Court Name – Supreme Court of India

Date of Judgment- 06 October 1993

Citation – AIR 1994 SC 868

Bench Name- Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand, S.P. Bharucha

FACTS OF THE CASE

This case deals with the interpretation of the word “consultation”. The Supreme Court of India dealt with this in the case of Union of India v. Sakalchand Seth and defined the scope of the word “consultation”. The court held that for an effective consultation, all the constitutional functionaries must have full and identical facts to be able to take decisions. The court empowered the president to be able to differ from the Chief Justice of India (CJI) and make a different decision. The judgment was that the word “consultation” does not necessarily mean “concurrence”. The effect of this judgment was that judiciary gave the executive an upper hand in appointing judges to insure the independence of judiciary. This court decision was reaffirmed in in the case of S.P. Gupta v. Union of India, which emphasised the independence of judiciary in India. These two judgments were bound to have an adverse impact on the impartiality and independence of Judiciary that is often the last hope of the citizens in this democratic nation of India. The effect of these decisions was that the appointment of judges will be the duty of the executive sphere of government. This resulted in political influence and favouritism in the appointment process of the judiciary. The entire system of justice delivery system was vitiated with these judgments.

The case of Supreme Court Advocates-on-Record Association and another v Union of India was filed as for such as a writ in the apex court for filling up the vacancies in the higher judiciary. This writ petition brought into review the controversial judgment of S.P. Gupta v. Union of India.

ISSUE

To determine the scope of the word “consultation” as in Article 124(2) of Constitution of India.

ARGUMENTS BY BOTH SIDES

PETITIONERS

In terms of Article 50 of the Constitution, the executive must be separate from the functioning of judiciary as much as possible. Therefore, such upper hand in appointment procedure vested in the executive is a clear violation of Article 50. The interference of executive in judiciary appointment must be minimised and CJI recommendation shall not be ignored. This power of defiance with the President has made the CJI a passive body instead of being an active participant in the appointment procedure. This passive and uninvolved status of CJI has proved to be counter-productive to the independence of judiciary. The basic feature of independence of judiciary is strangulated in the clutches of this executive superiority and this will result in erosion of a free and fair administration of justice. Therefore, to save the basic feature of independence of judiciary the court through its decision must construe the word “consultation” as equivalent to “concurrence”.

RESPONDENTS

In terms of Articles 124 & 214 of the Constitution, the president being the executive head of the nation, he is given power by the Constitution to appoint judges in Supreme Court and High Court based on the advice of the Cabinet Ministers. The CJI is a mere consulter in the process, the executive has a greater authority to act. The executive differing from the views of CJI is no impairment of Independence of Judiciary. The Constitution itself has granted greater autonomy to the President in the appointing process. The only role of CJI is that he has to make the President aware of the facts unknown to him regarding the considered candidate. The CJI’s role ends at this stage and then it is upon the President to finally appoint whoever he deems fit to hold the office.

The respondents submit that the independence of judiciary is not violated. The power to appoint the respective judges has been given by the Constitution to the President and during appointment the judge owes his faith & allegiance to the constitution and not to the appointing authority. The tenure of the office of these judges are fixed by the Constitution and no branch either Parliament or Executive has the competence to remove the judge from his office except in case of impeachment. The perks, allowances and salary of these judges are fixed by the Constitution and the Parliament cannot even by a unanimous bill reduce the quantum of such salary, perks & allowances. The conduct of a judge of SC or HC can never be discussed in a session of Parliament due to the privileges granted by the Constitution. Both higher judicial courts are Courts of Record, they have the power to punish the ones who disrespect their decision. Both the higher judicial courts are given the power to decide the constitutionality of actions of the governments of the state as well as union government.

Therefore, by virtue of these Constitutional provisions the Parliament or Executive can neither impair Independence of Judiciary which is basic structure of Constitution nor can they make an amendment in these constitutional provisions since they constitute to be components of Independence of Judiciary.

