Need for protection of Non-original Databases  in India

Vizzy George, Advocate

The law of intellectual property and of copyright in particular, has struggled to strike a balance between the competing interests of protecting authors’ rights to promote the creation of new works on the one hand and encouraging the public dissemination and use of works of authorship on the other. In this context, compilations of data have been controversial in the sense that while such works do not have creativity usually required to satisfy the originality requirement of copyright, a great number of these works have proven to be extremely useful to society. The typical example would be that of a telephone directory containing a simple alphabetical listing of subscribers in a particular geographic area which required virtually no creativity on the part of the author but is of greatest utility to the common public. While information is free for anybody to collect, creating an accurate and reliable database can be very costly and time-consuming. To do so, the database producer has to invest a substantial amount of time, personnel and money to develop, compile, distribute and maintain the collected information. It also has to dedicate considerable resources to gather and verify data, to present them in a user-friendly fashion, and to keep them current and useful to the users. However, the results of such labour can be copied and pirated with relative ease. Thus, it is only equitable that protection is indeed needed to create incentives for database producers to invest in their production.

However, despite their importance, databases receive very limited protection under current intellectual property protective regimes. Traditionally, courts have been reluctant to grant protection to factual compilations on the grounds that facts fall inherently within the public domain. As a consequence, protection of factual compilations is routinely accorded only to the extent to which the selection and arrangement of the compilation constitutes an original creation. The principles of the law of confidentiality also used to come to the rescue of database owners, provided the database is maintained in circumstances creating an ‘obligation of confidence’.

Database has been defined in various agreements¹. A database is basically a collection of data or other material that is arranged in such a way so that the items are individually accessible and may be protected by  copyright and/or database right. For copyright protection to apply, the database must have originality in the selection or arrangement of the contents and for database right to apply, the database must be the result of substantial investment. Most of the databases except ones which are mechanically arranged satisfy both these requirements so that both copyright and database right apply.

Traditionally databases were protected through the mechanism of copyright law. Even though only the selection and arrangement of data was eligible to satisfy the originality requirement of copyright law, a loose interpretation of the originality concept by the courts enabled the database producers to avail some form of protection for their works. Through the decision in University of London Press v. University of Tutorial Press ² the English Court established that a work created by investing original labour was eligible for copyright protection no matter whether a substantial amount of creativity was involved. The Court did not insist on the prevalence of creative or intellectual input to determine originality in the work. In the United States the courts developed the ‘sweat of the brow’ doctrine to protect works which had low originality content.³ Database makers who invest a substantial amount of resources (i.e., “sweat”) creating or updating a database will receive copyright protection for the contents, even if the database exhibits no originality. Nordic countries and the Netherlands who were the notable exceptions provided alternative arrangements to protect catalogue makers and those who created products with little originality so that they were able to prevent unauthorized reproduction of the contents of catalogues. However the U.S. Supreme Court in Feist Publications v. Rural Telephone Service ⁴  overruled the “sweat of the brow” doctrine. The contents of databases which were merely compilations of facts or information were no longer within the purview of protection of copyright law because they did not reach the minimum level of creativity necessary to meet the originality requirement of copyright law.

There is no international norm on protection of non-original databases. Article 10(2) of the TRIPS Agreement dealing with copyright protection for databases came into force on January 1, 1995 ⁵ . Similarly, the WIPO Copyright Treaty (WCT) concluded in December 1996, with the aim of updating international copyright norms, came into force in March 2002.⁶  However both these international arrangements envisaged protection only for the selection and arrangement of data and not for the data itself. In 1988, the European Union began to consider a measure to standardize the level of legal protection available for databases so as to encourage investment in the information industry by creating certainty that the database would be protected from slavish copying by competitors. The result was the Directive on the Legal Protection of Databases ⁷. Under the EC Database Directive a database can be protected in two ways. First, the Directive provides that databases shall be protected under copyright law where the selection or arrangement of the contents constitutes the author’s own intellectual creation. This right provides protection to a database (not the underlying data) and is limited to databases containing a sufficient degree of creativity in the selection or arrangement of the data. The second right, however, provides for a sui generis right that prohibits the extraction or reutilization of any database in which there has been a substantial investment in obtaining, verification, or presentation of the data contents. Here there is no requirement for creativity or originality. Thus this second right gives databases in Europe the type of “sweat of the brow” protection that was explicitly rejected by the U.S. Supreme Court in Feist, lasting for fifteen years from the date of the database’s creation. A database which will benefit from the sui generis right provided by the EC Database Directive may include any type of information, such as text, sound, images, numbers, facts, or data, for which reason it is also referred to as the “Multimedia Directive.”⁸ To be protected, the contents of the database must be “individually accessible.”

