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ROLE OF LAWYERS AS AMICUS CURIAE

PROFESSIONAL ETHCIS AND PROFESSIONAL ACCOUNTING SYATEMS

MR. BAYOLA KIRAN POOSARLA

CHANDRIKA CHOUDHARY

ROLL NO.: 2013038

9TH SEMESTER

OCTOBER 2017

ACKNOWLEDGEMENT

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I would like to express my special thanks of gratitude to my teacher MR. BAYOLA
KIRAN, who gave me the golden opportunity to do this project on ROLE OF
LAWYERS AS AMICUS CURIAE, which also helped me in doing a lot of research
and I came to know about so many new things I am really thankful to them.

Secondly I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited frame. I want to convey a most sincere thanks
to my concerned faculty for helping me throughout the project without whose
exorbitant support this project would not have become a reality.

TABLE OF CONTENTS

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 TOPIC PAGE NO.

ABSTRACT 4-5

INTRODUCTION 6

AMICUS CURIAE-POSITION IN USA 7-8

ROLE OF AMICUS CURIAE TODAY 8-9

INDIAN LAW- POSITION ON AMICUS CURIAE 9-11

RECENT CASES 11-13

CONCLUSION 14-15

REFERENCES 16

ABSTRACT

Amicus curiae literally denotes friend of the court. In the fourteenth century and under

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Roman law, serving as a friend to the court was also its doctrinal purpose. In the past,
courts would appoint attorneys to submit non-binding written opinions. As neutral
advisors, the amicus job was both to educate the court on various aspects of the law and
to help it avoid error. The amicus curiaes only responsibility was to remain loyal to the
court and serve it exclusively.

The English court expanded the doctrine of amicus curiae in 1736 and the amicus
managed to serve as a friend of the court while simultaneously protecting his own
interests, marking the demise of the fourteenth century exclusivity requirement. The
amicus curiae doctrine made its first appearance in American jurisprudence in 1823. In
India the courts have time and again welcomed the idea of permitting amicus curiae to
associate themselves with the proceedings, generally involving public interest. By doing
so, the courts 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 aim of this research project is to make a comparative study of the concept of
Amicus Curie under the Indian Law, English Law and American Law. The main
important questions to be answered in this project are:

i. What is the meaning of Amicus curie?

ii. When is an Amicus curie appointed?
iii. What is the historical background of the concept of Amicus curie?
iv. What is the difference between the American, English and Indian legal
systems with respect to the practice regarding Amicus curie?

RESEARCH METHODOLGY

The nature of the research project is a doctrinal one. The relevant information and

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data necessary for its completion will be gathered from both primary as well as

secondary sources available in the books, journals, periodicals, newspapers, research

articles and websites.

LIMITATIONS

The limitations of this research project are manifold as Amicus Curie is a general
concept not specified in a particular law or a creation of a statute but a concept created
under Roman law and continues under various legal systems all over the world.
Secondly, the researcher is unable to find statutory provisions for this issues and all
the research has been conducted through case law and analysis and articles.

INTRODUCTION-

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Amicus curiae literally denotes friend of the court. 1 In the fourteenth century and
under Roman law, serving as a friend to the court was also its doctrinal purpose. In the
past, courts would appoint attorneys to submit non-binding written opinions. As
neutral advisors, the amicus job was both to educate the court on various aspects of
the law and to help it avoid error. The amicus curiaes only responsibility was to
remain loyal to the court and serve it exclusively.2

The English court expanded the doctrine of amicus curiae in 1736 and the amicus
managed to serve as a friend of the court while simultaneously protecting his own
interests, marking the demise of the fourteenth century exclusivity requirement.
The amicus curiae doctrine made its first appearance in American jurisprudence in
1823. In Green v. Biddle,3 the State of Kentucky served as amicus and helped the
Court avoid error by noting that the lawsuit before the Court was collusive.
The next major evolution of the American amicus curiae occurred when courts began
providing for the interests of private amicus. There are now two major categories of
amicus curiae: private and governmental amicus. Governmental amicus are afforded
all rights of a real party in interest; this is consonant with established legal doctrine. In
United States v. Michigan,4 however, the court also allowed private amicus to
advocate for a party position. This created a second category of amicus curiae in the
form of private amicus. In terms of serving as a friend to the court, private amicus are
generally less objective than governmental amicus: Government amicus endeavor for
the public interest while private parties often labour for themselves. While the actions
of government amicus are consistent with named parties, private amicus may
represent competing interests. The disparity between the limited rights afforded to
private amicus and the expansive rights afforded to government amicus has served as
the proverbial battleground for amicus curiae in America.

