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Gautam Bhatia
Articles by Gautam 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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
Updated on Nov 26, 2019 08:48 PM IST
ByGautam Bhatia

Decoding Ranjan Gogoi’s legacy

Gogoi’s term was marked by weak processes and inadequate reasoning. Justice suffered

Former Chief Justice of India Ranjan Gogoi at the India International Centre, New Delhi, November 3, 2019(Sanjeev Verma/HT PHOTO)
Updated on Nov 18, 2019 04:35 PM IST
ByGautam Bhatia

India must now reform its surveillance law | HT Analysis

The WhatsApp-Pegasus controversy affords a golden opportunity to do just that

Laws, the rule of law, and courts are not enough to protect and vindicate the right to privacy against State intrusion(AFP)
Published on Nov 08, 2019 07:24 PM IST
ByGautam Bhatia

Don’t link Aadhaar with social media accounts | Analysis

It will enable commercial surveillance, restrict free speech, curb privacy, and it defies the SC’s own orders

Free speech sometimes requires anonymity on social media. Stop its abuse. But don’t curb it altogether(Getty Images)
Updated on Oct 25, 2019 09:45 PM IST
ByGautam Bhatia

Why the Supreme Court must rethink capital punishment

It is the only form of punishment where human subjectivity and human error can never be atoned for

One of the cardinal principles that has evolved over time is that the death penalty is to be awarded taking into account not only the nature of the crime, but also, the character of the convict(Sonu Mehta/HT PHOTO)
Updated on Oct 18, 2019 07:34 PM IST
ByGautam Bhatia

On Gandhi’s 150th, it’s time to review the sedition law | Analysis

The colonial law meant to suppress dissent persists. Used as a political tool, it has deprived people of liberty. Scrap it

Famous figures of the freedom struggle — including Mahatma Gandhi — were sent to jail on charges of sedition. Even today, the real bite of the law is in its broad wording(Alamy Stock Photo)
Updated on Oct 01, 2019 09:52 PM IST
ByGautam Bhatia

Kerala HC verdict: A victory for individual freedom

Restricting Internet access deprives people of their right to life, liberty, freedom of expression, and privacy

An instrument, essential to fulfilling rights, may be used negatively. But this cannot justify prohibiting its use(KERALA HIGH COURT)
Updated on Sep 20, 2019 08:23 PM IST
ByGautam Bhatia

The Supreme Court does not need more judges

Limit the court’s exploding jurisdiction, and ensure clarity and consistency in its judgments

Increasing the number of judges at the SC, therefore, is a knee-jerk response that will not solve the problem of pendency but – at the same time – aggravate other, existing problems that do need solution(Biplov Bhuyan/HT PHOTO)
Published on Aug 28, 2019 06:31 PM IST
ByGautam Bhatia

Facial surveillance is a threat to privacy

The technology, which the NCRB is keen to use, is ineffective and discriminatory. Reconsider it

Visitors check their phones behind the screen advertising facial recognition software during Global Mobile Internet Conference (at the National Convention, Beijing, China, 2018(REUTERS)
Published on Jul 17, 2019 06:11 PM IST
ByGautam Bhatia

Why Bombay High Court order on death penalty for repeat rape offenders is unsatisfactory

The death penalty presents a unique kind of threat to individual rights – and for this reason, the court should have engaged in stricter scrutiny than it did

The Bombay High Court on June 3 handed down a judgment upholding the constitutional validity of Section 376E of the Indian Penal Code, which allows for courts to impose the death penalty upon repeat offenders in cases of rape.(HT PHOTO)
Published on Jul 03, 2019 07:52 PM IST
ByGautam Bhatia

Don’t dilute the RTI and the forest rights Acts

It is also important to remember that both these laws were the product of sustained, grassroots-level social movements. Consequently, perhaps the surest remedy against possible future dilution may lie not in judicial challenges (although that remains important), but in popular mobilisation.

