Spotlight On Recent Appointments To The Supreme Court - Justice Dipankar Datta

We traced the judicial career of Justice Pankaj Mithal in Part 1. In this second part, we offer a glimpse into the judicial philosophy of Justice Dipankar Datta. Justice Datta’s elevation to the Supreme Court along with his background has been referred to in this piece published by us earlier.

Justice Datta was elevated to the Bench of the High Court at Calcutta as a permanent Judge on June 22, 2006. He was elevated as the Chief Justice of Bombay High Court on April 28, 2020. With his date of appointment in the Supreme Court being December 12 last year, he will have a fairly long tenure of more than seven years and retire on February 8, 2030.

Born on February 9, 1965, Justice Datta belongs to a legal family, being the son of late Salil Kumar Datta, a former Judge of the High Court at Calcutta, and brother in law of Justice Amitava Roy, former Judge of the Supreme Court.

Datta was awarded LL.B by the University of Calcutta (first batch of 5 year law course) in 1989.

Enrolled as an advocate on November 16, 1989, he practised mainly in the High Court at Calcutta, as well as in the Supreme Court and other High Courts in Constitutional and civil matters.

He was a junior standing counsel for West Bengal from May 16, 2002 to January 16, 2004 and was a counsel for the Union of India since 1998.

He appeared for a number of educational authorities and institutions including the University of Calcutta, W.B.School Service Commission and W.B.Board of Secondary Education.

He was a guest lecturer on Constitutional law of India in the University College of Law, University of Calcutta, from 1996-97 to 1999-2000.

In defence of free speech

In Ambikesh Mahapatra and Others v The State of West Bengal and others (2015), the petitioner was arrested by the police for forwarding a cartoon featuring the Chief Minister and two Central ministers, via email and circulating its print-out. The petitioner was a professor in Chemistry employed by Jadavpur University, whereas the second petitioner was a septuagenarian engineer, who, prior to his superannuation, was an employee of the State government.

The West Bengal Human Rights Commission took suo motu cognizance of the matter. The WBHRC on August 13, 2012 found that the petitioners were deprived of liberty by reason of unlawful arrests and their human rights had indeed been violated.

The WBHRC noted that no law in our country prevents criticism against Ministers or Chief Minister however popular they may be or even a door to door critical campaign against Ministers unless the campaign offends any prohibition in law. The Commission noted that the two accused were arrested by the police a fortnight after the subject cartoon was circulated and that too on the complaint of a person who did not even receive the e-mail. The police arrested those persons from their residential complex when they were peaceful at the dead of night, without even seeing the cartoon.

"The way the police officers arrested Professor Ambikesh Mahapatra and Subrata Sengupta on April 12, 2012 at 11 p.m. for circulation, a fortnight ago, the subject cartoon by email and for which twice regret was expressed by them and did not arrest any one of the agitating mob who wrongfully confined those two persons in the presence of the police in office of their residential complex makes out a case of police excess and highhandedness, especially when those two persons are otherwise respectable citizens and without any criminal record", the Commission noted.

In Paragraph 32 of its order, the state Human Rights Commission held that citizens who are expressing or airing a critical opinion about the ruling party cannot be picked up from their residence by the police at the instance of an agitated mob whose members are unhappy with the critical views of those two persons. "If this is allowed to continue then not only the human rights of the dissenters will perish, free speech which is the lifeblood of our democracy will be gagged. Constitutional provisions will be reduced to parchment promises and we will be heading towards a totalitarian regime in complete negation of democratic values in the largest democracy of the world", the Commission observed.

Consequently, it recommended initiation of departmental proceedings against the police officials and payment of compensation of Rs.50,000 to each of the petitioners by the state. The state government declined to accept the WBHRC’s recommendation and the matter then reached the Calcutta High Court.

In his judgment, Justice Datta held that the concerned government or authority cannot be allowed a free run despite proven violation of human rights by a delinquent public servant because of absence of teeth in the concerned legislation. He held that the police officers who had the occasion to subject the petitioners to an unnecessary ordeal had acted in brazen violation of law, being either oblivious of the statutory requirements or had deliberately chosen to turn a blind eye to the statutory mandate.

