Interview: Gopal Subramanium

‘The collegium did not defend me’

Print edition : July 25, 2014

Gopal Subramanium, as the Chairman of the Bar Council of India, at the BCI's Robing Ceremony in New Delhi in August 2010. Photo: Shanker Chakravarty

Law Minister M. Veerappa Moily, Attorney General of India Goolam E. Vahanvati, and Solicitor General Gopal Subramanium at a press conference in New Delhi on October 25, 2009. Photo: Sandeep Saxena

Interview with Gopal Subramanium, senior advocate in the Supreme Court.

PROMINENT Supreme Court lawyer Gopal Subramanium withdrew his candidature for the position of Supreme Court judge, putting an end to the ongoing controversy over his appointment to the high judicial office. The National Democratic Alliance (NDA) government objected to his appointment reportedly on the basis of adverse reports from the Intelligence Bureau (I.B.) and the Central Bureau of Investigation (CBI). Gopal Subramanium was amicus curiae in the Sohrabuddin Sheikh alleged fake encounter case in 2007. He also appeared for the United Progressive Alliance (UPA) government in the Sethusamudram case in 2007. Gopal Subramanium was Additional Solicitor General from 2005 to 2009 and later Solicitor General of India until 2011. He was the Chairman of the Bar Council of India in 2010-11. In an interview to Frontline, the senior advocate spoke candidly about the charges levelled against him, his stint as a law officer in the UPA government, the pressures he faced as a law officer, and his role in the cases in which he was appointed amicus curiae. Excerpts:

In your letter to the Chief Justice of India you have expressed your anguish over media reports based on what you have described as half-truths and carefully planted leaks aimed at creating doubts in the minds of the collegium. Is there scope for a balanced and informed debate in the media about the credentials of the judges to be appointed to the apex court in a manner similar to what prevails in the United States? Where exactly do you think the media have gone wrong?

I am not aware of any case in the past where the media have planted so many stories against a candidate under consideration for the post of Supreme Court judge. I am not a threat to national security, surely.

As a former Solicitor General of India, I have interacted with foreign governments, represented India in international delegations. The media have been prompted by the government, which does not want to appoint me. This is subterfuge and character assassination through the media to besmirch somebody who has actually attempted to sacrifice his professional career for the purpose of public service. I did not angle for the office of a judge. I was invited by the Chief Justice of India [CJI]. I had declined a similar offer two years ago. This time I accepted it in good faith because of the nature of the invitation.

Should one rely on two of my former clients [the CBI and the I.B.], who are now under a different political dispensation, to determine my character? The I.B., the CBI and the Cabinet Secretariat consulted me for over three decades under different governments.

The then Deputy Prime Minister, Lal Krishna Advani, used to send the Director of the I.B. to consult me on so many matters concerning national security. My bill would be one rupee. Brajesh Mishra, who was the Principal Secretary to Prime Minister Atal Bihari Vajpayee, was sought to be prosecuted by the Congress government by the Official Secrets Act. I prevented the prosecution. I said no case has been made out. My opinions were respected for their objectivity. There are so many such instances, which I can recollect, where irrespective of any political connotation I have stood up for the rights of the people, particularly those in the opposition.

On the allegations against you…

I can only go by media reports. There was no file on me and there was no reference to the CJI in writing. Where is the material? In one paper they said that the President of India has material. I found out yesterday that a professor of IIT [Indian Institute of Technology] Kharagpur wrote to the President of India complaining that I charged extra money as Solicitor General. In a television interview, I have shown my rules of appointment, my bills, and taxes paid on the bills. In fact, I had no idea at the time when the new government came in that I would have any opposition.

The only time I had met the present Prime Minister was as Solicitor General, along with my wife, during the conference of Chief Justices and Chief Ministers. He was very courteous to me. He invited me and my wife to Gujarat. Of course, we did not go. I do not think there is any vindictiveness.

