Justice Indu Malhotra, the first woman Judge to be elevated directly from the Bar and the

seventh woman Judge to be appointed at the Supreme Court, is set to retire on March 13, 2021.

Appointed as a Supreme Court Judge on April 27, 2018, Justice Malhotra also holds the
distinction of being the second woman to ever be designated a Senior Advocate by the Supreme
Court.

Prior to becoming a lawyer, Justice Malhotra completed her LL.B in 1982 from Campus Law
Centre, Faculty of Law, Delhi University, and also taught as a Political Science lecturer at Delhi
University. She joined the legal profession in 1983 and, in 1988, secured the first position in the
Advocate-on-Record examination.

Over the three years as a Supreme Court Judge, Justice Malhotra has delivered a series of
remarkable judgements, ranging over varied streams of law - from criminal to commercial. She
was also a part of the Constitution Bench which rendered some of the most progressive orders
such as decriminalization of homosexuality, and struck down Section 497 of the Indian Penal
Code as unconstitutional.

In the landmark case decriminalizing homosexuality, Justice Malhotra famously observed in her
separate judgement that "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".

In the Sabarimala case, she dissented from the majority which upheld the right of women of all
age groups to enter Lord Ayyappa temple, observing that entertaining PILs in religious matters
could damage the secular fabric of the country. She also observed in her dissent that it was
beyond the scope of judicial review to "rationalize" religious customs.

Justice Malhotra has also authored various landmark judgments pertaining to her specialty –
Arbitration Law; she authored the third edition of The Law and Practice of Arbitration and
Conciliation. From observing that the period of limitation for filing an application under Section
11 of the Arbitration and Conciliation Act would be governed by Article 137 of the First
Schedule of the Limitation Act, and will begin to run from the date when there is failure to
appoint the Arbitrator, to cementing that limitation period for filing 'Section 34' petition
commences from date of receipt of signed copy of arbitral award by the parties, Justice Malhotra
has indeed left a footprint in this field.

During her tenure, Justice Malhotra was also a member of the panel which had inquired into the
sexual harassment allegations against the then CJI Ranjan Gogoi. She was appointed to the panel
after Justice NV Ramana had recused on account of objection to his inclusion due to his
friendship with the former CJI. This In-House Committee, which also comprised of now CJI SA
Bobde and Justice Indira Banerjee, consequently gave a clean chit to the former CJI and stated
that the report was not liable to be made public.

In this piece, LiveLaw chronologically has listed some of the major judgements/orders rendered
by a Bench with Justice Malhotra.

1. Inordinate Delay To Complete Investigation May Be Taken As Presumptive Proof Of

Prejudice, Particularly When Accused Is In Custody

While disposing of an application by the CBI seeking modification of time limit prescribed in an
earlier judgement, a Bench of Justices AK Goel and Indu Malhotra observed that "speedy
investigation is recognized as a part of a fundamental right of fair procedure under Article 21 of
the Constitution" and that "no investigating agency can take unduly long time in completing the
investigation".

The Bench went on to record that there was a clear need for timelines for completing
investigation and for having an in-house oversight mechanism wherein accountability for
adhering to laid down timelines could be fixed at different levels in the hierarchy.

Further, it was held that "inordinate delay may be taken as presumptive proof of prejudice
particularly when accused is in custody so that prosecution does not become persecution".

Case Name: Dilawar v. State of Haryana & Anr.

Date: 01.05.2018

2. Insolvency and Bankruptcy Code (IBC) Will Override Provisions Of Other Enactments
Inconsistent With It

Upholding a Delhi High Court judgement which held that moratorium under the IBC will apply
to the order of the Income Tax Appellate Tribunal, a Bench comprising Justices RF Nariman and
Indu Malhotra observed that the IBC will override anything inconsistent contained in any other
enactment, including the Income Tax Act.

"Given Section 238 of the Insolvency and Bankruptcy Code, 2016, it is obvious that the Code
will override anything inconsistent contained in any other enactment, including the Income-Tax
Act".

Case Name: Pr. Commissioner of Income Tax v. Monnet Ispat and Energy Ltd.
Date: 10.08.2018

3. Oral Evidence In Application To Set Aside Arbitral Award Shouldn't Be Allowed Unless
Absolutely Necessary

A Bench of Justices RF Nariman and Indu Malhotra held that an application for setting aside an
arbitral award will not ordinarily require anything beyond that record that was before the
Arbitrator.

The Court did, however, go on to note that if there were matters not contained in such record and
were relevant to the determination of issues arising under Section 34(2)(a), they could be brought
to notice of the Court by way of affidavits filed by both parties.
"Cross-examination of persons swearing to the affidavits should not be allowed unless
absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both
parties", stated the Court.

Further, the Bench took into account that the enactment of the 1996 Act, as well as the
subsequent amendments, was for the speedy resolution of arbitral disputes. Therefore, if issues
were to be framed and oral evidence was to be taken in a summary proceeding under Section 34,
this object would be defeated.