Database right is in many ways very similar to copyright. For example, registration is not necessary to acquire database right - it is an automatic right like copyright and commences as soon as the material meant to be protected is reduced on to a recorded form. Database right can apply to both paper and electronic databases. Four main differences between database right and copyright exist under the EU directive. The first difference is that the term of protection for database right is much shorter when compared to copyright. Database right lasts only for 15 years from the making available of the database to the public. However a revised edition is entitled for a new term of protection. The second difference is that the activities that a right holder can control, and if undertaken without the right holder’s permission, is a bit different. Database right concerns control over the extraction and re-utilization of the contents of the database, while copyright law is concerned with the substantial reproduction and distribution of a work. The third difference is that the exceptions to the right, are quite narrower in the case of database protection, when compared to copyright law. In particular, fair dealing for the purposes of research or private study does not extend to research for a commercial purpose. The fourth difference is that the remedies under copyright law include both civil and criminal while in the case of database right it is confined to civil nature. It is pertinent to note that since many databases are a collection of copyright works, people compiling databases need to ensure that they have permission from the copyright owners for use of their material and people using databases need to be aware of the rights of copyright owners as well as database right owners.

The sui generis right permits EU database makers to prevent the “extraction” and “re-utilization” of all or a “substantial part” of the database, measured qualitatively or quantitatively. Extraction is aimed more at a user’s private use; re-utilization is directed more toward distribution, including by competing commercial organizations. Since extraction includes the permanent or temporary transfer to another medium, and on-screen display of a database often necessitates such a transfer, it is covered by the Directive. The Directive does not define what constitutes a “substantial part” of a database. However it does prevent users from circumventing the “substantially” requirement by making repeated and systematic extractions of insubstantial parts. The EC Directive envisages a very wide protection - for example simply searching a database electronically may involve the temporary copying of the database to another medium and thus may constitute a restricted act. Article 9 also spells down the exceptions to sui generis right.⁹ One of the most controversial aspects of the Directive is that the sui generis right granted under the Database Directive applies only to databases created by companies based in countries that are members of the European Union. The EC can extend the sui generis right to databases made in third countries, thereby creating a lever to force all other major database producing countries to pass similar legislation. The Directive also explicitly excludes subcontractors from the definition of “database maker.” This not only makes EC companies which subcontract for data entry keying to companies located in places within the definition of ‘database maker’ for purposes of the Directive, but also makes it more difficult for companies located outside the EC to claim EC residence by subcontracting to companies located in the EC.

The Directive also does not provide much guidance on what constitutes substantial investment, other than to indicate that compiling a few recordings on a music CD is not a substantial enough investment. Nevertheless, since the Directive’s purpose is to encourage the expansion of the European database industry, it is reasonable to assume that any investment above a token amount will suffice. The Directive also instructs Member States to harmonize the copyright protection available to databases in the EC. To be eligible for copyright protection, the selection or arrangement of the contents must be the result of the author’s own intellectual creation. This will mean that a level of creativity in the selection and arrangement will be needed for a database to obtain copyright protection.

In the UK the Copyright, Designs and Patents Act 1988 (CDPA) was amended by The Copyright and Rights in Databases Regulations 1997 (SI 1997/3032). In implementing the EC Directive, a definition of the term ‘database’ has been inserted into the CDPA¹⁰. Prior to 1 January 1998 it was possible to claim copyright protection for databases provided it could be established that sufficient skill, labour or experience have been applied to the production of the collection of data. Criminal and civil liability could then arise. Under the EC Database Directive, ‘database’ includes collections other than purely literary works and raises the question whether ‘database’ is intended to include an anthology of poems, a collection of circuit diagrams or a collection of digital representations of 3D items. The UK implementation of the Directive, however, has restricted ‘databases’ to collections which are literary works only. If the database right is infringed by the commission of a restricted act then the owner of the right may claim relief by damages, and/or an injunction preventing further restricted acts. Database rights can only be enforced through civil courts. This contrasts with copyright which can be enforced through criminal and civil sanctions. In the first case in the UK to be tried under the Copyright and Rights in Databases Regulations 1997 it was held that using database without the permission of the database maker amounted to infringement of the database right.¹¹ Thus database producers in UK are equipped with an effective mechanism to protect the unauthorized extraction and utilization of content, which are individually accessible.

