The Constitution of India, like most corresponding basic documents of governance in other countries, as indeed the unique unwritten Constitution of United Kingdom, holds the key to our collective understanding of how we, as a people, have agreed to conduct the affairs of our nation. In another sense it reflects the fundamental tests of right and wrong in our public and personal conduct in society. In a similar manner, an unwritten moral code of conduct applies a test of standards to our social behaviour. Yet we are told that law and morality must indeed be kept apart in modern social systems, although there is considerable overlap and mutual influence between the two. But what the constitutional code means and how it is to be applied in diverse, often unexpected or unpredictable, situations is an important dimension of the binding principles of the code. In the common law world, this decision is left to the wisdom of judges with the theoretical restriction imposed by parliamentary supremacy in the British system, and some continuing debates in other jurisdictions that also subscribe to the separation of powers. The mind of a judge, therefore, is critical for our understanding of law and the role assigned to, or perhaps assumed by, judges in having the last word. This was felicitously declared by a chief justice of the Supreme Court of India to be ‘Supreme but not infallible’. In arriving at that final view of law, how does a judge deal with the hard case, which does not have an easy answer according to the normal rules of judicial decision-making? The answer lies in theories of adjudication as applied to our experience.
In studying judicial behaviour, the materials most readily available are the judgments of courts, but it is only seldom that they discuss judicial attitudes and methods of decision-making. Periodically, significant insights are made available in extra-judicial lectures and a few biographies, so much insight comes ‘after the fact’. The concept of functus officio is familiar to judicial decision-making. But one wonders what to make of judges, after they laying down office, publicly reflecting upon the judgments they pronounced during their tenure on the bench. This is particularly challenging if the reflection is in the nature of doubt or an admission of a mistake.