He observed that the senior-most officer of the police force, Respondent -3, who perforce dealt with the matter on the prodding of the WBHRC cared less to unearth the reasons for the arrests. He found that the petitioners were subjected to reckless arrests and their precious human rights were trampled over. This affords sufficient ground to award relief to the petitioners by way of compensation for their illegal detention, and he held that the WBHRC rightly recommended the same.

In this case, the police claimed that they held the petitioners in protective custody. Justice Datta held that in the absence of any law sanctioning protective custody of elderly and mature men, the WBHRC very rightly found it difficult to accept the version of the state government.

Justice Datta held that raising the bogey of protective custody was a clear attempt to save the state government from embarrassment owing to overzealousness of police officials acting in tandem to unnecessarily secure the arrests of the petitioners although none of the parameters was reasonably attracted, and despite there being no written complaint against them at the relevant time.

Justice Datta concluded that the petitioners’ human rights were indeed violated by public servants; consequently, the State government should adequately compensate the petitioners. The petitioners were held entitled to Rs.50,000 each as compensatory relief, to be released within a month, and disciplinary proceedings initiated against police officers for arresting them.

Professor Mahapatra was discharged of all the charges against him by a Kolkata court recently.

Trial by media & Contempt of Court

In Nilesh Navalakha vs Union of India (2021), a division bench comprising Chief Justice Datta and Justice GS Kulkarni at the Bombay High Court, held that media trial during criminal investigation interferes with administration of justice and hence amounts to contempt of court as defined under the Contempt of Courts Act, 1971.

In 2020, he initiated criminal contempt proceedings against a lawyer in Calcutta High Court for cursing him to contract Corona virus because he refused to grant him his request for an urgent hearing in a matter. Justice Datta noted that the lawyer obstructed the course administration of justice by not only interfering repeatedly in the course of dictation but also first thumped the addressing table and then banged the microphone on it, more than once. “Neither do I fear dooming of my future, nor being infected by the virus, the majesty of the Court is what is paramount in my mind”, observed Justice Datta, while holding the lawyer’s behaviour as prima facie amounting to ‘criminal contempt’ under Section 2(c) of the Contempt of Court’s Act, 1971.

In August 2021, however, a bench led by Bombay High Court Chief Justice Datta (sitting with Justice MS Sonak) refused to take contempt action against a YouTuber on the ground that dignity of court can’t be tarnished by stray slights and irresponsible content.

Dissent is vital

In August 2021, a division bench of Chief Justice Datta and Justice GS Kulkarni, in a landmark decision, passed the interim order in the petitions filed by The Leaflet and journalist, Nikhil Wagle, staying Rules 9(1) and 9(3) of the Information Technology (Guidelines For Intermediaries and Digital Media Ethics Code) Rules, 2021, which mandate that digital news media and online publishers should adhere to the Code of Ethics prescribed by the Rules. The bench reasoned that dissent is vital for the functioning of any healthy democracy; the new 2021 IT Rules can have a chilling effect on freedom of speech, with a journalist or news publisher having to think twice before criticising the State administration.

On proportionality

In Rashmi Metaliks Limited and others vs State of West Bengal (2014), Justice Datta held that a decision which overrides a fundamental right without sufficient objective justification will, as a matter of law, necessarily be disproportionate to the aims in view. He observed that one does not use an axe if a knife would suffice (for acts of commission/omission amounting to misconduct, an employee invariably is not dismissed/removed from service; instead he may be reduced in rank or his pay slashed, both being major penalties, as per requirement of the situation).

In this case, the West Bengal government suspended the petitioner from participating in tenders on e-tender platform of the department for three years from May 16, 2013. Justice Datta held that the order impugned could not be sustained on the triumvirate grounds, i.e., illegality, irrationality and proportionality.

