Indian professors as amicus curiae, industry-academia divide and the birth of the practitioner-academic

Source: http://engineering.com

Source: http://engineering.com

This article was written by Abhilash Agrawal, a law student in NLU, Jodhpur. 

Last year, Stanford Law School professor Joseph Grundfest and University of Michigan’s Adam Pritchard filed amicus briefs in the case of Halliburton Co v. Erica P. John Fund. Through its decision in this case, any day now, the Supreme Court of the USA will decide the future of securities fraud class actions, which has been the bane of many business in the US and subject to litigation that has generated more than $80 billion in settlements and untold billions more in legal fees, and it is widely expected that the judgment will lean on the arguments advanced by the two academicians, who have been active in this field through research publications and similar amicus curiae interventions (more on this here).

Academicians in the USA have been actively intervening in legal matters through such briefs in cases ranging across taxation, insurance, intellectual property, right to privacy, domestic violence among many others. Their research abilities and understanding of the field in question, especially the ones that are new, complex and relatively unknown to members of both the bar and the bench, makes their assistance invaluable to the court.

In contrast, such academic interventions in India have rarely taken place in Indian judiciary. This is similar to the absence of practical or industry-relevant components in mainstream legal courses, and reflects the theoretical nature of Indian education.

Yet, we examine the role that Indian academia have played in courts, and find out that the insulation between industry, law courts and academia may finally have started disappearing.

Who is an amicus curiae?

Amicus curiae is a person who advises a court in some matter of law, where he/she is not a party involved, by providing legal expertise in the form of an opinion, testimony or learned treatise (the amicus brief) and is a way to accommodate the concern that the broader legal effects of a court decision will not depend solely on the interest of the parties directly involved in the case.

Functions performed by Amicus Curiae

Not being a party to the matter in question allows the Amicus Curiae to provide neutral opinion on questions of public importance. The various functions that they serve are-

• Make broad statements of policy implications of a particular decision which would have been blatantly self-serving if said by a party to the litigation.

• Make supplementary arguments which might review cases from other jurisdictions, or review scholarly articles in archival journals, which are not binding precedent on the court hearing the dispute, but which may be persuasive.

• Providing more creditable, more attractive advocate for a particular argument when a party before the court may be a disreputable scoundrel for whom the judge has little sympathy.

• With so little knowledge amongst lawyers and judges on specific developing areas of law (Intellectual Property, Income Tax, Competition, etc.), an expert in the field will be able to provide more insight into the case.

So, amicus curiae are any persons who can help the court in case of a bottleneck. 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.

Subject-matter experts vs. amicus curiae

Courts all over the world rely on the testimony of experts to understand the cases effectively and come to a just conclusion. Academicians have also been called by the court to testify as witnesses. This is typically with respect to technical matters, and here are some examples:

–          Those involving comparison of the handwriting samples to arrive at a proper conclusion[State (Delhi Administration) vs Pali Ram, AIR 1979 SC 14]

–          Those involving a deep knowledge of rifles and guns in criminal cases [The State Of Gujarat vs Adam Fateh Mohmed Umatiya And Ors., (1971) 3 SCC 208]

–          Those involving expert Medical knowledge[Ashok Kumar v. State; Aruna Ramchandran Shanbaug v. Union of India, [2011] 2 S.C.R. 869; Samira Kohli vs Dr. Prabha Manchanda & Anr, 1(2008)CPJ 56 (SC)]

While experts are consulted by courts on technical matters, amicus curiae are legal experts to assist and advise the court on a point of law, although it is possible that the point of law depends on the understanding of a technical point – for example, whether a different structure of a chemical compound can qualify for patent protection. Note that the role of an amicus is more extensive as compared to an expert, who is merely required to provide his opinion on a very limited point – for example, whether two samples of handwriting are similar, or whether certain medical test or report is genuine.

Amicus don’t have to necessarily be persons confined to the legal world, but can be anyone who helps understand the nuances of a particular matter effectively. Thus, the only difference that seems to be there between an ordinary expert called upon to testify and amicus curiae in any case is the fact that, though, calling of an expert witness is a necessity by the provisions of the Evidence Act (Section 45), there is no compulsion to appoint or hear amicus in a matter. Also, Therefore, an amicus curiae is supposed to help out the court by providing new perspectives to look at the subject matter, an expert witness is confined to the evidence in front of the court.

How is one appointed as amicus curiae?

One can become amicus curiae with the permission of the court concerned in two ways-

1)      By Appointment– Based on the complexities of an issue, the Court may appoint someone as amicus to assist it with the proceedings. Some of the more famous Amicus Curiae in recent times have been Shyam Divan in the Odisha chit fund case, Gopal Subramaniam in the Sree Padmanabhaswamy Temple case, Raju Ramachandran in the Kasab case, etc., where the importance of amicus curiae has been espoused by the members of the bench who have expressed their appreciation for the valuable assistance provided in clearing away doubts and in drawing the bench’s attention to various new developments in law via authoritative research papers and articles. The experts that are appointed are eminent personalities who are experts in the field which is the subject matter.

2)      By Application of Intervention– Shamnad Basheer’s intervention in the Novartis case is a case in point. It also might be that this is the only case where such an intervention has been made in the history of Indian judiciary. Typically, the court is at liberty to accept an application of intervention by an expert. In the Novartis case, the Supreme Court gave Shamnad Basheer’s arguments a patient hearing as he was considered to be an expert in the field of intellectual property rights, to which the subject matter pertained.

