You are on page 1of 175

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.

of 2015 :

AND WITH
Application for condonation of delay in
filing Special Leave Petition.

I.A. No.

(PLEASE SEE INDEX INSIDE)

ADVOCATE-ON-RECORD FOR THE PETITIONER: - VIKASH SINGH

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INDEX
Particulars

s. No.
1.

Office Report on Limitation

2.

Listing Proforma

3.

Synopsis and List of dates

4.

Copy of the impugned judgment


and final order dated ~6 December
2009 passed by the Hon'ble High
Court of Judicature at Bpombay
in Writ Petition (CO No. 1526 of 1995

5.

Special Leave Petition with Affidavit

6.

Appendix
Advocates Act ,1961

7.

Annexure P-1
True Copy of the order dated ~l02.2012passed by the Hon'ble High Court of Judicature
at Madras rendered in Writ PetitionNo.5614/2010

8.

Annexure P-2
True Copy of the order 04.07.2012
passed by~Hon'ble
Court rendered
in SLP (C) 17150-54 of 2012

9.

Application for Permission to file


Special Leave Petition

10.

Application for exemption from filing


certified copy of the impugned judgment and order.

11.

Application for condonation of delay in


filing Special Leave Petition

12.

Letter

Pages

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149 ..1.r~
-In-

IN THE SUPREME COURT OF INDIA


[ORDER XXI RULE 3 (1) (A)]
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)
SPECIAL LEAVE PETITION (CIVIL) No.

of

2016

IN THE MATTER OF:

~wyeY'~

liUobcd~J~~

.... PETITIONER

VERSUS

~~

6f -'l~

{P.An~-

~'(/(

.... RESPONDENTS

OFFICE REPORT ON LIMITATION


1.

The petition is/are within time.

2.

The petition is barred by time and there is a delay of


days in filing the same against the order dated

l2_'16

16-/:{- '],oJ'! and

petition for condonation of lEU. days has been filed.


3.

There is a delay of
petition for condonation

days in refilling the petition and


of __

....,...
days in refilling has been

filed.

BRANCH OFFICER

Dated:

l"i.43.2015'

'\
PROFORMA FOR FIRST LISTING
.i

SECTION

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Tile case pertains to (Please tick/check the correct box):

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'

Central Act: (Title)

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Section:

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Central Rule: (Title)

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Rule No(s) :

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..

o State Act : (Title)


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o Section:
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o State Rule: (Title) .-.-- _ _N.___, A_...._
o Rule No(s) : -----N_:A
..0

... _

N.A-

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Impugned Interim Order: (Date) __

~......

Impugned Final Order/Decree:

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(Date)

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Names 0tJ udges: .ila.,J'LAo t>:I)::. .!tli'(t. ~~.

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, 1:' Nature-of

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matter:

'(b) e-mail 10:


(c) Mobile phone number:
',3. (a) Respondent No. 1: llJ,ClY'

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(c) Mobile phone number: -_._d_

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4. (a) Main ~ategory cl~ssification: _~_'CU_f'I.::a


(b) Sub classification..,
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5:. Not to be listed before:

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6. Similar/Pending matter:

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7. Criminal Matters:

(a) Whether accused/convict has surrendered:

A"'-J---

(h) FIR No. _,~--'

C2(No

Date:

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, . '(c) Police Station:


(d) Sentence Awarded: ~ __

Yes

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(e) Sentence Undergone:

8: Land Acquisition Matters:


(a) Date of Section 4 notification:

_---"N~A,.:...-_

(~) Date.ofSection 6 notification:

----Ai- Pr

(c) Date'of Section 17 notiflcation:

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9. Tax Matters: State the tax effect:


10. Special Category (first petitioner/appellant
OSenior

citizen> 65 years

Aid case

DSC/ST

only):

IV' ft

0 Woman/child 0 Disabled 0

0 In custody

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11. Vehicle Number (in case of Motor Accident Claim matters):

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12~.Decided,cases with citation:

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SYNOPSIS
The present Special Leave Petition is being preferred against the
impugned final judgement and order dated 16 December 2009, passed
by the Hon'ble High Court of Bombay in Writ Petition No.1526 of 1995,
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 (the "Advocates Act").
The Petitioner is 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 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 based out 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.
The Petitioner respectfully submits 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 Rules (the "BCI Rules") to prohibit a foreign law firm from
establishing an office in India.
Leave is sought to challenge the judgment and final order dated
16 December, 2009 passed by the Hon'ble High Court of Judicature at

c
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 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 Advocates Act.
It is further most respectfully submitted that the Hon'ble High
Court of Bombay in its impugned order as well as the Hon'ble High Court
of Madras in the case of AK Sa/aji v the Government of India reported in
2012 (1) L.W. 785 have 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:
i)

The Courts have not considered the question that an Indian


qualified lawyer can qualify in multiple jurisdictions and there is no
restriction on such Indian qualified lawyer from practicing Indian
law as well as the law of the other jurisdiction(s) where he or she
has qualified.

ii)

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.

iii)

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.

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

ff

"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 appropriately qualified lawyers on a
permanent basis as well (such lawyer could be a dually qualified
Indian citizen 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

lawyers practicing foreign law would be

regulated by the laws of each foreign state whose law they seek
to practice.
In light of the above, it is respectfully submitted that the impugned
judgment of the Hon'ble High Court of Bombay is untenable in law and 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. Hence, the present Special Leave
Petition.
LIST OF EVENTS
The Petitioner is a Society registered in India
under the Societies Registration Act, of legal
professionals 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

professionals to have a global outlook and


get

global

and

promoting

international

and . facilitating

exposure,

Indian

law

students and Indian legal professionals to


pursue foreign
promote

and

degree and courses, to


facilitate

Indian

qualified

lawyers, also being qualified in a foreign


jurisdiction, to be entitled to recognition of
their dual qualifications in India and to be
able to practise as such in and from India, to
embrace

the

growing

influence

of

globalization on the legal fraternity in India,


in order to give Indian law students and
Indian lawyers the necessary exposure to
compete with the best in the world, to enable
the Indian legal fraternity to benefit from the
opening up the legal sector with the inflow of
international law firms into the Indian legal
system with appropriately qualified lawyers,
to form an association with the aim to
promote

and

international

support

law

firms

the

entry

of

into

India,

to

participate and assist in all and any pending


litigation whereby international law firms are
unable to enter India and or set up their
offices in India, with a view to fulfill the
objectives of the Society, to grow the Indian
legal

profession

by

assisting

and

internationalizing it, to promote and facilitate


Indian lawyers from being able to practice
foreign law in India, upon being appropriately
qualified both from India and abroad, to
enable Indian qualified lawyers to work with
global lawyers being based out of India and
to encourage the working of foreign qualified

,
}-f
,

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, and so
on.

In

sum and substance, the

Petitioner's

activities focus on embracing globalization of


the legal fraternity in India, in order to give
Indian lawyers and Indian law students the
necessary exposure to compete with and
learn from the best practices in the world and
an opportunity to work along with the best
international legal practices and legal minds.
The Petitioner states that one of the most
effective methods to provide international
level exposure to the lawyers in India would
be to allow the entry of foreign law firms into
India.

1995

Lawyer's Collective, a Society registered


under the Societies Registration Act and
under the Bombay Public Trusts Act, filed a
Writ Petition in public interest being W.P. No.
1526 of 1995 before the Hon'ble High Court
of Judicature at Bombay. Vide the aforementioned writ petition, two issues were
raised for the consideration and adjudication
of the High Court, namely; Whether the
permissions granted by the Reserve Bank of
India to the Respondent No. 12 to 14 therein,
i.e., 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

permission

are

valid, whether these foreign law firms could


carryon

their liaison activities in India only

on being enrolled as advocates under the


Advocates
question

Act,

1961?

was, whether

In

particular,

practicing

the

in non-

litigious matters amounts to 'practicing the


profession of law' under Section 29 of the
Advocates Act, 1961?

17-18/11/2007

Meanwhile, pending the writ petition, the Bar


Council

of

India

held

its

Consultative

Conference wherein a Resolution of the Bar


Council of No. 17/2006
was

re-affirmed

and

dated

12/02/2006

further

it

was

unanimously resolved that the Foreign Law


Firms and Foreign lawyers

(who

are not

enrolled under the Advocates Act, 1961) will


not be allowed to practice, the 'profession of
law' in India.
It further resolved to request the Government
of India not to open up the Indian

Legal

Profession to Foreign lawyers or Foreign Law


Firms at this juncture and not to permit the
entry of Foreign Lawyers or Foreign Law
Firms into India for function or practice the
Profession of Law as Advocates, Lawyers or
Solicitors.

16/12/2009

That vide the impugned judgment and order


dated 16/12/2009, the Hon'ble High Court of
Judicature at Bombay was pleased to dispose

H
of

the

Writ

Petition

being

W.P.

No.

1526/1995 filed by Lawyers Collective by


answering the two issues raised therein
under as follows:
i)

The Division Bench of the Hon'ble High


Court held that the RBI was not
justified in granting permission to the
foreign law firms to open the liaison
offices in India under section 29 of the
1973 Act. The learned bench held that
the activity carried on by the foreign
law firms at their head office, branch
offices and liaison offices in India were
intricately linked to the practice in nonlitigious 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 1973 Act.
ii)

Secondly, the Hon'ble High Court was


pleased to hold that these foreign law
firms

could carryon

their

activities

in

India

only

enrolled

as

advocates

liaison

on
under

being
the

Advocates Act, 1961 and further held


that the expression "to practice the
profession of law" in section 29 of the
1961 Act is wide enough to cover
persons practicing in litigious matters
as well as persons practicing in nonlitigious matters in India. The foreign
law firms who were party before the
Hon'ble Bench were bound to follow

I
the provisions contained in the 1961
Act.
The learned Bench categorically ruled
that the Chamber Practice, namely,
practice in non-litigious matters is also
within the purview of the 1961 Act.

It is pertinent to note that while so


disposing of the

wit

petition,

the

Hon'ble High Court was further pleased


to direct the Central Government to
take appropriate decisions in matters
relating to foreign lawyers and foreign
law firms which is pending before the
Central Government for more than 15
years and till the pendency of the
afore-said issued related to foreign
lawyers and foreign law firms, the 1961
Act would prevail on the persons
practicing

the

irrespective of

profession
the

of

practice

law
being

litigious or non-litigious in nature.

2010

That in the year 2010, Shri. A.K. Balaji,


an advocate by profession filed a Civil
Writ Petition being W.P. No. 5614/2010
alongwith M.P. No's 1, 3to 5 of 2010 in
the Hon'ble High Court of Judicature at
Madrasinter-alia praying for issuing of a
Writ

of

Mandamus or

any

other

appropriate writ, order or direction in


the nature of Mandamus directing the
Respondents to take appropriate action
against the Respondents9 to 40 therein
or any other foreign law firms or foreign

J
lawyers who are illegally practicing the
profession of law in India and prohibit
them from having any legal practice
either in the litigious side or in the field
of

non-litigious

and

commercial

transactions in any matter within the


territory of India.

The submission of the writ petitioner


therein was premised on the reasoning
that foreign lawyers who visit India for
purposes of conducting seminars in
various parts of the Country, or for the
purposes of giving legal opinions on
international transactions to their offices
and/or client offices based in India, are
illegally carrying on the 'practice of
profession of law' in India.

The Petitioner therein also stated that


the Respondents9 to 40 are advertising
their work (practicing the profession of
law), thereby violating and contravening
the ethics and code of conduct, in India.

August 2011

The Bar Council of India, arrayed as


Respondent in

the

afore-mentioned

W.P. No. 5614/2010 filed its counter


affidavit contending that the issues
relating to the practicing the "profession
of law" by the Foreign lawyers (without
being enrolled under the Advocates Act,
1961) or coming under the rule of
reciprocity and the setting' up of offices
by the Foreign Law Firms in India

illegally

and

carrying

on

their

professional practice is no longer resintegra as these issues have already


been settled by the Judgment and order
dated 16/12/2009 passed by the High
Court of Judicature at Bombay in Writ
Petition No. 1526/1995, in the matter of
Lawyers Collective v. Bar Council of
India.

Various Foreign Law Firms were arrayed


as party respondents to the aforementioned

writ

petition

and

upon

entering appearance and filing their


counter-affidavits, the stand taken by
the

said

Respondents-Foreign Law

Firms was to the effect that:


i)

The Firms being Foreign law Firms


having their offices in various
parts of different countries, has
clients with diverse international
legal issues, who require legal
advice from different countries,
for which the firm

developed

working relationships with local


law firms in different countries.
ii)

That for Indian clients requiring


legal advice in India, the Firms
refers the work to various Indian
Lawyers and law firms located in
cities

where

such

advice

is

required. All such Indian Lawyers


are enrolled with various State
Bar Councils in India.

L
iii)

In respect of reciprocity, it was


stated that their country does not
prevent or discriminate against
Indian citizens practicing law in
their

country

and

that

the

American Bar Association Model


Rule for Licensing and Practice of
Foreign Legal Consultants which
provides that an Indian advocate
of good standing in an Indian Bar
Council

may

be

licensed to

practice law in the U.S. without


undergoing any examination.
iv)

It

was

further

adverted

that

several Indian advocates practice


law in the U.S. by associating
with U.S. licensed lawyers and
that

these

Indian

lawyers

frequently travel to the U.S. on a


temporary basis for consultations
on Indian Law issues.
v)

On

the

Applicability

of

the

Advocates Act, 1961 on foreign


lawyers, it was submitted that the
Bar Council Rues govern the
practice of Indian law only and
they do not apply to the practice
of foreign or non-Indian law.
vi)

That foreign

lawyers, who are

licensed in their jurisdictions, are


not restrained by the Advocates
Act, 1961 from advising their
Indian clients on Foreign Law
issues.

vii) As regards the allegation in respect


of participating in seminars and
conferences would

amount to

practicing law, it is stated that


participation

in a seminar or
...
conference does not constitute
practicing

law,

and

in

fact,

several Indian lawyers participate


in

seminars

and

conferences

around the world, and this in no


way constitutes practicing law.
viii) That on the aspect of absence of
regulating authority, the foreign
firms stated that the rules and
regulations
authority

of
in

the
a

regulating

country

will

generally apply to lawyers even


when they are working outside
their home countries.

21/02/2012

The Hon'ble High Court of Judicature at


Madras vide its judgment and order
dated

21/02/2012

was

pleased to

dispose of the writ petition on the


following observations:
a) Foreign
lawyers

law

and

firms

cannot

foreign

practice

the

profession of law in India either on


the litigation or non-litigation side,
unless they fulfill the requirement of
the Advocates Act, 1961 and the Bar
Council of India Rules.
b) However, there is no bar either in
the Act or the Rules for the foreign
law firms or foreign lawyers to visit

N
India for a temporary period on a 'fly
in and fly out' basis, for the purpose
of giving legal advice to their clients
in India regarding foreign law or
their own system of law and on
diverse international legal issues.
c) Moreover,.having regard to the aim
and objects of the International
Commercial Arbitration introduced in
the Arbitration and Conciliation Act,
1996, foreign lawyers cannot be
debarred to come to India and
conduct arbitration proceedings in
respect of disputes arising out of a
contract

relating

to

international

commercial arbitration.
d) The B.P.OCompanies providing wide
range of customized and integrated
services

and

functions

customers

like

Secretarial

support,

services, proof

to

its

word-processing.
transcription

reading

services,

travel desk service 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
Companiesviolating the provisions of
the Act, the Bar Council of India may
take appropriate action against such
erring companies.

Note:

The judgment

and order

dated 21/02/2012 passed by the


Hon'ble High Court of Judicature at

o
Madras in Writ Petition No. 5614/2010 titled
'A./(, Balaji vs. Bar Council of India & Ors' is
herein

produced

by

way

of

additional

documents for reason that the same is


passed subsequent to the passing of the
impugned order dated 16/12/2009.
True Copy of the order dated :<.1/tU./20(J1
rendered in Writ Petition No. 5614/2010 is
annexed hereto and marked as Annexure
P-1. (Pages1:~
...to.tJ?~.)

04/07/2012

Being aggrieved by the afore-said judgment


and order of the High Court of Judicature at
Madras, the Bar Council of India preferred a
Special Leave to Appeal, which came to be
numbered as SLP (C) No. 17150-54 of 2012,
whereby this Hon'ble Court vide its order
dated 04/07/2012

was pleased to

issue

notice.
True Copy of the order dated 04/07/2012
rendered in SLP (C) No. 17150-54 of 2012

P~d

'0'1 ~

Hd1~lL._ UlJ.Y~

is

annexed hereto and marked as Annexure P-

2. (Pages.l~oto.J_lJ./.)
2014

The present Petitioner Society came to be


registered under the Societies Registration

,,--

p
Act, with the sole aim and objective of
promoting the internationalization of the legal
fraternity. Having noticed the diametrically
opposite views taken by the two high Courts
in respect of the issue regarding entry of
Foreign Law Firms in India, the Society
thought it expedient in the interest of the legal
profession and justice delivery system to
challenge the judgment and final order dated
16/12/2009 passed by the High Court of
Judicature at Bombay in W.P. No. 1526/2009
by way of leave to appeal under Article 136 of
the Constitution of India before the Hon'ble
Supreme Court of India. As such, vide its
Resolution dated :2 0 1'1, the Petitioner Society
resolved to prefer a special leave petition 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.

