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From Tehelka Magazine, Vol 8, Issue 17, Dated 30 Apr 2011
CURRENT AFFAIRS  
COVER STORY
Rohini Mohan

The music of dissonance

Very different influences have shaped Shanti & Prashant Bhushan. They share a house of values, but very different politics, reports Rohini Mohan

Legal eagles The Bhushans relish taking on the system when it comes to cases related to civil rights, corruption and environment

Photo: Shailendra Pandey

IN MAY 1995, just before noon, activist Himanshu Thakkar sat with his advocates Prashant and Shanti Bhushan in the Supreme Court. Barely five feet away, Chief Justice JS Verma was reading the verdict of a case that would decide the fate of not just more than 50,000 people dependent on east Gujarat’s riverbed but also the course of a decades-old movement against the Rs 42,000 crore dam on the Narmada river. In the pre-monsoon mugginess of the tense courtroom, Justice Anand’s words were like a gust of cool air. The construction of the Sardar Sarovar dam was to be stopped until all the affected and displaced families were rehabilitated. It was the first major legal victory for the Narmada Bachao Andolan (NBA). But as Thakkar and the evidently thrilled Bhushans strode out into the corridor, the former expressed his disappointment. “But it’s not a direct stay order,” complained Thakkar. “And the court has even allowed a further hump of 3 metres to be made on the dam.” The elderly Shanti Bhushan dropped his wide grin. “We have achieved such a big thing and you are not happy? You people, you activists will never be happy!”

As he relates the incident today, Thakkar says that at that point, he had only seen the long struggle ahead. His apprehensions were not misplaced, because the stay order was complied with on the ground only in late 1995, after NBA activists marched to Delhi from the river basin. “It doesn’t reduce the importance of a legal victory,” says Thakkar. “But that’s almost never the end of a struggle.”

Since then, the Bhushans have taken on almost every major public interest case in the country. Prashant, 55, has fought more than 500 cases in the Delhi High Court and Supreme Court, and is today the go-to lawyer for cases on civil rights, environment and transparency in government and judiciary. His father and former law minister Shanti, 85, is a luminous commercial litigator who also takes on public interest cases that kindle his visceral disgust for corruption and high-handedness of the State.

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The House Of Bhushan
‘Half Of The Last 16 Chief Justices Were Corrupt’

Together, they challenge what Shanti calls “the lazy babu system filled with time for immorality” and what Prashant calls “callous injustices of State-sponsored monopolies”. They kick up dust in their own sandpit too, always digging for evidence of corruption in the very judiciary that once invigorated their sense of justice.

In the most conservative estimation, they are the prime catalysts for any reaction to numerous social movements that have had to seek legal refuge in the face of apathetic governments. In a more generous view, the Bhushans, in deciding to sit proactively on the driver’s seat of the growing judicial activism today, have begun to influence state and Central politics in a way no non-politician has done before.

Along the way, they have gathered several enemies, but most evidently, a thicket of friends and allies that shares their beliefs and causes. Call it civil society, the Delhi intellectual elite, or the strident anti-establishment force that collectively swings into action against injustices, it is a tiny group of activists, lawyers, journalists and academics that seeks to infuse government policies with people-centric ideas. The Bhushans are an integral core of this group, straddling both litigation and activism.

IN THE past couple of weeks, however, the Bhushans are battling a discontent reminiscent of the Narmada verdict 16 years ago — about the inadequacy of legal solutions, about the hubris of flash movements, and most of all, about their sometimes black-and-white view of politics. They are dodging attacks not only from their foes, but also their fellow crusaders. Since they were made members of the drafting committee of the Lokpal Bill to help create a central anti-corruption watchdog for the country, they have been accused of being everything from power-hungry to politically naive, and connivingly corrupt to smugly self-righteous. As Prashant quakes with anger on television channels defending his family against charges of corruption, it is clear that while rivals are attacking his integrity, what he is most rattled by is his comrades — activists and journalists especially — questioning the first movement in which he played the lead role.