As a Solicitor General of the UPA government, I interrogated the government like a judge. I wrote over 150 letters to the Prime Minister. How ironic that the Solicitor General who prevented the closure of the case against A. Raja [former Communications Minister who is an accused in the 2G spectrum scam], who actually said that the investigation must proceed notwithstanding the judgment in the allotments case, is being accused of being in collusion with Raja! The Prime Minister [Manmohan Singh] accepted my advice. It is I who asked the three officers of the CBI in a separate room in my bungalow—and until then nobody in the government had told me that Raja was under suspicion—if there was any suspicion against this Minister. I wanted to take a stand which was consistent with the CBI and the Department of Telecommunications. I mentioned this in a letter to the CBI Director. The succeeding Director, A.P. Singh, called on me. He told me that there was no question of any misgivings but they wanted to have a separate lawyer. I said that was perfectly alright. If someone writes a letter against me and I do not get to see that letter what am I supposed to make of it? And, in fact, when I received a letter informing me that someone else was being appointed for the CBI, I immediately wrote to the then Law Minister [M.] Veerappa Moily stating that I would like to know what was going on. A newspaper report was planted deliberately because I was angry with the CBI officers about some conduct which was not proper. I have also been the lawyer in the Jain hawala case and I have said that there is no evidence against Advani in the diaries.

I resigned on principle as a Special Public Prosecutor in a case relating to the prosecution of former Prime Minister P.V. Narasimha Rao in the Lakhubhai Pathak case [a cheating and criminal conspiracy case in which Narasimha Rao was an accused] because a Minister wrote a letter asking me not to oppose his bail.

When I was Solicitor General, no private clients could enter my house. Between 2005 and 2011, Niira Radia never came to my house. She knew I was a stickler for principles. You will find it in the [Radia] tapes that she has spoken of my integrity. This is not highlighted by anybody. What is highlighted is a reference to a swimming pool. The facts are that I have hypothyroidism and a slow metabolic syndrome. My doctor said swimming is the only remedy. I used to go to a swimming pool in the Talkatora stadium. After it was closed down, I asked Parag Tripathi, Additional Solicitor General, to find me a swimming pool near my bungalow. He spoke to someone in the Taj management. I did not know he also happened to know Niira Radia. I did not know if she organised it or she had anything to do with it. The Taj Hotel called me up and asked me if I would like to take membership. The fee was Rs.3 lakh. But I was working 19 hours a day, so I never took the membership. It was only after I ceased to be Solicitor General and when I started earning money that I paid the membership fee and went there [Taj] for my swimming sessions.

In the Niira Radia tapes, please list all the characters who have had conversations with Niira Radia, have they all been investigated?

In the 2G spectrum allocation case, I have not dealt with the files relating to the allotment of 2G licences at all. I never gave any opinions on the case. I wrote 14 letters to the CBI Director and the Ministry of Law and Justice and the Department of Telecommunications. Whenever they sought my opinion on a matter relating to the ongoing investigation in the case, I declined it saying that it was contrary to the spirit of the Supreme Court order and nobody should interfere with the investigation of the case. The Government of India [the UPA], even after accepting my resignation placed on record my outstanding services as Solicitor General. After that, the CBI chased me to become their lawyer. I won the Abu Salem case as Solicitor General. Then, when I became a private lawyer, there was a sudden change of attitude. They [the CBI] wanted Abu Salem’s charges to be deleted. Please inquire with the CBI officers. I said this was a betrayal of the nation and that I would not participate in this case. And for saying this you should be punished by the CBI? Please find out for how many years I appeared [in cases] to protect the [CBI] officers in the Ashok Aggarwal case [a case against former Director of the Enforcement Directorate relating to alleged irregularities in offshore mining rights given to companies]. That case was entrusted to me by the then Attorney General, Soli Sorabjee. He asked me to be careful as this was a person with influence. I protected the CBI officers for over 20 years. And suddenly one day they decided to remove me from that case. These stories are being planted because of vested interests. Some of them are corporate interests. I don’t wish to disclose their names. These corporate interests attempted to influence me when I was Solicitor General and I did not budge. This government is corporate friendly or it is scared that I [as a judge] will not listen to signals. I won’t listen to signals, it is well known.

But I have no prejudice against Mr Modi. I have no prejudice against Amit Shah, I don’t even know what he looks like. It is not my fault if judges ask me to become an amicus curiae in a murder case and I detect the murder [Sohrabuddin Sheikh encounter case]. A person is murdered two years ago. A man has written a letter to the Chief Justice of India, K.G. Balakrishnan. The CJI asked the PIL [public interest litigation] cell to call for a report from the Director General of Police of Gujarat. He sent a half-baked report with two attachments and it was lying in the filthiest corner of the Supreme Court building. I retrieved it. I found out that it showed a murder and I reported it. Is this a big fault of mine? The man’s murder is admitted, then I asked about the wife; she has been killed and cremated. Even then I gave the first chance of investigation to the Gujarat Police. What can I do if the Gujarat Police do not perform their duty? Am I still supposed to give them a clean chit? During that investigation by the Gujarat Police, the most important eyewitness was liquidated. Am I supposed to be a silent spectator to all this? I then requested that the investigation be handed over to the CBI. The CBI investigation also had anomalies, which I pointed out. I then realised that the investigations of all these agencies had imperfections.