J~ /03/2015

Hence, this Special Leave Petition.

Judgment

- W.P.1S26/199S

IN THE HIGH COURT OF JUDICATURE AT BOMBAY


ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1526 OF 1995

LAWYERS COLLECTIVE, a Society registered


under the Societies RegistrationAct and under
the Bombay Public Trusts Act, having its office
at 4th Floor, Jalaram Jyot, 63, Janmabhoomi
Marg, Fort, Bombay - 400 001 (India)
Vis.

1.

Bar Council of India, established under


the provisions of the Advocates Act 1961,
and having its office at 21 RouseAvenue,
Deendayal Upadhyaya Marg,
New Delhi - 110 0021

2.

Bar Council of the State of Maharashtra


and Goa having its Office at High Court
Extension, Bombay - 400032.

3.

Bar Council of the State of Delhi, having


its address at High Court Building,
New Delhi - 110 003.

4.

Bombay Incorporated Law Society, having


its office at High Court New Building, North
Wing, Bombay - 400001.

5.

Bar Association of the Supreme Court of


India, having its office at Supreme Court

......Petitioners

Judgment - W.P.1526/1995

of India, Tilak Marg, New Delhi - 110 001.


6.

Bar Association of India, having its office


at 93, Lawyers Chambers, Supreme Court
of India, Tilak Marg, New Delhi - 110 001.

7.

Union of India,

8.

Reserve Bank of India, being a body


constituted under the provisions of the
Reserve Bank Act, 1934 having its
principal office at Horniman Circle,
Bombay - 400 023.

9.

Directorate of Enforcement, ReseNe Bank


of India, having its office at Janmabhoomi
Chambers, New Marine Lines, Bombay.

10.

Central Board of Direct Taxes, Ministry


of Finance, North Block, New Delhi.

11.

Chief Commissioner of Income Tax,


Aaykar Bhavan, New Marine Lines, Bombay j

12.

White & Case, a firm of lawyers having


its head office at 1155Avenue of the
Americans, New York, New York 10036,
United States of America and with offices
at the Nirmal Building, Nariman Point,
Mumbai - 400021.

13.

Chadbourne & Parke, a law firm having


its head office at Rockefeller Plaza, New
York, New York 11012-0127,United States
of America and with offices at Hotel Maurya
Sheraton, new Delhi and/or at A-168,

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


MS.Firdaus Moosa for the petitioner.

with Mr.Anand

Grover with

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.Rajesh
Talekar 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
Purohit i/by M/s.Kanga & Co. for respondent NO.14.

with Mr.Simil

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 Advocates Act, 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.
dispute that for a person to practise in litigious matters,

There is no
he has to be

enrolled as an advocate under the 1961 Act. However, the dispute is, where
a person wants to practise in non litigious matters, whether, he should be
enrolled as an advocate under the 1961 Act?

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 respondents No.12 to 14 cannot be permitted to
carryon their activities in India unless they are enrolled as advocates under
the 1961 Act.

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 offices were :-

"A.

To act as a coordination and communications channel


between 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 Government


agencies and bodies, including Reserve Bank of India;

C.

To act as a coordination and communication channel


between offices of While & Case and Indian legal
advisors assisting such offices or other clients;

D.

To collect information and data in respect of clients and


prospective clients and furnish the same to the head
office and other White & Case offices;

E.

To establish business contacts and act as a listening


post between the head office and the Indian entities;

F.

To explore and promote the possibility of foreign


investments and technical and financial collaborations in
India with clients and prospective clients;

G.

To provide information regarding While & Case to clients


and other interested parties; and

H.

To provide administrative, secretarial and other support


services to VisitingWhile & Case personnel."

Similar applications were 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 not


undertake any other activity of a trading commercial or
industrial nature nor shall he enter into any business
contracts in his own name without our prior permission.

(ii)

No commission fees will be charged or any other


remuneration
received / income earned by the
representative for the liaison activities / services
rendered by the representative or otherwise in India.

(iii)

The entire expenses of the representative office will be


met exclusively out of the funds received from abroad
through normal banking channels.

(iv)

The representative shall not borrow or lend any money


from / to any person in India without our prior permission.

(v)

The representative shall not acquire, hold (otherwise


than by way of lease for a period not exceeding five
years) transfer or dispose of any immovable property in
India without obtaining prior permission of the Reserve
Bank of India under Section 31 of the Foreign Exchange
Regulation Act, 1973.

(vi)

The representative will furnish to us (on a yearly basis) :

(vii)

(a)

a certificate from the auditors to the effect that


during the year no income was earned by/or
accrued to the office in India.

(b)

details of remittances received from abroad duly


support by bank certificates;

(c)

certified copy of the audited final accounts of the


office in India; and

(d)

annual report of the work done by the office in


India, stating therein the details of actual export or
import, if any, effected during period in respect of
which the office had rendered liaison services.

The representative in India will not have signing /


commitment powers except than those which are
required 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 Regulation Act, 1973 C 1973
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 Senior Advocate appearing on behalf of

the petitioner submitted that the permission granted by RBI to respondents


No.12 to 14 under Section 29 of the 1973 Act 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
1973 Act. Secondly, to carryon the profession of law even in non-litigious
matters, enrollment as advocates under the 1961 Act 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.

9.

Mr.Singh further submitted that the 1961 Act is a complete

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 nonlitigious 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 nonlitigious 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 New
York law, Federal law, the law of a sister State, or the law of a
foreign country, he is giving legal advice. Likewise, when
legal documents are prepared for a layman by a person in the

Judgment - W.P.1S26/199S

business of preparing such documents. that person is


practicing law whether the documents be prepared in
conformity with law of New York or any other law. To hold
otherwise would be to state that a member of the New York
Bar only practices law when he deals with local law, a
manifestly anomalous statement.
.............................. As heretofore pointed out. the public is as
liable to injury when an unlicensed person gives advice to an
individual as to his legal rights under foreign law as it is with.
respect to his rights under domestic law. The State need not
have separate examinations for those who will specialize in
real estate law. patent law. mining law. foreign law. or any
other law. There are many branches of the law that a Bar
examination does not reach, but the test is a general one
which all qualified applicants are required to take. And so all
are equally subject to the same character qualifications. Thus
it is not unreasonable to require that a person desiring to
engage in the practice of foreign law be admitted to the Bar.
here and be subject to the same rules as every other member
of the Bar of this State."
(emphasis supplied)
13.

The Supreme Court of South Carolina in its opinion No.25757

reported in 2003 S.C. Lexis 293, inter alia held thus :"Based on the foregoing analysis, we hold that when
nonlawyer title abstractors examine public records and then
render an opinion as to the content of those records. they are
engaged in the unauthorized practice of law. But if a licensed
attorney reviews the title abstractor's report and vouches for
its legal sufficiency by Signing the report, title abstractors
would not be engaged in the unauthorized practice of law."
(emphasis supplied)
14.

In the case of Legal Practice Board VIs. Wilhelmus Van Der

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 read


as meaning "the practice of law" or "the practice of the law".
The practice of the law includes the giving of legal advice and
counsel to others as to their rights and obligations under the
law. and the preparation of legal instruments by which legal.

11
Judgment - W.P.1526/1995

rights are either obtained. secured or given away. although


such matters may not then. or ever. be the subject of
proceedings in a court. If the giving of such advice and
performance of such services affect important rights of a
person under the law, and if the reasonable protection of the
rights and property of those advised and served requires that
the person giving such advise possess legal ski" and a
knowledge of the law greater than that possessed by the
average citizen, then the giving of such advice and the
performance of such services by one for another as a course
of conduct, constitutes the practice of the law. Where an
instrument is to be shaped from a mass of facts and
conditions, the legal effect of which must be carefully
determined by a mind trained in the existing laws in order to
ensure a specific result and to guard against others, more
than the knowledge of the layman is required. A charge for
such service brings it within the term "practice of the law"."

o
15.

(emphasis supplied)
The Apex Court in the case of Ex. Capt Harish Uppal VIs.

Union of India reported in (2003) 2 Supreme Court Cases 45, has held

thus :"34.
The right of the advocate to practise
envelopes a lot of acts to be performed by him in discharge of
his professional duties. Apart from appearing in the courts he
can be consulted by his clients, he can give his legal opinion
whenever sought for, he can draft instruments, pleadings.
affidavits or any other documents, he can participate in any_
conference involving legal discussions, he can work in any
office or firm as a legal officer, he can appear for clients
before an arbitrator or arbitrators etc. Such a rule would have
nothing to do with a" the acts done by an advocate during his
practice. He may even file vakalat on behalf of a client even
though his appearance inside the court is not permitted.
Conduct in court is a matter concerning the court and hence
the Bar Council cannot claim that what should happen inside
the court could also be regulated by them in exercise of their
disciplinary powers. The right to practise. no doubt. is the
genus of which the right to appear and conduct cases in the
court may be a specie. But the right to appear and conduct
cases in the court is a matter on which the court must and
does have major supervisory and controlling power. Hence,
courts cannot be and are not divested of control or
supervision of conduct in court merely because it may involve
the 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 "professional
misconduct" has been conferred on the State Bar Council
concerned and the Bar Council of India. That act contains a
detailed and complete mechanism for suspending or revoking
the licence of an advocate for his "professional misconduct".
Since the suspension or revocation of licence of an advocate
has not only civil consequences but also penal consequences,
the punishment being in the nature of penalty, the provisions
have to be strictly construed. Punishment by way of
suspending the licence of an advocate can only be imposed
by the competent statutory body after the charge is
established against the advocate in a manner prescribed by
the Act and the Rules framed thereunder.
71.
Thus, after the coming force of the Advocates Act, 1961
with effect from 19-5-1961, matters connected with the
enrolment of advocates as also their punishment for
professional misconduct is governed by the provisions of that
Act only. Since, the jurisdiction to grant licence to a law
graduate to practise as an advocate vests exclusively in the
Bar Council of the State concerned, the jurisdiction to
suspend his licence for a specified term or to revoke it also
vests 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 practise
envelops a lot of acts to be performed by him in discharge of
his professional duties. Apart from appearing in the courts he
can be consulted by his clients, he can give his legal opinion
whenever sought for, he can draft instruments, pleadings.._.
affidavits or any other documents. he can participate in any
conference involving legal discussions etc
"
(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 1961 Act 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, Senior Advocate 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 1961 Act 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 1961 Act 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
1961 Act.

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 Protection Regulation, 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

"
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 1961 Act
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 nonlitigious matters are governed by the provisions of the 1961 Act.

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 legal
practitioners, in its pith and substance it is an enactment
which concerns itself with the qualifications, enrolment, right
to practise and discipline of the advocates. As provided by
the Act once a person is enrolled by anyone of the State Bar
Councils, he becomes entitled to practise in all courts
including the Supreme Court. As aforesaid, the Act creates
one common Bar, all its members being of one class,
namely, advocates. Since all those who have been enrolled
have a right to practise in the Supreme Court and the High
Courts, the Act is a piece of legislation which deals with
persons entitled to practise before the Supreme Court and
the High Courts. Therefore, the Act must be held to fall_
within entries 77 and 78 of List I. As the power of legislation
relating to those entitled to practise in the Supreme Court
and 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 26
of List "I, it is an error to say, as the High Court did, that the
Act is a composite legislation partly falling under entries 77
and 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. The State 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 1961 Act
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
1961 Act ultra vires the construction cannot be accepted.

28.

Mr.Seervai further submitted that Section 29 of the 1961 Act 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.Seervai placed reliance

"
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 ceases
to practise law and takes up an employment. such a person
can by no stretch of imagination be termed'as an advocate.
However, if a person who is on the rolls of any Bar Council is
engaged either by employment or otherwise of the Union or
the State or any corporate body or person practises before a
court as an advocate for and on behalf of such Government,
corporation or authority or person, the question is whether
such a person also answers the description of an advocate
under the Act. That is the precise question arising for our
consideration in this case.
9.
.
The expression "members of the Bar" in the
relevant Rule would only mean that particular class of
persons who are actually practising in courts of law as
aleaders or advocates. In a very general sense an advocate
is a person who acts or pleads for another in a court and if a
Public Prosecutor or a Government Counsel is on the rolls of
the Bar Council and is entitled to practise under the Act, he
answers the description of an advocate.
10.
............. The test. therefore. is not whether such
person is engaged on terms of salary or by payment of
remuneration. but whether he is engaged to act or plead on
its behalf in a court of law as an advocate. In that event the
terms of engagement will not matter at all. What is of
essence is as to what such law officer engaged by the
Government does - whether he acts or pleads in court on
behalf of his employer or otherwise. If he is not acting or
pleading on behalf of his employer, then he ceases to be an
advocate. If the terms of engagement are such that he does
not have to act or plead, but does other kinds of work, then
he becomes a mere employee of the Government or the
body corporate. Therefore, the Bar Council of India has
understood the expression "advocate" as one who is actually
practising before courts which expression would include
even those who are law officers appointed as such by the
Government or body corporate."
(emphasis supplied)

"
Judgment - W.P.1526/1995

30.

In the case of V. Sudeer VIs. Bar Council of India reported in

(1999) 3 Supreme Court Cases176, the Apex Court inter alia held thus :"25. Section 49(1)(ag) also deals with the class or
category of persons entitled to be enrolled as advocates.
Thus, by the said provision, the Bar Council of India in
exercise of its rule-making power can add to the class of
persons contemplated by Section 29 by enlarging the said
class of advocates entitled to practise as full-fledged
advocates. Entitlement to practise the profession of Law
necessarily means full-fledged entitlement to plead and
argue cases of their clients before the courts of law. There
cannot be any truncated right to practise the profession of
Law which is sought to be culled out by Shri P.P. Rao,
learned Senior Counsel for the Bar Council of India on a
conjoint reading of Sections 29 and 49(1)(ag) of the Act."
(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 a
person is enrolled as an advocate by a State Bar Council, he
shall have no right to practise in a court of law or before any
other Tribunal or authority. Once a person fulfils the
requirements of Section 24 for enrolment, he becomes
entitled to be enrolled as an advocate and on such enrolment
he acquires a right to practise as stated above. Having thus
acquired a right to practise he incurs certain obligations in
regard to his conduct as a member of the noble profession.
The bar Councils are enjoined with the duty to act as
sentinels of professional conduct and must ensure that the
dignity and purity of the profession are in no way
undermined.
Its job is to uphold the standards of
professional conduct and etiquette. Thus, every State Bar
Council and the Bar Council of India has a public duty to
perform, namely, to ensure that the monopoly of practice
granted under the Act is not misused or abused by a person
who is enrolled as an advocate. The Bar Councils have
been created at the State level as well as the Central level
not only to protect the rights, interests and privileges of its_

Judgment - W.P.1S26/199S

members but also to protect the litigating public by ensuring


that high and noble traditions are maintained so that the_
purity and dignity of the profession are not jeopardized. It is
generally believed that members of the legal profession have
certain social obligations, e.g., to render "pro bono publico"
service to the poor and the underprivileged. Since the duty
of a lawyer is to assist the court in the administration of
justice, the practice of law has a public utility flavour and,
therefore, he must strictly and scrupulously abide by the
Code of Conduct behoving the noble profession and must
not indulge in any activity which may tend to lower the image
of the profession in society. That is why the functions of the
Bar Council include the laying down of standards of
professional conduct and etiquette which advocates must
follow to maintain the dignity and purity of the profession."
(emphasis supplied)
32.