Case Name: M/s Emkay Global Financial Services Ltd. v. Girdhar Sondhi

Date: 20.08.2018

4. Purpose Of Compensation Under MV Act Is To Fully And Adequately Restore the

Aggrieved To The Position Prior To The Accident

"The Claimant is entitled to be compensated for his inability to lead a full life, and enjoy those
things and amenities which he would have enjoyed, but for the injuries",  observed a Bench of
Justices RF Nariman and Indu Malhotra as they enhanced the compensation awarded to a man by
the Motor Accident Claims Tribunal by almost three times.

"In cases of motor accidents leading to injuries and disablements, it is a well-settled principle
that a person must not only be compensated for his physical injury, but also for the non-
pecuniary losses which he has suffered due to the injury. The Claimant is entitled to be
compensated for his inability to lead a full life, and enjoy those things and amenities which he
would have enjoyed, but for the injuries. The purpose of compensation under the Motor Vehicles
Act is to fully and adequately restore the aggrieved to the position prior to the accident", stated
the judgement authored by Justice Malhotra.

Case Name: Anant Son of Sidheshwar Dukre v. Pratap Son of Zhamnnappa Lamzane and Anr.
Date: 21.08.2018

5. History Owes An Apology To LGBT Community; They Deserve To Live A Life

Unshackled From the Shadow Of Being "Unapprehended Felons" – Decriminalising
Homosexuality

In a landmark judgement decriminalizing homosexuality, Justice Indu Malhotra in her separate

judgment, observed that the history owes an apology to the members of the LGBTQIA+
community and their families for the delay in providing redressal for the ignominy and ostracism
that they had suffered for centuries.

"A subjective notion of public or societal morality which discriminates against LGBT persons,
and subjects them to criminal sanction, simply on the basis of an innate characteristic runs
counter to the concept of Constitutional morality, and cannot form the basis of a legitimate State
interest".
Justice Malhotra further held that Section 377 was too open-ended and provided scope for
misuse against members of the community, and that by curtailing personal liberty of these
persons to engage in voluntary sexual relationships with a partner of their choice, in a safe and
dignified environment, was violative of Article 21.

Case Name: Navtej Singh Johar & Ors. v. Union Of India Through Secretary, Ministry of Law
and Justice
Date: 6.09.2018

6. Adulterous Woman Can't Be Treated As Victim And The Man, A Seducer – Striking
Down Of Section 497 IPC As Unconstitutional

Striking down the 158 year-old adultery law under Section 497 of the Indian Penal Code, Justice
Indu Malhotra of a the 5-Judge Constitution Bench, recorded that the Section failed to consider
both men and women as equally autonomous individuals in society.

"A law which deprives women of the right to prosecute, is not gender-neutral. Under Section
497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This
provision is therefore ex facie discriminatory against women, and violative of Article 14. Section
497 as it stands today, cannot hide in the shadows against the discerning light of Article 14
which irradiates anything which is unreasonable, discriminatory and arbitrary", remarked
Justice Malhotra.

Justice Malhotra went on to note that proceeding on the basis in a consensual sexual relationship,
an adulterous, who had knowingly and voluntarily entered into a sexual relationship with another
married man, was the "victim", and the male offender was the "seducer", was unrealistic.

"The time when wives were invisible to the law, and lived in the shadows of their husbands, has
long since gone by. A legislation that perpetuates such stereotypes in relationships, and
institutionalizes discrimination is a clear violation of the fundamental rights guaranteed by Part
III of the Constitution. There is, therefore, no justification for continuance of Section 497 of IPC
as framed in 1860, to remain on the statute book".

Case Name: Joseph Shine v. Union of India

Date: 27.09.2018

7. Justice Malhotra Opposes Women Entry In Sabarimala

Justice Indu Malhotra, the lone woman in the Constitution Bench which had heard the
Sabarimala matter pertaining to entry of women of all age groups in the temple, dissented against
the entry while opining that in issues of deep religious sentiments, the Court should ordinarily
not interfere.

Stating that entertaining PILs challenging religious practices in a pluralistic society could cause
serious damage to the Constitutional and secular fabric of the country, Justice Malhotra
cautioned, "permitting PILs in religious matters would open the floodgates to interlopers to
question religious beliefs and practices, even the Petitioner is not a believer of a particular
religion or a worshipper of a particular shrine. The perils are even graver for religious
minorities if such petitions are entertained".

She further observed that the Court had the Constitutional duty to harmonise the rights of all
persons, religious denominations or sects thereof, to practise their religion according to their
beliefs and practices.

"Judicial review of religious practices ought not to be undertaken, as the Court cannot impose
its morality or rationality with respect to the form of worship of a deity. Doing so would negate
the freedom to practice one's religion according to one's faith and beliefs. It would amount to
rationalizing religion, faith and beliefs, which is outside the ken of Courts", Justice Malhotra
explained.

Case Name: Indian Young Lawyers Association & Ors v. The State of Kerala & Ors
Date: 28.09.2018

8. To Attract Rigors Of Sections 7 and 13(2) of PC Act, Twin Requirement of Demand And
Acceptance Of Bribe Must Be Proved

Letting off a DESU employee who had been booked way back in 1995, a Bench of Justices AM
Sapre and Indu Malhotra reiterated that to prove the offence of any public servant demanding
and accepting illegal gratification, one had to necessarily prove the "twin requirement of demand
and acceptance of the bribe amount".