Based upon the principle that ecological conservation is best achieved in cooperation with indigenous forest dwellers – and by recognising them as rights-bearers, the FRA takes away power from forest bureaucracy, and vests it in some of the most vulnerable and marginalised citizens of our polity(AP)
Published on May 28, 2019 07:41 PM IST
ByGautam Bhatia

Power imbalances and due processes don’t matter

The Supreme Court was called upon to do justice in a case involving claims of sexual harassment. And it has failed, in every possible way, to do that

What are we to do when the highest guardian of the law acts as if it is above the law?(PTI)
Updated on May 07, 2019 10:59 AM IST
ByGautam Bhatia

Gag orders on the media have to go

It’s not only draconian, but also goes against the principles of the defamation law and free speech

According to the civil law of defamation, a statement is “defamatory” if it lowers the reputation of the plaintiff.(Getty Images/iStockphoto)
Updated on May 01, 2019 08:40 AM IST
ByGautam Bhatia

Opinion | Supreme Court’s interim order on electoral bonds is disappointing

It is regrettably ironic that in a petition founded on the public’s right to know who funds political parties, the court has ordered that information be provided in a “sealed cover”, safe and secure from the voting public.

In a democratic system that does not have publicly funded elections (such as ours), it therefore becomes crucially important for the public to know who funds political parties, in order to critically evaluate whether that party’s policies are designed to actually serve the public good, or whether they are written to benefit its funders.(Amal KS/HT PHOTO)
Updated on Apr 13, 2019 07:25 AM IST
ByGautam Bhatia

Opinion | The Election Commission must come clean on the deletion of voters

The case – Srinivas Kodali vs Election Commission of India – is important because it does not simply call for remedying the deletion of voters from the rolls, but raises a far deeper issue pertaining to accountability in the electoral process: that of “algorithmic transparency”.

With the 2019 general elections looming, the issue of voter deletions must be addressed urgently, in order to preserve the sanctity of the democratic process(AP)
Updated on Apr 02, 2019 07:42 AM IST
ByGautam Bhatia

The electoral bonds scheme is a threat to democracy

From a constitutional point of view, the scheme fails the tests of rationality and non-arbitrariness

The stated justification of the electoral bond scheme is the removal of black money from elections, especially in the form of under-the-table cash payments(REUTERS)
Updated on Mar 18, 2019 11:55 PM IST
ByGautam Bhatia

The Aadhaar ordinance raises serious constitutional concerns

The Aadhaar amendments are also worrying because they attempt to directly overturn the Supreme Court’s September 2018 judgment on the constitutional validity of Aadhaar

The Union Cabinet on February 28, 2019, gave its approval for promulgation of an ordinance that would allow voluntary use of Aadhaar as identity proof for opening new bank accounts and procuring mobile phone connection, and also clarified that anyone not offering it cannot be denied any service.(AFP)
Updated on Mar 01, 2019 08:18 PM IST
ByGautam Bhatia

The Supreme Court must avoid turning into the executive

When the body charged by the Constitution to protect our rights begins to act like the government that it is meant to protect us from, we should all start to worry.

Reports indicate that more than(Vipin Kumar / HT Photo)
Updated on Feb 26, 2019 07:39 AM IST
ByGautam Bhatia

SC must not stifle commentary on sub-judice cases

The Indian Constitution does not authorise the judiciary to directly censor speech. Article 19(2) of the Constitution only allows for speech to be restricted through a “law” made by the “State

The framers of the Constitution wanted a double layer of safeguards when it came to free speech — parliamentary scrutiny (first) and judicial review (second). They did not see fit to vest direct censorial powers in the hands of judges.(Biplov Bhuyan/HT PHOTO)
Updated on Feb 11, 2019 07:25 PM IST
ByGautam Bhatia

Why the Supreme Court ruling on bar dancers is unsatisfactory

It lifted some of the most draconian restrictions on the basis that constitutional rights were being violated, but failed to take its own constitutional reasoning to its logical conclusion.

On January 17, 2019, the Supreme Court relaxed some laws for dance bars in Maharashtra that were ‘banned’ in 2005 after the government sought to “prevent immoral activities, trafficking of women and to ensure the safety of women in general”.(HT PHOTO/Vijayanand Gupta)
Updated on Feb 03, 2019 05:30 PM IST
ByGautam Bhatia

Challenge the NDA’s citizenship bill

During the time of the framing of the Constitution, there was a strong debate about which concept of citizenship the new Indian State would commit to: citizenship based on a physical connection with the territory of the State, or citizenship based on ethnicity or other communal markers. After deliberation, the constitutional framers adopted the first approach.

Activists of various indigenous organisations stage a protest rally in front of the Assam Secretariat against the Citizenship (Amendment) Bill, 2016, Guwahati, January 9, 2019(PTI)
Updated on Jan 15, 2019 07:43 AM IST
ByGautam Bhatia
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