Aditya Prasanna Bhattacharya & Binit Agrawal speak with Senior Advocate Dr. Aditya Sondhi in an exclusive interview for LSPR.

Dr. Aditya Sondhi is a Senior Advocate practicing before the High Court of Karnataka and the Supreme Court of India. In the past he has served as an Additional Advocate General of Karnataka. He is an alumnus of NLSIU and has taught various subjects, including Constitutional Law, Company Law, Professional Ethics and Arbitration at his alma mater. He also holds a Ph.D Degree in Political Science, and is renowned for his talks and articles.

In this exclusive interview, LSPR asked Dr. Sondhi a series of questions ranging from the functioning of the Collegium to the ethics of representation, and from the politicisation of the SC to the GST Council’s Kerala flood cess.

1

LSPR: In light of recent decisions like Manohar Lal Sharma v. Narendra Modi, the question of appreciation of evidence in Writ Petition cases has become the topic of heated debate. Do you think some general guidelines imported from evidence law are the need of the hour, especially in cases where there are a competing set of facts presented by a petitioner and the State?

Aditya Sondhi: It is a fairly well-settled principle that constitutional courts, while deciding writ petitions under Articles 32 and 226, would refrain from entering into a fact-finding exercise, particularly where there exist serious disputes requiring proof of documents and detailed oral evidence. In such cases, parties are ordinarily relegated to the jurisdictional trial courts / tribunals. Importing principles from evidence law pre-supposes the courts recording evidence in a sui generis manner, which is normally not done. The problem arises in the rare cases where courts in writ proceedings summarily deal with factual aspects and arrive at binding conclusions, without the opportunity of cross-examination or any linear method of trial (as contemplated under the Evidence Act and the Code of Civil / Criminal Procedure). Here, natural justice is impinged in that the affected party is denied a right to lead evidence or impeach the evidence of the other side.

In the Rafale case, the Supreme Court in fact refused to enter into any ‘roving enquiry’ or examination into matters of technical feasibility, concluding that the views of the court were from a ‘standpoint of exercise of jurisdiction under Article 32 of the Constitution’, which was invoked by the petitioners therein. The order hence, neither appreciates evidence (as does a trial court) nor precludes other legal proceedings that could entail presentation of evidence. The ‘heated debate’ is really, therefore, not really one that should detain lawyers for too long.

2

LSPR: On a related note, there has been a recent burgeoning of sealed cover jurisprudence in the Supreme Court. Do you think this erodes the status of the Court as a body imparting open justice, or is this an inevitable characteristic of cases which involve sensitive matters like national security?

Aditya Sondhi: ‘(A) recent burgeoning of sealed cover jurisprudence’ is an over-statement. It is not uncommon for writ courts to receive material on record in sealed covers, for instance in matters involving (alleged) national security, trade secrets or other just exceptions as recognized in law. So also, in cases where, say, a charge sheet in a sensitive matter is yet to be filed and the court wants to satisfy itself as to the progress being made by the investigating agencies. Almost always, such information is received not to make adverse findings at the back of a party, but to satisfy the conscience of the court on the process involved in the matter. Writ petitions are not a short-cut to get over embargoes in other legislation that prevent disclosure of information (the RTI Act, for example) or otherwise protect privileged information (section 126, Evidence Act, for example). I have appeared in cases (for petitioners) where the court has asked for files in a sealed cover where enforcement / intelligence agencies have pleaded national security to withhold the same, and consequently granted relief based thereon. This process can often serve the cause of justice as it enables material to be seen by the court, which may often see through it. Equally, it avoids bona fide sensitive material from being circulated publicly. It is only in cases where adverse findings are made at the back of a party based on such material contained in sealed covers, leading to stigma and / or infringement of rights that the process is avoidable. In such cases, it is apposite that the court simply refuses to exercise its discretion without giving any findings and leaves the parties to their available remedies.

3

LSPR: In light of the recent ‘supersessions’ and the accompanying recommendations for elevation to the SC, the legitimacy of the Collegium has been called into question once again. It has been claimed that the Collegium is a “law unto itself”. De hors the merit of the appointees, do you think the lack of transparency/accountability is a fatal flaw of the Collegium? If yes, is it wise to reintroduce the NJAC model?

Aditya Sondhi: The NJAC model mooted, as I have argued was a weak alternative to the Collegium and reintroduced executive dominance in judicial appointments. As such, there is no question of reverting to such a model. Having said that, the Collegium being a construct of the court is obviously ad hoc, and therefore, inevitably prone to attack on grounds of opacity and lack of objectivity. Members of the Collegium have themselves highlighted these lacunae. And in circumstances where elevations are made to the Supreme Court purely on perceived merit and regardless of seniority, it becomes axiomatic to question such decisions for their lack of objective criteria and reasons. On the other hand, it is nigh impossible to set out plain criteria for posts such as these, and assigning reasons would necessarily mean casting a shadow on the capabilities of other judges in the zone of consideration. With such resolutions now being web-hosted (ironically to achieve greater transparency) the fallout could seriously jeopardize the morale and functioning of the judiciary. As such, the need now is to arrive at a renewed model of appointment of judges of higher courts, which entails broad criteria for appointment / elevation, interviews (especially where fresh appointments are to be made) and possibly some representation on the panel from the Bar and academia. One could draw an analogy to the committee/s constituted by the Supreme Court for designation of senior advocates in high courts (and the Supreme Court itself). These committees have the Chief Justice, two senior-most puisne judges, the Advocate General / Attorney General as the case may be, and one other specially nominated senior advocate, who interview and assess candidates based on fairly clear criteria, and then arrive at a shortlist. Is this not a Collegium of sorts, but with an improved method? It may not obviate negative reactions completely, but is certainly more healthy and defensible.

