IN THE SUPREME COURT OF INDIA [SCR, Order XXI Rule 3(1) (a)] CIVIL APPELLATE JURISDICTION SPEC!. '_ LEAVE PETITION (CIVIL) NO. OF 2015 (Arising fro impugned final judgment and common order dated 16 December • J09 passed by the Hon'ble High Court of Judicature at Bombay in V rit Petition (C) No. 1526 of 1995). IN THE MATTER OF: Global Indian Lawyers ... PETITIONER VERSUS Bar Council of India & Ors ... RESPONDENTS PAPER BOOK I.A. No. of 2015 : WITH Application for permission to file Special Leave Petition I.A. No. of 2015 : AND WITH Application exemption from filing certifieo copy of the impugned judgment. I.A. No. of 2015 : AND WITH Application for condonation of delay in filing Special Leave Petition. (PLEASE SEE INDEX INSIDE) ADVOCATE-ON-RECORD FOR THE PETITIONER: - VIKASH SINGH
Senior advocate Harish Salve is assisting the 50-lawyer strong society of Indian lawyers fighting the Bar Council of India (BCI) in the Supreme Court, for liberalisation in Indian legal services.
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
IN THE SUPREME COURT OF INDIA
[SCR, Order XXI Rule 3(1) (a)]
CIVIL APPELLATE JURISDICTION
SPEC!. '_ LEAVE PETITION (CIVIL) NO. OF 2015
(Arising fro impugned final judgment and common order dated 16December • J09 passed by the Hon'ble High Court of Judicature atBombay in V rit Petition (C) No. 1526 of 1995).
IN THE MATTER OF:
Global Indian Lawyers ... PETITIONERVERSUS
Bar Council of India & Ors ... RESPONDENTS
PAPER BOOK
I.A. No. of 2015 :WITH
Application for permission to file SpecialLeave Petition
I.A. No. of 2015 :AND WITHApplication exemption from filing certifieocopy of the impugned judgment.
I.A. No. of 2015 :AND WITHApplication for condonation of delay infiling Special Leave Petition.
(PLEASE SEE INDEX INSIDE)
ADVOCATE-ON-RECORD FOR THE PETITIONER: - VIKASH SINGH
'oz- .__ ._. .-
·6~..
·~B-'-"-:~=:-=======--""'_""-===""
.L ~
·9~
·S ~
·17 ~
.£ ~
·Z ~_.-- .. ....=~".=-.-.-"= I.~~
~-._- ... .~
·6
.g
·L
·9
·S- -
·17
.£.-
·Z
.~sa8ed ·s8u~paa:>oJd JO pJo:>aJ JO a~ea ·oN ·IS
S9Nla33JO~d .::10 a~OJ3~
1~~
INDEX
s. No. Particulars Pages
1. Office Report on Limitation - A-
2. Listing Proforma fjl - A)...
3. Synopsis and List of dates Jb,. p
4. Copy of the impugned judgmentand final order dated ~6 December i- ~42009 passed by the Hon'ble HighCourt of Judicature at Bpombayin Writ Petition (CO No. 1526 of 1995
5. Special Leave Petition with Affidavit 4 c - ';:f- t:l
6. Appendix =t1· :f~Advocates Act ,1961
7. Annexure P-1True Copy of the order dated~l·02.2012- ':16 -1~1passed by the Hon'ble High Court of Judicatureat Madras rendered in Writ PetitionNo.5614/2010
8. Annexure P-2True Copy of the order 04.07.2012 llJo-141passed by~Hon'ble Court renderedin SLP (C) 17150-54 of 2012
9. Application for Permission to file 14~- tlJtSpecial Leave Petition
10. Application for exemption from filing 141-14~certified copy of the impugned judgment and order.
11. Application for condonation of delay in 149 ..1.r~filing Special Leave Petition
12. Letter -In-
IN THE SUPREME COURT OF INDIA[ORDER XXI RULE 3 (1) (A)]
8: Land Acquisition Matters:(a) Date of Section 4 notification: _---"N~·A,.:...-_(~) Date.·ofSection 6 notification: ----Ai- Pr(c) Date'of Section 17 notiflcation:
9. Tax Matters: State the tax effect: tY ·810. Special Category (first petitioner/appellant only): IV' ftOSenior citizen> 65 years DSC/ST 0Woman/child 0 Disabled 0 Legal
Aid case 0 In custody
11. Vehicle Number (in case of Motor Accident Claim matters): N' ft.,' 12~.Decided,cases with citation: --- ..----tJ_-~A- ..------------."-.--
Date: J·6 or oj, ~~l s- AORfor petitioner(s)/appellant(s)
the provisions of theAdvocatesAct 1961,and having its office at 21 RouseAvenue,Deendayal UpadhyayaMarg,New Delhi - 110 0021
2. Bar Council of the State of Maharashtra
and Goa having its Office at High CourtExtension, Bombay - 400032.
3. Bar Council of the State of Delhi, havingits address at High Court Building,New Delhi - 110003.
4. Bombay Incorporated Law Society,having
its office at High Court New Building, NorthWing, Bombay - 400001.
5. BarAssociation of the SupremeCourt ofIndia, having its office at SupremeCourt
----- -
of India, Tilak Marg, New Delhi - 110001.
6. BarAssociation of India, having its officeat 93, LawyersChambers, SupremeCourtof India, Tilak Marg, New Delhi - 110001.
7. Union of India,
8. Reserve Bank of India, being a bodyconstituted under the provisions of theReserve BankAct, 1934 having itsprincipal office at HornimanCircle,Bombay - 400 023.
9. Directorate of Enforcement,ReseNe Bankof India, having its office at JanmabhoomiChambers, New Marine Lines, Bombay.
10. Central Board of Direct Taxes,Ministryof Finance, North Block, New Delhi.
11. Chief Commissioner of IncomeTax,Aaykar Bhavan, New Marine Lines, Bombay j
12. White & Case, a firm of lawyers havingits head office at 1155Avenue of theAmericans, New York, NewYork 10036,United States of America and with officesat the Nirmal Building, NarimanPoint,Mumbai - 400021.
13. Chadbourne& Parke, a law firm havingits head office at Rockefeller Plaza, NewYork, New York 11012-0127,United Statesof America and with offices at Hotel MauryaSheraton, new Delhi and/or at A-168,
Judgment - W.P.1526/1995
3
Judgment - W.P.1526/1995
Anand Niketan, New Delhi - 110 021.
14. Ashurst Morris Crisp having its principal
office at Broadwalla House, 5, Apollo Street,
London EC 2A- 2HA and with offices at
6, Aurangazeb Road, D-202 Chanakyapuri,
New Delhi - 110 011 India
15. Society of India Law Firms,
S-454, Greater Kailash, Part - II,
New Delhi 11- 048 ......Respondents.r
Mr.Chander Uday Singh, Senior Advocate with Mr.Anand Grover withMS.Firdaus Moosa for the petitioner.
Mr.AG. Damle for Respondent NO.2.
Mr.P.A Jani i/by Vigil Juris for Respondent NO.4.
Mr.S.U. Kamdar, Senior Advocate with Mr.Sandeep Mahadik i/by M/s.Bhasin& Co., for Respondent NO.6.
Mr.Rajinder Singh, Senior Advocate, Mr.Deobia, Senior Advocate, Mr.Rv,Desai, Senior Advocate, Mr.M.1. Sethna, Senior Advocate with Mr.AM.Sethna and Mr.vinod Joshi for respondent NO.7,9, 10 and 11.
Mr. AY. Sakhare, Senior Advocate with Mr. N.H. Munjjee & Mr.RajeshTalekar i/by M/s.K. Ashar & Co. for respondent NO.8.
Mr. N.H. Seervai, senior Advocate with Mr. Firdosh Pooniwala i/by MIs. Little& Co. for respondent NO.12.
Mr.Shiraz Rustomji with Anil Agarwal for respondent No.13.
Mr.I.M. Chagla and Mr.D.H. Khambata, Senior Advocates with Mr.SimilPurohit i/by M/s.Kanga & Co. for respondent NO.14.
Mr.S.N. Fadia i/by Mr.Naresh Fadia for Respondent No.1S.
Mr.Venkatesh Dhond with Mr.Prashant Beri i/by M/s.Beri & Co. for Applicants(Intervenors)
Judgment - W.P.1526/1995
CORAM: SWATANTER KUMAR, C.J. & J.P. DEVADHAR, J.
Judgment reserved On 4TH DECEMBER. 2009
Judgment delivered On 16TH DECEMBER. 2009
ORAL JUDGMENT (Per J.P. Devadhar, J.)
1. Basically two questions are raised in this petition. They are,
firstly, whether the permissions granted by the Reserve Bank of India to the
respondent Nos.12 to 14 foreign law firms to establish their place of
business in India (liaison office) under Section 29 of the Foreign Exchange
Regulation Act, 1973 are legal and valid ? Secondly, assuming such
permissions are valid, whether these foreign law firms could carryon their
liaison activities in India only on being enrolled as advocates under the
Advocates Act, 1961 ? To be specific, the question is, whether practising in
non litigious matters amounts to 'practising the profession of law' under
section 29 of the AdvocatesAct, 1961 ?
2. The Parliament has enacted the Advocates Act, 1961 (,1961
Act' for short) to regulate the persons practising the profession of law. To
ensure the dignity and purity of the noble profession of law, the 1961 Act
provides for establishment of the State Bar Councils and the Bar Council of
India. The Bar Councils have been created at the State level as also at the
Central level not only to protect the rights, interests and privileges of its
members but also to protect the interest of the general public by ensuring
them that the professionals rendering the legal services maintain high and
noble traditions of the profession.
Judgment - W.P.1526/1995
3. A person can be said to be practising in litigious matters when
he renders legal assistance by acting, appearing and pleading on behalf of
another person before any Court or authority. Similarly, a person can be
said to be practising in non litigious matters, when he represents to be an
expert in the field of law and renders legal assistance to another person by
drafting documents, advising clients, giving opinions, etc. There is no
dispute that for a person to practise in litigious matters, he has to be
enrolled as an advocate under the 1961Act. However, the dispute is, where
a person wants to practise in non litigious matters, whether, he should be
enrolled as an advocate under the 1961Act?
4. This writ petition is filed by a society which is duly registered
under the Societies Registration Act, 1860 as well as under the Bombay
Public Trust Act, 1960. The members of the petitioner - society are
Advocates enrolled on the rolls of various Bar Council in India and also law
students. The petitioner has filed the present writ petition in public interest
as according to them, the permission granted by the Reserve Bank of India
('RBI' for short) to the foreign law firms, namely respondents No.12 to 14 to
open liaison offices in India is totally illegal and in gross violation of the
provisions of the 1961 Act. Since the petitioner is concerned with the
practice of legal profession and particularly concerned in ensuring that the
ethical practise prevail in the legal profession in India, the petitioner seeks
declaration that the permission granted by RBI to the respondents No.12 to
14 is bad in law and that the respondentsNo.12 to 14 cannot be permitted to
carryon their activities in India unless they are enrolled as advocates under
the 1961Act.
b
Judgment - W.P.1526/1995
5. Respondents No.12 to 14 who are the foreign law firms
practising the profession of law in U.K. / U.S.A. and having branch offices in
different parts of the world had applied to the RBI during the period 1993 to
1995 seeking permission to open their liaison offices in India. In the
application filed by respondent No.12, it was stated that the activities to be
carried on by the liaison officeswere :-
"A. To act as a coordination and communications channelbetween the White & Case head office and other White& Case offices and its clients in and outside India;
B. To coordinate and liaise with the various Governmentagencies and bodies, including Reserve Bank of India;
C. To act as a coordination and communication channelbetween offices of While & Case and Indian legaladvisors assisting such offices or other clients;
D. To collect information and data in respect of clients andprospective clients and furnish the same to the headoffice and otherWhite & Case offices;
E. To establish business contacts and act as a listeningpost between the head office and the Indian entities;
F. To explore and promote the possibility of foreigninvestments and technical and financial collaborations inIndiawith clients and prospective clients;
G. To provide information regardingWhile & Case to clientsand other interested parties; and
H. To provide administrative, secretarial and other supportservices to VisitingWhile & Case personnel."
Similar applicationswere also made by respondents No.13 and
14 to the RBI.
6. On processing the applications made by respondents No.12 to
-------
Judgment - W.P.1526/1995
14, the RBI granted them permission to open their respective liaison offices
in India, subject to the conditions set out therein. The conditions imposed by
the RBI were :-
"(i) Except the proposed liaison work, representative will notundertake any other activity of a trading commercial orindustrial nature nor shall he enter into any businesscontracts in his own name without our prior permission.
(ii) No commission fees will be charged or any otherremuneration received / income earned by therepresentative for the liaison activities / servicesrendered by the representative or otherwise in India.
(iii) The entire expenses of the representative office will bemet exclusively out of the funds received from abroadthrough normal banking channels.
(iv) The representative shall not borrow or lend any moneyfrom / to any person in India without our prior permission.
(v) The representative shall not acquire, hold (otherwisethan by way of lease for a period not exceeding fiveyears) transfer or dispose of any immovable property inIndia without obtaining prior permission of the ReserveBank of India under Section 31 of the Foreign ExchangeRegulation Act, 1973.
(vi) The representative will furnish to us (on a yearly basis) :
(a) a certificate from the auditors to the effect thatduring the year no income was earned by/oraccrued to the office in India.
(b) details of remittances received from abroad dulysupport by bank certificates;
(c) certified copy of the audited final accounts of theoffice in India; and
(d) annual report of the work done by the office inIndia, stating therein the details of actual export orimport, if any, effected during period in respect ofwhich the office had rendered liaison services.
(vii) The representative in India will not have signing /commitment powers except than those which arerequired for normal functioning of representative office
Judgment - W.P.1526/1995
on behalf of the Head Office."
7. In the permission letter, it was, however, specifically stated that
the permission granted to the respondents No.12 to 14 is limited for the
purpose of Section 29 of the Foreign Exchange RegulationAct, 1973 C1973
Act' for short) and that the said permission should not be construed in any
way regularizing, condoning or in any manner validating any irregularities,
contraventions or other lapses if any under the provisions of any other law
for the time-being in force.
8. Mr.C.U. Singh, learned SeniorAdvocate appearing on behalf of
the petitioner submitted that the permission granted by RBI to respondents
No.12 to 14 under Section 29 of the 1973Act is bad in law, because, firstly,
nationals of foreign states intending to practice any profession in India can
be granted permission under Section 30 and not under Section 29 of the
9. Mr.Singh further submitted that the 1961 Act is a complete
1973 Act. Secondly, to carryon the profession of law even in non-litigious
matters, enrollment as advocates under the 1961Act was mandatory. Since
the foreign law firms were not enrolled as advocates under the 1961Act, the
RBI could not have granted permission to the respondents No.12 to 14 to
open their liaison offices in India under Section 29 of the 1973Act.
code for regulating the practice of law in India. He submitted that as per
Section 24 read with Section 29 of the 1961 Act, any person intending to
practise the profession of law must be enrolled as an advocate on any State
Bar Council established under the 1961 Act. Since the expression 'to
Judgment - W.P.1S26/199S
practice the profession of law' includes both practise in litigious matters as
well as non-litigious mattes, Mr.Singh submitted that the foreign law firms
namely respondents No.12 to 14 could not have carried on practise in non-
litigious matters without being enrolled as advocates under the 1961Act.
10. Mr.Singh further submitted that the right to practise the
profession of law cannot be said to be confined to physical appearances in
Courts / Tribunals / other authorities, but the right to practise the profession
of law necessarily includes giving legal advise to a client, drafting and
providing any other form of legal assistance. Mr.Singh submitted that the
petitioner is not aversed to the foreign law firms practising the profession of
law in India, however, the grievance of the petitioner is that the foreign law
firms cannot be permitted to practise the profession of law even in non-
litigious matters without being enrolled as advocates under the 1961Act.
11. In support of his argument that the right to practise the
profession of law includes both, practising in litigious matters as well as the
practise in non-litigious matters, Mr.Singh relied upon various decisions,
relevant portions of the said judgments are extracted herein below.
12. The Court of Appeals of New York in the matter of New York
County Lawyers Association (Roel) reported in 3 N.Y. 2D 224, inter alia
held thus :-
" Whether a person gives advice as to NewYork law, Federal law, the law of a sister State, or the law of aforeign country, he is giving legal advice. Likewise, whenlegal documents are prepared for a layman by a person in the
Judgment - W.P.1S26/199S
business of preparing such documents. that person ispracticing law whether the documents be prepared inconformity with law of New York or any other law. To holdotherwise would be to state that a member of the New YorkBar only practices law when he deals with local law, amanifestly anomalous statement.
