One of the first issues that the new Union minister for law and justice, Salman Khurshid, will have to deal with would be the resignation submitted by Union government’s Solicitor General Gopal Subramanium. On Saturday last week, Mr Subramanium shot off his resignation letter, apparently in protest against the move to hire Rohinton Nariman to argue for the government in a Supreme Court case against Communications Minister Kapil Sibal. Mr Nariman is a senior advocate, but his name does not figure on the government’s panel of law officers. Presumably, Mr Subramanium may have also felt offended by the government’s move to hire Mr Nariman without prior consultation with him. Also adding to his pique must have been his disappointment over the manner in which the Supreme Court has been making critical observations about his client, the Government of India. In the recent black money case, the apex court had dismissed Mr Subramanium’s fervent plea against setting up a special investigation team to monitor the probe into unaccounted wealth. Seen in the context of the recent adverse verdicts and the appointment of a lawyer in a case without his knowledge, Mr Subramanium’s resignation is perhaps understandable. However, it could be argued that a better option for him would have been to resolve the issues that bothered him through internal consultation instead of shooting off a resignation letter and insisting on it, thus adding to the long list of embarrassments the government is already burdened with.
Not keeping Mr Subramanium in the loop while appointing Mr Nariman to argue a government case in the Supreme Court may not have been a prudent move, but it would be wrong to assume that having appointed a solicitor general or a panel of law officers, the government cannot choose someone else to defend it in a court of law. In the past, the government has used the services of senior advocates, who were not on the government’s panel of law officers, the late Nani Palkhivala being one celebrated example. There have also been many instances in which specially appointed advocates for specific cases have reported directly to the law minister. Indeed, there were good reasons for hiring a fresh lawyer for this particular case, which pertained to Mr Sibal’s actions with regard to a telecommunication company. This is because the government’s primary argument was to de-link it from the case on the 2G spectrum allocations, with which Mr Subramanium was closely involved. Thus, it made sense to have that case argued by another lawyer. In any case, the government as a client has every right to choose the advocates who should defend its cases without any encumbrances and not always necessarily from its panel of lawyers. A solicitor general is a valued member of the government’s legal team, but that cannot deny the government the right to get the best legal advice available within or outside the system. Finally, as a general principle the government should retain the right to hire the best talent available in the market for any such professional work and not be constrained by the officials at its disposal.