"Since in order to attract the rigors of Sections 7, 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988, the prosecution was under a legal obligation to prove the
twin requirements of demand and acceptance of bribe money by the accused, the proving of one
alone but not the other was not sufficient. The Appellant is, therefore, entitled for acquittal from
the charges framed against him under the PC Act too",  read the Judgement.

Case Name: Dashrath Singh Chauhan v. Central Bureau of Investigation

Date: 09.10.2018

9. Factors To Be Considered By Arbitrator While Awarding Interest

Observing that the discretion of the Arbitrator must be exercised reasonably, a Bench of Justices
RF Nariman and Indu Malhotra listed out the factors that must taken into consideration by the
Arbitrator while awarding interest.

It was further held by the Bench that the award-debtor could not be subjected to a penal rate of
interest, either during the period when he is entitled to exercise the statutory right to challenge
the award, before a Court or later.

"On the one hand, the rate of interest must be compensatory as it is a form of reparation granted
to the award-holder, while on the other hand, it must not be punitive, unconscionable or
usurious in nature", observed the Court.

Case Name: Vedanta Ltd. v. Shenzen Shandong Nuclear Power Construction Co. Ltd.
Date: 11.10.2018

10. Home Buyer Ought Not To Be Allowed To Reap Benefits Of Their Own Delay In
Taking Possession

While hearing appeals filed under Section 23 of the Consumer Protection Act, 1986, a Bench of
Justices AM Sapre and Indu Malhotra asserted that "purchaser ought not to be allowed to reap
benefits of her own delay in taking possession".

Upholding the compensation to a disgruntled home-buyer, the Bench reduced the time period for
computation of the amount, but noted the delay on the part of the buyer in taking possession.

Case Name: M/s Supertech Ltd. v. Rajni Goyal

Date: 23.10.2018

11. Supreme Court Issues Directions On Examination Of Witnesses In Criminal Trial

Setting aside a Kerala High Court order, a Bench of Justices AM Sapre and Indu Malhotra
observed that while deciding an Application to defer cross-examination under Section 231(20 of
the Code of Criminal Procedure, a balance had to be struct between the rights of the accused, and
the prerogative of the prosecution to lead evidence.

Accordingly, the Justice Malhotra-authored judgement listed out "practical guidelines" to be

followed by the Trial Courts in the conduct of a criminal trial "as far as possible". They also
stipulated the factors that had to be considered while deciding an Application under Section
231(2) such as possibility of undue influence or threats to witnesses.

Case Name: State of Kerala v. Rasheed

Date: 30.10.2018

12. Article 226 Can't Be Used For Deciding Disputes For Which Civil And Criminal
Remedies Are Available

"The remedy under Article 226 of the Constitution shall not be available except where the
violation of some statutory duty on the part of statutory authority is alleged", observed the
Bench comprising Justices AM Sapre and Indu Malhotra.

The Court, while hearing an appeal against a Kerala High Court order which had allowed a writ
petition filed by a person, who was forcefully dispossessed by the police, seeking restoration of
possession, observed that a regular suit would be the appropriate remedy for settlement of the
disputes relating to property rights between private persons.
"In such cases, the Court has jurisdiction to issue appropriate directions to the authority
concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used
for deciding disputes, for which remedies under the general law, civil or criminal are available.
The Court has held that it is not intended to replace the ordinary remedies by way of a civil suit
or application available to an aggrieved person. The jurisdiction under Article 226 of the
Constitution being special and extraordinary, it should not be exercised casually or lightly on
mere asking by the litigant",  held the Court.

Case Name: Roshina T. v. Abdul Azeez KT & Ors

Date: 03.12.2018

13. Retrenchment Procedure Under Section 25F ID Act Not Applicable To Employee Who
Abandons Work

A Bench of Justices AM Sapre and Indu Malhotra held that an employee who voluntarily
abandons work cannot be treated as on in "continuous service" of the employer as per Section
2(oo) of the Industrial Disputes Act. Therefore, procedure for retrenchment as per under Section
25F of the ID Act will not apply to such an employee.

The judgment stated, "Once it is established that the Appellant had voluntarily abandoned her
service, she could not have been in 'continuous service' as defined under Section 2(oo) of the ID
Act, 1947. Section 25F of the ID Act, 1947 lays down the conditions that are required to be
fulfilled by an employer, while terminating the services of an employee, who has been in
'continuous service' of the employer. Hence, Section 25F of ID Act, would cease to apply on
her".

Case Name: Manju Saxena v. Union of India

Date: 03.12.2018

14. SC Explains Five Material Questions To Be Answered In Specific Performance Suit

Reiterating that the grant of relief of specific performance is a discretionary and equitable relief,
the Bench comprising Justice Abhay Manohar Sapre and Justice Indu Malhotra listed out the
requirements to be answered in a specific performance suit:

1. Whether there exists a valid and concluded contract between the parties for sale/purchase of
the suit property?

2. Whether the plaintiff has been ready and willing to perform his part of contract and whether he
is still ready and willing to perform his part as mentioned in the contract?

3. Whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what
extent and in what manner he has performed and whether such performance was in conformity
with the terms of the contract?
4. Whether it will be equitable to grant the relief of specific performance to the plaintiff against
the defendant in relation to suit property or it will cause any kind of hardship to the defendant
and, if so, how and in what manner and the extent if such relief is eventually granted to the
plaintiff?