..............................As heretofore pointed out. the public is asliable to injury when an unlicensed person gives advice to anindividual as to his legal rights under foreign law as it is with.respect to his rights under domestic law. The State need nothave separate examinations for those who will specialize inreal estate law. patent law. mining law. foreign law. or anyother law. There are many branches of the law that a Barexamination does not reach, but the test is a general onewhich all qualified applicants are required to take. And so allare equally subject to the same character qualifications. Thusit is not unreasonable to require that a person desiring toengage in the practice of foreign law be admitted to the Bar.here and be subject to the same rules as every other memberof the Bar of this State."
(emphasis supplied)
13. The Supreme Court of South Carolina in its opinion No.25757
"Based on the foregoing analysis, we hold that whennonlawyer title abstractors examine public records and thenrender an opinion as to the content of those records. they areengaged in the unauthorized practice of law. But if a licensedattorney reviews the title abstractor's report and vouches forits legal sufficiency by Signing the report, title abstractorswould not be engaged in the unauthorizedpractice of law."
reported in 2003S.C.Lexis 293, inter alia held thus :-
(emphasis supplied)
14. In the case of Legal Practice Board VIs. Wilhelmus VanDer
Zwaan reported in (2002) WASC 133, the Supreme Court of Western
Australia, has held thus :-
"The expression "administration of law" in s 77 is to be readas meaning "the practice of law" or "the practice of the law".The practice of the law includes the giving of legal advice andcounsel to others as to their rights and obligations under thelaw. and the preparation of legal instruments by which legal.
11
Judgment - W.P.1526/1995
rights are either obtained. secured or given away. althoughsuch matters may not then. or ever. be the subject ofproceedings in a court. If the giving of such advice andperformance of such services affect important rights of aperson under the law, and if the reasonable protection of therights and property of those advised and served requires thatthe person giving such advise possess legal ski" and aknowledge of the law greater than that possessed by theaverage citizen, then the giving of such advice and theperformance of such services by one for another as a courseof conduct, constitutes the practice of the law. Where aninstrument is to be shaped from a mass of facts andconditions, the legal effect of which must be carefullydetermined by a mind trained in the existing laws in order toensure a specific result and to guard against others, morethan the knowledge of the layman is required. A charge forsuch service brings it within the term "practice of the law"."
o15. The Apex Court in the case of Ex. Capt Harish Uppal VIs.
(emphasis supplied)
Union of India reported in (2003) 2 Supreme Court Cases 45, has held
thus :-
"34. The right of the advocate to practiseenvelopes a lot of acts to be performed by him in discharge ofhis professional duties. Apart from appearing in the courts hecan be consulted by his clients, he can give his legal opinionwhenever sought for, he can draft instruments, pleadings.affidavits or any other documents, he can participate in any_conference involving legal discussions, he can work in anyoffice or firm as a legal officer, he can appear for clientsbefore an arbitrator or arbitrators etc. Such a rule would havenothing to do with a" the acts done by an advocate during hispractice. He may even file vakalat on behalf of a client eventhough his appearance inside the court is not permitted.Conduct in court is a matter concerning the court and hencethe Bar Council cannot claim that what should happen insidethe court could also be regulated by them in exercise of theirdisciplinary powers. The right to practise. no doubt. is thegenus of which the right to appear and conduct cases in thecourt may be a specie. But the right to appear and conductcases in the court is a matter on which the court must anddoes have major supervisory and controlling power. Hence,courts cannot be and are not divested of control orsupervision of conduct in court merely because it may involvethe right of an advocate " " "
(emphasis supplied)
Judgment - W.P.1S26/199S
16. In the case of Supreme Court Bar Association VIs. Union of
India reported in (1998) 4 Supreme Court Cases 409, the Apex Court has
held thus :-
"58. After the coming into force of the Advocates Act, 1961,exclusive power for punishing an advocate for "professionalmisconduct" has been conferred on the State Bar Councilconcerned and the Bar Council of India. That act contains adetailed and complete mechanism for suspending or revokingthe licence of an advocate for his "professional misconduct".Since the suspension or revocation of licence of an advocatehas not only civil consequencesbut also penal consequences,the punishment being in the nature of penalty, the provisionshave to be strictly construed. Punishment by way ofsuspending the licence of an advocate can only be imposedby the competent statutory body· after the charge isestablished against the advocate in a manner prescribed bytheAct and the Rules framed thereunder.
71. Thus, after the coming force of the AdvocatesAct, 1961with effect from 19-5-1961, matters connected with theenrolment of advocates as also their punishment forprofessional misconduct is governed by the provisions of thatAct only. Since, the jurisdiction to grant licence to a lawgraduate to practise as an advocate vests exclusively in theBar Council of the State concerned, the jurisdiction tosuspend his licence for a specified term or to revoke it alsovests in the same body."
(emphasis supplied)
17. In the case of Pravin C. Shah VIs. K.A. Mohd Ali reported in
(2001) 8 Supreme Court Cases 650, the Apex Court has held thus :-
"16. . The right of the advocate to practiseenvelops a lot of acts to be performed by him in discharge ofhis professional duties. Apart from appearing in the courts hecan be consulted by his clients, he can give his legal opinionwhenever sought for, he can draft instruments, pleadings.._.affidavits or any other documents. he can participate in anyconference involving legal discussions etc "
(emphasis supplied)
Judgment - W.P.1S26/1995
18. In the light of the aforesaid decisions, Mr.Singh submitted that
the lawyers practising in litigious as well as non-litigious matters are
governed by the 1961Act and bound by the rules framed by the regulatory
body, namely, the Bar Council of India. He submitted that the Bar Council is
constituted with a view to keep check on the lawyers who render services to
their clients in litigious as well as non-litigious matters. He submitted that no
country in the world permits unregulated practise of law and, therefore, the
permission granted by the RBI to the respondents No.12 to 14, under
Section 29 of the 1973 Act to open a liaison office in India amounts to
permitting the foreign law firms to open their branch offices in India and
practise the profession of law without being enrolled as advocates under the
1961 Act. He submitted that in view of the permission granted by RBI, the
foreign law firms, namely respondents No.12 to 14 have an unfair advantage
over the advocates practising the profession of law in India, because, Indian
advocates practising in non litigious matters are subjected to the provisions
of the 1961 Act and the rules framed by the Bar Council, whereas, the
foreign law firms like respondents No.12 to 14 are neither subjected to the
1961 Act nor the rules framed by the Bar Council. Accordingly, Mr.Singh
submitted that the permission granted by RBI being in gross violation of the
provisions contained in the 1973 Act as well as the 1961 Act, the said
permission must be declared to be illegal and contrary to law.
19. Counsel for the Bar Council of India and Bar Council of
Maharashtra & Goa have adopted the arguments advanced by the counsel
Judgment - W.P.1526/1995
for the petitioner.
20. Mr.Rajinder Singh, SeniorAdvocate appearing on behalf of the
Union of India submitted that there is no proposal, as of now, to allow foreign
lawyers to practice Indian law in Indian Courts. He submitted that the
Government is still in the process of consulting all the stake holders and any
decision on the issue will be taken after considering the views of all the
stake holders. However, Counsel for the Union of India submitted that for
drafting legal documents or giving opinion on aspects of foreign or
international law, one need not be on the roll of the Bar Council. He further
submitted that if the contention of the petitioner is accepted then, no
bureaucrat will be able to draft or given opinion. He submitted that reading
various provisions of the 1961Act particularly Section 24, 29 and 45 of the
1961 Act, it becomes clear that the 1961 Act prescribes the mode and the
manner of enrolling advocates who want to practice the profession of law
before Courts, Tribunals and other authorities and provide for punitive action
against advocates who have violated the provisions contained in the 1961
Act and the rules framed by the Bar Council. Counsel for the Union of India
further submitted that the fact that the 1961Act contains penal provisions in
respect of persons illegally practicing in Courts and other authorities, and
does not provide any penal provisions tor the breaches committed by
persons practicing in non-litigious matters clearly shows that persons
practicing in non-litigious matters are not governed by the provisions of the
1961Act.
21. Counsel for the Union of India further submitted that as per the
J_(
Judgment - W.P.152611995
rules framed by the Bar Council, an advocate on being appointed as a Law
secretary is required to intimate the Bar Council to suspend his enrollment
during his tenure as Law Secretary.Similarly,a retired Supreme Court Judge
is not required to be on the role of Bar Council for drafting opinions or
carrying on the chamber practice. Referring to Section 477 of the Criminal
Procedure Code, Civil Code Manual 1986, Section 13 of the Family Courts
Act, 1984 and Consumer ProtectionRegulation, 2005, Counsel for the Union
of India submitted that the persons who are permitted to act as petition
writers in the criminal courts or persons nominated an amicus curie need not
be on the roll of the Bar Council. In these circumstances, Counsel for the
Union of India submitted that a person carrying on the profession of drafting
and giving opinion is not required to be enrolled as advocate under the 1961
Act and, therefore, no fault can be found with RBI in giving permission to the
respondents No.12 to 14 to open up their liaison offices in India.
22. Mr.Sakhare, learned Senior Advocate appearing on behalf of
RBI submitted that the permission given by RBI to the respondents No.12 to
14 was within the scope and ambit of powers vested in RBI under the 1973
Act. He submitted that Section 29(1)(a) of the 1973 Act empowers RBI to
grant permission to a resident outside India to establish a branch office or a
place of business in India. He submitted that RBI is not concerned with the
provisions contained in the 1961 Act and in any event, the permission
granted by RBI is only to establish a liaison / representative office to act as a
communication channel between the overseas principal and parties in India.
23. Counsel for RBI further submitted that the respondents No.12
Judgment - W.P.152611995
to 14 had stated in their application that they wish to undertake liaison
activities in India and further specifically stated that they will not appear in
Indian Courts and shall not practice Indian law. Since the permission
granted by RBI was limited to granting permissions to overseas entities for
undertaking specific activities enumerated in the permission letter and the
said permission was not to be construed in any way regularizing or
validating any irregularities or lapses under any other law, it cannot be said
that the permission granted by RBI to respondents No.12 to 14 is illegal or
contrary to law. Moreover, the permission granted was subject to the
respondents No.12 to 14 submitting annual report. In fact, on perusal of the
particulars furnished by the respondent NO.13,it was prima facie found that
the respondent No.13 has acted contrary to and beyond the scope of
permission granted by RBI and accordingly a show-cause notice was issued
to the respondent No.13. On receiving the reply to the show-cause notice
and on being satisfied that the respondent No.13 was functioning within the
ambit of the permission granted by the RBI, the show-cause notice was
dropped. As the permission granted by RBI does not extend to the practise
of profession of law in India, Counsel for RBI submitted that the permission
granted by RBI to open liaison offices in India cannot be faulted.
24. Mr.Seervai, learned Senior Advocate appearing on behalf of
one of the main contesting foreign law firm, namely the respondent No.12,
submitted that the argument of the petitioner that the permission granted by
RBI to the foreign law firms to establish liaison offices in India is in violation
of the 1961 Act, is completely misconceived because, the 1961 Act is
enacted by the Parliament in exercise of the powers conferred under entry
1
"Judgment - W.P.1S26/199S
77 and 78 in List I to the Seventh Schedule to the Constitution, which relate
to constitution and organization of the Supreme Court and the High Courts
as well as the persons entitled to practice before the Supreme Court and
before the High Courts. Since the source of power in enacting the 1961Act
relates to the persons entitled to practise before the Supreme Court and
before the High Court, it is clear that the 1961 Act would apply to persons
practising litigious matters before the Supreme Court and the High Courts
and the said Act would not apply to the persons practising in non-litigious
matters. He submitted that unless a legislation is enacted to regulate the
persons practising in non-litigious matters by invoking entry 26 in List III to
the Seventh Schedule to the Constitution which deals with legal, medical
and other profession, it cannot be said that the persons practising in non-
litigious matters are governed by the provisions of the 1961Act.
25. Strong reliance was placed by Mr.Seervai on the decision of
the Apex Court in the case of D.N. Mohindroo VIs. Bar Council reported in
AIR 1968 S.C. 888, (see page 893) wherein it is inter alia held thus :-
"10. .. Though the Act relates to the legalpractitioners, in its pith and substance it is an enactmentwhich concerns itself with the qualifications, enrolment, rightto practise and discipline of the advocates. As provided bythe Act once a person is enrolled by anyone of the State BarCouncils, he becomes entitled to practise in all courtsincluding the Supreme Court. As aforesaid, the Act createsone common Bar, all its members being of one class,namely, advocates. Since all those who have been enrolledhave a right to practise in the Supreme Court and the HighCourts, the Act is a piece of legislation which deals withpersons entitled to practise before the Supreme Court andthe High Courts. Therefore, the Act must be held to fall_within entries 77 and 78 of List I. As the power of legislationrelating to those entitled to practise in the Supreme Courtand the High Courts is carved out from the general power to
Judgment - W.P.1S26/199S
legislate in relation to legal and other professions in entry 26of List "I, it is an error to say, as the High Court did, that theAct is a composite legislation partly falling under entries 77and 78 of List I and partly under entry 26 of List "I."
(emphasis supplied)
In the light of the aforesaid judgment of the Apex Court,
learned counsel for respondent No.12 submitted that the question raised in
the petition being squarely covered against the petitioner, the writ petition is
liable to be dismissed.
26. Mr.Seervai further submitted that the 1961 Act is enacted to
amend and consolidate the law relating to legal practitioners and to provide
for the Constitution of Bar Councils and an All-India Bar. He submitted that
the foreign law firm like the respondent No.12 had neither sought permission
nor permission has been granted by RBI to the respondent No.12 to practise
the profession of law as legal practitioners or advocates. Permission has
been granted by RBI to open a liaison office in India which is within the
domain of RBI under the 1973 Act. Therefore, in the facts of the present
case, reference to the 1961 Act is wholly misconceived.
27. Relying on two decisions of the Apex Court one in the case of
the Bar Council Vis. TheState of U.P. reported in (1973) 1 sec 261 and
another in the case of In Re lily Isabel Thomas reported in AIR 1964 SC
855, Mr.Seervai submitted that the right to practise the profession of law
under the 1961 Act is relatable only to the advocates practising the
profession of law before Courts / Tribunals / any other authority and the said
Act has no application to the persons practising in non-litigious matters.
Judgment - W.P.1S26/199S
Mr.Seervai submitted that if the contention of the petitioner that the 1961Act
applies both to persons practicing in non-litigious matters as well as litigious
matters practised by persons before the Supreme Courts and High Courts is
accepted, then it would render the Advocates Act, 1961 ultra vires the
Constitution, because the 1961 Act is enacted in exercise of powers vested
in the Central Government under entry 77 and 78 in List of the Seventh
Schedule to the Constitution which specifically provides for enacting law
relating to persons practising in the Supreme Court and the High Courts.
Therefore, the construction put forth by the petitioner which renders the
1961Act ultra vires the construction cannot be accepted.
28. Mr.Seervai further submitted that Section 29 of the 1961Act is
merely declaratory in nature and it merely provides that from the appointed
day there shall be only one class of persons entitled to practise the
profession of law. Section 29 does not confer the right to practise the
profession of law. It is Section 33 which provides that advocates enrolled
under the 1961 Act alone are entitled to practise in any Court or before any
authority. Moreover, Section 49(1)(ag) and Section 49(1)(ah) of the 1961
Act, empower the Bar Council of India to make rules relating to the class or
category of persons entitled to be enrolled as advocates and the conditions
subject to which an advocate shall have the right to practise. Therefore, the
1961 Act which applies to persons practising in litigious matters before the
Supreme Court / High Courts / Tribunals cannot be applied to persons
practising in non-litigious matters.
29. In support of the above contentions, Mr.Seervaiplaced reliance
1
"Judgment - W.P.1526/1995
on various decisions and for the sake of convenience, relevant portions of
the respective judgments are extracted herein below. In the case of
Sushma Suri VIs. Govt. of National Capital Territory of Delhi & Another
reported in (1999) 1 Supreme Court Cases 330, the Apex Court inter alia
held thus :-
"6. If a person on being enrolled as an advocate ceasesto practise law and takes up an employment. such a personcan by no stretch of imagination be termed'as an advocate.However, if a personwho is on the rolls of any Bar Council isengaged either by employment or otherwise of the Union orthe State or any corporate body or person practises before acourt as an advocate for and on behalf of such Government,corporation or authority or person, the question is whethersuch a person also answers the description of an advocateunder the Act. That is the precise question arising for ourconsideration in this case.