In India there is no specific legislative mechanism to protect databases excluding the traditional copyright route. Tables and compilations including computer databases are included within the definition of a ‘literary work’ as stated in Section 2(o) of Indian Copyright Act, 1957. Indian courts too have recognised the protection of databases under the framework of copyright law and have adopted a loose interpretation of the originality concept, so as to protect even non-original databases. They have relied upon various English decisions to protect human effort and labour even in works with minimum amount of creativity. In Macmillan and another v. Suresh Chunder Deb¹² as early as the nineteenth century the Calcutta High Court relying on various English judgments concluded that copyright subsisted in a collection of poems selected from various English authors, even though the creativity involved in the work was found to be marginal. Laying down the law the court observed thus:

“In the case of works not original in the proper sense of the term, but composed of or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from any one else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But, as the law is concisely stated by Hall, V.C., in Hogg v. Scott, “the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, nearly to take away the result of another mans labour, or, in other words, his property”. I think it unnecessary to refer in detail to the cases; it is enough to say that this principle has been applied to maps, to road-books, to guide-books, to street directories, to dictionaries, to compilation of scientific and other subjects.¹³

In Macmillan and Company Limited v. K. and J. Cooper¹⁴ the Privy Council had given emphasis to human labour, skill and capital to determine originality in a copyright work. The Privy Council while determining a question on infringement stated thus:

“It is the product of the labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw material, if one may use the expression upon which the labour and skill and capital of the first have been expended. To secure copyright for this product it is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material.¹⁵”

Similarly the sweat of the brow principle enunciated by U.S. Courts has been recognised and relied upon by the Delhi High Court in Burlington Home Shopping Co. v. Rajnish Chibber.¹⁶ In this case the plaintiff was a mail order service company. In course of its business it developed a database of its customers with considerable effort. The defendant, a onetime employee of the plaintiff and owner of a competing firm had managed to use this data for his own benefit. The Court held that the plaintiffs were entitled to copyright in the addresses collected and compiled by it and the act of the defendant, which amounted to the copying of it as an infringement of the copyright.

Thus the Indian courts have set a very low standard of originality requirement and so databases with the least amount of creativity can get copyright protection in the country. On the strength of these decisions the interests of the database owners in the country seems to be protected to a certain extent, though with considerable limitations. But this is in no way comparable to the standards of protection afforded by the European Union or the United Kingdom. While the sui generis right offered by the EC and UK enables the database owners to prevent the unauthorised extraction and re-utilization of their databases, Indian copyright law can be invoked only when a substantial amount of the work is expressly proved to be copied. Copyright law will not afford protection to the extraction and utilization of data which can be individually accessed and utilized. From a commercial perspective it is this right that matters more to a database owner when compared to that of substantial copying afforded by copyright law. Thus the Indian database industry is certainly in a disadvantageous position when compared to their European Union compatriots, as far as protection of databases are concerned.

In the emerging digital era, it is only apt for countries like India to consider adequate standards for protecting databases. Copyright protection has serious limitations in the digital context as it is toothless to protect computer aided extraction and utilization of databases. It is the right to prevent unauthorised extraction and utilization that solely matters in a digital context rather than a substantial copy of the work. While people in favour of a sui generis right argue that these rights have the potential to bring in substantial investment into the database industry people against are more concerned with the social impact of such a right, that is, the potential of these rights to block access to information in the public domain. Other models like the one attempted by the United States based on the principles of Misappropriation¹⁷ can also be considered. However any such legislative attempt to enact a proper medium to protect databases must strive to strike an adequate balance between the competing interests involved.

Foot Note:

1. Directive 96/9/Ec Of The European Parliament And Of The Council of 11 March 1996 on the legal protection of databases states in Article 1 (2): For the purposes of this Directive, ‘database’ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. (3) Protection under this Directive shall not apply to computer programs used in the making or operation of databases accessible by electronic means. In UK, The Copyright and Rights in Databases Regulations 1997 states the Meaning of “database” as “In this Part “database” means a collection of independent works, data or other materials which - (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means. (2) For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.” U.S. Bill- H. R. 3261 Database and Collections of Information Misappropriation Act, 2003 defines in Section (5) Subject to subparagraph (B), the term ‘database’ means a collection of a large number of discrete items of information produced for the purpose of bringing such discrete items of information together in one place or through one source so that persons may access them. (B) Exclusions - The term database does not include any of the following: (i) A work of authorship, other than a compilation or a collective work. (ii) A collection of information that principally performs the function of addressing, routing, forwarding, transmitting, or storing digital online communications or receiving access to connections for digital communications, except that the fact that a collection of information includes or consists of online location designations shall not by itself be the basis for applying this clause. (iii) A collection of information gathered, organized, or maintained to perform the function of providing multi-channel audio or video programming. (iv) A collection of information gathered, organized, or maintained to register domain name registrant contact data maintained by a domain name registration authority, unless such registration authority takes appropriate steps to ensure the integrity and accuracy of such information and provides real-time, unrestricted, and fully searchable public access to the information contained in such collection of information. (C) Discrete Sections - The fact that a database is a subset of a database shall not preclude such subset from treatment as a database under this Act.