‘I have never been the prime mover in any campaign until the campaign for judicial accountability and reform,’ says Prashant

“I’ve never been the prime mover in any campaign until the campaign for judicial accountability and reform,” says Prashant, sitting in his Noida office. Believing in the Lokpal Bill as a definite way to tackle corruption in the judiciary, he took “a proactive role” in this campaign. Along with Karnataka Lokayukta Santosh Hegde, Prashant drafted the civil society version of the Bill that has been criticised for centralising too much power, and being anti-democratic.

It is almost 8 pm, and Prashant is still in his black-andwhite robes, explaining to a journalist why the Lokpal is “not a Frankenstein’s monster”. Every few minutes, his junior lawyer Rohit Singh runs into the room to update him on “the mad things Amar Singh is saying” and clarify how Congress’ Digvijaya Singh might have calculated the “ Rs 1.33 lakh stamp duty he thinks we evaded”. Prashant patiently directs Singh, only once exasperatedly asking him switch off the television.

A family member admits that Prashant didn’t initially want to be in the Bill drafting committee because it would look like the Bhushans had cornered 40 percent of the civil society representation (half of the 10-member committee are from the civil society, and the rest are politicians). The family was in fact to go to Alaska for a much-awaited holiday, which also had to be put on hold. “But now, resigning would look like he’s fallen for the dirty intimidation,” says the relative. “Given a chance, he would just go back to his comfort zone of PILs (public interest litigations).”

Prashant took a winding way to what he now uncomplainingly spends almost 12 hours a day doing. His grandfather was the public prosecutor in the Allahabad High Court, and his father Shanti has been a litigator for close to 65 years. Words like prima facie and locus standi were bandied about by the children of the household. Shanti’s youngest daughter Shefali, now a filmmaker, says that her father taught her contract law even before she entered university. In rebellion, Prashant resisted the family’s default profession as long as he could, just as he resisted its Arya Samaji traditions by announcing he was an atheist. He studied mechanical engineering at IITMadras, abandoned it after a semester, tried his hand at economics, and then did philosophy of science for a year in Princeton University, US. He came back with a contempt for word-spinning, an itch for action, and a philosophical realisation.

Friend and RTI activist Suresh Singh recalls a long night in Goa after a conference a few months ago, when Prashant admitted to being a logical positivist. He argued that truth would always be influenced by perceptions, and what really mattered was what people believed to be true. “Judges have biases too,” he told Singh. “And even in law you can only prove something beyond reasonable doubt.”

CD man Amar Singh went to the police with the ‘Bhushan CD’

As a 19-year-old, Prashant wrote his first book based on his father’s case in which then Prime Minister Indira Gandhi was found guilty of electoral malpractices and corruption, and as the Opposition demanded her resignation, she imposed the Emergency. When he published The Case That Shook The Nation, Prashant was a third-year student of law at Allahabad University. After he graduated, he did routine litigations till his first PIL in 1983, the Doon Valley mining case was brought to him by environmentalist Vandana Shiva. “His physics background gave him an edge, and I also took a case on genetic engineering to him,” says Shiva. Prashant though, embarrassedly recalls being “obsessed with simplistic technical details like the effect of limestone on water resources”.

Soon after, he worked on the Rs 64 crore Bofors scandal, simultaneously writing Bofors: The Selling of a Nation. He then volunteered to litigate on the Bhopal gas tragedy that had claimed 15,000 lives. As the cases dragged on, debilitated by repeated sabotage by government agencies, Prashant begged off the Bofors, NBA and Bhopal gas cases. He had developed “a fatigue of these issues” and wanted to move on — an odd impatience for a man who considers himself more dogged activist than lawyer.

YOUNG LAWYERS who have apprenticed with Prashant speak of his high intolerance for petitions that are motivated by personal vendetta and petitioners who he considers morally ambiguous. Despite these high standards, he has managed to be the chief counsel for, to name a few, the cases on the 2G scam and Niira Radia tapes, Binayak Sen sedition case, Enron, Arundhati Roy’s contempt of court, the Right to Information petition, the case of graft in the rural employment guarantee scheme, Panna Mukta oilfields case, and the demand for declaration of assets by judges. It is one man’s veritable record of legal battles that have also spawned massive media campaigns — an explosive alliance that, in the recent weeks, has turned against the man who, in a sense, fed the beast for a decade.

