The Supreme Court recently bid farewell to one of the few woman judges to have graced its bench in recent times. The retirement of Justice Indu Malhotra leaves just one woman judge out of 29 judges at the apex court.

Addressing gender disparity in the justice system in her farewell speech, Justice Malhotra said that she does not subscribe to token symbolism and meritless appointments as a solution to address the lack of representation of women in the judiciary.

"On the issue of gender representation, the difference between male and female judges will not exist one day. I do not believe representation being merely symbolic. I don't believe in token symbolism and meritless appointment...I believe the numbers will grow. Society benefits when gender diversity is found on the bench," she said.

Justice Malhotra was a trailblazer in a profession that suffers from an abject lack of gender representation, having been only the second woman to be designated as Senior Advocate by the Supreme Court. Over the course of a career that lasted more than three decades, she served in some important positions including member of the Supreme Court Gender Sensitization and Internal Complaints Committee, member of the Supreme Court (Middle Income Group) Legal Aid Society, and Trustee of Save Life Foundation, a non-governmental organisation dedicated to preventing fatalities in road accidents.

On April 27, 2018, she was elevated as a judge of the Supreme Court directly from the Bar, making her the only woman to hold that distinction.

This piece offers a quantitative analysis of Justice Malhotra’s time at the Supreme Court, and also delves into the important judgments she passed during her tenure.

Month-wise distribution of rulings

During a tenure that lasted nearly three years (1,052 days), Justice Malhotra was involved in the passing of 199 judgments and orders, as per data on the Supreme Court website. She authored 75 of these rulings.

Note: A search for Justice Malhotra's judgments on the Supreme Court website yielded 274 results. 75 of these judgments were wrongly attributed to her.

Any analysis of productivity of Supreme Court judges in recent times will have to take into consideration the closure of courts effected by the COVID-19 pandemic.

Surprisingly, her most productive month was December, a month during which the apex court is closed for at least a couple of weeks owing to winter vacations. She delivered 36 judgments during this month.

Apart from the vacation months of May and June, Malhotra J’s least productive months were April (9 rulings) and August (13 rulings).

Day-wise distribution of rulings

As mentioned above, Justice Malhotra was most productive in the last three months of the year, passing 0.24, 0.24 and 0.39 rulings per day in the months of October, November and December respectively.

Year-wise productivity

The pandemic-hit 2020 saw a dip in the number of rulings passed by Malhotra J. She passed only 31 rulings in this year, compared to 83 and 65 in 2019 and 2018 respectively. In just over two and a half months in 2021, she passed 20 rulings.

Bench-wise distribution of rulings

Over the course of her tenure at the Supreme Court, Justice Malhotra sat as part of a five-judge Constitution Bench, six times and as part of a three-judge Bench, twenty-eight times.

While on a Division Bench, she sat most frequently with Justice Abhay Manohar Sapre (59 rulings) and Justice UU Lalit (42 rulings). She shared a Division Bench with three future Chief Justices of India - Justice Lalit, Justice Sanjiv Khanna, and Justice DY Chandrachud, who said in open court that he would miss sitting with Justice Malhotra two days before her retirement.

Case-type distribution

A majority of Justice Malhotra’s rulings were passed in Civil Appeals before the apex court (65.8%). 22.1% of her rulings were passed in Criminal Appeals.

Notable judgments

In Navtej Singh Johar v. Union of India, a five judge Constitution Bench of the Supreme Court of India decriminalized Section 377 of the Indian Penal Code. Justice Indu Malhotra, in her separate but concurring opinion held Section 377 to be violative of Articles 14, 15, 19 and 21 of the Indian Constitution, as it criminalizes consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private.

“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,” she held.

In Indian Young Lawyers Association & Ors v. State of Kerala and Ors, a Constitution Bench of the Supreme Court held that the restriction on entry of women into the Sabarimala temple was violative of Article 14. To the contrary, Justice Indu Malhotra, the only woman judge on the Bench, penned a dissenting opinion on the issue.

