance from date of filing of divorce petition or
from date of application for maintenance or from date of passing order of maintenance.40

Section 437-438 of CrPC: In the matters regarding 'bail'..

Order 18 Rule 4: Recording of evidence by Commissioner:

(1) In every case, the evidence of a witness of his examination-in-chief shall be given by affidavit and copies
thereof shall be supplied to the opposite party by the party who calls him for evidence.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence
(examination-in-chief) by affidavit has been furnished to the court shall be taken orally by a Commissioner
to be appointed by the court from amongst the panel of Commissioners prepared for this purpose on the
same day:

Provided that, in the interest of justice and for reasons to be recorded in writing, the court may direct that
the evidence of any witness shall be recorded by the court in the presence and under the personal direction
and superintendence of the judge.

(3) The Commissioner shall be paid such sum for recording of evidence as may be prescribed by the High
Court.

(4) The amount payable to the Commissioner under sub-rule (3) shall be paid by the Court or by the parties
summoning the witness as may be prescribed by the High Court.

(5) The District Judge shall prepare a panel of Commissioners to record the evidence under this rule.

(6) The Commissioner shall record evidence either in writing or mechanically in his presence and shall
make a memorandum which shall be signed by him and the witnesses and submit the same to the court
appointing such Commissioner.

(7) Where any question put to a witness is objected by a party or his pleader and the Commissioner allows
the same to be put, the Commissioner shall take down the question together with his decision.

40
Jaspal Singh v. Harjinder Kaur, (2010) 86 AIC 828 (P&H);
Balbir Singh v. Amarjeet Singh, (1990) 2 CLJ 206;
Padma Vishnu v. Vishnu, (1995) 2 CCC 515 (Guj).
 P a g e | 31

4.5 Landmark cases:

4.5.1 Ghuznavi v. Allahabad Bank Ltd:

The exercise of such inherent power can only be invoked where the court is satisfied that the
provisions of the Code are not sufficient to meet the exigencies of the case: Justice Asutosh
Mukherjee in the case of Ghuznavi v. Allahabad Bank Ltd)

4.5.2 Hukum Chand v. Kamalanand Singh:

Justice Woodroff in Hukum Chand v. Kamalanand Singh, observed with reference to the
applicability of S. 151 of the Code:

“I am not aware of any authority which has laid down that the Code of Civil Procedure is
exhaustive. The essence of a Code no doubt is to be exhaustive on the matters in respect of which
it declares the law, on any point specifically dealt with by it. In respect of such matters the court
cannot disregard or go outside the letters of the enactment according to its true construction.”

The Code does not affect the power and duty of a court where no specific rule exists to act
according to justice, equity and good conscience, though in exercise of such power it must be
careful to see that its decision is based on the sound general principles and is not in conflict with
them or the intention of the Legislature.

“The court has, therefore, in many cases where the circumstances require it acted upon the
assumption of the possession of an inherent power to act ex debito justitiae and to do that real
and substantial justice for the administration of which alone it exists.”

It has, therefore, to be noted that the Code is not exhaustive and in matters with which it does not
deal the court will exercise an inherent jurisdiction to do justice between the parties as warranted
under the circumstances and which the necessities of the case require.

4.5.3 Lalta Prasad v. Ram Kawar:

The words “ends of justice” in Section 151, wide as they are, do not mean vague and
indeterminate notions of justice, but justice according to the statutes and laws of the land. They
cannot mean that express provisions of the statute can be overridden at the dictates of what one
 P a g e | 32

might by private emotion or arbitrary preference call or conceive to be justice between the
parties.

Section 151, C.P.C., gives statutory recognition to the inherent power of the court to make such
orders as may be necessary for the ends of justice, and in the absence of any specific law to the
contrary the court is entitled to exercise this power.

Indeed, to recall and cancel an invalid order, or an order passed inadvertently or by oversight, is
not simply permitted but is the duty of the court, which should always be vigilant not to allow
any act of itself or any mistake of counsel to do wrong to the suitor.

How exactly the error has occurred is irrelevant, nor for the revocation of an erroneous order any
cause other than the irregularity of the order itself need be considered. A mere mistake of law is
normally not a sufficient ground for correcting a wrong order, but if the mistake is an obvious
one due to failure to notice a particular piece of legislation the court has the power to make the
necessary correction and should not be hesitant in exercising that power. As to the aggrieved
party, it has a right to choose between approaching the court itself under Section 151 and going
to the court of appeal (assuming of course that an appeal is maintainable).