The father and son also agree that the system they work for, the judiciary, is the most unaccountable pillar of Indian democracy

A weekend ago, about 60 journalists and cameramen, all half-drenched in the off-season rain, filled the small firstfloor hall at the Press Club in Delhi. As tripods, elbows, and egos jostled for space, and a photographer punched a reporter for stealing his chair, Prashant entered the room with RTI activist Arvind Kejriwal. Sitting in front of a clutch of channel mikes, he took on allegations that had sprung barely a day after the first meeting of the Lokpal committee, in which Prashant was a member and his father co-chairman. “You are all aware that copies of a CD have been circulated, which purportedly contains a conversation between my father Shanti, Amar Singh and Mulayam Singh Yadav...”

The CD, which was given to the Indian Express by unknown sources, carried a conversation in which Singh seems to inform Yadav that the elder Bhushan, sitting next to him, can get his son Prashant to “manage” a sitting judge of the Supreme Court “for Rs 4 crore”. The judge he refers to heads the Bench that has reserved judgments in the Amar Singh tapes of 2006 and the case challenging the legality of the 2G licences, both handled by Prashant. As soon as the CD found mention in the papers, (ironically because the Bhushans filed an FIR alleging defamation with the Delhi Police), doubts and allegations flew thick and fast.

PIL Warriors

In every major public interest case witnessed by the country, the Bhushans had a big role to play

Sardar Sarovar Case
The duo helped the Narmada Bachao Andolan earn a legal win in favour of rehabilitating the displaced victims

Bofors Case
Prashant challenged the Delhi HC order quashing the FIR in the case and went on to write a book about it

Arundhati Roy Case
Prashant fought Arundhati Roy’s corner in the infamous contempt of court case

2G Spectrum Case
Gave the Radia tapes to the SC and sought cancellation of 2G licences given by ex-telecom minister A Raja

Binayak Sen Case
Prashant helped rights activist Binayak Sen get bail in the sedition case

Corrupt Judges
Prashant filed two affidavits that detailed the corruption and misconduct of eight of 16 chief justices the nation has had so far

Jan Lokpal Bill
The Bhushans are the prime movers behind the alternative Jan Lokpal Bill and part of the drafting committee

Shanti insisted he had “never met Amar Singh in his life”, Prashant alleged a government-led conspiracy to derail the Lokpal law drafting process, and television news tickers started to write headlines so: ‘Bhushans corrupt?’ In two days of non-stop conspiracy theories, the Bhushans’ badge of incorruptibility was blown to pieces. Prashant would say facts were once again enslaved to perception.

At the press conference, his voice calm, and a half-smile lighting his eyes, Prashant said that the CD was “fabricated and doctored”, and that although the voices of Singh and Yadav seemed authentic, sections of the conversation were bodily lifted from the 2006 tapes. It was his two youngest sons who, while spending a whole night listening to the 2006 tapes for voice samples of Singh and Yadav, had discovered that it contained the exact lines in the 2011 CD. Prashant looked visibly relieved, and vindicated. Until the cynical press began to ask him why he should be believed.

“Because I have reports from forensic experts,” he said.
“Whom you have hired, and paid. They could be lying.”
“This is acoustic analysis after spectrographic...”

“Will you accept it as valid proof of innocence if a politician did his own tests and claimed the CDwas doctored? Will you believe Amar Singh? Why should we believe you then?”

Prashant could only repeat that he had proof. And then change the topic. When he left the room, with his sons shielding him from the press clamouring for more soundbites, Prashant seemed visibly rattled. The mild-mannered lawyer had, over 25 years, grown into an aggressive anti-corruption crusader, primarily riding on the strength of his integrity. The unblinking cynicism of the media served as a cruel reminder of its fallibility.

In his home in Noida, Shanti unexpectedly laughs off the CD controversy. “So, let us say I record all the conversations I have with this colleague X. Then I take all the records of Manmohan Singh’s speeches and interviews,” says Shanti, already enjoying himself. “Here’s how my CD will go:

Manmohan: Aap kya kar rahe hain? (What’re you doing?)