The Apex Court in the case of Jamilabai VIs. Shankarlal

reported in AIR 1975 S.C. 2202, has inter alia held thus :......... There is no statutory provision decisive of this
issue (whether a pleader can compromise a Suit in the
interest of his client, though the vakalatnama is silent) and
we have to garner the principles from various factors like the
status and significance of the legal profession in society, the
wider powers conferred on lawyers as distinguished from
ordinary agents on account of the triune facets of the role of
an advocate vis-a-vis the client, the Court and the public and
its traditions and canons of professional ethics and etiquette.
Above all, the paramount consideration that the Bench and
the Bar form a noble and dynamic partnership geared to the
great social goal of administration of justice puts the lawyer
appearing in the Court in a class by himself and to compare
him with an ordinary agent may be to lose sight of the lawyer
as 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 and
duties of legal practitioners in this country may facilitate
appreciation of the contentions of the parties. Before the
Indian 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 jurisdiction


mainly in the Presidency Towns, and Sudder Courts
exercising jurisdiction over the mufassil. Though the
Supreme Courts were given, by the Charter Acts and the
Letters Patent establishing them, power to enroll Advocates
who could be authorized by the rules to act as well as to
plead in the Supreme Courts rules were made empowering
Advocates only to appear and plead and not to act, while
Attorneys were enrolled and authorised to act and not to
plead. In the Sudder Courts and the Courts subordinate
thereto, pleaders who obtained a certificate from those
Courts were allowed both the act and plead.
15.
It seems reasonable, therefore, to assume that the
practice of law in this country generally involves the exercise
of both the functions of acting and pleading on behalf of a
litigant party: in other words, the Bar in India, generally
speaking is organised as a single agency. Accordingly.
when the Legislature confers upon an advocate "the right to
practise" in a Court, it is legitimate to understand that
expression as authorising him to appear and plead as well
as to act on behalf of suitors in that Court, It is true that the
word "practise" used in relation to a given profession means
simply the pursuit of that profession and involves the
exercise of the functions which are ordinarily exercised by
the members of the profession. But it seems to be fallacious
to relate that expression, as applied to an advocate, either,
on the one hand, to the Court in which the advocate is
enrolled or, on the other, to the Court in which he seeks to
exercise the statutory right conferred on him. It must, in our
opinion, be related to the general constitution of the bar in
India as a single agency in dealing with the litigant public, a
system which prevails all over this vast country except in
two small pockets where a dual agency imported from
England was maintained, owning, as we have seen, to
historical reasons.
16. We are accordingly unable to accept the suggestion
that 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 understood
in the restricted sense of appearing and pleading only.
Parliament was. of course, aware that the right of the
advocates of the Supreme Court to practise in that Court
was confined only to appearing and pleading. but the object
of s. 2 was to confer upon a designated body of persons,
namely, the advocates of the Supreme Court, a right to
practise in other Courts, viz. the various High Courts in
India, whether or not they were already enrolled in such
Courts. This statutory right, which is conferred on the
Supreme Court Advocates in relation to other Courts and

Judgment

- W.P.152611995

which they did not have before, cannot, as a matter of


construction, be taken to be controlled by reference to what
they are allowed or not allowed to do in the Supreme Court
under the Rules of that Court. Such Rules are liable to be
altered at any time in exercise of the rule-making power
conferred by Art. 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 this
important provision that any other law for the time being in
force may restrict or take away his right. Therefore, if the
Co-operative Societies Act were to provide that an advocate
of the High Court of Bombay shall not practise before the
arbitral tribunal set up under that Act, then the right of the
advocate will be circumscribed by the provisions of that law.
It should be remembered that it is not the fact that a man
has passed a law examination or has acquired a law degree
that entitles him to practise in Courts of law; his right to
practise depends upon his being enrolled as an advocate
and he is enrolled as an advocate on terms and conditions
laid down in the Bar Councils Act. Therefore, as I said
before, his very charter which entitles him to practise lays
down conditions and limitations, and one of the conditions
and limitations is that he can only practise before such
tribunals as the law permits him and he may not practise
before such tribunals as the law lays down as being
prohibited 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-litigious matters.

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 1961 Act was enacted by repealing the
1926 Act. Therefore, in the absence of any intention to the contrary, it must
be held that the 1926 Act as well as the 1961 Act 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 repealed Act
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.Seervai submitted 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 1973 Act 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 1973 Act 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 India which involved forwarding remittances
outside India. Therefore, the respondent No.12 could not have applied for
permission under Section 30 of the 1973 Act. 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 1961 Act 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 1973 Act. 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 profession of


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 1973 Act.

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

"

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 1973 Act.

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 as Advocates under the 1961 Act?

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 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.
(not brought into force so far)
30.
Right of advocates to practise. - Subject to
provisions of this Act, every advocate whose name is
entered in the State roll shall be entitled as of right to
practise throughout the territories to which this Act extends, (i)

in all Courts including the Supreme Court;

(ii)

before any tribunal or person legally authorized


to take evidence;

(iii)

before any other authority or person before


whom such advocate by or under any law for
the time being in force entitled to practise.

33.
Advocates alone entitled to practise. - Except as
otherwise provided 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 to practise in any Court or before any authority or
person unless he is enrolled as an advocate under this Act."
35. Punishment of advocates for misconduct - (1) Where
on receipt of a complaint or otherwise a State Bar Council
has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct, it shall refer the
case for disposal to its disciplinary committee.
(i-A) The State Bar Council may, either of its own motion or
on application made to it by any person interested, withdraw
a proceeding pending before its disciplinary committee and
direct the inquiry to be made by any other disciplinary
committee 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 a
notice thereof to be given to the advocate concerned and to
the 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 an


opportunity of being heard, may make any of the following
orders,namely:(a) dismiss the complaint or, where the proceedings
were 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 period
as it may deem fit;
(d) remove the name of the advocate from the State roll
of advocates.
(4) Where an advocate is suspended from practice under
clause (c) of sub-section (3), he shall, during the period of
suspension, be debarred from practising in any Court or
before any authority or person in India.
(5) Where any notice is issued to the Advocate-General under
sub-section (2), the Advocate-General may appear before the
disciplinary committee of the State Bar Council either in
person or through any advocate appearing on his behalf.
Explanation- In this section, (section 37 and section 38), the

expressions "Advocate-General" and "Advocate-General of


the State" shall, in relation to the Union territory of Delhi, mean
the 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 1961 Act 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 1961 Act 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 1961 Act 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 1961 Act 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 litigious matters.

50.

Section 33 of the 1961 Act 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 1961 Act. The bar contained
in section 33 of the 1961 Act 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 1961 Act or any other Act) 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 1961 Act 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
1961 Act provides imprisonment for persons illegally practising in Courts and
before other authorities, it cannot be said that the 1961 Act 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 1961 Act 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 litigious matters are not governed by the 1961 Act.

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 1961 Act 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 1961 Act 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 1961 Act 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 1961 Act 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 1961 Act 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
1961 Act 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 1961 Act 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 1961 Act 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 matters within 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 is
totally unconcerned with the legal education, though primarily
legal education may also be within the province of the
universities. But, as the apex professional body, the Bar
Council of India is concerned with the standards of the legal
profession and the equipment of those who seek entry into that
profession. The Bar Council of India is also thus concerned
with the legal education in the country. Therefore, instead of
taking a pendantic view of the situation, the State Government
and the recommending authority are expected to ensure that
the requirement set down by the Bar Council of India is also
complied 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 advocates who 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 to practise the profession of law' in
I

section 29 of the 1961 Act 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 accordingly with 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 16


December 2009 passed by the Hon'ble High Court of Judicature at
Bombay in Writ Petition (C) No. 1526 of 1995).

Position of Parties

IN THE MAnER OF

Global Indian Lawyers


A Society registered under the
Societies Registration Act,
Having its Registered Office at
B-4/8, Safdarjung Enclave,
New Delhi- 110029
Through Secretary

In the

In this

High Court

Court

NOTA PARTY

PETITIONER

VERSUS
1.

2.

3.

4.

Bar Council of India, established under


the provisions of the Advocates Act 1961,
and having its office at 21 RouseAvenue,
Deendayal Upadhyaya Marg,
New Delhi - 110 002.
Respondent No.1

Respondent No.1

Bar Council of the State of Maharashtra


and Goa having its Office at High Court
Extension, Bombay - 400 032.
Respondent No.2

Respondent No.2

Bar Council of the State of Delhi, having


its address at High Court Building,
New Delhi - 110 003.
Respondent NO.3

Respondent NO.3

Bombay Incorporated Law Society, having


its office at High Court New Building, North
Wing, Bombay - 400 001.
Respondent No.4

Respondent No.4

41
.~

....

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

Bar Association of the Supreme Court of


India, having its office at Supreme Court
of India, Tilak Marg, New Delhi - 110 001.
Respondent No. 5

Respondent No.5

Bar Association of India, having its office


at 93, Lawyers Chambers, Supreme Court
of India, Tilak Marg, New Delhi - 110 001.
Respondent NO.6
Union of India,
Through Secretary Department of Home,
North Block, New Delhi 110001.
Respondent No. 7

Respondent No. 7

Reserve Bank of India, being a body


constituted under the provisions of the
Reserve Bank Act, 1934 having its
principal office at Horniman Circle,
Bombay - 400023.
Respondent No. 8

Respondent No. 8

Directorate of Enforcement, Reserve Bank


of India, having its office at Janmabhoomi
Chambers, New Marine Lines, Bombay.
Respondent No. 9

Respondent NO.9

Central Board of Direct Taxes, Ministry


of Finance, North Block, New Delhi.
Respondent No. 10

Respondent No. 10

Respondent No. 6

Chief Commissioner of Income Tax,


Aaykar Bhavan, New Marine Lines, Bombay
Respondent No. 11
White & Case, a firm of lawyers having
its head office at 1155 Avenue of the
Americans, New York, New York 10036,
United States of America and with offices
at the Nirmal Building, Nariman POint,
Mumbai - 400 021.
Respondent No. 12

Respondent No. 12

Chadbourne & Parke, a law firm having


its head office at Rockefeller Plaza, New
York, New York 11012-0127, United States
of America and with offices at Hotel Maurya
Sheraton, new Delhi and/or at A-168,
Anand Niketan, New Delhi - 110 021.
Respondent No. 13

Respondent No. 13

Ashurst Morris Crisp having its principal


office at Broadwalla House,S, Apollo Street,
London EC 2A- 2HA and with offices at
6, Aurangazeb Road, D-202 Chanakyapuri,
New Delhi - 110 011 India
Respondent No. 14

Respondent No. 14

Respondent No. 11

I.
I.

15.

16.

Society of India Law Firms,


5-454, Greater Kailash, Part - II,
New Delhi 110048.
Respondent No. 15

Respondent No. 15

LAWYERSCOLLECTIVE,a Society registered


Under the Societies Registration Act and under
The Bombay Public Trusts act, having its office
At 4th Floor, Jalaram Jyot, 63, Janmabhoomi Marg,
Fort, Bombay - 400 001 (India)
Petitioner No. 1
Respondent No. 16
(All are Contesting Respondents)

TO
THE HON'BLETHE CHIEFJUSTICE
AND HIS COMPANIONJUDGESOF
THE SUPREMECOURTOF INDIA
HUMBLE PETITION
OF
PETITIONERABOVENAMED

THE

MOSTRESPECTFULLY
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.
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

Advocates

Act,

is any restriction
1961 and/or

under the provisions of the

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 TERMSOF RULE3(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 TERMSOF RULE5:


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 proceeded on 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 Advocates Act.
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 Advocates Act 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 Advocates Act, 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 Advocates Act 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 of
this Act."

5.9.

The relevant provisions are set out below:

"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

(iii) after the 12th day of March, 1967, save as provided in subclause (iiia), after undergoing a three year course of study in law
from any University in India which is recognized for the purposes
of this Act by the Bar Council of India;

29. Advocates to be the only recognized class of persons


entitled to practice 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 practice the
profession of law, namely, advocates.

30. Right of advocates to practise.-Subject to provisions of this


Act, every advocate whose name is entered in the State roll shall
be entitled as of right to practise throughout the territories to
which this Act extends,(i)

in all courts including the Supreme Court;

(ii)
before any tribunal or person legally authorised to take
evidence; and
(iii) before any other authority or person before whom such
advocate is by or under any law for the time being in force
entitled to practise.

33. Advocates alone entitled to practise. - Except as otherwise


provided 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 to
practise in any Court or before any authority or person unless he
is 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 Advocates Act, 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
Advocates Act 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 of
8.2 per cent in each of the years from 2005-6 to 2011-12.
The Indian legal profession today consists of approximately
1.2 million registered advocates, around 950 law schools,
and approximately 4 to 5 lakh law students across the
country. Every year, approximately 60,000-70,000 law
graduates join the legal profession in India. India is ranked
45, with a score of 4.5, in terms of judicial independence by
the
Global Competitiveness Report 2012-13, an
improvement from 51st rank in 2011-12 ....

10.50 The practice of law has however changed drastically


in the past few decades due to liberalization and associated
economic growth in India. With industrialization and FDI
inflows, the corporate legal sector in India has been
witnessing tremendous growth, as also legal process
outsourcing (LPO). In India the practice of law is governed
by the Advocates Act of 1961. Under this Act, foreign law
firms 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 have
established referral relationships with Indian firms. Given
that India has benefited from opening up to foreign
competition in many other areas, and given that Indian
lawyers are offering services across the world (see below),
India should explore allowing foreign law firms greater
accessto 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 8.2
percent in each of the years from 2005-06 to 2012-13. India is
ranked 40, with a score of 4.7, in terms of judicial
independence by the Global Competitiveness Report 2013-14,
an improvement from 45th rank in 2012-13. As regards
efficiency of the legal framework in settling disputes, India is
ranked 62nd, with a score of 3.8, a decline of three positions
from 59th rank a year before. India is ranked 48th when it
comes to the efficiency of the legal framework in chalienging
regulations, with a score of 3.8, an improvement from 52nd
position in the previous year.

10.40 The National Legal Services Authority (NALSA)


constituted under the Legal Services Authorities Act 1987
monitors and evaluates implementation of legal aid
programmes and lays down policies and principles for making
legal services available under the Act. To familiarize law
students of the country with the problems faced by the masses
ignorant about their rights and remedies under the law, the
Legal Services Clinic in Unlversitv, Law Colleges and other
Institutions scheme was started in 2013. During 2013-14 more
than 22.23 lakh persons have benefited through legal aid
services in the country. Out of them, about 29,000 persons
belong to the scheduled castes, 24,844 to the scheduled tribes,
more than 58,883 are women, and 8,134 are children. During
this period, more than 1,13,838 Lok Adalats have been
organized which settled more than 90.14 lakh cases including
1.17 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 necessary corollary 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 the
provisions of the Act. In terms of Section 17(1) of the Act, every
State Bar Council shall prepare and maintain a roll of Advocates,
in which shall be entered the names and addresses of - (a) all
persons who were entered as an Advocate on the roll of any High
Court under the Indian Bar Council Act, 1926, immediately before
the appointed date, and (b) all other persons admitted to be
Advocates on the roll of the State Bar Council under the Act on or
after the appointed date. In terms of Section 24(1) of the Act,
subject to the provisions of the Act and the Rules made
thereunder, a person shall be qualified to be admitted as an
Advocate on a state roll if he fulfils the conditions - (a) a citizen of
India, (b) has completed 21 years of age and (c) obtained a
degree in Law. The Proviso to Section 24(1)(a) states that subject
to the other provisions of the Act, a National of any other country
may be admitted as an Advocate on a State roll, if a citizen of
India, duly qualified is permitted to practice law in that other
country. In terms of Section 47(1) of the Act, where any country
specified by the Central Government by Notification prevents
citizens of India practicing the profession of Law or subjects them
to unfair discrimination in that country, no subject of any such
country shall be entitled to practice the profession of Law in India.
In terms of sub-section (2) of Section 47, subject to the provision
of sub-section (1), the Bar Council of India may prescribe
conditions, if any, subject to which foreign qualifications in law
obtained by persons other than citizens of India shall be
recognized for the purpose of admission as an Advocate under the
Act. Thus, Section 47 deals with reciprocity. As per the Statement
of Objects and Reasons of the Advocates Act, it was a law enacted
to provide one class of legal practitioners, specifying the academic
and professional qualifications necessary for enrolling as a
practitioner of Indian Law, 'and only Indian citizens with a Law

Degree from a recognized Indian University could enroll as


Advocates under the Act. The exceptions are provided under the
Proviso to Section 24(1)(a), Section 24(1)( c)(iv) and Section
47(2). In the light of the Scheme of the Act, if a lawyer from a
Foreign Law Firm visits India to advice his client on matters
relating to the law which is applicable to their country, for which
purpose he 'flies in and flies out' of India, there could not be a bar
for such services rendered by such Foreign Law Firm/Foreign
Lawyer.

60. We are persuaded to observe so, since there may be several


transactions in which an Indian company or a person of Indian
origin may enter into transaction with a foreign company, and the
laws applicable to such transaction are the laws of the said foreign
country. There may be a necessity to seek legal advice on the
manner in which the Foreign Law would be applied to the said
transaction, for which purpose if a lawyer from a Foreign Law Firm
is permitted to fly into India and fly out advising their client on the
Foreign Law, it cannot be stated to be prohibited. The corollary
would be that such Foreign Law Firm shall not be entitled to do
any form of practice of Indian Law either directly or indirectly. The
private Respondents herein, namely the Foreign Law Firms, have
accepted that there is express prohibition for a Foreign Lawyer or
a Foreign Law Firm to practice Indian Law. It is pointed out that if
an interpretation is given to prohibit practice of Foreign Law by a
Foreign Law Firms within India, it would result in a manifestly
absurd situation wherein only Indian citizens with Indian Law
degree who are enrolled as an Advocate under the Advocates Act
could practice Foreign Law, when the fact remains that Foreign
Laws 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
regulations

Bar Associations in their area of practice.


that

govern these lawyers who would

The

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.
York,

and in the

United

Kingdom,

the

In fact, in New

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
practice of U.K. law outside the UK as well.

to carry on

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 in
Annex A) this Code applies to International work and whether a
barrister 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 proceedings


essentially arising taking place or contemplated outside England
and Wales and (ii) is to be substantially
England and Wales; or

performed

outside

(b) where the lay client carries on business or usually resides


outside 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 advocacy
services.