AMICUS CURIAE- POSITION IS USA-

1
P.C. Pant, Sanjiva Rows The Advocates Act 1961, 6th Edition, Allahabad Law Book Co., 1997, p.169.
2
Ibid p. 384
3
21 U.S. 8 Wheat 11(1823) https://supreme.justia.com/cases/federal/us/21/1/case.html,
4
https://www.justice.gov/enrd/us-v-michigan-1973,

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In USA, there is a different concept of amicus curie. It can be best explained by taking
a simple example. Say X is a person who is selling commodity A and Y is a person
selling commodity B. If there is a cause due to which X is affected by the business of
Y, but he cannot file an action as a named party because he fails to meet the
requirements set forth in Article III of the United States Constitution and in the
Federal Rules.5 What can be his recourse? Here come s the concept of amicus curie as
in the present case one possibility is to serve as amicus curiae and file an amicus brief
with the court.
It is to be seen that in USA, amicus briefs allow third parties to intervene without
satisfying the prerequisites of Article III or the Federal Rules.
The adversarial nature of the American legal system is at variance with third party
representation in litigation. This variance has transformed the traditional concept of
amicus curiae. The judiciarys good intentions, the removal of restrictions on third
party involvement has metamorphosed the amicus curiae doctrine into an adversarial
weapon.

Written by friends of the court, amicus curiae briefs have long served many useful
purposes in our judicial system. Traditionally, the amicus brief offered a court an
impartial observers viewpoint on the case. Today, these briefs sometimes provide a
court with insight on issues or arguments that the parties omitted in order to comply
with page limitations. In other instances, amicus briefs educate a court on matters of
public concern left unrepresented by the parties to the suit.

Despite, or perhaps as a result of, its widespread use, the role of the amicus brief has
become blurred in recent years. Instead of acting as an impartial advisor to the court,
modern day amicus often play the role of lobbyist, friend of a party, or formal
intervener. As such, briefs authored by these friends of the court have deviated from
the original purpose of the amicus brief, particularly when a briefs author appears to
be in the role of an actual party who seeks to benefit from the outcome of the case
before the court.
Not surprisingly, these powerful and persuasive friends have had a momentous impact
in crucial precedent-setting decisions. Quite often, the Supreme Court of the United

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Article III as requiring parties to show that (they) personally (have) suffered some actual or
threatened injury as a result of the putatively illegal conduct of the defendant.

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States has tailored a decision based upon the guidance of a persuasive amicus brief. In
some cases, a holding has been reached on grounds argued only in an amicus brief.

ROLE OF AMICUS CURIAE TODAY-

After Mapp, where the amicus brief played a pivotal role in the Courts decision, the
use of amicus briefs continued to increase. Before Mapp, one amicus brief was
generally filed in high profile cases; today, however, several briefs are typically filed
on behalf of both sides. In fact, in order to represent clients as zealously as possible,
appellate attorneys frequently seek the aid of amicus to counter the amicus briefs filed
on behalf of the opposing party. Consequently, amicus briefs have become less of an
additional advocacy tool and more of a necessity to represent a client effectively.

In addition, amicus briefs are used to affect whether certiorari is granted. In

determining whether to review a case on the merits, the Supreme Court considers the
importance of the case. As a result, groups commonly write amicus briefs both in
furtherance of and in opposition to the granting of a writ of certiorari.

This changing role of amicus briefs has increased the workload of appellate courts
significantly. Along with the increase in the number of filings, the amicus brief has
also shifted in function.
These briefs, written by friends of the court, still serve to assist and inform the
court, but more frequently, they are actually written by a friend of a party. In other
instances, amicus briefs represent an interest separate from either of the opposing

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parties, thereby becoming a quasi-third party to the litigation. 6 Although the amicus
brief has evolved in function, it still fulfils its original role as adviser to the court; but
the question remains whether this evolution leads to better, more informed decisions.