X: Main ek sundar ladki ke saath nahaa raha hoon (I’m showering with a beautiful girl)

Manmohan: Bahut achcha. Main bhi aa jaaoon kya? (Very good. Shall I join you?)

The former law minister guffaws, pleased with his fictitious recreation. “Anything can be made up,” says Shanti. “Now, will you believe our prime minister can do this?” He seems entirely unafraid that the clean record of a lifetime could be tainted overnight, that skeletons in the closet might come tumbling out.

ALTHOUGH PRASHANT and Shanti are almost always spoken of as a unit, they could not be more different. Prashant calls his father a “full-blown capitalist” who loves dams, mines and SEZs. The father says his leftist son hates all politicians while Shanti admits that “despite everything” the Congress is “the best party we have”. Shanti believes that with proper and just rehabilitation and compensation, land can be acquired for development projects “even without consent”. He is thrilled that he bought a Tata Nano much against his son’s wishes. And that his grandchildren sometimes secretly drink Coca Cola even though Prashant has banned it in the house ever since he fought a case against the cola company.

Prashant’s oldest son Manav, who is now doing a PhD in applied mathematics in Oxford University, says that his grandfather’s strong belief in the free market comes from “witnessing the trickledown effect work perfectly in his micro-economy”. Shanti has apparently given interest-free loans of Rs 8 lakh to Rs 10 lakh to each of his household and office employees and helped their children go to school. He believes that if economic opportunity works at home, it should work elsewhere too. “My father and grandfather have violent debates all the time,” says Manav. “It’s what our dining table is for, I think.” In his autobiography, Shanti writes how he used to follow his own father around the house till he won an argument. It is exactly what Prashant does today.

Photo: Shailendra Pandey

WHILE THE son specialises in pro bono PILs, the father has spent most of his six-decade-long career representing corporations. The elder Bhushan is known to charge between Rs 2 lakh to Rs 4 lakh per appearance, but when convinced of a cause, usually after deafening arguments from Prashant, he does take public interest cases. The father, however, indirectly subsidises the son. “My activism comes from a comfortable perch,” says Prashant. The son is acutely aware of his privilege, and has always felt a responsibility because of it. In that sense, it is an act of choice, of putting the financial and social security to work for the less fortunate. It is what draws people to Prashant, and also why some of his friends say he takes life far too seriously.

Being a public interest lawyer meant picking cases that would suitably represent larger causes. Prashant developed an intuition for what was achievable in court, and always counted on his activist and media friends to rally their forces behind him. From time to time, he requested his father to help him, like in the NBA case. “Prashant naturally understood our movement, but Shanti was utterly unconvinced,” says Medha Patkar. Until he visited the Narmada Valley. Shanti chided the activists for not making proper arrangements, but after meeting several tribals, he told Patkar: “Main ab tak dimaag se kaam kar raha tha. Ab main dil aur dimaag se karoonga. (Till now I was working from my head. Now I will work from my heart and head).” To the NBA at the time, it was an inspiring moment.

An old friend points to a quality that is often Prashant’s driving force, but occasionally his undoing: hermetic sureness about himself. He listens to every point of view, but rarely wavers from his own. Whether it is preventing the RTI Bill drafters in Suresh Singh’s house from drinking the Coca Cola that came with the pizza, or it is filing affidavits brazenly exposing eight corrupt chief justices while courting contempt of court, Prashant derives his momentum from combat.

The Bhushans’ worldviews stop colliding on two aspects. One, is what their family calls “pucca Baniya miserliness”. Shanti takes immense pride in wearing torn kurtas that were once mended by his late wife, and now by a tailor. “A man’s wealth is not based on how much he earns, but how much he saves,” advises Shanti with appropriate grandfatherly air. “It disciplines you, when you have to spend only 50 percent of your income.” Prashant’s frugality is perhaps more ideological, because forgetting how it is to travel in buses is also forgetting the kind of people who largely travel in buses.

