A friend and lawyer

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.

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