2. (1916) 2 Ch. D. 601. To the question as to whether a question paper satisfies the originality requirement envisaged by copyright law the English Court observed that the word ‘original’ does not mean that it should be the expression of original or inventive thought or creativity. The Copyright Act does not deal with originality in ideas but only with the expression of ideas and in case of a literary work the expression of thought in print or writing is sufficient. The Court made it clear that the work must not be copied from another work. In other words, it must originate form the author.

3. See Kingstone Publishers v. Jewell Publishers , 281 F 83 (CA2 1922).

4.  18 U.S.P.Q. 2d 1275 (1991). It was held that a company could copy the contents of a competitor’s telephone directory, as the telephone listings organized alphabetically did not have any amount of creativity to meet the originality requirement of copyright law.

5.  TRIPS, Article 10(2) states: “Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.”

6. The WCT contains in its Article 5 a provision on copyright protection of databases, which, under the title “Compilations of Data (Databases)” provides as follows: “Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation.” The Diplomatic Conference also adopted, by consensus, the following agreed statement: “The scope of protection for compilations of data (databases) under Article 5 of this Treaty, read with Article 2, is consistent with Article 2 of the Berne Convention and on a par with the relevant provisions of the TRIPS Agreement.” Article 2 of the WCT, to which the agreed statement refers, states, under the heading “Scope of Copyright Protection,” as follows: “Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”

7.  Adopted by the EU Parliament and Council on March 11, 1996 and implemented by the member States as national law on January 1, 1998. Hereinafter referred to as EC Database Directive.

8.  Electronic and print databases are covered. Electronic media specifically include CD-ROMs, CD-I, and online services. The extension to print databases is a significant expansion from the earlier drafts of the Directive, which only covered electronic databases.

9. In the cases of extraction for private purposes of the contents of a non electronic database, extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved and extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure.

10.  Supra n. I

11. British Horseracing Board Ltd., v. William - Hill Organisation Ltd., (2001) R.P.C.31. The British Horseracing Board (BHB), the governing body for the British racing industry and which has been maintaining a collection of racing information on computer at a substantial cost, successfully sued the bookies William Hill for infringement of the database right when William Hill published information on Hill’s web site which was listed on the BHB databases without BHB’s consent. The court in this case ruled that in taking information that had originally come from a BHB database and loading it onto its own computers for use on its web site, without the necessary permission, William Hill was infringing BHB’s database right.

12 . ILR 17 Cal. 951

13.  Ibid.

14 .    AIR 1924 Privy Council 75

15 .    Id. at p.

16 .    1995 PTC 7278

17.  See U.S. Bills - H.R. 3261 Database and Collections of Information Misappropriation Act, 2003 and H.R. 3872 Consumer Access to Information Act, 2004.

Mr. Speaker Sir, You Are Right (An Answer to 2006 (2) KLT 86 -- Journal)

K. Ramakumar, Advocate, High court

This is in humble response to the views expressed by a gold medalist in law, a brilliant lawyer, an able Advocate General, and an eminent Judge in the Article that appeared in 2006 (2) KLT Journal Page 86 captioned “Lok Sabha Speaker and the Supreme Court.

The seminal issue involved is summoning the Speaker. For what? To answer the question whether the Ethics Committee constituted by him acted right or wrong in disciplining deviant members who brought ridicule to the House and injured its image. The Speaker has to tell the Court that an In-House Committee committed no invalidity or irregularity in its decision making. The crucial question, then is, can the Courts demand the Speaker to defend such a decision? Plainly not. The answer is in Article 122 itself referred to by the former Judge but not relied on by him.
The issue is not one of disqualification as contended by the learned Retired Judge. Disqualification is a post-election event. The President alone decides such disqualification and not the House. See Article 102. The real question is one of morality, ethics and credibility and who else, than the House that can decide its members have eroded its image and polluted its purity. Are not similar expressions used ad naseum in contempt proceedings? Is it suggested that while a Court can zealously safeguard its status and stature the House cannot?

Can Courts substitute their views to that of the Ethics Committee? Can the Court tell the Speaker “Your Committee’s decisions are wrong, invalid or irregular?" Simply impossible. Significantly Article 122 specifically forbids precisely that.

Read it along with Article 121. They together evolve a Code of Conduct of mutual respect to each other. One cannot entrench upon areas ear-marked, not for it. For instance can the House adopt a motion that a particular Judge was biased or motivated in rendering a judgment.  Obviously not.