9. . The expression "members of the Bar" in therelevant Rule would only mean that particular class ofpersons who are actually practising in courts of law asaleaders or advocates. In a very general sense an advocateis a person who acts or pleads for another in a court and if aPublic Prosecutor or a Government Counsel is on the rolls ofthe Bar Council and is entitled to practise under the Act, heanswers the description of an advocate.
10. ............. The test. therefore. is not whether suchperson is engaged on terms of salary or by payment ofremuneration. but whether he is engaged to act or plead onits behalf in a court of law as an advocate. In that event theterms of engagement will not matter at all. What is ofessence is as to what such law officer engaged by theGovernment does - whether he acts or pleads in court onbehalf of his employer or otherwise. If he is not acting orpleading on behalf of his employer, then he ceases to be anadvocate. If the terms of engagement are such that he doesnot have to act or plead, but does other kinds of work, thenhe becomes a mere employee of the Government or thebody corporate. Therefore, the Bar Council of India hasunderstood the expression "advocate" as one who is actuallypractising before courts which expression would includeeven those who are law officers appointed as such by theGovernment or body corporate."
(emphasis supplied)
1
"Judgment - W.P.1526/1995
30. In the case of V. Sudeer VIs.Bar Council of India reported in
(1999) 3 SupremeCourt Cases176, the Apex Court inter alia held thus :-
"25. Section 49(1)(ag) also deals with the class orcategory of persons entitled to be enrolled as advocates.Thus, by the said provision, the Bar Council of India inexercise of its rule-making power can add to the class ofpersons contemplated by Section 29 by enlarging the saidclass of advocates entitled to practise as full-fledgedadvocates. Entitlement to practise the profession of Lawnecessarily means full-fledged entitlement to plead andargue cases of their clients before the courts of law. Therecannot be any truncated right to practise the profession ofLaw which is sought to be culled out by Shri P.P. Rao,learned Senior Counsel for the Bar Council of India on aconjoint reading of Sections 29 and 49(1)(ag) of theAct."
(emphasis supplied)
31. The Apex Court in the case of Indian Council of legal Aid
and Advice VIs. Bar Council of India reported in (1995) 1 see 732, has
inter alia held thus:
"3. It will be seen from the above provisions that unless aperson is enrolled as an advocate by a State Bar Council, heshall have no right to practise in a court of law or before anyother Tribunal or authority. Once a person fulfils therequirements of Section 24 for enrolment, he becomesentitled to be enrolled as an advocate and on such enrolmenthe acquires a right to practise as stated above. Having thusacquired a right to practise he incurs certain obligations inregard to his conduct as a member of the noble profession.The bar Councils are enjoined with the duty to act assentinels of professional conduct and must ensure that thedignity and purity of the profession are in no wayundermined. Its job is to uphold the standards ofprofessional conduct and etiquette. Thus, every State BarCouncil and the Bar Council of India has a public duty toperform, namely, to ensure that the monopoly of practicegranted under the Act is not misused or abused by a personwho is enrolled as an advocate. The Bar Councils havebeen created at the State level as well as the Central levelnot only to protect the rights, interests and privileges of its_
Judgment - W.P.1S26/199S
members but also to protect the litigating public by ensuringthat high and noble traditions are maintained so that the_purity and dignity of the profession are not jeopardized. It isgenerally believed that members of the legal profession havecertain social obligations, e.g., to render "pro bono publico"service to the poor and the underprivileged. Since the dutyof a lawyer is to assist the court in the administration ofjustice, the practice of law has a public utility flavour and,therefore, he must strictly and scrupulously abide by theCode of Conduct behoving the noble profession and mustnot indulge in any activity which may tend to lower the imageof the profession in society. That is why the functions of theBar Council include the laying down of standards ofprofessional conduct and etiquette which advocates mustfollow to maintain the dignity and purity of the profession."
(emphasis supplied)
32. The Apex Court in the case of Jamilabai VIs. Shankarlalreported inAIR 1975 S.C. 2202, has inter alia held thus :-
......... There is no statutory provision decisive of thisissue (whether a pleader can compromise a Suit in theinterest of his client, though the vakalatnama is silent) andwe have to garner the principles from various factors like thestatus and significance of the legal profession in society, thewider powers conferred on lawyers as distinguished fromordinary agents on account of the triune facets of the role ofan advocate vis-a-vis the client, the Court and the public andits traditions and canons of professional ethics and etiquette.Above all, the paramount consideration that the Bench andthe Bar form a noble and dynamic partnership geared to thegreat social goal of administration of justice puts the lawyerappearing in the Court in a class by himself and to comparehim with an ordinary agent may be to lose sight of the lawyeras engineer of the rule of law in society."
(bracketed portion is supplied)
33. The Apex Court in the case of Ashwini Kumar VIs.Arabinda
Bose reported in AIR 1952 S.C. 369, held thus :-
"6. A brief historical survey of the functions, rights andduties of legal practitioners in this country may facilitateappreciation of the contentions of the parties. Before theIndian High Courts Act of 1861 (24 and 25 Vict. Ch. 104)was enacted, there were, in the territories subject to the
------ --_.
Judgment - W.P.1526/1995
British rule in India, Supreme Courts exercising jurisdictionmainly in the Presidency Towns, and Sudder Courtsexercising jurisdiction over the mufassil. Though theSupreme Courts were given, by the Charter Acts and theLetters Patent establishing them, power to enroll Advocateswho could be authorized by the rules to act as well as toplead in the Supreme Courts rules were made empoweringAdvocates only to appear and plead and not to act, whileAttorneys were enrolled and authorised to act and not toplead. In the Sudder Courts and the Courts subordinatethereto, pleaders who obtained a certificate from thoseCourts were allowed both the act and plead.
15. It seems reasonable, therefore, to assume that thepractice of law in this country generally involves the exerciseof both the functions of acting and pleading on behalf of alitigant party: in other words, the Bar in India, generallyspeaking is organised as a single agency. Accordingly.when the Legislature confers upon an advocate "the right topractise" in a Court, it is legitimate to understand thatexpression as authorising him to appear and plead as wellas to act on behalf of suitors in that Court, It is true that theword "practise" used in relation to a given profession meanssimply the pursuit of that profession and involves theexercise of the functions which are ordinarily exercised bythe members of the profession. But it seems to be fallaciousto relate that expression, as applied to an advocate, either,on the one hand, to the Court in which the advocate isenrolled or, on the other, to the Court in which he seeks toexercise the statutory right conferred on him. It must, in ouropinion, be related to the general constitution of the bar inIndia as a single agency in dealing with the litigant public, asystem which prevails all over this vast country except intwo small pockets where a dual agency imported fromEngland was maintained, owning, as we have seen, tohistorical reasons.
16. We are accordingly unable to accept the suggestionthat because the advocates of the Supreme Court are not,under the Rules of that Court, entitled to act, the word"practise" as used by Parliament in s. 2 must be understoodin the restricted sense of appearing and pleading only.Parliament was. of course, aware that the right of theadvocates of the Supreme Court to practise in that Courtwas confined only to appearing and pleading. but the objectof s. 2 was to confer upon a designated body of persons,namely, the advocates of the Supreme Court, a right topractise in other Courts, viz. the various High Courts inIndia, whether or not they were already enrolled in suchCourts. This statutory right, which is conferred on theSupreme Court Advocates in relation to other Courts and
Judgment - W.P.152611995
which they did not have before, cannot, as a matter ofconstruction, be taken to be controlled by reference to whatthey are allowed or not allowed to do in the Supreme Courtunder the Rules of that Court. Such Rules are liable to bealtered at any time in exercise of the rule-making powerconferred byArt. 145 of the Constitution."
(emphasis supplied)
34. This Court in the case of Mu/chand Gu/abchand VIs.
Mukund S. Bhide reported in AIR 1952 Bom 296, has inter alia held thus :-
''Therefore, his right to practise is controlled by thisimportant provision that any other law for the time being inforce may restrict or take away his right. Therefore, if theCo-operative SocietiesAct were to provide that an advocateof the High Court of Bombay shall not practise before thearbitral tribunal set up under that Act, then the right of theadvocate will be circumscribed by the provisions of that law.It should be remembered that it is not the fact that a manhas passed a law examination or has acquired a law degreethat entitles him to practise in Courts of law; his right topractise depends upon his being enrolled as an advocateand he is enrolled as an advocate on terms and conditionslaid down in the Bar Councils Act. Therefore, as I saidbefore, his very charter which entitles him to practise laysdown conditions and limitations, and one of the conditionsand limitations is that he can only· practise before suchtribunals as the law permits him and he may not practisebefore such tribunals as the law lays down as beingprohibited to lawyers."
(emphasis supplied)
In the light of the aforesaid decisions, counsel for respondent
No.12 is submitted that the expression "right to practise the profession of
law" is restricted to the practise in litigious matters and cannot be extended
to the persons practising in non-litigiousmatters.
35. Mr.Seervai further submitted that prior to the 1961 Act, the
Indian Bar Councils Act, 1926 was enacted with a view to consolidate and
Judgment - W.P.1S26/199S
amend the law relating to the legal practitioners entitled to practice in certain
Courts in the Provinces of India. The 1961Act was enacted by repealing the
1926Act. Therefore, in the absence of any intention to the contrary, it must
be held that the 1926Act as well as the 1961Act provide for the rights and
obligations of the legal practitioners practising the profession of law before
the Courts / Tribunals / other authorities. The submission is that when a
statute is repealed and re-enacted and words in the repealed statute are
reproduced in the new statute, then, ordinarily, the words in the re-enacted
statute should be interpreted in the sense the said words in the repealedAct
were judicially interpreted. In support of the above contention, he relied on a
decision of the Apex Court in the case of State of Madras VIs. Gannon
Dunkerley & Co. reported in AIR 1958 S.C. 580 and a decision of the Apex
Court in the case of Bengal Immunity Co. Limited VIs. State of Bihar
reported in AIR 1955 S.C. 661.
36. Alternatively, Mr.Seervaisubmitted that even assuming that the
expression 'to practice the profession of law' in Section 29 of the 1961 Act
applies to persons practising in litigious matters as well as non-litigious
matters, then and in that event, the liaison activities carried on by the
respondent No.12 cannot be said to fall in any of the above two categories,
because the activity carried by their liaison office in India was only a liaison
activity and not an activity covered under the 1961 Act and, therefore, the
permission granted by RBI under Section 29 of the 1973Act to carryon the
liaison activities in India cannot be faulted.
37. Lastly, Mr.Seervai submitted that the respondent No.12 has
Judgment - W.P.1526/1995
performed the liaison activities within the frame work of the terms and
conditions imposed by the RBI. The report submitted by the Officers of RBI
bear testimony to the claim of respondent NO.12. He submitted that the
argument that the respondent No.12 ought to have applied for permission
under Section 30 of the 1973Act is without any merit because that section
requires foreign nationals to take prior permission before taking up
employment etc. in India wherein the foreign exchange acquired would be
required to be remitted outside India. In the present case, the foreign law
firms were not taking up any employment in India and they were not seeking
to carryon trade or business in Indiawhich involved forwarding remittances
outside India. Therefore, the respondent No.12 could not have applied for
permission under Section 30 of the 1973Act. For all the aforesaid reasons,
Mr.Seervai submitted that the permission granted by RBI to open liaison
offices in India under Section 29 of the 1973 Act was valid and to such a
case the 1961Act would not be applicable.
38. Counsel for respondent No.13 and 14 while adopting the
arguments advanced by Mr.Seervai, submitted that the respondent No.13
and 14 have not violated any of the conditions imposed by RBI and,
therefore, the activities carried on by respondent Nos.13 & 14 being within
the framework of the permission granted by R.B.I., the writ petition is liable
to be dismissed.
39. We have carefully considered the rival submissions.
40. In the present case, the core dispute is with reference to the
Judgment - W.P.1526/1995
permission granted by RBI to the respondents No.12 to 14 to open their
liaison offices in India under Section 29 of the 1973Act. The respondent No.
12 to 14 are the foreign law firms practising the profession of law in U.K. I
U.S.A. and other parts of the word. However, even after establishing the
liaison offices in India, the said foreign law firms have not enrolled
themselves as advocates under the 1961Act.
41. The first question to be considered herein is, what were the
liaison activities carried on by the foreign law firms in India? In the affidavit
in reply, these foreign law firms have stated that they have opened the
liaison offices in India mainly to act as a coordination and communications
channel between the head office I branch offices and its clients in and
outside India. Since the Head Office and the branch offices of the foreign
law firms are engaged in providing various legal services to their clients
carrying on wide range of businesses all over the world, the liaison activity
carried on in India, namely, to act as a coordination and communication
channel would obviously be relating to providing legal services to the clients.
The respondent No.12 has further claimed in its affidavit in reply that their
liaison activity inter alia included providing "office support services for
lawyers of those offices working in India on India related matters" and also
included drafting documents, reviewing and providing comments on
documents, conducting negotiations and advising clients on international
standards and customary practice relating to the client's transaction etc. It is
contended by the respondent No.12 to 14 that they never had and has no
intention to practise the profession of law in India. Thus, from the affidavit in
reply, it is evident that the liaison activities were nothing but practising the
Judgment - W.P.152611995
profession of law in non litigious matters.
42. The question then to be considered is, whether the foreign law
firms could carryon the practise in non litigious matters in India by obtaining
permission from R.B.I. under section 29 of the 1973 Act? Section 29 of the
1973 Act provides that without the permission of RBI, no person resident
outside India or a person who is not a citizen of India but is resident in India
or a Company which is not incorporated in India shall establish in India a
branch office or other place of business, for carrying any activity of a trading,
commercial or industrial nature. Foreign law firms engaged in practising the
profession of law in the foreign countries cannot be said to be engaged in
industrial, commercial and trading activities. The liaison activities of
respondent Nos. 12 to 14 in India being activities relating to the professionof
law, no permission could be granted to the foreign law firms under section
29 of the 1973 Act. The Apex Court in the case of M.P. Electricity Board
Vis. Shiv Narayan reported in (2005) 7 Supreme Court Cases 283 has
held that there is a fundamental distinction between the professional activity
and the activity of a commercial character. The Apex Court has further held
that to compare the legal profession with that of trade and business would
be totally incorrect. Therefore, in the facts of the present case, the RBI
could not have granted permission to carryon the practise in non litigious
matters by opening liaison offices in India under Section 29 of the 1973Act.
43. It is not the case of the foreign law firms that the activity carried
on by their liaison offices in India are different from the activity carried on by
them at their head office and the branch offices world over. In fact, it is the
__J
1"
Judgment - W.P.1526/1995
specific case of respondents No.12 to 14 that the main activity at their liaison
offices in India was to act as a coordination and communication channel
between the head office / branch office and its clients in and outside India.
Thus, the activity carried on by the foreign law firms at their Head Office,
branch offices and liaison offices in India were inextricately linked to the
practise in non litigious matters. Section 29 of the 1973 Act relates to
granting permission for business purposes and not for professional purposes
and, therefore, the RBI could not have granted permission to these foreign
law firms under Section 29 of the 1973Act.
44. It appears that before approaching RBI, these foreign law firms
had approached the Foreign Investment Promotion Board (FIPB for short) a
High Powered body established under the New Industrial Policy seeking
their approval in the matter. The FIPB had rejected the proposal submitted
by the foreign law firms. Thereafter, these law firms sought approval from
RBI and RBI granted the approval in spite of the rejection of FIPB. Though
specific grievance to that effect is made in the petition, the RBI has chosen
not to deal with those grievances in its affidavit in reply. Thus, in the present
case, apparently, the stand taken by RBI & FIPB are mutually contradictory.
45. In any event, the fundamental question to be considered herein
is, whether the foreign law firms namely respondent Nos.12 to 14 by
opening liaison offices in India could carryon the practise in non litigious
matters without being enrolled asAdvocates under the 1961Act?
46. Before dealing with the rival contentions on the above
Judgment - W.P.1S26/1995
question, we may quote Sections 29, 30, 33 and 35 of the 1961 Act, which
read thus:
"29. Advocates to be the only recognised class ofpersons entitled to practise law.. Subject to the provisionsof this Act and any rules made thereunder, there shall, asfrom the appointed day, be only one class of persons entitledto practise the profession of law, namely, advocates.
(not brought into force so far)
30. Right of advocates to practise. - Subject toprovisions of this Act, every advocate whose name isentered in the State roll shall be entitled as of right topractise throughout the territories to which this Act extends, -
(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorizedto take evidence;
(iii) before any other authority or person beforewhom such advocate by or under any law forthe time being in force entitled to practise.
