Amicus curiae

friend of the court

• Merriam Webster
One (such as a professional person or organization) that is not a party
to a particular litigation but is permitted by the court to advise it in
respect to some matter of law that directly affects the case in question.

It if for the honor of a court of justice to avoid error.

Lord Salmon was appointed as Amicus Curiae in Allen V. Sir Alfred Mc.
Alpine & Sons Ltd [1968] 2 QB 229, where he stated:
“the role of an amicus curiae is 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.”
The common law reasons listed to require assistance of amicus
curiae is three fold :

• Firstly, The Court in itself cannot assume itself to be a repository of all

the knowledge across diverse fields. Therefore, the domain experts’
assistance is required in terms of the question of fact and law that is
contested in a proceeding.
• Secondly, The “bystander” theory which traces its root to English Bar
history to impede on irrational judicial decision making and ensuring
justice is rendered effectively.
• Thirdly, The facet of “protecting the honour of the court” so that
errors could be avoided was the determining criteria for seeking
assistance of amicus lawyers.
India
• The spirit was enshrined in the preamble and from it the
enforceability was ensured through the Fundamental Rights and the
DPSP, which had the purpose of ensuring social welfare and justice
regardless of social-economical-political considerations.
• The enabling provision for appointment of amicus curiae is under
Chapter V of the Supreme Court of India Handbook on Practice and
Procedure and Office Procedure6 . This chapter is titled powers,
duties and functions of the registrar, and the provision states that an
amicus curiae might be appointed to appear and argue the case in-
person, and give opinion by way of office report to provide necessary
assistance to the Court for proper disposal of the case.
• An advocate appointed as Amicus Curiae by the court or from the
panel of advocates at the cost of the state shall be entitled to fee at
the rate of 6000/- at the admission hearing stage and Rs. 10000/- at
the final disposal stage or the regular hearing stage as fixed by the
chief justice, or as may be ordered by the court, wherefore a
certificate in the form no. 10 shall be issued.
• The concept of amicus curiae is a rather ambiguous one, owing to the
absence of rules governing their appointment, appearance and
purpose of the institution in many jurisdictions

• Whether an amicus is a friend of the court of a friend to the court.10

A friend of the court assists by providing information so that the court
will not fall into error. He does not seek to influence the final
outcome. A friend to the court attempts to persuade the court to
adopt a particular point of view whether or not he has a direct
interest in the outcome.
Mukesh v. State (NCT of Delhi) (2016) 14
SCC 416
• the Supreme Court answered the question of the role and
responsibility of amicus curiae in a case. They stated that:
the duty of the amicus curiae is to assist the court with regard to the
case and not with regard to any particular petitioner. Amicus curiae
appointed by the court is meant to have the perceptions from all
spectrums. Clarifying further, they stated that when the court appoints
an amicus curiae, even when the counsel are engaged by the parties, it
does not mean that the counsel are not able to assist.
The court appoints amicus curiae depending upon multiple factors like
regard being had to the gravity of the matter.
 Instances where Amicus Curiae was appointed

1. NON APPEARNCE OF COUNSEL OF EITHER PARTY

In the case of Md. Sukur ali v. State of Assam, for some reason the counsel for the accused did not appear before the
court of law, and so one important question that lay before the court was whether they could appoint an amicus
curiae for the purpose of defending the accused.

Thus focus was put on the Article 21 and Article 22(1) of the Constitution of India.

Article 21- Protection of life and personal liberty No person shall be deprived of his life or personal liberty except
according to procedure established by law.

Article 22 (1) - No person who is arrested shall be detained in custody without being informed, as soon as may be, of
the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of
his choice.

Relying upon the two articles of the constitution of India and the judgment in the case of Powell v Alabama, Mr.
Nariman 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.
Hence an Amicus Curiae was appointed by the court who was a lawyer practicing on the criminal side.
2. CASES DEALING WITH OFFENCES WHICH ARE GRAVE IN NATURE

In the case of Ali Ibrahim v state of Kerala, the case related to some unknown
persons who defrauded the plaintiff to the tune of 63 lakhs of rupees, all the
transactions took place via Email and banking transactions, after which it was
decided that since this particular case is of grave nature it should be sent to the
CBI for further investigation and an Amicus Curiae was appointed, whereby the
amicus curiae provided various important aspects of the case and as to how the
investigation should be carried forward with respect to the resources and
expertise to use in the investigation of the matter, also it suggested that the case
should not be given to the National Investigation Agency as is provided under
the National Investigation Agency act, 2008 that only the cases which have
national ramifications such as terrorism shall be investigated by the NIA.
All of which was accepted by the court.
3. Cases of great public importance

In the case of Manoj Narula v Union of India and ors. a point of great public
importance was brought up before the court and the court appointed Amicus Curiae
to assist the court. Broadly the point was about the legality of persons with criminal
background or having committed criminal offences appointed as the ministers in the
central and state governments.

On the recommendations of who a notice was sent to the Union Government to file
the affidavit within four weeks of the service of notice.

