Fearless fighter

Print edition : September 11, 2020

Prashant Bhushan. Photo: Thulasi Kakkat

Prashant Bhushan is no stranger to controversy and his defiance of the Supreme Court is in line with his past human rights interventions.

The defiance of Prashant Bhushan in the contempt of court proceedings against him by the Supreme Court will go down in history as a record of a lawyer’s conviction against the might of the highest echelons of power. His spirited defence of his right to hold a bona fide opinion, his refusal to apologise for it, and his cheerful acceptance of its legal consequences have also provided the much-needed boost to the spirit of freedom of speech in a country beleaguered by intolerance.

His detractors say that he loves nothing more than a good fight and even thrives on it. This August, he proved his critics correct by showing that he will not be cowed down by intimidation.

Hardly a stranger to controversy, Prashant Bhushan, 63, is one of the brightest lawyers of his generation and has a passion for human rights. The son of Shanti Bhushan, a former Law Minister in Morarji Desai’s Cabinet, Prashant Bhushan had a formidable example to follow. Shanti Bhushan was well respected across the legal fraternity and was best known for going head-to-head with Indira Gandhi on behalf of Raj Narain who challenged her election from Rae Bareli, which got annulled. Prashant Bhushan, a student at the time, wrote a first-hand account of the court hearings in the book The Case that Shook India.

From the very beginning, he showed great promise and a tendency to go against the grain. He left a course in mechanical engineering at Indian Institute of Technology Madras and then a philosophy course at Princeton University to do a law course from Allahabad University. Over the years, he built a reputation for himself as an effective public interest litigant, often filing public interest litigation (PIL) petitions through the Centre for Public Interest Litigation (CPIL), an organisation founded in the 1980s by his father and V.M. Tarkunde, often called the father of the civil liberties movement of India.

In the courtroom, he has an imposing presence and his booming voice makes the judges sit up and take notice. His activism and intervention have shaped public policy and led to the creation and downfall of political parties and governments. His portfolio has high-profile cases including the Narmada Bachao Andolan; the Bhopal gas tragedy; the 1984 riot cases that he filed as a member of the People’s Union for Civil Liberties(PUCL); the Bofors case; the Enron case; the Panna Mukta Oilfields case; the Niira Radia tapes case; the PIL over the appointment of P.J. Thomas as Central Vigilance Commissioner; the Mauritius Double Taxation case; the PIL over reservation for Dalit Christians and Muslims; and the PIL over alleged irregularities in the Delhi Judicial Examination Services.

He has intervened in cases relating to the environment, proper implementation of the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), judicial reforms, guidelines on police encounters, genetically modified crops, and the demand to bring the Chief Justice of India’s office under the Right To Information Act. He pursued the 2G spectrum case along with Subramanian Swamy, which sowed the seeds of a moral and electoral defeat for the Congress-led United Progressive Alliance (UPA) government. He often did cases pro bono and believed that lawyers should not charge fees for PIL petitions.

One of his more recent interventions was a PIL petition in the apex court asking for the transfer of money collected for the coronavirus pandemic under the PM CARES Fund to the National Disaster Response Fund.

In 2016, a Supreme Court Bbnch comprising justices T.S. Thakur, A.K. Sikri and R. Banumathi questioned the credentials of the CPIL and wondered how filing PIL petitions could be the sole activity of a non-governmental organisation (NGO) or a professional body.

Prashant Bhushan’s career is closely linked with the history of PIL in India, a subject on which Rajeev Dhavan, his representative in the contempt case, has written extensively. Dhavan has traced how, from being hailed as a “silent revolution” to being perceived as a “people’s court”, “true PIL” carried with it a “promise of liberation” for the disadvantaged.

“But it soon transcended its earlier self-imposed limitation of considering and enlarging the cause of the disadvantaged. It was appropriated in the service of a range of public causes including the manner in which High Court judges could be transferred and the corruption of politicians and, later, judges. Political use of the new PIL was not far off as individuals (ostensibly acting in the public interest) sought to squash the international investigation of the Bofors scandal (in which, allegedly, the late Prime Minister Rajiv Gandhi was involved) or the expulsion of politicians from the legislature. PIL has not quite lost its edge. It has simply grown entropically. If it was created to discipline and ‘conscientise’ the system of governance, forces in civil and political society have appropriated it in hugely diverse ways. PIL was randomly appropriated to serve the diverse demands of the rich and the poor, the social activist and the party politician, the genuinely interested reformist and the socially fraudulent,” Rajeev wrote in the Journal of the Indian Law Institute in 1994.

