Bar Council Of India Vs. A.K. Balaji And Ors. (Supreme Court)
Lawyers of foreign countries or their law firms cannot practice profession of law in India, Bar Council of India or Union of India are at liberty to make appropriate rules in this regard.
Very recently, in Bar Council of India vs. A.K. Balaji and Ors. [Civil Appeal Nos.7875-7879 of 2015 with Civil Appeal No.7170 Of 2015 (Association of Indian Lawyers vs. London Court of International Arbitration (LCIA) and ors.) and Civil Appeal No. 8028 of 2015 (Global Indian Lawyers vs. Bar Council of India & Ors.), decided on 13.03.2018], the issue involved in the above appeals was whether foreign law firms/lawyers are permitted to practice in India. Civil Appeal Nos.7875-79 of 2015 had been filed by the Bar Council of India against the Judgment of Madras High Court dated 21.02.2012 in A.K. Balaji vs. The Government of India[AIR 2012 Mad 124] . Civil Appeal No.8028 of 2015 had been filed by Global Indian Lawyers against the judgment of Bombay High Court dated 16.12.2009 in Lawyers Collective vs. Bar Council of India[2010 (2) Mah L J 726]. Briefly, it was pleaded, to practice law in India, a person has to be Indian citizen and should possess degree in law from a recognized University in India. Nationals of other countries could be admitted as advocates in India only if citizens of India are permitted to practice in such other countries. Foreign degree of law from a University outside India requires recognition by the Bar Council of India. The Indian advocates are not allowed to practice in U.K., U.S.A., Australia and other foreign nations except on fulfilling onerous restrictions like qualifying tests, experience, work permit. Foreign lawyers cannot be allowed to practice in India without reciprocity.
Under the Advocates Act (the Act), a foreigner is not entitled to practice in India in view of bar contained in Section 29. However, under the guise of LPOs (Legal Process Outsourcing), conducting seminars and arbitrations, foreign lawyers are visiting India on Visitor Visa and practicing illegally. They also violate tax and immigration laws. They have also opened their offices in India for practice in the fields of mergers, take-overs, acquisitions, amalgamations, etc. Disciplinary jurisdiction of the Bar Council extends only to advocates enrolled under the Act. In India, the legal profession is considered as a noble profession to serve the society and not treated as a business but the foreign law firms treat the profession as trade and business venture to earn money. Indian lawyers are prohibited from advertising, canvassing and solicit work but foreign law firms are advertising through websites and canvass and solicit work by assuring results. Many accountancy and management firms are also employing graduates and thus rendering legal services.
The stand of the Union of India initially was that if foreign law firms are not allowed to take part in negotiations, settling of documents and arbitrations in India, it will obstruct the aim of making India a hub of international arbitration. Many arbitrations with Indian Judges as arbitrators and Indian lawyers are held outside India where foreign and Indian law firms advise their clients. Barring the entry of foreign law firms for arbitrations in India will result in many arbitrations shifting to Singapore, Paris and London, contrary to the declared policy of the Government and against national interest. In this Court, stand of the Union of India was that presently it was waiting for the Bar Council of India to frame rules on the subject.
Stand of the Bar Council of India before the High Court was that even non litigious practice is included in the practice of law which can be done only by advocates enrolled under the Act. It was submitted that practice of foreign lawyers in India should be subject to regulatory powers of the Bar Council.
Stand of the foreign law firms, inter alia, was that there is no bar to a company carrying on consultancy/support services in the field of protection and management of intellectual, business and industrial proprietary rights, carrying out market service and market research, publication of reports, journals etc. A person not appearing before Courts or Tribunals and not giving legal advice cannot be said to be practice of law.