5. Whether the plaintiff is entitled to grant of any other alternative relief, namely, refund of
earnest money etc. and, if so, on what grounds?

Case Name: Kamal Kumar v. Premalata Joshi & Ors.

Date: 07.01.2019

15. Deceased's Parents Are Most Natural Witnesses In Dowry Death Cases

Relying on the evidence of the deceased wife's parents and relatives, Supreme Court Bench of
Justices AM Sapre and Indu Malhotra upheld the conviction of a man accused of dowry death.

"There is no reason to discard the evidence of the father and mother of the deceased who are the
most natural and material witnesses to speak on such issues. Indeed, in such circumstances, the
daughter – a newly married girl would always like to first disclose her domestic problems to her
mother and father and then to her close relatives because they have access to her and are always
helpful in solving her problems. Why should a mother and a father lie unless there are justifiable
reasons behind it".

Case Name: Mahadevappa v. State of Karnataka Rep. By Public Prosecutor

Date: 07.01.2019

16. Property Inherited By A Male Will Remain As Coparcenary Property For Descendants

Upto Three Degrees Below Him

A Bench of Justices UU Lalit and Indu Malhotra held that the rule under Mitakshara law that
whenever a male ancestor inherits any property from any of his paternal ancestors upto three
degrees above him, then his male heirs upto three degrees below him would get an equal right as
coparceners in that property.

"If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu
Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited
by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-
à-vis his male descendants upto three degrees below him. The nature of property will remain as
coparcenary property even after the commencement of the Hindu Succession Act, 1956",
observed the judgment authored by Justice Malhotra.

Case Name: Arshnoor Singh v. Harpal Kaur & Ors

Date: 01.07.2019

16. Bail Cannot Be Granted Without Assigning Reasons

A Bench of Justices AM Sapre and Indu Malhotra, while setting aside an Allahabad High Court
order that granted bail in a murder case, reiterated that bail could not be granted without
assigning any proper reason as to on what grounds, even though of a prime facie nature, it is
considered just and proper to grant bail.

The Court observed, "Though it may not be necessary to give categorical finding while granting
or rejecting the bail for want of full evidence adduced by the prosecution as also by the defence
at that stage yet it must appear from a perusal of the order that the Court has applied its mind to
the relevant facts in the light of the material filed by the prosecution at the time of consideration
of the bail application".

Case Name: Mauji Ram v. State of Uttar Pradesh & Anr.

Date: 29.07.2019

17. Right of Minority Educational Institutions Are Absolute; Are Amenable To

Regulations

While turning down the plea challenging certain G.O.Ms. issued by the Governmetn of Andhra
Pradesh, Supreme Court Bench of Justices Indu Malhotra and Sanjiv Khanna observed that the
right of minority institutions was absolute, and was amenable to regulation, and that the
protection granted to Minority Educational Institutions to admit students of their choice was
subject to reasonable restrictions.

Case Name: Andhra Kesari College of Education & Anr. v. State of Andhra Pradesh & Ors.
Date: 25.09.2019

18. Road Traffic Offences Can Be Prosecuted Under Both IPC and Motor Vehicles Act

A Bench of Justices Indu Malhotra and Sanjiv Khanna observed that road traffic offences can be
prosecuted under Motor Vehicles Act as well as Indian Penal Code, and set aside the direction
issued by the Gauhati High Court to States of Assam, Nagaland, Meghalaya, Manipur, Tripura,
Mizoram and Arunachal Pradesh that road traffic offences shall be dealt with only under the
provisions of MV Act and not IPC.

It was observed that there was no conflict between the provisions of the IPC and the MV Act,
and that they operated in separate spheres. Therefore, the principle that the special law should
prevail over general law had no application in cases of prosecution of offenders in road accidents
under the IPC and MV Act.

Further, there was no provision under the MV Act which separately dealt with offences causing
death, or grievous hurt, or hurt by a motor vehicle, while there were Sections in the IPC which
had been specifically framed to deal with such offences. Additionally, offences under the MV
Act were compoundable and would lead to an offender getting away with a fine by pleading
guilty, without having to face any prosecution for the offence committed.

Case Name: State of Arunachal Pradesh v. Ramchandra Rabidas @ Ratan Rabidas & Anr.
Date: 04.10.2019

19. Non-Compliance of Section 50 Of NDPS Act During 'Personal Search' Cannot

Invalidate Recovery From Vehicle

Supreme Court Bench comprising Justices UU Lalit, Indu Malhotra and Krishna Murari
observed that merely because there was non-compliance of Section 50 of the NDPS Act as far as
'personal search' of the accused was concerned, no benefit could be extended so as to invalidate
the effect of recovery from the search of the vehicle.

Therefore, the mandate of Section 50 was confined to 'personal search' and not to search of a
vehicle or a container or premises.

Case Name: State of Punjab v. Baljinder Singh & Anr.

Date: 15.10.2019

20. Rape Case Can't Be Quashed When Victim Has A Case That 'Settlement' Was Made
Under Threat & Coercion

Supreme Court set aside a High Court order which had quashed a rape case by recording
'settlement' between the accused and the victim and observed that, "From the perusal of the
order of the High Court, it is evident that the High Court has got carried away by the
agreement/settlement arrived at, between the parties, and recorded a finding that the physical
relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of
the appellant, that such document itself is obtained under threat and coercion, it is a matter to
be investigated".

