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Gautam Bhatia

Articles by Gautam 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

The crisis of India’s Parliament

The judiciary must apply a test of ‘process-based unconstitutionality’, as the executive renders the legislature redundant

When a Parliament ceases to function, a parliamentary democracy turns, in effect, into an electoral autocracy. In an electoral autocracy, periodic elections are treated not as the beginning of the governance process, but as the end of it. An election accords a blank slate to a small group of people — ie, the leaders of the ruling party — to effectively rule by decree, free of any continuing requirement of accountability. (Sonu Mehta/HT PHOTO)

opinion

Updated on Oct 03, 2021 06:43 PM IST

ByGautam Bhatia

Galaxy quest: Will Asimov’s Foundation series find a new life on screen?

There are great expectations from the Apple TV adaptation of Isaac Asimov’s trilogy. Fans and critics hope it will keep up with the times, while maintaining its most distinctive feature — big questions, treated on a breathtaking scale.

Isaac Asimov’s Foundation books featured very few women. To right the balance for a new audience, the Apple TV show has recast the character of Gaal Dornick as a woman. (Apple TV)

art culture

Updated on Sep 25, 2021 01:54 PM IST

ByGautam Bhatia

Platform workers need justice, not charity

Tipping delivery workers, offering them shelter during rough weather conditions, and other basic gestures of humanity, have all been mooted. While important in their own right, it is crucial to note that the problem is institutional, and requires an institutional solution

Platforms deprive delivery workers of protection under labour law by classifying them as “independent contractors” or as “partners”. (Mint Archive)

opinion

Updated on Sep 13, 2021 07:59 AM IST

ByGautam Bhatia

Pegasus must lead to legal reform and consensus on the harms of surveillance

The government’s response, so far, has been obfuscation. It has neither confirmed nor denied the allegations, while also insisting that surveillance in India has to be “legally authorised”

A smartphone with the website of Israel's NSO Group which features Pegasus spyware. NSO Group has denied media reports its Pegasus software is linked to the mass surveillance of journalists and rights defenders, and insisted that all sales of its technology are approved by Israel's defence ministry. (Representational image/AFP)

opinion

Updated on Jul 22, 2021 03:35 PM IST

ByGautam Bhatia

UAPA’s inherently flawed architecture and the role of courts

A perusal of UAPA shows how its terms — for example, “membership” of unlawful or terrorist organisations — can be stretched to a boundless degree, allowing the State to persecute individuals for being in the wrong place at the wrong time, possessing the wrong kind of literature, or meeting the wrong kind of people, without anything further.

Student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha outside Tihar prison, after a court ordered their immediate release in the Delhi riots

opinion

Updated on Jul 11, 2021 08:52 PM IST

ByGautam Bhatia

India’s judiciary and the rights of refugees

At the core of international refugee law is the principle of non-refoulement — that is, refugees fleeing persecution on racial, ethnic, religious, or other grounds, may not be deported back to their country of origin, where their lives will be in danger

opinion

Updated on May 06, 2021 05:57 PM IST

ByGautam Bhatia

Why a Gauhati HC order on a citizenship case is important

Apart from a careful consideration of the documentary evidence, it noted that the structure of the Foreigners’ Tribunal proceedings was such that those accused of being a foreigner had no knowledge about the circumstances under which they had been referred to the tribunal or the nature of the accusations against them — no documents or evidence had to be furnished to them.

Gavel and law books (Getty Images/iStockphoto)

opinion

Updated on Apr 20, 2021 06:43 AM IST

ByGautam Bhatia

How UAPA curtails personal liberty, undermines fair trial

To stop UAPA from continuing to be the tool of repression that it has become, it is vital that the courts either strike down — or substantially read down — this section, and ensure that years in jail do not become an automatic consequence of the police’s (read: the State’s) decision to charge inconvenient opponents under this law.

Varavara Rao, accused related in Elgar Parishad, Bhima Koregaon case, Mumbai, Friday 28 February, 2020 (HT PHOTO)

opinion

Updated on Feb 16, 2021 06:31 AM IST

ByGautam Bhatia

The Allahabad High Court stands up for personal liberty

The judgment of the Allahabad High Court represents an important judicial pushback against the dominant ideology of State interference in questions of marriage, including by empowering social and vigilante groups.

If a couple marrying under SMA did not want their details to be made public, they could not be compelled to do so. (AFP)

opinion

Updated on Jan 26, 2021 06:17 AM IST

ByGautam Bhatia

Eliminate State and social interference in matters of conscience

The UP conversion law is unconstitutional. But the debate does not end with this one law, as it also replicates many existing provisions from other laws, which have been left standing for too long. India cannot call itself a constitutional democracy until social interference in matters of conscience is eliminated from its laws, once and for all.

