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Supreme Court Postcard: From Gopal to Rohinton - A tale of two SGs

Nariman and Subramanium: Superb lawyers but different
Nariman and Subramanium: Superb lawyers but different

The other day, in the corridor outside the government law officers’ chambers in the Supreme Court a well-dressed man sat outside the solicitor general’s office. Visibly uncomfortable on one of the rickety wooden benches, he was also livid with rage and his gaze seemed intent on burning a hole through the firmly shut door to the SG’s chambers.

His subordinates - you know they were subordinates because they stood around while their boss was seated - milled around and looked even more uncomfortable, avoiding their superior’s gaze. I walked past them to the far end of the corridor to the chambers of another law officer.

When I completed briefing and left chambers 15 minutes later I threw a quick glance back to the benches outside the SG’s office. The well-dressed man and his cronies were still there. No change in positions or facial expressions.

Someone told me much later that he was the commissioner of police for Delhi, who had come to brief the new SG in the sensitive cash-for-votes matter but the new SG’s secretary had refused to let them wait inside the chamber.

The police chief ended up waiting for one hour until the SG would see him and even after he made it inside things were, let’s say, complicated.

General drama

It has been a month since the dramatic turn of events that led to Gopal Subramanium resigning as solicitor general and being replaced by Rohinton F Nariman. The immediately apparent trigger was the decision of Kapil Sibal - minister for telecommunications, HRD and more, and once a close friend of Subramanium’s according to some - to appoint Nariman to appear on his behalf. Nariman was to defend Sibal in a new public interest litigation (PIL) challenging the minister’s decision to reduce the penalty imposed on RCom on the sidelines of the epic 2G scam case.

On the face of it Subramanium had every reason to be aggrieved. The decision under question was taken by a minister acting in his official capacity. He had been appearing before the Bench handling the 2G case and since the PIL would be heard alongside the other 2G matters, Subramanium was supposed to appear on behalf of the Minister. Yet, in what must have sounded like a resounding vote of no confidence, Sibal insisted on Nariman, who was then a private lawyer.

Subramanium promptly resigned but his move was not without recent precedent.

Sensitivities

During the Supreme Court hearings in the Reliance gas case repeated allegations of corruption made by Ram Jethmalani against the then minister for petroleum and natural gas, Murli Deora, prompted the latter to try and appoint PP Rao to represent him in the Supreme Court.

Mohan Parasaran, the additional solicitor general appearing for the government, privately offered to resign (though he denied it later) and the government convinced Murli Deora to back down. In the end, the Supreme Court took no notice of the allegations against Murli Deora in upholding the government’s policies in the matter.

Subramanium probably expected the government to back down, offer the peace pipe and things would go back to normal.

But despite always having had his firm supporters in the upper levels of the bureaucracy, this time Subramanium overplayed his hand.

For one, the government was already reportedly unhappy at the Supreme Court’s Salwa Judum and Black Money verdicts, both of which were cases being handled by Gopal Subramanium for the central government (although it is possible that Subramanium was rather unfairly blamed by the government for the harshness and firmness with which Justice Reddy came down upon the government in both cases).

The handling of the Black Money affair did not win Subramanium too many admirers in government either for the alleged concession made by him to the Court on the setting up of a Special Investigation Team (although this “concession” was denied by the government in the clarification petition filed by it against the Black Money order).

Unfair burden

Law officers, including the attorney general, the solicitor general and the additional solicitors general often find themselves in impossible situations where an enormous burden of expectation is placed on their shoulders with little or no support from their client the government.

Those who have been law officers will tell you tales of being asked to argue a final disposal matter without a copy of the brief, of having to deal with twenty-odd matters on a miscellaneous day, of being sent 10 special leave petitions (SLPs) in the morning and being asked to appear in all of them on that day and other such horror stories.

If the government ever wins its cases it must be down to the individual efforts of the law officers who are, by and large, more than competent senior counsel, and judges’ understanding of the enormous pressures and burdens on law officers.

