14 Feb 2008

WIKIPEDIA to the Rescue of Indian Courts

The ultimate saviour for the present generation of law students (yes, of the cut-copy-paste era), Wikipedia has really come to mean a lot. A bible for all those who are too perturbed (or simply unhappy) to work off the mounting load of assignments and projects, this modern day encyclopedia means a lot to us all; isn’t it? And as if this was not all, now even the Indian Courts have begun to emulate (copy) us, the modern day law students.

This may sound hilarious but as a matter of fact, Wikipedia, the much loved free encyclopedia has come to the rescue even of Indian courts. The instances of courts citing Wikipedia are rising, and that too at a steady pace. Though, the winds of change, as we will notice below, can be said to have begun only in 2006, but then the numbers are rising fast with numerous examples from all over India.

Let’s start with the tribunals. The tribunals, such as the Authority for Advanced Rulings (AAR), Central Administrative Tribunal (CAT) and the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), are freely using Wikipedia for definitions of various terms or as reference source for information on certain concepts. The following prominent cases are noteworthy in this regard:

(1) Teracom Private Limited & Anr v. Commissioner of Customs [2008(124) ECC 31] – Wikipedia was cited for definition of CDMA/WLL but not relied upon as it was silent on the issue before CESTAT, Mumbai Bench.

(2) Lhoist India Private Limited v. Commissioner of Customs and Central Excise [Decided on 30.08.2007]- The AAR used Wikipedia for information on nature of calcium oxide.

(3) Suresh Kumar v. Union of India [MANU/CA/0049/2007] - CAT, New Delhi Bench, used Wikipedia for information on colour blindness.

(4) Abraham J. Tharakan v. The Commissioner of Central Excise [ 2007(115) ECC 132] - CESTAT, Bangalore Bench, used Wikipedia for definition and nature of blanching process.

(5) Asea Brown Boveri Ltd. and Anr v. CCE [MANU/CB/0515/2005] - CESTAT, Bangalore Bench, relied on Wikipedia for information on ‘software’.

(6) Commissioner of Customs v. Hewlett Packard India Ltd. [2006 (107) ECC 49] – Wikipedia used for definition of ‘driver’ and ‘printer driver’ by the CESTAT, Mumbai Bench.

(7) Aravali Minerals and Chemicals Industries (P) Ltd. v. Assistant Commissioner of Income Tax [2007 292 ITR 361(Jodh)] - ITAT relied on Wikipedia for definition and nature of marble rock.

So much for the tribunals, a look at High Court judgments reveal that they are not untouched by this new found interest in the web resource. Let’s look at the relevant High Court judgments in a nutshell:

(1) In Voltas Ltd. v. State of Gujarat [MANU/GJ/1965/2006], the High Court of Gujarat relied upon Wikipedia to determine the meaning of central air conditioner and room air conditioner. Interestingly, the web resource was cited by the Advocate General himself on behalf of the revenue.

(2) In Tourism Corporation of Gujarat Ltd v. Kalu Valji Jethwa [MANU/GJ/7426/2007], the High Court of Gujarat again used Wikipedia for historical information concerning limitation on working hours for workmen.

(3) Coming again from the High Court of Gujarat is the judgment of Federation of Gujarat Petroleum Dealers Association v. State of Gujarat [(2006) 2 GLR 1432] wherein the Court categorically relied on the web resource for definition of the term ‘petrochemical’.

(4) In K. Ravinchandra Reddy and Ors. v. Government of A.P. Revenue Department [MANU/AP/0615/2007], the Andhra Pradesh High Court used Wikipedia for the definition of ‘moral turpitude’.

(5) The Karnataka High Court has also relied upon Wikipedia twice. In Dr. Narayana K. Swamy v. A. Nazir Ahamed Khan [MANU/KA/7351/2007], a case involving suit for compensation for negligence in medical treatment, it cited Wikipedia for the medical concept of “Subarachnoid hemorrhage”. Again, in Nalini Kumari v. K.S. Bopaiah [2007 (1) KarLJ 342], it referred to Wikipedia for information on ‘bipolar disorder’ in a case for divorce filed on the ground of fraud and misrepresentation as to the material fact of the spouse having the disease prior to the marriage.