It should be clear that the UP Prohibition of Unlawful Conversion of Religion law infantilises Indian citizens, reduces them to the level of subjects, and authorises State intrusion into the most personal of domains, that of individual conscience.(AFP)

analysis

Published on Jan 05, 2021 06:52 PM IST

ByGautam Bhatia

A tale of evasion, deference and inconsistency

There are a few characteristic features that have marked judicial conduct during this period, which are of serious concern

In the last few years, constitutional law in India has been ceaselessly exciting, and at the centre of things has been the SC(Burhaan Kinu/HT PHOTO)

columns

Updated on Dec 10, 2020 09:27 PM IST

ByGautam Bhatia

Domestic Violence Act: The Supreme Court took a progressive turn, writes Gautam Bhatia

The court refrains from treating the entitlements under the DV Act as paternalistic gifts to protect the “weaker” party, but expressly frames them in the language of rights

The court’s judgment is important not just for its progressive outcome, but also for its reasoning(PTI)

columns

Updated on Oct 26, 2020 07:10 AM IST

ByGautam Bhatia

By elevating labour rights to human rights, the SC opens a door, writes Gautam Bhatia

The importance of the SC’s judgment in Gujarat Mazdoor Sabha lies in its elevation of labour rights to the status of basic human rights, which majoritarian governments are, under the Constitution, obligated to respect, and cannot erase with the stroke of a pen

Going forward, these rights will need an active labour movement, and a vigilant judiciary, to guarantee their continued existence(HT PHOTO)

columns

Updated on Oct 05, 2020 07:15 PM IST

ByGautam Bhatia

Devise a new labour law regime for gig economy workers

Carefully-drafted laws that recognise the reality of platform work, and guarantee to platform workers both procedural rights (such as collective bargaining) and substantive rights (such as minimum wages and safe working conditions) are the only solution to this problem.

The employee/contractor binary, however, is based upon an outdated vision of work, where the factory or the shop floor was the predominant site of “work”(HTPhoto)

analysis

Updated on Sep 22, 2020 11:40 PM IST

ByGautam Bhatia

India needs a law to compensate the wrongly-imprisoned

If individuals have been deprived of months and years of their life for no justifiable reason at all, restitution of some sort must be provided. While lost time cannot be returned, and harassment cannot be undone, at the very least, compensation can mitigate some of the harm caused

The circumstances — Khan was served a preventive deTention order immediately after he had been granted bail in another case — strongly suggest that this was vindictive State action(Himanshu Vyas / Hindustan Times)

columns

Updated on Sep 07, 2020 07:42 PM IST

ByGautam Bhatia

How the Supreme Court let down poor workers during the pandemic, writes Gautam Bhatia

By effectively insulating employers from paying wages to workers, it has reinforced an unequal power dynamic

Migrant workers leave for their home towns and villages due to coronavirus lockdown, March 27, 2020(Sonu Mehta / Hindustan Times)

analysis

Updated on Aug 17, 2020 08:28 PM IST

ByGautam Bhatia

Why the anti-defection law has failed to deliver

Its inbuilt loopholes, the partisan role of institutions, and the influence of money in politics have weakened the law

The Tenth Schedule is no longer an effective check on defection(Praful Gangurde)

analysis

Updated on Jul 30, 2020 06:04 AM IST

ByGautam Bhatia

Supreme Court has not lived up to its own principles in Jammu and Kashmir, writes Gautam Bhatia

On the Internet’s centrality and State actions, the court’s vision is sound. But this did not get translated in its order

As raised by several people elsewhere, the continued treatment of Kashmir as a “special case” where a lower threshold of rights is justified, undermines the constitutional vision of equal protection and equal treatment. It is now to be hoped that when MHA committee considers the issue, the principles laid out by SC in both its judgments will be taken seriously, and 4G Internet restored promptly.(Amal KS/HT PHOTO)

analysis

Updated on Jun 08, 2020 10:24 PM IST

ByGautam Bhatia

Needed: A law to protect domestic workers | Opinion

It is evident that there needs to be put into place a detailed legislative framework that ensures that domestic workers are treated with dignity and respect.

Vaishali Patkar, from Aundh Vikas Mandal volunteered to help domestic workers and locals understand Covid-19, to help curtail misinformation in Pune. Altruism is not a strong enough force to protect the interests of workers, who constitute some of the most vulnerable and marginalised sections of society(Rahul Raut/HT PHOTO)

columns

Updated on May 09, 2020 07:17 PM IST

ByGautam Bhatia

The lockdown must not undermine citizen rights | Opinion

More measures are needed to mitigate its effect on the poor. The cure must not become worse than the disease

Placing a disproportionate burden upon one set of people creates a constitutional problem that the State must address(Sunil Ghosh / Hindustan Times)

columns

Updated on Apr 10, 2020 06:48 PM IST

ByGautam Bhatia

The Supreme Court’s jurisprudence on reservations has gaps | Opinion

If the constitutional right to equality is about substantive equality, target groups have a right to affirmative action.

