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The epoch of Prashant Bhushan: Court Witness’ brief history of PIL

Bhushan: One of a kind
Bhushan: One of a kind

It won’t be long after you start practice in the Supreme Court of India that you come across the figure of Prashant Bhushan striding purposefully between the courtrooms.

Not for him the stately stroll of senior counsel, whose gait suggests they own the place, or the frenzied running of junior advocates scrabbling with the hordes every day, panic and anxiety writ large on their as yet unmarked faces.

Bhushan stalks the corridors in measured steps, the furious scowl of a man who sees more than others and does not like what he sees.

The three epochs of PIL

When the Supreme Court, in a moment of constitutional penitence, opened itself up to public interest litigation, it had in mind a certain class of person who had been banished to the margins of not just the justice delivery system but Indian society itself.

It thought of the undertrials, detainees, the homeless, and bonded labourers among others who’ve never dared to dream of the court as a remedy to their ills. This was the initial wave of public interest litigation (or what I prefer to call the Bhagwati epoch of the PIL).

As with everything else, PIL in India went from dealing with certain specific problems faced by classes of people to the issues faced by the much wider population of the country. Sexual harassment at the workplace, investigation of corruption cases and environmental issues, inter alia, now dominated the court’s public interest docket as it struggled to grapple with complex issues facing Indian society. This could possibly be called the JS Verma epoch of PILs.

Following on from the first and second waves of public interest litigation, a third and wholly new wave of public interest litigation came up: malfeasance in governance.

The origins of this may possibly lie in a few cases in the 1990s (such as the petrol pump allocations case), but the tide really swelled in the noughties, becoming a wave in the last seven years or so. These are cases which allege collusive corruption or malfeasance where the harm is not caused to any one person or set of individuals but to the wider public interest. These are the cases that arise through secret deals made in the corridors of power where the money trail isn’t a simple exchange of briefcases but complex transactions that require years of effort to unravel.

That illegality has been committed is easier to prove but who should be punished and who should suffer the natural consequences is a lot harder.

It is in this kind of category of cases that Prashant Bhushan has made his name - surfing the crest of popular resentment against corruption in high places. And since it’s difficult to find any one judge who’s done the most on this front, I think it’s appropriate to call it the Prashant Bhushan epoch.

Greatest hits

Though from an illustrious family of lawyers (his father, the renowned Shanti Bhushan, and his brother, Jayant, a much sought after senior advocate and polar opposite in most ways) he did not follow in the footsteps of his father initially.

More interested in physics and philosophy, his interest in the law was apparently piqued while following the (in)famous Indira Gandhi election case, which his father argued in the Allahabad High Court for Indira’s opponent, Raj Narain.

And perhaps helped spiritually by the safety net of his father’s not inconsiderable wealth, he had the luxury to dedicate himself full time to public interest causes in a manner that few others could or did.

Over the years, Prashant Bhushan has had many notable hits and misses with public interest litigation, with most of the misses taking place in the 90s and noughties but many of the hits coming in the last few years. Among the more prominent “misses” one can count the Narmada Bachao Andolan case, the Azadi Bachao Andolan case, and recently, the Cairn-Vedanta oilfield deal.

His PIL hits have become more regular in the recent years and have been arguably more spectacular than the failures in their consequences: the Radia Tapes case, the 2G scam cases, the Coal Scam case, and the striking down of Section 6A of the CBI Act.

In these, he’s found himself allying with the most unlikely of public interest litigants, Subramaniam Swamy, in bringing about landmark judgments that have shaken up the government of the day.


Public interest litigation has evolved over the years covering not only a wide range of causes but also differing litigation strategies.

Broadly, there are three categories: there are the straightforward ones which seek to get a particular law or notification struck down, there are the ones where the Government has failed to take any action in response to a situation, and there are those where the Government has failed to address a long-standing problem.

They all call for different measures and different approaches, and likewise different litigation strategies. A good counsel knows what prayers to press in court, what to keep in reserve and what to drop entirely.

Public interest litigations, like all litigation, are therefore a bit like the game of chess; the initial moves are aimed at setting up the pieces that then allow for the maneuvering, which decides who will win or lose, but the players are always ready for the prospect of an honourable draw.

With Prashant Bhushan, though, one gets the sense that he doesn’t play for a draw. He’s always going for the win and if he doesn’t get it, he will fight until he’s beaten. The strategy of going for all or nothing can pay off spectacularly or fail miserably.