JUDGMENT

The 9-judge bench, the judgment was delivered with 7 to 2 majority which overruled its earlier decision in S.P. Gupta v. Union of India case and held that in issues regarding the appointment of judges in higher judiciary the opinion of CJI must be given primacy in order to minimize the executive influence in the judicial functions. The majority judgment was delivered by Justice Verma on behalf of Ray, Anand, Dayal and Bharucjajj. while Kuldeep Singh and S.R. Pandian delivered separate but concurring opinion and Ahmadi & Punchhijj. gave the minority opinion.

The court overruling its decision of S.P. Gupta v. Union of India case and held that the largest importance must be given to the recommendation of the CJI formed after taking into consideration the opinion of 2 senior most judges of the Supreme Court. Therefore, this judgment saving the spirit of article 50 of the Constitution minimized the executive influence in judicial appointments. Further, the judgment thereby reduced the political influence and personal favouritism from the appointment procedure.

The court ruled that the appointment shall be made by giving primacy to the opinion of CJI and the executive branch of the government shall only play the role of checks and balances on the judges’ exercise of power. Thus, through this judgment the court corrected the mistakes committed in the past by reducing executive influence in the appointment process and the elimination of the political influence, biasness, and favouritism. The court also expanded the scope of the word “consultation” by construing it in equivalent terms with “concurrence”.  

The minority opinion by Ahmadi & Punchhi JJ was that if as per majority’s view the primacy is to be given to the CJI then as a result of this upper hand the role of other constitutional functionaries discussed in the relevant provision of appointment procedure would become minimal and close to negligible. This erosion of power will result in an injury irreversible to the basic facet of Constitution as of the separation of power. In their opinion if this would be the case then there is way too much levy on the part of the judiciary and this inequality in the panel would often result in biasness, conflict and finally to chaos.

The majority along with delivering this landmark judgment also provided guidelines which must be followed in future in the procedure of appointment of judges in higher judiciary. The majority bench provided that in case there is a need of appointment of judge of apex court the initiation of proposal must be from CJI and in matters of High Court through CJ of the respective High Court. The same way must be adopted for the transfer however, transfer of CJ of HC must be on the initiation of CJI. Reiterating the ratio of the case the court held that no appointment shall be made unless it is in conformity with the opinion of CJI. For the appointment of CJI the senior most judge of the apex court must be appointed as the next CJI.

The court gave guidelines as to that the CJI’s opinion must be given primacy but he must consult with his two senior-most colleagues; all the constitutional functionaries involved in the appointment process must participate harmoniously; and transfer of Judges cannot be challenged in the courts.

EFFECT OF THE JUDGEMENT

The decision of this case is a very important and sound decision in the sense that the majority overruled its earlier decision which gave the power of final word to the government. The majority now gave up a much more liberal and flexible interpretation of the word “Consultation” which earlier meant an opinion with no binding value. This position was changed by the judgment as now “Consultation” was meant as “Concurrence” and therefore granted it binding value. By the virtue of this decision the government cannot ignore the opinion and recommendation of the Chief Justice of India thereby reducing executive influence, political biasness, favouritism and influence. The decision upheld the validity of Article 50 which demanded the state to minimize the executive influence from the judicial works. The majority bench shifting its stance on the matter considered that in matters of selection of the best suitable candidate for the office the CJI has the most extensive and thorough knowledge and that should be respected. The decision sought to strengthen the foundational features and basic structure of the constitution. The court has further to balance the powers of the panel had recommended that the process should be treated as one with mutual participation by taking into consideration the opinion of each and every consultee and giving the greatest weight to the CJI. In this way the powers of all the member participants would be balanced and there would be no misuse of authority. The law laid down in this decision is one of great importance and therefore must be cherished. This decision minimized the political influence that the judiciary was suffering since independence. It also checked the government’s practice to appoint a judge bypassing the opinion of CJI.

CASE COMMENT

The overall effect of the decision was great as in history quite a many times government to influence a decision played with the appointments as they were playing a game of Chess. The decision finally stored the power of appointment in the hands of CJI to minimize and control the executive influence in judicial appointments. Therefore, due to this decision to a great extent the political influence, biasness and favouritism was reduced in judicial matters which boosted the foundational and basic structure of constitution. However, this system is non-transparent since it does not involve any other branch of government. Favouritisms can still occur as there is no public knowledge of how the CJI will make its decisions. Taking in regard his opinion there is surely a need to rethink the matter and to come up with a stringent solution.