Similarly in the case of Public Union for civil liberties v. state of T.N. and ors. wherein
Kapil Sibal was appointed as the Amicus Curiae, the case related to the gravity of the
problem of Bonded labor and steps to be taken to implement the Bonded Labor
System (Abolition) Act 1976. All the states were required to organize a survey and the
affidavit of the same should be submitted to the Amicus Curiae. The amicus curiae was
required to submit brief written statements and all the states were required to comply
with the written statements. Â
• CASES WHERE IMPORTANT QUESTION OF LAW IS RAISED BEFORE THE
COURT
In the case of State of Meghalaya v. All Dimasa Students Union, Dima-
Hasao District Committee MANU/SC/0877/2019,
the court dealt with an important question regarding measures to be
taken to check and combat the unregulated coal mining in the tribal
state of Meghalaya. For the purpose of assisting the court to decide the
matter, a senior counsel was appointed as amicus curiae. He refuted
the claims of both the parties in the case and drew the attention of the
court to certain data and reports to help decide the matter. The
suggestions laid down by him were relied upon by the coram.
• CASES WHERE THE COURT CALLS FOR SUGGESTIONS REGARDING A FACT OR
LAW
• In the case of K N Thankappan v. The Tribunal for Local Self Government
Institutions29, the court requested appointment of an advocate as amicus
curiae when it found some of the precedents cited by both the learned
counsel seemingly conflicts. The court placed on record its deep appreciation
of the admirable assistance of the amicus curiae.
• Board of Control for Cricket vs. Cricket Association of Bihar 2017(1)SCALE665 ,
the court appointed an amicus curiae to seek suggestions with regard to
members who shall form part of a committee of administrators.
• In the case of Amicus Curiae v. Prashant Bhushan(2010) 7 SCC 592, the
dominus litis in the case was the appellant as amicus curiae. The court
concluded, “merely because information regarding contemptuous statements
is furnished to the Court by Amicus Curiae, the proceeding cannot lose its
nature or character as a suo motu proceeding.”
Anokhilal v. State of Madhya Pradesh, 2019
SCC OnLine SC 1637
The Court was hearing a case where the Amicus Curiae was called upon to defend the accused at the stage of framing of
charges on the very day he was appointed. The Court was, hence, certain of the fact that the Amicus Curiae did not have
sufficient time to go through even the basic documents, nor the advantage of any discussion or interaction with the
accused, and time to reflect over the matter. Thus, even before the Amicus Curiae could come to grips of the matter, the
charges were framed. Not only this, but the trial itself was concluded within a fortnight thereafter and the accused was
awarded death sentence in the offence relating to murder of a 9-year-old girl.
The Court, hence, said that though expeditious disposal is undoubtedly required in criminal matters and that would
naturally be part of guarantee of fair trial, however, in the pursuit for expeditious disposal, the cause of justice must
never be allowed to suffer or be sacrificed.
“What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and
ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of
justice.”
It was hence, held that the Trial Court on its own, ought to have adjourned the matter for some time so that the Amicus
Curiae could have had the advantage of sufficient time to prepare the matter. The approach adopted by the Trial Court
may have expedited the conduct of trial, but did not further the cause of justice. In the process, the assistance that the
appellant was entitled to in the form of legal aid, could not be real and meaningful.
“the entire trial was completed in less than one month with the assistance of the prosecution as well as the
defense, but, such expeditious disposal definitely left glaring gaps.”
the 3-judge bench of UU Lalit, Indu Malhotra and Krishna Murari, JJ has laid down the
below mentioned norms to ensure 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:
• In cases where there is a possibility of life sentence or death sentence,the lawyers
that should be appointed should have a minimum of 10 years practice at the Bar.
• The matters if under appeal at the High Court concerning confirmation of death
sentence, Senior Advocates of the Court must first be considered to be appointed as
Amicus Curiae to represent the party.
• Whenever any counsel is appointed as Amicus Curiae, some reasonable time may be
provided to enable the counsel to prepare the matter. There cannot be any hard and
fast rule on that behalf. However, a minimum of seven days’ time may normally be
considered to be appropriate and adequate.
• Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused
must normally be granted to have meetings and discussion with the concerned
accused.
• APPOINTMENT OF AMICUS CURIAE IN EXCEPTIONAL CASES (TO DEAL
WITH A SPECIFIC MATTER)
• In the case of Holicow Pictures (Pvt.) Ltd. v. Prem Chandra Mishra (2007)
14 SCC 281,
the court laid down a significant point in relation to the purpose of
appointment of amicus curiae in a certain case. The court stated the
position that ‘it is true that in certain cases even though the court comes to
the conclusion that the writ petition was not in public interest, yet if it
finds that there is scope for dealing with the matter, this can be done by
keeping the writ petitioner out of picture and appointing an amicus curiae.
This can only be done in exceptional cases and not in a routine manner.’
1) To represent either of the parties in a case when appointed for that purpose
2) To present before the court any insight, knowledge or piece of information
with regard to the question of law or fact before the court
3) To assist the court or give legal suggestions when an important/significant
point of law is in question before the court
4) To represent the interests of the society in PIL cases
5) To assist the court to decide a matter when the nature of the offence
committed is grave (this might include a case where wither of the party is
vulnerable)
6) To give suggestions to the court regarding a particular point of fact or law
7) To fulfill the role for which it has been appointed in a specific matter