How then can one functionary under the Constitution ignore its mandate and commit trespass upon areas not reserved for it? Can the Supreme Court speak to the Speaker “You are wrong, take back all the expelled members”. Fortunately our Constitution has made it impermissible.

Speaker Somnath Chatterji was therefore perfectly right when he took the stand that the issue is beyond the powers of the Court. If power is conceded to the Court Article 105 will be rendered nugatory. See the well known judgment in the JMM case, (1998) 4 SCC 626 and the Search Light case. Free expression of opinion in the House will be hampered by fear of the Courts. Courts which are prone to use contempt powers at the drop of a hat. Courts decreeing to themselves the fluttering of National Flags on the cars of judges (See the Division Bench judgment of the Allahabad High Court) and courts, which determine the age of retirement of judicial officers in derogation of Article 309 of the Constitution. To crown it all the creation of a collegium not envisaged anywhere in our Constitution. Courts refused to interfere in Royappa in spite of grave allegations of malafides while they did it in Sankalchand and S.P. Gupta even in the absence of any allegations of mala fides at all. What is good for goose should have been good for gander too. Judicial Activism - Yes. Judicial aggression and encroachment - No.

High moral grounds have also ceased to be the courts’ cup of tea. Holy men in robes worshipped once by the people of this country had a halo around them, hazy now, thanks to Veerasamy, Ramaswamy, Sumith Mukerjee, Arun Madan and their ilk. See what the Apex Court said in Justice Banerjee’s case from Kolkotta (2005) 1 SCC 201.

“Again,  like  any  other  organ  of  the  State,  the judiciary is also manned by human beings - but the function of the judiciary is distinctly different from other organs of the State - in the sense its function  is divine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors fail people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. Because of the power he wields, a judge is being judged with more strictness than others. Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary must take utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the justice - delivery system resulting in the failure of public confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm outside”.

The Court added:

“With due respect to the learned Judge, Justice B.P. Banerjee, he has misused his divine judicial duty as liveries to accomplish his personal ends. He has betrayed the trust reposed in him by the people. To say the least, this is bad”.

Plotting for plots in Salt Lake is not solitary. It had happened in Faridabad, Bangalore and Bombay.

Can the Courts therefore continue to adopt a posture of “holier than thou”? While the judiciary appears to remain disabled or disinclined in stemming the rot from within, peoples’ representatives rose to the occasion, acted differently and had done well in reminding their erring colleagues - “No more cash for querries”.

Mr. Speaker, sir, you are therefore right. But please tell the courts too that you are.

Velappan : ‘Paradeigma’ of Paralegal Assistant

T.P. Kelu Nambiar, Sr. Advocate
 

Sri N.K.Velappan Elayidom passed away on the 4th day of April 2006. I saw him sitting in the house of his daughter at Perumbavoor, on the 18th day of March 2006, with meditative calm. He looked pleased as Punch to see me. When I shook hands with him, his hand felt cold and clammy. He was found wearing a nervous smile. He had been in and out of hospital for the past few weeks. At 70, his death feels premature, because, is it not said, life starts after 60. The time span of an individual is, of course, kept hidden.

I feel too sorrowful to write an obituary or a tribute to his work and life.

The Velappan diary is not smudged with any controversial foot-note.   Let me assemble my thoughts about him;  and say,  he did a good job of all that he did.

Without Sri.Velappan,  the Kerala High Court Advocates’  Clerks Association looks a lot poorer. He was the Association’s early bird, its founder President;  and he died as its President.  Under his leadership,  the Advocate-Clerks showed spirited togetherness and strength, because he was a uniter,  not a divider.

As a busy clerk,  Sri.Velappan had a rushed life.  Several cases of his Adhivaktas’  office, (M/s. Chandrasekharan & Chandrasekhara Menon), were riding on his 70-year-old shoulders. He did not have any stolen life.  Believe it or not, I have not seen a more competent para-legal assistant than Sri.Velappan,  I do not require any computer  compilation of ranking and honours for holding the view.  What remains unsaid is that he has proved his worth as an officer in lawyer’s chambers,  who could absorb its sighs and sounds. And this is far from the last word on him.  He concluded his career going out on top.

Sri.Velappan was the energy reservoir of the Advocate-Clerks Association. As one of the patrons of the Kerala High Court Advocates’ Clerks Association,   (Advocate Sri.K.P.Dandapani being the other  Patron),   I have a lot to be thankful to the Association headed by him. I have always had affectionate respect for him. He was a man of impressive pedigree. He possessed superb histrionic talents.  He had much interest in the performing arts.  One of his daughters is an accomplished Bharatha Natyam artist. If the face is the index of mind, Sri.Velappan will qualify as a gentleman. He lived a good life with good conscience. I shall ever remember his frank statement, about my mannerism while arguing in court: “Sir,  you always argue with your carpenter’s pencil”. Very recently,   the veteran Advocate-Clerk told me that   ‘advocacy’  today sounds like the wearied notes of an old song.

