Justice In The Age Of Copy-And-Paste

Raman Swamy

D. K. Shivakumar has never been the Finance Minister of India.   Nor has he ever been the Home Minister of the country.   But documents filed by the Enforcement Directorate in the Supreme Court of India on Friday described him as just that - a powerful politician who has held high office at the Centre and is therefore very influential and is therefore someone who is “flight risk” and also capable of “intimidating witnesses” and who, therefore, should be kept in jail without bail.

Normally, such a brazen distortion of the truth would have been shocking.  But in the prevailing climate in the country today, nothing is shocking anymore.  Society has become immune to outrage.  Even the most appalling words and deeds are met with a shrug - these things happen, let us not overreact. 

So, what happened to Shivakumar only caused a brief flutter and then everybody has moved on.  The ED was only trying to do its job of keeping him in lock-up for as long as possible by exaggerating his potential for mischief if he is granted bail. 

That is why the ED petition said: “The nature of the offence and brazenness and impunity with which the high office of the Finance Minister of the Country was abused by the accused (DK Shivakumar) for personal gains, disentitles him from seeking bail".

And further: “The respondent (Shivakumar) has held high office of Finance Minister and Home Minister of the country.  With his means, position and standing there is every likelihood that he would employ every means to frustrate the investigations against him. Furthermore, his mere presence at large would intimidate the witnesses.”

Fortunately for Shivakumar, his lawyers took the trouble of actually reading the ED petition closely.   Nowadays, nobody has either the time or the inclination to read voluminous documents line by line, word by word. 

Lawyers deal with multiple cases every day and the related paperwork runs into thousands of pages.   It is unfair to expect them to read everything – even if their client’s life and liberty is at stake. 

Judges, after all, are inundated by reams and reams of paperwork - consisting of written submissions, lengthy petitions and long-winded appeals.  It is unreasonable and even inhuman to expect them to pore through all the material that is dumped on them. 

Moreover, judges have to write judgments.  Sometimes, dozens of judgments have to be written within a very short time-span.  

For instance, in the last two weeks, many complex cases had to be decided within a tight deadline because the Chief Justice was retiring and highly sensitive and emotive matters like Ayodhya, Sabarimala, Rafael, and a dozen other earth-shaking judgments had to be written (or dictated) with nerve-wracking speed.  

Every individual verdict is history-changing. Each requires super-human efforts to get done in time.  It calls for application of the judicial mind in the most unbiased and dispassionate manner.  It requires logic, reasoning and enormous knowledge, memory power and total concentration. 

The unkindest cut of all is when the public criticizes the judgment – without realizing just how pressure judges work under.  It is easy for couch potato critics to point out flaws in the logic and cast aspersions on integrity. 

Judges are human after all.  Nobody can churn out ten 1000-page judgments on ten extremely complex subjects within ten days without resorting to a few time-honoured shortcuts – like quoting earlier court rulings verbatim and like quoting large portions of the petitions filed by advocates for the prosecution and the defence.   

That’s how courts work and have always worked.  There is nothing wrong in instructing the secretarial staff to retype the marked paragraphs from other documents and earlier judgments.   In the age of computers, it has become a bit easier - the bulk of material can be “copied and pasted”.   

The same applies to advocates.  When petitions are drafted, nobody dictates original sentences and paragraphs from start to finish.   Junior lawyers are simply told to refer to earlier petitions of a similar nature and to edit it suitably - meaning, change the names, dates, and other specifics appropriately.

This is exactly what the ED team of lawyers did.   While drafting the petition to contest Shivakumar’s bail, they ‘copied and pasted’ whole paragraphs from the recent and similar petition in the Chidambaram case. 

Unfortunately for the investigating agency, the lawyers representing Shivakumar - Mukul Rohatgi and Abhishek Manu Singhvi – were alert enough to spot the gross errors. They told the Bench that the petition refers to DK Shivakumar as a former Finance Minister and Home Minister of the country.  

Much to the embarrassment of the ED legal team, Singhvi read out the relevant portions of the petition.  Singhvi even joked that his client wishes he had held such high positions but he was only an MLA from Karnataka and ex-minister of irrigation at the state level.

Justice Rohinton Nariman and Justice Ravindra Bhat were appalled. They frowned on the shabby and careless cut-and-paste nature of the ED document.  They called the whole fiasco a "tragic comedy". 

They were of course even more annoyed when it was pointed out that that the ED petition relied on Section 45 of the Prevention of Money Laundering Act which had been struck down the Supreme Court as unconstitutional. 

Solicitor General Tushar Mehta had to face the wrath of the judges.  Justice Nariman said:  "This is not the way people of the country should be treated, Mr. Mehta. You should not blindly copy and paste”. 

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Nov 20, 2019

Raman Swamy

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