A Friend Indeed

A letter addressed to the Chief Justice, High Court of Kerala, by the Kerala High Court Advocates' Association, taking exception to a Single Judge of the Court inviting two law students to be Amicus Curiae found its place in media^[1]. According to the Association if the Court was looking for any assistance, it must have engaged as Amicus Senior Advocates or Technical Experts only. Appointing law students as Amicus Curiae “undermined the active assistance given by Advocates” appearing for the parties. The Association feels the High Court is not a “training institution for law students”. Encouraging students is the duty of the Law School. There are many young advocates in the Court. The duty (if any) of the Court was to encourage such young advocates. The Association placed on record its 'strongest displeasure' and expressed a hope that this will not be repeated by any Judge. It called for an amendment of rules of High Court of Kerala to include guidelines for appointment of Amicus.

The Judgment^[2] which irked the Association is one in a Bail Application. An accused found to be in possession of Ganja was intercepted and detained by the Narcotics Control Bureau. However, his arrest was recorded only 23 Hours after his detention. He was produced before a Judicial Magistrate only 6 Hours thereafter. The Accused therefore was not produced before the Magistrate within 24 Hours of his detention.

“When does the twenty four hour period to produce an accused before the Magistrate commence? Does it start from the time of arrest as recorded by the police or from the time when the accused was detained”? The Court posed these questions. The reason for appointment of the two law students as Amicus is found in para 4 of the Judgment.

“Considering the importance of the question involved, and on noticing the commitment with which two law interns were watching the proceedings, this Court deemed it fit to seek their assistance. The two interns who were present in Court expressed their willingness and hence this Court appointed Ms. Nikhina Thomas and Ms. Neha Babu, second year students of Ramaiah College, Bengaluru, as Amici Curiae to assist the Court”.

The Court held that a person is to be treated as under arrest from the time he is detained. The clock ticks from then for the purpose of Art. 22(2) of the Constitution of India. Thus finding there was illegal detention, Bail was granted with conditions. The Court also stated in the judgment that the two students made a 'well-articulated address' and recorded its appreciation for the assistance rendered by them. Court described them as 'growing buds of the noble profession'. Livelaw had reported this^[3].

There is no just reason for any cavil against students being engaged as Amicus. The stand that Courts are not Training Institutions for Law Students is erroneous.

Court rooms are also Class rooms for lawyers. An advocate who fails to learn by watching, listening, and imbibing from the Court would usually fade away from the professional sky sooner than later. Every advocate who found his feet at the Bar would accept that what they learned in the Court made them the lawyer they are. We were all told to sit in the court, watch the seniors in action, take every single opportunity to stand up and speak in the court, and learn in the process. Learning at the Court is what makes a lawyer. Law Schools provide precious little to the making of an advocate. Courts room may not officially be Training Institutes, but they certainly train advocates. Even the corridors of the Court teach an inquisitive lawyer. Part of the Learning happens at the Law Offices also. All learnings do not happen in “institutes”.

This is the reason why the Bar Council of India mandate that the students aspiring to be Advocates must undertake internships, carry out court and chamber work, etc. It is often said that an advocate fresh out of Law College have little knowledge of work as an Advocate. They learn it all only after becoming an Advocate through hands-on experience. It is not a happy state of affairs. This exercise of learning through 'trial and error', is as dangerous for the young lawyer as it is to her clients. This gap is sought to be bridged by giving some practical exposure to the students at the Law School. I feel the efforts in this regard are still inadequate. It is therefore necessary for the Bar and the Bench to step up and be “training institutes” too when called upon. Moulding the future bar is as much the responsibility of the Bar and the Bench as it is of the Law Schools.

The Bench should certainly support the young bar in all possible ways. The Association is right in demanding it. The Court no doubt owes a duty in this regard. However, that does not mean that there exist no such duties towards the students of law who visit its premises. They too are young advocates. The training of a Student to be an Advocate need not wait till the date of enrollment. It may, nay it must, start from the very day they get admitted to the Law School. (In lighter vein, “When is one arrested”? Not when the arrest is recorded, but when she is detained. Similarly, “When does a person become a lawyer”? Not when her name is entered in the rolls, but at the moment she is wedded to law).

