J. Indu Malhotra’s 9 Most Significant Judgments

On March 13th, Indu Malhotra J will retire from the Supreme Court of India. Her judgments are known for their brevity, clarity and thoroughness.

In this post, we look at some of her most notable judgments.

Streamlining Provisions of Affirmative Social Justice

In Rajnesh v Neha, the court dealt with the provision of maintenance after divorce. Justice Malhotra’s judgment in the case issued detailed guidelines on maintenance for women and children. It streamlined the multiple legislative schemes and provides detailed procedures to ensure speedy trials, disclosure of information and enforcement of orders. It also laid down the factors relevant to calculating the quantum of maintenance and the date from which it should be awarded.

In Jarnail Singh v Lachhmi Narain Gupta, the Supreme Court ruled that the 2006 Nagaraj judgment on reservations need not be referred to a seven-judge Bench. However, it invalidated the conclusion in the Nagaraj judgment that the State collect quantifiable data to show the backwardness of Scheduled Castes and Scheduled Tribes.

Liberty and Criminal Law

Early in Justice Malhotra’s term, she delivered two landmark judgments that cemented liberty as a foundational value that criminal law could not hinder.

In Navtej Singh Johar v Union of India, the Supreme Court read down Section 377 of the Indian Penal Code to decriminalise same-sex relations between consenting adults. It also expanded aspirational principles such as transformative constitutionalism and constitutional morality. Her judgment particularly noted 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.’

In Joseph Shine v Union of India, the Court struck down Section 497 of the Indian Penal Code which criminalised adultery. It was held unconstitutional for violating Articles 14, 15 and 21 of the Constitution. Justice Malhotra’s concurring opinion noted that while adultery is a morally wrong civil offence, it does not negatively impact society to the extent that it needs to remain a criminal offence.

Competing Rights: Religion, Minorities and Equality

Malhotra J also dealt with important cases that had to balance various competing constitutional rights.

Malhotra J wrote the sole dissenting opinion in the Sabarimala Temple Entry case, Indian Young Lawyers’ Association v. State of Kerala. She held that the right to equality under Article 14 does not override the fundamental right to religion under Article 25, irrespective of whether the religious practice falling under Article 25 is rational. She questioned the entertainment of the writ petition since the petitioners were not worshippers of the Sabarimala temple and lacked standing.

Malhotra J also concurred with Gogoi CJI in the majority on the review petitions in the Sabarimala case. Leaving them pending, several constitutional issues were referred to a seven-judge bench.

In Andhra Kesari College v AP, Malhotra J held that the right of minority institutions under Article 30(1) of the Constitution is not absolute. The Andhra Pradesh government was allowed to regulate various aspects of these educational institutions, including how many seats could be reserved for minority students, how a student can be deemed a ‘minority’ and how empty seats could be filled. Regulations to improve broader educational goals were permissible restrictions.

On Enforcement of Arbitral Awards

Malhotra J had appeared in many arbitration cases as an advocate. She also published a new edition of her Commentary on the Law of Arbitration while on the bench. While she sat on multiple benches related to arbitration cases, she authored three important judgments in the field.

In Dakshin Haryana Bijli Vitran Nigam Ltd. v Navigant Technologies, Malhotra J clarified that the limitation period of 120 days to challenge arbitration awards began only after the signed copy was distributed. She also noted that a dissenting arbitrator’s opinions can be used to ‘buttress the arguments’ of the challenging party.

Soon after, in Bharat Sanchar Nigam Ltd v Nortel Networks India, her judgment clarified that the limitation period to challenge the composition of an arbitration tribunal under Section 11 was 3 years. Similarly, in Government of India v Vedanta Ltd & Ors., the limitation period for enforcing foreign awards was deemed to be 12 years, both following the Limitation Act. In Vedanta, she urged the Parliament to legislate to reduce the time in the interest of expediency. In the latter case, Malhotra J was inclined towards a ‘pro-enforcement’ approach for foreign awards. They could not be challenged on merits unless they met the high bar of being ‘fundamentally offensive to the notions of justice and morality’.

Malhotra J also led the in-house panel to investigate the claims of sexual harassment against Rajya Sabha MP Gogoi, who was then the Chief Justice. The panel concluded that there was no substance in the claim without any public procedure.

As Malhotra J leaves, her colleagues have praised her, with Justice Chandrachud calling her an ‘icon’.