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Gautam Bhatia

Articles by Gautam Bhatia

Top court must strike down the sedition law

The Law Commission has recommended that sedition be retained in the statute books. But it fails proportionality and incitement tests, making it unconstitutional

Regardless of whether the government accepts or rejects the Law Commission’s proposed changes, it is long overdue for the Supreme Court to take up this case again, and strike down sedition once and for all. (AP File )

opinion

Updated on Jun 06, 2023 01:22 PM IST

ByGautam Bhatia

Andhra HC’s model for shielding citizens’ rights

The HC’s judgment, which reaffirmed the right to protest, is an excellent example of the judicial safeguarding of rights against executive impunity

opinion

Updated on May 28, 2023 08:06 PM IST

ByGautam Bhatia

The real bite of SC’s MediaOne ruling

It provides lessons in how the judiciary should respond when faced with invocations of national security and sealed covers by the State. The real test, however, will be when the next case comes before a court somewhere in India

The Supreme Court invalidated the government’s ban on MediaOne for failing to respect the channel’s due process rights (HT PHOTO)

opinion

Updated on Apr 09, 2023 08:29 PM IST

ByGautam Bhatia

A desolation Called Peace: Finality of Bhopal gas leak case is another tragedy

The curative hearings were an opportunity for the victims of the tragedy to have their day in court. It was incumbent upon the SC to parse their claims with care and rigour. Instead, however, the SC did the opposite.

What the SC failed to adequately consider was the argument that the settlement amount had been arrived at on the basis of the suppression of crucial facts. (ANI)

opinion

Updated on Mar 24, 2023 09:36 PM IST

ByGautam Bhatia

A new deal to protect India’s gig workers?

Rajasthan announced that the state will enact a law for the protection of gig workers. Why is this necessary? Because, at present, gig work exists in a legal vacuum.

While gig work does not resemble the employment relationship of the factory owner and the worker, it exhibits all the hallmarks of institutionalised power differences and subordination that make labour laws important in the first place. (PTI)

opinion

Published on Mar 18, 2023 07:18 PM IST

ByGautam Bhatia

SC order on ECI will bolster democracy

The judgment is neither activism nor judicial overreach. Parliament can take up alternative appointment processes for ECI but will have to secure institutional independence

A look at the debates around the framing of the Constitution reveals that its drafters were keenly aware of the need for an independent ECI, which — specifically — they understood to be a commission outside the sole control of the executive in the matter of appointments (HT PHOTO)

opinion

Published on Mar 05, 2023 06:34 PM IST

ByGautam Bhatia

Trial courts need to act as first line of defence

A recent order passed by additional sessions judge Arul Varma on February 4 is an excellent illustration of how trial courts can serve as that first line of defence

A person may join a peaceful protest, which might later turn violent. To then hold this person liable for those acts of violence would amount to criminalising protest itself (AP)

opinion

Published on Feb 07, 2023 07:47 PM IST

ByGautam Bhatia

Haldwani case: SC ruling is laudable

Its observations — evictions cannot be done without a rehabilitation plan, and there must be proper consultation with the people — stem from a fundamental realisat-ion that ‘encroachments’ are a result of the State’s failure to provide shelter to all citizens

People from Haldwani celebrate after the Supreme Court order (Sanjay Sharma/JHTPhoto)

opinion

Updated on Jan 09, 2023 06:53 AM IST

ByGautam Bhatia

Uniform Civil Code: Reframe the debate

The starting point of the discussion should not be whether India needs a UCC, but how to ensure every Indian is governed by a gender-just civil code of their choice

At the time the Constitution was being framed, there was a 150-year-long history of communities being governed by their personal laws. Realising that the overhaul of such structures was impossible in one go, the framers of the Constitution left UCC as an aspirational goal (Shutterstock)

opinion

Published on Dec 27, 2022 08:23 PM IST

ByGautam Bhatia

Preventive detention cannot be normalised

The Madras high court’s judgment, thus, strikes an important blow for individual freedom against State impunity. It reminds us that, for all our criticism of the courts, an independent judiciary is the surest bulwark against authoritarianism

It is crucial to remember that preventive detention is meant to be used only in the most exceptional of circumstances. As a general rule, we do not curtail the liberty of individuals for things that they might do in the future, but have not yet. (Getty Images/iStockphoto)

opinion

Updated on Dec 12, 2022 08:41 PM IST

ByGautam Bhatia

Why the new draft data bill must be reconsidered

A closer look at the provisions reveals some serious shortcomings within the proposed legal framework.

