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.
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.
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
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.
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
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
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
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
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.
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
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
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
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
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.
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
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
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.
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.
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.
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.
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
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)
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.
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.
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
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.
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
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
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
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
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
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.
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
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.
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
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
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.
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.
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.
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.
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