The second issue is this. Often judicial interventions, unless disciplined by a law and carefully crafted, produce worse outcomes. In some ways judicial policy-making magnifies rather than corrects for the deficiencies of executive policy-making. The fiasco over admission policies in Delhi schools is a case in point, where our honourable judges did not pay due attention to how incentives operate under different regimes, what the connection between cause and effect is in producing desired outcomes. Ad hominem interventions, based on nothing more than confidence in the judges’ good intentions, are no substitute for a policy-making process.

Third, the more capacious judicial intervention becomes, the more the judiciary will undermine its own authority. If much of what the judiciary does becomes more like discretionary and arbitrary exercise of policy choices rather than enforcement of the rule of law, the whole integrity of law is undermined. What remains of the central elements of the rule of law: consistency, predictability, integrity, constitutional morality and proper authorisation?

Fourth, John Selden once remarked that we see that “judges look like lions but we do not see what moves them”. This remark can be variously interpreted. At its most cynical, it refers to the extraneous considerations that may drive judges. The extent of corruption in the system is debatable, but the judiciary should worry about the perception that there is corruption; and the more arbitrary the conduct of judges, the more this perception grows. But more jurisprudentially, it is becoming less and less clear what canons of judicial reasoning drive judicial interventions. What are the philosophies of constitutional interpretation that judges bring to bear upon their reasoning? In many instances, what seems to be driving judges is what I elsewhere called the jurisprudence of exasperation. Judges are often exasperated at the world, the executive, and sometimes even society. Their legal interventions and observations are an expression of this exasperation rather than carefully thought-out arguments based on the law’s possibilities and limits. The point about hanging a few people from the lamp posts is a perfect example of that.

... contd.