Before we come to certain incident at the Delhi high court, please allow me to quote a paragraph from The Tenth Justice authored by #1 New York Times bestselling author Brad Meltzer while he was in law school, about judicial clerks:

Alongside the justices, you will draft decisions that change lives. Your input will constantly be sought, and your ideas will certainly be implemented. In many instances, the justices will rely entirely on your analysis. They'll base their opinions on your research. That means you affect what they see and what they know. There are nine justices on this Court. But your influence, the power that you hold, makes you the tenth justice.

In the novel, aforesaid were the words from an official of the Clerk’s Office of the Supreme Court of the United States of America to the newly inducted law clerks at the Court.

Similar to the practice in United States, the Supreme Court of India and the high courts in India also contractually engage law graduates known as law clerks-cum-research assistants (or more simply, law interns), who assist the judges of the higher judiciary in their research and sometimes in drafting.

While rendering the historic judgment in Aruna Shaunbaug case, (2011) 4 SCC 454, Justice Markandey Katju, writing for himself and for Justice Gyan Sudha Misra, expressly named and thanked their law clerks as well as their law interns for their contribution in shaping of the judgment. (On another note, the opinions in that judgment had been held to be inconsistent and in 2014 the issue involved was referred to a Constitution Bench of the Supreme Court.)

The above should be borne in mind when discussing a recent development where a division bench of the Delhi high court was ‘constrained’ to apologise for an act, purportedly, of one of its law interns.

On 27 November 2015, a division bench of Delhi high court consisting of Justices Pradeep Nandrajog and Mukta Gupta delivered a judgment in an appeal against an order dated September 7, 2012 of the single bench of the Court. This judgment came in a giant patent dispute where F.Hoffmann-La Roche claimed that Cipla’s cancer drug ‘Erlocip’ infringed Roche’s patent IN ‘774.

In a surprising development, on 1 December, Eashan Ghosh of S Majumdar & Co wrote on Facebook that paragraphs 4 to 37 of the November 27 judgment were copied from an article published by Ghosh and Shwetasree Majumder, co-founder, Fidus Law Chambers, India in Queen Mary Journal of Intellectual Property, Vol. 3 No. 2, pp. 167–175.

While those who read the Facebook post were still wondering over plagiarising by Delhi High Court, on 8 December 2015, the same division bench of the court undertook what it called “corrective action”: an order clarifying the incident and expunging the paragraphs from the judgments which were alleged to have been plagiarised.

Clearing the clouds over the issue, the bench said that after the judgment was reserved, “as the judgment passed by Single Judge was lengthy (275 pages), bench had decided to briefly pen profile the impugned judgment of the single judge. Further, one of the law interns who was associated with the bench offered to make a precise of the impugned judgment”. The draft submitted by the intern was incorporated by the Division bench in the November 27 judgment.

Division bench has said that it after its attention was drawn to the through the article of Ghose and Majumder’s article, it dawned on the bench that that “paragraphs 4 to 38 of [its] judgment were a virtual verbatim copy of the Article published.”

The Division bench then observed:

This has constrained the Bench to pass a suo moto order offering apology to the learned authors of the Article and simultaneously taking corrective action

The clarification and ‘corrective action’ of the Delhi high court in my opinion is a very welcome step where not only the court owned the mistake of its intern but also apologised to the authors whose copyrighted work was used without acknowledgment.

One can only guess if any action was taken against the plagiarising intern but at the very least, future interns will hopefully be warned by the episode ditch their cut-copy-paste skills when not at law schools (and hopefully at law school too).

Mohit Singh is an advocate of the Delhi high court.

Picture by Vincent Brown