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Gautam Bhatia

Articles by Gautam 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)

columns

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

Sabarimala case: It’s not a struggle to defeat religious faith

The Sabarimala case provides the Supreme Court with a chance to bridge the gap between the constitutional ideals and our social reality.

In this file photo dated November 18, 2013, devotees wait at Lord Ayyappa temple, Sabarimala. The Supreme Court has said women have the constitutional right to enter Sabarimala temple in Kerala and pray like men without being discriminated against(PTI)

analysis

Updated on Jul 23, 2018 06:59 PM IST

ByGautam Bhatia

Preventive detention must be used judiciously

Dalit leader Azad’s year in jail without bail or a trial throws a sharp light upon the Indian Constitution’s original sin: a compromise made by the framers in 1950, which has haunted the polity ever since

A protester shouts slogans demanding the release of Dalit leader Chandrashekhar Azad in New Delhi. Azad is in jail for more than a year now without a trial.(AP)

analysis

Updated on Jul 03, 2018 03:11 PM IST

ByGautam Bhatia

Why the Supreme Court’s verdict after Karnataka polls is critical for India

In doing so, it further cemented a strong past record in preserving the democratic process, and set an important precedent for the future

Senior Congress leader and lawyer Abhishek Manu Singhvi speaks to media personnel after a court hearing on Karnataka issue, outside Supreme Court in New Delhi, May 18(HT Photo/HT PHOTO)

analysis

Updated on May 29, 2018 08:42 AM IST

ByGautam Bhatia

The law on adultery is asymmetric

Section 497 of the IPC is clearly out of step with the founding ideals of the Indian Constitution, which —among other things — guarantee equality before law and non-discrimination on account of sex

In recent judgments, involving the employment of women as bartenders or as make-up artists, the Supreme Court has made clear that invidious sexual distinctions founded on generalisations or stereotypes about the nature, character and abilities of the sexes are inconsistent with the Constitution(AP)

opinion

Published on May 17, 2018 03:33 PM IST

ByGautam Bhatia

Supreme Court cannot take a Janus-faced approach to personal liberty

We need to have a debate about the correctness about the Supreme Court’s judgments in the Section 498A and SC/ST Act cases, and about the protection of the innocent from a criminal justice system that is often brutal, biased, and targeted against the most vulnerable in society

A file picture of the Supreme Court in New Delhi. If, in its judgments on Section 498A and the SC/ST Act, the apex court adopted the perspective of the innocent individual wrongly arrested, in its judgments on anti-terror laws, it adopted the perspective of the guilty man standing ready to misuse the procedural safeguards of criminal law.(Sonu Mehta/HT PHOTO)

analysis

Published on Apr 25, 2018 11:48 AM IST

ByGautam Bhatia

The arguments made against making marital rape a criminal offence are not valid

In striking down the marital rape exception, the court will not be creating a new crime, or trespassing into the domain of Parliament. It will be holding that an artificial immunity from criminal law, created by an 1860 law, can no longer survive constitutional scrutiny. And more importantly, it will be realising the promise of the privacy judgment – a further step towards individual dignity and autonomy.

Marital rape: Image for representation only(iStock))

analysis

Updated on Apr 02, 2018 12:18 PM IST

ByGautam Bhatia

Indirect discrimination: Rules and laws are never really ‘neutral’

Indirect discrimination refers to a situation where a rule or a practice that is seemingly “neutral” or “colour-blind”, nonetheless has a disproportionately adverse impact upon a set or group of people

Jawaharlal Nehru signs the Constitution on 24 January 1950.(Photo Division / PIB)

opinion

Published on Feb 23, 2018 12:08 PM IST

ByGautam Bhatia

Why does a woman’s religious identity in India still depend on who she’s married to?

