Conversation with former Solicitor General and BCI Chairman Gopal Subramanium

Bar & Bench spoke to Senior Advocate Gopal Subramanium, the former Solicitor General and BCI Chairman. He talks about his initial years as a lawyer, starting All India Bar Examination and his reasons for resigning from the post of Solicitor General. Gopal Subramanium also discusses his views on Lokpal as a solution to combat corruption and entry of foreign law firms.

Bar & Bench: What made you choose law as a career?

Gopal Subramanium: Well, I chose this profession to keep a promise to my mother. I am an only child. When my father died, my mother wanted me to fulfill his dream of my becoming a lawyer. So, I went the way of the law, although I really wanted to be a professor of English Literature.

Bar & Bench: Talk us through the initial years, as a lawyer.

Gopal Subramanium: I first worked with Mr. Justice D.P. Wadhwa. He worked in the trial courts and I worked with him for the trial court experience. Mr. Wadhwa was very hard working. He would work well past midnight every day and was meticulous in his preparation. I then joined the chambers of Mr. Soli Sorabjee, the former Attorney General for India. It was fantastic. Every day, Mr. Sorabjee would wake up very early in the morning to start with the day’s work and you had to be ready with all your preparations. He was extremely quick on the uptake and could get to the bottom of a case in double quick time. It was an outstanding experience.

I then had the opportunity of being retained by Amarchand & Mangaldas, who gave me wonderful opportunities to appear in several cases on their behalf, as counsel. I was then appointed as a counsel on the senior panel for the State of Uttar Pradesh. It is very interesting to remember that both Mr. Kapil Sibal and I were appointed as Special Senior Panel Counsels for the state of UP on the same day, when neither of us were senior advocates. This was way back in 1983.

Bar & Bench: How was it like to be nominated suo motu by the full court and designated as a Senior Advocate by the Supreme Court? 

Gopal Subramanium: This was a great honour. I would express what it was like by saying that the dynamics of the Supreme Court are somewhat unusual. It has a very strong moral history, which is not necessarily documented. Lawyers who have actually watched the Supreme Court for a large number of years will vouch for the fact that the judges and lawyers have, by and large shared a similar moral vision. When I started my career, a lawyer with a moral vision and a moral sense, who wanted to preserve the singularity of this profession, was expected to safeguard it in the Supreme Court.

There were standards that lawyers in the Supreme Court were expected to measure up to and maintain. Instinctively, there was this dynamic exchange between the judges and the lawyers, for judges understood that lawyers were important officers in the administration of justice. While they would do the best for their clients, because of this shared consciousness increasingly cases started being settled and not permitted to drag on. Increasingly, too, public interest litigation took on a larger dimension. It was all the cause and consequence of this dynamic connection between judges and lawyers. According to me, there is a shared vision which is not exactly a written document but it is a common constitutional vision, which I think lawyers share with the judiciary in the Supreme Court.

They are not joined together but I think in view of the shared moral purpose, they are able to see themselves playing their respective roles. That is how lawyers are able to preserve the credibility of an institution. A sense of moral purpose is projected to the lawyer and then in turn is radiated to the litigants. Few things give a lawyer more confidence than a strong sense of moral purpose, so he or she could fully understand the difference between a profession and a “calling”. It was a privilege to be chosen.

Bar & Bench: You are the first person to have held two most prestigious posts at the same time, Solicitor General and as the Chairman of Bar Council of India. Before that you were Additional Solicitor General. What was it like holding two prestigious posts and handling the dual role?

Gopal Subramanium: I had no conflict in my duties as Solicitor General and Chairman of the Bar Council of India. I really wanted to carry out large scale reforms in legal education as well as in the practice of law and established channels of access to lawyers at different levels of our profession. I succeeded in coming a long way and that was possible because of the love and affection which the Bar as a community gave me. I think that is what really fulfilled me. I can say with certainty that I could stand up for their independence. They knew that they could count on me and there would be no compromises as far as they were concerned.

There were several conflicting opinions and different points of view on the first All India Bar Examination. Despite that, all the Bar Councils ultimately respected my view and we could hold the exam. Not only did we hold the exam, we held it flawlessly with the exam measuring up in terms of international quality. I am still associated with the Bar Council and they look to me for advice. I am delighted to see that the Bar Council has now invited many senior lawyers to be permanent invitees to the Bar Council on my suggestion. The dynamics of the Bar Council itself is fast changing and now senior members of the profession have started participating in the affairs of the Bar Council. This is a great move. It is one of the best things that could have happened to the Bar Council.