But the Supreme Court washed its hands of the case.

It is because the Supreme Court was also tired. How many agencies can we trust? On the question of Amit Shah’s liberty, I took a very fair stance, I said let him be outside the State of Gujarat. The lawyers of Amit Shah did not raise a finger at me during the entire proceedings.

On the adverse I.B. report about your religious beliefs…

If I wear vibhuti, am I supposed to be a tantric? If I perform prayers is it considered odd behaviour? In the Parliament House attack case, I thought 11 people had given up their lives for India. The least I owe them, before seeing the spot where they were killed, was my prayers. I offered some rose petals at the marble plaque. After I finished the case, I went back [to the spot] and told them that if there were any imperfections in my advocacy I should be forgiven and that I had done my best to vindicate their sacrifice.

I wrote a report on the Padmanabhaswamy temple as an amicus curiae. How does the I.B. have the audacity to comment on the report of an amicus curiae? It has been made to say this. If I write a sloka on Padmanabhaswamy, does the Prime Minister think it is a sin? The I.B. report said I performed pujas against the custom. So the I.B. was watching my pujas? Please give my report to Dr Murli Manohar Joshi and ask him to analyse it—both of us have studied the agamas in Varanasi. It [my report] is considered to be one of the most important contributions to present agamic literature on temples, which scholars all over India have appreciated. I have studied Indian philosophy for over 35 years. In a temple, if you have to open the deity’s treasures, you have to light a lamp. We recite some basic strotras. I had to do this duty to find out whether there was gold or not. I lit a lamp, I remembered Padmanabhaswamy, recited the “Padmanabha satakam” [religious chants on the deity].

The tantri has upheld this ritual. He said he was the only man who knows what was to be done. I later learnt that when I follow the tradition correctly, I am supposed to be moribund! Bijan Kumar Mukherjee [former Supreme Court judge] was a great Sanskrit scholar. He used to do rudrabhishekam every day in the evening. Do you mean to say [Jawaharlal] Nehru said “please leave the judiciary because you are doing rudrabhishekam in the night”? Are these [religious leanings] a consideration for writing reports?

Given the fact that you withdrew your candidature even before the collegium could re-send its recommendations to the government, why do you still term this an instance of the judiciary failing to assert its independence?

The point is that the collegium did not defend me. I have written in my letter to the CJI that I forgive everybody. If the collegium knew that there was resistance from the government, its duty was not to allow, by passive inaction, a set of circumstances to develop that would force me to jump off the cliff. I told the CJI before I withdrew and he told me not to withdraw, in all fairness to him. But I told him that I have a duty to defend myself.

How do you think the Supreme Court could have come to your defence during the vacation?

A clear official statement or message should have been sent to the powers that be that you cannot slander a judge in waiting in the media. If you have material, give it to us, we will look into it. The Supreme Court is a court of 30 judges; any one judge should have had the courage to speak up.

Your views on the collegium system?

The collegium system is not a bad system as long as it works efficiently. It has to understand what the requirements of the institution are. Different people with different qualities are needed for an institution. While, apart from knowledge of law, certain minimum moral qualities such as honesty, integrity, and uprightness are essential; there may be certain other qualities which might be needed for an institution. A person might be an expert in intellectual property law, someone may be compassionate towards the poor. A collegium is meant to function taking into account all these criteria.

What are your views on the proposal for a National Judicial Commission for the appointment and transfer of judges of the higher judiciary?

Until the credentials of the government are re-established, I am not in favour of a National Judicial Commission. The segregation of names is a very serious matter.

But the government says there is nothing wrong with the segregation of names and it has happened before.

Never. The government cannot show even one instance where segregation of names has happened without the consent of the CJI or the collegium. In fact, the proper procedure is that there should be a noting on the file by the CJI to take note of the objections. After this, the collegium can either permit a segregation, in the event that they agree that the fourth person is not fit to be appointed, or reiterate its stand that the fourth person is fit to be appointed. This is the only procedure

Was the consent orally obtained in your case?