Advocates and Advocate-Clerks are on the same page. For advocates,  their clerks are brothers-in-law.  But Advocate-Clerks seem to have no boots on the High Court premises, though they make long strides. A judge’s death is condoled,  before a Full Court; a lawyer’s death is referenced before the Chief Bench. I have no discomfort over them.  But,   I have no comfort over the fact that an advocate-clerk’s death is ignored,  or  un-noticed,  though he is an integral part of the administration of justice.   “Even conservatism must move forward, or  lose its relevance”,  said T.S.Eliot. These are days when even Toilet Summit is held.

I should be thankful to Advocate Sri.Siby Mathew for providing space for this write-up,   in his esteemed Journal. Sri.Siby Mathew told me that this is  the first time  such an article about an Advocate-clerk is written by a lawyer and given for publication in the Kerala Law Times. Let this line and strain increase,  is my prayer;  and hope,  too.

Strengthen Judicial Standards, Maintain Independence of 
Judiciary on Latimer Model

(By Dr.Pauly Mathew Muricken, Advocate, High Court of Kerala; Research Guide,

National University of Advanced Legal Studies, Kochi)

 The Judicial Standards and Accountability Bill, 2012, already passed by the Lok Sabha on March 30, 2012 and now awaiting the nod of the Rajya Sabha, have of late kicked off a legal and public debate with the Judiciary represented through the Chief Justice of India openly expressing certain reservations about the Bill. It is noteworthy that Judiciary has not made any serious objection as such to the attempt of the Parliament to go in for legislation bringing the higher judiciary within the regulatory framework or to formulate judicial standards and code of conduct for their effective functioning and governance. It may be recalled that the Supreme Court itself, way back in 1997, when Justice J.S.Verma was the Chief Justice, had formulated a Charter in the form of a Restatement of the values of Judicial Life which was formally approved and adopted at the Chief Justices’ Conference held in 1999. The said Charter provisions though lacking statutory recognition still binds the Judges of the higher judiciary even today sans legislation operating in the arena.

The higher judiciary comprising of the Supreme Court and the High Courts armed with the power of judicial review is largely perceived by the people of India as an institution that protects their fundamental rights, assiduously guards the basic structure and features of the Indian Constitution and effectively applies brakes on the uncontrolled and arbitrary exercise of power by any public functionary. Constitutional provisions and specific statutes guarantee independence of the judiciary in several ways in order that it is able to perform worthily well its function of upholding the majesty of law and to act as the custodian of the Constitution. The constitutional provisions providing for security of tenure, guaranteed remuneration, immunity from legal proceedings in relation to discharge of official duties, and the complex procedure envisaged for removal of judges amply bring forth and constitute the primary elements of the constitutional scheme on  independence of the judiciary that enable judges to dispense justice without fear or favour. When two out of three organs of the State fail to live upto their expectations, it is the judiciary which is looked upon by the people as the island of hope, source of consolation and as the last place of resort where justice will be delivered despite an expensive and sometimes long wait. 

It is true that in the past there have been few instances of deviation from approved judicial standards of behavior from a small segment of the higher judiciary which has shaken people’s confidence in judiciary to a certain extent. But that by itself has not made the role of the judiciary irrelevant or cast any doubt on its ability to perform the assigned role. Some say that the concentration of power in the hands of the judiciary itself to decide whether one of its members should be proceeded against for violation of the code of conduct and approved standards of behavior is like allowing the judiciary to seek impunity in the name of independence. Critics also point to the court practices that at times create an impression of conflict of interests. As the matter now stands, there are serious differences of opinion among different stakeholders as to how judicial incapacity and misbehavior should be tackled and by whom. It is in this factual background that the implications of the standards of behavior and accountability mechanism envisaged in the Bill provisions requires to be assessed in the light of internationally approved principles and best practices underpinning the concept of independence of the judiciary.

 The new Bill seeks to lay down standards of behavior for the judges of the Supreme Court and the High Courts and to establish a mechanism for receiving and investigating complaints of misbehavior or incapacity of judges. The Bill is also intended to replace the Judges’(Inquiry) Act, 1968.  On a close analysis and understanding of the Bill provisions, one can find that all that the Bill aims at is to give statutory character to the 1999 charter already binding on the Judges and to further provide for any deviation or violation to be treated as judicial misconduct for which the Judge concerned will become personally answerable. The only departure contained in the Bill provisions is on a controversial clause which was originally incorporated in line with the recommendations of the Parliamentary Standing Committee on Law and Justice providing to the effect that “No judge shall make unwarranted comments against the conduct of any constitutional or statutory institution or officials at the time of hearing matters in open courts or during the course of hearing matters”. In the wake of widespread criticism that this clause is tantamount to gagging judges, the Government was initially constrained to drop this controversial clause from the Bill. However, the said clause is again attempted to be reintroduced in the Bill in some form, going by the statements of the present Union Law Minister.