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The intensification of artificial intelligence will radically transform the original way of law by redefining how legal work will be in the future. It is commonly accepted that routine work such as factory and office work are the most vulnerable to Artificial Intelligence (AI). AI is “the use of computer systems to perform tasks that are normally done by humans and require some intelligence decision making”.[1] AI will bring in huge change in the market for legal services. The legal sector has been slow to embrace digital transformation. Even today the best lawyers do most of their work by hand and use old methods. In the office and in the courtroom, lawyers make use of paperwork more than the computer. This is about to change as artificial intelligence is set to transform the legal industry. This article aims to bring an understanding of how artificial intelligence will affect the legal industry and challenges that it will have in the legal field.

INNOVATION IN LEGAL FRATERNITY

Law firms are constantly looking for ways to innovate while they remain efficient with their work to save time. Certainly, this does not apply to all employees at a law firm, but firms are transitioning to a pure data-oriented model. Law firms could save time if they make use of technology in solving their problems using advanced searching for resources. Artificial intelligence will have the greatest impact in the administrative work of lawyers or decrease the amount of work done by the admin clerk in the office or at the court.[2] This will, in turn, restructure business models and finances within law firms. Although this technology can eliminate many office tasks, there is a substantial amount of work that needs to be accomplished through a lawyer, so after the technology process, the lawyer will still have to go through the work. Those which involve the sole task of searching documents or other databases for information and coding that information are most at risk of losing their employment. While there will be job losses, there will also be jobs will be created, including management and development of AI computers.[3] Lawyers can never be able to have the knowledge to deal with the recent technology and they will still play a role of final say in whatever that AI computer will generate. In most cases, lawyers will be freed only from doing routine tasks. Most lawyers’ work will require the human touch. In the legal field, AI will just be a tool to help lawyers to do their work better, faster, and less expensively, rather than to take over the work of lawyers.

CHALLENGES OF ARTIFICIAL INTELLIGENCE IN LEGAL FRATERNITY

Legal interpretation requires a technical skill. Lawyers need to consult with clients and build up the client relationship to understand their clients and build up the trust in them. Computers cannot do this in the same way humans can. The answers to legal problems are not always easy to understand. It is very rare that legal issues can be solved by simply looking up a provision in the law. Most of the law is built on precedent, where every case has someone arguing the exact opposite of how the case was decided. This means that everything needs to be put into context and AI computers are unlikely to handle this.[4] Most of the clients will not talk to an AI computer, they will prefer a direct communication with their lawyer. This personal relationship that cannot be replaced by a computer. A human can look at the circumstances, the body language, and other intangibles, along with teasing out the relevant details so that you get not only the answer but help with understanding it, so that you can accept it and implement it. It is highly unlikely that AI ever develops to the point of overcoming all four of these key points, at least in our lifetimes.[5]

Lawyering requires human-human interaction, creativity, language processing at the highest level, deep understanding of how society works, and a sort of experience that can only be done by humans. Therefore, human lawyers, at least for the next ten years or so, will be irreplaceable. This means most lawyer jobs should be safe for now in their jobs. If the pace of AI adoption changes significantly and comes faster than anticipated, then the potential for technology disruption in the legal industry can be much larger. All of this tells us that while AI is a game-changer in many ways, it will most likely transform the work done by lawyers rather than eliminate that work done by lawyers. The use of AI computers will drive down the cost of legal services by making sure that certain key legal needs that are straightforward, will be much more in reach every day for workers. Stepping back, we may well need all the AI-legal assistance we can get to improve the work done by the lawyers.