Preventing the abuse of the legal process

In Amiya Ghosh v Union of India (2016), Justice Datta used the analogy of unequal combat between a lion and a lamb. The petitioner was faced with imminent termination of service, due to the notice served under section 11 of the Border Security Force Act, 1968, read with rule 22(2) of the BSF Rules, 1969, for charge under section 46 of the BSF Act (committing a civil offence, culpable homicide not amounting to murder under section 304 IPC).

Justice Datta held that if a show-cause notice is issued in an abuse of the process of law, the writ court should not hesitate to interfere. Challenge to a show-cause notice may also be laid when the premeditated, pre-judged, and closed mind of the authority issuing it is manifest and the noticee is called upon to dispel conclusions of guilt already drawn, and proceedings are initiated only to complete a legal formality. Circumstances firmly indicated in this case that the death of the victim was caused by the petitioner without intention and without knowledge, and hence homicidal death was not established. Finding that section 304 IPC is not attracted at all, he held that an accidental death, for which the petitioner is not liable, had been given the colour of homicidal death. Allowing the writ petition, he set aside the show-cause notice against the petitioner.

The petition, filed by the victim’s father before the Supreme Court seeking an inquiry is pending for adjudication.

In Firoz Ahmed vs Union of India, (2013), the petitioner faced prosecution for corruption under the Prevention of Corruption Act, as well as a departmental inquiry. Justice Datta held that if the line of defence is disclosed in course of the departmental enquiry, thereby giving the prosecution a distinct advantage in its pursuit to prove the guilt of the petitioner at the criminal trial, it ought not to be countenanced. There was a real danger of the petitioner’s defence being disclosed. Saying that the petitioner was entitled to stay of the departmental enquiry, he held that an accused in a criminal trial is presumed to be innocent, unless the charge against him is proved beyond reasonable doubt, and the burden of proving the guilt of the accused is on the prosecution.

In Saraju Bala Roy and others vs State of West Bengal (2008), he held that a writ petition seeking enforcement of the right to life could not be thrown out on the ground of pendency of a civil suit instituted by the petitioner. Right to life, he underlined, includes the right to live with dignity and such life can only be led if the situation is conducive therefore.

In Nicholas John Fernandes and Others vs State and others (2021), Bombay High Court Chief Justice Datta, sitting with Justice M.S. Sonak, reiterated the power of the High Court to quash a FIR/charge-sheet to prevent abuse of the process of the court, in exercise of its inherent powers preserved by Section 482 of the Cr.P.C. "The investigating officer has lifted the word ‘knowingly’ from Section 25 of the NDPS Act and inserted it in the communication to suggest the petitioners’ involvement in the crime. Without anything more, it cannot even be said that this is a valid ground for suspecting the petitioners’ involvement", he held.

Administrative law

In Arindam Choudhury vs The State of West Bengal (2019), the decision of the West Bengal Administrative Tribunal, rejecting the prayer of the petitioner for appointment on compassionate ground was under challenge. The petitioner was minor when his parents, both government employees, died-in-harness. Justice Datta held that an applicant for compassionate appointment does not acquire a right of appointment only upon proving the distressed condition of the family members of the employee who has died-in-harness. An aspirant for a post must have other necessary qualifications which, inter alia, would include being of the required age for entry in service, possessing the minimum educational qualifications and bearing good moral character as well as health. He thus refused to grant any relief in the matter.

Right to Information

In University of Calcutta and Others vs Pritam Rooj (2009), Justice Datta held that an assessed/evaluated answer script of an examinee writing a public examination conducted by public bodies like the WBBSE, the CBSE or the Universities, which are created by statutes, does come within the purview of information as defined in the RTI Act. There is no justifiable reason to construe Section 2(f) of the RTI Act in a constricted sense, he observed.