The High Court does possess the power to recall and correct an invalid or manifestly erroneous
order passed by it in the exercise of its jurisdiction under Art. 226 of the Constitution in respect
of the enforcement or vindication of civil rights. So far as the Allahabad High Court is concerned
this power is derived not from Section 114 and Order XLVII but from Section 151 of the Code
of Civil Procedure.

There is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the
power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors committed by it..

4.5.4 Padam Sen v. The State of Uttar Pradesh:

It has been held by their lordships of the Supreme Court in Padam Sen v. The State of Uttar
Pradesh, that the inherent powers of the court are in addition to the powers specifically conferred
on the court by the Code.
 P a g e | 33

They are complementary to those powers and therefore it must be held that the court is free to
exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those
powers is not in any way in conflict with what has been expressly provided in the Code or
against the intentions of the Legislature. It is also well recognised that the inherent power is not
to be exercised in a manner which will be contrary to or different from the procedure expressly
provided in the Code.
 P a g e | 34

CHAPTER 5:
Conclusion:

Judicial Discretion is liberty or privilege allowed to a judge, within the confines of right and
justice, but independent of narrow and unbending rules of positive law, to decide and act in
accordance with what is fair, equitable, and wholesome, as determined upon the
peculiar circumstances of the case, and as discerned by his personal wisdom and experience,
guided by the spirit, principles, and analogies of the law.

Since laws are general rules, they cannot regulate for all times to come so as to make express
provision against all inconveniences, which are infinite in number, and to foresee all cases that
may possibly happen with a view to providing a remedy. A Code however wisely framed cannot
make express provisions against all contingencies and for all times. The purpose of the law is to
secure the ends of justice.

The laws are not ends in themselves but are only a means for securing justice. If the ordinary
rules of procedure results in injustice in any case and there is no other remedy, it is the duty of
the court to override those rules for achieving the ends of justice.

Some authors, as in the case of Dworkin, assume that discretion is always necessary to
adjudication, even though they argue that there is always a correct judicial answer that judge
should identify. Other authors, including Hart, argue that there will always be a margin for
discretion, because, given the open texture of the language, some cases will lack a correct
judicial solution and be dependent on the discretion of the decider.

Using discretion does help the judges in deciding the cases for which there are no precedents, but
it can also be subjected to abuse by the same judges who are considered to be the harbingers of
justice.
An abuse of discretion occurs when a decision is not an acceptable alternative. The decision may
be unacceptable because it islogically unsound, because it is Arbitrary and clearly not supported
by the facts at hand, or because it is explicitly prohibited bya statute or Rule of Law.
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It may seems that judicial discretion is an activity that avoids the function of the application of
law, and that the rule of law loses strength if the possibility of discretion is not minimized. But
we must not confound the problem of discretion with that of judicial disobedience of the law.
Although both problems have important consequences for the survival of the rule of law,
discretion, unlike disobedience, is related to the limits of the law which guide conduct, and with
the judicial obligation to render a verdict in any case.

Some fact discretion is unavoidable, since judges necessarily have to decide which witness
accounts to trust. also recognizes that fact discretion creates significant leeway for the expression
of judicial preferences, which derive from political, social, or economic views or even from a
judge’s career concerns. Such expression need not be conscious or unethical. Judges may
unconsciously interpret the evidence, or disregard some inconvenient truths, through the lens of
their experiences, beliefs, or ideologies or perhaps even something as mundane as attitudes
toward specific litigants or lawyers

Judicial discretion does have limits—generally imposed, firstly, by each judge’s own values and
philosophy and, secondly, by appellate courts. In certain cases, luck is needed to be granted
appellate review for an abuse of discretion. And one can’t know all of what goes into a court’s
decision.
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BIBLIOGRAPHY

BOOKS:

 Hawkins, K. (1992), “Using Judicial Discretion”, in Hawkins, K. (ed.), The Uses of

Discretion, Clarendon Press, Oxford
 Gelsthorpe, Loraine and Padfield, Nicola. Exercising Discretion: Decision-making in the
criminal justice system and beyond (Willan Publishing 2003).
 Rosenberg, Judicial Discretion of the Trial Court
 Keith Hawkins, ‘The Use of Legal Discretion: Perspectives from Law and Social
Science’
 Dworkin, 'Judicial Discretion,'
 Dworkin, 'Taking Rights Seriously'
 Thomas D. Perry, 'Judicial Method and the Concept of Reasoning,' Ethics 80 (1969)
 Kent Greenawalt, 'Discretion and Judicial Decision’

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