When judges copy

Plagiarism by judges may be rare, but it does occur, and with sometimes, unsettling consequences. Three years ago, the Delhi High Court was at the centre of an unseemly rumpus when it was found that over 30 paras in a drug patent judgement had been lifted verbatim from a journal on intellectual property. The plagiarised content was discovered by one of the authors of the article, who brought it to the notice of Justices Pradeep Nandrajog and Mukta Gupta, who had delivered the judgement in a case filed by Roche against Cipla for patent infringement. Though a court intern was blamed for the plagiarism, the justices acted immediately to take “corrective action” and even apologised to the authors of the article.

There is another kind of copying in courts. In the political turbulence over the Supreme Court judgement giving a clean chit to the Narendra Modi government in the controversial Rafale deal, one aspect of the verdict caught the attention of some analysts, who found it more curious than other crucial points raised by the opposition parties. This was the propensity of the bench headed by Chief Justice Ranjan Gogoi to reproduce almost in toto the arguments put forward by the government.

The striking similarity of the points in the verdict handed down by Justices Gogoi, UU Lalit and KM Joseph, and in the note, submitted by the government caught the eye of former minister and BJP malcontent Arun Shourie, who did a meticulous compilation of the similarities in the official note and the judgement. He highlighted around 17 instances where the court had reproduced almost verbatim the submissions made by the government to justify its conclusions. “If a student lifts sentence after sentence, para after para like this from some help-book, what would you say?” Shourie asked in a piece written for the online publication Wire.in.

The fact is that the courts commonly use parts of the counsel’s submission with or without permission in their judgements. In fact, judges in some parts of the world seek submissions in electronic format, to make this process easier for themselves. The moot point is whether there was lack of application of mind in doing so. Here, the egregious case of a judge lifting chunks from the plaintiff’s written argument in Canada is illustrative. In the 2012 Cojocaru versus British Columbia Women’s Hospital and Health Centre case, the trial judge did an astounding amount of copying: 321 of the 368 paras in his judgement were taken straight out of the plaintiff’s submission. So, did the judge at all take into account the arguments made by the defendant? The Court of Appeal for British Columbia held that his decision ought to be set aside due to the extensive copying and ordered a new trial.

However, the Supreme Court of Canada allowed the appeal against the decision and said that unlike other writings (such as academic work and journalism), which forbids plagiarism, copying without acknowledgement by the courts is acceptable.

What’s important is whether judges have applied their mind to the facts and issues and rendered what a reasonable person would see as an impartial, independent decision, it said. That’s the question over the Rafale verdict also.

(This article was first published in Down To Earth's January 1-15 edition)

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