“A subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction, simply on the basis of an innate characteristic, runs counter to the concept of constitutional morality.”
Justice Indu Malhotra in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
As Hon’ble Justice Indu Malhotra prepares to call it a day as Supreme Court Judge, we endeavor take a look at her exceptional journey which has been an inspiration to the legal fraternity and women alike.
Travelling Back in Time
Justice Malhotra was born on March 14, 1956 in Bengaluru (then known as Bangalore), to Om Prakash Malhotra (former Senior Supreme Court advocate) and Satya Malhotra. She did her schooling from Carmel Convent School, Delhi and obtained her Bachelors Degree in Political Science from Lady Shri Ram College in 1975, and then Masters Degree in Political Science in 1977 from Delhi University. She also obtained a post-graduate Diploma in Corporate Laws & Secretarial Practice from the Indian Law Institute in 1978-79 and completed her Bachelors Degree in Law from Delhi University in 1983.
♦Did You Know? In 1978, Justice Malhotra was appointed as a Lecturer of Political Science in Miranda House College and Vivekananda College, Delhi University.
As a Lawyer and SC Advocate on Record [1983- 2018]
Post obtaining her law degree, Justice Malhotra was enrolled as an Advocate on January 12, 1983 with Bar Council of Delhi. She qualified the Advocate-on-Record Examination in 1988. She specialized in the law of Arbitration and appeared as Counsel in various domestic and international commercial arbitrations both in India, and abroad. She also obtained certificate of the Diploma Course in International Commercial Arbitration by Chartered Institute of Arbitrators (CIArb), England.
♦Did You Know? Justice Malhotra was awarded the Mukesh Goswami Memorial Prize for having topped the Supreme Advocates on Record Examination in 1988!!
From 1991 to 1996, Justice Malhotra served as the Standing Counsel for the State of Haryana in the Supreme Court and represented several corporations like Securities and Exchange Board of India (SEBI), Delhi Development Authority (DDA), Council for Scientific and Industrial Research (CSIR) and Indian Council for Agricultural Research (ICAR) before the Supreme Court. She was appointed as a sole Arbitrator by various Arbitration Institutions.
♦Did You Know? Justice Indu Malhotra is the 2nd woman to be designated as a Senior Advocate by the Supreme Court in 2007 after 30 years!!
Even though Justice Malhotra did her specialization in the law of Arbitration, her tenure as a legal counsel was nothing short of versatile. As a prominent Senior Advocate, she dealt with several matters of constitutional and social importance. Some of the prominent cases where Justice Malhotra appeared as a counsel are as follows-
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217
M.C. Mehta v. Union of India, (1992) 3 SCC 256
Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441
P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626
Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739
State of A.P. v. National Thermal Power Corpn. Ltd., (2002) 5 SCC 203
SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618
Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471
Save Life Foundation v. Union of India, (2016) 7 SCC 20
As Member of Major Committees and Panels
During her tenure as SC Advocate on Record, Justice Malhotra was a part of several prestigious committees and panels. She was also appointed as amicus curiae (friend of the Court) in various matters. Following are some of the important committees which were enriched by her inclusion as a member-
- Being one of the members of the Vishaka Committee, Justice Indu Malhotra was a member of the Supreme Court Gender Sensitization and Internal Complaints Committee from November 2013 to 2017.
- She was appointed as a member of the High Level Committee constituted by the Ministry of Law and Justice, Government of India in 2017 to review the working of Arbitration institutions in India, and to make recommendations for institutionalization of arbitration, and suggest legislative amendments to the Arbitration and Conciliation Act, 1966.
- She was a Member of the Board of Examiners of the Advocates-on-Record Examination constituted by the Supreme Court from 2013 to 2017.
- She was a Member of the Supreme Court (Middle Income Group) Legal Aid Society from July 2005 to July, 2008.
- In 2016, she was nominated as a Member of Central Council of the Institute of Chartered Accountants of India, a statutory body established under the Chartered Accountants Act, 1949.
- The Singapore International Arbitration Centre (SIAC) empanelled Justice Malhotra as an Arbitrator in CIDC-SIAC from March 2006 to 2011.
- She also represented India at the Convention on the Rights of the Child, conducted by the Commonwealth Secretariat in May 1988 at Dhaka, Bangladesh. Member of the Indo-British Legal Forum held in January, 2003 and March, 2008.
- She authored the 3rd Edition of the Commentary on the Law and Practice of Arbitration and Conciliation.
- She was regularly invited by various Law Universities to deliver lectures including University of Delhi, National Academy of Legal Studies & Research (NALSAR), Hyderabad, Gujarat National Law University, ILS Law College, Pune, Symbiosis College of Law, Pune and Amity University, Delhi.