Apart from it being a material and thus comprehended within the exhaustive aspect of the definition, an assessed/evaluated answer script is also a document, a paper, and a record, he held. Also, an opinion is comprehended within the definition of ‘information’. He agreed with the single Judge that the RTI Act does not contemplate that information as defined in Section 2(f) is confined to those mentioned in section 4 of the Act and information other than those encompassed by Section 4 need not be furnished to a citizen on request. Section 8(1) of the Act provides an exhaustive exemption list and Section 4 cannot be construed to be an additional provision indirectly empowering public authorities to claim exemption from disclosing information to an information seeker, he held.

Referring to Section 22 of the Act, he held that a subordinate legislation framed by the WBBSE that clearly is inconsistent with the spirit of the RTI Act cannot whittle down and/or negate a right flowing from it. In view of the provisions of the RTI Act having overriding effect, an examinee is not required to challenge the validity of the said Regulations, he held. The Regulations have to be read down to save it from the charge of being ultra vires the provisions thereof, he added.

The plea of fiduciary relationship, advanced by the CBSE did not impress the bench. Fiduciary relationship, Justice Datta made it clear, is not to be equated with privacy and confidentiality. It is one where a party stands in a relationship of trust to another party and is generally obliged to protect the interest of the other party. He held that even if there is any such agreement between the public authority and the examiner to protect the confidentiality of the assessment/evaluation, the same cannot be used as a shield to counter a request from an examinee to have access to his assessed/evaluated answer scripts and the RTI Act would obviously override such assurance.

While the Supreme Court has affirmed the High Court’s verdict in 2011, a three judge bench, however, has expressed doubts about this reasoning in another case recently.

In defence of labour rights

In IBP Co. Ltd. Thika Sramik Union vs Indian Oil Corporation Ltd. and Ors. (2019), a Single Judge of the Calcutta High Court had quashed a notification issued by the Central Government under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, (CLRA) prohibiting employment of contract labour in the establishment of Lube Oil Blending Plant of the Indian Oil Corporation Ltd at Budge Budge, on a plea by the IOC. Justice Datta, as the presiding judge in the division bench also comprising Justice Bibek Chaudhuri, restored the notification, and allowed the petition of the Union.

Justice Datta reasoned that constitutional courts are not supposed to exercise their judicial powers like a bull in a china shop. On the face of an expert body’s report, which does not suffer from either grave dereliction of duty or flagrant violation of fundamental principles of law, regard and deference due to the administrative expert’s views must be accorded, he held. He found that the expert committee took into consideration the rival views of the IOC and the Union on whether to prohibit employment of contract labour and it performed its task in a fair and reasonable manner. The effect of the said notification, he held, is that instead of employing contract labour, the IOC must have the same work done by permanent workmen or not at all.

Justice Datta held that no citizen can seek to enforce a right unless its source can be traced to the Constitution or any statute that is intra vires, or to statutory instruments in the nature of subordinate legislation validly framed by appropriate authority answering the definition of State, or to any statutory contract, or to any custom or usage have the force of law.

The CLRA Act having been enacted in the light of the baneful effects of the practice of contract labour and to regulate the same wherever abolition is not possible, no principal employer employing contract labour through a contractor can legitimately claim that it has a legal right to continue to employ contract labour, and that an order prohibiting such labour should be preceded by a hearing before the Central Advisory Contract Labour Board, Justice Datta reasoned.

Justice Datta held that reading rule 12 or section 10 to include a right of hearing could have the effect of frustrating the benevolent objects that the CLRA Act seeks to achieve and any such attempt ought to be eschewed. He observed that the compliance of rules of natural justice is not intended for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. Since any infirmity in the report of the Committee has not been demonstrated, the question of a remand to the Board to deliberate on the matter afresh after receiving the comments of the IOC, did not arise here, he stated.

In Union of India vs CLW Labour Union and others, (2019), a single Judge of the Calcutta High Court had allowed a writ petition filed by the Chittaranjan Locomotive Works for recognition for the purpose of bargaining with the management of CLW. The ministry of railways had argued that it would not be desirable to recognise any union in the production units since it was likely to interfere with the production targets and the staff council should be deemed to provide the necessary machinery to the staff for redressal of their grievances.