2. In connection with any International

work, a barrister must

comply with any applicable rule of conduct prescribed by


the law or by any national or local Bar of (a) the place
where the work is or is to be performed (b) the place where
any proceedings or matters to which the work relates are taking
place or contemplated, unless such rule is inconsistent with any
requirement of Part III of this Code ("Fundamental Principles").
[emphasis supplied]

4. In relation to International work substantially performed outside


England and Wales:

(e) NotWithstanding paragraph 201, a barrister who is practising


as a foreign lawyer and who does not:
(i)

give advice on English law, or

(ii)
supply legal services in connection with any proceedings or
contemplated proceedings in England and Wales (other than as an
expert witness on foreign law),
shall not be treated as a practising barrister for the purposes of
the Code.

6. A practising barrister who supplies legal services as a barrister


(other than to his employer) outside England and Wales must be
covered (and in the case of an employed barrister his employer
must be covered) by insurance against claims for professional
negligence arising out of the supply of his services in an amount
not less than the minimum level of insurance cover required by
law or by the rules of the Bar in the place where the services are
supplied or, if there is no such minimum, the current minimum
sum insured for barristers practising in England and Wales.

7. A barrister who solicits work in any jurisdiction outside England


and Wales must not do so in a manner which would be prohibited
if 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 the


disciplinary authority of this state, regardless

of where the
lawyer's conduct occurs. A lawyer may be subject to the
disciplinary authority of both this state and another jurisdiction
where the lawyer is admitted for the same conduct. [emphasis
supplied]

(b) In any exercise of the disciplinary authority of this state,


the rules of professional conduct to be applied shall be as
follows:

(1) For conduct in connection with a proceeding in a court


before which a lawyer has been admitted to practice (either
generally or for purposes of that proceeding), the rules to be
applied shall be the rules of the jurisdiction in which the court
sits, 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, the


rules to be applied shall be the rules of this state, and

(ii) If the lawyer is licensed to practice in this state and another


jurisdiction,

the rules to be applied shall be the rules of the

admitting jurisdiction in which the lawyer principally practices;


provided, however, that if particular conduct clearly has its
predominant effect in another jurisdiction in which the lawyer
is licensed to practice, the rules of that jurisdiction shall be
applied 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 Advocates Act, 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 Section 47, 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 made
thereunder, a person shall be qualified to be admitted as an
advocate 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 advocate
on a State roll, if citizens of India, duly qualified, are permitted to
practise law in that other country;

(c) he has obtained a degree in law-

(iv) in any other case, from any University outside the territory of
India, if the degree is recognized for the purposes of this Act by
the Bar Council of India

47. Reciprocity - (1) Where any country, specified by the Central


Government in this behalf by notification in the Official Gazette,
prevents citizens of India from practising the profession of law or
subjects them to unfair discrimination in that country, no subject
of any such country shall be entitled to practise the profession of
law in India.

(2) Subject to the provisions of sub-section (1), the Bar Council of


India may prescribed the conditions, if any, subject to which
foreign qualifications in law obtained by persons other than
citizens of India shall be recognised for the purpose of admission
as 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.

61
5.30. 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 Advocates Act 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.

No

Icountry
.

1.
r

Australia

Legal services allowed to


be practiced

Restrictions

Indian law and International

N/A

-r~~----+-La-w------------------+_---------------2. Canada
Advisory serviceson Indian
law and third country law
(except Canadian law) and
International Law

on practice

No restrictions on
independent practice.

-I
I

If practice through the


establishment of a firm,
then the fi rm has to be
constituted as a partnership.

China

3.

All legal services, except


Chinese law

Commercial presence
restricted to representative I
office only
I

II---~

European
Community

Indian Law and Public


International Law

N/A

----~

f------+------+--------------t-----------------__j

5.

Japan

All legal services, including


Japaneselaw.

Mandatory to establish a full


time presencefor the
practice of law.

I
I

I
i

6.

Advisory serviceson Indian ---1'-c-o-m-m--e-rc-ia-l-p-re-s--e-n-ce--~

Malaysia
I

L__-'I

laws, International law and


offshore corporation laws of

through a corporation
incorporated in the Federal
I

lMa,aY:~

J_T_e_rn~~_of_La~ba~n.
_______

i
I

I
J

7.

Nepal

Indian law, International law


and Third Country law (except
NepaleseLaw)

Bar membership is required


for appearance before
Courts

8.

New
Zealand

All laws (including New


Zealand law)

N/A

9.

Singapore

All laws (including Singapore


law)

Subject to obtaining
necessary license that will
be reviewed on a case to
case basis.

I
10. South Africa All laws (including South
African law)

No restrictions on the
practice of foreign law.

South African law can be


practiced only by way of a
sole proprietorship.

11. Switzerland

Indian Law, International Law N/A


and Third Country Law (except
Swiss law)

12. Thailand

All laws (including Thai laws)

13. Turkey

Indian law, International Law Only Turkish nationals may


and Third Country Law (except appear before Courts, even
Turkish law)
if employed by a foreign law
firm.

If practice of law is through I


a company, then equity
I
participation can be up to
I
49% only.

All laws (including laws of


England & Wales)

14. United
Kingdom

Subject to obtaining the


necessary qualification and
license.

15. United
1

All laws (including United


States law)

Subject to the domestic


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 Advocates Act.

5.34. Under Section 24(1)(c)(iv) of the Advocates Act, Indian


nationals, who have obtained a degree from Universities outside
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 - Recognition of Degree in law of a Foreign University

37. Degree of a Foreign University obtained by an Indian citizen

If an Indian national having attained the age of 21 years and


obtains a degree in law from a Foreign University such a degree in
law can be recognized for the purpose of enrolment on fulfillment
of 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 of


Indian 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

(,b
may also entitle that person to qualify as a lawyer in that
jurisdiction, which would facilitate that person to possess dual
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, New York, 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
Advocates Act 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 Advocates Act 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) Pass any 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
SPECIAL

JURISDICTION

LEAVE PETITION (CIVIL) NO.

OF 2015

IN THE MATTER OF:


... PETITIONER

Global Indian Lawyers


VERSUS

... RESPONDENTS

Bar Council of India & Ors

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.
documents/Annexures

It is further certified that the copies of the


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 SINGH


Advocate for the Petitioner
New Delhi
Dated: j6 -O~

-'-o1,r

IN THE SUPREME COURT OF INDIA


CIVIL APPELLATE JURISDICTION
SPECIAL 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 present
affidavit.
2

That I have gone through a copy of the List of Dates from running
pages B to

_p_

paragraphs 1 to ~

and a copy of the Special Leave Petition from


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,
any, chargeable

stamp duty, if

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 MADRAS


DATED: 21 ..02..2012
CORAM
THE HONBLE Mr. M.Y. EQBAL, CHIEF JUSTICE
and
THE HONBLE Mr. JUSTICE T.S. SIVAGNANAM
W.P. No.5614 of 2010 and M.P. Nos.1, 3 to 5 of 2010
..Petitioners

A.K. Balaji
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.
10. Ashurst LLP,
New Delhi Liaison Office,
0-1,6 Aurangzeb Road,
New Delhi 110011.
11. Kelly Drye & Warren LLP,
C/o. Wakhariya & Wakhariya,
B-2, Taj Building, Wallace Street,
210, Dr.D.N.Road,
Mumbai 400 001, India.
12. Kennedys,
C/o. Tuli & Co.,

148, Golf Links,


New Delhi 110 003,
India.
13. De Heng Law Office,
C-9, Friends Colony East,
New Delhi 110 003,
India.
14. White & Case LLP,
1214, 12th Floor,
Maker Chambers V,
Nariman Point,
Mumbai 400 021,
India.
15. Integreon Managed Solutions Inc.,
Vatika Towers,
2nd Floor, Tower B,
Sector 54,
DLF Golf Course Road,
Gurgaon (Haryana 122 022,
India.
16. Linklaters LLP,
One Silk Street,
London,
EC2Y 8HQ,
United Kingdom.
17. Freshfields Bruckhaus Deringer,
65, Fleet Street,
London EC4Y 1HT,
United Kingdom.

18. Allen & Overy,


One Bishops Square,
London, E1 6AD,
United Kingdom.
19. Clifford Chance,
10, Upper Bank Street,
London E14 5JJ,
United Kingdom.
20. Wilmer Hale,
399, Park Avenue,
New York 10022,
United States of America.
21. Shearman & Sterling LLP,
801, Pennsylvania Avenue,
NW Suite 900,
Washington, DC 20004-2634,
United States of America.
22. Herbert Smith LLP,
Exchange House,
Primrose Street,
London, EC2A 2HS,
United Kingdom.
23. Slaughter and May,
One Bunhill Row,
London, EC1 Y 8 YY,
United Kingdom.
24. Hogan & Hartson,
555, Thirteenth Street, NW,
Washington, DC 20004,
United States of America.
25. Davis Polk & Wardwell,
450 Lexington Avenue,
New York, NY 10017,
United States of America.
26. Eversheds,
1 Wood Street,
London, EC2V 7Ws, United Kingdom.
27. Akin Gump Strauss Hauer & Feld LLP,
One Bryant Park,
New York, NY 10036,
United States of America.
28. Paul, Weiss, Rifkin, Wharton & Garrison,

1285 Avenue of the Americas,


New York, NY 10019-6064,

United States of America.


29. Norton Rose LLP,
3 More London Riverside,
London, SE1 2AQ,
United Kingdom.
30. Pillsbury Winthrop Shaw Pittman,
1540 Broadway,
,
New York, NY 100364039,
United States of America.
31. Wilson Sonsini Goodrich & Rosati,

650 Page Mill Road,


Palo Alto, CA 94304,
United States of America.
32. Arnold & Porter LLP,
555 Twelfth Street, NW,
Washington, DC 20004-1206,
United States of America.
33. Covington & Burling LLP,
The New York Times Building,
620 Eighth Avenue,
New York, NY 10018-1405,
United States of America.
34. Perkins Coie,
1888 Century Park E,
Suite 1700, Los Angeles,
California 90067-1721 ,
United States of America.
35. Loyens & Loeff,
1, Avenue Franklin D.Roosevelt,
75008 Paris,
France.
36. Freehills,
MLC Centre,
19 Martin Place,
Sydney NSW 2000,
Australia.
37. Clayton Utz.,
Levels 19-35,
No.1 OConnell Street,
Sydney NSW 2000,
Australia.
38. Mayer Brown LLP
71 S.Wacker Drive,
Chicago, IL 60606,
United States of America.

go
39. Clyde & Co.,
51, Eastcheap,
London,
EC3M 1JP,
United Kingdom.
40. Bird and Bird LLP
15, Fetter Lane,
London EC4A 1JP,
United Kingdom.
41. Women LawyersAssociation,
rep. by its Secretary Mrs.V.Nalini,
High Court Buildings,
Chennai 104.
(R41 impleaded as per order of Court dated 07.07.2010
in M.P.No.2 of 2010 in W.P.No.5614 of 2010)

PRAYER : Petition filed under Article 226 of the Constitution of


India for the issuance of a Writ of Mandamus directing the
respondents

1 to 8 to take appropriate action against the

respondents 9

40 or any other Foreign Law Firms or foreign

lawyers, who are illegally practising the profession of Law in India


and forbearing them from having any legal practice either on the
litigation side or in the field of non-litigation and commercial
transactions in any manner within the territory of India, and pass
such further or other orders.
For Petitioner

::Mr. AR.L.Sundaresan, Senior Counsel


for Mr.R.Ezhilarasan & Mr. N. Karthikeyan

For Respondents 1 to 6 ::Mr.M.Ravindran, Addl. Solicitor


General assisted by

For Respondent 7

Mr.P.Chandrasekaran, SCGC

:: Mr.P.S.Raman, Senior Counsel


for Mr.K.Venkatakrishnan

For Respondent

:: Mr.A.Navaneethakrishnan,

Advocate General
for Mr.S.Y.Masood

For Respondent

:: MS.P.T.Asha,

for M/s.Sarvabhauman

For Respondents
19,26,39

Associates

10, 16 :: Mr.Arvind P.Datar, Senior Counsel

& 40

& R.Muthukumarasamy, Senior Counsel


for Mr.M.Rishi Kumar

For Respondent 11

:: Mr.Satish Parasaran

For Respondent 12

:: Notice Sent. Service Awaited.

For Respondents 14,20,

:: Dr.Abhishek M.Singhvi

21, 24, 25, 27, 28 & 30

for M/s.R.Senthil Kumar & Rahul Balaji

For Respondents 31, 32,


33, 34 & 38

For Respondent 15

:: Mr.A.L.Somayaji, Senior Counsel

for M/s.R.Senthil Kumar & Rahul Balaji

:: Mr.Sriram Panchu, Senior Counsel


for Mr.B.N.Suchindran

For Respondent 23

:: Mr.R.Yashod Vardhan, Senior Counsel


for Mr.Sundar Narayanan

For Respondents 22 & 29 :: Mr.R.Krishnamoorthy, Senior Counsel


for Mr.T.K.Bhaskar
For Respondent 41

For Respondents 36 & 37

MS.D.Prasanna

Mr.K.S.Natarajan

For Respondents 17 & 35

Mr.Vineet Subramani

ORDER
The Hon;ble the Chief Justice

This writ petition has been filed under Article 226 of the
Constitution of India for the issuance of a Writ of Mandamus directing
the respondents 1 to 8 to take appropriate action against respondents 9
to 40 or any other Foreign Law Firm or Foreign Lawyers, who are
illegally practising the Profession of Law in India, and for a further
direction to forbear them from having any legal practice either on the
litigation

side

or

in the field

of non-litigation

and

commercial

transactions, in any manner whatsoever within the territory of India.

2. The grounds on which the writ petitioner places his reliance are
summarized in a nutshell herein below :Enrolment:
(a) It is stated that the writ petitioner is an active practitioner of law
having enrolled himself in the State Roll maintained by the Bar Council
of Tamil Nadu as per Section 17 of the Advocates Act, 1961. It is stated
that to practice the profession of law in India, a person should be a
citizen of India and should possess a Degree in Law obtained from a
Recognised University within the Territory of India. It is further stated
that Nationals of any other country may also be admitted as an
Advocate on the State Roll, if citizens of India duly qualified are
permitted to practice law in such other country as per the rule of
reciprocity contained under Section 47 of the Advocates Act, 1961. It is
also stated that those persons who have obtained degree of law from
any University outside the Territory of India may also be permitted to

practice the profession of law in India provided that the said degree is
recognised by the Bar Council of India and subject to such conditions as
may be imposed by the Bar Council of India from time to time. The writ
petitioner, prima facie, states that the Law Graduates from India are not
allowed to practice the profession of law in United Kingdom, United
States of America, Australia and various other foreign nations.

That

apart, the procedure for Indian Lawyers to practice in foreign countries


is far more cumbersome and very costly, and there are also very many
restrictions like qualifying tests, prior experience, work permits, etc., but
no such procedures are contemplated in the Advocates Act, 1961 in
respect of foreign lawyers who intend to practice law in India. The Act
simply provides that a foreigner may be admitted as an Advocate, if
Indian nationals are permitted to practice law in his/her country.

It is

stated that allowing entry of foreign law firms without any reciprocal
arrangement similar to that of the arrangements prevailing in those
foreign countries should not be entertained, and foreign law firms should
not be allowed to exploit the Indian legal market without actually
opening up their domestic markets to the Indian lawyers.
Legal Bar:
(b) It is stated that in the absence of enrolment in any of the State Bar
Councils in accordance with the provisions of the Advocates Act, 1961,
the foreigners are not entitled to practice the profession of law in India
on account of the bar contained under Section 29 of the Advocates Act.
While the legal position is such, under the guise of LPO and conducting
seminars and arbitrations, the foreign lawyers are visiting India under
Visitors Visa and are earning money from their clients in India. By doing
so, they also violate the provisions of Income Tax Laws and Immigration
Laws, and also cause loss of revenue to our countrys Exchequer. They

have also opened up their offices in India and are actively doing legal
practice

in

the

fields

of

Mergers,

Take-overs,

Acquisitions,

Amalgamations, etc.
Disciplinary Authority:
(c) It is further stated that the legal profession in India is governed by
the various provisions of the Advocates Act, 1961 and, the disciplinary
rules and regulations, code of conduct and professional ethics framed
and practised from time to time. There is also a hierarchy of disciplinary
authorities such as the State Bar Council, Bar Council of India, Supreme
Court,

etc.

