Every advocate, lawyer and barrister places their upmost dedication and passion into their role in the legal sector; the role they play more often than not, requires sacrifice and a hard-working nature. Gopal Subramanium is a perfect example to how hard work pays off, not solely for selfish purposes, but for the nation and its Courts.
Gopal commenced his legal practice in 1980 in the Supreme Court of India and by the time he was 35 years old, he was designated a Senior Advocate (Queen’s Counsel equivalent) suo moto by India’s Supreme Court.
His sheer dedication enabled him to become one of the youngest to be designated by the Supreme Court and thus saw him take on challenging and pinnacle cases that India would not forget and evidently so, as Gopal was honoured with the National Law Day Award for Outstanding Jurist, in 2009 by the President of India, for his consistent professional excellence and adherence to the highest traditions of the Bar.
Gopal’s list of achievements is endless; he has been involved in a number of landmark cases, tackling issues from mental illness to terrorism. More recently in 2013, Gopal acted as a member of a Committee to Recommend Amendments to Criminal Laws, recommending much-needed amendments to various Indian laws, to ensure the safety and dignity of women and young children.
Gopal's arbitration experience includes appearing as lead Counsel for Indian companies in ICC and domestic arbitrations. He has also appeared in cases concerning the law of arbitration in India, including the BALCO case (2012), where the Supreme Court of India ruled on the applicability of Part I of the Indian Arbitration & Conciliation Act, 1996, to arbitrations held in a foreign seat, and awards arising therefrom. He has Acted as the Special Public Prosecutor in the prosecution of Ajmal Kasab, the sole surviving terrorist who carried out attacks on Mumbai in November 2008; and has acted as amicus curiae to the Supreme Court in 2011 in the matter of Bachpan Bachao Andolan v. Union of India, where he presented a report on the realities of trafficking of children in India, and assisted the Supreme Court in framing guidelines to deal with the menace of trafficking.
Gopal continues to act as lead counsel in several path-breaking matters. He recently acted as lead counsel for Novartis AG in Novartis' challenge before the Supreme Court to a denial to grant it an Indian patent for the cancer drug ‘Glivec'.
Evidently, Gopal’s extensive contribution to the legal sector is more than greatly appreciated and recognised; he has delved into significant cases and trials, which not only tested his own ability, but also challenged India’s Court.
This month it brings us great pleasure to discuss with Gopal his achievements, the actions he took to become as well recognised as he is today and how India has progressed throughout his years of practice; Gopal delves into how he dealt with cases involving the terrorist attacks in India, as well as individuals wrongfully detained in mental hospitals.
You were one of the youngest lawyers to be designated a Senior Advocate by the Supreme Court of India; can you explain to Lawyer Monthly what was behind this success? Moreover, how did you find that transition and how did you use your age to your advantage?
A prerequisite to becoming successful at the Bar is hard work. One also needs to ensure respect towards the Court and the judicial process. Equally, a lawyer ought to acknowledge his duties as an advocate, foremost among which must always be an unequivocal display of integrity.
Being designated a Senior Advocate by the Supreme Court was a great honour, though the transition was indeed difficult, involving some personal sacrifice. There was, for instance, a need to be patient with money, and to serve the Court with care and objectivity.
The advantage of being recognised as a Senior Counsel at a young age was an affirmation that the Court insisted on merit, character and independence of judgement as criteria for such designations.
What common cases do you face when called to the Supreme Court of India?
I have had the great privilege of arguing a variety of cases before the Supreme Court of India. These include criminal appeals, commercial cases, appeals from arbitral disputes, and intellectual property litigation. I also appear in several constitutional matters, especially those involving the interpretation of the Constitution and fundamental rights of citizens.
Importantly, I undertake pro bono work because of my commitment to Legal Aid, and am honoured by occasions where I am appointed Amicus Curiae by the Court to provide them an objective and non-partisan opinion in complex cases. I must say that while all the cases I deal with involve a significant degree of concentrated effort, it is such cases that are most deeply satisfying to me as a lawyer.
You’ve acted as a member of a Committee to Recommend Amendments to Criminal Laws in 2013. Since then, do you think amendments to the law have affected the ever-growing concern of equal rights for women and young girls (and boys) in India? What more do you think can be done?
I had the great privilege of serving on the Committee on Amendments to Criminal Law alongside Justice Leila Seth and the late Justice J.S. Verma. I cherish my experience with the Committee, especially owing the tremendous respect I have for my fellow members.
The Committee began its work during a challenging time for the nation and its people. Though this made our work difficult, it also made it more important. It was necessary to acknowledge the expectations Indian citizens had from the Committee; it was, however, more important to approach issues concerning gender equality and sexual violence with a degree of objectivity and dispassion.
We consulted several experts in criminology, gender studies and psychology before publishing a comprehensive report on the changes that were needed in India’s criminal law framework. The report made a number of recommendations on the law concerning rape, sexual harassment, trafficking, child sexual abuse, the medical examination of rape victims, and police reform. Recommendations were also made regarding the need to introduce sexuality education at schools.