The Bench comprising of Justices UU Lalit, Indu Malhotra and R. Subhash Reddy then referred
to Section 114-A of the Evidence Act and noted that if a woman in her evidence before the Court
stated that she did not consent, the Court shall presume that she did not consent

Case Name: Miss XYZ v. State of Gujarat

Date: 25.10.2019

21. Mere Irregularity In Sanction Will Not Vitiate Conviction In Corruption Cases

Upholding the conviction of an accused under Sections 7 and 13 of the Prevention of Corruption
Act, a Bench of Justices Indu Malhotra and Sanjiv Khanna observed that a mere error, omission
or irregularity in corruption case should not be considered fatal unless it has resulted in a failure
of justice or has been occasioned thereby.

"A mere error, omission or irregularity in sanction is not considered to be fatal unless it has
resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter
of procedure and does not go to the root of the jurisdiction and once the cognizance has been
taken by the court under the Code, it cannot be said that an invalid police report is the
foundation of jurisdiction of the court to take cognizance and for that matter the trial."
Case Name: Vinod Kumar Garg v. State (GNCTD)
Date: 27.11.2019

22. No Protection Of Sanction Where The Acts Are Performed Using The Public Office As
A Mere Cloak For Unlawful Gains

The Supreme Court observed that protection of sanction to public servants under Section 197 of
the Code of Criminal Procedure is not available where the acts are performed using the office as
a mere cloak for unlawful gains. Further, the protection of sanction under Section 19 of the
Prevention of Corruption Act would not be available to a public servant after he had demitted his
office or retired from service.

The Bench of Justices UU Lalit, Indu Malhotra and Krishna Murari disapproved the observation
of the High Court (which had allowed the discharge plea of the accused) that the protection
available to a public servant while in service should also be available after his retirement.

Regarding the protection under Section 197 of the Criminal Procedure Code, the Bench said that
it is available to the public servants when an offence is said to have been committed 'while
acting or purporting to act in discharge of their official duty', but where the acts are performed
using the office as a mere cloak for unlawful gains, such acts are not protected.

The issue whether the alleged act is intricately connected with the discharge of official functions
and whether the matter would come within the expression 'while acting or purporting to act in
discharge of their official duty', would get crystalized only after evidence is led and the issue of
sanction can be agitated at a later stage as well, it added.

Case Name: SHO, CBI/ACB/Bangalore v. BA Srinivasan & Anr.

Date: 05.12.2019

23. Hospital Vicariously Liable For Medical Negligence Committed By Its Doctors

Supreme Court Bench of Justices UU Lalit and Indu Malhotra upheld an NCDRC order and
observed that a hospital is vicariously liable for the acts of negligence committed by the doctors
engaged or empaneled to provide medical care.

Referring to Bolam Test and other judgments on medical negligence, the Court observed that the
reasonable standard of care for a premature baby mandates screening and checking up for ROP.
Further, it held, "A medical professional should be alert to the hazards and risks in any
professional task he undertakes to the extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional task he undertakes reasonable skill
that other ordinarily competent members of his profession would bring".

Case Name: Maharaja Agrasen Hospital & Ors v. Master Rishabh Sharma and Ors.
Date: 16.12.2019

24. Right To Property Is A Constitutional As Well As A Human Right

A Bench comprising Justices Indu Malhotra and Indira Banerjee, while allowing an appeal filed
by the Hari Krishna Mandir Trust in the matter of a land dispute with the Pune Municipal
Corporation, observed that the right to property is still a constitutional right and a human right.

It was held that the right to property includes any proprietary/hereditary interest in the right of
management of a religion endowment, as well as anything acquired by inheritance.

"The right to property may not be a fundamental right any longer, but it is still a constitutional
right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai
Patel v. Vatslaben Ashokbhai Patel and Others. In view of the mandate of Article 300A of the
Constitution of India, no person is to be deprived of his property save by the authority of law.
The Appellant trust cannot be deprived of its property save in accordance with law."

Case Name: Hari Krishna Mandir Trust v. State of Maharashtra & Ors

Date: 07.08.2020

25. Time Of Publication Of E-Gazette Is Significant For Determining The Enforceability

Of Notifications

The Supreme Court observed that the precise time when the gazette is published in the electronic
mode is significant for determining the enforceability of notifications. A Bench of Justices DY
Chandrachud, Indu Malhotra and KM Joseph thus upheld a Punjab and Haryana High Court
judgement which had allowed writ petitions filed by various importers.

Referring to various judgments, General Clauses Act and Information Technology Act, Justice
DY Chandrachud, on behalf of himself and Justice Malhotra, observed, "With the change in the
manner of publishing gazette notifications from analog to digital, the precise time when the
gazette is published in the electronic mode assumes significance. Notification 5/2019, which is
akin to the exercise of delegated legislative power, under the emergency power to notify and
revise tariff duty under Section 8A of the Customs Tariff Act, 1975, cannot operate
retrospectively, unless authorized by statute. In the era of the electronic publication of gazette
notifications and electronic filing of bills of entry, the revised rate of import duty under the
Notification 5/2019 applies to bills of entry presented for home consumption after the
notification was uploaded in the e-Gazette at 20:46:58 hours on 16 February 2019."