The father and son also agree that the system they work for, the judiciary, is the most unaccountable pillar of democracy. Both have a righteous sense of outrage about any immorality, especially corruption. Through their Campaign for Judicial Accountability and Reform, which they established in 1970, they strive to uphold judges and chief justices to the same, or sometimes greater, ethical code and transparency that the legislature and executive have to adhere to. Shanti was called a “street urchin” and almost went to jail for supporting Prashant’s two affidavits that detailed the corruption and misconduct of eight of 16 Chief Justices of India. Fearlessly, they go back to the same courtrooms, arguing their cases in front of the same judges they point fingers at. “We can be bold because we have already pushed beyond the limits,” says Prashant.

But for all their crusades, the Bhushans never anticipated the wave of doubt and suspicion that has engulfed them ever since they championed the anti-corruption agitation for a Lokpal in Jantar Mantar. In a few weeks, they went from being heroes of their first non-legal movement to a beleaguered duo whose every error, however quotidian, has become a symbol of the hypocritical deceit that resides in men who are expected to root out systemic corruption.

The mild-mannered lawyer had over 25 years grown into an aggressive anti-corruption crusader, primarily riding on the strength of his integrity

The Bhushans now don’t enjoy the blind support they once had from their friends. Most of them begin with a disclaimer. “I have some serious reservations about the recent Lokpal Bill agitation but I would vouch for Prashant’s personal integrity anytime, anywhere,” says writer and close friend Arundhati Roy. Activist Shabnam Hashmi fumes, “I was upset with them for being politically naïve and allowing communal elements like Baba Ramdev and Sri Sri Ravishankar on the platform.” Mazdoor Kisan Shakti Sangathan founder Aruna Roy too criticised the dangerously centralised nature of the Lokpal: “We cannot justify concentrated power based on good faith and goodness vested in a few and dispense with the need for equally strong mechanisms for accountability for them too.”

The volleys sped up when the Bhushans were made civil society representatives in the drafting committee. They had been arbitrarily appointed, on no other parameters but Anna Hazare’s insistence and their clean track record. The government might have succumbed to the pressure exerted by a 73-year-old man on a fast and the high-pitched media campaigns, but the Lokpal drafting members too did not do much to allay fears of their own unaccountability. Lokpal drafting member Kejriwal still vehemently insists that the objective of all this criticism is a smear campaign to derail anti-corruption mechanisms.

When the old foes came forward, the Bhushans’ reputation took an even greater hit. Journalist Vineet Narain accused the Bhushans of sabotaging the Jain hawala scam case in which Prashant was a co-petitioner, and 115 political leaders were acquitted due to a shoddy CBI probe. Prashant scoffs at Narain’s allegations, calling them “absurd because an amicus curiae was appointed in the case, so our role was limited.” Advocate Kamini Jaiswal says that Narain was “a dirty blackmailer, who’d filed ugly petitions and circulated in his paper Kal Chakra that a particular judge was a homosexual.” Narain however says that the Bhushans did all they could to shield LK Advani, also one of the accused.

While his son is fighting fire, Shanti has not bothered to keep the record straight. He claims it’s the liberating confidence of a clean conscience, but it could also be because of a foolhardy underestimation of detractors. Responding to the ‘fabricated’ CD, Shanti first claimed he never met Amar Singh. Later, he admitted to having advised him on the phone about voting in the legislature on being expelled from the Samajwadi Party. Shanti simply shrugs it off: “I forgot.” Failure of memory is not a crime, but the septuagenarian might not have extended the same benefit of the doubt to a politician.

As he drinks his evening thandaai, a junior lawyer scurries in with a bunch of printouts. Shanti gropes for his reading glasses, scribbles a few things and hands the paper to me. “It’s the legal notice for defamation I’m going to file on Digvijaya Singh tomorrow,” he says. Singh had suggested on a television show that Shanti had forcibly undervalued and bought an ancestral property in Allahabad and had not paid adequate stamp duty on it. Singh wanted Shanti to therefore resign from the Lokpal drafting committee.

