Supreme Court Sr. Advocate Dr. Aditya Sondhi, Ambedkarite and author, on Pause with Nandini

Dr. Aditya Sondhi is a Senior Advocate at the Supreme Court of India, a scholar, and an Ambedkarite. He frequently lectures on the application of Dr. B.R. Ambedkar’s constitutional philosophy in modern jurisprudence. 

He joins us for a special Dalit History Month episode in association with Hindus for Human Rights Australia, and takes us in chamber for a free wheeling conversation. Highlights: 

- Constitutional morality as envisioned by Dr. B.R. Ambedkar
- The Manusmriti and the place of religious texts within courthouses. 
- In India, is it fair to say ‘Caste is the Law'?
- The role of unions in the era of an Uberised workplace
- Protections for domestic worker rights within an Ambedkarite vision for an equitable society
- His personal connection to Dr. Ambedkar’s legacy, and his relevance in our deeply divided world today. 

Dr. Sondhi also hosts 'The PodCaste' available on Spotify which features conversations around caste, seeking to unravel the visible and invisible presence of caste in urban settings, academia and practice. 

He is the author of Poles Apart: The Military and Democracy in India and Pakistan (Penguin, 2024).

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Thank you for listening! Watch all episodes of Pause with Nandini on https://youtube.com/c/NRIAffairs

Transcript

Welcome And Guest Introduction

Nandini 0:08

Hello and welcome to this episode of Pause with Nandini. Today my guest is Dr. Aditya Sondhi, who is a senior advocate at the Supreme Court of India. He's a scholar who frequently lectures on the application of Dr. B. R. Ambedkar's constitutional philosophy in modern jurisprudence. He highlights Dr. Mbedkar's focus on constitutional morality, minority rights, and protecting the underdog, often examining how these principles are applied or misunderstood in Supreme Court judgments. We do this episode today in conjunction with Hindus for Human Rights for Dalit History Month, where we examine all the ways in which Dr. Ambedkar has had an impact on civil society, on the constitution, on the courts, and try and understand what the relevance is and the spread of impact across various facets of our lives. With that, I welcome Dr. Adity Sundhi to the show.

Dr. Aditya Sondhi 1:11

Thank you for having me, Nandini.

Nandini 1:13

Absolutely. Let's go right into it.

Constitutional Morality And The Underdog

Nandini 1:16

If you could give us an overview, I know it's a long career that you have, so this might be a difficult question to summarize, but essentially your work in the space of constitutional morality as envisioned by Dr. Ambedkar.