Case Name: Union of India & Ors v. M/s GS Chatha Rice Mills & Anr.
Date: 23.09.2020

26. In Transnational Child Custody Cases, 'Mirror Orders' From Foreign Courts Ensure
Welfare Of Minor

A Bench of Justices UU Lalit, Indu Malhotra and Hemant Gupta (in 2:1 majority) applied the
concept of a 'mirror order' in case involving transnational custody and, held that the father was
entitled to the permanent custody of the child and thus allowed him to shift his son to Kenya.
The judgement authored by Justice Malhotra explained the objective of a mirror order as an
order to safeguard the interest of a minor child in transit from one jurisdiction to another, and to
ensure that both parents are equally bound in each State.

"The 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. 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."

The Supreme Court explained that a 'mirror order' is ancillary or auxiliary in character, and
supportive of the order passed by the court which has exercised primary jurisdiction over the
custody of the child. The judgment of the Court which had exercised primary jurisdiction of the
custody of the minor child is however not a matter of binding obligation to be followed by the
court where the child is being transferred, which has passed the mirror order. The judgment of
the Court exercising primary jurisdiction would however have great persuasive value, explained
the judgment.

Case Name: Smriti Madan Kansagra v. Perry Kansagra

Date: 28.10.2020

27. Supreme Court Issues Guidelines On Payment Of Maintenance In Matrimonial

Matters

In a significant, judgment, the Supreme Court has issued guidelines on payment of maintenance
in matrimonial matters. The Bench comprising Justices Indu Malhotra and R. Subhash Reddy
held that maintenance in all cases will be awarded from the date of filing the application for
maintenance

"For enforcement / execution of orders of maintenance, it is directed that an order or decree of

maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section
20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of
maintenance may be enforced as a money decree of a civil court as per the provisions of the
CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI", the Court held.

The Bench also observed that the enforcement of the order of maintenance is the most
challenging issue, which is encountered by the applicants. 'If maintenance is not paid in a timely
manner, it defeats the very object of the social welfare legislation. Execution petitions usually
remain pending for months, if not years, which completely nullifies the object of the law.", it said.

The judgement further noted that the objective of granting interim/permanent

alimony/maintenance is to ensure that the dependent spouse is not reduced to destitution or
vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse.

Case Name: Rajnesh v. Neha

Date: 04.11.2020
28. Summary Eviction Procedure Under Senior Citizens Act Cannot Be Invoked To Defeat
Right Of Residence Of Woman In A Shared Household As Per DV Act

The Supreme Court held that the Maintenance and Welfare of Parents and Senior Citizens Act
has no overriding effect over the right of residence of a woman in a shared household within the
meaning of the Protection of Women from Domestic Violence Act.

The right of a woman to secure a residence order in respect of a shared household cannot be
defeated by the simple expedient of securing an order of eviction by adopting the summary
procedure under the Senior Citizens Act, the Bench comprising Justices DY Chandrachud, Indu
Malhotra and Indira Banerjee observed.

The Court also noted the Legislative scheme of both the legislations and said, "The Tribunal
under the Senior Citizens Act 2007 may have the authority to order an eviction, if it is necessary
and expedient to ensure the maintenance and protection of the senior citizen or parent. Eviction,
in other words would be an incident of the enforcement of the right to maintenance and
protection. However, this remedy can be granted only after adverting to the competing claims in
the dispute. It is necessary to recapitulate that the situation in the present case is that the
eviction was sought of the daughter-in-law, i.e. the appellant. "

Case Name: S. Vanitha v. Deputy Commissioner, Bengaluru Urban District

Date: 15.12.2020

29. No Complete Bar On Anticipatory Bail For Triple Talaq Offence, Provided Court
Hears Complainant Woman

The Supreme Court held that there was no bar on granting anticipatory bail for an offence
committed under the Muslim (Protection of Rights on Marriage) Act, 2019, provided that the
competent Court must hear the married Muslim woman who has made the complainant before
granting anticipatory bail.

The Bench comprising of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee held that
it would be at the discretion of the Court to grant ad-interim relief to the accused during the
pendency of the anticipatory bail application, having issued notice to the married Muslim
woman.

It was further observed that the relatives of a "husband" cannot be accused of an offence under
the Act. "On a preliminary analysis, it is clear that the Appellant as the mother-in-law of the
second respondent cannot be accused of the offence of pronouncement of triple talaq under the
Act as the offence can only be committed by a Muslim man".

Case Name: Rahna Jalal v. State of Kerala & Anr

Date: 30.12.2020

30. Incorporation of One-Sided And Unreasonable Clauses In Apartment Buyer's

Agreement Constitutes An 'Unfair Trade Practice'

Supreme Court Bench comprising Justices DY Chandrachud, Indu Malhotra and Indira Banerjee
has held that the incorporation of one-sided and unreasonable clauses in the Apartment Buyer's
Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection
Act. It was further observed that the Developer cannot compel the apartment buyers to be bound
by the one-sided contractual terms contained in the Apartment Buyer's Agreement.