4

LSPR: In the farewell ceremony for Justice Kurian Joseph in November 2018, Chief Justice Gogoi said: “good judges are going away. We need replacements…I am apprehensive. The younger lot in the bar are not willing to become judges.” We have 2 questions on this statement:

(a) First, from what you can gauge, is there really a reluctance in the bar as far as heeding the call to serve on the bench is concerned?

(b) Second, it has been argued that the lack of transparency in the Collegium’s decision-making process has precluded any chance of elevation to the Supreme Court based purely on merit, and that this is one of the factors which has led to the reluctance of lawyers to accept positions in High Court benches. In your opinion, is there any correlation between the functioning of the Collegium and the apprehension expressed by Gogoi, CJI?

Aditya Sondhi: I can only speak for the Karnataka High Court, where some of our best appointments have come from the Bar. And I see many young and competent Counsel accepting the role. Of course, there is a section that is averse to it for personal reasons, but it need not necessarily be seen as a trend. Historically, some of the top Counsel have turned down the offer to be on the bench. Equally, however, many others have taken on the role and brought gravitas and credit to the office. The reluctance is more when one is closer (or past) fifty, and better off sticking to practice for a multitude of reasons.

Elevation to the Supreme Court is not a ‘promotion’ that one can have some sort of vested right in, subject to completion of a certain tenure. Judicial appointments are to be accepted to serve the cause of justice, in the capacity and roster deemed fit. Else, not. One sacrifices personal freedom, income and the fraternity of the Bar to take up a position in the High Court. This one does, I would assume, to be part of a bigger cause. Not with one eye on elevation to the Supreme Court. Ironically, the so-called ‘supersessions’ took place because the Collegium found some judges more meritorious and deserving of elevation. This should therefore encourage potential appointees from the Bar to stick the course and hope for due recognition in their time.

5

LSPR: A clear trend of increasing politicisation of the Supreme Court is visible, to the extent that political motives are being imputed to decisions of senior SC judges. Again, I have 2 questions on this issue:

(a) First, how is this to be prevented, and how can the (perceived) independence of the SC be preserved? Are measures like the press conference held by 4 senior judges exactly a year ago a step in the right direction?

(b) Second, is there a need to reconceptualise post-retirement appointments by the Executive? 

Aditya Sondhi: As a caveat, it must first be said that mere imputation of political motives does not by itself mean the court is politicized. At times, those imputing motives are themselves politically motivated. However, certain structural course correction can deal with perception issues. Firstly, a more robust and credible Collegium process (till alternatives are found) creates greater faith in the higher judiciary and insulates it from any political adventurism. Secondly, a reasonable cooling-off period before retired judges can accept executive appointments (especially to apparently executive positions such as Governors of State) ought to be mandated even if by a resolution of the judges themselves. When it comes to appointments to important national tribunals, one must realise that the pool of retired judges to (wo)man such offices is limited and such cooling-off period ought to be reasonable enough so as to not lead to vacancies in such bodies, as that would adversely impact justice delivery.

Healthy interaction among senior judges mitigates a trust deficit and presents a united house, which would keep any political forays at bay. Justice HR Khanna is today remembered for his honourable resignation in the face of political abuse of power in the most serious matter of appointment of the Chief Justice of India. His is still, regrettably however, an exception. The press conference of the four judges, in their own assessment, was an extraordinary measure driven by extraordinary circumstances. I have spoken at the LSE in broad support of such an action, hoping it would be a springboard for a stronger and more free judiciary. It has served its purpose to some extent, but ultimately, non-linear solutions must yield to more direct and structural ones. A lot of this really depends on the statesmanship of senior judges and on equal statesmanship from the political leadership, which must be constantly available.

6

LSPR: Two specific incidents: first, Karanjawala accepting MJ Akbar’s brief in his criminal defamation case against Priya Ramani, and second, Indira Jaising returning Talib Hussain’s brief. What is your take on the lawyer’s ethics of representation?

Aditya Sondhi: It is, ordinarily, unethical for a lawyer to refuse a brief, except for reasons of conflict of interest, ill-health or sheer lack of time and expertise. Refusing briefs based on potential unpopularity is inexcusable and does not become a practicing lawyer. Our role is to take up cases, conduct them ethically, and detach ourselves from value-judgement or public opinion. If one has taken up a case for a complainant in a defamation case, he has merely responded to his professional calling. Counsel must be judged on performance and fairness of conduct, not on the perceived morality of his / her client. The situation is different where Counsel are personally affiliated with causes and are ‘activists’. In such cases, their personal value-systems must align with the cause, and only then are they entitled (or comfortable) to appear in a case. This is the difference, with Ms Jaising’s case.

7

LSPR: Recently, the GST council has permitted Kerela to impose a 1% cess to fund post-flood rehabilitation. Do you think this sets a wrong precedent and will lead to the defeat of the aims of a simplified tax?

Aditya Sondhi: One cannot doubt the humanitarian need for such a fund, though carving it out of the GST apparatus could dilute the concept of a uniform tax, as also encourage other such state-specific levies being sought in the future. But in the absence of a power in the states to justifiably levy such a cess under municipal laws or other state legislation, there appears to be no other option but to resort to such a cess in larger public interest.

8

LSPR: As a parting question, what are you reading these days, and would recommend others to include in their 2019 reading list?

Aditya Sondhi: Reading is such a personal choice that one can hardly recommend lists to others. I’m usually reading three or four books alongside. Right now these are, two biographies of Salvador Dalί, Shanta Gokhale’s The Scenes We Made: An Oral History of Experimental Theatre in Mumbai and Remnants of a Separation, in which Aanchal Malhotra takes a unique look at the history of Partition through material memory.