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Limelight | The Gopal Subramanium Interview: The law is being controlled by politics whereas the law

Mr. Gopal Subramanium is a Senior Advocate at the Supreme Court of India. After completing a degree in law from the University of Delhi, he began his career in 1980 at the Chambers of Mr. Soli Sorabjee. In the early years of his career, he acted as Standing Counsel for the Union of India before the Supreme Court and was also retained by M/S Amarchand Mangaldas & Hira Lal Shroff & Co. In 1993, he was designated Senior Advocate suo motu by the Supreme Court, one of the youngest in India’s history to receive the designation. Mr. Subramanium served as Additional Solicitor General of India from 2005 to 2009. He served as Solicitor General of India from 2009 to 2011, during which period he was also Chairman of the Bar Council of India. Most recently Mr Subramanium has been appointed Honorary Bencher at Gray’s Inn London, a most unique and well deserved honour. In this interview with Swagat Baruah of Catharsis Magazine, he discusses his thoughts on the judges’ press conference, the relationship between law and politics, a lawyer’s conscience, the future of law with respect to artificial intelligence, and constitutional morality.

Swagat Baruah: A lot of events unravelled in the Supreme Court earlier this year, which some would call regretful while others, electrifying. It was definitely historic – the judge’s press conference. What are your thoughts about it?

Gopal Subramanium: I think signs such as consistency and unity indicate the institutional cohesiveness of a good judiciary. However, the value of belief remains paramount. That value appears to have been under some strain, because the four judges came out and spoke publicly, which was a very unusual thing to do. I have a reasonable basis to assume that they wouldn’t have taken that step unless they were distressed to such a degree that they felt the need to make such a point.

Now, what point was actually made by them, and its extent are matters up for debate. But it was a very unusual step. We must hope that it doesn’t happen again. We must presume that individual personalities don’t matter when we deal with an institution. Everybody within that institution has a right to meet the head of the institution and give him his or her views, because the Chief Justice is only the first amongst equals, and he has a duty to listen to everybody who is a part of that institution, and take note of anything which is relevant.

S.B: Justice Kurian Joseph recently stirred it up again, saying that they had felt that the ex-Chief Justice Misra was ‘under external influences’. That exposes the relationship between law and politics, something you happened to see back in 2014 when your appointment was opposed and you were sort of defamed in a distasteful manner. Do you think the law remains separate from politics?

G.S: When I was about to become a judge in 2014, I don’t think I was deterred by the attacks on me. But I thought the degree of statesmanship which was necessary for public office was missing from the Executive, and under those circumstances I had to take a call about my own destiny, and so I withdrew my consent. If I had persisted, I have no reason to believe that I wouldn’t have been appointed. But it would’ve been like starting on the wrong foot.

Having said that, you have made a very valid point, that the law is being controlled by politics whereas the law is meant to be independent. This is a critically important point. Judges have to be completely insulated from political institutions and politicians because political theory or the political establishment is one part under the Constitution and the judiciary is a completely different part. I think that there should be no nexus at all between the two.  It is very easy for institutions of power to suddenly come close to each other. It is like the natural law of gravity. However the very purpose of the judiciary is to resist the gravitational pull of authority. Its very basis is to question what is being done by the authority. So the function of the judiciary is anti-gravity. We have to know that the very nature and purpose of the rule of law is that the judiciary remains away from politics and political establishments.

S.B: But that’s very specific to the judiciary. I’m talking about law and politics as a broader frame.

G.S: The law as a broader framework has a multi-purpose dimension. I think it’s very important for the political classes to be educated in the law. In my view politics must become a proper profession, like, let’s say, management or law. Then chances are that people who become politicians will understand not only the value of public office but also the borderlines which they must not cross. They are unable to understand that because they’re so concerned about their circumference and the sphere of their authority that they tend to overlook what would be legitimate within the boundaries of the law. The increasing consciousness of law is absolutely fundamental to Indian democracy and for that purpose, I believe, the political class or even civil servants who today are being perceived as people who simply do what their masters say, have to change. They have to be independent and they must have a fundamental commitment to the rule of law.

In the past, we’ve had civil servants with extraordinary credentials who actually stood up against arbitrary behaviour. They protected the reputation of the civil service were able to become leaders and advised Ministers and Chief Ministers correctly. So we must not forget that good civil service also forms part of the backbone of the State apparatus. For the civil service to be effective, it must not be based on flattery, or for that matter, oneness of thought. It should be based on quality and competence, and this means that the political class which is the departmental head in government, must never be afraid of calibre and competence. I think it’s very necessary to work this way. There is a very easy feeling of congeniality, a certain happiness which comes when you see that people immediately accept what you say or they do what you say and you tend to feel comfortable when that happens, but they often might not be the best of people because they’re simply playing their game.

So I think there is a need to enhance the consciousness of all institutions in our society. It has to be sufficiently high to be able to understand that to work within a constitutional framework, we have to have a common instrument, which is the Constitution and the rule of law. If we don’t have the Constitution or the rule of law, both in terms of philosophy and politics as you said, then I’m afraid we’ll not be able to go in the right direction.