Academicians’ role in legal proceedings in India

While professors presenting themselves as amicus curiae for opinions (in cases relating to constitutional law, environmental law, maritime law, etc.) is a common occurrence, ‘academic intervention’ (as the Supreme Court calls it) was unheard of in India, until Shamnad Basheer’s intervention as amicus curiae in 2012 in the Novartis case, which has been described as ‘the first of its kind’ in the history of the Indian judiciary. However, academicians in India have participated in legal proceedings as expert witnesses and as petitioners in many cases. Some instances where academicians have petitioned before the Supreme Court are –

–          Nandini Sundar & Ors. v. State of Chhattisgarh

Dr. Nandini Sundar, a professor of Sociology at Delhi School of Economics had filed this petition before the Supreme Court alleging widespread human rights violation by State of Chattisgarh through its counter insurgency programmes against Naxal/Maoist operations through its armed civilian vigilante group called “Salwa Judum”.

The Court declared the State of Chhattisgarh’s appointment and arming of Special Police Officers (SPOs) to be unconstitutional and asked the Central Bureau of Investigation to take over the investigation.

–          Novartis v. Union of India & Ors.

Shamnad Basheer, then Ministry of Human Resources Development Chair Professor for  Intellectual Property Rights at NUJS, had filed an intervention application before the Supreme Court in order to provide academic assistance to the Court in what was probably the most important patents case to be decided by the Supreme Court in its history. He got a patient hearing by the court over a course of two days and provided valuable inputs.

–          Teacher’s intervention in the Supreme Court on Section 377, IPC

Back in 2012, when the Delhi high Court’s decision was being appealed in the Supreme Court, 16 teachers from various universities across India intervened in the matter and though their intervention does not find place in the court documents, it is worthy of being mentioned here-

“As teachers we essentially wanted to make the argument that Section 377 vitiates for everybody (and not just for gay people) the general atmosphere of free expression, learning, enquiry, and dignity that an academic environment should ensure.  That we oppose Sec 377 because its existence on the statute books legitimizes an atmosphere that runs counter to the spirit of openness and acceptance of difference that should mark modern academic spaces.  Its existence is not only an affront to those who are non-heterosexual, but it is an affront to each and every person in the academy who believes that every teacher and student has dignity that should be respected, and that learning is a continuous and life-long process, in which fixed ways of thinking are continuously challenged and reshaped by winds of change.”(The full document can be accessed here)

But unlike their counterparts in the USA and other countries, their role has not transgressed to active intervention in public interest. Academicians are not known to file amicus briefs, which is a fairly common source of intervening in a case and are not usually invited by the courts to testify as amicus.

Heavy reliance has been made by lawyers on certain academic works while tackling a certain legal issue in front of the court. The courts have made use of the works of certain renowned academicians, such as M.P Singh, H.M Seeravai, Dinshaw Mulla in the past to arrive at their judgments. This reliance is placed to seek clarity in a question of law that is in dispute. But the court has never appointed a legal academician as amicus curiae in a case.

There may be an increasing need for legal professors to provide their expertise, especially with respect to technical areas of law such as intellectual property, income tax, competition law, maritime laws. However, the chances of a viable intervention may not be high due to the theoretical nature and qualifications of academicians in India, who rarely have any industry experience. This may also be the reason why courts rely on lawyers as amicus rather than inviting an academician. Barring exceptions such as Shamnad Basheer, competent academicians who may take initiative are hard to come across.

The beginning of the era of practitioner-academicians

There is a growing trend where practitioners have started turning towards the academia. Presently, there are academicians in India who have had practical experience in the past such as Anil Rai (former Luthra & Luthra Corporate Partner and presently visiting professor at National Law University, Delhi), Madhurima Mukherjee (who formerly led Luthra & Luthra capital markets practice in Delhi, and has taught seminar courses  NUJS, Kolkata and NLU, Delhi), Arya Majumdar ( former Senior Associate at Desai & Diwanji and presently teaching at Jindal Global Law School, Sonepat) and many others who have had practical exposure and possess the necessary skills to make such academic interventions. Academicians such as Mrinal Satish and Aparna Chandra have been actively involved in sensitization of judges on issues related to gender and children issues.

These instances indicate a healthy development which can facilitate transfer of knowledge from industry and academia and vice-versa, legal understanding. Apart from serving public interest, these amicus appearances can also gain for these academicians recognition and future employment or consultancy opportunities in the private sector. For example, Grundfest, who was involved in the filing of the amicus brief in the case of Halliburton Co v. Erica P. John Fund, now sits on the board of the private equity firm Kohlberg Kravis Roberts & Co.

Active involvement of ‘practitioner-academics’ in the system can have a significant impact on various aspects – how business is undertaken (by various entities), how policies are made by governments and regulators and how courts decide tricky cases with widespread ramifications. These are interesting times – how do you think India’s system will shape up?

About Abhyudaya Agarwal

Abhyudaya is a former restructuring lawyer turned entrepreneur. He writes on business laws, online education and interesting startup stories. He heads content development and operations at iPleaders, a legal education startup he co-founded.

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