The bill presents an inadequate and problematic legal framework for data protection in India. It is to be hoped that the government will take constructive critique on board, and modify the bill. (Shutterstock)

opinion

Published on Nov 29, 2022 08:09 PM IST

ByGautam Bhatia

Criticism of judiciary needs more nuance

The Centre criticised the Supreme Court’s system of picking judges and accused it of judicial activism. Such criticism is fair to an extent, but it requires more nuanced deliberation than what is being offered at present

The collegium system has been criticised for being opaque, but it benefits all parties. The so-called judicial activism has faced disapproval, but in our constitutional system, it is the central obligation of the courts to review and test laws for compliance with the Constitution (PTI)

opinion

Published on Nov 16, 2022 06:52 PM IST

ByGautam Bhatia

SC’s Saibaba order raises doubts about safeguards in UAPA, authority of HCs

Apart from depriving the accused of the liberty they were entitled to by virtue of the HC’s reasoned judgment, the order sends a signal across the judiciary, ie, that the sanctity of procedural safeguards under UAPA is negotiable, at best.

When we notice that one of the accused — professor Saibaba — is 90% disabled, the SC’S action grows even more concerning. (PTI)

opinion

Published on Oct 18, 2022 07:16 PM IST

ByGautam Bhatia

SC move to live-stream proceedings is good, but more needs to be done

It is important to note that while some courts across the world do live-stream proceedings, a great many don’t: In taking this decision, therefore, the SC is one of the judiciaries that has provided global leadership on this significant issue

The SC is not the first Indian court to live-stream its proceedings. During the pandemic, the Gujarat high court (HC) made its proceedings available to watch online. (REUTERS)

opinion

Updated on Oct 05, 2022 07:54 PM IST

ByGautam Bhatia

The SC’s final ruling in the hijab case will have broader implications

The hijab case raises several issues about Muslim women students’ right to education, the meanings of secularism, tolerance, and accommodation under the Constitution, fostering diversity and pluralism in classrooms, and the limits of State power

Thus, the final judgment of the SC will be important, not only for what it holds but also for how it holds. (Amit Sharma)

opinion

Published on Sep 21, 2022 07:58 PM IST

ByGautam Bhatia

SC’s decision on Pegasus raises troubling questions

Several issues regarding the spyware case need to be addressed, including why the SC sealed the report and why the State chose not to cooperate during the committee’s pursuit of the truth. As a matter of public interest, accountability and action must be non-negotiable

Keeping the report secret sends out a signal that issues of mass, potentially illegal, surveillance are matters between the court, its committee, and the government. (AFP)

opinion

Updated on Aug 30, 2022 07:30 PM IST

ByGautam Bhatia

Decoding the problems with the ‘freebie’ debate

The fundamental issue lies in the word freebie, which has no clear definition, making it susceptible to misuse and selective targeting of welfare measures

The word freebies carries a pejorative connotation that makes one think of populist programmes, aimed at poor people, but does not seem to include corporate loan waivers or corporate tax relief. (Raj K Raj/HT Photo)

opinion

Updated on Aug 17, 2022 08:40 PM IST

ByGautam Bhatia

Extend the 24-week limit for abortion to all

In its present form, the Medical Termination of Pregnancy Act does not adequately respect bodily autonomy and reproductive choice

In October 2021, the government notified new rules under the Medical Termination of Pregnancy Act. These rules set out seven categories of women eligible for termination of pregnancy until 24 weeks, including survivors of sexual assault and minors (AFP)

opinion

Updated on Jul 24, 2022 07:57 PM IST

ByGautam Bhatia

India’s laws on hate speech need change

Anti-blasphemy statutes and the legal bar on hate speech are clumsily worded, can’t distinguish between the dissenter and the hatemonger or between speech that is uncivil and illegal

The only long-term solution is to repeal the blasphemy law, stop prosecutions for religiously offensive speech, and focus on articulating a clear definition of hate speech, backed by social consensus (Shutterstock)

opinion

Updated on Jun 22, 2022 10:15 PM IST

ByGautam Bhatia

It is crucial to reform foreigners’ tribunals

There are several outstanding issues with the regime of foreigners’ tribunals: Extens-ive State control over members, dubious use of evidence, and declaring thousands of people foreigners ex parte

D (doubtful) voters waiting outside the Foreigners Tribunal Office, Goalpara, Assam, 2016 (Hindustan Times)

opinion

Published on May 19, 2022 07:10 PM IST

ByGautam Bhatia

Jahangirpuri: Demolition, as vigilante justice, is illegal

Home demolition in response to allegations of rioting is akin to medieval wars where armies would poison wells of villages that were suspected of harbouring enemy soldiers, so that soldiers and innocent civilians would be deprived of water

Across states, this “bulldozer justice” has targeted people who are overwhelmingly poor and overwhelmingly Muslim. (Amal KS/HT Photo)

opinion

Updated on Apr 22, 2022 11:24 PM IST

ByGautam Bhatia

Hopepunk, grimdark, noblebright: Gautam Bhatia on new genres of storytelling

Where does speculative fiction go in a dystopia? New genres suggest that the most likely directions are upward and onward, through stories that champion hope and optimism, collective action, and the promise, at least, of a future less bleak.

