Needing a Lokpal is an indictment: Ex Solicitor General

By Bar & Bench News Network Gopal Subramaniam was appointed the Solicitor General of India, the second most important law officer of the country in 2009. He was also the chairman of the Bar Council of India, the first person to hold both prestigious posts at the same time. Subramaniam resigned in 2011 after the government decided to field a private lawyer as special counsel in a case involving Kapil Sibal. Interestingly, Subramaniam told Bar and Bench that he and Sibal were both appointed as Special Senior Panel Counsels for Uttar Pradesh on the same day in 1983 when neither of them were senior advocates. Here are excerpts from Subramaniam’s interview with Bar & Bench. You can read the entire interview here . Here is Subramaniam discussing some of his regrets. Gopal Subramaniam: 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. [caption id=“attachment_160840” align=“alignleft” width=“380” caption=“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. Screengrab from ibnlive.com”] [/caption] 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 institutionalise 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. 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 realised 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. 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 Subramaniam: To be fair to the Government I had a glorious innings with them… There are many fine, honourable men in this Government of the highest integrity. The civil service still has some of the most outstanding civil servants. 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 realised 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 was 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. 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.  I do not think Rohinton Nariman ever needs advice, but if he does, I am around the corner. Bar & Bench: Do you think Lokpal is the correct solution to combat corruption?  Gopal Subramaniam: 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 pressurised. 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. 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: What interests you other than law? Gopal Subramaniam: 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. This interview is excerpted from Bar&Bench . Articles from Bar&Bench will be featured regularly on Firstpost.