  There is a criticism raised by the legal academia that unlike their western counterparts, Judges in India are in the habit of speaking much from the Bench during the course of hearings, or even at the admission stage. Politicians are also equally annoyed and disturbed by this trend as it often hurts them. They feel that judges should be silenced. But viewing this practice in the larger perspective, what is it wrong for a judge to speak from the Bench? Judicial service is not an ordinary government service and the Judges are not government employees as such. Judges hold the public office and their function is one of the essential functions of the State. In discharge of their functions and duties, they represent the State and act in public trust. 

   Judicial observations have become an integral part of judicial process and practice. It has positive as well as negative ramifications. The positive side of this trend is that Counsel gets an opportunity to know what transpires in the mind of the judge so that the counsel can make appropriate clarification as the occasion demands or to limit the reliefs claimed in the case. Thus, it stands to the advantage of the counsel and the litigants who are active participants in the system of administration of justice. That apart, Judges are not monks to remain only as silent spectators or to display only their inner wisdom, but they have a pro-active role to play in the process of administration of justice. The negative aspect of such a tendency as pointed out by critics is that Judges at times sprinkle their comments with harsh expressions which at times bring displeasure of the legal fraternity and the public. But this is not a justification for making them mum or for treating all observations made by them against public functionaries during the course of hearing as unwarranted and inappropriate. Such judicial observations made in the past have contained the aspirations of WE THE PEOPLE OF INDIA for whom Courts exist and to whom the source of judicial power can be attributed. Such observations at times have persuasive effect and far reaching consequences on the Government and public functionaries making them subject to the rule of law and keeping them within their limits. It has always paved the way for development of law and reformation of the society by its value addition, though at times it earned the wrath and displeasure of the Government who want the judiciary to act as per their dictates.  Whatever that be, law making agency cannot make a distinction between the comments made against constitutional or statutory body or comments made against ordinary litigants. Based on the principle of access to justice and equality of treatment among litigants, such classification is only or tends to be arbitrary and unreasonable lacking intelligible differentia having regard to the object sought to be achieved. 

   The bill, as it now stands, the main apprehension voiced by the judiciary is on the contentious provision which enables any individual to make a complaint against a Judge of the Supreme Court or of the High Court. No doubt there is a Scrutiny Committee to examine each complaint for its genuineness, but quite unfortunately, a wrong signal has been sent by the reduction of punishment for frivolous and vexatious complaints from rigorous imprisonment of upto 5 years and fine of Rs. 5 lacs as conceived in the original version of the Bill to simple imprisonment of 1 year and fine of Rs. 50,000/- as now envisaged and included in the Bill passed by the Lok Sabha. This would enable vexatious complainants and unscrupulous litigants to take undue advantage of the situation and to make false complaints against judges making it difficult for the judges to discharge their functions independently and without fear or favour. There can be occasions when such persons may also use this process to scandalize or intimidate the judges. This ultimately would affect the concept of independence of judiciary, which is recognized as the basic structure of the Constitution. (For independence of judiciary as the basic structure of the Constitution, see the pronouncements of the Supreme Court in S.P.Gupta v.Union of India (AIR 1982 SC149) and Shri Kumar Padma Prasad v.Union of India (JT 1992(2)SC247). This may ultimately paralyze the judicial system by placing unwarranted inroads into its functioning. 

  The Bill envisages a three-tired mechanism for enquiring into the complaints against judges of the higher judiciary. At the topmost tier, there is the Oversight Committee and at the middle level there is the Scrutiny Committee and at the lower level is the Investigation Committee. The Oversight Committee receives the complaint or materials on a reference made by the Parliament which is then referred to the Scrutiny Committee. Once the Scrutiny Committee finds a complaint acceptable on merits, it will then be referred to an Investigation Committee which is appointed by the Oversight Committee for the purpose of regular inquiry. The Oversight Committee, based on the findings of the Investigation Committee, will thereafter decide either to drop the case, or to issue a warning to the Judge or to advise him to voluntarily resign, or to recommend to the President his removal from office in accordance with the provisions of the Constitution.   