PROBLEM S WITH THE COURTS TREATMENT OF AMICUS CURIAE-

Amicus curiae have evolved from being friends of the court without bias to being
advocates and lobbyists with their own agendas. Notwithstanding the Sixth and
Seventh Circuit decisions, a question remains whether this new concept of amicus
curiae-litigating or otherwise-is acceptable in our society. As described above,
government amicus are consistent with established legal principles as they work to
further the public interest. Therefore, even as a litigating party, government amicus
are proper. Private party litigating amicus, however, are inappropriate, because they
are inconsistent with established legal doctrine: they do not further policy goals or a
philanthropic agenda.
Private parties may not serve as litigating amicus, because it conflicts with Article III
and the Federal Rules. Congress has used the Federal Rules to specify the instances in
which third parties may be represented, e.g., class actions, compulsory joinder, and
intervention.7 The case and controversy and standing requirement of Article III are
another impediment to private third party participation in litigation. It is, in part,
because of these obstacles that private parties are pursuing litigating amicus status.
Affording private amicus with the same rights as named parties would be a prolific
source of legal confusion for the bench, bar, and public.

INDIAN LAW: POSITION ON AMICUS CURIAE-

The concept of Amicus Curie was used in the countries like USA and United
Kingdom, for nearly two centuries. However, in India, the usage of Amicus Curie has
increased only in the past three decades. The role of amicus curie at the very

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Essence of standing is that no person is entitled to assail the constitutionality of an ordinance or statute except as
he himself is adversely affected by it. Sandoval v. Ryan, Colo.App., 535 P.2d 233, 247. Blacks Law Dictionary
1405-06 (6th ed. 1990).
7
https://www.justice.gov/sites/default/files/atr/legacy/2006/04/11/3977.pdf,

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beginning was only to assist the court in very extraordinary circumstances where the
court needs the assistance of a particular specialist. However, there is no specific
provision in the Advocates Act, 1961, which deals with the issue of the amicus curie.
This is a common law concept, which has been evolved by the Common Law courts
in England and has been applied in India also. Amicus curie was a concept, which was
popularized due to increase in the spate of public interest litigation started by Justice
Bhagwati in mid 1980s. This concept has been used a lot in environmental protection
cases like the Rural Entitlement Litigation Kendra v. State of Uttar Pradesh 8 and in the
whole M.C. Mehta v Union of India series of cases and Vellore Citizens Society case, 9
the concept of amicus curie has been used very widely. If we look at the next chapter
which deals with the study of a few recent case situations in which amicus curie were
appointed by the courts, one can see that in most of the situations, the court appoints
wither a senior advocate in the court, or the advocate general of that particular state or
the solicitor general of India or Attorney general of India as amicus curie. In a very
significant development, there has been a petition filed by a citizen of India requesting
for the quashing down of Section 377 of the Indian Penal Code, 1860 as invalid as it
is against the universal and natural principles of equality. Here the Delhi High Court
has asked for the appointment of Shri. Soli Sorabjee, Attorney General of India as
amicus curie, as he wanted to contribute to the settlement of this dispute. However,
the cons of such a situation are where, the person appointed as amicus curie might
support the state as against his role of being a friend of the court and no one else. The
pros of this situation is that as the person designated as amicus curie is a person who
is influential in the government, he can make the government understand the view
point of the other parties and try to make law in conformity with justice and present
day relevant. The researcher here also submits that the issue of whether the amicus
curie can be paid any costs for the expenses he/she has incurred for fighting the case
is also of some concern. However, this issue has been solved in the case settled by

8
1985 AIR 652, 1985 SCR (3) 169

9
Vellore Citizens Welfare Forum v. Union of India and others, AIR 1996 SC 2715, (Supreme Court of
India)

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Bombay High Court in the case of Hirjibhoy v. State10. where there was a big
discussion about whether a amicus curie can be paid costs. Here in this matter, the
single judge of Bombay High Court has fixed Rs. 250 as costs for the services of the
then Advocate General of Bombay, Mr. M.P. Amin. However, the Division bench of
Bombay High Court looked into the concept of amicus curie and they held that
costs are paid to lawyers who appear on behalf of the parties as of right, however,
they have come forward to give their assistance to the court on difficult questions of
law and practice voluntarily and therefore they should not be paid.

