Ayaskanta Parida
Amicus curiae is a legal Latin term that refers to someone, not a party to a case, who volunteers to provide details on a point of law or some other aspect of the case to help the court resolve a matter before it, literally translated as friend of the court.
The knowledge may constitute a legal opinion in the form of a brief statement, a testimony which has not been demanded by either of the parties, or a learned treatise on a subject which is applicable to the case. The court’s discretion lies in deciding whether to accept the facts.
An amicus’ position is often confused with that of an intervener who is personally involved in the result of the litigation. The role of an amicus is as described in Allen V. Sir Alfred Mc by Salmon LJ (as Lord Salmon then was). Alpine & Sons Ltd said:
I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal argument on his behalf.
An amicus curiae normally may not participate except by leave of the court, and most courts seldom permit persons to appear in such a capacity. The Supreme Court of the United States, however, permits federal, state, and local governments to submit their views in any case that concerns them without obtaining the consent of either the court or the parties. Private persons may appear as amicus curiae in the Supreme Court, either if both parties consent or if the court grants permission.
Appellant claims are typically limited to the factual record and arguments that come from the case under appeal in the lower court; lawyers concentrate on the evidence and arguments that are most favorable to their clients. Where a case may have wider ramifications, amicus curiae briefs are a way of resolving such issues, so that the potentially broad legal implications of court rulings do not depend exclusively on the parties directly involved in the case.
Amicus curiae, also can be helpful in providing an academic view of the situation. For example, if the law gives deference to a specific subject’s history of legislation, a historian can prefer to use their experience to assess the argument. The same can be agreed to do by an economist, statistician, or sociologist.
To grant or refuse permission to serve as amicus curiae, the court has wide discretion. In general, a sequence of such briefs will draw cases that are very contentious.
In India, the courts have repeatedly accepted the concept of allowing amicus curiae, usually involving the public interest, to affiliate themselves with proceedings. Through doing so, the court is motivated not only by the academic insight needed for the specific case, but also helps the court to have an understanding that will help them to do justice in its entirety.Individuals who are generally permitted to serve as amicus curiae by the courts in India are seasoned legal practitioners who express the impartial will and opinion of society.
Whenever the court determines that an underprivileged litigant is unable or unable to defend his case, and it is one where representation is necessary, it is requested to represent the cause by a willing and competent lawyer whose capacity is known to the court. The lawyer thus named serves the cause not as a public service but in the hope of remuneration.
Decisions have been focused on the competent assistance given by the amicus in many major decisions on prison reform, terrorism, the environment, mentally disabled litigants, media freedom, unlawful occupancy of government property and unauthorized buildings.
It was an appeal by Ajmal Kasab in the Supreme Court against the death sentence handed out to him where the concept of amicus curiae gained a lot of public traction. He submitted that the appellant did not get a fair trial and added that the denial of fair trial, for any reason, wittingly or unwittingly, would have the same result: it would render the trial a nullity and no conviction or sentence based on such a trial would be legal or enforceable. Adv. Ramachandran prefaced his submissions by gently reminding the court that, having taken the path of the rule of law, we must walk the full mile; we cannot stop halfway and fall short of the standards we have set for ourselves.
Their importance can be gauged by the fact that in a 2019 Supreme Court Decision(Anokhilal v. State of Madhya Pradesh), the bench held that where death sentence could be one of the alternative punishments, the courts must be completely vigilant and see that full opportunity at every stage is afforded to the accused, and in order to do that amicus curiae must be appointed in cases where death sentence can be handed out. They can meet the accused and then consider their standpoint.
Amicus Curiae can also be appointed in a case as counsel for the accused. In the case of Md. SukurAli v. State of Assam, Jt. Nariman relied on Articles 21 and 22 and also the American case of Powell v Alabama and then held that:
“the accused should not suffer merely because of the fault of counsel and rather he should be provided with Amicus Curiae to defend him in the case as, if the judgment is pronounced without a counsel to defend him that would be gross negligence of the rights which are provided by the Indian Constitution.”
Thus, in India, if a petition is issued from the jail or in any other criminal matter where the defendant is not represented, the Court shall nominate an Attorney as amicus curiae to defend and argue the case of the defendant. The Court may also designate an Advocate as amicus curiae in civil matters if it deems it necessary in the case of an unrepresented party; the Court may also appoint amicus curiae in the case of the general public in any case.
Also, in the international arena, inter-governmental bodies such as the World Trade Organization(WTO) have considered the position of amicus curiae. During the World Trade Organization’s Uruguay Round Negotiations, the question of authorizing the WTO to send amicus curiae to the dispute settlement mechanism was considered in the Informal Groups on institutional issues.
One delegation submitted an informal negotiation proposal in November 1993 to allow the panels to invite interested persons (other than parties to the dispute or third parties to the dispute) to submit their views in writing. Since there was overwhelming resistance to the plan, the proposal was not accepted into the World Trade Organization’s Dispute Resolution Understanding.
The European Commission (EC) submitted a proposal in March 2002 to amend the Dispute Resolution Understanding to allow for the admission and approval, on a case-to-case basis, of the amicus curiae briefs.
Hence, it can be inferred that the amicus curiae can be an essential component in the Judicial System. The selected individual can provide a viewpoint which possibly hasn’t been assessed and thus play a major role in the formulation of the judgment.