Hon’ble Justice Indu Malhotra (Born 14 March 1956 in Bengaluru) is an incumbent Judge in the Supreme Court of India. She is the first-ever woman to be designated directly to the Supreme Court of India from the Bar, the seventh woman to hold the title of ‘Justice’ in India, and the second woman to be appointed as Senior Advocate in the Supreme Court of India after a gap of almost 30 years. Justice Indu Malhotra is the youngest of a lot of Senior Advocates such as Om Prakash Malhotra and Satya Malhotra’s children. She stated in an interview that her father was very rigid and would teach her and her siblings, the value of being well-educated and having a thirst for knowledge.
She grew up in an academic-centred and strict environment, wherein a lot of importance was given to education. To the extent that their family did not even purchase a television set until after graduation to ensure that maximum amount of time was utilized in reading and learning. Due to these factors, she had an early onset love for academics. She also attributed this to seeing her father, a massive workaholic, sit on his desk and work for almost 14 hours since the break of dawn.
Justice Malhotra initially started her career as a lecturer, but in her late 20s, she took to the field of law and decided to pursue the same. She obtained her B.A.(Hons.) degree and Master’s degree in the field of Political Science from Lady Shri Ram College, which is affiliated with the University of Delhi. After which she worked as a Professor of Political Science for a short period in Miranda House and Vivekananda College, Delhi University. She obtained her LL.B. (Bachelors of Law) degree in 1982 through the Faculty of Law, Delhi University.
She believes that to gain knowledge and be successful in the field; one must value experiences, and imbibe whatever one can from interactions with seniors, courtroom sessions, etc. She has gained most of her understanding, expertise and skills in the field of law by interacting with seniors, some of her inspirations being Justice R. F. Nariman, Justice R. B. Jethmalani and former-Attorney General Soli Sorabjee. She is a firm believer in the fact that Senior Advocates must help, train, guide and nurture Junior Advocates to grow and instil confidence within them to be able to address the court with full and firm authority.
They must provide them with incentives to stay on and continue the learning process as this helps improve the efficiency and quality of the whole system. She also encourages law students to look beyond stipends and CV points and focus more on gaining knowledge, honing skills and procuring experience of value instead. She has also advised budding lawyers in an interview that getting a position on any panel or committee provides tremendous exposure and opportunities, especially for young litigators.
Justice Malhotra began her legal profession in 1983 and 1988 she qualified as an Advocate-on-Record in the Supreme Court by clearing the examination for the same and securing 1st place in it for which she was even bestowed with the Mukesh Goswami Memorial Prize on National Law Day. Justice Malhotra specializes in the field of Arbitration Law and has dealt with numerous domestic and international commercial arbitration cases.
She is also enrolled as an Arbitrator with various institutional bodies such as the Indian Council of Arbitration (ICA), Delhi International Arbitration Centre (DAC), ASSOCHAM, etc. She is also a Fellow of the Chartered Institute of Arbitrators (CIArb). In December 2016, she started work as a member of the High-Level Committee (HLC) in the Ministry of Law and Justice that was formed to evaluate the incorporation of arbitration mechanism in the Indian system of law.
She also penned down the 3rd edition of a very comprehensive and enlightening commentary on the Arbitration and Conciliation Act, 1996 titled The Law and Practice of Arbitration and Conciliation which was released on 7 April 2014 by the then Chief Justice of India, P Sathasivam. Her work on this has been lauded by one and all and has been described as a “legal classic” by various eminent legal dignitaries and jurists.
Important cases
• Indian Young Lawyers’ Association v. State of Kerala.
One of the most notable ones is her stand in the landmark judgement of the Sabarimala Temple Entry Case, which led to the allowance of all women, regardless of age, to worship in the Sabarimala Temple of Lord Ayyappa. A five-judge bench heard the matter, and Justice Malhotra was the only dissenting voice, which was ironical as she happened to be the single woman judge on the court. She was of the view that PILs challenging religious practices of a particular community could damage the constitutionality and secularity of the country.
She reasoned that the fundamental right under Article 14 (Right to Equality) could not overrule the fundamental right under Article 25 (Right to Freely Profess, Propagate and Practice Religion), regardless of whether the said religious practice is rational or not. She said, “Equal treatment under Article 25 is conditioned by essential beliefs and practices of the said religion”. She held that the Right to Equality of women is indeed protected as they are permitted to enter the other temples of Lord Ayyappa wherein he is not believed to be manifested as a celibate or a ‘naishtik brahmachari’.