AMICUS CURIAE: STUDY OF RECENT CASES-

PARIVARTHAN CASE AND ROLE OF AMICUS CURIAE-

Interesting experiment that took place with the initiative of the civil society giving a boost
to the civil society initiative is the case of parivartan. Parivartan, is a NGO based in
Delhi, where they try to reform the society from various evils like corruption etc. a
few months back in the year 2002, the volunteers of Parivartan, have been sitting in
front of Laxmi Nagar and Mayur Vihar district offices of Delhi Vidyut Board since
22nd March from 11.00 am to 1.30 pm, which are the public dealing hours. During
these hours, a number of harassed consumers visit these offices to get their individual
problems resolved. It is during these visits that they are forced to pay bribes, when
despite repeated visits; their problems are not resolved. Parivartan volunteers request
every person entering these offices not to pay bribes when they go in to get their work
done. If their work is not being done, they should come out and tell Parivartan and
Parivartan will get their work done without payment of bribes. The experience has
been quite encouraging. Around 150 consumers have submitted their grievances. But
the achievements at psychological levels have been quite remarkable. There used to
be 10-15 middlemen (dalals) roaming outside the offices earlier. All of them have
simply vanished. There is also a tremendous psychological pressure on the staff
inside.
Those industries in Delhi, which are operating in non-conforming areas, are being
10
AIR 1953 Bom 228, (1953) 55 BOMLR 122, ILR 1953 Bom 748

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sealed for being relocated outside Delhi under the orders of Honble Supreme Court.
These industries were operating in non-conforming areas in violation of Delhi
Development Act. Hence, they should be relocated. But, they were working on the
basis of license issued by MCD, and various other permissions granted by other
government authorities like DVB. Hence, the basic question is, why were the licenses
and permissions granted in the first place and why were these industries allowed to
come up at all? This was all done by taking bribes. So, if these industries are being
relocated, it is very important that all the officials who granted these illegal licenses
and permissions should also be booked. Parivartan filed a PIL in Supreme Court in the
first week of February seeking fixing of responsibility and initiation of suitable action
against all such officials. The Supreme Court has directed that since this matter is
pending with them, and this issue needs lot of survey and research, the court
appointed a friend of the court or Amicus Curie. The court also said that if the
public wanted to give any information, Parivartan should bring it to the notice of the
Amicus Curie, who will, in turn, bring it before the Court. Parivartan will now take it
up with Amicus Curie.

KARNATAKA JUDGES SEX SCANDAL-

Another recent but important case, is the recent high-profile Mysore Judges sex
scandel. In this matter, a full Bench of the Karnataka High Court on January 22, 2003
appointed two amicus curie to assist it in the suo moto criminal contempt case
launched against 14 publications for publishing stories on the alleged Mysore resort
sex scandal involving judges and adjourned the hearing to February 6. The Bench
comprising Justice T S Thakur, Justice H L Dattu and Justice V G Sabhahit directed
the counsels for the respondents to file a compilation of reports from November 5 to
till date that appeared in their publications over the alleged incident in a weeks time.
It appointed senior advocates K Kasturi and Pramod Nair as amicus curie to assist the
court and also the state Advocate General A N Jayaram in perusing through the
voluminous documents concerning reports that have appeared.

SENTENCE REDUCED DUE TO AMICUS CURIAE-

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This case deals with the issue of a murder committed by a person against his lover. In
a brief overview of the facts, the accused, Shaik Subani stabbed his lover Prasanna
Lakshmi, an Intermediate student of JKC College at Guntur, in her classroom last year
causing a sensation. The Fourth Additional District Judge convicted him and
sentenced him to death. But the High Court did not confirm the death sentence as
required. Instead, acting on the appeal of Shaik Subani that he was not provided
defence and that several prosecution witnesses were not cross-examined, the High
Court remanded the case to the Metropolitan Sessions Judge (MSJ) asking him to
conduct the trial from the stage of cross-examination of prosecution witness number
12. The State, however, filed a special leave petition in the Supreme Court
challenging the order. The Supreme Court dismissed the petition and directed the MSJ
to complete the trial within six months.
The High court then appointed a amicus curie, Mr. Kannabiram, to assist the
Metropolitan Sessions Judge. Accordingly, the cross-examination was conducted from
PW 12 in the MSJ court here. The MSJ did not accept the plea of Mr. Kannabiram,
amicus curie, that the accused had committed the offence due to insanity. The
Metropolitan Sessions Judge, Mr. S. Ravikumar, held that he had conducted the trial
of Shaik Subani afresh on the direction of the High Court, convicted and awarded him
life imprisonment.