A question of delivery (and preparation)

Listening to Prashant Bhushan argue in court is no easy task.

Some advocates (senior and otherwise) possess the ability to hold your attention that is almost preternatural. They could be arguing inane minutiae of tax law but make it sound like a gripping treatise on the state of the nation’s economy. To this category belongs someone like Salve. Listen to Salve long enough and you’ll voluntarily hand over your wallet to the nearest Reliance Executive.

Some others have the natural voice of authority - they rarely need to raise their voices in court to be heard. When they say it, it sounds like the law itself has taken flesh and stands in court. When Fali Nariman speaks, one imagines that this might have been what the Israelites heard when Moses came down from the Mountain. “M’lord, let the good Lady go!”.

Most of the others though, are extraordinarily dull. They drone endlessly quoting long passages from judgments and reading clause after clause in long and drearily drawn legal documents. Good judges know how to cut them short and get them to come to the point quickly, and mercifully end the hearing. Trying to keep your eyes open in a courtroom after lunch while one such counsel goes on and on and the judge can’t be bothered to be done with the matter is an exercise in futility and it is best to surrender to the embrace of Somnus.

But Prashant Bhushan is quite different still, in the sense that he is a terrible public speaker.

His voice modulation is non-existent and he is never reaching out to the audience to convince them of his vision, and it’s often laden with self-righteous indignation that seems like second nature. He is the country preacher, full of fire and brimstone, promising hellfire to those who do not believe him.

Listening to Bhushan argue is an exercise in patience. He doesn’t seem to argue so much as tell the story of a massive conspiracy built upon a web of lies, deceit and treachery aimed at defrauding the Indian public at large.

With him there’s no question of dispassionate argument at the bar. He identifies himself entirely with the cause he’s representing and will brook no neutral view.

He will not give any ground and he will not take the middle ground as a means of compromise. It is my way or the highway. Where counsel argue on dry fact or law, Prashant Bhushan can sometimes sound like he’s getting by on conspiracy theory.

When Bhushan commits to the fight though, he’s as well prepared as any senior advocate opposing him.

He’s not a fly-by-night operator slapping together a few newspaper reports for a moment’s publicity through PIL.

His delivery may be conspiracy theory but he carefully builds a case with reams of documents (howsoever obtained).

Newspaper articles and investigative journalism can only hint at the illegality that take place in this world, but if you want to ensure that such illegality is struck down at its root, a cogent and defensible legal case has to be built, and that is where Prashant Bhushan excels.

Begrudging alliances

Prashant Bhushan is not a popular man when it comes to the lawyer community that is still largely and staunchly conservative: his left wing views on most subjects therefore have few takers.

The most he gets is a sort of grudging acknowledgement of his contribution to the Supreme Court’s cleaning up of governance in the country.

Many of his numerous fans, however, tend to be from the younger lot in the bar who’re glad that not everyone around them in the profession is a weary cynic mouthing platitudes to the law and playing the system for their clients’ (or their personal) gain.

The more malicious in the bar spread rumours of how Prashant Bhushan’s work is always on behalf of vested interests but always dodge requests for proof or evidence ending with an “everybody knows” or “this whole country is like that”.

His recent plunge into electoral politics (though he himself did not stand for elections) allows his accusers the lazy “politics” handle to beat him with. In a neat ironic twist, they apply Prashant Bhushan’s “conspiracy theory as argument” routine to Prashant Bhushan himself, but with little factual backing.

Likewise, judges seem to regard him with reactions from grudging admiration to disguised disdain.

His tendency to shoot from the hip on judicial corruption, breaking the omerta that binds senior lawyers and judges, does not endear him to the folks across the bar.

Nonetheless, they know that much of what is credited to them in by the public in their landmark is also the result of the work Bhushan’s put in to get the matter that far.

Disrupting the coterie

It’s undeniable that Prashant Bhushan has, to use a word that has gained much currency of late, chutzpah.

The bar, in any part of the country, is usually dominated by a small group of self-congratulatory men (with notable exceptions) who never have their beliefs and assumptions challenged, but instead see them justified by the vigour with which hundreds of young men and women join the bar hoping to be just like them.

It’ll take many more Prashant Bhushans before they even begin to seriously question much of what they do and what they’ve become.

That said, one Prashant Bhushan is a good start.

Court Witness is an advocate of the Supreme Court of India and tweets @courtwitness1

Photo by Joe Athialy

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