AMICUS Curie

The word Amicus Curiae literally means a friend of the court.

As per the definition in Merriam Webster amicus Curiae is defined as - One (such as a
professional person or organization) that is not a party to a particular litigation but that is
permitted by the court to advise it in respect to some matter of law that directly affects the case in
question.

A member of the bar or other stander by, who informs the Court when doubtful or mistaken of
any fact or decided case.

Amicus curiae refers to a person who volunteers to help the court in deciding some matters
however it is the discretion of the court whether to accept it or not, the information provided by
the amicus curiae could be in the form of brief, testimony which has not been asked by any
member of the case, or a learned treatise on the matter before the court.

Conventional wisdom holds that the brief presented by the Amicus Curiae provide new
information to the court which they aren’t exposed to via litigants and helps to decide the matter,
one important point to be noted is that Amicus Curiae is always the person either volunteering or
appointed by the court who does not have any interest in the outcome of the case or the rule of
law the case would establish.

However in certain cases the court appoints the amicus curiae, where there is no one to
represent one of the parties to the case or where the question in the case refers to greater public
good.

What Is Amicus Brief

It’s a legal document filed by a person who does not have any interest in the outcome of the case
or files it for greater public good for example an NGO in an appellate court.

Salmon J. - 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.

Procedure To Appoint The Amicus Curiae

An advocate appointed as Amicus Curiae by the court or from the panel of advocates at the cost
of the state shall be entitled to fee at the rate of 6000/- at the admission hearing stage and Rs.
10000/- at the final disposal stage or the regular hearing stage as fixed by the chief justice, or as
may be ordered by the court, wherefore a certificate in the form no. 10 shall be issued.

Role of Amicus Curiae

1. Acting as a counsel / an advocate may be appointed as Amicus Curiae
In the case of Md. Sukur ali v. State of Assam, for some reason the counsel for the accused
did not appear before the court of law, and so one important question that lay before the court
was whether they could appoint an amicus curiae for the purpose of defending the accused.

Thus focus was put on the Article 21 and Article 22(1) of the Constitution of India.

Article 21- Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law.

Article 22 (1) - No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to
be defended by, a legal practitioner of his choice.

Relying upon the two articles of the constitution of India and the judgment in the case of Powell v
Alabama, Mr. Nariman held that the accused should not suffer merely because of the fault of
counsel and rather he should be provided with Amicus Curiae to defend him in the case as, if the
judgment is pronounced without a counsel to defend him that would be gross negligence of the
rights which are provided by the Indian Constitution.

Hence an Amicus Curiae was appointed by the court who was a lawyer practicing on the criminal
side.

2. Providing assistance in deciding of a case

In the case of Ali Ibrahim v state of Kerala, the case related to some unknown persons who
defrauded the plaintiff to the tune of 63 lakhs of rupees, all the transactions took place via Email
and banking transactions, after which it was decided that since this particular case is of grave
nature it should be sent to the CBI for further investigation and an Amicus Curiae was appointed,
whereby the amicus curiae provided various important aspects of the case and as to how the
investigation should be carried forward with respect to the resources and expertise to use in the
investigation of the matter, also it suggested that the case should not be given to the National
Investigation Agency as is provided under the National Investigation Agency act, 2008 that only
the cases which have national ramifications such as terrorism shall be investigated by the NIA.
All of which was accepted by the court.

3. Cases of great public importance

In the case of Manoj Narula v Union of India and ors. a point of great public importance was
brought up before the court and the court appointed Amicus Curiae to assist the court. Broadly
the point was about the legality of persons with criminal background or having committed criminal
offences appointed as the ministers in the central and state governments.

On the recommendations of who a notice was sent to the Union Government to file the affidavit
within four weeks of the service of notice.

Similarly in the case of Public Union for civil liberties v. state of T.N. and ors. wherein Kapil
Sibal was appointed as the Amicus Curiae, the case related to the gravity of the problem of
Bonded labor and steps to be taken to implement the Bonded Labor System (Abolition) Act 1976.
All the states were required to organize a survey and the affidavit of the same should be
submitted to the Amicus Curiae. The amicus curiae was required to submit brief written
statements and all the states were required to comply with the written statements.
AOR

An advocate is a person accredited with a legal knowledge to appear or plead

on behalf of the client in various litigation process before the court of law. He
can plead in the court once he is enrolled with the Bar Council.

Advocate on Record
 Following the pyramidal structure of the court system in India,
Supreme Court being the highest court of appeal and court of last
resort in the country have to deal with entirely every subject
evolved before them. So, it is supportive that these matters should
be filed by an experienced and learned person.
 Hence the system of ADVOCATE ON RECORD (AOR) was introduced
by the Supreme Court in framing Rule 2, Rule 4, and Rule 6 of
Supreme Court Rules 1966.
 Advocates on Record can be considered as a designation to practice
in Supreme Court. The designation is based on experience and
knowledge of an advocate.

