In the second of this two-part series, Senior Advocate Aditya Sondhi speaks about his stint as Additional Advocate General for Karnataka, important cases that have come up before the courts in the recent past, and more.
Edited excerpts follow.
[Watch the video]
Read Part I of the interview here.
Debayan Roy (DR): You served as Additional Advocate General for the State of Karnataka from 2016 to 2018. How was that experience?
Aditya Sondhi (AS): It was a completely new and good learning experience. Though I’d done some cases from time to time as special counsel for the government, I had never been a government advocate at any point; I had been on the private side. So, the Additional AG position gave me a perspective of litigation through the State.
DR: How does an AAG maintain a balance between espousing the cause of the state government and being true to the Constitutional framework?
AS: It’s not difficult. In the discharge of my functions as the Additional AG, I hardly ever felt interference from the government. There were a couple of sharp cases that I had to call out privately of course. This also ties up with your other question, that if you try to build a reputation as being upright, people also respect it. I think it’s a tough pill but a good pill to swallow, because people then begin to take you seriously also. They may leave you alone. They begin to understand that you are beyond influence or pressure.
What is our position in court ultimately? It’s to argue a position of the law, to be fair to the court. Whether I’m for the government or a private party as a senior, I am an officer of the court. It’s slightly more difficult when you’re with the government, as some positions are indefensible.
But that said, courts also look to you for your fairness, and that’s where you also become creative with your arguments. Nothing is black and white in the law; if you have latitude to argue legally, by all means, do it. To be honest, I didn’t find that task difficult.
There were many cases that I had to tell the officers who had come to see me that something was not kosher. And I would say, to their credit, when the court asked them to have a relook at it, in many cases they would. Frankly, from my experience, except for the cases which are politically sensitive, where a line is drawn and it’s all or nothing, in a lot of government litigation which involves policy, executive orders, challenges to legislation etc, I have found the officers to be reasonably flexible. This means that from revising cases to even accepting some orders of the court, I found it to be refreshingly straight and fair.
DR: Did you face any difficulties as an AAG?
AS: I think the way governments are historically structured to work with counsel, especially senior counsel, needs a relook.
By that, I mean that even if you are an Additional AG, you’re still a senior counsel, and the protocols and restrictions that go with a senior remain. You can’t directly appear, you still need an instructing counsel, you don’t draft. Maybe you will meet officers with your instructing counsel, but you don’t hang up your senior gown because you’re the AG or the Additional AG.
A lot of those protocols that the private side knows, I don’t think the government side is fully sensitive to. And at times, they think that the AG is basically a government advocate that is expected to go out to argue that issue or conduct the matter in that form. I think that the calibrated role of the senior counsel needs to be understood.
I think the government has to be a far better paymaster, because after I left a private practice to go to the government side, I have exorbitant fee memos pending with the government after 4 or 5 years. These little things matter.
DR: What is the reason behind the pending fees?
AS: These are inbuilt systems - what you call red tape, what you call apathy, and sometimes, even distrust. In the two years that I was in office, I remember that sometimes, the salaries of government advocates were not released for 2-3 months. I have to say that’s a far more difficult outcome, because as the AG you can still do private work, though obviously not against the government. But think of the government advocates who have completely given up private practice.
As a government advocate you can’t do any outside work and you are allotted a court and it’s not like you have free time to have the latitude to go out and make any professional income. For you, as a government advocate, that salary you’re getting from the government is extremely important. Now if you’re going to withhold that for 2-3 months, is it not going to affect the efficiency and the motivation? And we saw that we had to deal with these practical problems. Then people ask you why the government loses cases in court. It’s for these reasons, because at the end of the day, the government, unlike a private litigant, is not directly affected.
In important matters, big ticket matters, politically sensitive matters, the government will be interested right up to the top. But these cases are few and far between. What about the everyday cases in court? The government is the biggest litigant right? Now there is that involvement that you see from a private party you don’t see with the government. Then it’s left to the subjectivity of the officers concerned. I told you about the good secretaries, the officers who are quick on the uptake, quick on the turnaround. That’s where you really see the wheels turning. But that wasn’t every case.
DR: Is this a pan-India problem?
AS: I can't say from experience because I haven’t served anywhere else. But from my sense, I can say that this is structurally an issue everywhere.
DR: Do you hope that the fees will be released soon?
AS: Of course I do. Again, it’s a matter of principle. You’ve done that work, you’ve earned that fee.