These

authority/control

authorities

can

exercise

their

disciplinary

only over the advocates who are on the Rolls

maintained under the Advocates Act. Persons who are not on the Rolls
would not be subject to the disciplinary jurisdiction of these authorities.
As such, it is stated that if any person who is not subject to the
disciplinary control of the above said authorities is allowed to practice
the profession of law, he/she would go scot-free and would not be
subject to the supervision and disciplinary jurisdiction of the above said
authorities. Therefore, they should not be permitted to practice the
profession of law in our country.
Noble Profession :
(d) It is also stated that in India, legal profession is considered as a
noble profession, intended to serve the society, and not treated as a
business venture. But, it is not so for the foreign law firms, which are
treating it as a trade and business venture for earning money. It is
submitted that here in India, the lawyers are prohibited from advertising,
canvassing and soliciting work. No lawyer in India is permitted, either
through print media or through electronic media or in any other form, to
canvass or solicit work or market the profession. Whereas the foreign

law firms, who are impleaded here as respondents 9 to 40, are glaringly
advertising through their websites about their capabilities and they also
canvass and solicit work by assuring results. It clearly shows that they
are treating the legal profession as nothing short of a trade or business,
far different from the nobility attributed to it by Indian lawyers.
Reciprocity:
(e) It is stated that even though Indian lawyers are allowed to practice in
U.K. and U.S.A., the same is subject to enormous conditions and
restrictions and subject to passing of further tests conducted in the
respective countries. As such, it is not reciprocity in the real sense, as
permitted under Section 47 of the Advocates Act. It is stated that since
the law degree conferred by any University outside the Territory of India
has not been recognised by the Bar Council of India, nor the Bar
Council of India has framed any rules and regulations under Section
42(2) of the Advocates Act in this regard, until such time, there is
absolutely no scope for any foreign lawyer or foreign law firm to practice
the profession of law in India. It is stated that the Advocates Act not only
regulates the practice of advocates in courts alone, but it also regulates
the practice of legal profession in various other forms such as giving
legal opinion, drafting,

chamber work, documentation,

arbitration,

mergers, take-overs, acquisitions, incorporations and so on and so


forth. But, in spite of the restrictions, respondents 9 to 40 are carrying
on their practice in utter disregard to the provisions of the Advocates Act
and the relevant rules and regulations framed in this connection.
Causing loss to the Exchequer:
(f) Such foreign law firms did not get any permission either from the
Government of India or from the Bar Council of India, from any State
Bar Council, from the Tax Department or the Reserve Bank of India for

transacting business within the country and repatriating the funds out of
the country.
On the above stated grounds, the writ petitioner submits that the
practice of legal profession by the respondent foreign law firms or any
individual foreign lawyer is illegal and impermissible, and therefore, he
seeks immediate action.

In this connection, it is stated that the writ

petitioner, through Association of Indian Lawyers, in which he is also


one of the members, sent a detailed representation on 18.01.2010 to
official respondents 1 to 8, to take suitable action against respondents 9
to 40 herein. The writ petitioner further stated that since the said official
respondents did not take any action, he was constrained to file the
present writ petition seeking the prayer stated herein above.
3. The first respondent

Union of India filed four counter affidavits on

19.08.2010, 24.11.2010, 19.04.2011 and 17.11.2011. In one of the


counter affidavits, it is stated that the Bar Council of India, which has
been established

under the Advocates Act,

1961, regulates the

advocates who are on the Rolls, but law firms as such are not required
to register themselves before any statutory authority, nor do they require
any permission to engage in non-litigation practice. Exploiting this
loophole, many accountancy and management firms are employing law
graduates who are rendering legal services, which is contrary to the
provisions of the Advocates Act. It is stated that the Government of
India along with the Bar Council of India is considering this issue and is
trying to formulate a regulatory framework in this regard. The 1st
respondent in his counter warns that if the foreign law firms are not
allowed to take part in negotiations, settling up documents and
arbitrations in India, it will have a counter productive effect on the aim of

the government to make India a hub of International Arbitration. In this


connection, it is stated that many arbitrations with Indian Judges and
Lawyers as Arbitrators are held outside India, where both foreign and
Indian Law Firms advise their clients. If foreign law firms are denied
entry to deal with arbitrations in India, then India will lose many of the
arbitrations to Singapore, Paris and London. It will be contrary to the
declared policy of the government and against the national interest. In
the counter affidavit filed on 19.04.2011, it is stated that a proposal to
consider an amendment to Section 29 of the Advocates Act, 1961
permitting foreign law firms to practice law in India in non-litigious
matters

on a reciprocity

basis with foreign

countries

is under

consultation with the Bar Council of India. Finally, in the counter filed on
17.11.2011, it is stated that the Government of India has decided to
support the stand of the Bar Council of India that the provisions of the
Advocates Act, 1961 would apply with equal force to both litigious and
non-litigious practice of law, and it is only persons enrolled under
Section 24 of the Act, who can practice before the Indian Courts.
4. The Bar Council of India, which is the 7th respondent herein, in its
counter stated that the issue involved in the present writ petition is no
longer res integra and has been settled by the Bombay High Court by
holding that practice of law would include even non-litigious practice,
and therefore, foreign lawyers i.e., lawyers not enrolled as Advocates
under the provisions of the Advocates Act, 1961 would not be entitled to
practice law in India (In W.P.No.1526

of 1995 by order dated

16.12.2009 in the matter of Lawyers Collective Vs. Bar Council of India).


It is further stated that since against the said judgment of the Bombay
High Court

no

appeal

was

preferred,

it attained

finality,

and

consequently, the present writ petition deserves to be dismissed. It is

stated that as per the provisions contained in Sections 24 and 29 of the


Advocates Act only persons who are citizens of India are eligible to be
enrolled under Section 24 of the Act to practice the profession of law
before the Indian Courts. However, the counter makes it clear that Bar
Council of India has got the power under Section 47(2) read with
Section 49(1 )(e) to provide for relaxation of such a condition. The
counter further makes it clear that the practice of foreign law within the
territory of India would also be subject to the regulatory powers of the
Bar Council of India. It is stated that in a Joint Consultative Conference
of the Members of the Bar Council of India and the Chairmen, ViceChairmen, and Executive Committee Members of the State Bar
Councils held at Kochi on 17th and 18th November, 2007 it was decided
not to relax any of the statutory norms for practice of law in India by
exercising the powers conferred to the Bar Council of India under
Section 47(2) read with Section 49(1 )(e) of the Advocates Act, 1961.
Finally, it is stated that the provisions of the Advocates Act, 1961 would
apply with equal force to both litigious and non-litigious practice of law,
and only persons enrolled under Section 24 of the Act can engage in
the same.
5. The 9th respondent

law firm in its counter clarified that it is not

Rouse as mentioned in the writ petition, and it is Rouse India Pvt.


Limited which is a part of a group of companies called Rouse & Co.
International Limited a U.K. based Corporation. It is stated that it is not a
law firm as stated in the writ petition, but it is a duly incorporated and
registered company under the provisions of the Indian Companies Act,
1956 carrying on consultancy/support services in the field of protection
and management of intellectual, business and industrial proprietary
rights,

carrying

out

market

surveys

and

market

research,

and

publication of reports, journals, etc. It is neither rendering any legal


service, including advice in the form of opinion, etc. nor does it appear
before any courts or tribunal anywhere in India, and hence, cannot be
said to be engaging in the practice of law. Therefore, it is claimed that
the 9th respondent is not a necessary party to the writ petition, and
accordingly, it is prayed that the name of the 9th respondent be deleted
from the array of parties in the writ petition.
6. The 10th respondent in its counter clearly stated that it is a limited
liability partnership incorporated under the laws of England. It provides
legal services through law offices in a number of countries of the world
including the United States of America, Spain, Germany, France,
Singapore, etc. But it does not have a law office in India and also it does
not give advice to its clients on Indian Laws. It is stated that the writ
petition was not filed in public interest, whereas it is a publicity seeking
writ petition. This is very clear from the act of the petitioner hosting a
copy of the petition on the website www.legallyindia.comimmediately
after filing the same before the Court. $ince, the contents of the affidavit
deal with the subjects which are within the domain of policy decisions of
the Government of India, the writ petition deserves to be dismissed in
limine with exemplary costs. Further, the writ petitioner is not able to
show violation of any constitutional right or any other legal right within
the territorial jurisdiction of this Court.

It is stated that in England,

foreign lawyers are free to advice on their own system of law or on


English law (except in respect of certain defined legal activities such as
probate, immigration, conveyancing and litigation), or any other system
of law without any nationality requirement or the need for being qualified
in England. It is further stated that for those wanting to re-qualify in
England as Solicitors or advocates, there is no requirement of being a

-,

national of the United Kingdom.

But, they have to appear for an

examination conducted in this regard. Regarding refusal of work permits


to the Indian lawyers, it is stated that there are lot of Indian lawyers
practising in English Courts after their re-qualification as English
solicitors. Therefore, it is false to say that work permits to Indian lawyers
are almost always being refused. It is further stated that the issue of
reciprocity is in the realm of the policy of the Government of India and it
cannot and ought not to be agitated before this Court.
7. The 11th respondent in its counter prima facie stated that neither it
has any office in India nor it practice law before any Courts in India. As
such, no cause of action arises in India involving the 11th respondent. It
is stated that the 11th respondent is an American Law Firm having its
offices at New York, Washington DC, Los Angeles, Chicago, Stamford,
Parsippany and Brussels. It has clients with diverse international legal
issues, who require legal advice from different countries, for which the
11th respondent developed working relationships with local law firms in
different countries. It is stated that for Indian clients requiring legal
advice in India, the 11th respondent refers the work to various Indian
lawyers and law firms located in cities where such advice is required. All
such Indian lawyers are enrolled with various State Bar Councils in
India. In respect of reciprocity, it is stated that the U.S. does not prevent
or discriminate against Indian citizens practising law in U.S. and it is
further stated that the American Bar Association Model Rule for the
Licensing and Practice of Foreign Legal Consultants provides that an
Indian advocate of good standing in an Indian Bar Council may be
licensed to practice law in the U.S. without undergoing any examination.
It is stated that several Indian advocates practice law in the U.S. by
associating with U.S. licensed lawyers. These Indian lawyers frequently

91
travel to the U.S. on a temporary basis for consultations on Indian law
issues. Hence, the petitioners submission

in respect of lack of

reciprocity was denied in the counter. It is stated that the Advocates Act,
1961 and the Bar Council Rules govern the practice of Indian law only
and they do not apply to the practice of foreign or non-Indian law.
Foreign lawyers, who are licensed in their jurisdictions,

are not

restrained by the Advocates Act, 1961 from advising their Indian clients
on foreign

law issues. As regards the allegation

in respect of

participation in seminars and conferences would amount to practising


law, it is stated that participation in a seminar or conference does not
constitute practising law, and in fact, several Indian lawyers participate
in seminars and conferences around the world, and this in no way
constitutes practising law. On the aspect of absence of regulating
authority, it is stated that the rules and regulations of the regulating
authority in a country will generally apply to lawyers even when they are
working outside their home countries. In U.S. every State has its own
rules which govern the practice of law in that jurisdiction. U.S. lawyers
are governed by their States regulatory bodies and the lawyers
registered in that State must conform to its rules regardless of where
they practice law. The practice of law and ethics is strictly supervised in
the U.S. Further, it is denied that the practice of law is treated as a
business venture in the U.S.
8. The respondent 14 in its counter denied the existence of its office in
India and its practising Indian law. It stated that the High Court does not
have jurisdiction over the 14th respondent, as also no cause of action
arises involving the 14th respondent. It is stated that since the writ
petitioner has relied upon a representation given by the Association of
Indian Lawyers to the official respondents herein, and because the

alleged inaction of the said respondents is the basis for the writ petition,
the petition ought to have been filed by the Association itself and the
writ petitioner has no locus standi to file the present writ petition. It is
stated that the Advocates Act and the Rules govern the practice of
Indian law only, and they do not govern the practice of foreign or nonIndian law. Therefore, as per prevailing law, foreign lawyers, including
lawyers from the 14th respondent law firm, are not required to and
cannot enrol as Advocates to practice non-Indian law. As per prevailing
law, such lawyers are not restrained from advising on foreign law within
the territory of India. As stated in the counter of the 11th respondent, the
14th respondent also in its counter denied the allegation that the
lawyers from India are restrained from practising law in the U.S.A. and it
is stated that in fact, Indian lawyers are practising law in the U.S.A. in
different forms, viz., opening permanent office in U.S.A. by submitting
(without examination) application certifying qualification to practice law
in India and also concurrently associating with the U.S. licensed lawyers
on specific matters on a fly-in and fly out basis to consult on Indian law
issues. It is denied in the counter that the 14th respondent is owning or
operating LPOs in India. It is further stated that the lawyers from the
14th respondent fly in and fly out of India on need basis to advise the
clients on international transactions, to which there is an India
component. To the extent Indian law is involved, such matters are
addressed by Indian lawyers enrolled under the Advocates Act, 1961. It
is stated that the absence of disciplinary control by the Bar Council of
India/State Bar Councilor the Supreme Court does not qualify as a valid
reason, in law, to restrain or prevent foreign lawyers from advising on
foreign law within the territory of India, as they are governed by the
disciplinary control of the concerned jurisdiction in the United States,

where they enrolled as advocates. Respondent

14 also denied the

allegation that they are doing the practice of law as a business venture.
Finally, it is stated that if foreign lawyers and law firms are prevented
from advising on foreign law, within the territory of India in relation to
transactions with an Indian connection, the transaction costs for Indian
clients will increase considerably.
9. The 15th respondent in its counter stated that it is not at all practising
law in India. It is not licensed to and does not practice law in any
jurisdiction in the world, much less in India. It is a BPO company
providing wide range of customised and integrated services and
functions to its customers like word processing, secretarial support,
transcription

services,

proof-reading services, travel desk support

services, etc. Therefore, it is stated that they are neither a necessary


party nor a proper party to the present writ petition, and therefore,
prayed for the dismissal of the writ petition insofar as the 15th
respondent is concerned.
10. The 16th respondent in its counter, like the previous counters filed
by the other respondents, raised a preliminary objection stating that the
writ petitioner ought to have approached the Bar Council of India, which
is the regulating authority in respect of legal profession in India, before
filing the present writ petition. Hence, it prayed for the dismissal of the
writ petition on the ground of availability of efficacious alternative
remedy. Like other respondents, the 16th respondent also stated that it
has no office in India and therefore, the official respondents viz.,
respondents 1 to 8 do not have the authority to exercise any control
over the 16th respondent. The 16th respondent also claimed that this is
a publicity seeking writ petition. It is stated that since the writ petitioner

fails to show violation of any constitutional or other legal right within the
territorial jurisdiction of this Court, and since he places reliance on the
general statements, the writ petition is liable to be dismissed in limine.
Like other respondents,

the

16th respondent

also narrated the

procedures adopted in England for a foreign lawyer to enter the legal


field in India, in order to show that there is no curb on the Indian lawyers
to enter and practice the profession of law in England.
11. The 18th respondent in its counter, like other respondents,
challenged the writ petition on the grounds of cause of action and locus
standi of the petitioner. The 18th respondent stated in its counter that it
is an international legal firm, having offices in 26 countries around the
world, but it does not have an office in India and it does not practice the
profession of law in India. It is stated that the Advocates Act and the
other Rules framed thereunder relate solely to the practice of Indian law
and they do not concern itself with the practice of non-Indian law or
seek to regulate the practice of the profession of law by foreign lawyers
on non-Indian law. Therefore, foreign lawyers who do not practice
Indian law cannot seek to be enrolled as Advocates. There is no legal
restriction that prevents or prohibits lawyers from advising or practising
non-Indian law within the territory of India. Further, it is stated that the
lawyers from UK have not been prohibited from practising law in India
by the Central Government by issuing a notification under Section 47(1)
of the Advocates Act. It is stated that the activities of the 18th
respondent in India do not amount to practising the profession of law in
India. Further, it is stated that the respondent
operate LPOs in India.

18 does not own or

12. The respondent Nos.19, 26, 39, and 40 in their its counter affidavits
filed separately, however, on the same lines, inter alia state that they
are limited liability partnerships incorporated under the laws of England
and they provide legal services through law offices in a number of
countries of the world

including U.S., Spain, Germany,

France,

Singapore, Hong Kong etc. either through its branch offices located
there or through various legal entities. It is stated that they did not have
a law office in India and they did not give advice to its clients on Indian
law. Like other respondents, these respondents also pleaded dismissal
of the writ petition on the grounds of availability of efficacious alternative
remedy, and the same being premature and a publicity seeking writ
petition. These respondents also pleaded dismissal of the writ petition
on the ground that the issue involved in the writ petition clearly comes
within the domain of policy decision of the Government of India, and
therefore, it cannot be agitated before law courts. It is further stated that
merely on general statements, no writ can be issued. Like other
respondents, these respondents also narrated the position in England in
respect of foreign lawyers practising law in England and contended that
participation in seminars and conferences does not amount to practising
law in India.
13. Respondents Nos.20, 21, 24, 25, 27, 28, 30, 31, 32, 33, 34 and 38
filed separate counter affidavits on the same lines stating, inter alia, that
they do not have offices in India and they do not practice Indian law,
and hence, there is no cause of action against them and consequently,
this Court does not have jurisdiction over them. Like other respondents,
these respondents have also pleaded dismissal of the writ petition on
the grounds of it being premature, publicity seeking and availability of
efficacious alternative remedy. They state that their lawyers do not

practice Indian law, and therefore, they have not sought enrolment as
advocates under the Advocates Act, 1961, based on their foreign legal
qualification or otherwise.

It is stated that the Advocates Act and the

Rules framed thereunder only govern the practice of Indian law and they
do not apply or govern the practice of foreign or non-Indian law.
Therefore, the lawyers from the respondent-law firms are not required to
enrol their name under the provisions of the Advocates Act. That apart,
as per the prevailing law, such lawyers are not restrained from advising
on foreign law within the territory of India. Answering the contention of
the writ petitioner that the Indian lawyers are not allowed to or subjected
to cumbersome

procedure for practising law in United States of

America, it is stated that the lawyers from India are not restrained from
practising law in USA and very many of them have opened their offices
in USA and many more of them are practising law on a fly in and fly out
basis. It is stated that no examination as such is conducted in USA for
practising law by foreign nationals. It is denied that the respondents
violated any Indian law, much less Indian Income Tax Law. On the
allegation of running LPOs in India, it is stated that the said respondents
does not own or operate LPOs in India. It is further stated that the
lawyers from the respondents fly in and fly out of India on need basis to
advise the clients on international transactions

or other U.S. or

international related matters, to which there is an Indian component. To


the extent Indian law is involved, such matters are addressed by Indian
lawyers enrolled under the Advocates Act.

