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FRIEND OR FOE: ANALYSING THE ROLE PLAYED BY THE AMICUS CURIAE IN ENVIRONMENTAL PILS

introduction

According to P. Ramanatha Aiyar’s Law Lexicon, amicus curiae can be defined as “One, who volunteers or on the invitation of the Court, instructs the Court on a matter of law concerning which the latter is doubtful or mistaken, or informs him on facts, a knowledge of which is necessary to a proper disposition of the case.” 

With the inclusion of the right to the environment under Article 21 of the Constitution in Subhash Kumar v. State of Bihar, the door for Public Interest Litigation (PILs) in cases relating to environmental protection has been opened. Here, we bring under the lens the influential role played by the Amici Curiae or ‘friends of the court’, who are appointed by the courts to assist them and perform a variety of functions in environmental PILs.

The institution of amicus curiae in itself is an ambiguous one, with no uniform rules for appointment and no defined role to be played by them in a certain case. Moreover, Because of the inquisitorial nature of PIL proceedings instead of the traditional adversarial system, it is not uncommon to see the amicus curiae take upon the role of both prosecutor and field commissioner in environmental PILs. The courts appoint them to represent the “public interest” in the specific petition, to seek their legal advice, to supervise the implementation of the court’s order by the government and other bodies, etc.     

Amicus Curiae & their assistance in judicial activism

Because of the flexibility in procedure in PILs, the judiciary has been able to increasingly encroach upon the powers of the Executive, especially in cases relating to the environment. The institution of Amicus Curiae has curiously helped the judiciary out in undertaking the executive’s powers. The most interesting example would be the Interlinking of Rivers case, where the Supreme Court based on an interim application filed by the amicus curiae, Ranjit Kumar, in a separate writ petition passed an order which led to the suo motu case of In Re: Networking of Rivers, in which after a delay of more than two decades the court passed a judgement in 2012 forcing the executive to carry out a national project worth around a hundred billion dollars.

Moreover, the court in the Sheela Barse case has surprisingly given itself the power to change, by order, plaintiffs of an ongoing case involving public interest and has taken away the original plaintiff’s freedom to withdraw his/her case at will. In such cases, the plaintiff has little to no power and it is the court-appointed amicus curiae or investigating committee which actually plays an important role.  

Another problem associated with the exclusive reliance on the expert advice of Amicus Curiae in PILs is the lack of the rigorous procedural safeguards that apply to any other piece of evidence given by an expert in that capacity under the Indian Evidence Act, 1872 and the Civil Procedure Code, 1908.   

Amicus curiae: an instrument for The disregard for the stakeholder’s right to representation

Starting from the Vineet Narain Case in the mid-1990s, the courts increasingly began to displace the petitioners with amicus curiae of their own choice. S. Muralidhar argues that such a step leaves the petitioner entirely at the mercy of the amicus which would render the very purpose of public interest litigation useless. In the Delhi Vehicular Pollution Case, the amicus curiae Harish Salve’s opposition to the application by Auto-rikshaw owners in Delhi on permit freeze relaxation in light of the CNG changeover, allowed for the exclusion of these primary stakeholders from the proceedings in the case which ruined the livelihoods of thousands of poor transport workers in Delhi.

Dr Anuj Bhuwania explains the role played by Amicus Curiae in what he calls “omnibus PILs” where a petition originally filed for a specific area is unnecessarily expanded by the court, to fulfil its own agenda, to an entire city. In the case of Hemraj v. Commissioner of Police, in a classic example of creeping jurisdiction, the committee appointed by the court known as ‘the Hemraj Amicus Curiae Committee’ was single-handedly able to affect the landscape of India’s capital for an entire decade and based on whose recommendations huge slum settlements in Delhi were demolished without resettlement or rehabilitation in the name of prevention of environmental degradation. One such settlement was that of Nangla Machi in Central Delhi which housed around 2,800 households. Despite being the primary stakeholders, these people were never involved in the case proceedings and had no right to representation.   

In the Godavarman Case, the amicus curiae played an influential role in the court’s disregard for the tribal rights of the treatment of indigenous people as ‘encroachers’ and also helped to monitor and implement the court’s orders The judiciary has handed over the sole power to admit applications for forest rights to the amicus curiae who then guide the trajectory of the case throughout the decades. Also, the Central Empowered Committee (CEC) appointed in this case, was done on the consultation of the amicus curiae and lacks representation of tribal or dalit groups as well as the concerned ministries, like the Ministry of Tribal Affairs.

Conclusion

It cannot be disputed that Amicus Curiae have played an important role in PILs as they bring to the table their expertise, add perspective to issues already discussed, bring in objectivity and also fresh arguments not relied on by the original petitioner. However, through the above instances, it is evident that the position comes with its fair share of criticism, which the judiciary must look into at the earliest to ensure that the amici indeed prove to be the friends of the “public interest” and are not reduced to mare stooges of the judiciary in a contest to gain the upper hand against the other two organs of government.

Indeed, the need of the hour is to reform the PIL system in the country taking into account the present constraints and vulnerabilities of the amicus curiae position and to make and restore the court’s aim for a “law of the poor, rather than the law for the poor”, as observed by the illustrious Justice PN Bhagwati in Hussainara Khatoon v. State of Bihar.

Author(s) Name: Sadia Hasan Khan (Hidayatullah National Law University, Raipur)