Uncategorized

Let the judges judge!


downloadAs we had reported a while back, the recent Roche v. Cipla judgement from the Delhi High Court seems to have been plagiarised in part from an academic article. The Division Bench that authored this judgement was bold enough to own up to this error and in a suo moto order apologised to the authors and modified their judgement to remove this plagiarised content. Prof. Shamnad, while reporting on this order lauded the Bench for their courage.

Justice Ruma Pal, formerly of the Supreme Court, while speaking at the V.M. Tarkunde Memorial Lecture delivered in the year 2011 put it really candidly when she said that many judges are guilty of plagiarism in their judgements (see text here). She goes on to say that many judgements are in fact mere digests or compendia of precedent with little or no original thought and often with little or no attribution to the source. In fact, Gautam Bhatia’s piece on this episode highlights quite a few examples of this in constitutional law. This borrowing is not merely restricted to the portions of text but also, as Prof Basheer realised, sometimes extends to unattributed reasoning, as in the case for therapeutic efficiency under S.3(d) of the Patents Act in Novartis.

Then again however, most forms of intellectual output in today’s creative and literary landscape are affected by substantial amounts of plagiarism. From the films we watch to the music we listen to, from the books we read to sometimes even the academic articles we study – plagiarism is fairly rampant. This has led to a somewhat callous attitude towards the practice. While it is true that most cultural advances take place by improving upon the wealth that already exists, there is a distinct line between that practice and plagiarism, and it is essential for us to stay on the right side of this line. Taking one step backwards to broaden the scope of what we are looking at, this has perhaps been the constant tussle in Intellectual Property – being able to utilise and improve upon existing work but at the same time ensuring that rights are protected. Our attitude to plagiarism is a very good indicator as to why some people argue that protectionism is the need of the hour – because we often find ourselves walking on the wrong side of the line. This clearly has spill over effects into how policy is made. The fear that this disregard for another person’s rights may spill over to other fields where these rights are markers for economic benefits leads to increasingly protectionist policy measures. This is akin to how the ‘tough on crime’ approach in the late 1980s has led to seemingly excessive measures like mandatory minimum sentences and racial profiling. This is already evident with regards to plagiarism with criminal action being taken against academics suspected of plagiarism. The consequences that the attitudes to small ‘harms’ can cause often have the potential to snowball into something quite excessive and in the IP environment can affect critical things like access to medicines and knowledge. It is therefore necessary that we realise this at the earliest and checked ourselves.

Lest this post start to seem like a rant, let us return our focus to judicial plagiarism. Gautam in his piece suggests that un-originality in judgements is a consequence of the approach to writing judgements; that they are often simply a collection of facts, precedent and a skimpy analysis following this, leading to a conclusion. This is a consequence he says of the manner in which judgements are written – by adopting parties’ submissions and adding some analysis to this. While this may be a large factor, what I think is more of a causal factor in this problem is the workload that judges have to deal with. Daksh, an organisation based out of Bangalore that works on, among other things – judicial delays, by analysing caseloads that judges are faced with, highlights how judges are severely overburdened with case load. Recently, at a lecture hosted by them, they offered a brilliant approach to better the quality of judgements that come out of the higher judiciary. They suggest that the reason a judge would opt to be part of the higher judiciary is largely due to intellectual rigour that the position demands and therefore is best incentivised to deliver good judgements if they have the satisfaction of effectively engaging in the exercise that the writing demands. This is virtually impossible with the current workloads that these judges are occupied with – a problem that is compounded by the huge number of vacancies that High Courts in India have at the moment.

Daksh’s statistics reveal that a case has an average hearing time of about 5 minutes in the higher judiciary. In such a scenario it is difficult for a judge hearing this case to be invested in the matter let alone engage in the intellectual exercise to produce a quality judgement. It is this atmosphere that has perhaps created conditions where a judge may have relied on plagiarised summaries compiled by an intern. It is perhaps therefore also in the interests of good judgement writing that the case load of judges and judicial vacancies have to be re-examined. We need to create conditions where judges can be invested in the matters that they hear and are incentivised to write quality judgements by allowing them the space and the time to effectively consider and decide matters that have been presented before them – basically, let them judge! This can only come with effective infrastructural support and increasing the number of judges on the roster of the various courts to distribute the case load of a burgeoning judicial system.

Nevertheless, it is still a bold move on the part of the Bench to admit to this and one hopes that this order would perhaps be a wakeup call to the judiciary to be incredibly careful when it comes to plagiarism.

P.S. Many thanks to Prof. Shamnad and Swaraj for their help on this.

P.P.S. Image from here.

Avatar

Thomas J. Vallianeth

Thomas is a final year law student at the National Law University, Jodhpur pursuing a B.Sc. LL.B. (IP Hons.) course. His first exposure to IP law was at a workshop that he attended in High School and ever since then, he has pursued a keen interest in the field. However, his real interests lie in the interfaces between Technology Law and IP, with an active interest in the Open Source movement.

Leave a Reply

Your email address will not be published.