Prashant Bhushan: India’s democracy is under attack

Prashant Bhushan was mentally prepared to go to jail. The 63-year-old lawyer had been found guilty of contempt by the Supreme Court of India over two tweets which, judges said, “sought to shake the foundation” of the entire justice system.

The tweets in question criticised both the current and several former chief justices of India, accusing the apex court of being complicit in the “destruction of India’s democracy” in the six years since Narendra Modi came to power.

Bhushan is unequivocal in his opinions about the current Hindu nationalist administration in Delhi, calling it “the most evil regime that has ever been seen in India, and perhaps even the world”.

But he is no ordinary critic of the Modi government – he is also one of the country’s best-known and respected public interest litigators, and is followed by more than 1.86 million people on Twitter alone.

The court ordered him to apologise, heavily implying that it would have to make an example of him if he did not. India has some of the world’s strictest contempt laws, and he faced the prospect of a significant jail sentence as well as being barred from practice.

Yet, in a twist that gripped the nation and sparked heated debates on TV news channels, Bhushan refused to say sorry, and quoted Gandhi in saying he would “cheerfully submit to any punishment the court may impose”. It cemented Bhushan’s image as an unlikely hero of India’s secular and progressive wing, standing up to the powers that be.

“If you look at the sentencing order, it reads as if they are heading towards a jail sentence,” Bhushan recalls in an interview with The Independent. “They wanted to impose a harsh sentence, and that's what they probably would have done had it not been for the public outrage.”

There was a “great degree of support” voiced for Bhushan on Twitter, he says, but the outcry also went beyond social media, and included a joint statement issued by more than 3,000 lawyers, retired judges and eminent citizens, who said the proceedings threatened a “chilling effect on people expressing critical views”.

Finally, at a hearing on 31 August, the judges handed down a token punishment of a 1 rupee (about 1 penny) fine, which a smiling Bhushan was pictured handing to his lawyer.

Speaking a month later at his home outside Delhi, Bhushan says the ordeal is far from over. He is still waiting for the court to hear two review petitions he has filed – against the conviction and the sentencing – and he has been called by the Bar Council to explain why he should not face disciplinary action.

And while he says the media storm surrounding his case was at times “overwhelming”, on balance he believes that the proceedings have had “a beneficial effect”.

“Far from chilling speech about the court, it has emboldened people to speak out,” he says. “Because a lot of people came out and said they are saying the same things or something even worse, and if you are sending him to jail you should send us to jail as well.”

After studying philosophy at Princeton University in the US, Bhushan started practising law in 1983 and has now been bringing public litigation cases at the Delhi High Court and Supreme Court of India for more than three decades.

His father, Shanti Bhushan, is himself a prominent lawyer and former justice minister, and was involved in the historic 1975 ruling against Indira Gandhi that cancelled the election result and led her to declare government by emergency rule.

It gave a young Prashant a taste of the power and excitement of “law at its very pinnacle”. At the same time, living with his father in Delhi to this day allowed him to take on pro bono public interest cases from the very start of his career “without having to earn very much money”, he says.

He has gone on to be involved in some of India’s most high-profile legal battles, from the fight for compensation for victims of the Bhopal gas tragedy to the controversial displacement of people by the vast Sardar Sarovar Dam in Gujarat.

Rajdeep Sardesai, the India Today news anchor and political commentator who featured both Bhushans in a father-son interview on his show last month, says Prashant appeals to the many Indians who are sick of India’s “grubby” party politics, as well as the overstretched and underfunded judicial system that is seen as rarely serving justice for ordinary citizens.

“He has been a fearless and consistent campaigner against excessive use of state power, at a time when there seem to be so many people who are succumbing – either being silenced or intimidated,” Sardesai says.

“There is a latent anti-establishment streak that lies in every Indian. It expresses itself in different ways,  and one way is to admire those who are willing to question the powerful.”

Bhushan is not the only public figure to express concerns about the perceived closeness of the Supreme Court and the government in recent years.

There was a backlash in February this year when Supreme Court justice Arun Mishra, who presided over Bhushan’s contempt hearings, described Prime Minister Modi as a “versatile genius” and “internationally acclaimed visionary”. Several retired judges spoke out to criticise the “inappropriate” statement, saying it risked undermining faith in the independence of the judiciary.

Bhushan describes what has happened to the courts as part of “full-blooded attack on the democratic institutions” of India.

He compares it to the close of Amnesty International’s India branch last month, which came after the government accused it of money laundering and suspended its bank accounts. Amnesty had recently released two reports critical of the part played by the authorities in the Delhi riots earlier this year, and in the 2019 revocation of Kashmir’s special constitutional status.

“It is an onslaught, not just on democratic institutions like the judiciary and the electoral commission, but also on freedom of speech and human rights defenders.

“The people still standing are those who are not willing to be intimidated by their threats, or even by their arrests.”

Modi has been emboldened in pursuing his party’s nationalist agenda since winning re-election last year by a landslide, and figures like Bhushan who stand up against that programme are increasingly dismissed as being “anti-national” and out of touch with the mainstream.

Even though he uses Twitter as his preferred medium for speaking out on a range of issues, Bhushan attributes the increasing “intolerance” that India is seeing to social media platforms, which can serve as echo chambers for views that would once have seemed unpalatable.

He compares the fight against rising nationalism to the “losing battle” that humankind faces against climate change. “Reversing it will take a lot of work, at many levels. But it’s not impossible, and as David Attenborough says on the environment, we have no alternative. We can’t give up.”