The resignation of Gopal Subramanium, the solicitor general of India, has been accepted, with the government regretting that he had gone public and approached the president of India to intervene. At one stage, it was not clear if the resignation was for real or simply a protest. If it was the usual form of public sulking, he tempted fate by going public to suggest that he is not personally peeved but that the public protest was for the dignity of his office and the good of the cause. If his resignation was intended to be irrevocable, the protest having been made, he should have made his resignation good without waiting. If it was a protest, how was the matter to be resolved? Did he expect an apology from the government? Or that he would be asked to come back on an all-is-forgiven basis?

This was really a meaningless controversy. Subramanium has had a long, but not undistinguished, career as a private sector, public sector and government lawyer. His court performances bring credit to him even if he argues with an affected English accent picked up in Delhi of all places. Some find this piquant; others irritating. Perhaps, his accent has persuaded him to believe in quixotic standards of professionalism borrowed from elsewhere. In this case, he believes that the government has slighted not him, but his office. This is in the good desi tradition that an Indian always lives for others, never for himself.

The slight that Subramanium claims to have faced is that another lawyer (Rohinton Nariman) from the government panel has been appointed to deal with a part of the 2G spectrum case, in which Subramanium was the lead counsel, without Subramanium being consulted. It cannot be the case that Subramanium had to give his consent to the government appointing an additional counsel. To claim such a veto on the government’s decision would have been irresponsible. Nor has Subramanium claimed such a privilege even if it had not been exactly indicated in the contours of his discomfort. Did he have the right to be consulted? What would have been the upshot of the consultation? If Subramanium put his foot down and the government insisted on an extra and special counsel in addition to the existing team, could not the government have gone ahead and appointed the special advocate counsel in any case? At best, the consultation with him would have been no more than a gesture, a courtesy.

It is important to stress that Subramanium had not been sacked from the case. He was to remain the lead counsel in the 2G spectrum case. There can be no dispute that if any client wants to replace their existing counsel with another, they are perfectly entitled to do so. No case is a fiefdom for a lawyer. If Subramanium had been removed from this case, in terms of professional ethics, there was nothing that he could do. Replacement of government counsels is well known. In recent times, Vikas Singh was replaced by the attorney general, G.E. Vahanvati, in the forest matter. Subramanium himself had given rise to concern about his continuing in a case over an affidavit filed in the Ram Setu matter. In such cases, a slighted solicitor general or government counsel may resign. But few would do so because they respect the government’s right to change any counsel in any particular case. If law officers have differences with the government on aspects of law and policy which are of a fundamental nature, they may tender their resignation. But it does not appear that Subramanium had any difference of opinion of a fundamental nature with the government. In fact, in the 2G spectrum case, it was not his stance that he would not appear in this case. Was he resigning from the case (the smaller and less dramatic option) or from the post of solicitor general itself (the more dramatic option which was front-page news)? The lesser option might have been better because his pique was limited to this case; and this case only. Even this smaller option would have won Subramanium public notoriety — it not being clear what he wanted by going public.

We should also be clear about the appointment of special counsel. This happens all the time. Fali Nariman represented India in a dispute with Pakistan in which none of the law officers were involved or consulted. The former attorney general, K. Parasaran, has often been asked to appear in various Constitutional matters instead of the law officers. I was asked to appear in a contemporary controversial case, but declined because of a possible conflict of interest. In certain cases from various states, the government asked me to lead in matters even though the advocate general was also part of the team. Equally, when arguing matters, the Union government (and sometimes state governments, if they can afford it) hunt in litigation packs. There is not just one lawyer who is part of the team, but several government lawyers — including, in some cases, the attorney general, solicitor general, and others. Thus, Subramanium can have no grievance that a government team consists of more than one counsel or that special counsels were also appointed in various cases on certain aspects of the case or generally.

Now let us see what happened in the 2G spectrum case which annoyed Subramanium. Prashant Bhushan had brought the 2G spectrum scam to the attention of the court which duly acted to examine criminal liability in relation to the issuance of licenses at low rates under suspicious circumstances. Bhushan is now the self-anointed spokesman of the public interest with sling-shot ability to target public persons and controversies. This has resulted in his being involved in an unfortunate contempt case. This time his target was the telecom minister, Kapil Sibal, for having reduced the penalty against Reliance from Rs 50 crore to Rs 5 crore over the breach of an undertaking to supply rural telecommunications. This, as the bench pointed out, had nothing to do with the 2G issuance of license scam. In fact, Reliance’s license in the penalty case was not before the Supreme Court. Thus, in one sense, the pot shot at Sibal failed with egg on the face of Bhushan’s endeavours.

The question before Sibal and the government was to keep the latest Bhushan pot shot as distinct and separate from the main case where a CBI investigation was under way. It seemed logical to keep this side wind in a separate compartment so as not to confuse issues. Subramanium’s position in the main case was not affected in any way. The dignity of his office demanded that he continue to honour his commitment to appear in the main matter; and perhaps to tell the court that the Bhushan pot shot did not concern the main case; and that Nariman was appearing in it. It was as simple as that. His advent into resignation for the dignity of his office was entirely misplaced. In fact, his resignation sent the false message that the two issues were connected and that he, rather than Nariman, should appear in both the 2G case and the pot shot attempt.

It is unfortunate that jurists like Soli Sorabjee and J.S. Verma have supported the resignation as protecting the dignity of the office. Sorabjee came under severe fire when he became attorney general for the Bharatiya Janata Party to argue the Babri Masjid case from the opposite side from whence he had appeared earlier. Verma’s was a typically knee-jerk reaction, especially since he believes that clients determine who should appear for them.

Subramanium has not done his office or the public interest a service by elevating his resignation to a dignity-of-office level. In the past, solicitor generals such as N. Santosh Hegde and Harish Salve had submitted resignations privately to allow the issues to be resolved between the government (client) and its lawyers. Subramanium went public to embarrass the government, his office and himself. Most unfortunate.