In the defamation notice, advocate Kamini Jaiswal says that for about 70 years, the Bhushan family had lived in the Allahabad house, which is under rent control, paying a rent of Rs 140 per month. In 1966, Shanti entered into a sale agreement for the market value of Rs 1 lakh. But when the 99-year lease on the house was renewed, it turned into a freehold, and the owner refused to sell it to Shanti at so low a price. In 2000, they approached the Allahabad Civil Court, but in 2010 reached a compromise: the owner could keep onethird, and Shanti could buy two-third for 1 lakh. “My portion had the house my father lived in, and where I grew up, so it was dear to me,” says Shanti.

Then, there was confusion about whether stamp duty was to be paid on Rs 1 lakh or according to the UP Stamp Rules on assessed rental value. Shanti filed a petition with the Collector on 29 September 2010 asking for a clarification, but when there was no response for two months, he eventually paid Rs 47,000. Shanti says it was only on 5 February this year that the assistant commissioner of stamps got to the pending petition, fixing 22 April to determine the stamp duty. However, Panna Lal, Deputy Inspector General, UP Department of Stamps and Registration, says he once again send a "reminder notice" on 15 April to Shanti Bhushan, Prashant, his brother Jayant, and also his sister Shefali. "The reminder asked them to pay up the Rs 1.33 crore, or offer an explanation. If they fail to do so, a fresh notice would be issued after that date. If no reply is given to the second notice as well, then the process for attaching the property may have to be initiated," Lal said.

Prashant Bhushan says that this reminder wasn't received by his family until the original date fixed to determine the duty, 22 April, when their lawyers went to the stamp duty office in Allahabad. "The reminder mention Rs 1.33 crore when the original notice doesn't. And the first notice says 22 April, while the reminder says 28 April," says Prashant. "These dates are critical because how did Digvijaya Singh, (who made these allegations in the teleshow aired on 16 April against the Bhushans) know about the reminder notice issued on 15 April, when we ourselves did not receive it? Digvijaya couldn't have known unless he had engineered this notice."

CLOSE ON the heels of the allegation of stamp duty evasion, came another of currying favour with UP Chief Minister Mayawati, because two plots of land were allotted to the Bhushans in 2009 as part of a scheme offered by the government 'for development of farmhouses on agricultural land.' Close to a hundred people reportedly qualified. The process of allotment has been challenged in the Allahabad court by Vikas Singh, who has in the past served as Former Additional Solicitor General of the UP government. Singh alleges that the process lacked transparency. "I was also allotted a plot but in a bad location, and I filed a writ petition against it. I was raising this issue for the past six-seven months.”

The petition threw light on two 10,000 sq metre plots worth Rs 3.5 crore allotted to Shanti and his second son Jayant Bhushan in 2009. It was alleged that the Bhushans had got the property for a pittance because Jayant, Prashant's brother, was appearing against the UP government in the Noida park statue case that challenged her decision to set up a memorial park in a part of Noida that is ecologically sensitive because of its proximity to a bird sanctuary. Jayant Bhushan has denied that given his legal battle with Mayawati, which he "fought tooth and nail till the end", there could be a conflict of interest. In a press release, the Bhushans said, "Any suggestion that (we) got the allotment as a favour from the Mayawati government because Jayant Bhushan was arguing the NOIDA park case against the government is totally incorrect. On the contrary, that may be the reason for the delay and poor location of allotment." Prashant clarified that, of the Rs 3.5 crore, his family had paid close to Rs 83 lakh each for the plots and were to pay the rest in 16 half-yearly instalments.

The Bhushans, for all their courtroom drama, are not swashbuckling crusaders inspiring soaring finishes. In all the biggest public interest cases they have undertaken, few have reached the final touchdown. The Narmada case goes on, as the dam grows higher and the State drags it feet with rehabilitation. Binayak Sen is still accused of sedition. When they recognised the limits of a legal crusade in a judiciary writhing with hidden graft and malpractice, they evolved from single-case warriors to torch bearers of the fight against corruption. In doing that, they dipped their raw fingers into political activism. And as street fights go, that tends to get dirty.

Rohini Mohan is a Special Correspondent with Tehelka.
[email protected]


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From Tehelka Magazine, Vol 8, Issue 17, Dated 30 Apr 2011
 

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