At the heart of the Goolrokh Gupta case are two issues: first, who decides religious faith; and second, whether an inter-faith marriage could deprive a woman of the right to continue practicing her old religion

A Parsi lady prays at an Agiary in Dadar, Mumbai. The Goolrokh Gupta vs Burjor Pardiwala case has given the Supreme Court a golden chance to reaffirm a very basic proposition: that religion cannot serve as a cloak to deny women equal status under the Constitution(Kalpak Pathak / Hindustan Times)

opinion

Updated on Jan 18, 2018 02:23 PM IST

ByGautam Bhatia

The Transgender Persons Bill sends out a message of subordination and exclusion

The bill makes the recognition of transgender identity conditional upon a certificate issued by a district magistrate and the recommendations of a “screening committee”. What if you had to come before a medical officer to prove that you were actually a man or a woman, before society recognised you as such?

A protest in New Delhi against the trans bill at Jantar Mantar in New Delhi on Sunday, December 17(Arvind Yadav/HT PHOTO)

analysis

Updated on Dec 22, 2017 05:18 PM IST

ByGautam Bhatia

Hadiya has the Constitutional right to make her own choices

To every adult citizen, the Constitution proclaims: “The State is not your keeper. Your family is not your keeper. You are free to make your choices, and yes – free also to make your mistakes.”

Hadiya at the Supreme Court after the hearing in New Delhi on Monday, November 27(Vipin Kumar/HT PHOTO)

analysis

Updated on Nov 28, 2017 08:05 PM IST

ByGautam Bhatia

Dissenting judgments ensure that the Constitution is a living, breathing document

We must celebrate the tradition of dissent that continues to flourish at the Supreme Court. A dissent is not only an “appeal to a future intelligence”, but a sign of what is possible: if one judge can be convinced today, then tomorrow, perhaps two, or three, or even four might be.

A dissent is a crucial reaffirmation of fundamental rights and constitutional values at the moment when the Supreme Court, the guardian of the Constitution, appears to have abandoned them(Getty Images/iStockphoto)

opinion

Updated on Nov 20, 2017 06:24 PM IST

ByGautam Bhatia

Delhi can either go the industrial way or become a green city

With its patterns of over-expansion, Delhi can either go the industrial way or set an example by becoming a green city writes Gautam Bhatia

A-child-showing-polluted-water-flowing-into-the-Yamuna-river-Raj-K-Raj-HT-Photo

analysis

Updated on Aug 24, 2015 01:39 AM IST

ByGautam Bhatia

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Gautam Bhatia

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.

The Sabarimala case provides the Supreme Court with a chance to bridge the gap between the constitutional ideals and our social reality.

Dalit leader Azad’s year in jail without bail or a trial throws a sharp light upon the Indian Constitution’s original sin: a compromise made by the framers in 1950, which has haunted the polity ever since

In doing so, it further cemented a strong past record in preserving the democratic process, and set an important precedent for the future

Section 497 of the IPC is clearly out of step with the founding ideals of the Indian Constitution, which —among other things — guarantee equality before law and non-discrimination on account of sex

We need to have a debate about the correctness about the Supreme Court’s judgments in the Section 498A and SC/ST Act cases, and about the protection of the innocent from a criminal justice system that is often brutal, biased, and targeted against the most vulnerable in society

Indirect discrimination refers to a situation where a rule or a practice that is seemingly “neutral” or “colour-blind”, nonetheless has a disproportionately adverse impact upon a set or group of people

At the heart of the Goolrokh Gupta case are two issues: first, who decides religious faith; and second, whether an inter-faith marriage could deprive a woman of the right to continue practicing her old religion

To every adult citizen, the Constitution proclaims: “The State is not your keeper. Your family is not your keeper. You are free to make your choices, and yes – free also to make your mistakes.”

We must celebrate the tradition of dissent that continues to flourish at the Supreme Court. A dissent is not only an “appeal to a future intelligence”, but a sign of what is possible: if one judge can be convinced today, then tomorrow, perhaps two, or three, or even four might be.

With its patterns of over-expansion, Delhi can either go the industrial way or set an example by becoming a green city writes Gautam Bhatia

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