I believe the Committee’s report was influential in addressing the concerns of gender equality. Some of our recommendations were accepted by Parliament, and have since brought about amendments to criminal law. The Report was also treated as a valuable contribution in other jurisdictions.
The Report, we intended, would enable us to change our thought and attitudes, and promote equality in its true essence.
I must add, however, that I am optimistic that with time, society will rid itself of the evils of sexual violence.
Can you talk Lawyer Monthly through the process of investigating into individuals being wrongfully detained in mental hospitals? What Thought Leadership skills did you apply to the case?
The case in question arose in Sheela Barse v. Union of India, a matter that concerned the unlawful detention of mentally ill persons in prisons. The Supreme Court had passed an order strictly prohibiting the confinement of non-criminal mentally ill patients in jails. To ensure that the State of Assam was complying with this order, I was appointed a Commissioner by the Court.
Gauging the reality on the ground was an immensely saddening, even devastating, experience. I found that almost 400 persons had been unlawfully confined to prisons solely on the ground that they were mentally ill. The conditions under which they were kept were deplorable, sufficient to cause more trauma to those so imprisoned. Many did not even suffer from any mental illness.
At personal expense, I had ventured beyond my mandate in preparing my Report, not because this was common practice, but because it was necessary. As an Officer of the Court, it was my duty to provide a comprehensive and objective account of the facts to the Court. In doing so, I also recommended that those who had been wrongfully confined be adequately compensated for the violation of their constitutional rights. It was a proud moment that the Court accepted my report in its entirety.
For me, the experience was also an exercise in learning. I learnt that the true spirit of the Constitution and the rights it recognises must be upheld and affirmed.
Moreover, what further considerations must you make when dealing with legal cases including terrorist attacks? How do you deal with the added pressure of the public’s concern and scrutiny?
Cases involving terrorist attacks are incredibly testing. One owes a duty to the Court to handle such matters delicately, with due care towards the rights of the accused, and above all, with a degree of impartiality. It is important for a prosecutor to refrain from falling prey to mass (though justified) hysteria, and to guide the Court towards a just decision. The outcome that is reached must be devoid of vengeance and malice, and instead serve the ends of justice.
I have looked to adopt this belief in cases that followed from terrorist attacks. I served as prosecuting Counsel for the Central Bureau of Investigation in the case of the Bombay Blasts of 1993 and later, as a Special Public Prosecutor in the Parliament attack case of 2001. I appeared in the case concerning attacks in Mumbai in November 2008, where 164 people lost their lives. It was a moment of gratitude when the Supreme Court in its judgement recognised my dispassion in this case. The feeling that one had done a service to the nation and achieved a just outcome was incredibly rewarding.
How do these specific considerations differ when you are acting as Counsel for commercial reasons (for e.g., your involvement in the Indian patent case concerning the drug ‘Glivec’)?
Appearing in commercial disputes requires approaching cases very differently. The frame of one’s mind while arguing a constitutional matter is, for instance, significantly different from the approach one takes to commercial litigation. There is, first, a need to acquire industry-specific knowledge. In a pharmaceutical patent case, this would involve studying medicinal chemistry and pharmacology in considerable detail. Similarly, for a mining dispute, one must spend sufficient time grasping the nuances of mining procedures and developing an understanding of the best mining practices. This knowledge may not always be of immediate relevance to a particular case, but is nevertheless necessary to form a thorough understanding of the intricacies at play. I often attempt to develop such an understanding through sessions with experts in their fields, in addition to a significant amount of self-study.
It is also worth noting that a lawyer has a duty to guide the Court, carefully and meticulously, through what are often complicated cases. Subject-specific knowledge often impacts the success of this cause.
What different problems are you presented with when acting as lead Counsel for Indian companies? Have these changed over time as India as progressed?
Being the lead Counsel for companies before the Supreme Court is always a stimulating experience. The Court often, and rightly, considers public interest in reaching its decisions. To then convince the Court of the necessity of purely commercial interests becomes incredibly challenging (an enjoyable challenge, I might add).
I often appear on behalf of companies in property disputes, patent infringement matters, and challenge and enforcement proceedings that arise out of arbitrations. Perhaps the greatest difference I have observed over years of practice is the ever-increasing presence of foreign companies in commercial disputes. Indeed, foreign companies have to be advised about the Indian legal system carefully.
What are you hoping to change in the next few years in India that will enable it to progress globally?
At least at this point in my life, it would be wise to limit my efforts to the legal domain. I hope that the professional standards which lawyers must meet are not only met, but also surpassed. It is necessary for lawyers to conduct themselves with unquestionable integrity, devoid of ego or the need for personal gratification. I often tell my juniors that their need for personal financial development ought to be secondary, subordinate to their duties towards clients and the Court. A better and stronger judicial system, where the law is practised with honesty, will undoubtedly help in India’s progress in every way. The best investment, I told the government recently, was to strengthen legal institutions.