33. Advocates alone entitled to practise. - Except asotherwise provided in this Act or in any other law for the timebeing in force, no person shall, on or after the appointed day,be entitled to practise in any Court or before any authority orperson unless he is enrolled as an advocate under this Act."
35. Punishment of advocates for misconduct - (1) Whereon receipt of a complaint or otherwise a State Bar Councilhas reason to believe that any advocate on its roll has beenguilty of professional or other misconduct, it shall refer thecase for disposal to its disciplinary committee.
(i-A) The State Bar Council may, either of its own motion oron application made to it by any person interested, withdrawa proceeding pending before its disciplinary committee anddirect the inquiry to be made by any other disciplinarycommittee of that State Bar Council.
(2) The disciplinary committee of a State Bar Council [***]shall fix a date for the hearing of the case and shall cause anotice thereof to be given to the advocate concerned and tothe Advocate-General of the State.
(3) The disciplinary committee of a State Bar Council after
Judgment - W.P.1526/1995
giving the advocate concerned and the Advocate-General anopportunity of being heard, may make any of the followingorders,namely:-
(a) dismiss the complaint or, where the proceedingswere initiated at the instance of the State Bar Council,direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice or such periodas it may deem fit;
(d) remove the name of the advocate from the State rollof advocates.
(4) Where an advocate is suspended from practice underclause (c) of sub-section (3), he shall, during the period ofsuspension, be debarred from practising in any Court orbefore any authority or person in India.
(5) Where any notice is issued to the Advocate-General undersub-section (2), the Advocate-General may appear before thedisciplinary committee of the State Bar Council either inperson or through any advocate appearing on his behalf.
Explanation- In this section, (section 37 and section 38), theexpressions "Advocate-General" and "Advocate-General ofthe State" shall, in relation to the Union territory of Delhi, meanthe Additional Solicitor General of India.
47. The argument of the foreign law firms is that section 29 of the
1961 Act is declaratory in nature and the said section merely specifies the
persons who are entitled to practise the profession of law.According to the
respondent Nos. 12 to 14, the expression 'entitled to practise the profession
of law' in section 29 of the 1961 Act does not specify the field in which the
profession of law could be practised. It is section 33 of the 1961Act which
provides that advocates alone are entitled to practise in any Court or before
any authority or person. Therefore, according to respondent Nos.12 to 14
the 1961 Act applies to persons practising as advocates before any Court /
authority and not to persons practising in non litigious matters. The
Judgment - W.P.1526/1995
question, therefore, to be considered is, whether the 1961Act applies only to
persons practising in litigious matters, that is, practising before Court and
other authorities?
48. In the statements of Objects & Reasons for enacting the 1961
Act, it is stated that the main object of the Act is to establish All India Bar
Council and a common roll of advocates and Advocate on the common roll
having a right to practise in any part of the country and in any Court,
including the Supreme Court. Thus, from the Statement of Objects and
Reasons, it is seen that the 1961Act is intended to apply to (one) persons
practising the profession of law in any part of the country and (two) persons
practising the profession of law in any Court including the Supreme Court.
Thus, from the statement of objects and reasons it is evident that the 1961
Act is intended to apply not only to the persons practising before the Courts
but it is also intended to apply to persons who are practising in non litigious
matters outside the Court.
49. Apart from the above, Section 29 of the 1961 Act specifically
provides is that from the appointed day, there shall be only one class of
persons entitled to practise the profession of law, namely Advocates. It is
apparent that prior to the 1961 Act there were different classes of persons
entitled to practise the profession of law and from the appointee day all
these class of persons practising the profession of law, would form one
class, namely, advocates. Thus, section 29 of the 1961Act clearly provides
that from the appointed day only advocates are entitled to practise the
profession of law whether before any Court / authority or outside the Court
Judgment - W.P.1S26/199S
by way of practise in non litigiousmatters.
50. Section 33 of the 1961Act is a prohibitory section in the sense
that it debars any person from appearing before any Court or authority
unless he is enrolled as an advocate under the 1961Act. The bar contained
in section 33 of the 1961Act has nothing to do with the persons entitled to
be enrolled as advocates under section 29 of the 1961 Act. A person
enrolled as an advocate under section 29 of the 1961 Act, mayor may not
be desirous of appearing before the Courts. He may be interested in
practising only in non litigious matters. Therefore, the bar under section 33
from appearing in any Court (except when permitted by Court under Section
32 of the 1961Act or any otherAct) unless enrolled as an advocate does not
bar a person from being enrolled as an advocate under section 29 of the
1961 Act for practising the profession of law in non litigious matters. The
Apex Court in the case of EX-Capt.Harish Uppal (supra) has held that the
right to practise is the genus of which the right to appear and conduct cases
in the Court may be a specie. Therefore, the fact that section 33 of the 1961
Act provides that advocates alone are entitled to practise before any Court /
authority it cannot be inferred that the 1961 Act applies only to persons
practising in litigious matters and would not apply to person practising in non
litigious matters.
51. It was contended that the 1961Act does not contain any penal
provisions for breaches committed by a person practicing in non-litigious
matter and, therefore, the 1961 Act cannot apply to persons practising in
non-litigious matters. There is no merit in this contention, because, section
Judgment - W.P.1S26/199S
35 of the 1961 Act provides punishment to an advocate who is found to be
guilty of professional or other misconduct. The fact that section 45 of the
1961Act provides imprisonment for persons illegally practising in Courts and
before other authorities, it cannot be said that the 1961Act does not contain
provisions to deal with the persons found guilty of misconduct while
practising in non litigious matters. Once it is held that the persons entitled to
practise the profession of law under the 1961 Act covers the persons
practising the profession of law in litigious matters as well as non-litigious
matters, then, the penal provisions contained in section 35 of the 1961 Act
would apply not only to persons practising in litigious matter, but would also
apply to persons practising the profession of law in non-litigious matters.
The very object of the 1961Act and the Rules framed by the Bar Council of
India are to ensure that the persons practising the profession of law whether
in litigious matters or in non litigious matters, maintain high standards in
professional conduct and etiquette and, therefore, it cannot be said that the
persons practising in non litigiousmatters are not governed by the 1961Act.
52. Strong reliance was placed by the counsel for the respondent
No.12 on the decision of the Apex Court in the case of O.N. Mohindroo
(supra) in support of his contention that the 1961Act applies only to persons
practising the profession of law before Courts / Tribunals / other authorities.
It is true that the Apex Court in the above case has held that the 1961Act is
enacted by the Parliament in exercise of its powers under entry 77 and 78 in
List I of the Seventh Schedule to the Constitution. However, the fact that
entry 77 and 78 in List I refers to the persons practising before the Supreme
Court and the High Courts, it cannot be said that the 1961Act is restricted to
Judgment - W.P.1526/1995
the persons practising only before the Supreme Court and High Courts.
Practising the profession of law involves a larger concept whereas,
practising before the Courts is only a part of that concept. If the literal
construction put forth by the respondents is accepted then, the Parliament
under entry 77 & 78 in List I of the Seventh Schedule to make legislation
only in respect of the advocates practising before the Supreme Court / High
Courts and the Parliament cannot legislate under that entry in respect of
advocates practising before the District Courts / Magistrate's Courts / other
Courts / Tribunals / authorities and consequently, the 1961Act to the extent
it applies to advocates practising in Courts other than the High Courts and
Supreme Court would be ultra vires the Constitution. Such a narrow
construction is unwarranted because, once the Parliament invokes its power
to legislate on advocates practising the profession of law, then the entire
field relating to advocates would be open to the Parliament to legislate and
accordingly the 1961Act has been enacted to cover the entire field. In any
event, the question as to whether the persons practising the profession of
law exclusively in non-litigious matters are covered under the 1961 Act, or
not was not an issue directly or indirectly considered by the Apex Court in
the case of a.N. Mohindroo (supra). Therefore, the decision of the Apex
Court in the above case does not support the case of the contesting
respondents.
53. Similarly, in all other cases relied upon by the counsel for the
contesting respondents, the question as to whether a person, practising in
non-litigious matters was required to be enrolled as advocates under the
1961Act was not raised directly nor indirectly in all these cases. Therefore,
Judgment - W.P.lS26/199S
all those decisions relied upon by the counsel for the respondents are
distinguishable on facts.
54. It is not the case of the respondents that in India individuals /
law firms / companies are practising the profession of law in non-litigious
matters without being enrolled as advocates under the 1961 Act. It is not
even the case of the respondents that in the countries in which their head
office as well as their branch offices are situated, persons are allowed to
practice the profession of law in non-litigious matters without being
subjected to the control of any authority. In these circumstances, when the
Parliament has enacted the 1961Act to regulate the persons practising the
profession of law, it would not be correct to hold that the 1961 Act is
restricted to the persons practising in litigious matters and that the said Act
does not apply to persons practising in non litigious matters. There is no
reason to hold that in India the practise in non litigious matters is
unregulated.
55. It was contended by the counsel for Union of India that if it is
held that the 1961Act applies to persons practising in non-litigious matters,
then no bureaucrat would be able to draft or give any opinion in non-litigious
matters without being enrolled as an advocate. There is no merit in the
above argument, because, there is a distinction between a bureaucrat
drafting or giving opinion, during the course of his employment and a law
firm or an advocate drafting or giving opinion to the clients on professional
basis. Moreover, a bureaucrat drafting documents or giving opinion is
answerable to his superiors, whereas, a law firm or an individual engaged in
Judgment - W.P.1S26/199S
non litigious matters, that is, drafting documents / giving opinion or rendering
any other legal assistance are answerable to none. To avoid such anomaly,
the 1961 Act has been enacted so as to cover all persons practising the
profession of law be it in litigious matters or in non-litigious matterswithin the
purview of the 1961Act.
56. The argument that the 1961 Act and the Bar Councils
constituted thereunder have limited role to play has been time and again
negatived by the Apex Court. Recently, the Apex Court in the case of Bar
Council of India Vis. Board of Management, Dayanand College of Law
reported in (2007) 2 SCC 202 held thus:-
" It may not be correct to say that the Bar Council of India istotally unconcerned with the legal education, though primarilylegal education may also be within the province of theuniversities. But, as the apex professional body, the BarCouncil of India is concerned with the standards of the legalprofession and the equipment of those who seek entry into thatprofession. The Bar Council of India is also thus concernedwith the legal education in the country. Therefore, instead oftaking a pendantic view of the situation, the State Governmentand the recommending authority are expected to ensure thatthe requirement set down by the Bar Council of India is alsocomplied with. "
Thus, when efforts are being made to see that the legal profession
stand tall in this fast changing world, it would be improper to hold that the
1961 Act and the Bar Council constituted thereunder have limited role to
play in the field relating to practising the profession of law.
57. It is not in dispute that once a person is enrolled as an
advocate, he is entitled to practise the profession of law in litigious matters
Judgment - W.P.1526/1995
as well as non-litigious matters. If the argument of the respondents that the
1961 Act is restricted to the persons practising the profession of law in
litigious matters is accepted, then an advocate found guilty of misconduct in
performing his duties while practising in non-litigious matters cannot be
punished under the 1961 Act. Similarly,where an advocate who is debarred
for professional misconduct can merrily carry on the practise in non-litigious
matters on the ground that the 1961 Act is not applicable to the persons
practising the profession of law in non litigious matters. Such an argument
which defeats the object of the 1961 Act cannot be accepted.
58. It may be noted that Rule 6(1) in Chapter III Part VI of the Bar
Council of India Rules framed under section 49(1) (ah) of the 1961 Act
provides that an advocate whose name has been removed by an order of
the Supreme Court or a High Court or the Bar Council as the case may be,
shall not be entitled to practise the profession of law either before the Court
and authorities mentioned under section 30 of the 1961 Act, or in chambers,
or otherwise. The above rule clearly shows that the chamber practise,
namely, practise in non litigious matters is also within the purview of the
1961 Act.
59. Counsel for the Union of India had argued that the Central
Government is actively considering the issue relating to the foreign law firms
practising the profession of law in India. Since the said issue is pending
before the Central Government for more than 15 years, we direct the Central
Government to take appropriate decision in the matter as expeditiously as
possible. Till then, the 1961 Act as enacted would prevail, that is, the
persons practising the profession of law whether in litigious matters or non
----- --
Judgment - W.P.1S26/1995
litigious matters would be governed by the 1961 Act and the Bar Councils
framed thereunder, apart from the powers of the Court to take appropriate
action against advocateswho are found guilty of professional misconduct.
60. For all the aforesaid reasons, we hold that in the facts of the
present case, the RBI was not justified in granting permission to the foreign
law firms to open liaison offices in India under Section 29 of the 1973 Act.
We further hold that the expressions I to practise the profession of law' in
section 29 of the 1961Act is wide enough to cover the persons practising in
litigious matters as well as persons practising in non litigious matters and,
therefore, to practise in non litigious matters in India, the respondent Nos.12
to 14 were bound to follow the provisions contained in the 1961 Act. The
petition is disposed of accordinglywith no order as to costs.
Chief Justice
J.P. Devadhar, J.
IN THE SUPREME COURT OF INDIA
[SCRf Order XXII Rule 3(1) (a)]
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2015
(Arising from impugned final judgment and common order dated 16December 2009 passed by the Hon'ble High Court of Judicature atBombay in Writ Petition (C) No. 1526 of 1995).
IN THEMAnER OF Positionof Parties
In the In this
High Court Court
Global Indian LawyersA Society registered under theSocietiesRegistration Act,Having its RegisteredOffice atB-4/8, Safdarjung Enclave,New Delhi- 110029Through Secretary NOTA PARTY PETITIONER
VERSUS
1. Bar Council of India, established underthe provisions of the AdvocatesAct 1961,and having its office at 21 RouseAvenue,Deendayal UpadhyayaMarg,New Delhi - 110 002. RespondentNo.1 RespondentNo.1
2. Bar Council of the State of Maharashtraand Goa having its Office at High CourtExtension, Bombay - 400 032.
RespondentNo.2 RespondentNo.2
3. Bar Council of the State of Delhi, havingits address at High Court Building,New Delhi - 110 003. RespondentNO.3 RespondentNO.3
4. Bombay Incorporated Law Society, havingits office at High Court New Building, NorthWing, Bombay - 400 001.
RespondentNo.4 RespondentNo.4
41.~
5. Bar Association of the Supreme Court of.... India, having its office at Supreme Courtof India, Tilak Marg, New Delhi - 110 001.
Respondent No. 5 Respondent No.5
6. Bar Association of India, having its officeat 93, Lawyers Chambers, Supreme Courtof India, Tilak Marg, New Delhi - 110 001.
Respondent NO.6 Respondent No. 67. Union of India,
Through Secretary Department of Home,North Block, New Delhi 110001.
Respondent No. 7 Respondent No. 7
8. Reserve Bank of India, being a bodyconstituted under the provisions of theReserve Bank Act, 1934 having itsprincipal office at Horniman Circle,Bombay - 400023.
Respondent No. 8 Respondent No. 8
9. Directorate of Enforcement, Reserve Bankof India, having its office at JanmabhoomiChambers, New Marine Lines, Bombay.
Respondent No. 9 Respondent NO.9
10. Central Board of Direct Taxes, Ministryof Finance, North Block, New Delhi.
Respondent No. 10 Respondent No. 10
11. Chief Commissioner of Income Tax,Aaykar Bhavan, New Marine Lines, Bombay
Respondent No. 11 Respondent No. 1112. White & Case, a firm of lawyers having
its head office at 1155 Avenue of theAmericans, New York, New York 10036,United States of America and with officesat the Nirmal Building, Nariman POint,Mumbai - 400 021.
Respondent No. 12 Respondent No. 12
13. Chadbourne & Parke, a law firm havingits head office at Rockefeller Plaza, NewYork, New York 11012-0127, United Statesof America and with offices at Hotel MauryaSheraton, new Delhi and/or at A-168,Anand Niketan, New Delhi - 110 021.
