Law should be Enacted for Appointment and Procedure of Amicus Curiae in India as an Effective Dispute Settlement Mechanism

INTRODUCTION

This article may clarify the envisaged of government to provide the better justice to public at large in adequate time, although millions of cases are pending before court across India, but how the justice to be delivered and cases to be disposed off is the question, at average it takes six year to deliver the judgment.

Remarkable initiative to be taken care by the government so that it can be resolved timely otherwise more cases may further generate, so keeping in view of above, it should have discussion and arguments over this topic. In contemporary era, when we try to meet our idea and innovation with challenges of modern era problem with limited resource & infrastructure and requirement of new idea comes from modern thought, how will we survive and how situation will be tackled if problem arising out from existence.

Substantially, In India Population is growing very fastly day by day as compare to other country, so scarcity of infrastructure and resources will be subject of prime importance. Crime will be increased, law & order required to be maintained with proper lane otherwise requirement of better justice in adequate time must be in vain. Number of cases, disputes in commercial transaction and other phenomena will also enhance as population grows, and judges of our courts will face over-burden of work and delivery of judgment in adequate time will be really difficult to courts as process of proceeding is very lengthy so it takes time to resolve matter before courts.

In a recent survey by Research Company, reportedly says, judges of Indian High courts spent less than 5-10 minute to each cases although 15 minutes to hype cases. The concern of CJI in recent speech at seminar clearly seems requirement of judges to solve the matter in adequate time.

Now, The Problem is related to question how we should deal with the amicus curiae Practice. Whether, the present laws dealing with the Amicus curiae in U.S.A, Europe and other country are adequate. To what extent they are successful in regulating and controlling the legal provision of amicus curiae. Further, what are the loopholes in the present legal regime?

Ostensibly, then below question may arise to understand the objective, scope and role as to whether shall be required the law or bill.

  • A Study to understand the role of Amicus Curiae in Indian Legal System?
  • Whether Amicus Curiae can work as dispute mechanism?
  • Is there requirement to provide legal legitimacy to amicus curiae? If so, on what grounds/in
  • what circumstances should an amicus be appointed?
  • Should State sovereignty and integrity be protected while framing in Law?
  • A Distinction Study with England, USA & other few country?
  • The Courts’ approach to amicus curiae?

OBJECTIVE OF RESEARCH

The aim is to have the in-depth knowledge of the concept of Amicus Curiae. To outline, the legislative and regulatory provisions dealing with Disputed cases under International Law. Endeavor shall be made to clarify the legal and regulatory ramifications or aspects of Amicus Curiae legitimacy.The objective of the research is to provide legal legitimacy to Amicus Curiae in Indian System, Currently there is huge cases pending before court due to several reason, procedure is lengthy & time consuming to resolve the dispute in many type of cases as we have seen earlier. This system will reduce the burden of court to resolve the matter with expertise knowledge provides extensive expedient work which shall be useful for court of Law and shall be provide legal legitimacy.

  • To have a profound analysis of the concept of Amicus Curiae and to study the theoretical basis of Legal Legitimacy of Amicus Curiae, its causes & effects?
  • To have a complete overview of the laws dealing with Legal Legitimacy of Amicus Curiae England, USA and few other country with India ?
  • To substantiate the distinction between the legal regime in India vs. other country with reference to Amicus Curiae?
  • To study the judicial outlook towards the Legal Legitimacy of Amicus Curiae with the help of some leading case laws?
  • To study the recent legal developments of the aspect in the above mentioned jurisdictions ?
  • To suggest some preventive measures for enacting & amending the Law ?
  • To provide valuable information on relevant facts and case law that the parties may not have considered or may have missed?

The Amicus curiae commonly known as “Friend of Court”, and widely considered as who advice to court in matter if appointed by courts. It refers to someone, not a party to the case, who volunteers to offer information on the issues of law or some other aspects of the case to assist the court in deciding a matter before it.

In India, a majority of the amicus curiae appointed so far by Indian courts are senior advocates of repute in the field of law concerned – however, law academicians can also be appointed as amicus at the discretion of courts and should honor and welcome of amicus curia suggestion and submission.

This Research is based on a study to understand the Frame work of Amicus Curiae & consisting distinction study of amicus curiae in various country and how expedient in Indian Law System, In innumerable cases in India, the courts have allowed, on its own motion, have asked various people to act as amicus curiae to the proceedings. Courts have appointed as the amicus curiae to play a crucial part in securing and protecting justice.

This Research is to provide extensive and detailed role of amicus curiae in various country and will work as dispute mechanism in pending cases as and when required by court of law at the discretion of judges or filling of an application for appointing an amicus curiae with consent of both parties.

AMICUS CURIAE STATUS IN INDIA LEGAL SYSTEM

Hon’ble Supreme Court has defined the term Amicus curiae under Supreme Court jurisdiction quoted “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 deemed fit it necessary in case of an unrepresented party; the Court can also appoint amicus curiae in any matter of public importance or in which the interest of the public at large is involved“and The Hon’ble High court of Delhi also defined the term of Amicus Curiae Quoted “Translated from the Latin as ’friend of the Court’. An advocate appears in this capacity when asked to help with the case by the Court or on volunteering services to the Court.”

Appointing an advocate as ‘amicus curiae’ to represent the respondent/accused is widely considered although in very hype cases of India e.g. Nirbhaya Gang Rape case, 2G Spectrum case, 2002 Gujarat riots case, Novartis v. Union of India & Ors.

Legal status of amicus curiae in India is not wider as it should be and we understand from above definition & somehow seems it does work under the limitation.

RATIONAL OF THE STUDY

To Sum up all the reformation and arguments, it can be rightly said that with fairness, impartiality and efficiency as aims that AMICUS CURIAE APPOINTMENT AND PROCEDURE IN INDIA AS AN EFFECTIVE DISPUTE SETTLEMENT MECHANISM is necessary requirement and I conclude based upon the above discussion that the topic of Amicus Curiae-effective dispute mechanism analysis is matter of discussion, It has to be incorporated in Indian Legal System as dispute mechanism in their statutes to resolve the dispute in speedy manner.

We have selected this particular area for research because it has been neglected in our country, and no research study has been conducted regarding “AMICUS CURIAE APPOINTMENT AND PROCEDURE IN INDIA AS AN EFFECTIVE DISPUTE SETTLEMENT MECHANISM”. Therefore, it is need of the time that a comprehensive research study should be undertaken to highlight the capabilities, sensitivity, harmonizing, potential.

REFERENCES/BIBLIOGRAPHY

BOOKS:-

•Ernest Angell, The Amicus Curiae: American Development of English Institutions
• Jost, Kenneth. 2001. “The Amicus Industry.” California Lawyer 21 (October)
• Oral Argument and Amicus Curiae by Mathew M.C.Robert

JOURNALS:-

• Harvard International Law Journal
• The American University Law review

WEBLIOGRAPHY

• http://supremecourtofindia.nic.in/jurisdiction.htm
• https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c9s3p1_e.htm
•http://www.asil.org/insights/volume/18/issue/1/arctic-sunrise-and-ngos-international-judicial-proceedings

Submitted by – Sunny Kumar, LL.B, LL.M