Dr. Aditya Sondhi 1:33

Yeah, I'm usually loath to speak about my own work per se, and especially on something as complex as the concept of constitutional morality is going to need a longish answer. But to illustrate the point, I think to understand how Dr. Ambedkar viewed constitutional morality, we have to understand him and his personality quite differently. And I had recently spoken, in fact, in Melbourne at a Patka conference on how Dr. Ambedkar had been applied and understood and at times misunderstood in judgments of the Supreme Court of India. And there, in the context of constitutional morality, I tried to develop a theory that ultimately what he intended by that principle was that when the court is interpreting any scenario, there is always an underdog in the fight. And that underdog could be, you know, a citizen, a woman, of course, a scheduled caste person, a minority, but could also be a region or a state fighting the center and so on. But where that balance of power is slightly skewed and courts are required to interpret the constitution, then they ought to be guided by this concept of constitutional morality, which transcends uh societal morality and the plain text of the constitution. So, using that analogy, maybe I can tell you a little about a recent case that I was arguing relating to an encounter killing by the police. And uh in in case your audience is not familiar with this concept, uh, there are instances where uh accused in police custody find themselves uh, well, shot to death, right? And there are instances where that has been regarded as fake encounters where the accused have been basically put to death by the police without trial, and other cases which are bona fide encounter cases where the police was acting in self-defense. But the rule of law has progressed now to a point where the Supreme Court has said that in every such case of an encounter killing where somebody dies while in custody, there ought to be a magisterial inquiry into the matter and also an FIR registered so as to investigate the role of the police in that particular encounter. And I was recently arguing a matter relating to one such instance uh in Karnataka, and that's where I think this this this uh this conflict between your personal morality, societal morality, and constitutional morality comes in. The concept of rule of law is constitutional morality, in my opinion, because it has to step above and apart from the rest. If you look at the facts of that case, your conscience would be shocked in the sense that the person who was encountered was uh accused of having uh sexually assaulted and murdered an innocent five-year-old child. But that said, that's not a carte blanche for the police to take the life of an accused, right? And the whole concept of due process and trial, etc., are built into rule of law. So one has to then push against the grain, often in cases like this, and argue that, you know, despite societal prejudice, despite uh situations that uh are on the ground, uh, rule of law mandates that in an independent inquiry takes place in this case. And all the more reason because it's often been found that uh encounters are fake. They're faked not only quay the accused, sometimes they're faked the identity itself. You could you could have an innocent uh arrested for an alleged offense and put to death, and that's not the regime you want to move towards. So that might, in a sense, illustrate the point. But uh, you know, one one uh faces that, for example, even in death penalty cases. Um I appear in a number of cases for the accused in death penalty cases. And here again, there is that that conflict between personal societal morality, your professional ethics, and I suppose a larger constitutional morality question. Just recently, you must have uh heard that the court in Madurai sentenced nine police officers to death in the Satankulam uh case. And that was also incidentally a custodial death case. And, you know, as much as I welcome a conviction against the police, which is fairly rare in cases like this, if you hark back to the uh infamous case of the Mathura rape case, where the uh police officers were all acquitted by the Supreme Court with almost like a value judgment on the victim, these convictions are welcome. But at the same time, if we approach them from a constitutional morality case and you look at how Indian jurisprudence is moving towards becoming de facto abolitionist on death penalties and the Supreme Court almost always uh remitting sentences to life, then you have to view it from a very different lens, right? So I suppose in in cases one tries to always invoke that principle. There are cases which are on relating to the hijab ban, as you're aware, the SIR matter relating to the cleanup of the voter role, uh, the Assam Foreigner Tribunal cases, all of which are live and ongoing, and I happen to appear in those cases. I suppose in all of those cases, one tries to approach the matter from the perspective of that underdog that I mentioned, right? So that underdog is then the under trial, it's that that girl who's a first learner going to school with a condition that she can only go to school if she wears the hijab, uh, failing which it's a sort of indirect discrimination against her for belonging to the Muslim community. Or the SIR, where the small marginalized tribal voter who does not have uh good enough file to remain in a voter list, or worse still, in the case of Tamil Nad, uh for which I appear for a petitioner, a lot a large number of them being migrant tribal communities, right? And away at the time when the SIR is happening. So it's almost a de facto a fate accomplished almost that they're not going to be able to vote simply because they're not at stationed in their villages at the time when the SIR is happening. And you can look at all of these cases that I've mentioned technically as per the law, or you can, you know, rise above the law and look at them from a constitutional morality perspective to say what really is the intendment of this exercise and who is being hit by it at the end of the day, and how do the courts then try and protect those sort of uh invisible victims?

Nandini 8:48

Yeah.

Why Courts Apply It Unevenly

Nandini 8:49

I think those examples that you gave really illuminated the points that you were making. The question sort of in my head is that are the courts really open to this perspective? And the other thing of how subjective then is this in its application? Because if it's about an interpretation of constitutional morality, it seems to me that there is a certain aspect of subjectivity in it. When you're thinking about the underdog taking on the big dog in a fight, how uniformly do you think this can be applied?