Respondent No. 13 Respondent No. 13
14. Ashurst Morris Crisp having its principaloffice at Broadwalla House,S, Apollo Street,London EC 2A- 2HA and with offices at6, Aurangazeb Road, D-202 Chanakyapuri,New Delhi - 110 011 India
16. LAWYERSCOLLECTIVE,a Society registeredUnder the SocietiesRegistrationAct and underThe Bombay PublicTrusts act, having its officeAt 4th Floor, Jalaram Jyot, 63, Janmabhoomi Marg,Fort, Bombay - 400 001 (India)
Petitioner No. 1 RespondentNo. 16(All are Contesting Respondents)
TO
THEHON'BLETHECHIEFJUSTICE
ANDHISCOMPANIONJUDGESOF
THESUPREMECOURTOF INDIA
HUMBLE PETITION OF THEPETITIONERABOVENAMED
MOSTRESPECTFULLYSHOWETH:
1. The Petitioner seeks leave to assail the impugned Judgment and final order
dated 16 December 2009 passed by the Hon'ble High Court of Judicature at
Bombay in Writ Petition (C) No. 1526 of 1995 by way of a Special Leave
Petition under Article 136 of the Constitution of India. The Petitioner is
aggrieved by the impugned order whereunder the Hon'ble High Court has
erroneously held that to practice the profession of law in India, a foreign law
firm has to fulfill the qualification of being enrolled as advocates under the
AdvocatesAct, 1961.
lA. It is submitted that no Letter Patents Appeal lies against the impugned
Judgment and final order dated 16 December 2009 passed by the Hon'ble High
Court of Judicature at Bombay in Writ Petition (C) No. 1526 of 1995.
2. QUESTIONS OF LAW:
The following substantial questions of law arise for due consideration of
this Hon'ble Court:-
A. Whether there is any provision under the Advocates Act, 1961
and/or the Bar Council of India Rules whereby a 'Law Firm' is
required to be registered for the purposes of practicing the
profession of law in India or does the Advocates Act, 1961 only
regulate the individual lawyer?
B. Whether there is any restriction under the Advocates Act 1961
which restrictions an appropriately qualified Indian lawyer and/or
an Indian citizen, who is also appropriately qualified in a foreign
jurisdiction, to practice both Indian law as well as non-Indian law
of the jurisdiction where the person is so qualified?
C. Whether there is any restriction under the provisions of the
Advocates Act, 1961 and/or the Bar Council of India Rules
whereby a Foreign Law Firm is prohibited from establishing an
office in India?
D. Whether there is any bar under the Advocates Act, 1961 and/or
the Bar Council of India Rules which prohibit the foreign law firms
and foreign qualified lawyers from practicing foreign law on
permanent basis in India?
E. Whether there is any bar under the Advocates Act, 1961 and/or
the Bar Council of India Rules which prohibit the foreign law firms
from establishing their offices in India and employing/retaining
Indian qualified lawyers for practicing Indian Law in India?
F. Whether the impugned judgment and order of the Hon'ble High
Court of Bombay is anti-thesis to the concept of reciprocity
contained under the provisions of Section 47 of the Advocates Act,
1961 and hence against the public policy of India?
G. Whether the impugned judgment and order of the Hon'ble High
Court of Bombay is premises on a specious reasoning by assuming
that the work conducted by foreign law firms in India would go
unregulated?
~-.H. Whether the Hon'ble High Court was justified in holding that the foreign
lawyers cannot come to India and conduct non-litigious practice in the field
of foreign law and/or on international legal issues, in light of the aims and
objects of the International Commercial Arbitration introduced in the
Arbitration and Conciliation Act, 1996 as also in the national interest of
India vide its policy to internationalize the fraternity of law in India?
3. DECLARATIONIN TERMSOFRULE3(2) :
The Petitioners state that no other petition seeking leave to appeal has
been filed by them against the impugned judgment and order.
4. DECLARATIONIN TERMSOFRULE5:
That Annexures P-1 to P-2 produced alongwith the Special Leave Petition
is true copies of the pleadings/documents which formed part of the
records of the case in the Court/Tribunal below against whose order the
leave to appeal is sought for in this petition.
5. GROUNDS:
Leaveto Appeal is sought for on the following amongst other grounds:
5.1. It is submitted that one of the most effective methods to provide
international exposure to the lawyers in India is the entry of foreign law
firms into India. The Petitioner is thereby aggrieved by the findings of
the impugned judgment of the Hon'ble High Court of Bombay which
erroneously places a qualification on foreign firms to register as
advocates under the Advocates Act, when there is the no such
restriction under the Advocates Act or under the Bar Council of India
Rulesto prohibit a foreign law firm from establishing an office in India.
5.2. Because the Hon'ble High Court of Bombay vide its impugned
order while upholding the bar to Foreign Law Firms, not
registered under the Advocates Act, 1961 from practicing in
India has proceededon an incorrect reading of the concept of a
law firm. That a law firm is only a structure, sometimes in the
form of partnership, or a LLP, or a sole proprietorship under
whose umbrella each advocate, individually qualified, acts as a
lawyer. Collectively, a group of lawyers form a law firm and
operate under that banner. It is each individual lawyer who is
independently regulated. A law firm is only the umbrella under
which they act.
5.3. It is further respectfully submitted that under the provisions of
Advocates Act, 1961, it is only the individual lawyers who are
required to be registered and not the law firms in India. Such
registered lawyers collectively form a law firm, which is only a
structure, sometimes in the form of partnership, an LLP, or a
sole proprietorship. Hence, the necessary corollary to this
requirement would entail that even in respect of a foreign law
firm, it is not the 'firm' which is required to be registered under
the Advocates Act (as has been held by the High Court of
Bombay), but the individual lawyers of that firm seeking to
practice Indian law who are mandated to enroll under the
provisions of the AdvocatesAct.
5.4. As such, law firms, whether they comprise of Indian qualified
lawyers and/or foreign qualified lawyers are based on a similar
model: it is the individual lawyers who are the qualified
persons. Therefore, a blanket restriction on foreign law firms to
establish offices in India under the pretext that they cannot be
enrolled as advocates under the Advocates Act is wholly
misconceived.
5.5. Because the Courts have not delved upon the requirements
under the Advocates Act and the BCI Rules for registration of
lawyers based upon the demarcation of the practice of the
profession of law into the practice of Indian law and the
practice of foreign law. That the Courts have also not
considered the possibility of whether a foreign law firm could
have Indian qualified lawyers join the firm and practice Indian
law, whereas the foreign lawyers could practice only foreign
law.
5.6. It is submitted that the practice of profession of law can be
demarcated into practice of Indian law and the practice of
foreign law. The AdvocatesAct as well as the BCI Rules ("BCI
Rules"), do not prohibit the practice of foreign law within
India. The Advocates Act and the BCI Rules only apply to the
practice of Indian law, except in so far as set out at paragraphs
24 to 26 hereinbelow. It does not regulate the profession of
foreign law. The profession of foreign law is governed by laws
of each foreign state.
5.7. Further, it is submitted that the Courts below have graveiy
faiied to consider an instance where an appropriately qualified
Indian lawyer and/or an Indian citizen, who is also
appropriately qualified in a foreign jurisdiction, is entitled to
practice both Indian law as well as non-Indian law of the
jurisdiction where the person is so qualified. That a contrary
reading of the provisions of AdvocatesAct, 1961 and/or the Bar
Council Rules would amount to a violation of the Freedom to
practice any profession, or to carryon any occupation, trade or
business as guaranteed under Article 19(1)(g) of the
Constitution of India.
5.B. In relation to the practice of Indian law, the Petitioner states
that the practice of the profession of law in India is governed by
the provisions of the AdvocatesAct as well as by the BCI Rules.
Section 29 of the Act stipulates "advocates" as the only
recognized class of persons entitled to practice law. An
"advocate" has been defined under Section 2 (a) of the Act to
mean "an advocate entered in any roll under the provisions ofthis Act."
5.9. The relevant provisions are set out below:
"24. Persons who may be admitted as advocates on a Stateroll.- (1) Subject to the provisions of this Act, and the rules madethereunder, a person shall be qualified to be admitted as anadvocate on a State roll, if he fulfills the following conditions,namely:-
(a) he is a citizen of India:
Provided that subject to the other provisions contained in this Act,a national of any other country may be admitted as an advocateon a State roll, if citizens of India, duly qualified, are permitted topractise law in that other country;
(b) he has completed the age of twenty-one years;
(c) he has obtained a degree in law-
(i) before the 12th day of March, 1967, from any University inthe territory of India; or
(iii) after the 12th day of March, 1967, save as provided in subclause (iiia), after undergoing a three year course of study in lawfrom any University in India which is recognized for the purposesof this Act by the Bar Councilof India;
29. Advocates to be the only recognized class of personsentitled to practice law.-Subject to the provisions of this Act andany rules made thereunder, there shall, as from the appointedday, be only one class of persons entitled to practice theprofession of law, namely, advocates.
30. Right of advocates to practise.-Subject to provisions of thisAct, every advocate whose name is entered in the State roll shallbe entitled as of right to practise throughout the territories towhich this Act extends,-
(i) in all courts including the SupremeCourt;
(ii) before any tribunal or person legally authorised to takeevidence; and
(iii) before any other authority or person before whom suchadvocate is by or under any law for the time being in forceentitled to practise.
33. Advocates alone entitled to practise. - Except as otherwiseprovided in this Act or in any other law for the time being in force,no person shall, on or after the appointed day, be entitled topractise in any Court or before any authority or person unless heis enrolled as an advocate under this Act."
5.10. The Petitioner submits that a reading of Sections 24, 29, 30 and
33 clearly shows that it deals with persons entitled to practice
the profession of Indian law. It does not restrict a person or a
duly qualified advocate from practicing 'a foreign law, if that
person is also duly qualified under the rules and regulations
governing the practice of such foreign law. It is respectfully
submitted that any other reading would be contrary to Article
19(1)(g) of the Constitution of India because that would
amount to an unreasonable restriction on the citizens of India
from being permitted to qualify to practice under a foreign law
and not be able to conduct that practice while in India.
5.11. The Petitioner further states that the legal profession is
regulated by the State Bar Councils (the "SBes") established
under Section 3 of the AdvocatesAct, as well as the Bar Council
of India (the "Bel") established under Section 4 of the
Advocates Act. Both these bodies, i.e. the SBCsas well as the
BCI have clearly demarcated responsibilities enumerated under
Sections 6 and 7 of the Advocates Act respectively. Under
Section 6, the SBCs are responsible for, inter alia, admitting
advocates into its rolls as well as preparing and maintaining the
rolls. Under Section 7 of the Advocates Act, the BCI lays down
the standards of professional conduct and etiquette for
advocates, laying down procedure to be followed by the
disciplinary committee, supervise and control the SBCs,etc. It
is submitted that the BCI Rules also so not restrict the practice
of foreign law by duly qualified lawyers including citizen of
India, as that would be contrary to the provisions of the
AdvocatesAct and/or unconstitutional.
5.12. In fact within a foreign law firm, as is also the case with a
domestic law firm, it can only be a duly Indian qualified
advocate who would be entitled to practice Indian law.
Therefore, if a foreign law firm intends to practice Indian law, it
must necessarily eng~ge an Indian advocate for providing the
service in relation to Indian law. Moreover, apart from the
practice of Indian law, the foreign law firm would also be
entitled to practice foreign law through its foreign law qualified
lawyers. The Petitioner respectfully submits that there is no
prohibition either under the Advocates Act or under the BCI
Rules on such foreign qualified lawyers from practicing foreign
law and as such, the blanket prohibition on entry of such firms
in India is ante-thesis to the objectives of developing India on
the lines of a desired destination for conducting International
Commercial Arbitrations, and enhancing its economic growth,
where the economic growth is always intertwined to the growth
of the legal profession, which is the backbone of every
economy.
5.13. It is submitted that like the other professional service sectors,
India is currently possessedwith a vast amount of skilled legal
practitioners. However, their exposure to international best
practices in the legal profession is currently being curtailed
and/or denied on the basis of a perception amongst certain
members of the legal fraternity that internationalizing the legal
profession in India would be detrimental to the Indian legal
profession. The Petitioner respectfully states that nothing could
be further from the truth: internationalizing the legal profession
in India will only assist in giving Indian lawyers far more
opportunities within the legal profession than those available
today and allow India to adopt international best practices in
the field of law. For example, it is respectfully submitted that
with the coming in of the large accountancy firms like KMPG,
Ernst & Young, Delloitte etc. the chartered accountancy
profession has expanded manifold in India and young Indian
accountants now have the opportunity of working in
multinational accountancy practices. The Petitioner respectfully
submits that there is no reason why the same would not
happen to the legal profession in India, if globalization of the
legal profession is allowed to take place in India.
5.14. In fact, it is respectfully submitted that the Union Economic
Survey 2012-13, which was published as a part of the Union
Budget 2012-13 reported that the legal services in India has
been growing at a steady rate of 8.2 per cent in the last few
years. It is also to be noted that India is home to the second
largest number of registered lawyers, second only to the United
States of America. The Union EconomicSurvey further notes:
"Chapter X
Legal Services
10.49 Legal services have been growing at a steady rate of8.2 per cent in each of the years from 2005-6 to 2011-12.The Indian legal profession today consists of approximately1.2 million registered advocates, around 950 law schools,and approximately 4 to 5 lakh law students across thecountry. Every year, approximately 60,000-70,000 lawgraduates join the legal profession in India. India is ranked45, with a score of 4.5, in terms of judicial independencebythe Global Competitiveness Report 2012-13, animprovement from 51st rank in 2011-12 ....
10.50 The practice of law has however changed drasticallyin the past few decades due to liberalization and associatedeconomic growth in India. With industrialization and FDIinflows, the corporate legal sector in India has beenwitnessing tremendous growth, as also legal processoutsourcing (LPO). In India the practice of law is governedby the Advocates Act of 1961. Under this Act, foreign lawfirms are not allowed to engage in practice of law in India.Many foreign legal firms have set up liaison offices(currently permitted under the law), while a few haveestablished referral relationships with Indian firms. Giventhat India has benefited from opening up to foreigncompetition in many other areas, and given that Indianlawyers are offering services across the world (see below),India should explore allowing foreign law firms greateraccessto the Indian market."
5.15. In fact, it is respectfully submitted that the Union Economic
Survey 2013-14, which was published as a part of the Union
Budget 2013-14 reported that the legal services in India has
been growing at a steady rate of 8.2 per cent in the last few
years. It is also to be noted that India is home to the second
largest number of registered lawyers, second only to the United
States of America. The Union EconomicSurvey further notes:
"Chapter X
Legal Services
10.39 Legal services have been growing at a steady rate of 8.2percent in each of the years from 2005-06 to 2012-13. India isranked 40, with a score of 4.7, in terms of judicialindependence by the Global Competitiveness Report 2013-14,an improvement from 45th rank in 2012-13. As regardsefficiency of the legal framework in settling disputes, India isranked 62nd, with a score of 3.8, a decline of three positionsfrom 59th rank a year before. India is ranked 48th when itcomes to the efficiency of the legal framework in chaliengingregulations, with a score of 3.8, an improvement from 52ndposition in the previous year.
10.40 The National Legal Services Authority (NALSA)constituted under the Legal Services Authorities Act 1987monitors and evaluates implementation of legal aidprogrammes and lays down policies and principles for makinglegal services available under the Act. To familiarize lawstudents of the country with the problems faced by the massesignorant about their rights and remedies under the law, theLegal Services Clinic in Unlversitv, Law Colleges and otherInstitutions schemewas started in 2013. During 2013-14 morethan 22.23 lakh persons have benefited through legal aidservices in the country. Out of them, about 29,000 personsbelong to the scheduled castes, 24,844 to the scheduled tribes,more than 58,883 are women, and 8,134 are children. Duringthis period, more than 1,13,838 Lok Adalats have beenorganized which settled more than 90.14 lakh cases including1.17 lakh motor accident claim cases."
5.16. That having regard to the above submission, it is evident that
there is an impending need expressed by the Central
Government as well to take appropriate measures to globalize
the legal profession and tap into the international market. Such
a move will only build the capacity of the legal practitioners in
India, preparing them for an integrated future. Further, as
legal services and economic development go hand in hand, it is
submitted that with India's marches towards becoming a global
economy, a necessarycorollary would be to globalize the legal
profession so as to give Indian lawyers the best available
opportunities in the legal profession in their own motherland.
5.17. Further, the High Court in its impugned judgment has held that
"practice of the profession of law" under Sections 29 and 30 of
the Advocates Act includes litigious, i.e. appearances and filing
documents before the Courts as well as non-litigious, i.e.
advisory practice in India. The basis of the judgment for
disallowing a foreign law firm from practicing is based on the
erroneous premise that a foreign law firm is not registered
under the Advocates Act. The Petitioner respectfully submits
that such reasoning is based on the incorrect premise and on
an incorrect appreciation of what constitutes a law firm,
because it is always only the individual lawyers who are
regulated by the Advocates Act and the BCI Rules and not law
firm.