Qualifications/Procedure to become AOR

 AOR is the one who qualified the exam conducted by the Supreme
Court and who has been enrolled with the bar for at least five years
and worked with an AOR of not less than five years of standing.
 In the Supreme Court, only the Advocate on Record can file the case
on behalf of the party. All the procedural aspects need to be
completed by AOR with an assistance of a registered clerk. It is the
AOR’s name which appears on cause list, notice from the court are
sent on AOR name.

Validity of AOR System in light of Constitutional

and Statutory Provisions
Once you fulfilled all the conditions of being an advocate in light of Bar
Council Rules you will get the right to practice under Section 30 of the
Advocates Act, 1961.

Section 30 of the Advocates Act, 1961

Section 30:- Right of advocates to practise[1].
“Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be
entitled as of right to practise throughout the territories to which this Act extends,

 In all courts including the Supreme Court;

 Before any tribunal or person legally authorised to take evidence;
and
 Before any other authority or person before whom such advocate is
by or under any law for the time being in force entitled to practice.”

Interpretation
Now if we interpret the above-mentioned section it nowhere restricts the
advocate to practice in the Supreme Court. The only restriction is that his
name should be in state roll.

So if the Act does not put any restriction on advocate’s right to practice then
how can the Supreme Court put restrictions on practice. According to the
rules of interpretation, the court is not allowed to modify or change the
statute unless and until the provisions are defeating the purpose of the Act or
if there is some ambiguity in the provisions of the act.

Section 52 of the Advocates Act, 1961

To know the power of the Supreme Court from where it derives its authority
to frame the rules lies in Section 52 of the Advocates Act, 1961 which is read
as

“Saving. -Nothing in this Act shall be deemed to affect the power of the
Supreme Court to make rules under Article 145 of the Constitution

(a) for laying down the conditions subject to which a senior advocate shall be
entitled to practise in that Court;

(b) for determining the persons who shall be entitled to 1[act or plead] in
that Court”[2].

Interpretation
The opening word of the section clarifies all the doubts. The word “Saving”
implies exemption from its conditions and obligations existing in the Act. This
section gives power to the Supreme Court to frame the rules for practising in
the court subject to Article 145 of the constitution. Here, Article 145 (1) (a)
is relevant which says,

“Subject to the provisions of any law made by Parliament the Supreme Court
may from time to time, with the approval of the President, make rules for
regulating generally the practise and procedure of the Court including rules
as to the persons practising before the Court,[3]”

These provisions of law are in the Advocates Act, 1961 and nothing is
curtailing the Supreme Court power to frame the rules for practicing.

Pre-Independence
The Government of India Act, 1935[4] also had a provisions under Section
214 Rules of Court which says the “Federal Court may from time to time
frame the rules for persons practicing in the court and procedure followed in
the court with the approval of the Governor-General.

Is the provision of Advocate on Record a violation of Fundamental Right of an advocate who

is not an Advocate on Record on the grounds of breach of right guaranteed under 19(1)(g) of
the Indian Constitution?
Now the question arises, that whether the restriction imposed by the
Supreme Court is in violation of Article 19(1) (g) or not? The response to this
question can be well thought-out to be a partial restriction. As the restriction
is in terms of the condition. Once you fulfill the condition you are eligible to
practice in the court. The eligibility conditions cannot be treated as the
violation of the Article 19(1) (g) as it is not the absolute restraint on trade
and profession.

Constitutional validity of Rules

These rules were challenged in the Balraj Singh Malik v Supreme Court
of India, through Its Registrar General[5] where the court held that Section
30 was to be read with Rule 52 of the Supreme Court Rules, which preserves
the rule-making power of the SC under Article 145 of the Constitution. The
SC was therefore empowered to decide the manner as well as the right to
practise of various classes of advocates before it.

“Reasonable Restrictions”
The condition imposed should be a reasonable condition, however,
reasonable condition is not defined anywhere but in one of the landmark
judgment of the Supreme Court in case P.P. Enterprises V. Union of
India.[6] According to the judgement the expression “reasonable
restriction” means restraint imposed on the right should not be arbitrary and
excessive beyond the interest of general public.

As in this case the condition that they should be enrolled for 5 years of
practice in the Supreme Court under someone then they have to pass an
examination after which there name can be registered in AOR category. The
intention of the Supreme Court in framing the rules is to promote the quality
of litigation in the court as the court is overburdened with the litigation. The
object is that they should be trained with the practical aspect of the court
proceedings.

New category of Advocates?

The condition/rules do not restrict you from arguing a case, if an Advocate
On Record instructed the non-Advocate On Record to plead a case, the non-
Advocate On Record can do it in the court. The only restriction is that non-
AOR cannot submit his Vakalatnama with the case. The conditions/rules do
not create a new category of Advocates which are already there under
Section 16 of the Advocates Act, 1961[7] i.e. Senior and Other Advocates.

Conclusion
Therefore, it can be reasonably concluded that AOR system is need of the
hour for the court and Advocate On Record is a designation because one
must have some distinct skills when pleading in the Apex court. To uphold
the standard of quality of litigation Advocate On Record system should be
implemented effectively.