SC refuses to stay Indu Malhotra's appointment as apex court judge
New Delhi, April 26: The Supreme Court on Thursday refused to stay appointment of senior woman lawyer Indu Malhotra as an apex court judge on the issue of its second recommendation not being accepted, saying the government could send back a judge's name for reconsideration.
A bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y Chandrachud made the observation on a plea of senior advocate Indira Jaising who demanded that Malhotra be not sworn in as the apex court judge and the government be directed to recommend the name of Uttarakhand High Court Chief Justice K.M. Joseph as well.
Lawyers filing a petition to seek stay of appointment of a member of the bar is "unimaginable, unthinkable, inconceivable and, to say the least, never heard of", said the bench, adding that government is "well within its right to send back the recommendation for reconsideration"."
"Constitutional propriety demands that the warrant of appointment of Indu Malhotra be implemented."
The Central government has asked the top court collegium to reconsider its recommendation for the elevation of Justice K.M. Joseph as a judge of the Supreme Court, but cleared the appointment of senior lawyer Indu Malhotra.
Referring to the government's decision, Jaising told the bench that it cannot be done and either both names should have been recommended or rejected.
Reiterating that the government is within its right to send back a name for reconsideration, the court said that when such a reference comes, the Collegium will deal with it in accordance with Supreme Court judgments and the Constitution.
The advocate sought urgent hearing of the plea, which the apex court denied.
Jaising told the court that more than 100 lawyers have signed the petition and question the decision of Centre to "cherry pick" names recommendeded for appointment as apex court judges.
The signatories have also agreed to a resolution seeking urgent convening of Supreme Court Bar Association meeting to discuss the issues arising from the controversy over judge appointments.
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SC refuses to entertain PIL seeking menstrual leave policy across country
New Delhi (PTI): The Supreme Court on Friday refused to entertain a PIL seeking a nationwide policy providing paid menstrual leave for women students and workers, observing no one would give them jobs in such a scenario and that such a provision would unintentionally reinforce gender stereotypes.
The top court, however, asked the Centre and competent authorities to consider the representation of the PIL petitioner and examine the possibility of framing a policy on menstrual leave after consulting all relevant stakeholders.
A bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi observed that while the intent behind the petition might be welfare-oriented, the practical reality of the job market could lead to "counter-productive" outcomes for women.
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"These pleas are made to create fear, to call women inferior, that menstruation is something bad happening to them... this is an affirmative right... but think about the employer who needs to give paid leave," the bench observed.
Senior advocate MR Shamsad, appearing for the petitioner, said the Karnataka government has formulated a policy to allow menstrual leave and some private organisations are also providing this facility.
"Voluntarily they are giving, then it is excellent. That is a very good thing. But the moment you introduce it as a compulsory condition in law, you do not know the damage it will do to the career of women. Nobody will give them responsibilities, even in judicial services, a normal trial will not be assigned to them," the CJI said.
During the hearing, the bench highlighted the risk of "unintended consequences", suggesting that a mandatory leave policy might discourage private employers from hiring women.
"The moment you introduce it as a compulsory condition in law, you do not know the damage it will do to the career of women," CJI Kant remarked.
"Nobody will give them responsibilities... This can be harmful to their growth," the bench added.
Justice Bagchi echoed these concerns from a business perspective, noting that affirmative action is constitutionally recognised but must be balanced against market realities.
"Look at the practical reality in the job market. The more unattractive the human resource, the less is the possibility of assumption in the market. Will any employer be happy with the competing claims of other genders," Justice Bagchi asked.
The bench was hearing a PIL filed by Shailendra Mani Tripathi.
At the outset, the bench raised the issue of locus of the PIL petitioner and pointed out that no woman herself has approached the court.
It was the third petition filed by Tripathi on the same issue.
The first petition was dealt by the bench in 2023 and it allowed the petitioner to give a representation before the Union Ministry of Women and Children.
The petitioner approached the court in 2024 again on the ground that the Centre did not respond to his representation. The PIL was disposed of in July 2024 again with the direction to the government to take a decision.
"These petitions are deeply rooted, designed PILs. You are not a bona fide petitioner. This is basically only to create a type of impression in young women that you still have some natural issues and you are not at par with male persons and you cannot work like them during a particular time," the bench observed initially.
Shamshad replied that while Odisha has a policy since 1992, Karnataka recently allowed such a leave policy, and Kerala allowed relaxation in schools.
He added that many private organisations are voluntarily allowing period leave.
"The petitioner has made a representation to the authority. It seems to us that whatever was required to be done at the end of the petitioner, he has done for the welfare of young women. It is not necessary for the petitioner to approach the court time and again and seek a positive mandamus.
"We direct that the competent authority shall consider the representation directed to be considered by this court by order dated February 24, 2023, and July 8, 2024, for modelling a policy in consultation with all," the bench ordered.