5.18. It is respectfully submitted that the Hon'ble Madras High Court,
in the impugned judgment, has examined the practice of the
profession of law from the perspective of Indian law and foreign
law as being two facets of the profession. The Hon'ble High
Court has held:
"59. As noticed above, Section 2(a) of the Advocates Act defines'Advocate' to mean an Advocate entered in any roll under theprovisions of the Act. In terms of Section 17(1) of the Act, everyState Bar Council shall prepare and maintain a roll of Advocates,in which shall be entered the names and addresses of - (a) allpersons who were entered as an Advocate on the roll of any HighCourt under the Indian Bar Council Act, 1926, immediately beforethe appointed date, and (b) all other persons admitted to beAdvocates on the roll of the State Bar Council under the Act on orafter the appointed date. In terms of Section 24(1) of the Act,subject to the provisions of the Act and the Rules madethereunder, a person shall be qualified to be admitted as anAdvocate on a state roll if he fulfils the conditions - (a) a citizen ofIndia, (b) has completed 21 years of age and (c) obtained adegree in Law. The Proviso to Section 24(1)(a) states that subjectto the other provisions of the Act, a National of any other countrymay be admitted as an Advocate on a State roll, if a citizen ofIndia, duly qualified is permitted to practice law in that othercountry. In terms of Section 47(1) of the Act, where any countryspecified by the Central Government by Notification preventscitizens of India practicing the profession of Law or subjects themto unfair discrimination in that country, no subject of any suchcountry shall be entitled to practice the profession of Law in India.In terms of sub-section (2) of Section 47, subject to the provisionof sub-section (1), the Bar Council of India may prescribeconditions, if any, subject to which foreign qualifications in lawobtained by persons other than citizens of India shall berecognized for the purpose of admission as an Advocate under theAct. Thus, Section 47 deals with reciprocity. As per the Statementof Objects and Reasons of the Advocates Act, it was a law enactedto provide one class of legal practitioners, specifying the academicand professional qualifications necessary for enrolling as apractitioner of Indian Law, 'and only Indian citizens with a Law
Degree from a recognized Indian University could enroll asAdvocates under the Act. The exceptions are provided under theProviso to Section 24(1)(a), Section 24(1)( c)(iv) and Section47(2). In the light of the Scheme of the Act, if a lawyer from aForeign Law Firm visits India to advice his client on mattersrelating to the law which is applicable to their country, for whichpurpose he 'flies in and flies out' of India, there could not be a barfor such services rendered by such Foreign Law Firm/ForeignLawyer.
60. We are persuaded to observe so, since there may be severaltransactions in which an Indian company or a person of Indianorigin may enter into transaction with a foreign company, and thelaws applicable to such transaction are the laws of the said foreigncountry. There may be a necessity to seek legal advice on themanner in which the Foreign Law would be applied to the saidtransaction, for which purpose if a lawyer from a Foreign Law Firmis permitted to fly into India and fly out advising their client on theForeign Law, it cannot be stated to be prohibited. The corollarywould be that such Foreign Law Firm shall not be entitled to doany form of practice of Indian Law either directly or indirectly. Theprivate Respondents herein, namely the Foreign Law Firms, haveaccepted that there is express prohibition for a Foreign Lawyer ora Foreign Law Firm to practice Indian Law. It is pointed out that ifan interpretation is given to prohibit practice of Foreign Law by aForeign Law Firms within India, it would result in a manifestlyabsurd situation wherein only Indian citizens with Indian Lawdegree who are enrolled as an Advocate under the Advocates Actcould practice Foreign Law, when the fact remains that ForeignLaws are not taught at graduate level in Indian Law schools,except Comparative Law Degree Courses at the Master's level."
5.19. The Petitioner respectfully states and submits that it is evident
that the Hon'ble High Court of Bombay and the Hon'ble High
Court of Madras did not go into the question of whether a
foreign law firm could have Indian qualified lawyers join the
firm and practice Indian law, as it was dealing with a question
of whether foreign qualified lawyers practicing foreign law could
practice Indian law. The Petitioner is thus setting out the
position comprehensively.
5.20. Because the concerns that foreign lawyers and foreign law
firms, if allowed to set up, would be unregulated, are merely a
red herring. In this regard, the Petitioner respectfully states
that (1) the Advocates Act is already sufficiently equipped to
regulate foreign lawyers practicing in India even if they are not
qualified in India, and (2) these lawyers are regulated by their
respective Bar Associations in their area of practice. The
regulations that govern these lawyers who would practice
foreign law in India, without being qualified as an advocate for
the practice of Indian law, are set out below.
5.21. Because every country has its own independent set of rules to
regulate the practice of the profession of law. In fact, in New
York, and in the United Kingdom, the Bar Council Rules
specifically provide that in case the dually qualified lawyer opts
to practice that law in another country, he would be required to
adhere to the local bar council regulations in addition to those
in his home country. For example, an Indian citizen and/or a
person qualified under the Advocates Act who is called to the
Bar in India as well as in the UK, is permitted to carry on
practice of U.K. law outside the UK as well. In the United
Kingdom, the General Council of the Bar of England and Wales
(also known as the England and Wales Bar Council), though its
independent Bar Standards Board, prescribes the Code of
Conduct to the followed by all members of the England & Wales
Bar. The Code of Conduct as applicable to the England & Wales
Barristers sets out, in rather express terms, the duties of a
barrister, especially when it comes to international work. The
relevant provision of the Code of Conduct is set out below:
"Part I - Preliminary
General Purpose of the Code
106. Subject to the International Practice Rules (reproduced inAnnex A) this Code applies to International work and whether abarrister is practising in England and Wales or elsewhere.
Annex A - The International Practicing Rules
1. "International work" means practice as a barrister:
(a) where the work (i) relates to matters or proceedingsessentially arising taking place or contemplated outside Englandand Wales and (ii) is to be substantially performed outsideEngland and Wales; or
(b) where the lay client carries on business or usually residesoutside England and Wales provided that:
(i) the instructions emanate from outside England and Wales; and
(ii) the work does not involve the barrister in providing advocacyservices.
2. In connection with any International work, a barrister mustcomply with any applicable rule of conduct prescribed bythe law or by any national or local Bar of (a) the placewhere the work is or is to be performed (b) the place whereany proceedings or matters to which the work relates are takingplace or contemplated, unless such rule is inconsistent with anyrequirement of Part III of this Code ("Fundamental Principles").[emphasis supplied]
4. In relation to International work substantially performed outsideEnglandand Wales:
(e) NotWithstanding paragraph 201, a barrister who is practisingas a foreign lawyer and who does not:
(i) give advice on English law, or
(ii) supply legal services in connection with any proceedings orcontemplated proceedings in Englandand Wales (other than as anexpert witness on foreign law),
shall not be treated as a practising barrister for the purposes ofthe Code.
6. A practising barrister who supplies legal services as a barrister(other than to his employer) outside England and Wales must becovered (and in the case of an employed barrister his employermust be covered) by insurance against claims for professionalnegligence arising out of the supply of his services in an amountnot less than the minimum level of insurance cover required bylaw or by the rules of the Bar in the place where the services aresupplied or, if there is no such minimum, the current minimumsum insured for barristers practising in England and Wales.
7. A barrister who solicits work in any jurisdiction outside Englandand Wales must not do so in a manner which would be prohibitedif the barrister were a member of the local Bar."
5.22. Similarly, an Indian citizen and/or a person qualified under the
Advocates Act who is also qualified to the Bar in New York is
eligible to practice New York law outside New York. In a case
where assuming an Indian citizen who is a New York qualified
lawyer and chooses to practice New York law in India, he would
be governed by both the New York regulations as well as the
BCI regulations. Under the New York Rules of Professional
Conduct, it is stated:
"RULE 8.5:
DISCIPLINARY AUTHORITY AND CHOICE OF LAW
(a) A lawyer admitted to practice in this state is subject to thedisciplinary authority of this state, regardless of where thelawyer's conduct occurs. A lawyer may be subject to thedisciplinary authority of both this state and another jurisdictionwhere the lawyer is admitted for the same conduct. [emphasissupplied]
(b) In any exercise of the disciplinary authority of this state,the rules of professional conduct to be applied shall be asfollows:
(1) For conduct in connection with a proceeding in a courtbefore which a lawyer has been admitted to practice (eithergenerally or for purposes of that proceeding), the rules to beapplied shall be the rules of the jurisdiction in which the courtsits, unless the rules of the court provide otherwise; and
(2) For any other conduct:
(i) If the lawyer is licensed to practice only in this state, therules to be applied shall be the rules of this state, and
(ii) If the lawyer is licensed to practice in this state and anotherjurisdiction, the rules to be applied shall be the rules of theadmitting jurisdiction in which the lawyer principally practices;provided, however, that if particular conduct clearly has itspredominant effect in another jurisdiction in which the lawyeris licensed to practice, the rules of that jurisdiction shall beapplied to that conduct."
5.23. Therefore, an Indian citizen and/or a person qualified under the
Advocates Act who has an additional qualification from a foreign
jurisdiction, for example the United Kingdom or New York,
ought to be allowed to practice not just Indian law while in
India but also English law/New York law (as the case may be)
in accordance with the English and/or New York Rules. In such
cases, the lawyer would be regulated by both BCI rules as well
as the regulations applicable to registered lawyers in the foreign
jurisdiction.
5.24. It is also respectfully submitted that all these jurisdictions
across the world have adequate provisions similar to the ones
under the Advocates Act to regulate the conduct of legal
professionals, and the procedure for any disciplinary actions to
be initiated in case of any complaints against the lawyer. As
such, to suggest that these lawyers would not be regulated is
incorrect.
5.25. Moreover, it is pertinent to note that most of the major
jurisdictions across the world already require their lawyers to be
bound by the code of conduct of the foreign jurisdiction if they
are working out of that country. Therefore, if an England and
Wales Barrister or a New York lawyer were to provide legal
services in India, even if it pertained to English law and New
York law respectively, there is still an obligation upon them
emanating from their Bar Councils to adhere to the code of
conduct prescribed for lawyers in India. Therefore, it is wrong
to say that these foreign lawyers will act without being
regulated.
5.26. The Petitioner, in the interest of brevity, further craves leave to
bring forth the regulations in other major countries at the time
of the hearing.
5.27. Because the impugned judgment is once again premises on a
wholly misconceived footing that nationality is a primary
criterion for practice of law in India. Contrary to said notion, it
is submitted that the Advocates Act does not restrict foreign
nationals duly qualified, from practicing Indian law but also
prescribes certain prerequisites for permitting such persons to
be called to the Bar in India.
5.28. In this regard, three provisions of the AdvocatesAct, when read
together provide the basis for permitting foreign nationals to
practice Indian law in India. These are Section 24(1)(a),
Section 24(1)(c)(iv) and Section47, all of which are reproduced
below:
"24. Personswho may be admitted as advocates on a State roll.(1) Subject to the provisions of this Act, and the rules madethereunder, a person shall be qualified to be admitted as anadvocate on a State roll, if he fulfills the following conditions,namely:-
60
(a) he is a citizen of India:
Provided that subject to the other provisions contained in this Act,a national of any other country may be admitted as an advocateon a State roll, if citizens of India, duly qualified, are permitted topractise law in that other country;
(c) he has obtained a degree in law-
(iv) in any other case, from any University outside the territory ofIndia, if the degree is recognized for the purposes of this Act bythe Bar Council of India
47. Reciprocity - (1) Where any country, specified by the CentralGovernment in this behalf by notification in the Official Gazette,prevents citizens of India from practising the profession of law orsubjects them to unfair discrimination in that country, no subjectof any such country shall be entitled to practise the profession oflaw in India.
(2) Subject to the provisions of sub-section (1), the Bar Council ofIndia may prescribed the conditions, if any, subject to whichforeign qualifications in law obtained by persons other thancitizens of India shall be recognised for the purpose of admissionas an advocate under this Act."
5.29. From a bare perusal of the Advocates Act, it is evident that the
Advocates Act does not proscribe foreign citizenship as a bar on
enrolling as an advocate. In fact the Advocates Act expressly
permits foreign nationals who have obtained degrees outside
India to be enrolled with the SBCs, subject to conditions laid
down by the BCI. The BCI Rules as they stand, have not
imposed any restriction on such enrollment.
615.30. The Petitioner further states and submits that the provisions of
the Advocates Act are in fact aligned with the international
standards on the same subject. Typically, citizenship of a
person is not a factor that determines whether a person may be
enrolled as an advocate or not. The Petitioner submits that the
determining factor is the qualification necessaryfor the practice
of law, which is prescribed by the domestic legislations in each
country. This is why many Indian citizens are being called to
the Bar in various jurisdictions across the world after obtaining
the necessaryqualifications prescribed therein.
5.31. Because the impugned order is anti-thesis to the concept of
reciprocity contained under the provisions of Section 47 of the
Advocates Act, 1961 and hence against the public policy of
India. For that since a number of foreign countries permit a
person qualified under the AdvocatesAct to practice Indian law
outside of India, there has been a brain drain of Indian citizens,
many of whom have chosen to practice outside India. Indeed,
the Petitioner states that there are a number of Indian citizens
who, either on the basis of their graduation degree obtained in
India, or on the basis of them being called to the Indian Bar,
currently hold dual qualifications most notably in countries such
as United States as well as the United Kingdom. However, if
foreign law firms could establish their offices in India, such
Indian citizens would have the option of returning back and
would be able to provide the same services which they provide
outside India.
5.32. That in a number of countries, foreign law firms i.e. firms
practicing the law other than the law of the home state are
allowed to practice. This includes law firms who practice Indian
law, English law, laws of the United States of America etc.
outside their own home jurisdiction. Countries such as the
United Kingdom, the United Stales of America, Australia,
Canada, Singapore, Hong Kong, etc. to name a few, permit
Indian qualified lawyers to establish a practice in those
countries which enables them to practice Indian law. It is
respectfully submitted that many such Indian lawyers and law
firms have done exactly that.
~ IcountryNo .
1. Australia
3. China
Legal services allowed tobe practiced
All legal services,exceptChinese law
Indian law and International N/A
r -r~~----+-La-w------------------+_---------------- i2. Canada Advisory serviceson Indian No restrictions on -I
I
law and third country law independent practice.(except Canadian law) andInternational Law
I
Commercial presenceIrestricted to representative Ioffice only I
I----~
II
f------+------+--------------t-----------------__jMandatory to establish a full I
time presencefor the I
practice of law. Ii
Advisory serviceson Indian---1'-c-o-m-m--e-rc-ia-l-p-re-s--e-n-ce--~---1I laws, International law and I through a corporationoffshore corporation laws of incorporated in the Federal
I
I III---~EuropeanCommunity
5.
Malaysia
Restrictions on practice
If practice through theestablishment of a firm,then the fi rm has to beconstituted as a partnership.
Japan
6.
N/AIndian Law and PublicInternational Law
All legal services, includingJapaneselaw.
IL__-'- lMa,aY:~ J_T_e_rn~~_of_La~ba~n.Ii
III
_______ J
7. Nepal Indian law, International law Bar membership is requiredand Third Country law (except for appearance beforeNepaleseLaw) Courts
8. New All laws (including New N/AZealand Zealand law)
9. Singapore All laws (including Singapore Subject to obtaininglaw) necessary licensethat will
I be reviewed on a casetocase basis.
I
I10. South Africa All laws (including South No restrictions on the
African law) practice of foreign law.
South African law can bepracticed only by way of asole proprietorship.
11. Switzerland Indian Law, International Law N/Aand Third Country Law (exceptSwiss law)
I12. Thailand All laws (including Thai laws) If practice of law is throughIa company, then equity
participation can be up to I49% only.
13. Turkey Indian law, International Law Only Turkish nationals mayand Third Country Law (except appear before Courts, even
I Turkish law) if employed by a foreign lawfirm.
i
14. United All laws (including laws of Subject to obtaining the
Kingdom England & Wales) necessary qualification andlicense.
15.1 United All laws (including United Subject to the domesticStates law) regulations of various states
,
5.33. In this regard, the Petitioner also states that India as a country
loses out on economic benefit by not allowing such lawyers to
practice from India, as well as not allowing foreign lawyers to
practice their foreign laws in India for the purposes of servicing
the international requirements of Indian clients. Furthermore, it
is respectfully submitted that under the Advocates Act and the
BCI Rules, which regulate the practice of Indian law by
advocates enrolled across the various states in the country,
allows a person who has obtained his legal education from a
University outside of India, to also qualify as an advocate under
the AdvocatesAct.
5.34. Under Section 24(1)(c)(iv) of the Advocates Act, Indian
nationals, who have obtained a degree from Universitiesoutside
India, may still be enrolled as an advocate in India to practice
Indian law, if the BCI recognizes the University where the law
graduate obtained his degree from.
