Justice Indu Malhotra: Journey Till Retirement

KEY TAKEAWAYS

• Justice Indu Malhotra retires on the 13th of March, 2021.
• She had served as a Judge in the Supreme Court for a period of 3 years.
• She retired at the age of 65 years.
• She was one of the two woman Judges in the Supreme Court.
• She was the only woman to have been elevated from the Bar to the position of Judge.
• She was the seventh woman judge to have been appointed at the Supreme Court.
• She was an erudite Judge and her knowledge was reflected in her various decisions and judgements.
• All the Judges of the Supreme Court expressed their remorse over her retirement and were of the opinion that she would have contributed more to the judicial system had she not retired.

INTRODUCTION

Justice Indu Malhotra, one of the two women Judges at the Supreme Court of India is scheduled to retire on the 13th of March, 2021, after serving for a tenure of 3 years. “Don’t know any finer judge than Justice Indu Malhotra,” the Chief Justice of India, S A Bobde commented on her credibility as she sat on the Judges’ bench for the last time before her retirement on Friday.

Chapter IV of the Indian Constitution vide its Article 124(2) states that “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.”

Article 124(7) forbids any former judge of the Supreme Court to plead before any court within the territory of India, thus disallowing Justice Malhotra from practicing as an Advocate post her retirement from office.

She was the second woman to be designated as Senior Advocate by the Supreme Court, in the year 2007. She has been an excellent student and secured the first position in the exam for being the Advocate-on-record of the Supreme Court. She served as a legal counsel for around 30 years in the Apex Court, after which she had been unanimously recommended for appointment as a Judge of the Supreme Court. She was the first woman to have been elevated directly from the Bar to the position of the Judge.

BACKGROUND

Justice Malhotra was an excellent student. She specialises in the field of Arbitration, and is a Fellow of the Chartered Institute of Arbitrators (CIArb.), England.

She has been a member of various Committees the Supreme Court constituted over the years.

Being one of the members of the Vishakha Committee constituted by the Supreme Court of India, she was also nominated as a member of the Editorial Committee for publication of the official journal "Nyaya Deep" of the National Legal Sevices Authority during the period 2004–2013. The Central Authority of the National Legal Services Authority is a statutory body constituted under the Legal Services Authorities Act, 1987, of which she was nominated as a member. For a period of 3 years, she was appointed a member of the Supreme Court (Middle Income Group) Legal Aid Society that is constituted by the Supreme Court of India in addition to which, she was nominated as a member of the Indo-British Legal Forum held in January 2003 and once more in 2008.

She has been nominated by the Ministry of Corporate Affairs to the Central Council and Disciplinary Committee of the Institute of Chartered Accountants of India, a statutory body established under the Chartered Accountants Act, 1949. The Convention on the Rights of the Child was represented India in, held by the Commonwealth Secretariat in May 1998 at Dhaka, Bangladesh. She was nominated by the Chief Justice of India in the category of ‘eminent persons’ as a member of the General Council of the Gujarat National Law University in 2005.

SIGNIFICANT CONTRIBUTIONS

Justice Indu Malhotra has been a part of a lot of landmark cases in the Supreme Court. A significant case in which she was a part of the Bench was, the Sabrimala Case, i.e., Indian Young Lawyers Association & Ors v. The State of Kerala & Ors. She was the only woman on the Bench is this case. In the matter, she opined, “What constitutes essential religious practice is for the religious community to decide, not for the court”, while dissenting from the majority decision to close the doors of the temple of Lord Ayyappa for women in the age group of 10 to 50 years.

She was also part of significant cases like Ramesh Kumari v. State (NCT of Delhi), in which it was ruled as a mandate to Police Officers for registering cases involving cognizable offences, on information received in that regard, under Section 154 of the Criminal Procedure Code (CrPC).

She was one of the Judges in the five Judge Bench in the case Navtej Singh Johar v. Union of India which decriminalised Section 377 of IPC, where the abovementioned section was challenged the basis that it violated the Constitutional Rights to right to privacy, freedom of Expression , equality, human dignity and protection from Discrimination. Justice Malhotra stated in her order, "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".

REACTION OF OTHER JUDGES

Justice Indu Malhotra, one of the two women Judges in the Supreme Court of India was seen to be choking with emotions as she bid adieu to the post held by her, and at the unadulterated love, affection, respect and reverence showered upon her.

“I can understand the feeling which one goes through on the last day. We will hear her speech on some other day,” said the CJI, who headed the bench comprising Justice Malhotra and Justice AS Bopanna.
She said, “My tenure may be short, but I am leaving with a great sense of satisfaction having been able to contribute to the best of my ability.”

She, in her farewell programme organised by the Supreme Court Bar Association, recollected fond memories of the joy and respect of the members of the LGBT community, of her contribution when she was a part of the five judge bench which decriminalised Section 377 which permitted consensual homosexual relationship in private confines.

Attorney General KK Venugopal, on the retirement of the erudite Justice, said “She is one of the best judges. It's sad that the judge has to retire at 65. We are sorry as members of the Bar that Justice Malhotra has to retire.”

Senior Advocate Mukul Rohatgi agreed with the Attorney General and said “She is too young to retire. I will welcome Justice Malhotra to the Bar again so that she conducts arbitration proceedings.”

Senior Advocate and Supreme Court Bar Association (SCBA) President Vikas Singh said “65 is an age where a judge is at the peak. No reason to retire and the age must be 70. Even on the last day, she has read all the files and is discussing the cases. Another woman judge should be appointed immediately. She is an icon.”

With the retirement of Justice Indu Malhotra, the Supreme Court of India is left with only one woman Judge, Justice Indira Banerjee.