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Next friend forever
A few days after the Supreme Court judgment ruled that Aruna Shanbaug's 'next friend' could be KEM hospital but not Pinky Virani, a Mumbai family was sitting around a dining table discussing the merits of the verdict. Suddenly, the young man, a CA, turned to his parents and said, "If you were similarly disabled, and there was no family around, who would you consider your 'next friend' on matters pertaining to death, money or litigation?" There was silence all around.
His father twittered nervously. His mother said, "Gosh, I actually have no idea. " She paused. "Maybe it would be XX, my oldest friend. But she's not even capable of reading a legal document. I would probably pick a family member. "
"Yes, but what if the family member has a stake in the matter. "
The discussion ended in complete silence. For the next half hour, all five people sitting around the table had a single question that loomed in their minds: Who would that next friend be in the event of a contingency? Clearly, the answer was not on the tip of any one's tongue.
Is it almost always impossible for a family member to become the 'next friend' in a court of law? Virani, who authored a book on Aruna's life, sought to become her 'next friend' and hasten her death because she felt that she was "not living life as a person". Looking at the strong bond shared by the hospital staff and Aruna, the Supreme Court held them and not Virani as Aruna's 'next friend'. The SC felt it was the hospital staff who were, in effect, Aruna's "real family".
But family doesn't automatically qualify as 'next friend' in all cases. Three months ago, a court in the US dealt with an anguished father's plea as his adult son's 'next friend' to get him out of a US government's "kill list". Nasser Al-Aulaqi, a US citizen had moved a DC court against the US President, Defence Secretary and the CIA director pleading that his son, who was hiding in Yemen, should not be "intentionally" shot dead for his alleged Al-Qaeda links, unless he presents an imminent threat which cannot be neutralised without lethal force. Much as the US court saw Nasser as a "loving parent who only wants what he rationally believes to be in the best interests of his adult child' ' it said a court cannot substitute the views of the would-be "next friend for those of the absent party, whose own views of his best interest appear to conflict".
Closer home, there was the case some years ago of a wealthy Mumbai businessman who was suddenly paralyzed by a stroke. While his children were suing one another for his substantial estate, his wife applied to be his 'next friend' and litigate on his behalf. However, lawyers on the other side argued that because she had a stake in the estate she could not be his 'next friend' and the court ruled against her.
The unusually worded 'next friend' is thus a significant concept in law across the world. It allows a person to sue in the name of another person when the other person is incapable of advocating his own interest. In the US, as a recent judgment noted, 'Next friend' originated in connection with petitions for habeas corpus (to produce in court), as early American courts allowed 'next friends' to appear "on behalf of detained prisoners who were unable, usually because of mental incompetence or inaccessibility, to seek relief themselves".
In Common Law countries like England, when an individual was unable to look after his interests or manage his lawsuit, the court would appoint a person to represent his interest. In court terminology, this person would be called 'next friend'. The term was derived from the French term prochain ami (almost literally meaning next friend).
The main test is to see that the 'next friend' is acting to protect the interest of the person and does not have an adverse interest. His interest should be perfectly aligned with the interest of the person he is representing. The third important ingredient is to see that the person for whom the 'next friend' appears does not have access to courts himself or herself, such as Shanbaug. "If someone has something to gain from the outcome of that litigation then that person cannot be the next friend, " says lawyer Naheed Carrimjee. It is similar to a public interest litigation, says lawyer Anil Harish, where someone says, "although I am not personally interested, the idea is to bring this injustice to the mind of the court. "
In the US, the bulk of 'next friend' petitions were filed by parents or guardians on behalf of their minor children, bringing into focus 'the fragile complex interpersonal bonds between children and their parents'. In India, a 'next friend' has popped up in courts less frequently. Senior solicitor Subhash Kothari of Kanga & Co says, "Here, often the question of appointing a friend or guardian of a minor or a lunatic's property arises when such properties are sought to be sold in the market. " In one case, the Bombay high court appointed a court staffer as the 'next friend' in a dispute where the family was fighting over the mental competence of a south Mumbai business baron and disputing his will.
For those families who are considering appointing a person in the event of something going wrong in their lives, you cannot appoint a 'next friend' the way you would the executor of a will. But it's nice to know that there may be someone in your life who, with no vested interest or stake in the outcome of any litigation pertaining to your wellbeing, cares about you enough to step in.
TO QUALIFY AS A NEXT FRIEND. . .
You must provide an adequate explanation - such as inaccessibility, mental incompetence, or other disability - for why the real party in interest cannot appear on his own behalf to prosecute the action. You must be truly dedicated to the best interests of the person on whose behalf you seek to litigate. Less demanding is the need for you to "have some significant relationship with the real party in interest. " The burden thus is on you to prove "the propriety of your status and thereby justify the jurisdiction of the court. " No one has the 'right' to be appointed as a next friend. The next friend must act in the interests of the mentally ill person or minor and not have any interests adverse to him. But a next friend is never himself or herself a party to the proceedings. He simply pursues the cause on behalf of the other person.
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