This was held while disposing an appeal filed by a Developer against an order passed by
National Consumer Disputes Redressal Commission directing it to refund of the amounts
deposited by the Apartment Buyers on account of the inordinate delay in completing the
construction and obtaining the Occupation Certificate.

The Bench also referred to clauses of the agreement and observed that the same reflect the
wholly one-sided terms of the Apartment Buyer's Agreement, which are entirely loaded in favour
of the Developer, and against the allottee at every step. The court said that the terms of the
Apartment Buyer's Agreement are oppressive and wholly one-sided, and would constitute an
unfair trade practice under the Consumer Protection Act, 1986.

"We are of the view that the incorporation of such one-sided and unreasonable clauses in the
Apartment Buyer's Agreement constitutes an unfair trade practice under Section 2(1)(r) of the
Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no
manner constrained to declare a contractual term as unfair or one-sided as an incident of the
power to discontinue unfair or restrictive trade practices. An "unfair contract" has been defined
under the 2019 Act, and powers have been conferred on the State Consumer Fora and the
National Commission to declare contractual terms which are unfair, as null and void. This is a
statutory recognition of a power which was implicit under the 1986 Act. In view of the above, we
hold that the Developer cannot compel the apartment buyers to be bound by the one-sided
contractual terms contained in the Apartment Buyer's Agreement."

Case Name: Ireo Grace Realtech Pvt. Ltd. v Abhishek Khanna

Date: 11.01.2021

31. Basic Philosophy Behind Granting Power To Review Judgments Is "Universal

Acceptance Of Human Fallibility"

The basic philosophy inherent in granting the power to the Supreme Court to review its judgment
under Article 137 is the universal acceptance of human fallibility, the Supreme Court observed in
an order allowing a Review Petition.

The bench comprising Justices Ashok Bhushan and Indu Malhotra observed that the rejection of
Miscellaneous Application seeking recall of a judgment does not preclude filing of a review
petition subsequently.

In this case, the Supreme Court had earlier allowed a Transfer Petition transferring Trial of a
Criminal Case from Metropolitan Magistrate Court at New Delhi to Metropolitan Magistrate at
Allahabad, Uttar Pradesh. Later, the person who had filed the FIR, approached the Court by
filing a Miscellaneous Application praying for recall of the Order which was dismissed.
Thereafter, he filed the Review Petition.

"The rectification of an order emanates from the fundamental principles that justice is above all.
In the Constitution, substantive power to rectify or review the order by the Supreme Court has
been specifically provided under Article 137 as noted above. The basic philosophy inherent in
granting the power to the Supreme Court to review its judgment under Article 137 is the
universal acceptance of human fallibility."

Case Name: Rajendra Khare v. Swaati Nirkhi & Ors.

Date: 28.01.2021

32. Collusive Commercial Transactions With Corporate Debtor Will Not Constitute

'Financial Debt' Under IBC

The Supreme Court held that collusive or sham transactions with corporate debtor will not
amount to 'financial debt' within the meaning of the Insolvency and Bankruptcy Code, 2016.

The judgment of the Bench comprising Justices DY Chandrachud, Indu Malhotra and Indira
Banerjee stated, "The IBC recognizes that for the success of an insolvency regime, the real
nature of the transactions has to be unearthed in order to prevent any person from taking undue
benefit of its provisions to the detriment of the rights of legitimate creditors".

The Court also discussed collusive transactions and observed, ""A transaction which is sham or
collusive would only create an illusion that money has been disbursed to a borrower with the
object of receiving consideration in the form of time value of money, when in fact the parties
have entered into the transaction with a different or an ulterior motive. In other words, the real
agreement between the parties is something other than advancing a financial debt".

Case Name: Pheonix Arc Private Limited v. Spade Financial Services Limited

Date: 01.02.2021

33. Pass Reasoned Judgment Along With Operative Order; Supreme Court Directs
NCDRC

The Supreme Court, criticizing the practice of 'reasons to follow' orders, directed the National
Consumer Disputes Redressal Commission to pass reasoned Judgment along with the operative
order. Bench comprising Justices Indu Malhotra and Ajay Rastogi observed that, in all matters
before NCDRC where reasons are yet to be delivered, it must be ensured that the same are made
available to the litigating parties positively within a period of two months.

"Undisputedly, the rights of the aggrieved parties are being prejudiced if the reasons are not
available to them to avail of the legal remedy of approaching the Court where the reasons can
be scrutinized. It indeed amounts to defeating the rights of the party aggrieved to challenge the
impugned judgment on merits and even the succeeding party is unable to obtain the fruits of
success of the litigation", the Bench observed while noticing that, in the instant case, the
operative order was pronounced on 26.04.2019, and in the reasoned judgment was made
available after eight months.

Case Name: Sudipta Chakrobarty v. Ranaghat SD Hospital & Ors.

Date: 15.02.2021

34. Giving Extra Chance For A Few In UPSC Exams Will Have A Cascading Effect On
Other Examinations

While dismissing a writ petition seeking for an additional chance for Civil Services candidates
who had exhausted their last attempt in October 2020 at giving the UPSC examination, a Bench
of Justices AM Khanwilkar, Indu Malhotra and Ajay Rastogi observed that solely providing
relaxation to candidates who are not age-barred was discriminatory.