She held that in religion, a specific code of ethics and prescribed rules and rituals are laid down, which are an integral part of practising the religion. The disallowance of women in the reproductive age (10-50 years, to be exact) constitutes an ‘essential religious practise’ which has been consistently followed in the Sabarimala Temple for years. Thus, she contended that the restriction on entry of women aged 10-50 years in the temple is justified and “what constitutes an essential religious practice is for the religious communities to decide and not the courts”.
• Navtej Singh Johar v. Union of India.
Justice Malhotra was also part of the five-judge bench that heard this case and delivered a unanimous landmark verdict that declared Section 377 of the Indian Penal Code as unconstitutional as it criminalized homosexual acts between consenting adults.
In light of this case, Justice Indu Malhotra provided an apology to the LGBTQIA+ community. She stated 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. The members of this community were compelled to live a life full of fear of reprisal and persecution”.
• Joseph Shine v. Union of India.
Justice Malhotra was part of the four-judge Supreme Court bench that unanimously struck down the 158-year old law under Section 497 of the Indian Penal Code, thus decriminalizing the act of Adultery. Justice Malhotra reasoned that the law was violative of the fundamental rights enshrined under Articles 14, 15 & 21 and noted that it was based on “archaic norms”. She also stated that – “The times when wives were invisible to the law and subordinate to their husbands had long passed”. She also observed that Adultery is undoubtedly a ‘morally wrong civil offence’, but it does not impact the society at large to a severe extent. So, it cannot be considered as a criminal offence.
• Justice Malhotra had also spoken up against the sexual harassment of female advocates in the court premises. She also filed a plea for the setting-up of a committee to address complaints regarding sexual harassment for the same. In response to this, the Supreme Court formed a 10-member committee, named the “Vishakha Committee”, of which Justice Malhotra was a member, to look into and address these issues.
• She also argued in the Supreme Court seeking a ban on transport vehicles such as trucks that carry protruding rods/loads as it poses a massive threat to other drivers on the road. Following this, in March 2014, the Supreme Court ruled in favour of her cause and ordered a ban on all vehicles carrying protruding rods/loads.
• Justice Malhotra also played a significant part in the landmark verdict given by the Apex Court in July 2015 stating that an unwed mother is the sole natural guardian of her child and she is not obliged to disclose the identity of the child’s father if she so wishes to.
• Justice Malhotra is also a part of the Trustee Board of Save LIFE Foundation, a non-profit, non-government organization. They aim to prevent road accidents and to form a legitimate plan-of-action to ensure quick response and provision of immediate help to injured parties.
She appeared in a case before the Supreme Court on behalf of this NGO, following which the Supreme Court issued specific directives to protect ‘Good Samaritans’ who provide help and save the lives of those wounded in road mishaps.
Committee Memberships
Justice Indu Malhotra has been a part of several Supreme Court- formed committees and other committees. She is a member of the esteemed National Legal Services Authority (NALSA) that helps in spreading awareness and providing free legal aid services to indigent persons by experienced senior advocates. She has also been a member of the Supreme Court (Middle Income Group) Legal Aid Society for three years.
In 2005, she was nominated in the category of eminent persons. And as a member of the General Council of GNLU by the then-Chief Justice of India. She was also nominated as a member of the Indo-British Legal Forum twice, once in 2003 and later in 2008. She was also sent as a representative of India in the convention on the Rights of the Child. The Commonwealth Secretariat organized the convention in May 1998 at Dhaka, Bangladesh.
Justice Malhotra assumed office as a Judge of the Supreme Court on 27 April 2018 and continues to hold office even now.
Article by- Arya Nanal; BA LLB ( hons.), ILS Law College, Pune.
Editor- Palak Gupta; BBA LLB ( hons.) Symbiosis Law School, Nagpur
Disclaimer: Every single effort has been made to maintain the accuracy of this publication at the time it was written by the Author. The article does not intent to provide any kind of legal advice or claim a guaranteed outcome and the law which has been mentioned may have changed since the publication. Readers considering legal action should consult with an experienced professional lawyer to understand the current laws and how they are in a position to affect the case. For any specific technical or legal advice on the information provided in the Article/blog, please contact the author.
REFERENCES USED:
1] Supreme Court Observer (scobserver.in) – Judges: Indu Malhotra
2] Wikipedia – Indu Malhotra
3] The Times of India (timesofindia.indiatimes.com) – Sabarimala verdict: 5 key reasons why Justice Indu Malhotra differed with majority view
4] starsunfolded (starsunfolded.com) – Indu Malhotra Age, Biography, Husband, Children, Family, Facts & More
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