There is no point in faulting our institutions. Every institution and indeed every regulatory body has black sheep. You do have to take a pro-active role and institutionalize these appointments and there are many things which have to be achieved. I had a blue print for legal reforms in my capacity as Chairman of the Bar Council of India. I tried getting that reform programme placed before the Prime Minister. I was never given the opportunity. I had hoped to communicate this to him. I hoped he could be made aware of what was I attempting to do and how quickly we could have actually solved long standing issues of pendency and efficiency in the administration of justice. With mutual participation, we could have achieved all our targets. We would have done so in remarkable time. My regret is that my dreams and visions were not heard by the Government. I wanted the Government to participate in the change. Change was on the table and it was a beautiful blue print. I also saw how important it was that our trial courts had to be strengthened. I realized how important it was for the Chief Justice of India to take up the matter on a weekly basis and ensure that trial courts all over the country had the requisite resources. Our judges are concerned for the institution. We, as the members of the Bar have to be equally concerned for the institution. How do we increase quality? How do we serve the legitimate interests of the lawyers? How do we see that the legal process should be completely accessible, for vindication of fundamental rights? These were the things I envisioned. I had a dream that before it was too late, I would be able one day to persuade the Prime Minister of the view that an infrastructure of very high quality was in place. More specifically, relating to the Judiciary and the trial courts, that the Parliament could enact law under Article 32 (3) of the Constitution of India.

Bar & Bench: You came up with the idea of starting AIBE and you made it happen with recent second AIBE being held successfully. Tell us about the whole journey.

Gopal Subramanium: This exam was under the orders of the Supreme Court. It was supposed to be supported financially by the Central Government but we did not receive a rupee from the Central Government. I worked out a financial model. We conducted the exam out of the receipt of the application fees for the exam. There was profit! We decided to give a substantial portion of the balance to the State Bar Councils for their activities. I feel very sorry that this initiative was never supported. Neither was it ever perceived correctly. It was all viewed as an invasion of someone else’s territory.

I was asked, repeatedly, to resign. I would get messages saying that I should not hold two offices. I found it odd, to say the least, to receive such messages. Distinguished Attorneys General have been both Chairman of the Bar Council and Attorney General. I certainly didn’t canvass for the post of Chairman. The members of the Bar Council saw me attending the meetings and taking down notes and trying to contribute. They ultimately decided to honour me with this office. I am grateful to the Bar Council for having honoured me with the post of the Chairman.

I am happy that I was able to explain my dreams to the members of the Bar Council and the Bar Council has actually approved all of these projects in principle. I was able to get a Memorandum of Understanding signed with the Law Council of Australia to bring together the two professional bodies. There was a similar agreement likely with the Paris Bar, with the Law Society of the UK, and with the American Bar Association. All this was on the anvil and we would have had an opportunity to have access to the best practices in the world. The firms of solicitors in India also wanted to contribute enormously to the Bar. Very wealthy lawyers wanted to contribute financially to the Bar. There was the promise of great change that called for coordination. Without it, change is not going to be for the better.

Bar & Bench: You resigned from the post of Solicitor General and said “in order to protect the dignity of the office of the Solicitor General, I have resigned”. Can you talk us through your decision to resign? What advice would you give to your successor Mr. Rohinton Nariman?

Gopal Subramanium: To be fair to the Government I had a glorious innings with them. They admired me. They came to me when they wanted a difficult situation to be addressed. There are many fine, honorable men in this Government of the highest integrity. The civil service still has some of the most outstanding civil servants. I must say very proudly they understood the importance of integrity and honesty. I would like to say that I had a very good time.

At the same time, I was concerned for the office of the Solicitor General. The office of the Solicitor General must be viewed as an office completely at arms length from the Government. Article 76 of the Constitution provides that a person who is qualified to be appointed as a judge of the Supreme Court is appointed as Attorney General for India. By Convention, the same qualification exists for the Solicitor General, for the Additional Solicitors General and for the Advocate General of a State. The reason for prescribing this qualification in the Constitution under Article 76, and having a slightly different qualification for an Advocate General is because it means that the person who is qualified to be appointed as a Judge is a person of integrity expected of one qualified for judicial appointment. He or she would be able to bring to bear on the office as a law officer, a certain kind of insulation from pressure in much the same way as a judicial officer would.

The conduct which is expected from a judge is quite the conduct which is expected from a law officer, whether it is an Attorney General or a Solicitor General or Additional Solicitor General.