PIL as a tool

Nevertheless, Prashant Bhushan skilfully used the tool of PIL to intercede on behalf of the man in the street and the powerful with the justice system. In both roles, he came across as not a bleeding heart liberal but a shrewd interpreter of the law for the benefit of his client and cause.

He often stuck his neck out and took principled stands. For instance, in 2014, he declined to name the whistleblower who disclosed the alleged interference by Central Bureau of Investigation (CBI) Director Ranjit Sinha in the 2G investigation.

Prashant Bhushan founded the Campaign for Judicial Accountability & Judicial Reforms (CJAR), which often found itself in the midst of court-room dramas. In 2017, the CJAR filed a petition asking for an investigation into allegations of corruption that reached the corridors of the apex court in a case pertaining to a medical college in Lucknow. In the course of the hearing, standing before the then Chief Justice of India (CJI) Dipak Misra, a fearless Prashant Bhushan asked for the recusal of the CJI as the allegations in the first information report (FIR) were against him. When the CJI remarked that his comment amounted to contempt, PrashantBhushan told the CJI to go ahead and issue a contempt notice, but the CJI replied that he was not worth it.

This is not Prashant Bhushan’s first brush with contempt of court. In 2001, he was accused of contempt along with writer Arundhati Roy and activist Medha Patkar. In his response, he said: “I would like to say at the outset that I am amazed by the fact that such a ridiculously false and malicious contempt petition should be filed by persons who call themselves lawyers. I am however more pained by the fact that such a petition should have been entertained by this court which should have seen the falsity of the allegations made against me from the nature of the allegations and the recklessness with which they have been made.”

His judicial activism has led him to make several remarks on the judiciary in the past. Take, for instance, his articles on judicial accountability that appeared in leading newspapers and journals. In a 2009 article that appeared in Economic and Political Weekly, he wrote: “It is clear from the recent record of the higher judiciary that the imperative of upholding civil liberties, socio-economic rights, and environmental protection has been subordinated to agendas such as the ‘war on terror’, ‘development’ and satisfying corporate interests. Far from remaining faithful to the motives that resulted in the institution of public interest litigation, the Supreme Court has tended to act against the interests of the socio-economically backward.”

In 2011, Shanti Bhushan and Prashant Bhushan put their weight behind the India Against Corruption (IAC) movement led by Anna Hazare that was fighting for a strong Lokpal Bill. Later, the platform led to the creation of the Aam Aadmi Party (AAP) led by Arvind Kejriwal. The Bhushans had to weather many storms as part of the campaign. It was alleged that Shanti Bhushan and his son Jayant Bhushan got two farm plots from the then Uttar Pradesh Chief Minister Mayawati from her discretionary quota. The Bhushans denied the allegations and in their defence said that they were fighting cases against Mayawati and the question of obtaining favours from her did not arise.

In 2015, Prashant Bhushan and Yogendra Yadav were unceremoniously removed from the AAP because they wereblamed for plotting against the AAP in the Delhi Assembly elections. The two formed Swaraj Abhiyan, a socio-political organisation. Prashant Bhushan admitted later that Anna Hazare and the IAC movement were used by the right wing. In a tweet in 2018, he said: “Modi needed Anna only to discredit the Congress and climb to power using his movement. He has no use for Anna now that he is in power. He has jettisoned the Lokpal, not notified the whistle blower law, appointed corrupt people to the CVC and the CBI, and escorted various scamsters out of India.”

In 2011, Prashant Bhushan was attacked by Bhagat Singh Kranti Sena and Shri Ram Sene activists for his statements on Kashmir that supported a referendum and the withdrawal of the armed forces from the valley. Despite threats by the political parties, he stood by his comments just as he is standing firm before the Supreme Court today.