ustice Indu Malhotra, the lone woman judge on the Constitution Bench of the Supreme Court hearing the fight against Section 377 of the IPC, made a strong case against criminalisation of homosexuality. She is the junior-most member of the Bench of five led by Chief Justice Dipak Misra, said homosexuality is only a variation and not an aberration. But the prejudice and stigma piled on the LGBTQ community have denied it even basic medical care in the country. The community is so inhibited by the societal scorn that it prefers to forego medical care, especially in rural and semi-urban parts of the country, Justice Malhotra said.
On the third consecutive day of the hearing, Justice Malhotra spoke of the pressure on homosexual people from within the home. They succumb to marry the opposite sex, leading to a life of mental trauma and bi-sexuality. The judge spoke of how homosexuality is not against the order of nature and is nature itself. Hundreds of animal species show the same sexual orientation.
Senior Advocate Indu Malhotra is the first woman lawyer directly appointed from the Bar as a Judge in the Apex Court. Justice Sujata V Manohar was appointed to the Supreme Court in 1994, she was the first woman Chief Justice of the Bombay High Court. She was on the 3-member bench that was instrumental in passing the landmark judgement in Vishaka and others vs the State of Rajasthan and others in 1997. Given that men and women are equally meritorious, in the absence of discrimination, one would assume that the proportion of women judges will remain the same from the lowest to the higher tiers, for any given batch of judicial officers. However, without information on the number of women graduating from law school, applying for judicial positions, and promotions over the years, it is difficult to understand the reasons behind the gender imbalance in the lower judiciary or the changes in the gender composition over time. The proportion of female judges is lower at the level of the district judge than at lower levels. In Madhya Pradesh, 42.1 per cent of civil judges (junior division) were female compared to 13.6 per cent of district judges.
Today, for 24 male judges in the Supreme Court, there are just 2 female judges, Indu Malhotra and Justice R Banumathi. She was the former Chief Justice of the Jharkhand High Court. Her most notable judgement includes being on the judicial bench that confirmed death sentence for the accused in the 2012 “Nirbhaya” gang rape case, even after the accused men appealed to re-consider their death sentences. Justice Banumathi questioned that if this case was not the rarest of rare to award death penalty then which case can fall under it.
Women are underrepresented even at higher levels in the judiciary. Since the Indian Supreme Court was established in 1950, it has had only six women judges, and currently has two-woman judges out of 25. Across India’s 24 High Courts, a little more than 10 per cent judges are women, with not even a single woman judge in eight High Courts, the report found. Sikkim is the state with the highest percentage of women judges at 33 per cent, followed by Delhi High Court at 27 per cent, Madras High Court at 18 per cent, and Karnataka High Court at 16 per cent and Bombay High Court at 15 per cent. Uttarakhand, Tripura, Meghalaya, Manipur, Jharkhand, Chhattisgarh, Jammu & Kashmir and Himachal Pradesh High Courts do not have any female judges.
Both Justice Sujata and Justice Banumathi’s opinions and judgements indicate that having a woman in the decision-making process of the courts allows and paves the way to newer and more critical and contextual lens to gender-related issues, especially crimes involving violence against women. Hailing from a family of lawyers, Malhotra joined the profession in 1983 and was appointed as a Senior Advocate in 2007. She was the second woman after Leila Seth to be elevated by the Supreme Court to the designation of a Senior Advocate and secured the first position in the Advocate-on-Record examination for the top court.
Specialising in arbitration law, Malhotra was part of a committee, headed by retired Supreme Court Judge B N Srikrishna, which called for the creation of Arbitration Promotion Council of India. Last year, a three-judge bench of the Supreme Court, headed by the CJI, appointed Malhotra as amicus curiae in a case involving arrests in dowry harassment with the consent of family welfare committee set up in each district.
From 1991 to 1996, Malhotra served as the Standing Counsel for the State of Haryana in the Apex Court and represented several corporations like Securities and Exchange Board of India (SEBI), Delhi Development Authority (DDA), and Council for Scientific and Industrial Research (CSIR), Indian Council for Agricultural Research (ICAR), before the Supreme Court. She has also authored a commentary on the Arbitration and Conciliation Act, 1996 published by Thomson Reuters. Malhotra as a counsel for the NGO Save Life Foundation, framed guidelines, Good Samaritan Law for bystanders who give assistance to victims of road accidents.
Being one of the members of the Vishaka Committee, Malhotra was on the panel of women lawyers set up to protect women lawyers from sexual harassment in 2013. She is a counsel in multiple PILs challenging laws under the Motor Vehicles Act and discrimination against women make-up artists in the Bollywood industry. Malhotra’s direct move from Bar to Bench is seen as breaking a major glass ceiling by many in the legal fraternity, as it has cleared the decks for more woman advocates to get directly nominated as judges of the Supreme Court. All the six previous woman judges of the court were elevated from the High Court, the first being Justice M. Fathima Beevi in 1989. The Supreme Court has always had no or little representation from woman judges; it took 39 years for the court to get its first.
Madam Malhotra was instrumental in the court’s July 2015 landmark verdict that unmarried mothers could have legal guardianship of their children without the father’s consent. In 2012, Ms. Malhotra made a fervent plea for setting up complaint committees in courts to examine incidents of sexual harassment of female advocates in court complexes. Subsequently, the Supreme Court formed a 10-member sexual harassment committee, of which Ms. Malhotra was a member.
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