S.B: You’ve never been overtly political about issues, nor have you been active in politics, which is unusual, given the kind of stature you have as a lawyer in this country, and given that many such lawyers do end up in politics. Why so?

G.S: I’ve always felt the need to be absolutely neutral. This is core to my ethics and values, which others may not share. It is my individual perception. I think that in order to maintain the objectivity and neutrality of a lawyer, it is very important to be a-political.  I have seen great lawyers in my life who were apolitical, such as Attorney Generals M.C. Setalvad and S.V. Gupte. I’ve never forgotten that line of Hartley Shawcross, when as a Prosecutor at the Nuremberg Trial he said, “Whatever your leader may say, you still have to say no when your conscience forbids you”. So the power of one’s conscience is very important, even for a lawyer, and that power must never be yoked or laid to a political apparatus, because politics has its own flight or fancy or attraction that can easily turn one’s conscience into a matter of convenience.

S.B: You speak of the power of conscience, and I mean to lead you with this, to the question of how lawyers grapple with the idea of truth. There has also been some sort of an attack on ‘truth’ recently, with politics being infested with what is being called the ‘fake news’ crisis. How do you, as a lawyer, grapple with truth, when you know that a certain case is true or isn’t true?

G.S: Well, there is truth on two levels. One is truth in terms of your professional duties and the other is truth in terms of being a citizen in society. Let’s talk about the first. As a lawyer, I’m duty bound under the ethics of my profession to do my best for any person who comes to me. I am not here to sit in moral judgement over them. If however, I feel that the facts are such that I would  never be able to offer him or her the best legal representation, then I must decline the brief. But that is a professional judgement which you must make, a moral judgement which you should make. So every person is entitled to come to a lawyer and no lawyer must, except in the rarest of cases, decline a brief. He should decline a brief only when he feels that professionally he can’t perform well in that particular case. It depends. For instance, if a particular lawyer is completely uncomfortable with a certain kind of subject, then he should decline the brief.

This is about truth in that sense. Truth is to be determined by a court, but in order for that to occur, the lawyer doesn’t have to actually behave falsely. Even within what he has, he has to put forward the best possible case and then leave it to the judge to determine the truth. The determination of the truth is not the lawyer’s province, it is the judge’s province. This is in far as truth for a lawyer is concerned.

Truth for a citizen is a far more valuable issue which you’ve raised. Incorrect articles in the print or in social media news can produce devastating effects on the targeted individuals. I think it’s very unfortunate. It does tremendous psychological damage. This is where I think there is a measure of irresponsibility which has crept in because of  access to technology and the ability to pervert or subvert the use of technology for promoting untruth. This is a very serious temptation, which can be avoided by our growth in terms of moral stature. As a society we must not allow things which are false to be made public through a tweet, or in print.

S.B: You have argued in both the Privacy case and the AADHAR case and as you can see, there is a paradigm shift in how technology plays a role in law. How do you think, say, in terms of artificial intelligence, the law will play a role?

G.S: Well, artificial intelligence can’t be avoided. Algorithms are being used in all apps on our phones. But I think somewhere, the moral judgement relies on the individual. However to the there can be some bottom-line screening, or screening of what is called, ‘essentially routine matters’. The existence of templates and managing dockets through templates makes artificial intelligence extremely useful. Standardisation techniques or standardisation of pleadings or service or summons can be done through artificial intelligence with proper software protocols. I think that should not be difficult. The inter-linking done by the e-Courts under the supervision of Justice Lokur has been an absolutely magnificent success in this country.

You can now use an algorithm to find firstly, the category of cases and secondly, how much time is required to actually dispose it off. But to find out how much time is required you don’t have to look at the past, you have to devise a module for the future. The module for the future will involve necessarily, lawyers using technology, and they’ll have to spend a lot more time at home, prepare their papers, put in a skeletal argument so that the focus in the Court is on very specific points and so that the judge is also able to write a judgement very quickly. As I see it, technology is bound to bring a redefinition of lawyering in India. I think that it’s important that technology comes into the law because it’ll make the rule of law a very powerful, empowering tool in the hands of the common man. For example, the common man should be able to take recourse to some sort of an app through which he can connect to a police station or a social service station as is necessary. I think therefore, technology is vital. However, a judge should never expect a computer to produce a judgement. He would still have to produce a moral judgement and exercise his own individuality.

S.B: We have seen the exercise of constitutional morality in recent judgements, like the 377 judgement or the Sabarimala judgement. How do you view constitutional morality in light of a society’s status quo and an individual’s right to practice and propagate his religion?

G.S: Constitutional morality is quite different from religious morality. There could be some tenets of religious morality which could overlap with constitutional morality. But constitutional morality encompasses a bigger universe of freedoms and individuals with multiple tastes, potentialities, personalities and genes. It cannot be fitted or homogenised into a particular kind. Constitutional morality is what we believe is the true spirit of the Constitution. The expectation of the Constitution as a living document is Constitutional Morality that is quite distinct from a limited conception of religious morality.

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