Reservations were a means to bring about genuine and true equality, and not a set of privileges or gifts.(HT)

columns

Updated on Mar 03, 2020 06:42 PM IST

ByGautam Bhatia

Republic at 70: The importance of fundamental rights, writes Gautam Bhatia

India’s Constitution is, at the end of the day, a transformative Constitution: it transforms subjects to citizens, and brings ideas of freedom and equality into spaces they would otherwise never come.

Students hold a national flag, claimed to be more than 1,000-feet long, during a rally ahead of Republic Day in Mumbai.(Photo: AP)

opinion

Updated on Nov 25, 2022 04:22 PM IST

ByGautam Bhatia

The value of the SC’s Kashmir order| Opinion

The judgment offers a constitutional framework to evaluate rampant Internet shutdowns

If the government chooses to continue the shutdown, the matter will return to court. The SC can then apply its principles(AP)

columns

Published on Jan 12, 2020 07:36 PM IST

ByGautam Bhatia

#MeToo cases require more sensitive approach

Two recent court orders reveal that the judicial process is too blunt an instrument to address the movement’s trigger

Judges ought to exhibit a deeper understanding of power differences in the context of sexual harassment cases(Mohd Zakir/HT PHOTO)

analysis

Published on Dec 29, 2019 07:57 PM IST

ByGautam Bhatia

How Section 144 and Internet shutdowns shrink democratic rights | Opinion

The State’s increasing use of the two instruments undermines the Constitution. Review this usage

Section 144 was meant to prevent localised threats. Its citywide and statewide applications are nothing more than a wholesale suspension of fundamental rights(AP)

analysis

Updated on Dec 21, 2019 07:33 AM IST

ByGautam Bhatia

How the Constitution was betrayed

In Maharashtra, there was a total breakdown of constitutional morality. All actors contributed to it

If the breakdown of constitutional conventions continues, the situation will be beyond even the court’s power to remedy(Sonu Mehta/HT PHOTO)

columns

Updated on Nov 26, 2019 08:48 PM IST

ByGautam Bhatia

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Gautam Bhatia

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

The judiciary must apply a test of ‘process-based unconstitutionality’, as the executive renders the legislature redundant

There are great expectations from the Apple TV adaptation of Isaac Asimov’s trilogy. Fans and critics hope it will keep up with the times, while maintaining its most distinctive feature — big questions, treated on a breathtaking scale.

Tipping delivery workers, offering them shelter during rough weather conditions, and other basic gestures of humanity, have all been mooted. While important in their own right, it is crucial to note that the problem is institutional, and requires an institutional solution

The government’s response, so far, has been obfuscation. It has neither confirmed nor denied the allegations, while also insisting that surveillance in India has to be “legally authorised”

At the core of international refugee law is the principle of non-refoulement — that is, refugees fleeing persecution on racial, ethnic, religious, or other grounds, may not be deported back to their country of origin, where their lives will be in danger

The judgment of the Allahabad High Court represents an important judicial pushback against the dominant ideology of State interference in questions of marriage, including by empowering social and vigilante groups.

There are a few characteristic features that have marked judicial conduct during this period, which are of serious concern

The court refrains from treating the entitlements under the DV Act as paternalistic gifts to protect the “weaker” party, but expressly frames them in the language of rights

The importance of the SC’s judgment in Gujarat Mazdoor Sabha lies in its elevation of labour rights to the status of basic human rights, which majoritarian governments are, under the Constitution, obligated to respect, and cannot erase with the stroke of a pen

Carefully-drafted laws that recognise the reality of platform work, and guarantee to platform workers both procedural rights (such as collective bargaining) and substantive rights (such as minimum wages and safe working conditions) are the only solution to this problem.

If individuals have been deprived of months and years of their life for no justifiable reason at all, restitution of some sort must be provided. While lost time cannot be returned, and harassment cannot be undone, at the very least, compensation can mitigate some of the harm caused

By effectively insulating employers from paying wages to workers, it has reinforced an unequal power dynamic

Its inbuilt loopholes, the partisan role of institutions, and the influence of money in politics have weakened the law

On the Internet’s centrality and State actions, the court’s vision is sound. But this did not get translated in its order

It is evident that there needs to be put into place a detailed legislative framework that ensures that domestic workers are treated with dignity and respect.

More measures are needed to mitigate its effect on the poor. The cure must not become worse than the disease

If the constitutional right to equality is about substantive equality, target groups have a right to affirmative action.

India’s Constitution is, at the end of the day, a transformative Constitution: it transforms subjects to citizens, and brings ideas of freedom and equality into spaces they would otherwise never come.

The judgment offers a constitutional framework to evaluate rampant Internet shutdowns

Two recent court orders reveal that the judicial process is too blunt an instrument to address the movement’s trigger

The State’s increasing use of the two instruments undermines the Constitution. Review this usage

In Maharashtra, there was a total breakdown of constitutional morality. All actors contributed to it

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