5.35. Rule 37 of Part IV of the BCI Rules, titled Rules on Legal
Education recognizes the degree of a Foreign University
obtained by an Indian national.
"CHAPTERV - Recognitionof Degree in law of a Foreign University
37. Degree of a ForeignUniversity obtained by an Indian citizen
If an Indian national having attained the age of 21 years andobtains a degree in law from a Foreign University such a degree inlaw can be recognized for the purpose of enrolment on fulfillmentof following conditions:
(i) completed and obtained the degree in law after regularly
pursuing the course for a period not less than three years in case
the degree in law is obtained Bar Council of India after graduation
in any branch of knowledge or for a period of not less than five
years if admitted into the integrated course after passing +2 stage
in the higher secondary examination or its equivalent; and
(ii) the University is recognized by the Bar Council of India and
candidate concerned passes the examination conducted by the
Bar Council of India in substantive and procedural law subjects,
which are specifically needed to practice law in India and
prescribed by the Bar Council of India from time to time as given
in the schedule XIV. Provided that those who joined LL.B. course
in a recognized Foreign University prior to 21st February, 2005 the
date of notification in this regard by the Bar Council of India need
not seek for such examination, other aforesaid condition remain
same.
Provided the same privilege shall be also extended to Persons ofIndian Origin having double citizenship in India."
5.36. As on date, 90 Universities from 13 different countries have
been granted recognition by the BCI under Rule 39 of the Legal
Education Rules, 2008.
5.37. Therefore, a person may be an advocate under the Advocates
Act even if he has obtained his degree from outside India on
the basis of the BCI recognition to the University. The
Petitioner states that a degree obtained in a foreign university
------- - - -- - -
(,bmay also entitle that person to qualify as a lawyer in that
jurisdiction, which would facilitate that person to possessdual
qualification, one in India and one in the foreign jurisdiction. In
fact it is evident that it would be unconstitutional to suggest
that an Indian citizen who has duly obtained a law degree from
a foreign University and is thus duly qualified to practice Indian
law and the law of the foreign state, would be disallowed from
doing such a practice from India.
5.38. The Petitioner also respectfully submits that the Advocates Act
does not create a bar on Indian law firms from setting up
offices in a foreign jurisdiction. Notably, a number of Indian
law firms with Indian qualified lawyers, have today opened
offices in London, NewYork, Singapore, Paris, Munich, Brussels,
etc.
5.39. In light of the above, the Petitioner therefore respectfully
submits:
a) There is no restriction under the Advocates Act or under the
BCI Rules to prohibit a foreign law firm from establishing an
office in India;
b) The practice of Indian law by the foreign law firm will have
to be undertaken by an "advocate" duly qualified under the
AdvocatesAct and the BCI Rules;
c) The foreign law firm may also practice the profession of
foreign law through its foreign qualified lawyers from the
offices in India;
d) Indian citizens, with dual qualification under the Advocates
Act as well as from a foreign jurisdiction, are entitled under
the Advocates Act to practice not just Indian law but also
foreign law for which they are dually qualified (subject to the
rules governing their conduct under foreign law) from India;
and
e) Qualification as an advocate under the Advocates Act is not
limited to citizens of India: A non-citizen from another
country which allows Indian citizens to be called to their Bar
can be eligible to be qualified as an advocate in India so
long as that person meets the qualification criteria set out
under the AdvocatesAct and the BCI Rules.
5.40. The Petitioner's objectives since its inception has been to
promote, foster and develop international law in India. The
Petitioner is of the view that the stand of the BCI towards dual
qualified lawyers as well as only foreign qualified lawyers
(Indians or non-Indians) is limiting the exposure to international
law to the young lawyers of today in India. The Petition states
the deprivation of exposure to the young lawyers of today may
in fact leave the legal profession in India stagnant, and the
Indian lawyers may not be able to compete with their
international counter parts in the years to come.
6. GROUNDS FOR INTERIM RELIEF:
No interim relief is sought for at this stage.
7. MAIN PRAYER:
The Petitioner, therefore, prays that:
(A) Grant Special Leave to Appeal under Article 136 of the
Constitution of India against impugned Judgment and final order
dated 16 December 2009 passed by the Hon'ble High Court of
Judicature at Bombay in Writ Petition (C) No. 1526 of 1995;
(B) Passany other order and/or directions as this Hon'ble Court may
deem fit and proper.
8.INTERIM RELIEF:
No interim relief is sought for at this stage.
AND FOR THIS ACf OF KINDNESS THE PETITIONER SHALL AS IN
DUTY BOUND EVER PRAY.
DRAWN BY: FILED BY:
Nakul Dewan,
Jaikriti Jadeja,
Azal Khan
Advocates (Vikash Singh)
Advocate for the Petitioner
SETTLED BY
Mr. Harish N. Salve
Senior Advocate
New Delhi
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2015
IN THE MATTER OF:
Global Indian Lawyers ... PETITIONERVERSUS
Bar Council of India & Ors ... RESPONDENTS
CERTIFICATE
Certified that the Special Leave Petition IS confined only to the
pleadings before the Court whose order is challenged and the other
documents relied upon in those proceedings. No additional facts,
documents or grounds have been taken therein or relied upon in the
Special Leave Petition. It is further certified that the copies of the
documents/Annexures attached to the Special Leave Petition are
necessary to answer the questions of law raised in the Petition. This
certificate is given on the basis of the instructions given by the
Petitioner/ person authorized by the Petitioners whose affidavit is filed in
support of the Special Leave Petition.
MR. VIKASH SINGHAdvocate for the Petitioner
New DelhiDated: j6 -O~ -'-o1,r
--- ----------- - - -
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTIONSPECIAL LEAVE PETITION (CIVIL) NO. OF 2015
IN THE MATTER OF:
Global Indian Lawyers..... Petitioner
Versus
BAR COUNCIL OF INDIA & Ors ..... Respondents
AFFIDAVIT
I, Jaikriti Sinh Jadeja, 0/0 Shri Devendra Sinh Jadeja, Aged 28 years, working
at B-5/204, Safdarjung Enclave, New Delhi 110029, do hereby solemnly affirm
and state as under:
1. That I am the Secretary of the Petitioner in the above mentioned
Special Leave Petition and as such I am weJI conversant with the facts
and circumstances of the case and competent to swear the presentaffidavit.
2 That I have gone through a copy of the List of Dates from running
pages B to _p_ and a copy of the Special Leave Petition from
paragraphs 1 to ~ from running pages yo to 3J._Q_ and I state that
the contents thereof are true and correct to my knowledge.
3. That I have gone through copies of the interlocutory applications and
state that the contents thereof are true and correct to my knowledge.
4. That the annexures attached to the present Special Leave Petition are
true and correct copies of their respective originals.
VERIFICATION
Verified at N.'ZW .. ~~. on this .J.r..t~ day of March, 2015 that the contents of
the above affidavit are correct and true to the best of my knowledge and belief
nothing material has been concealed therefrom.
\ \
APPENDIX
ADVOCATES ACT, 1961
24. Persons who may be admitted as advocates on a State roll.- (1) Subject
to the provisions of this Act, and the rules made thereunder, a person
shall be qualified to be admitted as an advocate on a State roll, if he
fulfills the following conditions, namely:- (a) he is a citizen of India:
Provided that subject to the other provisions contained in this Act, a
national of any other country may be admitted as an advocate on a State
roll, if citizens of India, duly qualified, are permitted to practise law in that
other country; (b) he has completed the age of twenty-one years; (c) he
has obtained a degree in law- (i) before the [12th day of March, 1967],
from any University in the territory of India; or (ii) before the 15th August,
1947, from any University in any area which was comprised before that
date within India as defined by the Government of India Act, 1935; or [(iii)
after the 12th day of March, 1967, save as provided in sub-clause (iiia),
after undergoing a three year course of study in law from any University
in India which is recognised for the purposes of this Act by the Bar
Council of India; or (iiia) after undergoing a course of study in law, the
duration of which is not less than two academic years commencing from
the academic year 1967-68 or any earlier academic year from any
University in India which is recognised for the purposes of this Act by the
Bar Council of India; or] [(iv) in any other case, from any University
outside the territory of India, if the degree is recognised for the purposes
of this Act by the Bar Council of India] or; [he is barrister and is called to
the Bar on or before the 31st day of December, 1976 [or has passed the
article clerks examination or any other examination specified by the High
Court at Bombay or Calcutta for enrolment as an attorney of that High
Court;] or has obtained such other foreign qualification in law as is
recognised by the Bar Council of India for the purpose of admission as
an advocate under this Act;] [***] (e) he fulfils such other conditions as
may be specified in the rules made by the State Bar Council under this
Chapter; 6[(f) he has paid, in respect of the enrolment, stamp duty, if
any, chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an
enrolment fee payable to the State Bar Council of [six hundred rupees
and to the Bar Council of India, one hundred and fifty rupees by way of a
bank draft drawn in favour of that Council]: Provided that where such
person is a member of the Schedule Castes or the Schedule Tribes and
produces a certificate to that effect from such authority as may be
prescribed, the enrolment fee payable by him to the State Bar Council
shall be 1[one hundred rupees and to the Bar Council of India, twenty-
five rupees]. [Explanation.-For the purposes of this sub-section, a
person shall be deemed to have obtained a degree in law from a
University in India on that date on which the results of the examination
for that degree are published by the University on its notice board or
otherwise declaring him to have passed that examination.] (2)
Notwithstanding anything contained in sub-section (1), [a vakil or a
pleader who is a law graduate] may be admitted as an advocate on a
State roll, if he- (a) makes an application for such enrolment in
accordance with the provisions of this Act, not later than two years from
the appointed day, and (b) fulfils the conditions specified in clauses (a),
(b), (e) and (f) of sub-section (1). [(3) Notwithstanding anything contained
in sub-section (1) a person who- (a) [***] has, for at least three years,
been a vakil or pleader or a mukhtar, or, was entitled at any time to be
enrolled under any law 6[***] as an advocate of a High Court (including a
High Court of a former Part B State) or of a Court of Judicial
Commissioner in any Union territory; or [(aa) before the 1st day of
December, 1961, was entitled otherwise than as an advocate practise
the profession of law (whether by of pleading or acting or both) by virtue
of the provision of any law, or who would have been so entitled had he
not been in public service on the said date; or] [***] (c) before the 1st day
of April, 1937, has been an advocate of any High Court in any area
which was comprised within Burma as defined in the Government of
India Act, 1935; or (d) is entitled to be enrolled as an advocate under any
rule made by the Bar Council of India in this behalf, may be admitted as
an advocate on a State roll if he- (i) makes an application for such
enrolment in accordance with the provisions of this Act; and (ii) fulfils the
conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).]
29. Advocates to be the only recognised class of persons entitled to practise
law.-Subject to the provisions of this Act and any rules made
thereunder, there shall, as from the appointed day, be only one class of
persons entitled to practise the profession of law, namely, advocates.
45. Penalty for persons illegally practising in courts and before other
authorities.-Any person who practises in any court or before any
authority or person, in or before whom he is not entitled to practise under
the provisions of this Act, shall be punishable with imprisonment for a
term which may extend to six months.
49. General power of the Bar Council of India to make rules.-[(1)] The Bar
Council of India may make rules for discharging its functions under this
Act, and, in particular, such rules may prescribe- [(a) the conditions
subject to which an advocate may be entitled to vote at an election to the
State Bar Council including the qualifications or disqualifications of
voters, and the manner in which an electoral roll of voters may be
prepared and revised by a State Bar Council; (ab) qualifications for
membership of a Bar Council and the disqualifications for such
membership; (ac) the time within which and the manner in which effect
may be given to the proviso to sub-section (2) of section (3); (ad) the
manner in which the name of any advocate may be prevented from
being entered in more than one State roll; (ae) the manner in which the
seniority among advocates may be determined; [(af) the minimum
qualifications required for admission to a course of degree in law in any
recognised University;] (ag) the class or category of persons entitled to
be enrolled as advocates; (ah) the conditions subject to which an
advocate shall have the right to practise and the circumstances under
which a person shall be deemed to practise as an advocate in a court;]
(b) the form in which an application shall be made for the transfer of the
name of an advocate from one State roll to another; (c) the standard of
professional conduct and etiquette to be observed by advocates; (d) the
standards of legal education to be observed by universities in India and
the inspection of universities for that purpose; (e) the foreign
qualifications in law obtained by persons other than citizens of India
which shall be recognised for the purpose of admission as an advocate
under this Act; (f) the procedure to be followed by the disciplinary
committee of a State Bar Council and by its own disciplinary committee;
(g) the restrictions in the matter of practice to which senior advocates
shall be subject; [(gg) the form of dresses or robes to be worn by
advocates, having regard to the climatic conditions, appearing before
any court or tribunal;] (h) the fees which may be levied in respect of any
matter under this Act; [(i) general principles for guidance of State Bar
Councils and the manner in which directions issued or orders made by
the Bar Council of India may be enforced;] U) any other matter which
may be prescribed: [Provided that no rules made with reference to
clause (c) or clause (gg) shall have effect unless they have been
approved by the Chief Justice of India:] [Provided further that] no rules
made with reference to clause (e) shall have effect unless they have
been approved by the Central Government. [(2) Notwithstanding
anything contained in the first proviso to sub-section (1), any rules made
with reference to clause (c) or clause (gg) of the said sub-section and in
force immediately before commencement of the Advocates
(Amendment) Act, 1973 (60 of 1973), shall continue in force until altered
or repealed or amended in accordance with the provisions of this Act.]
CRIMINAL PROCEDURE CODE, 1973
477. Power of High Court to make rules. (1) Every High Court may, with the
previous approval of the State Government, make rules- (a) as to the
persons who may be permitted to act as petition-writers in the Criminal
Courts subordinate to it; (b) regulating the issue of licences to such
persons, the conduct of business by them, and the scale of fees to be
charged by them. (c) providing a penalty for a contravention of any of the
rules so made and determining the authority by which such
contravention may be investigated and the penalties imposed; (d) any
other matter which is required to be, may be, prescribed. (2) All rules
made under this section shall be published in the Official Gazette.
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21..02..2012
CORAMTHE HONBLE Mr. M.Y. EQBAL, CHIEF JUSTICE
andTHE HONBLE Mr. JUSTICE T.S. SIVAGNANAMW.P. No.5614 of 2010 and M.P. Nos.1, 3 to 5 of 2010
A.K. Balaji ..Petitioners
versus
1. The Government of India,rep. by its Secretary to Government,Law Department,4th Floor, A-Wing,Shastri Bhawan,New Delhi 110001.
2. The Government of India,rep. by its Secretary to Government,Home Department, North Block,Central Secretariat,New Delhi 110 001.
3. The Government of India,rep. by its Secretary to Government,Finance Department, North Block,Lok Nayak Bhavan, New Delhi.
4. The Government of India,rep. by its Secretary to Government,Department of External Affairs,Akbar Bhavan, New Delhi 110021.
5. The Government of India,rep. by its Secretary to Government,Income Tax Department,7th Floor, Mayur Bhavan,Connaught Circle,New Delhi 110 055.
6. The Reserve Bank of India,Central Office,Centre 1, Word Trade Centre,Cuffe Parade, Colaba,Mumbai 400 005.
7. The Bar Council of India,21, ROLlseAvenue,Institutional Area,New Delhi 110 002.
8. The Bar Council of Tamil Nadu,rep. by its Secretary,High Court Campus,
Chennai 600 104.
9. Rouse,Cisons Complex,1st Floor, 150/86,Montieth Road, Egmore,Chennai 600 008, India.
desk support services, etc. do not come within the purview of the
Advocates Act, 1961 or the Bar Council of India Rules. However, in the
event of any complaint made against these B.P.O. Companies violating
the provisions of the Act, the Bar Council of India may take appropriate
action against such erring companies.
64. With this conclusion, this writ petition stands disposed of. There
shall be no order as to costs. Consequently, the connected
miscellaneous petitions are closed.
(M.Y.E., C.J.) (T.S.S., J.)
February 21,2012
The Honble the Chief Justice and T.S. Sivagnanam, J.
h ')II--r~ (Pr1
ITEM NO.25 COURT NO.7
A ,I\} N~\J R£ p- 2_j.40
SECTION XII
SUP REM E C 0 U R T o F I N D I ARECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil)No (s).17150-17154/2012
(From the judgement and order dated 21/02/2012 in WPNo.5614/2010 and MP No.1/2010, MP No.3/2010, MPNo.4/2010 and MP No.5/2010 of The HIGH COURT OFMADRAS)
BAR COUNCIL OF INDIA Petitioner(s)
VERSUS
A.K. BALAJI & ORS. Respondent(s)
(With appln (s) for exemption from filing c/c of theimpugned Judgment and permission to place addledocuments on record and PERMISSION TO FILELENGTHY LIST OF DATES and with prayer for interimrelief and office report)
Date: 04/07/2012 These Petitions were called on forhearing today.