TANDOOR MURDER CASE-

The tandoor murder case, also known as the Naina Shahi murder case, where the
accused was charged with the offence of killing his wife Naina and burning her body
in a restaurant tandoor with the help of his associates in July 1995. The case has been
pending in the Sessions court of Delhi for the past 6 years. In the year 2002, the
Additional Sessions Judge (ASJ) G.P. Thareja lashed out at the prosecution and
defence in the sensational Naina Sahni murder case for failing to produce four
witnesses, and the slow progress of the case over the past four years. Thareja also
expressed his displeasure when accused Sushil Sharmas bail application was moved
by amicus curie K.K. Sud. The desperation in the voice of the judge could be
ascertained by the following statement, Due assistance as has been expected by the
court has neither been provided by the special public prosecutor nor by the amicus

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curie as friend of the court, Thareja said when the prosecution was unable to give
reasons for the absence of the witnesses. The four witnesses had apparently not turned
up during the previous hearing as well. The ASJ said that over the past four years only
44 of the 100 witnesses had been examined.

CONCLUSION-
The researcher feels that the above three chapters have dealt with the issue of amicus
curie very well. In the first chapter the researcher has tried to trace the historical
development of the concept of amicus curie. The role of the amicus curiae originated in
ancient Rome. Later, they participated in early English courts, where friends of the
court in non-governmental suits appeared in the form of the attorney general or other
counsel. In such settings, the amicus served to highlight relevant cases and statutes that
may have been unknown to the court. For example, in 1686, Sir George Treby, acting as
amicus curiae by leave of the court, informed the court of a statutes intended meaning.
As a Member of Parliament, Treby had personal knowledge of the statutes legislative
history and the court had the discretionary power to determine under what circumstances
and within what boundaries Treby, as an amicus, could appear. Eventually, such
discretion, allowed for the expansion of the role that amici played, as well as an
enlargement of the field of those who could serve as the courts friends.

Written by friends of the court, amicus curiae briefs have long served many useful
purposes in our judicial system. Traditionally, the amicus brief offered a court an
impartial observers viewpoint on the case. Today, these briefs sometimes provide a
court with insight on issues or arguments that the parties omitted in order to comply
with page limitations. In other instances, amicus briefs educate a court on matters of
public concern left unrepresented by the parties to the suit. It is the latter type of
situations which are the positive features of this system that have to be encouraged.
However, in USA, the concept of filing amicus briefs has now been spread into two
types: private amicus and public amicus. The private amicus are the amicus curie who
are representing the case on behalf of one of the private parties, the government
amicus are the ones who represent the government and are given due respect and

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weight age by the court.

In India if we look at the system of amicus curie, the concept of amicus curie was first
used sparingly in important situations like interpreting provisions of Succession Act or
CrPC etc. However, with the formation of the constitution, the role of amicus curie has
increased with writs being filed under Articles 226 and 32 of the Constitution of India.
The 1980s-90s saw a situation wherein there was a huge increase in the amount of
environmental litigation and public interest litigation, in which the role of amicus curie
was developed. If we look up at the recent bills and legislative enactments being tried to
be enacted by the Central government, it has also proposed a draft National Commission
for Children Bill in the year 2001, wherein the commission has been given powers to
appoint such committees, reporters, amicus curie, as may be necessary for the
enforcement of the rights and duties given by the Part 3 and Part 4 of the Constitution of
India. If there were mandatory provisions for the establishment of amicus curie in various
legislations like these then the future would see a more beneficial role for amicus curie in
India. Finally on a parting note, the researcher also wants to point out that in certain
cases, it happens that there are new lawyers who are free, then the court in order to give
them experience give them a chance to appear in a case as amicus curie, whenever it is
possible.

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REFERENCES-
1. Ernest Angell, The Amicus Curiae: American Development of English
Institutions, 16 Intl Comp. L.Q. 1017, 1017 (1967).
2. Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L.J.
694 (1963).
3. Michael K. Lowman, The Litigating Amicus Curiae: When Does The Party
Begin After the Friends Leave?, 41 Am. U. L. Rev. 1243, 1244 (1992).
4. P.C. Pant, Sanjiva Rows The Advocates Act 1961, 6th Edition, Allahabad Law
Book Co., 1997.
5. S. Gillers & N. Dorsen, Regulation of Lawyers: Problems of Law and Ethics, 2nd
Edition, Boston: Little, Brown & Co., 1989.

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