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As Scalia Said

There is much to be learnt from his fierce commitment to upholding free speech.

Written by Arghya Sengupta |
Updated: February 17, 2016 12:02:12 am
FILE - In this Wednesday, April 7, 2004 file photo, U.S. Supreme Court Justice Antonin Scalia speaks to Presbyterian Christian High School students in Hattiesburg, Miss. On Saturday, Feb. 13, 2016, the U.S. Marshals Service confirmed that Scalia has died at the age of 79. (Gavin Averill/The Hattiesburg American via AP) (Fila Photo) Antonin Scalia. (Source: AP)

Writing in dissent against the majority opinion of the US Supreme Court in Obergefell vs Hodges, legalising gay marriage by judicial pronouncement, Justice Antonin Scalia, who died on Saturday, encapsulated his judicial philosophy in a single sentence: “And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: No social transformation without representation.”

Scalia fiercely criticised judicial excess — activist interpretations of the constitution that had little basis in text or the original intent of its framers. To him, whether homosexuality was amoral was not the question before the court. Instead, it was a more limited inquiry — whether the court could imbibe changing social mores and interpret the constitution in a manner that furthered social transformation or should defer to popularly elected legislatures to do so. In some sense, this seemingly limited inquiry was more expansive — it was an inquiry about the nature of democracy in America itself. And Scalia’s answer was clear — the protection of democracy is not the dominant preserve of nine intelligent, rational judges; it is instead the primary prerogative of millions of rambunctious Americans whom the constitution compendiously refers to as the People. He leaves an imperfect legacy, but one that is of direct relevance to India today.

The Supreme Court of India is facing a significant pendency crisis. As of February 2015, there were 61,300 cases pending. A staggering 81,583 fresh cases were filed in 2014. While there are many reasons underlying such docket explosion, this is a crisis largely of the court’s own making. Contrary to the intent of the framers of the Constitution, the discretionary jurisdiction of the court to grant “special leave”, widely considered as being used sparingly, is actually entertained and taken up in a significant 43 per cent of cases. This is in comparison to 2.8 per cent in the US Supreme Court.

Equally, in several matters involving pure questions of policy and governance, our SC has been at the forefront, echoing popular sentiment and urging recalcitrant governments to do their job. Banning diesel cars in Delhi, industries in Agra and laying down guidelines for intercountry adoption are a few examples of courts acting beyond their sphere of legitimacy.

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The urge to do justice in such cases is understandable. Scalia understood it too. However, the reason not to intervene in matters of policy as well as grant special leave excessively has less to do with the separation of powers and more with preserving the legitimacy of the judicial institution itself. As Scalia wrote in Obergefell, “With each decision of ours that takes from the people a question properly left to them… we move one step closer to being reminded of our impotence.”

When applied to our SC, these words are prophetic. Restraint is necessary not because other organs should be allowed to do their own jobs. It is essential to preserve the institutional legitimacy of the court. And little could hurt its legitimacy more than the growing spectre of unenforced orders and the crystallisation of an incipient murmur that the court is so clogged with cases that it isn’t worth the trouble.

A key majority vote through which Scalia upheld the institutional legitimacy of the US Supreme Court was by holding unconstitutional a Texas law that made burning the American flag an offence. Upholding the constitutional right to free expression without prior restraint and extending its protection to burning the American flag, he later remarked on his predicament, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag… But I am not king.”


For a classic conservative justice whose ideological views placed him squarely in the political rightwing of the court and society, Scalia’s upholding of free expression, no matter how unpalatable the views expressed, is particularly relevant in India today.

Undoubtedly, several sentiments expressed in JNU in the last few days supporting Afzal Guru and chanting for the downfall of India are worthy of denunciation. But as Scalia said, we are not living in empires where the government can make up the law as it goes along and judges uphold governmental will. There is something to be learnt from Scalia — that seemingly seditious free speech is not illegal, no matter how objectionable it might be.

Scalia is testimony to the possibility of a rightwing politics that is deeply ideological, yet ready for civil debate with opponents, patriotic without being insecure. At the same time, he represents an erstwhile dominant strand in judicial philosophy in India, near-completely eclipsed today, of judges who believe in Indian democracy, warts and all, over their own zeal and good intentions in making the polity more enlightened.


Scalia’s richly complex judicial career has much that our judges and opinion-makers can reflect on, in what are trying times for politics and courts in India.

The writer is research director, Vidhi Centre for Legal Policy, New Delhi

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First published on: 17-02-2016 at 12:02:09 am
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