Justice Datta drew attention to the fact that the staff council in Rail Coach Factory (RCF) had been substituted pursuant to the decision of the Delhi High Court, and the respondents, following the rejection of appeal against the Delhi High Court’s verdict in the Supreme Court, ought to have treated all production units at par with zonal railways by granting recognition to a registered union through the process of election. The appellants, despite suffering an adverse decision, sought to raise the same dispute all over again.

Justice Datta held that every decision that the Government takes as a matter of policy is not immune from challenge. Such a decision has to be reasonable and rational and aimed at promoting the objectives of Part IV of the Constitution, and must conform to the provisions in Part III thereof or else it runs the risk of being judicially interdicted on the touchstone of Article 14 of the Constitution. In an appropriate case, the Court can examine whether the policy decision dealing with the matter is based on a fair, rational and reasonable ground, whether the decision has been taken considering all relevant aspects of the matter, whether the decision serves the purpose for which it is brought into existence, etc.

To grant recognition to unions to function in zonal railways and also in a production unit, RCF (albeit on the order of the Court) and not to grant recognition to the Union, without sufficient justification, fouls Article 14, he held. If a staff council had to be abolished in RCF because of the decision of the Delhi High Court, there is no reason as to why the staff council in CLW should not be disbanded and the union recognised through a secret ballot, he held.

In Adani Electricity Mumbai Ltd. vs The Chief Conciliator under Maharashtra Industrial Relations Act, 1946 and others (2022)), Chief Justice Datta, sitting with Justice M.S.Karnik, held that when a notification under the MIR Act, on its own terms is amenable to two meanings, he would have to elect that meaning out of the two which advances the cause of the members of the Workers' Union and not the cause of the petitioning company.

Role of Governor & PILs

In Ratan Soli Luth vs State of Maharashtra and Others (2021), the role of the Governor to make nomination on the Legislative Council was the issue. The Council of Ministers had unanimously resolved to recommend names of 12 individuals for nomination to 12 vacant seats, under Article 171 (5). Despite several months having passed, the Governor had not acted on such advice.

Chief Justice Datta, sitting with Justice GS Kulkarni, held that PILs not involving the weak, needy or marginalised people could be maintained in order to give proper direction to public power or to correct the exercise of such power, when it appears to the court that there is an error in exercise thereof which is affecting public interest. The Courts, in the course of hearing a public interest litigation, ought to remind itself that it is the ‘sentinel on the qui vive’, since it is the Court’s obligation to act as the custodian of Constitutional morals and ethics, he held.

Chief Justice Datta held that the obligation, which the Constitution vests on the Governor to either accept or return the recommendations as made by the Council of Ministers forming part of advice, has to be discharged within a reasonable time. Eight months, on facts, seems to be beyond reasonable time, he held. “This court, having regard to the gravity of the issue involved and the necessity to fill up the vacant seats of members expeditiously as well as to subserve the aims set by the Constitution, would consider it eminently desirable if the obligation, in the present case, is duly discharged without undue delay’, he held.

Political neutrality

In 2015, in BJP vs State of West Bengal, Justice Datta came down heavily on BJP for suppressing facts and producing a tampered document in a writ petition filed by it, seeking transfer of a complaint about hate speech, from police to another investigation agency. Imposing a cost of Rs.10 lakhs while dismissing the petition, Justice Dipankar Datta held “petitioners ought to suffer exemplary costs so as to remind the first petitioner that howsoever strong and mighty it is in the political scene, it must respect the laws of the country while seeking to invoke the extraordinary jurisdiction of the court and not suppress facts or produce a tampered document to suit its end.”

In Sandeep Bera vs Chief Secretary, Government of West Bengal (2016), Justice Datta, while hearing petitions challenging the restriction imposed on immersion of Durga idols beyond 4 p.m. on Bijoya Dashami, cautioned the state government not to pit one community against another. He held that the devotees were entitled to immerse Durga idols in the evening of Bijoya Dashami, and such immersion must be completed by 8.30 p.m. The state government has been irresponsibly brazen in its conduct of being partial to one community, thereby infringing upon the fundamental rights of people worshipping Maa Durga, he observed in the judgment.

