Praise for justice Indu Malhotra days before her retirement
“You are an icon”, Supreme Court judge Dhananjay Y Chandrachud told justice Indu Malhotra on Wednesday in what was perhaps the last sitting of the two judges together.
Justice Malhotra, one of the two women judges in the apex court, retires on March 13 after a tenure of almost three years. She will sit in the top court as a judge for the last time on Friday. Previously a senior advocate, justice Malhotra joined the bench on April 27, 2018.
On Wednesday, she sat with justice Chandrachud on a special bench to hear a review petition in a criminal case related to the early release of a life term convict who has served more than 20 years in jail in Uttar Pradesh.
The petition was dismissed after the bench found substance in the report of the state government that the enmity, which resulted in the murder in the present case, still existed, and that there were five cases pending against the convict’s son at the moment.
After the proceedings, justice Chandrachud realised this could be the last time when he was sitting with justice Malhotra on a bench in the Supreme Court -- judges in the top court sit with the Chief Justice of India on the day of their retirement as per convention.
“Sister Indu, it was a privilege sitting with you on the bench. I will miss sitting with you, Indu,” justice Chandrachud said to the judge who returned the compliment by saying she would also miss sitting with him in the court. Justice Chandrachud then recalled his message to justice Malhotra on March 8, International Women’s Day. “I had sent you this message on the Women’s Day too: Indu, you are an icon, for women and for all of us. God be with you always.”
A Supreme Court judge retires at the age of 65. After justice Malhotra’s retirement, the apex court will be left only with one woman judge, justice Indira Banerjee, who is set to retire in September 2022.
Justice Malhotra’s career has seen an interesting journey: from teaching students political science in Delhi colleges in the 1970s to joining the Bar in 1983; from topping an advocates’ exam in 1988 to being only the second woman to be designated as a senior advocate after 30 years in 2007; and from taking up the cause of preventing deaths due to road accidents to being the first woman lawyer to be directly appointed from the Bar to the Supreme Court in April 2018. With her elevation, the Supreme Court, for the first time in its history had three sitting women judges with justices R Banumathi and Indira Banerjee being the other two. Justice Banumathi retired in July 2020.
During her stint, Justice Malhotra made the mark as a judge who was a stickler for principles of law and not afraid to express her point of view.
In September 2018, when the Supreme Court, by a 4-1 verdict, threw the Sabarimala temple open to women of all age, justice Malhotra dissented with the four male colleagues. “Rationality cannot be used to judge faith,” she said in her judgment, adding that followers must be allowed to follow their own faith in a secular polity and that it was not for courts to determine which religious practices are to be struck down except in issues of social evil like “Sati”.
She stuck to her views when the review petition was filed in the Sabarimala case and agreed that the review petition should remain pending until a larger bench determined questions related to essential religious practices in all faiths.
Justice Malhotra, however, was with her four male colleagues when the same bench unanimously struck down Section 497 (adultery) in the Indian Penal Code, ruling it was unconstitutional since the very basis for criminalising adultery was that a woman was considered as the property of the husband and could not have relations outside the marriage.
She was a prominent voice throughout the hearing on decriminalisation of Section 377 of the Indian Penal Code, which made gay sex a crime punishable by up to a life term. “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,” she wrote in her concurring verdict.