The learned senior counsel for the Bar Council of India submitted that Advocates enrolled with the Bar Council of India are the only recognized class of persons entitled to practice law in India. Unless any other law so permits, no person can practice before any ‘Court, authority or person’ other than an Advocate enrolled under the Act. In particular cases, the ‘Court, authority or person’ may permit a person other than an advocate enrolled under the Act to appear before him. It was submitted that the expression “practice profession of law” covered not only appearance before the Court but also opinion work which is also known as chamber practice. The Ethics prescribed by the Bar Council of India covered not only conduct in appearing before Court or authority but also in dealing with the clients including giving legal opinion, drafting or participation in law conference. If a person practices before any ‘Court, authority or person’ illegally, is liable to punishment for imprisonment which may extend to six months. Thus, the view taken by the Madras High Court that visit by a foreign lawyer on fly in and fly out basis to give advice on foreign law or to conduct arbitration in international commercial arbitrations was erroneous. Reference has also been made to definition of the term ‘advocate’ under Section 2(a) of the Act. Section 6 lays down functions of the Bar Council including admission of persons as advocates, safeguarding rights, privileges and interests of advocates. Section 17 lays down that every State Bar Council shall prepare a roll of advocates and no person can be enrolled in more than one State Bar Council. Section 24 lays down qualifications for admission on the roll of a State Bar council. The qualifications include the citizenship of India, unless a person is national of a country where citizens of India are permitted to practice. One is required to have the prescribed qualification from India or out of India if such degree is recognized by the Bar Council of India, being a Barrister called to the Bar before 31.12.1976, passing of articled clerks examination or any other examination specified by the Bombay or Calcutta High Court or obtaining foreign qualification recognized by the Bar Council of India are also the prescribed qualifications. It was submitted that even in other jurisdictions, persons other than those enrolled with the concerned Bar Council are not allowed to practice. Even short term running of legal service is subject to regulatory regime.
Learned counsels for the foreign law firms supported the direction of the Madras High Court permitting foreign lawyers to render legal services on fly in and fly out basis and also with reference to international commercial arbitrations. It was submitted that Bar Council could come into picture only in respect of advocates enrolled with it. It is only with reference to appearance before the Courts or other authorities or persons that the regulatory regime of the Bar Council may apply but with regard to non litigation/advisory work even those not enrolled as advocates under the Advocates Act are not debarred. It was also submitted by learned counsel that Advocates Act applies only to individuals and not to law firms. Provision for reciprocity applies only for enrolment under the Advocates Act and not for casual legal services on fly in and fly out basis or in connection with international commercial arbitration. Foreign lawyers are regulated by the disciplinary regime applicable to them and only their Bar Councils could take action with regard to their working in India also. Practice of law in India did not cover advising on foreign law. Thus, if by a pre-determined invitation, a foreign lawyer visited India to advise on a foreign law, there is no bar against doing so.
Hon’ble Supreme Court considered the rival submissions and observed that questions for consideration mainly arise out of directions in para 63 of the Madras High Court judgment, viz.:
(i) Whether the expression ‘practise the profession of law’ includes only litigation practice or non-litigation practice also;
(ii) Whether such practice by foreign law firms or foreign lawyers is permissible without fulfilling the requirements of Advocates Act and the Bar Council of India Rules;
(iii) If not, whether there is a bar for the said law firms or lawyers to visit India on ‘fly in and fly out’ basis for giving legal advice regarding foreign law on diverse international legal issues;
(iv) Whether there is no bar to foreign law firms and lawyers from conducting arbitration proceedings and disputes arising out of contracts relating to international commercial arbitration;
(v) Whether BPO companies providing integrated services are not covered by the Advocates Act or the Bar Council of India rules.
Hon’ble Supreme Court held regarding above as follows:
RE : (i)
In Pravin C. Shah vs. K.A. Mohd. Ali [(2001) 8 SCC 650], it was observed that right to practice is genus of which right to appear and conduct cases is specie. It was observed:
“………The right of the advocate to practice envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart form appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions etc. ……”
In Ex. Capt. Harish Uppal vs. Union of India[(2003) 2 SCC 45] , same view was reiterated.
Ethics of the legal profession apply not only when an advocate appears before the Court. The same also apply to regulate practice outside the Court. Adhering to such Ethics is integral to the administration of justice. The professional standards laid down from time to time are required to be followed. Thus, we uphold the view that practice of law includes litigation as well as non litigation.
