3 vs. 2

It was many years ago when Antonin Scalia was a recent entrant to the club of US Supreme Court justices club, I had the opportunity to hear him. While he must have mentioned many things, one thing stuck in my mind. If someone called you a liberal, ask how he reckons thus. If he says you are a conservative, repeat the question.

What I learnt that day was one man’s liberal ideas may be someone else’s ideas of arch conservatism. Though I can cite examples, I prefer not to.

Whether you are a conservative or a liberal, it all depends on the frame of reference that is used in tagging, either the persons or ideas.

Having said the above, now, true to form and without justifications of any kind, I am going to say that the bench of 3 justices (Justices Sathasivam, R Gogoi and S K Singh who decided the Chauhan case) is a liberal set as compared to the 2 judge bench of Justices Singhvi and Mukhopadhyay that pronounced on the Kaushal  case.

There is some self-interest in such a declaration. I like to be tagged a liberal. I hated the verdict in the Kaushal case and embraced wholeheartedly the decision in the Chauhan case. Not being a legal eagle, I am going by my gut feelings, and also my unassailable stand that death penalty is a blot on civilization.

I am not going to expound on personal liberty and such because it will come back to me viciously – what do you say about an unelected body effectively annulling an existing law, as in the case of the Delhi High Court verdict in the NAZ Foundation case.

Likewise, if someone chose to point out that in our Constitution there is no limit on the time the executive can take to decide on the mercy petitions, I will be left high and dry. In both the cases one has to dig deeper into the Constitution, and indeed into the process through which it was framed, the discussions it entailed and other matters including precedence. I am ill equipped to do that.

Therefore, I go with an unsubstantiable assertion that 3 is more liberal than 2. I am liberal therefore what I like is liberal. But, merely to make my life miserable, in short order it may happen that a 2 judge bench will deliver, in common parlance, a “liberal” judgment and a 3 judge bench, a “conservative” one. Then, my judgment will be that 2 is liberal and 3 is conservative.

The justification is my frame of reference is I am a liberal and the verdicts I like – given by 2 or 3 judge benches it does not matter – are liberal. The judgments I do not like are conservative. So simple. I thank Scalia with this “light bulb” of an idea, a mere flick of a switch.

Raghuram Ekambaram