Submissions/WikiMedia - The New Secondary Legal Source !

This is a rejected submission for Wikimania 2012.

Submission no. 266

Title of the submission

WikiMedia - The New Secondary Legal Source !

Type of submission (workshop, tutorial, panel, presentation)

Presentation

Author of the submission

Debashis Mukherjee

E-mail address

debashis@legalics.com

Username

DebashisM

Country of origin

India

Affiliation, if any (organization, company etc.)

• Advocate, Supreme Court of India / Delhi High Court;
• Litigation Head, LEGALICS - Law Attorneys & Legal Consultants;
• Sr. Associate, Excelex Law Offices, Mumbai (TMT Practice)
• Member, WikiMedia India Chapter

Personal homepage or blog

www.legalics.com

Abstract (at least 300 words to describe your proposal)

A few years back, when we heard of foreign courts, citing from ‘Wikipedia –The Free Encyclopaedia’ people were aghast. More so was the legal fraternity. Not only did they fear the possibly ever-changing knowledge bank, but also the vast and unending source that could burden the already ‘noble’ and ‘knowledgeable’ legal professionals. This being so, as in a court of law, the lawyer has to don the garb of his client and be prepared with the relevant facts and figures, apart from his legal prowess.

In India, the credit of using Wikipedia in Supreme Court decisions is attributed to Hon’ble Mr. Justice Markandey Katju in the case of D. Velusamy v. D. Patchaiammal, Civil Appeal Nos. 2028-2029 of 2010, wherein the Apex Court had used definitions from the Wikipedia.

This was however not the first instance that the Indian judiciary had a look into ‘Wikipedia’. In the case of M/s. Ponds India Ltd. v. Commissioner of Trade Tax, CA No. 3644 of 2008 the Supreme Court had to deal with the resource gathered from ‘Wikipedia’, but the Court carefully avoided using such resource, mainly for the reason that they were not stable and could be changed by anyone, over any period of time. In the case of Commissioner of Customs v. M/s ACER India Pvt. Ltd, CA No. 2321 of 2007, while counsels from both sides used references and definitions from Wikipedia, the Apex Court consciously avoided to rely on it. Similarly the court rejected the Wikipedia resource in M/s BOC India Ltd. v. State of Jharkhand & Ors., CA No. 1538 of 2009. Interestingly all these judgments were delivered by Hon’ble Mr. Justice S. B. Sinha. Recently in 2011, Hon’ble Mr. Justice Dalveer Bhandari refused to only rely on Wikipedia in the case of T.V. Venugopal v. Ushodaya Enterprises Ltd., CA Nos. 6314-15 of 2001.

Contrary to public perception, the first usage of the resources from Wikipedia, was way back in 2006 when Hon’ble Mr. Justice S.H. Kapadia (the present Chief Justice of India), used the same in the case of Anjaleem Enterprises Pvt. Ltd. v. Commissioner of Central Excise, Civil Appeal 2487 of 2000.

Other Supreme Court judgments that used the resources from Wikipedia, if not rely on them, includes: Commissioner of Customs, New Delhi v. C-Net Communication (I) Pvt. Ltd. (2007). Reliance Infocomm Ltd v. Bharat Sanchar Nigam Ltd. & Ors (2008). Commissioner of Trade Tax v. Associated Distributors Ltd.(2008). New India Assurance Company Ltd. v. M/s. Zuari Industries Ltd. & Ors. (2009). Commissioner of Trade Tax v. S/S. Parikh Gramodyog Sansthan (2010).

The High Courts of Allahabad, Andhra Pradesh, Bombay, Delhi, Gujrat, Karnataka, Kerela, Madras, Orissa and Rajasthan have time and again used the resources from Wikipedia to understand the subject matter and substantiate their judgments.

While this is the Indian position, much have been said in the West in support and/or against its use. In the light of the above backdrop, I'd like to potray the influence of Wikipedia to judgemnts delivered by the courts, and thereby (in)directly influencing our lives by becoming part of the law, by proving to be an influential aid in understanding the things as they are.

With even Encyclopedia Britannica choosing to opt out of the print editions and following the 'online versions' only from this year, the naysayers would now need a tough defense to disapprove the use of WikiMedia resources!

The presentation would showcase that despite its inherent defects (jurists also possess such demerits), it’s time that ‘Wikipedia as a Secondary Legal Source’ be acknowledged in consonance with the zeitgeist!

Track

• WikiCulture and Community; Research, Analysis, and Education

Length of presentation/talk

25 Minutes

Will you attend Wikimania if your submission is not accepted?

Yes. Sure to attend if I am awarded the Full Scholarship for attending the Conference (for which I have applied separately).

However, I'm really interested in presenting the paper, and without a scholarship, I would be unable to attend the conference. Hence I hope that I would be given a Speaker's Full Scholarship if I fail to make the attendee scholarship list.

Slides or further information (optional)

Special request as to time of presentations

Interested attendees

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1. DebashisM, Presenter