Regarding regulating

authority, it is stated that they are governed by the regulations prevailing


in their own country viz., U.S. It is finally stated that the prayers sought
for by the petitioner are couched in broad terms and if granted, would

cause irreparable hardship and prejudice to the, apart from being


contrary to public interest.
14. The respondent

22 in its counter stated that it is an International

Law Firm having offices at London, Abu Dhabi, Bangkok, Beijing,


Brussels, Dubai, etc. But it does not have an office in India, nor does it
have any interest in any Indian Law Firm, whether by shareholding,
partnership or affiliation. It neither represents parties in the Indian
Courts nor does it advise on Indian law. The only document produced
by the petitioner with respect to respondent 22 is the webpage of its
India practice group. It is submitted that the said India Practice Group
advices its clients only on commercial matters, involving an Indian
Element relating to mergers, acquisitions, capital markets, projects,
energy and infrastructure, etc., from an international legal perspective
and it does not amount to practice in Indian law. It is stated that the
pleadings are vague and there is no cogent proof pointing out that the
respondent

22 is practising law in a manner contravening Indian

regulations. Therefore, the said respondent sought the dismissal of the


writ petition in limine.
15. The respondent 23 in its counter categorically stated that it has no
establishment of any kind India, much less a LPO. It is an international
law firm with offices in London, Brussels, Hong Kong and Beijing. It has
clients throughout the world with international business interests.
However, the scope of legal practice of respondent 23 is a restricted
one i.e., advising only on matters of English, European Union and Hong
Kong laws.

It has working relationships with leading law firms in major

jurisdictions worldwide and instructs appropriate local law firms to


provide local law advice where such advice is required. It has never

advised on matters of Indian law, either from within India or outside


India. It has no formal or exclusive relationships, including in respect of
referral arrangements, with any Indian law firm. Therefore, it is stated
that the allegations levelled in the affidavit accompanying the writ
petition in connection with respondent 23 are misconceived, incorrect
and made without any basis. Therefore, it is prayed for the dismissal of
the writ petition, insofar as respondent 23 is concerned.
16. Respondent 29 in its counter affidavit categorically stated that the
writ petition is liable to be dismissed for want of territorial jurisdiction, as
none of the alleged unauthorised acts of the respondents has occurred
within the jurisdiction of this Court. It is stated that respondent 29 is a
limited liability partnership registered in England and Wales and is
regulated by the Solicitors Regulation Authority of England. It has its
group offices worldwide, but not in India. It does not have any office in
India, including a liaison office. It does not also have any interest in any
Indian law firm, either by partnership, shareholding or affiliation. The
only document produced by the petitioner with respect to respondent
29 is an extract from its website. The extract does not show that
respondent 29 carries on the practice of law in India in contravention of
Indian regulations. It does not outsource any work to India. It does not
represent parties in Indian courts nor does it advise on Indian law. It is
submitted in respect of arbitration, that respondent

29 is not giving

advice to parties in International Arbitrations on Indian arbitral law. It


clearly stated that attending seminars and conferences does not amount
to legal practice in India. Regarding LPO, it is stated that respondent 29
does not have any LPO either in India or outside India. Respondent 29
stated that none of its activities amounts to practice of law in India, and

94
therefore, it cannot be subjected to the disciplinary control of Indian
authorities.
17. Respondent

35 in its counter affidavit stated that it does not

maintain an office in India. It is stated that the issue involved in the writ
petition is a policy matter which comes under the domain of the
Executive, and hence, this Court has no jurisdiction to decide the same.
It is stated that the 35th respondent is an international law firm providing
legal services to its international clientele. As such, some Indian
businesses that have international legal requirements may consult
respondent 35 relying upon its international expertise and presence in
various jurisdictions.

But all such consultations and legal services

rendered are in relation only to the laws of the specific international


jurisdiction where such clients may have businesses, and respondent
35 is legally entitled to provide legal advice. As such, it is not practising
the profession of law in India. The writ petitioner has not made any
specific or particularised allegation against respondent

35.

The

existence of a legal right and the violation of such a right is absent in


this case, and hence, the discretionary jurisdiction under Article 226 of
the Constitution of India cannot be exercised in this case. Respondent
35 is not organised under the laws of India nor does it maintain an office
within the territory of India. It is neither a State nor an authority within
the meaning of Article 12 of the Constitution of India. Respondent 35
does not perform any public function and is not a delegate of any public
authority. As such, no writ under Article 226 of the Constitution ought to
be issued against the respondent 35.
18. The 36th respondent in its counter affidavit stated that since the
Advocates Act and Rules govern only with regard to practice of Indian

law and not on the practice of foreign law within the territory of India, the
36th respondents lawyers are not enrolled themselves as advocates
under the Advocates Act. It is stated that respondent 36 does not have
an office in any part of India or elsewhere, and it does not operate or
own any LPO in India. Therefore, the writ petition is thoroughly
misconceived. It is further stated that the lawyers from respondent 36 fly
in and fly out of India on a need basis to advise the clients on
international transactions or other matters involving Australian laws or
international ventures, to which there is an Indian component, whereas
the working of the Indian law is always entrusted with an Indian lawyer,
enrolled under the provisions of the Advocates Act. It is stated that the
petitioners apprehension is not justified since respondent 36, who has
no office in India, can never deprive the petitioner of any work that the
petitioner is competent and capable of carrying.
19. The 37th respondent in its counter, like other respondents denied
the fact of having an office in India, or running LPO in India. It is further
stated that it does not undertake litigation or non-litigation practice in
Indian Law, and only advises is clients with respect to regulatory laws,
trade, investment and market access issues, and intellectual property
issues with regard to Australia alone. The matters involving Indian law
are entrusted to the Indian advocates.
20. Respondent 33 has filed a rejoinder to the counter affidavit filed by
the 7th respondent viz., the Bar Council of India. In the said rejoinder,
respondent 33 denied the stand taken by the Bar Council of India that
the issue involved in the present writ petition is squarely covered by the
Bombay High Courts judgment dated 16.12.2009 in the case of Lawyers
Collective Vs. Bar Council of India reported in 2010 (112) Bombay Law

101
Reports 32. In the said case, the Bombay High Court rejected the
contention that practice of law, as per Section 29 of the Advocates Act,
is confined to litigation practice and on the contrary, held that the
expression to practice the profession of law in Section 29 encompasses
practice in relation to both litigation and non-litigation. The said '
judgment does not hold that the Advocates Act applies to the practice of
foreign law or international law within the territory of India. Further, the
said judgment does not support the contention that only advocates can
practice foreign law or international law in the territory of India as
contended by the petitioner in the writ petition.

It is stated that the

Advocates Act, in its present form, does not deal with or prescribe the
qualifications for or provide for the regulatory framework for the practice
of foreign law or international law within the territory of India. It is also
denied in the rejoinder that only Indian citizens, who are duly qualified
as per Section 24 of the Advocates Act, are entitled to practice foreign
or international law within the territory of India.

In fact, foreign law,

including English and US law are not taught in Indian Law Colleges.
Therefore, lawyers with Indian law degrees clearly do not have the
knowledge to practice foreign law. On the contrary, most persons with
the requisite knowledge in foreign law will be non-citizens with a law
degree from a foreign university. As per the prevailing provisions of the
Advocates Act, such persons will not be entitled to enrol as advocates
without the special dispensation of the Bar Council. Therefore, the only
reasonable interpretation of the Advocates Act will be that it is a statute
which governs the practice of Indian law. It is stated that respondent
33 is not liable to be restrained from practising foreign law or
international law within the territory of India on the basis of the
resolution of the Bar Council of India or otherwise, because any such

restriction would be without a statutory mandate,

besides being

unreasonable. It is stated that rendering of legal advice on foreign law or


international law by foreign lawyers on a fly in and fly out basis would
not amount to practice of law i.e., Indian law, as contemplated under the
Advocates Act, especially in the light of the fact that neither the
Advocates Act nor the Rules regulate practice of foreign law within the
territory of India. If a narrow and restrictive interpretation is given to the
term practice of law, there is a grave risk of an adverse reaction by
foreign jurisdictions/countries,

including the risk that some foreign

countries may restrict or even prohibit the practice Indian law by Indian
lawyers in their territories, thus closing their markets to Indian lawyers.
21. Mr. AR.L. Sundaresan, learned senior counsel appearing on behalf
of the writ petitioner, while reiterating the grounds raised in the writ
petition, extensively relied on the provisions of the Advocates Act, 1961.
According to him, an advocate as defined in Section 2(a) of the Act
means an advocate entered in any roll. Section 24 makes it amply clear
as to who may be admitted as an advocate on a State roll, in that it
refers to only a citizen of India. However, the proviso to this Section
states that a national of any other country may also be admitted as an
advocate on a State roll, if only duly qualified citizens of India are
permitted to practise law in that country. The proviso, therefore, does
not give unfettered rights to citizens of other country to be admitted as
advocates on a State roll and it is to be done purely on the basis of the
principle of reciprocity that the other country also allows Indian nationals
to practise in their country. As per Section 29, one class of persons is
entitled to practise the profession of law and that is, the advocates.
Section 30 mandates that every advocate whose name is entered in the
State roll shall be entitled as of right to practise in all judicial forums

throughout

the country,

including

the Supreme

Court.

Section

33

creates a bar, in that it insists that no person who is not enrolled as an


advocate under this Act would be entitled to practise in any Court in the
country.

Admittedly,

respondent-law

none of the foreign lawyers represented

firms have been enrolled as advocates

rolls in this country.

Section 47 of the Act elaborates

on any State
on the proviso

contained in Section 24 referred to above, and it specifically


any country which prevents

states that

the citizens of India from practising

profession of law or subjects them to unfair discrimination


shall not be entitled to practise the profession
section (2) empowers

by the

the

in that country

of law in India.

Sub-

the Bar Council of India to prescribe conditions,

subject to which foreign qualifications

in law obtained by persons other

than citizens of India shall be recognised for the purpose of admission


as an advocate under the Act. According to the learned senior counsel,
the Bar Council

of India has not framed any regulations

of the kind

referred to in Section 47 of the Act and therefore,

citizens

countries

of law in India.

are barred from practising

the profession

of other

Learned senior counsel placed reliance on the Division Bench judgment


of the Bombay High Court in the case of Lawyers Collective

vs. Bar

Council of India reported in 2010 (112) Bom. L.R. 32.

22. It is interesting to note that in that case, the Bar Council of India as
well as the Bar Council

of Maharashtra

& Goa

arguments advanced on behalf of the writ petitioner.


had submitted

had adopted

the

The Union of India

that there was no proposal back then to allow foreign

lawyers to practice Indian law in Indian Courts and that the Government
was still in the process of consulting

all the stake holders, and any

decision would be taken only after due consultations


However,

it was stated

with all concerned.

on behalf of the Government

that for the

purposes of drafting legal documents or giving legal opinion on aspects


of foreign or international law, one need not be on the roll of the Bar
Council, given the fact that the Act incorporates penal provisions only in
respect of persons illegally practising in judicial forums in India, while it
does not provide any penal provision for breaches committed by
persons practising in non-litigious matters, which goes to show that
persons practising

In

non-litigious matters are not governed by the

provisions of the Act.


23. Learned senior counsel submitted before the Bombay High Court,
the Union of India took a different stand and supported the case of the
writ petitioner therein, in that it was opposed to permitting the foreign
law firms to open their branch offices in India. However, in this case, it
has adopted the stand taken by the Bar Council of India. According to
him, if foreign law firms are allowed to practice in India, there shall be no
control in the matter of practice and consequently, the Indian advocates
would be discriminated against, since they are to be enrolled in the
State rolls for practising as advocates and also abide by the regulations
framed by the Bar Council of India.
24. Mr. Abhishek Manu Singhvi, learned counsel appearing on behalf of
some of the respondent-law firms based in the United States began his
arguments by putting forth two questions whether foreign lawyers can
come to India for the purpose of offering legal advise to their clients
here on foreign law and whether any provision of law prohibits practice
of foreign law in India. He submitted that both the above issues have
not been decided by the Division Bench of the Bombay High Court in
the aforementioned judgment.

Before the Bombay High Court, the

challenge was only to Section 29 of FERA.

Hence, the question

whether there is any specific prohibition for practice of foreign law in


India needs to be answered in the case on hand. According to the
learned counsel, International Arbitration is going on big time in India as
well as in almost all the countries across the globe. India is a signatory
to the World Trade Agreement, which has opened the gates for many
international business establishments based in different parts of the
world to come and set up their respective businesses in India. In such a
scenario,

these

international

establishments

entering

into

trade

agreements would require to consult legal experts on the implications of


such agreements on their countrys laws, and advocates practising
Indian law would not be competent to offer them advise on their laws.
Therefore, this makes it utmost necessary for foreign legal experts to
visit India, stay here and offer advice to their clients in India on their
respective laws, and there is no specific provision in the Act prohibiting
a foreign lawyer to visit India for a temporary period to advise his/her
clients on foreign law.

According to the learned counsel, practising

Indian law in India is implicit in the Act and advising foreign law is not at
all barred. He submitted that there can be no two opinions about the
fact that if any of the foreign law firms allowed to practise in India in nonlitigious matters indulge in practising in litigious matters, then the penal
provisions of the Advocates Act would automatically be attracted and
the offenders are liable to be punished. He further submitted that the
principle of reciprocity should be given its due, given the fact that no
country in the world prohibits practice of Indian Law in their respective
country, wherever necessary.

Mr. Singhvi tried to distinguish the

judgment of the Bombay High Court in Lawyers Collectives case (cited


supra). According to him, in that case, only two points were argued and
decided

whether practising in chamber will amount to practice and

whether there is a business liaison under Section 29 of FERA when


such practice is allowed, and

no issue was remotely argued on the

advisory practice of foreign law by foreign firms for a limited period,


which is the issue on hand.

He quoted various paragraphs from the

aforesaid judgment in support of his submission.

According to the

learned counsel, by the present writ petition, the petitioner wants a ban
by way of judicial legislation on the entry of foreign law firms in India,
especially when there is no statutory ban in this behalf. This, he states,
would have serious consequences on foreign investment in the country,
in this ever expanding era of global economy.
25. The preliminary objection raised by Mr. Singhvi is that his clients are
not practising Indian law. According to him, none of his clients has an
office in India and in view of the fact that the US law firms do not
practise Indian law, the lawyers from these firms have not applied for
enrolment as advocates under the Advocates Act. The learned counsel
referred to the Arbitration and Conciliation Act, 1996 where a specific
provision is contained in Section 2(1)(f) which provides for international
commercial arbitration for resolving disputes arising out of legal
relationships where at least one of the parties is an individual or a body
corporate of a foreign origin. Even the Preamble to the aforesaid Act
states that the General
recommended

that

Assembly of the United Nations having

all countries

give due

consideration

to the

UNCITRAL Model Law on International Commercial Arbitration adopted


by the United

Nations Commission

on International

Trade

Law

(UNCITRAL) and the UNCITRAL Conciliation Rules, the parties are


required to seek amicable settlement of disputes arising in the context
of international

commercial

relations by recourse to conciliation.

According to the learned counsel, this necessitates the involvement of

foreign legal experts having knowledge of foreign law. Learned counsel


referred to the judgment rendered by the Supreme Court in the case of
Vodafone International Holdings B.V. vs. Union of India in S.L.P. (C)
No.26529 of 2010, which extensively dealt with issues relating to the
impact of foreign investment and inflow of foreign currency on Indian
economy, as also other issues involving fiscal implications on the
economic development of the country vis-' -vis international commercial
transactions.
26. Mr. P.S. Raman, learned senior counsel appearing on behalf of the
Bar Council of India submitted that the issue raised in this writ petition is
no longer res integra and has been settled by the judgment cited supra,
wherein it has been held that the practice of law would include even
non-litigious practice and therefore, foreign lawyers not enrolled as
advocates under the Act would not be entitled to practice.

The said

judgment of the Bombay High Court, not having been appealed against,
has attained finality.

Mr. Raman highlighted Section 17 of the

Advocates Act, whereunder the State Bar Councils are enjoined to


maintain the roll of advocates, as also Section 24(1 )(c)(iv) of the Act
which provides that a person may be qualified to be enrolled if he has
obtained such other foreign qualification in law as is recognised by the
Bar Council of India for such purpose. According to the learned senior
counsel, the conditions prescribed under Section 24(1) of the Act are
clearly cumulative. Mr. Raman pointed out that the Bar Council of India,
being the statutory body for the representation and regulation of the
legal profession in the country, has decided not to relax any of the
statutory norms for practice of law in India by exercise of its powers
under Section 47(2) read with Section 49(1 )(e) of the Act, nor have
been any explicit regulations made in this behalf.

