Author: Tanisha Gautam
Institute of Law, Nirma University
“I don’t believe in token symbolism and meritless appointments”
Born on March 14, 1956 in Bangalore, Justice Indu Malhotra is a retired judge and a senior counsel of the Supreme Court of India. She is the first woman to be moved directly from the Bar. Her name was recommended unanimously by the Collegium headed by Chief Justice of India Dipak Misra. Justice Malhotra is the second woman to be designated as senior advocate by the Supreme Court, and the seventh woman judge appointed in the Supreme Court of India. She completed her LLB in 1982 from Campus Law Centre, Faculty of Law, Delhi University. She also taught as a Political Science Lecturer in one of the colleges in Delhi University. Justice Malhotra, other than being an exceptional advocate, specializes in the field of law of arbitration.
In 1983, Justice Malhotra joined the legal profession, and enrolled with the Bar Council of Delhi. In 1988, she got qualified as an Advocate-on-Record (AoR) in the Supreme Court of India. She has handled various domestic and international arbitration cases. Justice Malhotra was also appointed as the Standing Counsel for the state of Haryana in Supreme Court and represented various government bodies such as Securities Exchange Board of India (SEBI), Council for Scientific and Industrial Research (CSIR), Delhi Development Authority (DDA), Indian Council for Agricultural Research (ICAR) and others in the apex court. Justice Malhotra is specialised in the law of arbitration and is a fellow of the Chartered Institute of Arbitrators (CIArb) in England. She has been empanelled as an arbitrator with numerous arbitration entities such as the Indian Council of Arbitration (ICA) and the Delhi International Arbitration Centre (DAC). Moreover, she has recently authored a commentary on the Arbitration and Conciliation Act, 1996. In December 2016, she was made a member of the High Level Committee (HLC) in the Ministry of Law and Justice to review the institutionalization of the arbitration mechanism in India.
Justice Malhotra has been an active member of various committees, including the Vishakha Committee, she was nominated as a member of the editorial committee for the publication of the National Legal services Authority journal. In 2005, she was appointed as a member of the Supreme Court’s (Middle Income Group) Legal Aid Society. Later, in 2009 she was nominated as a member of the Central Authority of the National Legal Services Authority.
LANDMARK JUDGEMENTS PASSED
Over the past few years, Justice Malhotra has delivered multiple landmark and remarkable judgments, ranging from various fields of criminal, civil and commercial law. She was a part of the bench that rendered the most promising and progressive verdict of decriminalizing homosexuality and struck down section 497 of the Indian Penal Code. Justice Malhotra gave out her separate judgment wherein she stated, “LGBT persons deserve to live a life unshackled from the shadow of being 'unapprehended felons' , and that "history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”[i]
Justice Malhotra was involved with the 5-Judge Constitution Bench that struck down 158-year-old draconian adultery law under Section 497 of the Indian Penal Code. The section was struck down as it failed to consider both men and women as equally autonomous persons in the society. Justice Malhotra claimed, “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." She also remarked that an adulterous woman who voluntarily entered into a consensual sexual relationship with another married man was treated as a victim and the man as an offender and a seducer, was out of bounds, illogical, and unrealistic.
The famous verdict of the Sabarimala Temple in the ratio of 4:1 held to remove the existing ban on gender discrimination and the practice violates rights of the Hindu women. Ironically, the only judge to not favour women to enter the Temple was a woman, Justice Malhotra. She held that entertaining petitions challenging religious practices can tarnish and cause harm to the secular fabric of the country. She talked about Article 14, right to equality and stated that it can’t be the only essence to test religious customs and practices. When it comes to essential religious practices, she said, “The religious practice of restricting the entry of women between the ages of 10 to 50 years, is in pursuance of an ‘essential religious practice’ followed by the Respondents. The said restriction has been consistent, followed at the Sabarimala Temple for years.”[ii] She also found that petitioner’s argument that women are treated as untouchables, and drawing a similarity between the rights of minority communities like Dalits under Article 17 is misconceived and misinterpreted and stated, “The right asserted by Dalits was in pursuance of right against systematic social exclusion and for social acceptance per se. In the case of temple entry, social reform preceded the statutory reform, and not the other way about.”
In today’s world, it is essential to have such strong, fierce, independent, and successful women to help inspire and become role models for other’s aspirations. Justice Malhotra served as a promising personality and gave her fruitful contribution to the field of Law. Her works, efforts, verdicts, and observations stand high in our minds. She has proved herself over the time and did immense justice to her profession. She is a gem in the ocean of rocks.