More than the routine inefficiencies they have to deal with, in sensitive matters such as PILs law officers engage in a tight rope walk between representing their clients’ interests and not being perceived as obstructionist and adversarial in court.

The Salwa Judum and the Black Money PILs are as sensitive as they come and the repeated bad news coming out of the Court displeased many in the cabinet, not a few of whom have experience as Supreme Court senior counsel themselves.

As a lawyer not much blame can therefore be laid at the doorstep of Subramanium.

But in taking his grievances to the whole town he clearly pushed the government too hard. Already under fire on all fronts for corruption and mismanagement the government did not want to be seen as buckling under pressure from one of its own. After some deliberations, the new law minister Salman Khurshid accepted Subramanium’s resignation.

Spectroscopy

In punting for Rohinton Nariman, the government belied the popular press gossip that one of the ASGs - Mohan Parasaran or Indira Jaising - would be promoted to SG. The grapevine also suggested that if one was preferred over the other, the one spurned would quit as ASG causing more embarrassment to the government. Deftly avoiding this situation they picked Nariman.

Nariman could not have been a more different choice than Subramanium. Whereas Gopal had long experience in dealing with the government and had established a great rapport with the bureaucracy in his term as ASG, Rohinton had not before been a law officer of the central government although he did appear as government special counsel on occasion.

Also in manner and temperament they occupy opposite ends of the spectrum. Subramanium is an engaging speaker with an easy manner and an affected, though untraceable, accent. Nariman on the other hand is a veritable force of nature with a thundering voice that always seems just one notch below apoplexy.

As many a briefing advocate will relate, briefing Subramanium is a pleasure - he listens patiently, thanks you for your time and effort and is almost always friendly. Briefing Nariman on the other hand, is like attempting to wrestle the whirlwind. He expects briefing counsel to have every fact, page number and date at his or her fingertips and will seemingly fly off into a rage at the slightest slip. Supremely confident in his own abilities, he can often come across as dismissive and arrogant according to those who have dealt with him.

It is perhaps unsurprising that Subramanium’s office seems staffed with a small army of juniors, whereas Nariman has none.

But make no mistake: both are superb counsel who can almost always be expected to win their clients’ cases in the Court although their fortes are somewhat different.

Whereas Subramanium is a fantastic advocate, Nariman, despite his phenomenal memory, is a much better lawyer than advocate. Although the words “advocate” and “lawyer” are used interchangeably these days, I use them in an older sense (See Chagla’s Roses in December for instance).

According to Chagla, advocates are those counsel whose strength lies in presenting their clients’ cases before court in as convincing a manner as possible, while a lawyer’s strength would lie in the analytic and forensic ability he brings to the interpretation and application of the law. The truly great counsel, like the Late Nani Palkhivala or K Parasaran, are both superb advocates and lawyers.

It remains to be seen how Nariman will handle the pressures of his new job and not just the court appearance aspect of it.

If rumours of Nariman’s elevation to the bench are true then this assignment may be a fairly short one and a stop gap arrangement at that.

His first big assignment seems to be the $2.5bn Vodafone tax case where he’s appearing for the government along with ASG Mohan Parasaran.

The government no doubt expects them to deliver a total victory in this case.

Audience

Back in the new solicitor general’s Supreme Court chambers, the SG took no note of the annoyance or displeasure obvious in the voice of the police commissioner as he was being briefed on the status of the investigation in the cash-for-votes scam. He went through the status report, asked deep and probing questions of them, getting agitated each time the answers were inadequate or evasive.

Finally, he had had enough and his tether snapped.

You guys haven’t even arrested the right people, you have questioned everyone but the main accused, you don’t know how to do a proper investigation, charged the SG. “GET OUT! JUST GET OUT OF MY OFFICE!”

The meeting was over.

Court Witness is an advocate of the Supreme Court of India.

Court Witness’ previous postcards:

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