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Gautam Bhatia

Articles by Gautam 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)

columns

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)

analysis

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

analysis

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)

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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)

analysis

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)

analysis

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)

columns

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)

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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)

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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)

analysis

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)

analysis

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)

analysis

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)

columns

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)

analysis

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)

analysis

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)

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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)

analysis

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)

analysis

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)

columns

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)

analysis

Updated on Jan 15, 2019 07:43 AM IST

ByGautam Bhatia

The Rajya Sabha must amend the Transgender Persons Bill

It must amend the Trangender Bill in a manner that furthers the constitutional rights of dignity, autonomy, and equality

Members and supporters of lesbian, gay, bisexual and transgender (LGBT) community shout slogans during a protest to stop the Transgender Persons (Protection of Rights) Bill, at Jantar Mantar, New Delhi, December 28(Amal KS/HT PHOTO)

analysis

Updated on Jan 05, 2019 04:29 PM IST

ByGautam Bhatia

It is time to rethink the death penalty

it is questionable whether a punishment based solely on retribution has any place in a society that prides itself on being civilised

Last month, in his final judgment before retiring, Supreme Court Justice Kurien Joseph observed that the time had perhaps come to reconsider the place of the death penalty in the Indian criminal justice system(PTI)

analysis

Updated on Dec 22, 2018 08:01 PM IST

ByGautam Bhatia

Maternity leave is not a question of charity

The Uttarakhand High Court’s judgment has significance for how we think at the intersection of labour and gender equality

Women who enter the workforce must both conform to the male standard at the workplace (or lose out on career advancement), and also deal with social norms that expect them to continue shouldering family responsibilities(HT Photo)

analysis

Published on Dec 06, 2018 12:49 PM IST

ByGautam Bhatia

Matters of public interest must follow due process

To give a go-by to those processes in the name of “efficiency” or quick decision-making serves neither the cause of efficiency, nor the cause of truth

Deputy Chief of Air Staff Air Marshal V R Chaudhari and Air Marshal Anil Khosla leave the Supreme Court after a hearing on Rafale Deal, in New Delhi, November 14(PTI)

analysis

Updated on Nov 22, 2018 11:37 AM IST

ByGautam Bhatia

In the Age of MeToo, why criminal defamation must go

Criminal defamation – set out under Section 499 of the Indian Penal Code – is an anachronistic, colonial-era legal provision, that has been historically used by powerful individuals, corporations, and governments, to silence and suppress inconvenient speech

Last year, Tathagat Satpathy introduced into Parliament the “Speech Bill”, which aimed to replace criminal defamation with a detailed, statutorily codified regime of civil defamation(Getty Images/iStockphoto)

analysis

Updated on Nov 01, 2018 05:15 PM IST

ByGautam Bhatia

Justice must be open, not opaque

The growth of the jurisprudence of the “sealed cover” – which effectively involves the Court in a secret dialogue with (in most cases) the State – is a disturbing trend. We all understand that in a democracy, there is a small set of acts that the State must undertake in secrecy: military strategy, correspondence involving negotiating positions in international trade talks, and diplomatic relations, all fall within this set.

Last week, the newswires were abuzz with how a bench of the Supreme Court, headed by Chief Justice Ranjan Gogoi, asked the government to produce the details of the Rafale deal’s decision-making process in “a sealed cover.”(Sonu Mehta/HT PHOTO)

analysis

Updated on Oct 19, 2018 12:08 PM IST

ByGautam Bhatia

Decriminalisation of adultery is the first of many steps

It serves as a launchpad for greater freedom, equality, and independence within what is commonly understood to be the private sphere

On September 27, a five-judge bench of the Supreme Court struck down Section 497 of the Indian Penal Code(Sonu Mehta/HT PHOTO)

analysis

Updated on Sep 28, 2018 08:11 PM IST

ByGautam Bhatia

How the blasphemy law could transform Punjab into a theocratic state

The Punjab government’s proposed Section 295AA is not only about violating individuals’ rights to freedom of speech and expression, but about the broader question about “the kind of democracy that we have proclaimed ourselves to be.”

Punjab chief minister Capt Amrinder Singh at the Vidhan Sabha, Chandigarh, August 28, 2018(HT)

analysis

Published on Sep 21, 2018 05:54 PM IST

ByGautam Bhatia

Sec 377 judgment: An atonement for a grievous error, but a gateway towards greater freedom

It acknowledged that in a society as diverse as ours, tolerance for different forms of life, and acceptance of different ways of being, are the warp and the weft of the fabric of our plural culture.

It is no surprise that Section 377 was part of the Indian Penal Code of 1860, a brutal law imposed upon us by an alien, colonial regime, exemplifying alien cultural values(Raj K Raj/HT PHOTO)

analysis

Updated on Sep 10, 2018 07:14 PM IST

ByGautam Bhatia

India needs to acknowledge the gaps in data protection and rights of children

Children occupy a unique position within any legal framework. On the one hand, they are distinguished from adults by virtue of their vulnerability. On the other hand, there is a tendency on the part of lawmakers — and, indeed, society — to equate vulnerability with dependence, and completely efface children’s autonomy and decision-making capacities

Union Law Minister Ravi Shankar Prasad accepts a report on 'Data Protection Framework' from Justice BN Srikrishna, in New Delhi on Friday, July 27, 2018.(Kamal Singh/PTI)

analysis

Updated on Aug 10, 2018 08:27 PM IST

ByGautam Bhatia

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Gautam Bhatia

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

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

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

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

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

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

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

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

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

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.

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

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

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.

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”.

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

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

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.

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

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.

It must amend the Trangender Bill in a manner that furthers the constitutional rights of dignity, autonomy, and equality

it is questionable whether a punishment based solely on retribution has any place in a society that prides itself on being civilised

The Uttarakhand High Court’s judgment has significance for how we think at the intersection of labour and gender equality

To give a go-by to those processes in the name of “efficiency” or quick decision-making serves neither the cause of efficiency, nor the cause of truth

Criminal defamation – set out under Section 499 of the Indian Penal Code – is an anachronistic, colonial-era legal provision, that has been historically used by powerful individuals, corporations, and governments, to silence and suppress inconvenient speech

It serves as a launchpad for greater freedom, equality, and independence within what is commonly understood to be the private sphere

The Punjab government’s proposed Section 295AA is not only about violating individuals’ rights to freedom of speech and expression, but about the broader question about “the kind of democracy that we have proclaimed ourselves to be.”

It acknowledged that in a society as diverse as ours, tolerance for different forms of life, and acceptance of different ways of being, are the warp and the weft of the fabric of our plural culture.

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