Learned senior

counsel submitted that a resolution to the said effect was taken at the
Joint Consultative Conference of the Members of the Bar Council of
India and the Chairmen, Vice-Chairmen and Chairmen, Executive
Committee of the State Bar Councils held at Kochi on the 17th and 18th
of November, 2007 and the decision was arrived at after consultations
with the representatives of the respective State Bar Councils. Learned
senior counsel submitted that the term practice of law under Chapter IV
of the Act encompasses myriad functions performed by a lawyer and is
not confined to mere appearance/argument

before judicial forums.

Quoting the observations of the Supreme Court in the case of Ex-Capt.


Harish Uppal vs. Union of India reported in (2003) 2 S.C.C 45 that the
right of the advocate to practice envelopes a lot of acts to be performed
by him in discharge of his professional duties, and apart from appearing
in the courts, he can be consulted by his clients, he can give his legal
opinion whenever sought for, he can draft instruments, pleadings
affidavits or any other documents, he can participate in any conference
involving legal discussions, he can work in any office or firm as a legal
officer, he can appear for clients before an arbitrator, Mr. Raman
pointed out that it would not be correct to state that non-litigious practice
would not be regulated by the provisions of the Act. According to the
learned senior counsel, the provisions of the Act would apply with equal
force to both litigious and non-litigious practice of law and it is only
persons enrolled under Section 24 who can engage in the same.
27. Mr. M. Raveendran, learned Additional Solicitor General appearing
for the Union of India submitted that the proposal to consider an
amendment of Section 29 of the Advocates Act to permit foreign law
firms to practice law in India in non-litigious matters on reciprocity basis

with foreign countries is under consideration, in consultation with the


Bar Council of India.
28. Mr. R. Krishnamoorthy, learned senior counsel appearing for a
couple of law firms based in the United Kingdom submitted that the Bar
Council of India regulates the advocates enrolled in India, and law firms
as such are not required to register themselves before any statutory
authority or require permission to engage in non-litigation practise. In
other words, Indian law firms are operating in a free environment
without any regulation and the oversight of the Bar Council with regard
to such non-litigation activities of law firms is virtually non-existent. By
exploiting this loophole, many accountancy and management firms are
employing law graduates who are rendering legal services which are
contrary to the Act. In such circumstances, it is high time an appropriate
framework for regulating law firms is put in place.

Learned senior

counsel further submits that the petitioners contention that foreign law
firms should not be allowed to take part in negotiations, settling up
documents

and

arbitrations

will

be counter-productive,

because

international arbitrations are not confined to a single country and many


arbitrations with Indian Judges and lawyers as arbitrators are being held
outside India, where both foreign and Indian law firms advise their
clients. If foreign law firms are denied entry to deal with arbitrations in
India, then the country will stand to lose many of the arbitrations to
Singapore, Paris and London. This is clearly contrary to the declared
policy of the Government and will be against the national interest,
especially

when

the Government

International Arbitration.

wants

India to be a hub of

JJo
29. Mr. Krishnamoorthy also raised a question with regard to the
maintainability of the writ petition.

He immediately drew the Courts

attention to the judgment of the Supreme Court in the case of Kusum


Ingots and Alloys Ltd. vs. Union of India reported in (2004) 6 S.C.C.
254, wherein the Supreme Court has dealt with the question as to what
cause of action, vis-i-vis a case is. According to the Supreme Court, it
implies a right to sue. The material facts which are imperative for the
suitor to allege and prove constitutes the cause of action.
action is not defined in any statute.

Cause of

It has, however, been judicially

interpreted inter alia to mean every fact which would be necessary for
the plaintiff to prove, if traversed, in order to support his right to the
judgment of the Court.

Negatively put, it would mean that everything

which, if not proved, gives the defendant an immediate right to


judgment, would be part of cause of action. Its importance is beyond
any doubt. For every action, there has to be a cause of action; if not,
the plaint or the writ petition, as the case may be, shall be rejected
summarily. Relying on these observations, the learned senior counsel
contends that there arose no cause of action for the petitioner in the
State of Tamil Nadu for seeking the relief as done in this writ petition. In
that case, the Supreme Court also dealt with the applicability of Section
141 of the Code of Civil Procedure to a writ proceedings. According to
the Supreme Court, the phraseology used in Section 20(c) of CPC and
Clause (2) of Article 226, being in pari materia, the decisions of this
Court rendered on interpretation of Section 20(c) of CPC shall apply to
writ proceedings also. It was further observed that the entire bundle of
facts pleaded need not constitute a cause of action, as what is
necessary to be proved before the petitioner can obtain a decree is the
material facts. The expression material factsis also known as integral

1J1
facts. Learned senior counsel also relied upon the judgment rendered
by the Supreme Court in the case of Neetu vs. State of Punjab reported
in A.I.R. 2007 S.C. 758, where it was observed that courts must do
justice by promotion of good faith, and prevent law from crafty
invasions. Courts must maintain the social balance by interfering where
necessary for the sake of justice and refuse to interfere where it is
against the social interest and public good. It was further observed that
no litigant has a right to unlimited draught on the Court time and public
money in order to get his affairs settled in the manner he wishes. Easy
access to justice

should

not be misused as a licence to file

misconceived and frivolous petitions. Today people rush to Courts to file


cases in profusion under this attractive name of public interest. They
must inspire confidence in Courts and among the public. According to
the learned senior counsel, no public interest is really involved in this
writ petition and therefore, the Court would do well in dismissing the
same.
30. Mr. A.L. Somayaji, learned senior counsel appearing for a few other
respondents some foreign and some local law firms, contended that his
clients neither have any office in India, nor do they practice Indian law
through offices in India or in any other country.

These respondents

categorically assert that they have not violated Indian income tax law or
any other

law.

According

to the learned senior counsel, the

respondents do not own or operate L.P.Os. in India. It is the case of


these respondents that their lawyers fly in and out of India on need
basis, to advise their clients on international transactions, to which there
is an India component and their Indian counterparts, who are enrolled
under the Advocates Act, are always there to advise them on aspects
involving Indian law. Learned senior counsel submitted that the relief

sought for in the writ petition is only for a direction to respondents 1 to 8


to take action against respondents 9 to 40 or any other Foreign Law
Firms or foreign lawyers who are illegally practising the profession of
Law in India and to forbear them from having any legal practice either
on the litigation side or in the field of non-litigation and commercial
transactions in any manner within the territory of India, and since none
of his clients fall in that category, there is no question of granting the
relief as against these respondents.

According to the learned senior

counsel, in the absence of a mandatory provision in this behalf, such a


mandamus cannot at all be issued. He submitted that the respondentlaw firms only advise their clients on the question of interpretation of
foreign law, which can be done only by foreign law firms which have the
expertise in the respective laws and since there is no specific prohibition
in this behalf in the Advocates Act, the writ petition for the aforesaid
relief cannot stand even a minutes scrutiny.
31. Mr. Sriram Panchu, learned senior counsel appearing for the 15th
respondent submitted that his client is not a law firm and is a Business
Process Outsourcing (BPO) or a Knowledge Process Outsourcing
(KPO) company, whose business primarily involves importing jobs that
are normally done by its clients abroad into India and having them
executed by the 15th respondent, which is a separate and distinct legal
entity incorporated and registered under the Companies Act, 1956. The
respondent provides a wide range of customized and integrated
services and functions to its customers which, inter alia, include word
processing, secretarial support, transcription services, proof-reading
services, presentation graphics, pitch support, concierge and travel
desk support

services,

knowledge

management,

CRM database

management and reporting, business development, IT training and

11~
support, HR administration, trend awareness, finance & accounting,
billing, accounts payable, and general ledger, management reporting
and analysis, payroll management, hiring and intake administration,
project management etc.

The respondent, having agreed to provide

such services, has contractual agreements/self-owned data processing


units in several locations worldwide, which ensures that the contracted
services are provided.

The said services are not in the nature of

practice of law in any manner whatsoever. It is the specific case of the


15th respondent that their firm does not practice law in any jurisdiction
in the world, much less in India.

It is categorically stated that the

respondent does not take instructions, render any legal advice in the
form of opinions etc. akin to that which is expected from a lawyer or a
law firm and hence, the respondent cannot be said to be engaging in
the practice of law. It is further stated that the customers of the 15th
respondent firm neither consider them as a law firm nor does the firm
appear before any courts, tribunals etc. anywhere in the world. Learned
senior counsel pointed out that it would be relevant to note that no reply
has been filed by the petitioner to the counter affidavit filed on behalf of
this respondent and moreover, since no issues involving the BPOs has
ever been raised in this writ petition, the writ petition cannot be
sustained as far as the 15th respondent is concerned.
32. Mr. Aravind P. Datar, learned senior counsel appearing for some
other foreign law firms also questioned the maintainability of the writ
petition. According to him, the writ petition does not state as to how the
cause of action has arisen within the jurisdiction of the State of Tamil
Nadu. He submitted that the tests laid down by the Supreme Court in
the judgment in State of UUaranchal vs. Balwant Singh Chaufal reported
in (2010) 3 S.C.C. 402, have not been satisfied in the instant writ

11~

..

petition. In the said case, the Supreme Court observed that courts must

consider the following

factors

before entertaining

Public Interest

Litigations the credentials of the petitioner, the genuineness and bona


fides of the PIL substantial public interest must be involved and the PIL
should be aimed at redressal of a genuine public harm or injury; the
court should prima facie verify the contents of the petition before
entertaining the same and the courts should deter petitions by
busybodies for extraneous and ulterior motives by imposing exemplary
costs.

According to the' learned senior counsel, any petitioner who

applies for a writ of mandamus should, in compliance with the well


known rule of practice, ordinarily first call upon the authority concerned
to discharge its legal obligation and show that it has refused or
neglected to carry it out within a reasonable time before applying to a
court. This principle has been laid down in the case of State of Haryana
vs. Chanan Mal reported in A.I. R. 1976 1654 as also in Saraswati
Industrial Syndicate Ltd. vs. Union of India reported in A.I.R. 1975 S.C.
460. A distinction was sought to be made by the learned senior counsel
to the judgment in Lawyers Collectives case (supra), in that it involved
the provisions of FERA, 1973 and at that time, under Section 29 of the
said Act, there was a complete restriction, which was sought to be
changed in the year 1999, when the FEMA came into force. Moreover,
the Bombay High Court in the aforesaid judgment, has not considered
the issue vis-' -vis various other statutory provisions. According to Mr.
Datar, the prayer sought for in the writ petition, if granted, will lead to
drastic consequences

and will have the effect on other statutes.

Learned senior counsel also placed reliance on the provisions of the


Arbitration and Conciliation Act and contended that the issue has to be
seen from the global perspective and the writ petition, dismissed.

33. Mr. K.S. Natarajan, learned counsel appearing for respondents 36


and 37, which are Australian law firms, submitted that the Advocates
Act and Bar Council of India Rules govern the field only with regard to
practice of Indian law, and his clients are not enrolled as advocates
under the Act based on the foreign legal qualification and therefore, his
clients and their lawyers are not required to enrol themselves under the
Act to practice foreign law within the territory of India. According to him,
there are many law graduates from India who have further qualified
themselves to practice legal profession in Australia.

It is stated that

these respondents do not have any office in any part of India and they
do not practice Indian law through any offices in India or elsewhere, nor
do they operate or own any LPO in India.

It is the case of these

respondents that their lawyers fly in and out of India on a need basis to
advise their clients on international transactions or other matters
involving Australian laws or international ventures to which there is an
Indian component and the working of the Indian law is always entrusted
to an Indian counterpart, from whom advise is sought with regard to the
extent Indian law is applicable in the given circumstances.

He

submitted that the averments made in the writ petition with regard to the
disciplining of Indian lawyers will not apply to the Australian firms. It is
further submitted that these respondents have adhered to the law
applicable with regard to advertising, canvassing and soliciting work and
maintaining their website.

According to the learned counsel, the

statement that practice of law with respect to the Indian law has been
misunderstood

by the petitioner and it only conveys that these

respondents also take up the work with regard to international subjects,


which also involve Indian law. It is submitted that the respondents do
not undertake litigation or non-litigation practice in Indian law.

It is

reiterated that there is no restriction on the practice of foreign law within


the territory of India and the principle of reciprocity between India and
Australia in the profession of legal services is a matter for the
Governments concerned to decide as a matter of policy and cannot be
the basis for the present writ petition. The respondents deny the very
locus standi of the petitioner to file this writ petition, in that the petitioner
has relied upon an alleged representation said to have been given by an
Association of Indian lawyers to respondents 1 to 8 and the alleged
inaction of the said respondents on the said representation is the basis
for the writ petition. According to the learned counsel, this Court lacks
the jurisdiction

to entertain

the writ

petition

as against

these

respondents since these respondents are not carrying on any business


activity within the territorial limits of India and within the limits of this
Court and moreover, there is no cause of action against these
respondents. The petitioner has not made any specific claim as against
the 37th respondent in relation to the maintenance of an office and/or
the practice of the profession of law by the 37th respondent within Tamil
Nadu or even in India and as such, the present writ petition against this
respondent is not maintainable. The learned counsel would submit that
law can never be static and be confined in the hands of a restricted
group or individuals, especially in the present context of developing
global economy.

The apprehension of the petitioner is not justified,

since these respondents, who do not have any office in India, can never
deprive the petitioner of any work that he is competent and capable of
carrying.
34. Mr. Satish Parasaran, learned counsel appearing for the 11th
respondent submitted that his client does not practice law in India and
does not have a physical presence here.

It is an American law firm

1J+
founded in the year 1836 having more than 300 lawyers and other
professions and its offices are located in New York, Washington DC,
Los Angeles, Chicago, Stamford, Parsippany and Brussels, Belgium. It
is got clients with diverse international legal issues who require legal
advice from different jurisdictions and different practices and countries.
The respondent has developed working relationships with local law
firms in different countries and jurisdictions, to whom it refers matters
and cases for getting advice for its clients.

In situations where the

clients of this respondent require legal advise in India, they refer work to
various Indian lawyers and law firms in India located in cities where
such advice is required. It has referred legal questions involving Indian
law to senior counsel and law firms in Delhi and Mumbai which are
enrolled with the respective Bar Councils. The respondent denies the
petitioners contention that Indian lawyers in the United States are not
permitted to practice law there or are subjected to unfair discrimination
in the matter of practice of law, thus precluding reciprocity with India. In
fact, many Indian lawyers practice law in the U.S. and the American Bar
Association Model Rule for the Licensing and Practice of Foreign Legal
Consultants provides that an Indian advocate of good standing of an
Indian Bar Council may be licensed to practice law in the U.S. without
giving any examination and he only needs to submit an application
certifying qualification to practice law in India, besides paying a modest
fee. The variant of such Model rule has also been emulated by various
States, which itself is testimony is that it is not discriminatory. According
to the respondent, several Indian advocates also practice law in the
U.S. by associating with U.S. licensed lawyers on specific matters and
these lawyers frequently travel to the U.S. on a temporary basis for
consultations on Indian legal issues.

Thus, the petitioners main

argument against disallowing U.S. law firms on the ground of lack of


reciprocity is denied as being incorrect. It is the case of this respondent
that the petitioner has misinterpreted the Advocates Act and the Bar
Council Rules, which govern the practice of Indian law. As a corollary,
the Act and Rules do not apply to the practice of foreign or non-Indian
law. Foreign lawyers, who are licensed in their respective jurisdiction,
are not restrained by the Act from advising their Indian clients on foreign
law issues.

Hence, lawyers from the 11th respondent are entitled to

advise their Indian clients on foreign or U.S. legal issues, as long as


they are qualified and licensed in their respective jurisdictions.

The

contention that persons who are not governed by disciplinary rules of


Indian Bar Councils would not be subjected to supervision or be
governed by rules, regulations and ethics is denied and it is stated that
the rules of a Bar Council would equally apply to lawyers even when
they are working outside their home countries. Every State in the U.S.
has rules which govern the practice of law in that jurisdiction and U.S.
lawyers are governed by their States regulatory bodies.

Lawyers

registered in that State must conform to its rules regardless of where


they practice law.

The American Bar Associations Model Rules of

Professional Conduct serve as models for the ethics rules of most


States. In New York, for instance, the New York State Bar Association
has approved ethics and disciplinary rules for lawyers, called the New
York Rules of Professional Conduct, which have been adopted by the
Appellate Division of the New York Supreme Court.

The lawyer is

subject to these rules regardless of where he/she practices law.