Dr. Aditya Sondhi 9:29

And is it I think it's going to be very hard to expect it to be applied uniformly, even on the same facts, right? T he Indian Supreme Court does not sit in bank. We have 15, 16 on a day, 17 courts, even with benches of two or three judges, each of which is the Supreme Court of India. And while deciding cases, uh applying various tests under the Constitution, including those of constitutional morality. These questions don't come up every day, but when they do, they are addressed. But there's bound to be disparity of views, there's bound to be conflict, and there's bound to be conflict even on the same facts. As I speak to you now, we have a larger bench constituted of nine judges in the Supreme Court to reconsider the Sabrimala judgment, which is on the question as to whether women have a right to visit the temple and pray or not. Is it gender discrimination or is it a core religious customary practice that needs to be protected? With two conflicting and countervailing forces equally strong in their own uh merit, so to speak, but which could be viewed very differently from a constitutional morality perspective, which is to say, at the end of the day, can you afford to keep a willing, devout woman who wants to worship uh in this day and age under the Indian constitution? But take it from me, this is never a straight line at all. It's bound to vary, it's bound to vary from bench to bench. And I have to say it's bound to vary from time to time. And the frequency with which judgments are often reviewed or referred even to larger benches. Last week there was a reference here on uh the interpretation of um a judgment relating to the definition of industry under the Industrial Disputes Act, something that will interest you with your work around labor codes and so on. And Justice Krishnayer, who was an out-and-out socialist judge, had interpreted the word industry much more broadly to include, you know, even the government in many circumstances, so as to give the benefits of labor legislation to all those who fell within that definition. But that's being re-looked at and the judgment is awaited. But the point I'm making is that this is never a given in the system that we practice.

Nandini 12:06

One of the interesting things you said is that you know, someone is a socialist judge, right? And I'm thinking of as you're speaking about all the variables in in this process, one of those variables would also, I suppose, be the personal political or ideological leanings, right, of the magistrate or of the judge. And possibly in today's India plays such a dominant role because as we're seeing the rise of the far right and all of those ideologies that globally seem to be converging and seem to be taking center stage, I wanted to talk about something that's been off and on in the news, but maybe doesn't really come to the center as much.

Manusmriti In Court And Hidden Bias

Nandini 12:53

In a 2020 article in countercurrents, we're told that between 1989 and 2019, the Supreme Court has used Manusmiti in making their decisions in a total of seven times. I don't have the numbers since then. Even the chartered High Court of Bombay Madras Alabaz have referred to Manusmriti in various judgments. I was in an anti-caste um symposium in Melbourne recently, and we had advocate Arul mozhi, who's the public engagement secretary of Dravida Kazhagam, who also echoed in a similar sort of vein that she was quite surprised to see how often the Manushmati seems to be coming up in courtrooms. Um, if not as a legal basis, but at least as an ethical framework to justify certain rulings. What is your observation and are there concerns of this becoming commonplace? And do you think it's a strategic sort of uh thrust to try and get more of that ideology into courtrooms? Yeah.

Dr. Aditya Sondhi 14:04

Look, I think this question has to be looked at in a more granular way. 2009 to 2019 itself is a large span of time, which is 30 years, and it transcends many governments that that that India has had, many judges and many courts. I am per se not averse to uh theological texts, philosophical texts, even spiritual writing, if the case requires, being referred to in cases. I don't think we should shy away from that. Dr. Ambedkar himself was a lateral thinker and while being part of the Constituent Assembly, he chose to borrow from multiple sources, right? So he welcomed a school of thought that need not strictly have been Indian or native in that sense. And he also was disgruntled with his own constitution, as Anand Teltumbde writes, that in many ways he found it to be a compromise at the time, but thank God we had it, because if we didn't, then we'd go down a very different route, in a sense, like Pakistan has. But when theological texts start getting a lopsided amount of reliance or become the sole basis for adjudication of constitutional questions, then I think we need to be alarmed. Referring to the Bible or the Quran or the Gurugrant Sahib or the Manusmriti or the Bhagavad Gita, contextually while deciding a question of religious rites, of theological questions which are not codified, which may then go into the realm of custom, etc., I think cannot be faulted. But the difficulty is that we often also equate the Manusmiti as being a Brahmanical text. Once you do that, then it takes me to the point that Professor Mohan Gopal made. In fact, other than I don't know if the countercurrents article refers to his work, but I was actually at that conference where he developed this too many stages further, which was to look at the dominance of the upper caste in the higher judiciary in Indian Supreme Court. How far does that indoctrinate or prejudice decision making? And if the Manusmriti fits in at that level, then there is cause for alarm. But from my experience, to be honest, and the judgments I've seen, there are there are instances where unfortunately judges have written orders to pander to a government, to pander to an ideology and almost score points. I've seen this especially with a couple of high court judgments. But by and large, I wouldn't say that the Indian Supreme Court is bound by or driven by the Manusmriti. Certainly not. There could be there could be unsaid prejudices sometimes, which ties up with your earlier question when you're deciding a matter of of a religious nature or even a caste issue, or you're deciding a matter on which a court has a different prejudice. It could be gender, or for that matter, look at the section 377 judgment, where the Supreme Court initially said it was a storm in a teacup. The Supreme Court thought it was a non-issue, right? But it again went through this process of reviews and curative petitions and larger benches that I was illustrating earlier, to arrive at a law which said that you know consenting adults in private cannot be prosecuted. And if they are, then it becomes discrimination on the ground of sexuality. And that conversation is still on with the new transgender amendment bill, which has become the law in India. So to answer this, I would say one needs to look at it a lot more granularly to see if courts are literally being you know driven by the Manusmriti. And my sense is that is not the case. There are a few exceptions which make me uncomfortable, though.