He continued: “The state government must realise that it would be dangerous to mix politics with religion….Intolerance would rise in the event of such arbitrary decision of the state government being put in place and enforced.”

Remarkable interventions during Covid

During the period of Covid-19 pandemic, a bench presided by Chief Justice Datta (and comprising Justice SS Shinde) directed the Maharashtra Government to ensure that all seized PPE kits, masks, gloves and sanitizers reach the frontline workers engaged in combating Covid-19. The same bench dismissed plea against burial of Covid-19 victims in Bandra cemeteries, saying that there was no scientific data to say that burial transmits Coronavirus.

In June 2020. Chief Justice Datta, sitting with Justice MS Karnik, directed the Maharashtra government to consider and dispose of within a fortnight, concerns expressed by an activist working for the transgender community, regarding plight of the members specially after the lockdown and seeking directions for formulation of a welfare scheme for the 40000 members of the community in the State.

In Shoma Sen vs State of Maharashtra (2020), a division bench of Chief Justice Datta and Justice RK Deshpande at the Nagpur bench directed Tukadoji Maharaj Nagpur University and the State Government to pay Rs.5 lakh each to former Head of Post Graduate Department of English at Nagpur University, Professor (retired) Shoma Sen towards payment of gratuity, which was withheld after her arrest in the Bhima Koregaon violence case in June 2018, a month before her retirement. The bench observed: “It is most unfortunate that during these testing times, a retired teacher has been left to fend for herself without the respondents taking adequate care and interest to clear her dues”.

In September 2020, a division bench comprising the Chief Justice Datta and Justice GS Kulkarni took suo motu cognizance of the building collapse that took place in Thane’s Bhiwandi area where the death toll had risen to 41. Issuing notice to the Municipal Corporation, the court expressed its prima facie opinion that the right of the citizens to live in safe buildings and environment would be a facet of the right guaranteed by Article 21 of the Constitution and it would be the duty of the civic bodies to bring about a situation that all buildings within their respective municipal jurisdictions are legal, sustainable and safe.

On October 1, 2020, a full bench of the High Court comprising the Chief Justice Datta declined an urgent application filed by Pimpri Chinchwad Municipal Corporation seeking implementation of an NGT order which would result in removal of encroachments along riverbeds. We cannot alow anyone to be rendered homeless during the pandemic, the bench observed.

While hearing a PIL seeking to declare members of the legal fraternity, including Judges, as frontline workers and to vaccinate them for the coronavirus on a priority basis, Chief Justice Datta invoked the iconic American epic - Titanic - to declare that as the captain of the ship, first comes society, then judiciary, and himself came last. “You are asking for a writ of mandamus for the judiciary from the judiciary”, he told the petitioner.

In April 2021, a division bench of Chief Justice Datta and Justice GS Kulkarni declared the Centre’s policy denying an elderly person home vaccination because of their delicate medical condition, as arbitrary and unreasonable. “We regretfully record that the elderly citizens are being asked to choose between the devil and the deep sea”, Justice Datta said in his order.

In June 2021, a bench of Chief Justice Datta and Justice GS Kulkarni took strong exception to politically driven rallies across Maharashtra amid the Covid-19 pandemic.

Another bench led by him (with Justice GS Kulkarni) warned that it would hold the state Health Secretary responsible if any more children die of malnutrition or due to lack of medical attention in the state’s tribal belt of Melghat in Amravati district. A bunch of PILs had sought specialists, nutrition and health facilities for children and expectant mothers in the region. At least 73 children between ages 0-6 had died in Melghat from April to July 2021, and between April 2020 and July 2021, the region has seen 330 toddlers die and 168 stillbirths.

In September 2022, a bench of Chief Justice Datta and Justice MS Karnik summoned the Collector of Nandurbar district over the high number of child and maternal deaths in the district due to malnutrition and lack of adequate medical facilities.