CORAM :HON'BLE MR. JUSTICE R.M. LODHAHON'BLE MR. JUSTICE ANIL R. DAVE
For Petitioner(s) Mr. M.N. Krishnamani, Sr. Adv.Mr. Manan Mishra, Sr. Adv.
Mr. Ardhendumauli Kumar Prasad,Adv.Ms. Antima Bajaj, Adv.
For Respondent(s)R-14 & 33 Dr. Abhishek Manu Singhvi, Sr. Adv.
Mr. Manu Seshadri, Adv.Mr. ArnitBhandari, Adv. for
M/S. Dua Associates,Adv.
R-10,16,19,26,39& 40
Mr. Mukul Rohtagi, Sr. Adv.Mr. Saurabh Kirpal, Adv.Mr. M. Rishi Kumar,Adv.Mr. Mahesh Agarwal, Adv.Mr. Rishi Agrawala, Adv.
Mis. Dua Associates waive service for commonrespondent Nos. 14 and 33, Mr. E.C. Agrawala,
Advocate, waives service for common respondent Nos.10, 16, 19, 26, 39 and 40, and Mr. Sakya SinghaChaudhari, Advoca te, waives service for commonrespondent No. 18 in the special leave petitions.
Notice shall only go to the unrepresentedrespondents.
Dasti, in addition to the ordinary process, ispermitted.
In the meanwhile, it is clarified that ReserveBank of India shall not grant any permission to the
foreign law firms to open liaison offices inIndia under Section 29 of the Foreign ExchangeRegulation Act, 1973. It is also clarified that theexpression "to practice the profession of law"under Section 29 of the Advocates Act, 1961 coversthe persons practicing Li,tigious matters as wellas non-litigious matters other than contemplated inpara 63 (ii) of the impugned order and, therefore,to practice in non-litigious matters in India theforeign law firms, by whatever name called ordescribed, shall be bound to follow the provisionscontained ln the Advocates Act, 1961.
(Rajesh Dham)·Court Master
(Renu Diwan)Court Master
IN THE SUPREMECOURTOF INDIACIVIL APPELLATEJURISDICTION
LA. NO. OF 2015IN
SPECIAL LEAVEPETITION (CIVIL) NO. OF 2015
IN THE MATTER OF:Global Indian Lawyers ...PETITIONER
VERSUSBar Council of India & Ors ...RESPONDENTS
AN APPLICATION FOR PERMISSION TO FILE SPECIAL LEAVEPETITION AGAINST IMPUGNED ORDER DATED 16/12/2009PASSED BY THE HON'BLE HIGH COURT OF BOMBAY IN WRIT
PETITION NO. 1526 OF 1995
To
Hon'ble the Chief Justice of India
and his companion judges of the
SupremeCourt of India.
The humble application of theabove named Petitioner
MOST RESPECTFULLY SHOWETH:-
1. The Petitioner seeks leave to assail the impugned Judgment and final
order dated 16 December 2009 passed by the Hon'ble High Court of
Judicature at Bombay in Writ Petition (C) No. 1526 of 1995 by way of
a Special Leave Petition under Article 136 of the Constitution of India.
The Petitioner is aggrieved by the impugned order whereunder the
Hon'ble High Court has erroneously held that to practice the
profession of law in India, a foreign law firm has to fulfill the
qualification of being enrolled as advocates under the AdvocatesAct,
1961.
2. The Petitioner seeks permissionof this Hon'ble Court to read and rely
upon the contents of the Special Leave Petition and that the same
are not repeated herein for sake of brevity.
3. The Petitioner seeks permission to assail the impugned judgment and
order of the Hon'ble High Court of Bombay in as much as the
Petitioner is aggrieved by the findings of the impugned judgment
which erroneously places a qualification on foreign firms to register
as advocates under the Advocates Act, when there is the no such
restriction under the AdvocatesAct or under the Bar Council of India
Rules (the "BCI Rules") to prohibit a foreign law firm from
establishing an office in India.
4. The Petitioner being a Society registered in India of legal
professionals and appropriately qualified lawyers who are citizens of
India and are qualified to practice law in India and dedicated to
promote the internationalization of the legal fraternity, the aim and
objects for which the Society has been established includes
promoting and creating opportunities for Indian legal professionalsto
have a global outlook and acquire global and international exposure
with the inflow of international law firms into the Indian legal system.
5. Leave is sought to challenge the judgment and final order dated 16
December, 2009 passed by the Hon'ble High Court of Judicature at
Bombay on the grounds that the impugned judgment is premises on
an incorrect reading of the concept of a law firm. The Petitioner
respectfully submits that under the provisions of AdvocatesAct, 1961
it is only the individual lawyers who are required to be registered and
not the law firms in India. Such registered lawyers collectively form a
law firm, which is only a structure, sometimes in the form of
partnership, an LLP, or a sole proprietorship. Hence, the necessary
corollary to this requirement would entail that even in respect of a
foreign law firm, it is not the 'firm' which is required to be registered
under the Advocates Act (as has been held by the High Court of
Bombay), but the individual lawyers of that firm seeking to practice
Indian law who are mandated to enroll under the provisions of the
AdvocatesAct.
6. Further, it is submitted that the Hon'ble High Court of Bombay in its
impugned order has not touched the following questions of law,
which are hereinbelow raised as being imperative in the larger public
interest of the legal profession and justice delivery system, to be
adjudicated by this Hon'ble Court, namely:
i) The Courts have not delved upon the requirements under the
Advocates Act and the BCI Rulesfor registration of lawyers based
upon the demarcation of the practice of the profession of law into
the practice of Indian law and the practice of foreign law.
ii) The Courts have also not delved into the possibility of whether a
foreign law firm could have Indian qualified lawyers join the firm
and practice Indian law, whereas the foreign lawyers could
practice only foreign law.
iii) That there is no restriction under the Advocates Act 1961 which
bars an appropriately qualified Indian lawyer and/or an Indian
citizen, who is also appropriately qualified in a foreign jurisdiction,
to practice both Indian law as well as non-Indian law of the
jurisdiction where the person is so qualified and that a reading
contrary to the above would amount to violation of the Freedom
to practice any profession, or carryon any occupation, trade or
business as guaranteed under Article 19(1)(g) of the Constitution
of India.
iv) Though the Hon'ble High Court of Madras has in principle upheld
the practice of foreign law in India by foreign lawyers albeit on a
"fly in fly out basis", it is submitted that there is no restriction in
the Advocates Act or the Bar Council Rules for profession of
foreign law in India by foreign lawyers on a permanent basis as
well.
v) The Advocates Act and the BCI Rules do not regulate or prohibit
the profession of foreign law, which is governed by laws of each
foreign state and only apply to the practice of Indian law.
vi) Further, the Hon'ble High Court of Bombay has erred in assuming
that the work conducted by foreign law firms in India would go
unregulated. In this regard, it is submitted that each individual
registered lawyer in such firms would be independently regulated
under the Advocates Act, as is the case with Indian law firms.
Furthermore, the foreign lawyers practicing foreign law in such
firms would be regulated by the laws of each foreign state.
7. It is in light of the above submissions raising substantial questions of
public interest and national policy, that the Petitioner seeks leave to
assail the untenable impugned judgment of the High Court of
Bombay as it is expedient in the interest of justice and the profession
of law in India that this Hon'ble Court take into consideration the
rights of dual qualified lawyers (qualified in Indian and foreign law)
as well as only foreign qualified lawyers (Indians or non-Indians) to
practice law in India under the umbrella of a foreign law firm. The
Petitioner submits that the Society was registered with a dedicated
objective of promoting the internationalization of the legal fraternity.
The aim and objects for which the Society has been established
includes promoting and creating opportunities for Indian legal
professionals to have a global outlook and acquire global and.
international exposure with the inflow of international law firms into
the Indian legal system. The Petitioner aims to enable Indian
qualified lawyers to work with global lawyers being basedout of India
and to encourage the working of foreign qualified lawyers and Indian
qualified lawyers from India, to give Indian law students and Indian
qualified lawyers an opportunity of working at international law firms
in India and to promote the setting up of a universal global standard
of regulating legal profession and the code of conduct binding
lawyers.
8. It is in light of the above-mentioned circumstances that the Petitioner
most respectfully pray: -
PRAYER
In the premises the petitioner humbly prays that this Hon'ble
Court may graciously be pleasedto:
(a) Grant permission to Petitioner to prefer present Special Leave
Petition filed against impugned judgment and order dated 16
December 2009 passed by the Hon'ble High Court of Judicature
at Bombay in Writ Petition (C) No. 1526 of 1995; and/or
(b) pass such other and further order/s as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
present case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS INDUTY BOUND SHALL EVER PRAY.
Filed by:-
VIKASH SINGHAdvocate for the Petitioner
New Delhi
IN THE SUPREMECOURTOF INDIACIVIL APPELLATEJURISDICTION
LA. NO. OF 2015IN
SPECIAL LEAVEPETITION (CIVIL) NO. OF 2015
IN THE MATTER OF:Global Indian Lawyers ...PETITIONER
VERSUSBar Council of India & Ors ...RESPONDENTS
APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPy
OF THE IMPUGNED JUDGMENT AND ORDER
ToHon'ble the Chief Justice of Indiaand his companion judges of theSupreme Court of India.
The humble application of theabove named Petitioner
MOSTRESPECTFULLYSHOWETH:-
-1. The Petitioner seeks leave to assail the impugned Judgment and final
Special Leave Petition under Article 136 of the Constitution of India.
order dated 16 December 2009 passed by the Hon'ble High Court of
Judicature at Bombay in Writ Petition (C) No. 1526 of 1995 by way of a
The Petitioner is aggrieved by the impugned order whereunder the
Hon'ble High Court has erroneously held that to practice the profession
of law in India, a foreign law firm has to fulfill the qualification of being
enrolled as advocates under the AdvocatesAct, 1961.
2. That the instant application is being filed seeking exemption from
filing certified copy of the impugned Judgment and final order dated 16
December 2009 passed by the Hon'ble High Court of Judicature at
Bombay in Writ Petition (C) No. 1526 of 1995. That it is submitted that
the certified copies of the impugned judgment and orders dated 16
December 2009 has not been provided to the Advocate on Record for
the Petitioner as the same was not available with the instructing
Advocate. The matter is very urgent and therefore the Special Leave
Petition is being filed with a simple copy of the impugned judgment
and order.
3. That the Petitioner therefore most respectfully prays:-
PRAYER
a) exempt the Petitioner from filing the certified copy of the impugned
Judgment and final order dated 16 December 2009 passed by the
Hon'ble High Court of Judicature at Bombay in Writ Petition (C) No.
1526 of 1995;
b) pass such other/further order as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the present case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTYBOUND SHALL EVER PRAY
Filed by:-
VIKASH SINGHAdvocate for the Petitioner
New DelhiDated: L6 -OJ, '""'< OJS"
IN THE SUPREMECOURTOF INDIACIVIL APPELLATEJURISDICTION
I.A. NO. OF 2015IN
SPECIAL LEAVEPETITION (CIVIL) NO. OF 2015
IN THE MATTER OF:Global Indian Lawyers ...PETITIONER
VERSUSBar Council of India & Ors ...RESPONDENTS
AN APPLICATION FOR CONDONATION OF DELAY IN FILINGSPECIAL LEAVE PETITION
To
Hon'ble the Chief Justice of India
and his companion judges of the
Supreme Court of India.
The humble application of theabove named Petitioner
MOST RESPECTFULLY SHOWETH:-
1. The Petitioner seeks leave to assail the impugned Judqrnent and final
order dated 16 December 2009 passed by the Hon'ble High Court of
Judicature at Bombay in Writ Petition (C) No. 1526 of 1995 by way of
a Special Leave Petition under Article 136 of the Constitution of India.
The Petitioner is aggrieved by the impugned order whereunder the
Hon'ble High Court has erroneously held that to practice the
profession of law in India, a foreign law firm has to fulfill the
qualification of being enrolled as advocates under the Advocates Act,
1961.
2. The Petitioner seeks permission of this Hon'ble Court to read and rely
upon the contents of the Special Leave Petition and that the same
are not repeated herein for sake of brevity.
3. The Petitioner seeks permission to assail the impugned judgment and
order of the Hon'ble High Court of Bombay in as much as the
Petitioner is aggrieved by the findings of the impugned judgment
which erroneously places a qualification on foreign firms to register
as advocates under the Advocates Act, when there is the no such
restriction under the Advocates Act or under the Bar Council of India
Rules (the "BCI Rules") to prohibit a foreign law firm from
establishing an office in India.
4. Leave is sought to challenge the judgment and final order dated 16
December, 2009 passed by the Hon'ble High Court of Judicature at
Bombay on the grounds that the impugned judgment is premises on
an incorrect reading of the concept of a law firm.
5. It is submitted that immediately after passingof the impugned order,
there was another writ petition of similar nature, raising the same
substantial questions of law being filed before the Hon'ble High Court
of Madras by way of W.P. No. 5614/2010. That the said writ petition
came to be dismissed vide order dated 21/02/2012, which came to
be challenged by way of a Special Leave Petition before this Hon'ble
Court bearing SLP (C) No. 17150-54 of 2012. That the Hon'ble
Supreme Court was pleased to issue notice in the said matter on
04/07/2012.
6. As matters stood thus, the Petitioner Society was formed with an
objective of enabling the Internationalization of the Legal Profession
for Indian Lawyers. It was decided that one of the means to attain
the afore-said objective would be to intervene in the matter pending
before the Hon'ble Supreme Court titled as 'Bar Council of India v.
A.K. Balaji & Ors'. It is at this stage that the Petitioner Society noticed
that there were some diametrically opposite findings in the judgment
of the Hon'ble High Court of Madras as opposed to the impugned
judgment and that the said two High Courts have not considered
some substantial questions of law involving the larger interest of the
Indian legal profession. In particular, it was noted that Courts have
not delved upon the requirements under the Advocates Act and the
BCI Rules for registration of lawyers based upon the demarcation of
the practice of the profession of law into the practice of Indian law
and the practice of foreign law as also not delved into the possibility
of whether a foreign law firm could have Indian qualified lawyers join
the firm and practice Indian law, whereas the foreign lawyers could
practice only foreign law.
7. It is on account of the afore-mentioned substantial questions of law
having not been considered by either of the two High Courts, that the
Petitioner Society vide its Resolutiondated 2.0(~ resolved to prefer a
special leave petition to challenge the impugned judgment with a
view to urge certain additional issues with respect to the issue of
entry of foreign law firms in India, which have not been adhered to
or considered by either of the two High Courts in their judgments
aforementioned.
8. It is on this account that certain delay of 1~& days has•occurred in preferring this present Petition. It is submitted that the
delay so occasioned is neither on account of any willful conduct of
the Petitioner, nor due to reasons within its control. That if the
present application is not allowed, grave prejudice will be caused
to the Petitioner.
The Petitioner therefore, most respectfully pray: -
PRAYER
In the premises the petitioner humbly prays that this Hon'ble
Court may graciously be pleasedto:
(a)Condone the delay of j.9~ days in preferring the present
Special Leave Petition against impugned judgment and order
dated 16 December 2009 passed by the Hon'ble High Court of
Judicature at Bombay in Writ Petition (C) No. 1526 of 1995;
and/or
J9-(b) pass such other and further order/s as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
present case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS INDUTY BOUND SHALL EVER PRAY.
To,The Registrar,Supreme Court of India,New Delhi- 110001
25/3/2015
Global Indian Lawyers v. Bar Council of India& Ors.Diary No. of2015
Sir,
The undersigned has filed vakalatnama and preferred Special Leave Petition forthe Petitioner above-named against the impugned judgment and final order dated16 December 2009 passed by the Hon'ble High Court of Judicature at Bombay inWrit Petition (C) No. 1526 of 1995.
That the registry has raised defect No. 17 stating non-filing of resolution dated12/2/2006 and copy of the writ petition. It is stated that the resolution and WritPetition so mentioned is not relevant and necessary for filing of the presentSpecial Leave Petition. That if required, the said resolution and Writ Petition shallbe produced at the time of the hearing of the Special Leave Petition. Kindlyregistered Ilist the matter at my own risk.
Thanking You,
(VIKASH SINGH)(Advocate-on-Record for Petitioner)Registration No. : 1886