The new genres don't necessarily tell stories with happy endings. But Hopepunk, for instance, champions optimism, an unwavering moral compass and collective action. It is, in many ways, as a reaction to Grimdark (above, second from left), a genre defined by darkness and pessimism. Noblebright is a world of heroes and quests, but one that is not Euro-centric or male-centric. Solarpunk imagines a positive post-climate-crisis future. What if we were to find solutions and emerge better? (HT Illustration: Jayachandran)

art culture

Updated on Apr 08, 2022 02:29 PM IST

ByGautam Bhatia

Rethink the criminal identification bill

It places the privacy of individuals at the mercy of the State; allows for the retention of personal data of convicted individuals for lifetime; and goes against the best practices of data protection

The absence of a data protection law only adds to an unregulated legal landscape, where State surveillance power — through laws such as the Criminal Procedure Amendment Bill — continues to expand (Shutterstock)

opinion

Updated on Apr 03, 2022 07:50 PM IST

ByGautam Bhatia

Are India’s courts going the Star Chamber way?

The two judgments in the MediaOne case set a disturbing precedent. Effectively, the government can ban a TV channel on the basis of secret evidence, that is then secretly given to the court

The Star Chamber has become a byword across the world for judiciaries that have turned into extended arms of the government, and in whose precincts transparency, accountability, and the rule of law are sacrificed on the altar of secrecy and the “reasons of State” — all at great cost to the individual citizen. An urgent course correction is needed if Indian courts are to avoid a similar fate. (HT FILE)

opinion

Updated on Mar 14, 2022 10:58 PM IST

ByGautam Bhatia

In India, the dangers of a homogenous public culture

To the extent that the hijab does not communicate a message of discrimination, inequality, or violence, what grounds allow the State, and State institutions, to ban it?

People have argued that in a country where a chief minister can carry a religious title, it is hypocritical to deny Muslim women the right to wear a hijab in public spaces. (ANI)

opinion

Updated on Feb 07, 2022 07:34 PM IST

ByGautam Bhatia

The marital rape exception must go

As an expression of the nation’s criminal law, it publicly says that consent is irrelevant to the question of rape in a marriage. For that reason alone, the court should strike it down

As the Indian Supreme Court has noted on multiple occasions, equality requires us to reject norms and laws that are founded on gender stereotypes. Apart from being harmful and discriminatory towards women, the marital rape exception is also entirely arbitrary. (Shutterstock)

opinion

Updated on Jan 19, 2022 09:32 PM IST

ByGautam Bhatia

Reforming the Foreigners Tribunals

A 2021 Gauhati High Court judgment is significant because it infused a modicum of procedural fairness into the tribunals process in Assam. But much more is needed

There is detailed empirical evidence, collected over many years, which demonstrates that the functioning of the Foreigners Tribunals in Assam falls well short of the basic standards that are expected of institutions taking such far-reaching decisions about citizenship status (Subhendu Ghosh / Hindustan Times)

opinion

Published on Jan 02, 2022 08:18 PM IST

ByGautam Bhatia

AFSPA has no place in a constitutional democracy

It is now past time to repeal AFSPA and restore a semblance of the rule of law to the landscape of our constitutional democracy

Mon: Relatives and locals during the funeral of the 13 people who were allegedly killed by Armed Forces, in Mon district, Monday, Dec. 6, 2021. (PTI Photo)(PTI12_06_2021_000213A) (PTI)

opinion

Updated on Dec 15, 2021 08:25 PM IST

ByGautam Bhatia

Pegasus, SC and the idea of ‘national security’

There can be no genuine accountability, or an end to impunity, as long as the concept of “national security” fails to place the people — rather than the government — at its heart

To briefly recapitulate, after revelations earlier this year that the phones of numerous Indian citizens had been likely infected by a powerful spyware called Pegasus, various petitions were filed in the SC, including by affected parties (Shutterstock)

opinion

Updated on Nov 08, 2021 01:44 PM IST

ByGautam Bhatia

HIV Act: When a law fails to change social attitudes

A judgment by a sessions judge at Dindoshi shows us that the passing of progressive legislation is just the beginning. There is still much struggle ahead before HIV-affected persons can be welcomed into society as equal members

