Submissions/Wikimedia - The New Secondary Source of Law

After careful consideration, the Programme Committee has decided not to accept the below submission at this time. Thank you to the author(s) for participating in the Wikimania 2014 programme submission, we hope to still see you at Wikimania this August.

Submission no. 2530

Title of the submission: Wikimedia - The New Secondary Legal Source

Type of submission (discussion, hot seat, panel, presentation, tutorial, workshop): Presentation

Author of the submission: Debashis Mukherjee

E-mail address: debashislegalics.com

Username: DebashisM

Country of origin: India

Affiliation, if any (organisation, company etc.): Advocate, Supreme Court of India; Litigation Head, LEGALICS - Law Attorneys & Legal Consultants (India)

Personal homepage or blog: http://www.legalics.com

Abstract (at least 300 words to describe your proposal)

The world order has changed and we have entered an internet age. The other most popular encyclopaedia till recent times, is also no more found in print. Thus its the opportune time that we better ourselves in our structure and be a controlling factor in the society. What better way than to be the repository of the combined knowledge of the all the societies existing in this world? What better way than to be acceptable by the judiciary all over the world for determining the fate of the society at large through their judgements? Hence, despite its inherent defects of ever changeability (jurists also possess such demerits in one form or the other), it’s time that ‘Wikipedia as a Secondary Legal Source’ be acknowledged in consonance with the zeitgeist!

This is version 3.1 of the presentation. Version 1.1 was presented in the Wiki Conference India, Mumbai 2011 but version 1.2 was a ‘rejected’ submission during Wikimania 2012,Washington, D.C., USA. However ver. 2.1 managed to scale the heights a little but remained a 'wait list' candidate during the Wikimania 2013, Hongkong.

Detailed proposal

A few years back, when we heard of American 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 to arrive at a conclusion.

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, 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., 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. Interestingly all these judgements 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.

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

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. However, the Supreme Court of India has last used Wikipedia as a source in the case of State of U.P. & Ors. vs M/s. Mohan Meakin Breweries Ltd. (again of 2011) wherein it was posed with the question of understanding the concept of brewing. The Hon'ble Court looked into the two most popular encyclopaedias, viz. the Encyclopaedia Britannica and our very own Wikipedia - The Free Encyclopaedia. The Court observed that ‘(a)s the description of the brewing process given in Encyclopaedia Britannica is detailed and very lengthy, we have opted for the following shorter and simpler description of the brewing process given in Wikipedia. While the tune of the judiciary was in favour of using Wikipedia resources, why has the same never ever used by the said Court? This presentation would not be complete without discussing the possible reasons, and the burden of which is upon us, the Wikimedia editors, to correct.

In fact, India has but a miniscule role to play in the International scenario and many would say that they same would not be applicable in most American and European Countries which are the leaders of the global world because of economic development and forwardness. However, even in such a society, the problems of acceptability of Wikipedia as a valid resource is viewed with similar skepticism. The presentation would also feature an equally detailed American as well as the European scenario in this respect.

In this backdrop, whilst using the Indian perception as well as positions in other developed as well as developing nations, the presentation would showcase that it is time that Wikipedia - The Free Encyclopaedia must perform the role of a true encyclopaedia and be an aid to the law making process the world over.

Reliability issue have regularly dogged the legal fraternity as to when would the usage be considered proper. We wikimedians may formulate a minimum basic pattern that vouches the authenticity of articles on a case to case basis. For that we may have a category of verified patrollers who may be allowed to place a 'stamp of approval' for use as an encyclopedic article credible enough to be used as a reference material by the Courts in delivering judgments that would bind the lives of many in more ways than one. Thus it would rule out the possibilities of any Court using references from incomplete stubs due to sheer peer pressure or under the influence of the counsels for the parties, and thereafter face rebuke of the society.

Another major issue that have restricted the usage of Wikipedia is the concept of ‘link rot’. While most of us would say that every stage of article edits have a unique and distinct permanent URL, the same is not known or incomprehensible to the average users, moreso to the aged judicial officers the world over. In order to subvert the complexities, we can adopt a ‘Citation Creator’ button which may be compulsorily placed prominently preferably at the top of the infobox. This button when clicked would simply pop-up the permanent URL of the article.

The world order has changed and we have entered an internet age. The other most popular encyclopaedia as mentioned above is also no more found in print. Thus we have to better ourselves in more forms and be a controlling factor in the society. What better way than to be acceptable by the judiciary for determining the fate of the society at large. Hence, despite its inherent defects of ever changeability (jurists also possess such demerits in one form or the other), it’s time that ‘Wikipedia as a Secondary Legal Source’ be acknowledged in consonance with the zeitgeist!

Track

Legal & Free Culture

Length of session (if other than 30 minutes, specify how long): 30 minutes

Will you attend Wikimania if your submission is not accepted?: Unlikely

Slides or further information (optional)

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