Further, the complaint of the Petitioners' could not be taken in isolation and "the data furnished
to this Court by the Commission clearly indicate that various selections have been held by the
Commission for the Central Services…, if this Court shows indulgence to few who had
participated in the Examination 2020, it well set down a precedent and also have a cascading
effect on examinations in other streams, for which we are dissuaded to exercise plenary powers
under Article 142 of the Constitution."

Case Name: Rachna v. Union of India

Date: 24.02.2021

35. OBC Reservation Cannot Exceed 50%

The Supreme Court read down Section 12(2)(c) of the Maharashtra Zilla Parishads and
Panchayat Samitis Act, 1961, which provides reservation of 27% of seats in the Zilla Parishads
and Panchayat Samitis.

"Reservation in favour of OBCs in the concerned local bodies can be notified to the extend that
it does not exceed aggregate 50% of the total seats reserved in favour of SCs/STs/OBCs taken
together", the Bench of Justices AM Khanwilkar, Indu Malhotra and Ajay Rastogi observed.

The Court observed that the rigid interpretation of the provision would be violative of the dictum
laid down by the Constitution bench in K. Krishna Murthy (Dr.) & Ors. v. Union of India 2010)
7 SCC 202 that the State legislations providing for reservation of seats in respect of OBCs, it
must ensure that in no case the aggregate vertical reservation in respect of SCs/STs/OBCs taken
together should exceed 50 per cent of the seats in the concerned local bodies.

"The provision in the form of Section 12(2)(c) can be saved by reading it down, to mean that
reservation in favour of OBCs in the concerned local bodies may be notified to the extent, that it
does not exceed 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken
together. In other words, the expression "shall be" preceding 27 per cent occurring in Section
12(2)(c), be construed as "may be" including to mean that reservation for OBCs may be up to 27
per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken
together, as enunciated by the Constitution Bench of this Court. On such interpretation, Section
12(2)(c) can be saved and at the same time, the law declared by the Constitution Bench of this
Court can be effectuated in its letter and spirit.", the Bench said.

The Judgment was rendered while disposing writ petitions which sought a declaration that
Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act is ultra vires the
provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution of India.
The writ petitions had also challenged the validity of the notifications issued by the State
Election Commission, Maharashtra providing for reservation exceeding 50 per cent in respect of
Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur and Bhandara.

Case Name: Vikas Kishanrao Gawali v. State of Maharashtra

Date: 04.03.2021

36. Limitation Period For Filing 'Section 34' Petition Commences From Date Of Receipt Of
Signed Copy Of Arbitral Award By Parties: Supreme Court

The period of limitation for filing the Petition under Section 34 of the Arbitration and
Conciliation Act would commence from the date on which the signed copy of the award was
made available to the parties, a judgment authored by Justice Malhotra held.

The bench comprising Justices Indu Malhotra and Ajay Rastogi observed that there can be no
finality of the award, except after it is signed.

Case: Dakshin Haryana Bijli Vitran Nigam Ltd. vs. M/S Navigant Technologies Pvt. Ltd.

37. Limitation Period For Filing 'Section 11' Application Seeking Appointment Of
Arbitrator Governed By Article 137 Limitation Act

The period of limitation for filing an application under Section 11 of the Arbitration and
Conciliation Act would be governed by Article 137 of the First Schedule of the Limitation Act,
and will begin to run from the date when there is failure to appoint the arbitrator, the Supreme
Court held.

In rare and exceptional cases, where the claims are ex facie time barred, and it is manifest that
there is no subsisting dispute, the Court may refuse to make the reference, the bench comprising
Justices Indu Malhotra and Ajay Rastogi held. The court also suggested amendment of Section
11 of the Act to provide a period of limitation for filing an application under this provision,
which is in consonance with the object of expeditious disposal of arbitration proceedings.

Case : Bharat Sanchar Nigam Ltd. vs. Nortel Networks India Pvt. Ltd

38. Period of execution for foreign award is 12 years

In Government of India v Vedanta Ltd & Ors., a judgment authored by Justice Malhotra held
that the limitation period for enforcing foreign awards was deemed to be 12 years, both
following the Limitation Act. In both judgments

39. State Cannot Be Permitted To Perfect Title By Adverse Possession To Grab Property
Of Its Own Citizens

A bench of Justices Indu Malhotra and Justices Ajay Rastogi held that state cannot invoke the
doctrine of adverse possession to perfect title over land grabbed from private citizens. The
judgment authored by Justice Malhotra held that that forcible dispossession of a person from his
private property is violative of human right and constitutional right under Article 300A.

Case : Vidya Devi vs The State of Himachal Pradesh and others

40.  Teachers Are Entitled To Gratuity, Holds SC After Recalling Erroneous Judgment

In this case, a bench comprising Justices AM Sapre and Indu Malhotra, recalled an earlier
judgment after noticing an error, and held that teachers are also entitled to gravity under the
Payment of Gratutity Act.

Case : Birla Institute of Technology v State of Jharkhand.

https://www.livelaw.in/top-stories/state-cannot-be-permitted-to-perfect-title-by-adverse-
possession-to-grab-property-of-its-own-citizens-sc-151423

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