DR: Moving on to some important cases that have come up before the courts recently. While some have lauded the Supreme Court for keeping Section 124A of the IPC in abeyance, others are of the opinion that the Court should have struck it down from the statute books. Where do you stand on this debate?
AS: I do think that it has been a grossly misused provision. I don’t think that there is any doubt about it across governments - state or Centre. The Supreme Court striking it down is a slightly tall ask, because that means a final speaking order of the Supreme Court, after considering the contentions of everyone concerned and the keeping in view the judgments on the point which were already heard. I don’t think that is something one could have expected.
Keeping it in abeyance is effectively a form of staying it, and that in itself, in a matter where constitutionality is in question, is a rarity. As you know, in the stay of a provision, there is a presumption of constitutionality, and the Supreme Court has said that you don’t stay a statutory provision like you stay a government order, because it has a certain presumption and a certain legal sanctity that goes with it ,and it is only when that higher threshold is passed that the court finds that a provision is prima facie unconstitutional, violative of Part III of the Constitution, etc.
I do think it’s a start. Could the order have been stronger? What happens to those who have been denied bail? Will their bail petitions be considered? What happens to the delay in the trial in that case? Those are some of the problems that counsel are facing in these matters. But honestly, we would rather have this order than not. In the circumstances, I welcome it.
DR: Of late, there has been a proliferation of litigation related to religious issues. Do you think the court is the right arena to resolve these matters?
AS: That is a deep issue, because it takes you into the very volatile interplay between the powers of judicial review, the existing jurisprudence, the sentiments of people, and most importantly, the difficulty to arrive at the principles of a religion, whether they are regarded as being central and core to the religion or not, because every religion has its own style of conveying these principles. That’s a start.
I’m a part of the Hijab case, on whether the Hijab itself is central to Islam. There are many views on it, because scriptures themselves are prone to being interpreted in different ways. What then of religions where there is no scripture, and they are based on customs and traditions? I do believe that at some point, the Supreme Court is going to have to lay out a broad set of principles as to how far you can go into the matters of religious interpretation, because courts can’t rationalise religions. That is certainly not the purpose of courts.
Even if the courts believe that it is not part of a religion or does not appeal to your liberal or everyday sense of fairness, not everything can be struck down by decrees of court, because it involves matters of history, precedent, faith, social sensitivity and social harmony. Therefore, I believe that judicial restraint in the matters of religious interpretation should be the way till the time we arrive at a point where we know what those parameters are.
DR: With reference to the Hijab case, to what extent can the state affect someone’s choice to practice their religion?
AS: There are of course sharp cases, like female genital mutilation. Those are instances where there was overt bodily violation, so they’re not difficult to answer. What’s difficult are the issues that lie in the grey areas, like Sabarimala and Hijab. The position taken in the High Court and the SLPs that have been filed is that it’s not a purely religious issue at all, it is also a matter of autonomy, of privacy, of expression, of gender identity. Once you get into that realm, the next question is, who else is affected by it? if there is no overlap, then I think the intersection of rights in a case is far broader, it goes far beyond a purely religious issue.
Maybe if you’re looking even at the Ayodhya case and Gyanvapi, there are many layers there. Questions arise if these are civil rights issues, property disputes or they go far beyond them. When can you raise these issues? To what extent does the law of limitation come in? To what extent does the law of pleadings and cause of action arise? I think this is where the law will be tested. In matters of religion, unless there is an over-violation, I don't think the courts should get into the issue of trying to rationalise religion.
DR: Do we need a better yardstick than the Essential Religious Practices test to determine the validity of religious practices?
AS: So that's a difficult question, in the sense that the essential religious test itself has lacunae. There is a good deal of writing and scholarship around it. I'll tell you this is a very difficult process; ascertaining what an essential religious practice itself is, is a difficult task. From the Hijab case, if you see the judgement, there is a paragraph which says "this was the material before us and we have to proceed on that basis".
But then if courts are deciding something that is essential to a religion, and dive into the sentiments of the people, then it can't be adversarial, right? You can't say this is all the counsel argued before me. Then in that case, you need to go much further, you need amicus curiae. I'm saying this not only about Hijab, but as a principle. You need amicus curiae from the Bar because many of these cases come with political baggage on both sides. So, even from that perspective, you need one's neutral and legal perspective in all fairness. Secondly, you need expert evidence.
There was an article I was reading recently about the need for greater reliance on expert views. I think this would be a classic example, that if this is the principle we follow, then let us lay down how we arrive at it. You need to be able to then have scholars and professors of theology deposing before you on affidavit.