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Gautam Bhatia

Articles by Gautam 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)

lifestyle

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

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)

lifestyle

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

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Gautam Bhatia

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

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

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