I am very happy to say that when I was appointed as Additional Solicitor General of India, the Government of India actually perceived this to be the correct position. I was able to perform my duties without any problem for four years. When I realized that this perception itself was getting diluted, I became concerned about the position of these law officers and I decided that I should resign, especially when I felt that the arms length principle not being reciprocated by the Government.

A law officer is a senior counsel. A senior counsel is already one-step removed from his client. When you are a law officer, you are actually two steps removed from your client because you are also an officer in the administration of justice. You actually represent the State; you do not represent a Government. You represent the might of the Indian state, as a constitutional symbol. A constitutional symbol has to promote the values of the Constitution. As a law officer, you cannot be seen as cheating the Constitution. And if any Government expects that its law officers should actually not be informed by constitutional ideals in their attitude and in their dealings with government, they are very sadly mistaken. I did not want the office which I had taken as much care as possible to keep pure and above any kind of reproach to be diminished.

I have had the unique privilege of seeing MC Setalvad, CK Daphtary, Gupte and all the great law officers. I felt they would never forgive me if I allowed the arms length principle to be compromised. I was concerned about the law officers suddenly being seen as men in the system. It is a fundamental misconception of the position of law officers. As long as this misconception exists, I am afraid, law officers will find it very difficult to act completely independently. I urged and I will always urge the Government to consider it as its paramount duty to see that this impression is completely erased as early as possible. This is vital. When Mr. S.V. Gupte was appointed as Attorney General, Mr. Gupte was in fact requested by none other than the then Chief Justice to become an Attorney General. So that should tell us the standards with which Governments are expected to interact with law officers.

Mr. Rohinton Nariman is one of my very dear friends. I did not resign because of his induction into any matter. Yes, I was a little annoyed that I was not even told about his engagement in a particular matter by any responsible functionary in the Government, especially after I had already been asked to appear in the matter. The conduct of the Government with the Solicitor General was not appropriate. But I am a friend of Rohinton Nariman and I was the first one to wish him the best in his appointment. For me, no greater compliment could have been paid than the fact that the Government chose Rohinton Nariman to succeed me. I think that is a tribute to the way I held the office.

I do not think Rohinton Nariman ever needs advice, but if he does, I am around the corner.

Bar & Bench: Your views on entry of foreign law firms.

Gopal Subramanium: Well, I think it is an evolving situation. I think people in the legal profession now want to increase their abilities and skills. I think the future is too dynamic to take a rigid position. I would say, we have to act with complete care because some of these decisions could be irreversible. Law is not only business and commerce.

Bar & Bench: Do you think Lokpal is the correct solution to combat corruption? Your views.

Gopal Subramanium: Well, I think the very fact that we need a Lokpal is an indictment of our entire apparatus. It means that our institutions are failing. It means that our institutions are being pressurized. That is a serious issue. You do not need a Lokpal when equality under the law is the mandate. It is sad to see that we have to create new institutions to foster higher accountability. Corruption is a negation of the Constitution. Unfortunately, this aspect has not been adequately tested by either Constitutional office holders or the courts.

I believe that the only way in which accountability in a parliamentary democracy is achieved is through the legislature. However, those who are the ultimate arbiters of the Constitution have also got to ensure that governance takes place in accordance with the Constitution which means, it has got to be totally free of corruption. I do not think that corruption is simply an offence. It is more than an offence. It is a breach of the Constitution.

Apart from that, I also think that there is the principle of collective responsibility. It is not possible to wish away or distance yourself from the acts of individual ministers. You have to take responsibility. I think this is a fundamental point which needs to be considered by all Governments, courts and holders of public office, like the Governor and the President. If there are instances and proof of corruption in a government, a declaration can be issued of a failure to observe the Constitution. I think it is untested territory. I would believe that in parliamentary democracy, we should never think of displacing a government except only through the will of the majority or the will of the elected representatives of the people. But where systemic breaches have taken place, we will have to look for other remedies to be located in the Constitution and that is a prospect which Governments may one day have to become suddenly alive to. If society has to remain sane and civil and contained and cope with the existential reality, they have to be assured of a certain modicum of privities.

Bar & Bench: Your Mentor.

Gopal Subramanium: I would say I had five mentors. I had Motilal Setalvad. I had S.V. Gupte. There was also Niren De, Nani Palkhivala and Soli Sorbabjee. These were the five men who inspired me in different ways.

Bar & Bench: What interests you other than law?

Gopal Subramanium: If I had a second life and if God gives me a second chance, I would have loved now to be a psychiatrist. Or I might have composed music.

Rohinton Nariman Photo Courtesy: Sayaji Samachar