CONCLUSION

One thing is certain, there will be winners and losers among lawyers who do and do not uptake AI. This article has provided a great look of how AI can benefit law firms, but without doubt, there are a multitude of outside risks. AI should continue to stay with law firms, but only under the likelihood that it aligns well with our all legal system worldwide. To a large extent, AI has a rippling effect on our job market and society. Replacing a lot of these middle to back office tasks means less jobs for students coming out of law school. We will also notice a lot of people questioning ethical responsibility of AI among law firms in society. Ultimately, AI’s impact at law firms is a work in progress. AI will continue to be present at law firms, but all these technological advancements will be required to evolve over time with respect to each legal system jurisdiction across the globe. The existing technology may be limited for now, but the possibilities are intriguing, and the availability, quality, and price will all soon come together in products that are just too useful to in-house legal departments to resist. The value of having AI search and predict problems before they occur, combined with the luxury of providing in-house lawyers with more time to think and advise, has every sign of changing the game for the procurement and delivery of legal services. The impact of artificial intelligence to the legal industry is yet to be seen fully.

[1] English Oxford Dictionary

[2] Benjamin “How Artificial Intelligence Will Affect the Practice of Law” University of Toronto Law Journal, vol. 68. January 2018. pp. 106–124. EBSCOhost.

[3] Drew “Ethical Implications of Electronic Communication and Storage of Client Information” Computer & Internet Lawyer, vol. 33. August 2016. pp. 14–18. EBSCOhost.

[4] Betterteam, “Attorney Job Description.” 21 March 2018. https://www.betterteam.com/attorney-job-description. [Accessed 07-10-2020].

[5] Sanzogni “Artificial Intelligence and Knowledge Management: Questioning the Tactic Dimension” Prometheus. vol. 35. March 2017. pp. 37-56. EBSCOhost. 

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Since the outbreak of the deadly covid-19 virus, several countries around the world have been pushing all efforts to develop a vaccine that will end the spread of this virus. However, certain intellectual property laws may lead to conflict regarding the availability of the vaccines developed for global use. International organisations such as the World Trade Organization (WTO) play a crucial role in the promotion of numerous agreements that affect public health and ensure equal distribution of health products around the world. These agreements include the Trade-Related Aspects of Intellectual Property Rights (TRIPS), which requires all the WTO members to adopt minimum standards when it comes to protecting and enforcing intellectual property rights relating to public health matters. TRIPS is the most comprehensive multilateral agreement on intellectual property that incorporates the Paris Convention; Berne Convention; Rome Convention; and the Treaty on IP in Respect of Integrated Circuits. There have been issues in the past with the TRIPS as far its potential of reducing access to global vaccines. However, at the Doha Conference, it was declared that TRIPS must not prevent any country in taking measure to protect its health system.[1] Article 31 of TRIPS provides a guidance and ensures intellectual property rights will not be a barrier in the protection of public health by governing the issuing of compulsory licensing for vaccines.[2] Article 25 of the Universal Declaration of Human Rights further emphasis that health should not be taken as a privilege but a human right for everyone.[3] In this article, I will evaluate the effects of TRIPS on the access of vaccines worldwide. Furthermore, I will suggest approaches that international organisations may adopt in ensuring equal access to future vaccines by the world population.

TRIPS AGREEMENTS

The development of vaccines has not suffered a major blow due to the Intellectual Property Rights, the know-how of the manufacturing processes that are involved in the production of the vaccines is the one that has caused a decline in the availability of vaccines worldwide. Companies and organisations that are consistently involved in the producing of vaccines are not optimising the investment returns when they have to be open about their research and developments.[4] They argue that intellectual property laws will result in creation of innovative research and development of vaccines. The Wealth Health Organisation (WHO) investigation into the vaccine industry illustrates that a majority of countries do not consider intellectual property aspects to be a barrier in vaccine research and development. Even now there has been no clear indication that TRIPS will have an effect in the innovation stimulating of vaccines due to lesser return of investment in research and developments of vaccines. In fact, this situation can be radically changed by the TRIPS agreements through the compulsory licences introduced by TRIPS. Such changes must be managed in a manner that will lead to developing frameworks for licensing and technology transfer agreements between organisations and companies producing vaccines, to promoting innovative vaccine development in developing countries and monitoring the possibilities of free trade agreements that will give greater effect to TRIPS.[5] The success of such initiatives relies on the role of international organisations in ensuring equitable access to vaccines across the world.