The HIV Act is a piece of social welfare legislation. It aims to undo a history of discrimination against a particularly vulnerable and marginalised section of society (Getty Images/iStockphoto)

opinion

Updated on Oct 18, 2021 05:49 PM IST

ByGautam Bhatia

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Gautam Bhatia

The Law Commission has recommended that sedition be retained in the statute books. But it fails proportionality and incitement tests, making it unconstitutional

The HC’s judgment, which reaffirmed the right to protest, is an excellent example of the judicial safeguarding of rights against executive impunity

It provides lessons in how the judiciary should respond when faced with invocations of national security and sealed covers by the State. The real test, however, will be when the next case comes before a court somewhere in India

The curative hearings were an opportunity for the victims of the tragedy to have their day in court. It was incumbent upon the SC to parse their claims with care and rigour. Instead, however, the SC did the opposite.

Rajasthan announced that the state will enact a law for the protection of gig workers. Why is this necessary? Because, at present, gig work exists in a legal vacuum.

The judgment is neither activism nor judicial overreach. Parliament can take up alternative appointment processes for ECI but will have to secure institutional independence

A recent order passed by additional sessions judge Arul Varma on February 4 is an excellent illustration of how trial courts can serve as that first line of defence

Its observations — evictions cannot be done without a rehabilitation plan, and there must be proper consultation with the people — stem from a fundamental realisat-ion that ‘encroachments’ are a result of the State’s failure to provide shelter to all citizens

The starting point of the discussion should not be whether India needs a UCC, but how to ensure every Indian is governed by a gender-just civil code of their choice

The Madras high court’s judgment, thus, strikes an important blow for individual freedom against State impunity. It reminds us that, for all our criticism of the courts, an independent judiciary is the surest bulwark against authoritarianism

A closer look at the provisions reveals some serious shortcomings within the proposed legal framework.

The Centre criticised the Supreme Court’s system of picking judges and accused it of judicial activism. Such criticism is fair to an extent, but it requires more nuanced deliberation than what is being offered at present

Apart from depriving the accused of the liberty they were entitled to by virtue of the HC’s reasoned judgment, the order sends a signal across the judiciary, ie, that the sanctity of procedural safeguards under UAPA is negotiable, at best.

It is important to note that while some courts across the world do live-stream proceedings, a great many don’t: In taking this decision, therefore, the SC is one of the judiciaries that has provided global leadership on this significant issue

The hijab case raises several issues about Muslim women students’ right to education, the meanings of secularism, tolerance, and accommodation under the Constitution, fostering diversity and pluralism in classrooms, and the limits of State power

Several issues regarding the spyware case need to be addressed, including why the SC sealed the report and why the State chose not to cooperate during the committee’s pursuit of the truth. As a matter of public interest, accountability and action must be non-negotiable

The fundamental issue lies in the word freebie, which has no clear definition, making it susceptible to misuse and selective targeting of welfare measures

In its present form, the Medical Termination of Pregnancy Act does not adequately respect bodily autonomy and reproductive choice

Anti-blasphemy statutes and the legal bar on hate speech are clumsily worded, can’t distinguish between the dissenter and the hatemonger or between speech that is uncivil and illegal

There are several outstanding issues with the regime of foreigners’ tribunals: Extens-ive State control over members, dubious use of evidence, and declaring thousands of people foreigners ex parte

Home demolition in response to allegations of rioting is akin to medieval wars where armies would poison wells of villages that were suspected of harbouring enemy soldiers, so that soldiers and innocent civilians would be deprived of water

Where does speculative fiction go in a dystopia? New genres suggest that the most likely directions are upward and onward, through stories that champion hope and optimism, collective action, and the promise, at least, of a future less bleak.

It places the privacy of individuals at the mercy of the State; allows for the retention of personal data of convicted individuals for lifetime; and goes against the best practices of data protection

The two judgments in the MediaOne case set a disturbing precedent. Effectively, the government can ban a TV channel on the basis of secret evidence, that is then secretly given to the court

To the extent that the hijab does not communicate a message of discrimination, inequality, or violence, what grounds allow the State, and State institutions, to ban it?

As an expression of the nation’s criminal law, it publicly says that consent is irrelevant to the question of rape in a marriage. For that reason alone, the court should strike it down

A 2021 Gauhati High Court judgment is significant because it infused a modicum of procedural fairness into the tribunals process in Assam. But much more is needed

It is now past time to repeal AFSPA and restore a semblance of the rule of law to the landscape of our constitutional democracy

There can be no genuine accountability, or an end to impunity, as long as the concept of “national security” fails to place the people — rather than the government — at its heart

A judgment by a sessions judge at Dindoshi shows us that the passing of progressive legislation is just the beginning. There is still much struggle ahead before HIV-affected persons can be welcomed into society as equal members

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