- She was nominated by the Chief Justice of India in 2005 under the category of ‘Eminent Persons‘ as a member of the General Council of the Gujarat National Law University established under the Gujarat National Law University Act.
- The Editorial Committee of ‘Nyaya Deep’, official publication of the Supreme Court, also benefited from Justice Malhotra’s involvement as its Member from August 2004 to 2013.
Along side her thriving legal career, Justice Malhotra also devoted her time to pursue several humanitarian causes; chief among them was her association with Save Life Foundation. Save Life Foundation is an independent, non-governmental organization committed to taking various initiatives to prevent fatalities in road accidents throughout the country. Justice Malhotra was a Trustee and counsel for Save Life Foundation from its inception till March 2018 and had played a key role in drafting the guidelines for the Good Samaritan law to provide protection to someone who helps victims of road accident.
As a Supreme Court Judge [2018-2021]
♦Did You Know? Justice Malhotra is the 1st female Advocate to be directly elevated as Supreme Court Judge and the 7th female Supreme Court Judge in 70 years!!
On 10.01.2018, the Supreme Court Collegium, comprising of the five senior-most judges, recommended the name of Indu Malhotra for elevation to the Supreme Court, which was duly cleared by the Central Government. However, her elevation as a Judge came at a time when the SC Collegium was mired in controversies regarding delayed judicial appointments. Despite the tumult, Malhotra’s appointment was applauded by all and the sundry and was heralded by the legal fraternity as a “step in the right direction for gender diversity in the Apex Court”.
In the history of Supreme Court of India, this was the third occasion when it had two sitting women judges together – the first being Gyan Sudha Misra and Ranjana Prakash, Desai, JJ., then Ranjana Praksh Desai and R. Banumathi, JJ., and then R. Banumathi and Indu Malhotra, JJ.
♦Did You Know? Justice Indu Malhotra was part of the Supreme Court In- House Committee constituted to investigate sexual harassment allegations leveled by a former Supreme Court employee against the CJI Ranjan Gogoi.
During her 3 year tenure as SC Judge, Justice Indu Malhotra not only rendered and but also had been a part of some historic judgments; some of them are as follows-
Rajnesh v. Neha, (2021) 2 SCC 324,
The Bench of Indu Malhotra and R. Subhash Reddy, JJ., framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
In this landmark 5 -Judge Bench decision, which became instrumental in advancing the LGBT movement in India; Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., held Section 377 IPC to be unconstitutional insofar it criminalised gay sex between consenting adults. The Bench reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
Indu Malhotra, J., observed that-
“LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. History owes an apology to these people and their families. Homosexuality is part of human sexuality. They have the right to dignity and be free of discrimination. Consensual sexual acts of adults are allowed for LGBT community. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.”
Joseph Shine v. Union of India, (2019) 3 SCC 39
The 5-Judge Constitution Bench held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., delivered their separate concurring opinions. As per the observations of Indu Malhotra, J.,
“A law which deprives women of the right to prosecute is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary”.
Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396
The 5-Judge Constitution Bench comprising of Dipak Misra, C.J., and Kurian Joseph, R.F. Nariman, Sanjay Kishan Kaul and Indu Malhotra, JJ., disposed off a batch of petitions holding that the judgment in M. Nagaraj v. Union of India, (2006) 8 SCC 212 does not need to be referred to a 7-Judge Bench. However, the conclusion in Nagaraj that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the 9-Judge Bench in Indra Sawhney v. Union of India, 1992 Supp (3) 217 was held to be invalid to this extent.
Public Interest Foundation v. Union of India, (2019) 3 SCC 224
The 5-Judge Constitution Bench comprising of Dipak Misra, C.J., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., the Court issued certain directions while disposing the petition concerning the question whether disqualification from the membership of the legislature could be laid down by the Court beyond Article 102 (a) to (d) and the law made by the Parliament under Article 102 (e) of the Constitution. The Supreme Court, at the outset, perused Articles 102 and 191 of the Constitution and observed it to be clear as crystal that as regards the disqualification for being chosen as a member of either House of Parliament and similarly for a legislative assembly or legislative council of a State, the law has to be made by the Parliament. On the issue of criminalisation of politics, the Court observed that Election Commission has the plenary power and its view has to be given weightage. That apart, it has power to supervise the conduct of free and fair election. However, the said power has its limitations. The Election Commission has to act in conformity with the law made by the Parliament and it cannot transgress the same.
Rahna Jalal v. State of Kerala, (2021) 1 SCC 733
The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., held that there is no bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail.
Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023
In a bid to harmonise the competing reliefs of a daughter-in-law and her in-laws under the Protection of Women from Domestic Violence Act 2005 and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, respectively, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., held that the Tribunal under the Senior Citizens Act, 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent, however, the over-riding effect for remedies sought under the Senior Citizens Act 2007, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the DV Act 2005.
Ritika Sharan v. Sujoy Ghosh, 2020 SCC OnLine SC 878
The instant case dealing with the custody of a 7-year-old, wherein the issue arose that whether the custody of a child gets transferred from the mother to grand parents if they are assisting in looking after the child, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., held that, mere fact that a mother is looking after the child with the assistance of her parents, does not detract from her role and responsibility as a mother.
Anokhilal v. State of Madhya Pradesh, (2019) 20 SCC 196
Noticing that where death sentence could be one of the alternative punishments, the courts must be completely vigilant and see that full opportunity at every stage is afforded to the accused, the 3-judge bench of UU Lalit, Indu Malhotra and Krishna Murari, JJ., laid down Guidelines for the appointment of amicus curiae.
Government of India v. Vedanta Limited, (2020) 10 SCC 1
The 3-judge bench of SA Nazeer, Indu Malhotra and Aniruddha Bose, JJ has dismissed Central Government’s plea against enforcement of a 2011 foreign award passed in favour of Vedanta Limited in a dispute arising out of a contract for exploring and developing the petroleum resources in the Ravva Gas and Oil Fields. The Court held, “the enforcement of the foreign award does not contravene the public policy of India, or that it is contrary to the basic notions of justice.”
XYZ v. State of Gujarat, (2019) 10 SCC 337
In an appeal against the verdict of Gujarat High Court that quashed the criminal proceedings against a man accused for sexually assaulting and blackmailing his employee, the 3-judge bench of UU Lalit, Indu Malhotra and R. Subhash Reddy, JJ., set aside the verdict and held that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the respondent was consensual. The Bench held that, when a woman says that she did not consent to a physical relationship, a court should not presume otherwise.
Rachna v. Union of India, 2021 SCC OnLine SC 140,
In the instant matter where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic, the bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi, JJ., held that the Courts cannot issue mandamus to frame policy.
Gajanan Babulal Bansode v. State of Maharashtra, 2021 SCC OnLine SC 57
The 3-Judge Bench comprising of L. Nageswara Rao, Indu Malhotra and Vineet Saran, JJ heard the petition challenging the decision of Maharashtra government to appoint 636 additional candidates without consulting MPSC (Maharashtra Public Service Commission. The Bench stated,
“It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.”
Phoenix Arc Pvt. Ltd. v. Spade Financial Services Ltd., 2021 SCC OnLine SC 51
The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ., held that collusive transactions with the Corporate Debtor would not constitute a ‘financial debt’ under Insolvency and Bankruptcy Code.
NN Global Mercantile Pvt Ltd v. Indo Unique Flame Ltd., 2021 SCC OnLine SC 13
The three-judge bench comprising DY Chandrachud, Indira Banerjee and Indu Malhotra, JJ. has observed that non-payment of stamp duty in a commercial contract does not invalidate the arbitration clause mentioned in the contract.
Dr. Naresh Kumar Mangla v. Anita Agarwal, 2020 SCC OnLine SC 1031
In a case where within a couple of days of the alleged dowry death of a doctor in Agra, a suicide note was leaked to the newspapers of the city, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., stated that selective disclosures to the media affect the rights of the accused in some cases and the rights of victims families in others.
Sri Marthanda Varma (D) v. State of Kerala, (2021) 1 SCC 225
The Bench of UU Lalit and Indu Malhotra, JJ upheld the rights of the Travancore royal family in the administration of Sree Padmanabhaswamy Temple, one of the world’s richest temples, in Kerala’s Thiruvananthapuram. Allowing the appeal filed by members of the Travancore family, the Court observed that the death of the Travancore ruler, who signed the covenant, does not affect the rights of the Shebaitship Travancore family over the temple and it will survive as per the customs.
State of Uttarakhand v. Sureshwati, 2021 SCC OnLine SC 34,
The 3-judge Bench of L. Nageswara Rao, Navin Sinha and Indu Malhotra, JJ., held that Failure to make an enquiry before dismissal or discharge of a workman can be justified by leading evidence before the Labour Court.
Dakshin Haryana Bijli Vitran Nigam Ltd.. v. Navigant Technologies Pvt. Ltd., 2021 SCC OnLine SC 157 ,
The bench of Indu Malhotra and Ajay Rastogi, JJ were posed with the question as to whether the period of limitation for filing the Petition under Section 34 of the Arbitration and Conciliation Act, 1996 would commence from the date on which the draft award is circulated to the parties, or the date on which the signed copy of the award is provided. Going with the latter, the Court held that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties.