   As per the Bill provisions, the panel to scrutinize the complaints will be constituted in the Supreme Court and in every High Court, comprising a former Chief Justice and two sitting Judges. It is quite undesirable that sitting judges of the same High Court scrutinize complaints against their own colleagues. The Oversight Committee will consist of a retired Chief Justice of India as its Chairperson, a Judge of the Supreme Court, a Chief Justice of the High Court, the Attorney General of India, and an eminent person appointed by the President of India as its members. However, the Bill provisions are silent regarding the composition of the Investigation Committee and the qualifications of its members or with reference to the service conditions of the members of the Oversight Committee. This is a serious lacuna in the Bill which needs to be addressed and resolved.

The composition of National Judicial Oversight Committee does not by itself adequately provide for the independence of the Oversight Committee. This is primarily for two reasons. Firstly, the non-judicial member and the chairperson will be appointed by the President on the recommendation of the Central Government. This is not an objective and transparent process of selection of the members of the Oversight Committee. Secondly, the inclusion of Attorney General is quite inappropriate on grounds of conflict of interests. The Attorney General, being the first Law Officer of the Central Government, may have to appear before a Judge against whom a complaint has been made before the Oversight Committee of which he happens to be a member. 

  This situation warrants a different mode of approach and selection of members of the Oversight Committee. The sitting judge of the Supreme Court to be nominated as a member of the Oversight Committee may be selected by a collegium comprising of all puisne judges of the Supreme Court. The Chief Justice of the High Court to serve as a member may be selected by the collegium of all Chief Justices of the High Courts. The Chairperson and two non-judicial members of the Oversight Committee may be selected by a committee chaired by the Vice-President of India, with the Prime Minister, the Chief Justice of India and the Leader of Opposition of the Lok Sabha being the other members of the selection committee. Such a system of selection if envisaged would appear to be more impartial and transparent. The recommendations of the Oversight Committee should be binding on the Central Government. The 195th Report of the Law Commission of India on the Judges’(Inquiry) Bill, 2005 endorses this proposition.

    The legislative attempt made by the Judicial Standards and Accountability Bill, 2012 to define standards of behavior for judges violates the principle of independence of the judiciary on two grounds. Firstly, Parliament being the authority to recommend the removal of a member of the higher judiciary cannot also define standards of behavior for a judge. Secondly, Article 124(5) of the Constitution only empowers the Parliament to make a law to regulate the procedure for the presentation of an address to the President seeking the removal of a judge and the investigation and proof of misbehavior or incapacity of a judge. There is no provision in the Constitution under which Parliament can make a law to lay down standards of behavior for judges. The Constituent Assembly Debates clearly reveals that the consensus view among the members of the Constituent Assembly was for letting the judiciary evolve for itself a code of conduct rather than empowering Parliament to define it by statute. This being the position, the correct approach would be to make the National Judicial Oversight Committee a constitutional body by carrying out necessary constitutional amendment and the Oversight Committee be empowered to evolve codes of behavior for judges from time to time without dictates or interference from any other body or authority. This would also prove to be in conformity with the principle of independence of the judiciary.

   No doubt, a system for investigating allegations of incapacity or misbehavior of judges is absolutely necessary for an accountable judiciary.  As recently observed by the Apex Court in R.C.Chandel v. High Court of M.P. (2012 (3) KLT SN 142 (C.No. 145) (SC) =  (2012) 8 SCC 58, para 29 “…. a Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. The standard of conduct expected of a judge is much higher than an ordinary man. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every judge must discharge his judicial functions with integrity, impartiality and intellectual honesty”. However, there is equally the need to balance judicial accountability with the need for protecting independence of the judiciary. The international view as expressed in the Latimer House Principles of 2003 is that judicial oversight mechanisms must be supported by the principle of independence of the judiciary. This would require that responsibility for oversight must be performed by a body/institution predominantly comprising of members with the background in the judiciary.  

    The issue of judicial accountability and maintenance of judicial standards as well as the concept of independence of judiciary, both being of sentinel importance, it is imperative that the Government and the Judiciary sit together and iron out the differences for sustainable and harmonious implementation of the provisions of the new legislation. The need of the hour is to carry out improvements in the bill provisions for mutual satisfaction and contentment of the two pivotal organs of the State. Though it is in the wisdom of the Parliament to determine the structure and composition of the regulatory mechanism, the attempt should be to establish a control mechanism that would promote accountability of the individual members of the higher judiciary in the light of internationally recognized principles and best practices and without undermining the concept of independence of the judiciary. Such a regulatory body must be robust and above reproach and the process of selection to the body so objective and transparent so as to ensure the highest degree of respect and dignity for the institution. Equally important is that such a body must be granted a measure of autonomy necessary for its functioning.