(6) In Ravi Kumar Kaushal v. State of U.P. [MANU/UP/1354/2007], a case involving disqualification of a police person on ground of defective colour vision , the Allahabad High Court used Wikipedia as a reference source for information about the ‘Ishihara test’ which is used to determine colour blindness.

(7) In Madhu Parumala v. Speaker, Kerala Legislative Assembly [AIR 2007 Ker 18], the Kerala High Court cited Wikipedia to decide whether the word ‘Allah’ is synonymous with ‘God’ to determine the question of disqualification of members of Kerala Legislative Assembly who had used the word ‘Allah’ instead of ‘God’ while taking oath under Article 188.

Now we come to the most interesting part viz. the highest court of the land, the Supreme Court of India. In Commissioner of Customs, New Delhi v. C-Net Communication (I) Pvt. Ltd. [2007 ECR 107 (SC)], the apex court cited Wikipedia for the definition of the term ‘decoder’. More importantly, the case of Commr. of Customs, Bangalore v. ACER India Pvt. Ltd. [ 2007 (12) SCALE 581] is a source of wonderment for one and all. The question was whether ‘laptop’ falls within the meaning of the term ‘CPU with monitor, mouse and keyboard imported together as a set’. The counsel for the respondents relied on passages about laptop and desktop from Wikipedia. The judgment has extensive quotations from Wikipedia but the Court notes:

We have referred to wikipedia as the learned Counsel for the parties relied thereupon. It is an online encyclopedia and information can be entered therein by any person and as such it may not be authentic. However, it is not disputed that a laptop and a desktop is differently known in commercial parlance. Furthermore, we are required to determine this issue on interpretation of the relevant entries contained in the schedule of Customs Tariff Act.

Does this mean that Wikipedia cannot be relied upon and used by the Courts? Though the Apex Court says that the issue has to be decided on the interpretation of relevant entries but it employs no principle of interpretation to arrive at the decision. What do the extensive quotations from an unreliable web resource signify? How does the court come to a conclusion except for this information? No prizes for guessing the obvious.

If one were to examine the issue minutely, from the perspective of Indian Evidence Act, Wikipedia can never be a reliable source of information for the Courts to refer, cite or rely. This is for the reason that the website itself states:

Wikipedia is written collaboratively by volunteers from all around the world ... Visitors do not need specialised qualifications to contribute, since their primary role is to write articles that cover existing knowledge; this means that people of all ages and cultural and social backgrounds can write Wikipedia articles. With rare exceptions, articles can be edited by anyone with access to the Internet, simply by clicking the edit this page link. Anyone is welcome to add information, cross-references or citations, as long as they do so within Wikipedia's editing policies and to an appropriate standard.

And then Wikipedia itself states the possibility of misinformation: “Users should be aware that not all articles are of encyclopedic quality from the start, and may contain false or debatable information…..Allowing anyone to edit Wikipedia means that it is more easily vandalized or susceptible to unchecked information, which requires removal.” [click here fore more details]

Given this vulnerable nature of Wikipedia, prudence dictates that reliance on such an online resource which might contain mistakes would stunt legal research, breed laziness and undermine the legitimacy of courts’ legal authority. Though these references are not determinative in the courts’ decisions and may have been used for ‘soft facts’, the ‘signaling value’ for lower courts and law students are going to be tremendous. Will not they be prodded to copiously use an unreliable source of information in face of the fact that Constitutional courts are mindlessly relying on it? Should not the superior courts discourage the practice explicitly? The concern is not India specific as voices against use of Wikipedia by law students and courts have already been raised outside India.

For further readings:

(1) Scott Jaschik, A Stand Against Wikipedia

(2) Noam Cohen, Courts Turn to Wikipedia, But Selectively

So what is your opinion, food for thought, eh?


Abhinav Goel said...

Many thanks for this interesting article Tarun! It is indeed sad that our High Courts have started using on Wikipedia not just as a secondary but as a primary authority to rely on. Nevertheless, as more and more law students from the best universities in India raise such issues, I believe courts will also start using Wikipedia as a secondary authority than something which they can rely on.

Tarun Jain said...

I agree with you Abhinav :)