“There is only one date recognised by law i.e. the date on which a signed copy of the final award is received by the parties, from which the period of limitation for filing objections would start ticking. There can be no finality in the award, except after it is signed, because signing of the award gives legal effect and finality to the award.”
National Co-operative Development Corporation v. Commissioner of Income Tax, 2020 SCC OnLine SC 733
The bench of SK Kaul and Indu Malhotra, JJ recommended the Central Government to consider the efficacy of the advance tax ruling system and make it more comprehensive as a tool for settlement of disputes rather than battling it through different tiers, whether private or public sectors are involved. It suggested that a council for Advance Tax Ruling based on the Swedish Model and the New Zealand System may be a possible way forward.
Priti Saraf v. State of NCT of Delhi, 2021 SCC OnLine SC 206
Answering the “hotly debated” question as to in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC, the bench of Indu Malhotra and Ajay Rastogi, JJ held that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court.
“…the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarkingto scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”
BSNL v. Nortel Network India Pvt. Ltd, 2021 SCC OnLine SC 207
In this significant ruling, the bench of Indu Malhotra and Ajay Rastogi, JJ., held that the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963. Hence, the period of limitation will begin to run from the date when there is failure to appoint the arbitrator. Furthermore, in rare and exceptional cases, where the claims are ex facie time-barred and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference.
N. Patil v. K. Niranjan Kumar, 2021 SCC OnLine SC 172
In a case where the Karnataka High Court summarily reversed the judgment of the Trial Court without assigning any reasons, the bench of Indu Malhotra and Ajay Rastogi, JJ., held that though it is not necessary to record elaborate reasons in every case, the Courts should do so in order to facilitate the superior Courts to understand what weighed in with the Court to reverse the finding of the lower court.
Asha John Divianathan v. Vikram Malhotra, 2021 SCC OnLine SC 147,
The 3-judge bench of AM Khanwilkar, Indu Malhotra and Ajay Rastogi held that the condition predicated in Section 31 of the Foreign Exchange Regulation Act, 1973 of obtaining “previous” general or special permission of the RBI for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India, is mandatory.
Sudipta Chakrobarty v. Ranaghta SD Hospital, 2021 SCC OnLine SC 107
After the Court noticed that, in a case, where the National Consumer Disputes Redressal Commission (NCDRC) had passed the reasoned order 8 months after the pronouncement of the operative order, the bench of Indu Malhotra and Ajay Rastogi, JJ has asked the President of the NCDRC into the matter, and take necessary steps so that this practice is discontinued, and the reasoned Judgment is passed along with the operative order. The Court also observed that in all matters where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.
Federation of Bank of India Staff Unions v. Union of India, (2019) 4 SCC 462
The bench of Abhay Manohar Sapre and Indu Malhotra, JJ., held that there cannot be a uniform qualification or/and disqualification for the Board of Directors under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970.
Management of the Barara Cooperative Marketingcum Processing Society Ltd v. Workman Pratap Singh, (2019) 2 SCC 743
In the matter where an illegally terminated workman had sought reinstatement claiming preference over other persons being a “retrenched workman” as per Section 25(H) of the Industrial Disputes Act, 1947 (ID Act), the bench of Abhay Manohar Sapre and Indu Malhotra, JJ., held that it was not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act as the workman had already accepted the compensation awarded to him in lieu of his illegal termination.
Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1
The 5-Judge Constitution Bench, by a majority of 4:1, held that not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The only lady Judge on the Bench, Justice Indu Malhotra, rendered a dissenting opinion. Justice Malhotra was of the view that the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. She noted that the petitioners herein did not claim to be devotees of the Sabarimala Temple and the absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination. She observed that-
“Judicial review of religious practices ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of courts. Constitutional morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practice is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts”.
♦Did You Know? Justice Indu Malhotra recused herself from hearing a batch of appeals and cross-appeals challenging a Bombay High Court order on possession, storage and consumption of beef brought into Maharashtra from other States, as she had earlier appeared as a lawyer in the case.
Considered by her peers to be ‘one of the best’, Justice Indu Malhotra, despite coming from a family of lawyers, carved her own niche in the legal field. During her exemplary and expansive legal tenure, Justice Malhotra shattered the proverbial glass ceiling on every step. Her drive and success in the legal echelons will forever be cherished and will serve as a beacon for future aspirants.
†Editorial Assistant, EBC Publishing Pvt. Ltd.