ROLE OF INTERNATIONAL ORGANISATION

International collaboration on improving public health is fundamentally in building effective global health systems. Towards ensuring this, the World Health Organization (WHO), the World Intellectual Property Organization, (WIPO) and the World Trade Organization (WTO) must collaborate together in their activities, including other international partners as well, to support global challenges to improve health systems around the world.[6] They must help countries to develop the capacity to deal with challenges that they face in the public health sector. This must be done by setting up best policies, ensuring global share of information and monitoring the effects of TRIPS as a key campaign in which international organisations must lead to ensure the global availability of vaccines. They must ensure the availability of technologies used for public health research; they must avoid TRIPS-plus and free trade agreements that will limit access to health products, and they must improve the understanding and management of Intellectual Property Rights.[7] They must set minimum standards in improving the quality of regulations that deal with health production in order to improve the quality of products produced. Support must be given to those countries that have better resources to produce vaccines so they can continue with their effective research and developments. They must ensure that vaccines are shared globally and made affordable to all the countries. They must monitor the effect that TRIPS have on the innovation market of vaccines.

 CONCLUSION

Lack of resources makes it impossible for countries to have equitable access to health facilities and vaccines. In times of crisis, as now with covid-19, these countries have low trading power, and this affects their future as well in having access to vaccines. WHO must ensure that these countries’ medical needs are met by the global communities. In this time of covid-19 pandemic, the WHO has made a global call for countries to share resources to combat the deadly virus.[8] Furthermore, WHO has done incredible good by ensuring that health practitioners from resourced countries like Cuba were deployed around the globe to minimise the impact of covid-19. If steps to share resources are not currently being implemented during such times of covid-19, it is hard to imagine that a future vaccine will be equitably distributed among the world population. TRIPS agreement places a positive obligation to provide necessary medical care and protect the public health of their citizens. International organisations protecting health rights must therefore develop a more conclusive approach to ensure equal access to medicines, encouraging universal guidelines and global cooperation mechanisms. Instead of using the interdependence of nations as a bargaining tool, states should recognise a larger cause and work towards the common goal of ensuring availability of vaccines globally. This pandemic of covid-19 could be a great opportunity to create a more cooperative global health system among countries and prevent unnecessary loss of life in poorer countries in the future by using the TRIPS agreement as the tool for that drive. Finding the right balance between the interests of creators, users and the public is difficult. Balancing the interests is not a purely economic calculation, it is an inherently political exercise which has important social implications. Health issues should be treated as basic human right not a privilege for those who can afford. 

REFERENCES

§  Doha Declaration on the TRIPS Agreement and Public Health. (2003), Paragraph 6, [online]. Available at: https://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm

§  TRIPS Agreement, Article 31, [online]. Available at: https://www.wto.org/english/docs_e/legal_e/27-trips.pdf.

§  Universal Declaration of Human Rights, Article 25, [online]. Available at: https://www.un.org/en/universal-declaration-human-rights/

§  Health Affairs 25, no. 4 (2006): 1061–1069; 10.1377/hlthaff.25.4.1061

§  Commission on Intellectual Property Rights, Innovation, and Public Health, “WHO Workshop on Intellectual Property Rights and Vaccines in Developing Countries” (Report on a WHO meeting, 19–20 April 2004), http://www.who.int/intellectualproperty/events/vaccines.

§  Boston Consulting Group, World Bank, and WHO, “Draft Study Report: Global Vaccine Supply: the Changing Role of Suppliers” (Study commissioned for GAVI, 2005).

§  J. Milstien and M. Kaddar, “Managing the Effect of TRIPS on Availability of Priority Vaccines,” Bulletin of the World Health Organization 84, no. 5 (2006): 360–365.

§  WHO Report. (2020), A Co-ordinated Global Research Roadmap: 2019 Novel Coronavirus, [online]. Available at: https://www.who.int/blueprint/priority-diseases/key-action/Coronavirus_Roadmap_V9.pdf

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