The action of the Court in giving some encouragement to students who were showing keen interest in the proceedings is not to be deprecated. It ought to be appreciated. It may not be possible to always give such chances to students who come to the Court. However, the action of the Court in inviting the students, giving an opportunity to them to actually address the court, and appreciating them is certainly going to inspire those students to keep doing better in their professional odyssey. The exercise by the Court has certainly pushed the bar higher for those two students.

Even other students who have known about this would probably show more interest in watching and learning while in the court. The possibility of they being called up and quizzed on what is happening in the court would encourage them to attend intensely. This will indeed help to improve the quality of experience and learning they have in the Court during the short internships. The action of the Court will have many positive effects. It would empower the process of internship for students. Any way it would in no manner cause a negative effect. Thus, also on the principle that when some good may be done and no harm is expected, the action of the Court is to be applauded.

Giving an opportunity to the students in no way undermines the advocates who actually appeared in the case. If so in every case there is an amicus appointment there must be this objection from the Bar. The quality of the work of an advocate is not undermined by appointment of another as an Amicus Curie. To consider so is not befitting of a professional body, to say the least.

Amicus Curiae, means 'friend of the Court'. It is the choice of one to decide if she needs a friend. Who her friend is to be too is her choice. The Court therefore has absolute discretion to decide whether it needs an Amicus Curiae, and who need be invited as Amicus. Certainly, every discretion is to be exercised fairly, reasonably and equally. The demand of the Association for more transparency and even hand in respect of appointment of Amicus Curiae is not to be brushed aside. The appointment of Amicus Curiae in matters is probably one of the least researched areas of activities of our courts. A well-studied article on the appointment of Amicus Curiae in the United States Supreme Court^[4] points out that the appointments there are opaque and under-inclusive. A detailed study of such appointments in our country may not play a different note. A system to ensure more inclusivity and transparency is to be welcomed. However, one cannot see invitation as Amicus Curiae as a largesse to be distributed by the Court either.

There are myriad reasons for inviting an amicus. It may be to address a complicated issue of law or science, demanding expert assistance. In a criminal case involving Death Sentence if there is no representation for the accused, an amicus is invited as a rule. Effectiveness of such assistance becomes relevant in such cases^[5]. In Public interest matters where suo-motto action is being taken or in cases where court chooses to play a non-adversarial role, assistance of advocates and others as Amicus are invited. Choice of Amicus depends on the purpose for which such appointment is made.

Is giving an opportunity for a youngster, may be a student, or a very raw junior who shows some promise, a good reason for appointment of Amicus? It certainly is.

Providing opportunity and to encourage the future baton holders in the profession is also a responsibility of the Courts. The Court should undertake more efforts for this within the constraints of time and resources. Platforms to learn and perform for 'growing buds in the noble profession' must be provided. Professional Legal Education is not the responsibility of Law Schools alone.

However, when court chooses to give opportunity to law students or young lawyers, it would be constructive that they are asked to undertake the exercise under guidance of a senior member of the bar. The senior must only support behind the scenes. She shall not steal the sheen of the opportunity from the younger ones. This is not to stifle the opportunity to the younger ones, but to provide a support for them to enhance their acumen.

The number of Law Schools, and correspondingly the interns visiting the Court is increasing by the day. It is also necessary to educate the Senior members of the Bar how to guide them and help them to be better lawyers. The Bar also must take efforts to equip the experienced members of the Bar with skill and knowledge to guide the youngsters. Leadership is not same as advocacy. That is a different skill which too needs a constant polish.

The student interns, and the junior advocates, are the tomorrow the Bar is entrusted to nurture. The Bar cannot see them as aliens. They may not be travelling the same path as we did. Their challenges and aspirations would be very different from that of ours. But, it is duty of the Bar to ensure that they remain strong, and the fire of their dreams are stoked with encouragement, support and opportunity. If we successfully handhold them, the system will remain, and it will remember us, long after we are gone. That is a duty we owe to the past, present and future.

The author is a Senior Advocate at Kerala High Court. Views are personal.