I have absolutely no reason to believe so. There is nothing called oral consent. This is a very formal matter.

Is it part of the memorandum of procedure?

Former Chief Justice of India M.N. Venkatachallaiah, in his article in The Hindu [June 26, 2014] has referred to the different paragraphs of the judgment as well as the memorandum of procedure. These clearly show that consent is a must.

Does the appointment of the three judges then become unconstitutional?

It is unconstitutional. But I didn’t want this papam [sin] on my head that I stopped three people from becoming judges because I know them. They are also my friends. The views being expressed by many legal scholars is what is unconstitutional is unconstitutional, it cannot be cured.

So can a PIL petition be filed questioning the recent appointments?

Yes, it can happen. They can be set aside. The President should have checked whether this is in accordance with the procedure. The Prime Minister and the Law Minister should also have known the procedure. But surely the Supreme Court should have intervened. I’m sure in the next two or three weeks they will meet; there is a crisis involved. I have opted out so that I am not the cause of the crisis.

What does becoming a judge mean to you?

Judgeship requires some psychological understanding of what justice is. If a person does not have an Aristotlean conception that the state is as much responsible for public good, then our foundations are weak. The theory of separation of powers of Montesquieu was itself founded on the fundamental principle that each limb aspires for the optimal good of man. So the role of the judiciary is not the role of the executive. It is important that you must have faith. In fact, I started to change my own nature, giving up myself as a lawyer, looking at things with a new insight. For two months, I travelled in a bus with common people. I tried to understand what people’s expectations from justice are. I did a lot of tapasya even to be prepared to become a judge. This tapasya has not been in vain. It has given me a human insight, it has enriched me.

Earlier, when you resigned as a law officer, you had highlighted the issue of law officers not being civil servants under Article 309 of the Constitution. How can law officers honour the Constitution and carry out their duties independently in the face of pressures from the executive?

The Attorney General and the Solicitor General are not officers of the government or civil servants. These institutions are 500 and 400 years old. The reason why I resigned as the Solicitor General was that the law officers were treated as civil servants. This is contrary to the Advocates Act and also the position under the Contempt of Courts Act where law officers can actually commence prosecution. I explained to Mr [Kapil] Sibal that this is one of the grounds on which I was resigning.

There was an amendment in the service rules of law officers in 1987, which used the term “in exercise of the proviso under Article 309”. Proviso under Article 309 means it is a post under the Union. Because of this [provision] in the protocol, the law officers are treated as equal to Cabinet Secretaries, Joint Secretaries, Additional Secretaries. The [post of] Attorney General is actually supposed to be equivalent to a Supreme Court judge, who has the right of audience and intervention in Parliament. He is treated as an equivalent to a Cabinet Secretary. I protested against the falling of institutions. Law officers are not animals to be controlled, they are independent lawyers. They have to express their opinions.

But there are also reasonable demands for transparency in judicial appointments?

I agree transparency means quality. Qualities have to be listed out. There should be proper, permanent staff with the collegium which collects material like judgments of the judges and case records, studies them, and makes psycho-social judgments.

But don’t you think the allegations must be discussed transparently?

I am not preventing any allegation against me. Allegations are required to be investigated. I cannot say that there should be no transparency. After all, if somebody has done some wrong, the allegations need to be looked into. But this is very different from character assassination.

If there was indeed material, the simplest thing for the Law Minister to do would be to take an appointment with me and show it to me. Even if there was some credibility [in the allegations], he knew I would resign. That is the standard I have maintained.

But you are interpreting judgeship as a mere executive appointment?

No, it is a collegiate appointment. But where the executive supposes that there is material, which has escaped the collegium, you can ask me, I’m also accessible.

The Law Minister has recently said that the government is rethinking the Judicial Standards and Accountability Bill in view of objections from judges. What are your views on the Bill?

Judicial standards are contained in the statement of values of judicial life, which is called the Bangalore Principles, which have been adopted as the fundamental principles of judicial conduct all over the world. The manner in which this is observed by every judge requires a high level of introspection and personal behaviour. Personal behaviour has to be inspired. For example, take the case of former Supreme Court judge Justice A.P. Sen. Following his retirement, he underwent a bypass surgery at AIIMS [All India Institute of Medical Sciences]. He asked me not to refer to him as “Mr Justice Sen” as he wished to be treated as a common man. The purpose of my wanting to become a judge was to be as close as possible to the people coming for justice, because they are not just litigants but are citizens.

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