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Gautam Bhatia

Articles by Gautam 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

The importance of fundamental rights, writes Gautam Bhatia

Liberty, therefore, referred to that zone of freedom guaranteed to the individual where the State’s powers of interference were limited or restricted altogether

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 26, 2024 05:29 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

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)

columns

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)

columns

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)

columns

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

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Gautam Bhatia

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.

Liberty, therefore, referred to that zone of freedom guaranteed to the individual where the State’s powers of interference were limited or restricted altogether

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

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

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