When Caste Becomes Access To Law

Nandini 18:24

All right. In your podcast, which I thought was quite clever that it's called Podcast with an E, um, focus being uh discussions around caste. One of your guests, uh Clifton De Rosario, quoted Mr. Bal Gopal, who's a human rights advocate in Hyderabad, who said, in India, caste is the law. And it's a little bit of a tongue-in-cheek comment, but what do you make of that comment since you did speak a little bit of caste as one of the factors that has an intersectionality in the conversation that we were having? What do you make of that?

Dr. Aditya Sondhi 19:03

Look, firstly, Mr. Balagopal is more than a human rights lawyer, he's an an activist and somebody who's walked the talk his entire and he knows what he's talking about. So when he says it, I think it's only partly tongue-in-cheek. It's probably his his lived experience working with communities and and sections of society. And I suppose he qualifies that in a context of uh saying access to justice. I mean, when we speak of the law in India, we have to begin with the question of access and how much access and how far does one have access within the system? Uh practicing in the Supreme Court, you can see that access to justice is still a seriously uphill battle. And you have excellent pro bono lawyering and legal aid and so on. But that said, it's not that everyone can find a voice in the Supreme Court. So for uh a marginalized group, for an Adivasi, for a rural Dalit woman, let us say, the law is the officer in front of them. The law is that station house officer in the police station or the Tehsildar and no beyond. And at that level, the intersection of caste is, I think, much sharper. Because a lot of entitlement, your very entitlement to even be heard or recognized or be visible to the system can often depend on the dominant caste group you belong to or don't. And if put people in positions of power are from dominant caste, there's a good chance that those complaints are going unseen, right? So in that sense, caste is the law, right? But when you scale it up, I think then we need to recalibrate it. Sometimes class can be law. When I speak of access to justice, it is certainly those who are wealthier and more powerful with an ability to engage more powerful and more prominent lawyers, who have deeper bank balances and are able to fight out expensive and long-drawn litigation and to withstand pressure many times, depending on the types of cases you do, who have a uh greater shot at justice. So, in that sense, sometimes it's not just caste, it's it's class manifesting itself, right? And if you look at then again the diversity of people in power, something I spoke about a little earlier. How much diversity do we have on the bench, especially the high courts and the supreme court? We don't necessarily have an accurate representation of society when you look at gender. We have one woman Judge in the Indian Supreme Court, right? And if one does the arithmetic, we have, I think, grossly inadequate or insufficient judges in the high courts and the Supreme Court belonging to the scheduled castes, the scheduled tribes, to women, to minorities, right? Let's not even get into other segments like, say, the queer groups and so on, or physically disabled groups, etc. I'm I'm keeping that aside. So the moment that representation is skewed, then in many ways, again, you could say that, you know, caste is the law. But I think that would be making certain far-reaching presumptions, which I don't uh entirely subscribe to. It's not to say that belonging to an upper caste necessarily means you carry a caste prejudice. Some of the finest judgments you might see on anti-discrimination, uh, etc., come from, shall we say, dominant majoritarian groups, right? And parliament being the law-making body, I think has a far better representation than, say, the IAS does. Or in fact, Indian media does, right? Or educational institutions. How many vice-chancellors do you have who belong to marginalized groups? So I think Mr. Bal Gopal's comment is is worthy of a thesis in itself, but I can see where he's coming from. He's coming from a I think a structural perspective. And he's also, I think, coming from his lived experience of interacting with victims on the ground. And I'm afraid to say, at that level, many times in the urban poor, the rural, and other other, I would say, more extremely marginalized groups, I think caste does manifold itself in in more apparent ways than others.

