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A friend and lawyer

As in the Kasab case,the amicus curiae embodies the ideal of impartiality

Written by Mukul Mudgal |
September 5, 2012 2:43:58 am

The recent judgment on Ajmal Kasab has brought to light a wholesome but unsung aspect of cases in the Supreme Court and the high courts — the practice of appointing an amicus curiae. In simple language,“amicus curiae” means “friend of the court”. Whenever the court finds that an indigent litigant is unable or unwilling to represent his case,and it is one where representation is essential,a willing and capable lawyer,whose ability is known to the court,is requested to represent the cause. The lawyer so appointed represents the cause not in the expectation of remuneration but as public service. In several major judgments on prison reform,terrorism,environment,mentally deficient litigants,freedom of the media,unauthorised occupation of government premises and unauthorised constructions,decisions have been based on the able assistance provided by the amicus. In fact,it is considered a great honour professionally to be appointed amicus curiae,as it is a tacit recognition by the court of the lawyer’s ability and integrity.

In many high-profile PILs,the courts have appointed an amicus curiae,not only to assist them in formulating a viewpoint but also to make inquiries and reports. This has led to the public perception that the amicus is a “neutral” lawyer,a kind of “third voice”. This is the “modern” amicus curiae. There is another kind of amicus curiae,appointed in cases that are not PILs,where important questions of law are involved and both parties are represented but the court still wants a senior lawyer to assist it. However,the “traditional” amicus curiae is one who is asked to represent the accused in a criminal appeal,either when he sends his appeal to court through jail or when he does not engage his own lawyer to defend him in an appeal by the state. Such an amicus is nothing but a defence lawyer,although as a court-appointed lawyer,greater standards of objectivity and fairness are expected of him.

The Supreme Court and the high courts maintain panels of lawyers who are assigned amicus work in criminal appeals. For many young lawyers,it is a matter of prestige to be empanelled. There will,of course,always be the possibility of lawyers clamouring to be appointed as amicus in high profile cases because of the publicity that can be generated. Perhaps because of its international significance,in the Kasab case,the Supreme Court decided not to make an appointment from its regular amicus panel. Instead,it asked a senior counsel to represent him.

Significantly,most lawyers would forgo paid briefs to appear as amicus curiae. Indeed,this is the level of commitment that the courts expect,and,in most cases,get from the amicus. It is also customary for the courts to acknowledge the contribution made by the amicus in judgments.

An amicus is extremely essential in cases where the personal liberty of the accused is involved. These cases can be divided broadly into two categories. The first category includes cases where the accused is too poor to appoint a lawyer to defend him,particularly in the trial courts. The Supreme Court has mandated that legal aid,that is,a lawyer representing a poor accused,is a must in criminal cases. But legal aid authorities are hampered by the lack of funds to pay such lawyers. Given that payment for legal aid is negligible and the accused is in jail,the quality of representation suffers. Yet the provision of legal aid is a constitutional guarantee,the failure to do so could vitiate the trial. It is essential that the legal aid lawyer is paid the same fees as the lawyer representing the prosecution,that is,the government lawyer. This would ensure that the constitutional guarantee is not illusory.

Cases in the second category are those where the accused declines to represent himself in court or is incapable of doing so. However,the fairness of the Indian legal system is demonstrated by the fact that even those accused in cases of terrorism — such as Kasab,who sent a jail petition and did not have a lawyer,and members of the LTTE,who refused to represent themselves in court — were provided capable counsel. The legal fraternity should be proud of the outstanding standards set by the prosecution lawyer,Gopal Subramaniam,who charged a token amount of Re 1 in the 26/11 case,and by Raju Ramachandran,who took no fee for appearing as amicus curiae in the Supreme Court,even though both invested much time and effort in the case. The Kasab case illustrates a glorious tradition of impartiality inherent in the Indian judicial system. Having received considerable international media coverage,because some of the victims were foreign nationals,the case will also help enhance India’s image in the global forum.

The writer is a former chief justice of the Punjab and Haryana High Court,

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