Justice Malhotra held that the custom of prohibiting entry of women (between the ages of 10 years to 50 years) into the Sabarimala Temple of Lord Ayyappa is not violative of Article 14 of the Indian Constitution.
She was also part of the Bench that heard review petitions against the Court’s 2018 verdict, and referred the Sabarimala issue as well as related issues to a larger bench.

In Joseph Shine v. Union of India, the Supreme Court held that Section 497 of the Indian Penal Code, which criminalized Adultery, is unconstitutional. Justice Malhotra in her separate opinion observed that Section 497 is liable to be struck down as unconstitutional. One of the reasons which was culled out by Justice Malhotra was the criminal sanction by the State in marital offences. It was held that “criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole.”

Justice Malhotra was also a part of the Constitution Bench in Public Interest Foundation v. Union of India, wherein the Court held that candidates against whom charges have been framed in criminal offences cannot be barred from contesting elections. However, it was held that candidates contesting must declare their criminal antecedents, and must inform their political parties about any criminal cases pending against them.

She was also part of the Constitution Bench in Jarnail Singh v. Lacchmi Narain Gupta & Ors, in which it was held that the judgment in M Nagaraj v. Union of India that deals with reservations in promotions for the SC/ST communities, need not be referred to a seven-judge Constitution Bench.

In Rojer Mathew v. South India Bank Limited, Justice Indu Malhotra was a part of the Division Bench which directed the Union government to form a temporary committee so that tribunals can function smoothly. The Court observed that such a body should be responsible for recruitment and oversight of functioning of members of tribunals.

In Rajnesh v. Neha, the Supreme Court issued certain guidelines on the payment of maintenance in matrimonial matters. The judgment authored by Malhotra J. gave detailed guidelines on aspects such as criteria for determining quantum of maintenance, overlapping jurisdiction of courts, and the date from which maintenance is to be awarded, among others.

In Smriti Madan Kansagra v. Perry Kansagra, Justice Malhotra applied the concept of ‘mirror order’ while granting permanent custody of a child to the father. In this case, the Court allowed the prayer of the father to take his child to Kenya. A mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing.

Justice Malhotra, while granting the custody, observed that the object of a mirror order is to safeguard the interest of the minor child in transit from one jurisdiction to another, and to ensure that both parents are equally bound in each State. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired, she held.

She was also a part of the bench in Miss XYZ v. State of Gujarat, where the Supreme Court held that no comprise can be made in rape cases where the victim states that the settlement was sought under threat or coercion.

In Shatrughna Baban Meshram v. State of Maharashtra, a Bench of which Malhotra J. was also a part, commuted the death sentence of a man who raped a three-year-old girl. The Court opined that the incident comes within the ambit of clause ‘Fourthly’ of Section 300 of the Indian Penal Code. It held that while dealing with cases based on circumstantial evidence, for imposition of a death sentence, a higher or stricter standard must be insisted upon.

She was also a part of the three-judge Bench in Dr. Naresh Kumar Mangla v. Smt. Anita Agarwal & Ors , wherein the Court held that ‘selective’ leaks by the media would directly affect the rights of victims. It was observed that “selective disclosures to the media affect the rights of the accused in some cases and the rights of victims' families in others. The media does have a legitimate stake in fair reporting.”

She also passed a number of important judgments in the arena of commercial laws. In M/S Shriram EPC Limited v. Rioglass Solar, the Bench of Justice Malhotra and Justice Rohinton Nariman held that stamp duty is not necessary for enforcement of foreign awards in India. It was held “that a foreign award (that) has not borne stamp duty under the Indian Stamp Act, 1899 would not render it unenforceable.”

In another important decision on arbitration law, Justice Malhotra in Government of India v. Vedanta Limited, held that the limitation period of petitions filed for enforcement of foreign awards would be governed by Article 137 of the Limitation Act. The Court observed that "Article 137 is the residuary provision in the Limitation Act which provides that the period of limitation for any application where no period of limitation is provided in the Act, would be three years from “when the right to apply accrues”.”