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Friend of the Court- Amicus Curiae

Written by: Ishita Sehgal - A final year student of the 5 year B.B.A.LL.B. programme at Symbiosis Law School, Pune
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Amicus curiae[1] or amicus curić (plural amici curiae) is a legal Latin phrase, literally translated as “friend of the court”, that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief, testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision whether to admit the information lies with the discretion of the court.

The role of an amicus is often confused with that of an intervener who has a direct interest in the outcome of the lawsuit. The role of an amicus is as stated by Salmon LJ (as Lord Salmon then was) in Allen V. Sir Alfred Mc. Alpine & Sons Ltd[2] where he 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.”

The situation most often noted in the press is when an advocacy group files a brief in a case before an appellate court to which it is not a litigant. Appellant cases are normally limited to the factual record and arguments coming from the lower court case under appeal; attorneys focus on the facts and arguments most favorable to their clients. Where a case may have broader implications, amicus curiae briefs are a way to introduce those concerns, so that the possibly broad legal effects of court decisions will not depend solely on the parties directly involved n the case.

In prominent cases world over, amici curiae are generally organizations with sizable legal budgets. Non-profit legal advocacy organization such as the American Civil Liberties Union, the Electronic Frontier Foundation or the American Center for Law and Justice frequently submit such briefs to advocate for or against a particular legal change or interpretation. If a decision could affect an entire industry, companies other than the litigants may wish to have their concerns heard. In the United States, federal courts often hear cases involving the constitutionality of state laws. In this case, other states may file briefs as amici curiae when their laws are likely to be affected.

Amici curiae that do not file briefs often present an academic perspective on the case. For example, if the law gives deference to a history of legislation of a certain topic, a historian may choose to evaluate the claim using their expertise. An economist, statistician, or sociologist may choose to do the same.
The court has broad discretion to grant or to deny permission to act as amicus curiae. Generally, cases that are very controversial will attract a number of such briefs.

In India, the courts have time and again welcomed the idea of permitting amicus curiae to associate themselves with proceedings, generally involving public interest. By doing so, the court is guided not only by the academic perspective required for the particular case, but also enables the court to have an understanding which would allow them to do justice in its entirety.

The person who is usually allowed by the courts, in India, to act as amicus curiae are people who represent the unbiased will and opinion of the society.
In innumerable cases in India, the courts have allowed, or, on its own motion, have asked various people to act as amicus curiae to the proceedings. A very fine example of this is the famous, or rather the infamous BMW Case which has yet again been in news recently due to the fact that both the defense and the prosecution lawyers have been suspended by the Delhi High Court on charge of driving the witnesses to turn hostile. In the said case, Advocate Arvind Nigam who was appointed as the amicus curiae by the Delhi High Court has played a crucial part in securing justice.

The importance of amicus curiae can be well seen considering the facts of the above-mentioned case, in which both the prosecution and the defense have gone beyond ethical and professional practices to murder justice.

The role played by amicus curiae, Advocate Arvind Nigam in the present case can be well appreciated considering the fact that the Delhi High Court has recommended his name for the post of Senior Advocate.

Even in the international sphere, the role of amicus curiae has been well under consideration by inter-governmental bodies like the World Trade Organization (WTO). During the Uruguay Round Negotiations of the World Trade Organization, the question of providing for the possibility of amicus curiae submission in the dispute settlement system was of the WTO was considered in the Informal Groups on institutional issues. In November 1993, one delegation put forth an informal negotiating proposal to the effect that the panels may invite interested persons (other than parties or third parties to the dispute) to present their views in writing. As there was overwhelming opposition to the proposal, the proposal was not incorporated in the Dispute Settlement Understanding of the World Trade Organization.

In March 2002, the European Commission (EC) had submitted a proposal for the amendment of the Dispute Settlement Understanding for providing for admission and acceptance of amicus curiae briefs on a case-to-case basis. India is not in favor of the said proposal.

In India, thus, if a petition is received from the jail or in any other criminal matter if the accused is unrepresented, then, an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters also, the Court can appoint an Advocate as amicus curiae if it thinks it is necessary in case of an unrepresented party; the Court can also appoint amicus curiae in any matter of general public importance or in which the interest of the public at large is involved.

[2] [1968] 2 QB 229 at p. 266 F-G

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