WHEN AMICUS CURIAE IS APPOINTED BY COURT ?
Amicus Curiae is a Latin word meaning “friend of the court”. An amicus curiae does not represent any party to the case but assists court by offering information, expertise or insight.
An advocate can be appointed as amicus curiae in a variety of circumstances. If a matter involves public importance an amicus curiae can be engaged in such matter. In Criminal Cases if a party in unrepresented, Court has to appoint amicus curiae. Even in civil cases, amicus curiae can be appointed if the Court thinks fit.
In Mohd Sukur Ali Vs State of Assam (2011) 4 SCC 729 the question before the Supreme Court was whether in a criminal case can be decided in absence of council of the accused or an amicus curiae should be appointed. The Supreme Court was of view that even if Counsel of an accused does not appear out of negligence or deliberately, Court should appoint amicus curiae. The supreme Court relied on US Supreme Court decision in Powell Vs Albama 287 US 45 (1932) wherein it has been held that right to be heard will be of little avail if it did not comprehend right to be heard through counsel. The Supreme Court also relied Article 21 of the Constitution and on Maneka Gandhi Vs Union of India ( AIR 1978 SC 597 ) wherein it has been held that procedure has to just, fair and reasonable. The Supreme Court held that it is not fair or just that a criminal case is decided in absence of a counsel. The Supreme Court opined that if a criminal case is decided in the absence of the counsel of the accused the same will be in violation of Article 21 of the Constitution. The Court noted that right to be defended has been part of jurisprudence for a long time. Even in ancient Rome there were great lawyers to defend the accused. Even in the Nuremberg Trials ,where Nazi war criminals were being tried for killing millions of people, had been provided counsel. The Supreme Court observed that Article 22 (1) should be given widest construction to effectuate the intention of founding fathers. The Supreme Court concluded that in case of absence of counsel of accused, the Court should appoint a counsel practicing in criminal side as amicus curiae.
In Mukesh and Another Vs State (2016 ) 14 SCC 416 amicus curiae appointed by the Supreme Court had expressed some reservations regarding some communications by Petitioners. The Supreme Court expressed faith in objective assistance on the part of amicus curiae. The Supreme Court observed that Amicus Curiae assists with regard to the case not with regard to any particular petitioner.
In Anokhilal Vs State of Madhya Pradesh (2019) 20 SCC 196 the amicus curiae was called upon to defend the case on the same day he was appointed. The amicus curiae was not having even sufficient time to go through even basic documents. The Supreme directed that in all cases where there were possibilities of death sentence or life sentence, an advocate having minimum of ten years of experience has to be appointed as amicus curiae. In matters dealing with confirmation of death sentence by High Court, senior advocates should be considered for appointment as amicus curiae. When an amicus curiae is appointed in a matter, reasonable time should be given to him to prepare the matter. A minimum of seven days time will be considered appropriate and reasonable.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.