Nandini 23:57

A really thoughtful answer. And I think this lens of at which level are you actually having an opportunity to interact with the law? I think that's a really critical part of this conversation.

Caste In Cities And The Diaspora

Nandini 24:11

I wanted to ask you, speaking of caste, and you've lectured around this, you speak about this. What are the ways in which caste is both invisibilized and pervasive in urban spaces and you know in the diaspora? This comes up quite repeatedly. And I have to say, in Australia, Hindus for Human Rights is working quite closely with other Ambedkarite groups to at least bring more awareness to this subject because a lot of times there's denial around being a factor at all. I was asked a question recently on an Ambedkarite podcast, and I'll send you the link to that. It's called Outcaste. It's by two women who have started this podcast based in Sydney, Minakshi and Apurva. And one of the questions was why would the oppressor caste or class give up their privilege? And you hear it all the time in the diaspora, you know, people will be like, we have to do everything ourselves, we miss our maids, or you know, we miss the help. And really, what they miss is that, you know, that inequality that allows the structure of sort of, if not overt oppression, but at least taking advantage of someone's um, you know, need in that social structure. So why would they give that up? And you know, there there is this argument that nothing changes by itself on the goodwill of people, and things have to change by force, or in this case by legislation. So, what do you think is that intersection of rules and laws and society changing in the caste question? And would the oppressor caste give up their privilege?

Dr. Aditya Sondhi 25:58

Well, I cannot say the oppressor groups would give up their privilege for the asking, where what now 78, 79 years into independence, and one hasn't seen that paradigm shift considerably enough for me to say that. In fact, anyone equating caste as privilege, I think, is tone-deaf, or is indeed in such a privileged position that they can actually say that and get away with it. I don't see the privilege there being born into a certain group, I don't think, is a is a privilege or the idea of merit as we understand it, right? And that takes me to the to your question as to how caste is often invisible, and it that is where it camouflages as occupation and class, doesn't it? And it does so across religions. You know, I recently reviewed a book by Daniel Muinidin called This Is Where the Serpent Lives, and it's it's a writing about feudal society in Pakistan, and you see often enough caste coming up in Islam, and that's not new. Caste is apparent even in Christianity, in Sikhism, and it sometimes may camouflage itself based on stratas of society, the work you do, being an Ashrafi or a slightly wealthier Muslim as opposed to somebody who's say a carpenter or a cobbler. But the fact is it is caste at its core, right? However, you may try and dress it up. So for those who are missing maids, etc., and saying this in a slightly condescending way, there is, I think, a caste uh element to it. There's no maybe it's subconscious. I'm not saying everyone is coming from a pernicious place, but then one ought to smell the coffee, right? You've got to recognize it. Uh we we grew up, in a sense, oblivious to caste because of the privilege we had of going to good schools and universities, where in many ways caste was hidden from our everyday lives. But that's not to say it didn't exist, right? And how does it it it surface in many ways marriage, even renting out offices or homes, right? Food we will societies which say we will rent to vegetarians alone.

Nandini 28:37

That's a big one, yes.

Dr. Aditya Sondhi 28:38

Right? I'm pretty certain there's a caste filter there playing willy-nilly. Educational institutions, you must have heard of the recent UGC regulations that the government brought in, which I thought was a big step forward. Credit to the union government to have brought them in. But within days they were stayed in the Supreme Court, and they were challenged by upper caste students saying we feel discriminated in an educational institution, which is a little rich in my opinion, right? And I thought it was a giant leap, and the Vemula Act that the state of Karnataka wants to introduce is along the same lines. And caste in universities, not just at a student level, but at a at a professorial level. And I'm fighting cases for professors at leading institutions. You know, in the IIMs, for example, where you have but a handful of professors who either belong to the scheduled caste, or even if they don't, are Ambedkarite in their philosophy. Right? As I said, you could be caste agnostic, you could be Brahmin and Ambedkarite, and good on you if that's your personality. And I've been fighting cases for them because they are at the receiving end sometimes of policies.