evidentary value of amicus cuarie
shantanu dekhane
(Querist) 11 January 2010
This query is : Resolved
whether opinion of amicus curaie is binding upon the courts.
SHYAMSUNDAR
(Expert) 11 January 2010
Not at all.
It is the discreation of court.
Sachin Bhatia
(Expert) 11 January 2010
No it is not binding upon the courts.
A V Vishal
(Expert) 12 January 2010
Amicus curiae or amicus curiæ (plural amici curiae or amici curiæ respectively) is a legal Latin phrase, literally translated as "friend of the court", that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief, a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision whether to admit the information lies with the discretion of the court.
The role of an amicus is often confused with that of an intervener. The role of an amicus is, as stated by Salmon LJ (as Lord Salmon then was) in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at p.266 F-G:
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 arguments on his behalf.
The court has broad discretion to grant or to deny permission to act as amicus curiae. Generally, cases that are very controversial will attract a number of such briefs.
In India, the courts have time and again welcomed the idea of permitting amicus curiae to associate themselves with proceedings, generally involving public interest. By doing so, the court 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 person who is usually allowed by the courts, in India, to act as amicus curiae are people who represent the unbiased will and opinion of the society.
In innumerable cases in India, the courts have allowed, or, on its own motion, have asked various people to act as amicus curiae to the proceedings. A very fine example of this is the famous, or rather the infamous BMW Case which has yet again been in news recently due to the fact that both the defense and the prosecution lawyers have been suspended by the Delhi High Court on charge of driving the witnesses to turn hostile. In the said case, Advocate Arvind Nigam who was appointed as the amicus curiae by the Delhi High Court has played a crucial part in securing justice.
The importance of amicus curiae can be well seen considering the facts of the above-mentioned case, in which both the prosecution and the defense have gone beyond ethical and professional practices to murder justice.
In India, thus, if a petition is received from the jail or in any other criminal matter if the accused is unrepresented, then, an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters also, the Court can appoint an Advocate as amicus curiae if it thinks it is necessary in case of an unrepresented party; the Court can also appoint amicus curiae in any matter of general public importance or in which the interest of the public at large is involved.
Raj Kumar Makkad
(Expert) 12 January 2010
No. Amicus Curie has also an opinion but this is not final or binding for the courts to rely upon.