35. Ms. P.T. Asha, learned counsel appearing for the 9th respondent
submitted that her client is neither incorporated/registered as a law firm
nor does it render legal services including advice in the form of opinions

Jl~
or appear before any courts or tribunals anywhere in India and hence,
cannot be said to be engaged in the practice of law. According to her,
her client has consulted Indian law firms whenever it has been required
to provide legal services in India for its clients. More importantly, as on
date, the 9th respondent company has terminated services of all its
employees by way of redundancy and only the Director of the company
continues to act for the company as required, without compensation
from the company, with advice from professional legal and accounting
advisors in order to ensure that the firm meets their statutory obligations
in India.
36. Mr. R. Yashod Vardhan, learned senior counsel appearing on behalf
of the 23rd respondent submitted that his client is an international law
firm, as is the case with most of the other respondents herein, having
offices in London, Brussels, Hong Kong and Beijing. It has got clients
throughout the world with international business interests. However, the
scope of the 23rd respondents practice is such that it advises only on
matters of English, European Union and Hong Kong Law. According to
him, his client has working relationships with leading law firms in major
jurisdiction worldwide and it instructs appropriate local law firms to
provide local law advise wherever it is required. Learned senior counsel
submitted that no specific allegation has been made by the petitioner
against this respondent and hence, no relief could be granted as against
this respondent.
37. In reply, Mr. AR.L. Sundaresan, learned senior counsel appearing
for the writ petitioner submitted that the provision contained in Section
47(2) of the Advocates Act is subject to Section 47(1), in that it makes
no distinction between foreign law and Indian law. Section 29 enables

only one class of persons, i.e. advocates, to practise the profession of


law. Section 33 makes it mandatory that a person who is enrolled as an
advocate under this Act is only entitled to practise in any Court in the
country, which includes practice in matters of arbitration. Therefore, the
contention on behalf of the petitioners that they are not appearing
before any judicial forum in India cannot be sustained.

Similarly, the

respondents cannot also be heard to contend that they are entitled to


carryon with their practice in arbitration proceedings by placing reliance
on the Preamble to the Arbitration and Conciliation Act.
38. Learned senior counsel placed reliance on the resolution passed by
the Bar Council of India in the Proceeding. of the Consultative
Conference held at Kochi on the 17th and 18th of November, 2007,
wherein it was unanimously resolved with regard to the entry of foreign
law firms and foreign lawyers into India as follows :This joint consultative conference of the Bar Council of India and the
Chairmen, Vice-Chairmen and Chairmen, Executive Committee of all
State Bar Councils in India hereby unanimously resolve to support and
affirm the resolution of the Bar Council of India NO.17/2006

dated

12.2.2006 and further resolves to request the Government of India not


to open up Indian Legal profession to foreign lawyers or foreign law
firms at this juncture and not to permit the entry of foreign lawyers or
foreign law firms into India for function or practice in any form in India as
advocates, lawyers or solicitors.

It is further resolved to authorize the

Bar Council of India to continue the dialogue and interaction with the
Government of India, represented by Ministry of Law and Justice and
also the Ministry of Trade and Commerce and with the Law Councils
and Law Societies of the foreign countries, i.e. the counterparts of the

Bar Council of India in the respective countries to ponder into the


principle of reciprocity in this subject and to ascertain the details
procedure of reciprocal arrangements and the restriction imposed for
Indian lawyers to practice in the respective countries.

It is further

resolved to authorize the Bar Council of India to take the final decision
in the matter in consultation with all the State Bar Councils in due
course of time and at the appropriate stage as to whether entry of
foreign lawyers and law firms could be permitted into the legal practice
in India in any form or manner and subject to any limitations and
restrictions imposed in the changed circumstances and as and when the
situation ripens and in the best interest of the legal profession of India
and that of the country and people.

It is further resolved to protest

against the Government of Indias attitude in filing a counter affidavit in


the Mumbai High Court adopting the stand that the Advocates Act has
nothing to do with and does not bar the practice of foreign lawyers in
India, while they are simultaneously in dialogue with the Bar Council of
India and seeking the views of the Bar Council of India in the matter.
Therefore, it is further resolved to request the Government of India not
to take any final decision in the matter of entry of foreign lawyers and
foreign law firms into India without being consulted with and obtaining
the approval of the Bar Council of India.

39. Before we decide the issue involved in the instant case, we


would first like to discuss the ratio decided by the Bombay High Court in
the case of Lawyers Collective vs. Bar Council of India, 2010 (112) Bom
LR 32.

In the Bombay High Court, the writ petition was filed by a

society as a Public Interest Litigation challenging the permission granted


by the Reserve Bank of India to some foreign law firms to open liaison

offices

in India, as the same

being

provisions of the Advocates Act, 1961.

illegal and in violation

of the

In that case, the respondents,

which were foreign law firms practising the profession of law in UK/USA
and having branch offices in different parts of the world, had applied to
the RBI during the period 1993-1995 seeking permission

to open their

liaison offices in India. While granting such permission, the RBI made it
clear that the permission

granted to the foreign law firms in that case

was limited for the purpose


Regulation

Act,

construed

in any

validating

of Section 29 of the Foreign

1971 and that the said permission


way

any violations,

regularizing,
contraventions

condoning

Exchange

should

not be

or in any

manner

or other lapses, if any, under

the provisions of any law for the time being in force.


40. In other words, the challenge before the Bombay High Court was to
the permission granted by the Reserve Bank of India to foreign law firms
to establish

their liaison offices in India under Section

29 of FERA,

1973, and assuming such permission was valid, whether these foreign
law firms could carryon
enrolled

as advocates

their liaison activities


under the Advocates

in India only on being


Act,

1961.

There,

distinction was sought to be made between a person who is said to be


practising in non-litigious

matters when he represents to be an expert in

the field of law and renders


drafting documents,

legal assistance

to another

person by

advising clients, giving opinions etc., as opposed to

a person who is said to be practising

in litigious

matters when he

renders legal assistance by acting, appearing and pleading on behalf of


another person before a judicial forum. The question raised in that case
was, whether

a person who wants to practise in non-litigious

should have been enrolled as an advocate under the Act.

matters

The case of

the petitioner therein was that the Advocates Act is a complete code for

regulating the practice of law in India and since the expression to


practice the profession of law includes both practise in litigious as well
as non-litigious matters, foreign law firms could not have carried on
practise in non-litigious matters without being enrolled as advocates
under the Act. It was contended that the right to practice the profession
of law cannot be confined to physical appearances in judicial forums,
but it necessarily includes giving legal advice to a client, drafting and
providing any other form of legal assistance.
41. The petitioner before the Bombay High Court was not averse to
foreign law firms practising the profession of law in India, but its main
grievance was that such firms cannot be permitted to practise even in
non-litigious matters without being enrolled as advocates under the Act.
The Bar Council of India, being a regulatory body, has been constituted
with a view to keep a check on the lawyers who render services to their
clients in litigious as well as non-litigious matters.

The case of the

petitioner therein was that no country in the world permits unregulated


practise of law and therefore, the permission granted by the RBI to
foreign law firms to open a liaison office in India amounts to permitting
them to open their branch offices in India and practise the profession of
law without being enrolled as advocates under the Act. In view of the
permission granted by the RBI, the foreign law firms stood to gain an
unfair advantage over the advocates practising in India, because the
Indian advocates

practising

in non-litigious

matters

were

being

subjected to the provisions of the Act as well as the rules framed by the
Bar Council, whereas their foreign counterparts were neither being
subjected to the Act nor the rules framed by the Bar Council.

42. The Division Bench of the Bombay High Court formulated the

following two questions for determination


(i)

Whether the permission granted by the RBI to respondents 12 to


14-foreign law firms to establish their place of business in India
(liaison office) under Section 29 of FERA is legal and valid?

(ii)

Assuming such permissions are valid, whether these law firms


could carryon their liaison activities in India only on being enrolled
as advocate under the Advocates Act, 1961?
In specific, the question was, whether practising in non-litigious
matters amounts to practising the profession of law under Section
29 of the Advocates Act.

43. After thoroughly examining the widespread ramifications of the issue


involved, the Division Bench held as follows :40. In the present case, the core dispute is with reference to the
permission granted by RBI to the respondents No. 12 to 14 to open their
liaison offices in India under Section 29 of the 1973 Act. The respondent
No. 12 to 14 are the foreign law firms practising the profession of law in
U.K. / 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 1961 Act.
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

coordination

and

communications channel between the head office / 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 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.1. 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 profession of 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 v. 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 1973 Act.
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 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 I 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 in extricately 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 1973 Act.
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 as Advocates under the 1961 Act?

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 1961 Act 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 question, therefore, to be
considered is, whether the 1961 Act applies only to persons practising
in litigious matters, that is, practising before Court and other authorities?
44. As noticed above, the fact of the case before the Bombay High
Court were that the respondents which were foreign law firms practising
the profession of law in US/UK sought permission to open their liaison
office in India and render legal assistance to another person in all

litigious and non-litigious matters. The Bombay High Court, therefore,


rightly held that establishing liaison office in India by the foreign law firm
and rendering liaisoning activities in all forms cannot be permitted since
such activities are opposed to the provisions of the Advocates Act and
the Bar Council of India Rules. We do not differ from the view taken by
the Bombay High Court on this aspect.
45. However, the issue which falls for consideration before this Court is
I

as to whether a foreign law firm, without establishing any liaison office in


India visiting India for the purpose of offering legal advice to their clients
in India on foreign law, is prohibited under the provisions of the
Advocates Act. In other words, the question here is, whether a foreign
lawyer visiting India for a temporary period to advise his client on foreign
law can be barred under the provisions of the Advocates Act. This issue
was neither raised nor answered by the Bombay High Court in the
aforesaid judgment.
46. In the instant case, most of the respondent law firms have been
carrying on consultancy/support services in the field of protection and
management of intellectual, business and industrial proprietary rights,
carrying out market surveys and market research, and publication of
reports and journals without rendering any legal service including advice
in the form of opinion. The respondents have categorically stated that
foreign lawyers visit India for giving advice on their own system of law or
on English law. It appears that the 11th respondent has neither any
office in India, nor does it practice law before any Court in India. It is an
American Law Firms having its offices at New York, Washington, Los
Angeles and other countries. It has clients dealing with diverse
international legal issues, who require legal advice from different

countries, for which the 11th respondent developed working relationship


with local law firms in different countries. The 11th respondent has
stated that for Indian clients requiring legal advice in India, it refers the
work to various Indian lawyers and law firms located in cities where
such advice is required. The 14th respondent is not owning or operating
any LPOs in India. According to this respondent, the lawyers from the
said foreign law firm fly in and fly out of India on need basis to their
clients on international transactions, to which there is an Indian
component. To the extent Indian law is involved, such matters are
addressed by Indian lawyers enrolled under the Advocates Act, 1961.
47. Other foreign law firms have also categorically stated that the
lawyers from the respondent-foreign law firms fly in and fly out of India
on need basis to advice their clients on international transactions or
other international

related matters, to which there is an Indian

component. To the extent Indian law is involved, such matters are


addressed by the Indian lawyers enrolled under the Advocates Act.
48. It is the case of the 22nd respondent that the India Practising Group
is advising its clients only on commercial matters involving Indian
elements relating to merger, acquisition, capital market, projects, energy
and infrastructure, etc. from an international legal perspective.
49. Similarly, the 35th respondent stated, inter alia, that it is an
international law firm providing legal services to its international clients.
Some Indian businesses that have international legal requirements
consult this respondent relying upon its international expertise, and all
such consultations and legal services rendered are in relation only to
the laws of the specific international jurisdiction.

50. According to the 36th respondent foreign law firm, their lawyers fly
in and fly out of India on need basis to advise its clients on international
transactions and other matters involving Indian laws and international
ventures, to which there is an Indian component.
51. We find force in the submission made by the learned counsel
appearing for the foreign law firms that if foreign law firms are not
allowed to take part in negotiations, for settling up documents and
conduct arbitrations in India, it will have a counter productive effect on
the aim of the Government to make India a hub of International
Arbitration. According to the learned counsel, many arbitrations with
Indian Judges and Lawyers as Arbitrators are held outside India, where
both foreign and Indian law firms advise their clients. If foreign law firms
are denied entry to deal with arbitrations in India, then India will lose
many of the arbitrations to foreign countries. It will be contrary to the
declared policy of the Government and against the national interest.
Some of the companies have been carrying on consultancy/support
services in the field of protection and management of intellectual,
business and industrial proprietary rights, carrying out market surveys
and market research and publication of reports, journals, etc. without
rendering any legal service, including advice in the form of opinion, but
they do not appear before any courts or tribunals anywhere in India.
Such activities cannot at all be considered as practising law in India. It
has not been controverted that in England, foreign lawyers are free to
advice on their own system of law or on English Law or any other
system of law without any nationality requirement or need to be qualified
in England.

52. Before enacting the Arbitration and Conciliation Act, 1996 the Law
Commission of India, several representative bodies of trade and
industry and experts

in the field of arbitration

have proposed

amendments to the Act to make it more responsive to contemporary


requirements. It was also recognised that the economic reforms in India
may not fully become effective if the law dealing with settlement of both
domestic and international commercial disputes remains out of tune with
such reforms. The United Nations Commission on International Trade
Law (UNCITRAL) adopted in 1985 the Model Law on International
Commercial

Arbitration.

The Arbitration

and Conciliation

Act

is,

therefore, consolidated and amended to the law relating to domestic


and international commercial arbitration as well as for the enforcement
of foreign arbitral award. The Act was enacted as a measure of fulfilling
Indias obligations under the International Treaties and Conventions. On
account of the growth in the international trade and commerce and also
on account of long delays occurring in the disposal of suits and appeals
in courts, there has been tremendous movement towards the resolution
of disputes through alternative forum of arbitrators.
53. Section 2(1 )(f) of the Act defines the term International Commercial
Arbitration as under :(f) International Commercial Arbitration means an arbitration relating to
disputes arising out of legal relationships, whether contractual or not,
considered as commercial under the law in force in India and where at
least one of the parties is
(i)

an individual who is a national of, or habitually resident in, any


country other than India; or

(ii)

a body corporate which is incorporated in any country other than


India; or

(iii)

a company or an association or a body of individuals whose


central management and control is exercised in any country other
than India; or

(iv)

the Government of a foreign country.

54. From the above definition, it is manifestly clear that any arbitration
matter between the parties to the arbitration agreement shall be called
an international commercial arbitration if the matter relates to the
disputes, which mayor may not be contractual, but where at least one
of the parties habitually resides abroad

whether a national of that

country or not. The New York Convention will apply to an arbitration


agreement if it has a foreign element or flavour involving international
trade and commerce, even though such an agreement does not lead to
a foreign award.
55. International arbitration is growing big time in India and in almost all
the countries across the globe. India is a signatory to the World Trade
Agreement, which has opened up the gates for many international
business establishments based in different parts of the world to come
and set up their respective businesses in India.
56. Large number of Indian Companies have been reaching out to
foreign destinations by mergers, acquisition or direct investments. As
per the data released by the Reserve Bank of India during 2009, the
total out ward investment from India excluding that which was made by
Banks, had increased 29.6% to U.S. Dollar 17.4 billion in 2007-08 and
India is ranked third in global foreign direct investment. Overseas

investments in joint ventures and wholly owned subsidiaries have been


recognized as important avenues by Indian Entrepreneurs in terms of
foreign exchange earning like dividend, loyalty, etc. India is the 7th
largest, the second most populated country and the fourth largest
economy in the world. Various economic reforms brought about have
made India grow rapidly in the Asia-Pacific Region, and the Indian
Private Sector has offered considerable scope for foreign direct
investment, joint-venture and collaborations. Undoubtedly, these crossborder transactions and investments would give bigger opportunities for
members of the legal fraternity, in order to better equip themselves to
face the challenges. It is common knowledge that in the recent past,
parties conducting International Commercial Arbitrations have chosen
India as their destination. The arbitration law in India is modelled on the
lines of the UNCITRAL Model Law of Arbitration and makes a few
departures from the principles enshrined therein. The Arbitration and
Conciliation Act 1996, provides for international commercial arbitration
where at least one of the parties is not an Indian National or Body
corporate incorporated in India or a foreign Government.
57. Institutional Arbitration has been defined to be an arbitration
conducted by an arbitral institution in accordance with the rules of the
institution. The Indian Council of Arbitration is one such body. It is
reported that in several cases of International Commercial Arbitration,
foreign contracting party prefers to arbitrate in India and several reasons
have been stated to choose India as the seat of arbitration. Therefore,
when there is liberalization of economic policies, throwing the doors
open to foreign investments, it cannot be denied that disputes and
differences are bound to arise in such International contracts. When one
of the contracting party is a foreign entity and there is a binding

~I

arbitration agreement between the parties and India is chosen as the


seat of arbitration, it is but natural that the foreign contracting party
would seek the assistance of their own solicitors or lawyers to advice
them on the impact of the laws of their country on the said contract, and
they may accompany their clients to visit India for the purpose of the
Arbitration.

Therefore,

if a party to an International

Commercial

Arbitration engages a foreign lawyer and if such lawyers come to India


to advice their clients on the foreign law, we see there could be no
prohibition for such foreign lawyers to advise their clients on foreign law
in India in the course of a International Commercial transaction or an
International Commercial Arbitration or matters akin thereto. Therefore,
to advocate a proposition that foreign lawyers or foreign law firms
cannot come into India to advice their clients on foreign law would be a
far fetched and dangerous proposition and in our opinion, would be to
take a step backward, when India is becoming a preferred seat for
arbitration in International Commercial Arbitrations. It cannot be denied
that we have a comprehensive and progressive legal frame work to
support

International Arbitration

and the 1996 Act,

provides for

maximum judicial support of arbitration and minimal intervention. That


apart, it is not in all cases, a foreign company conducting an
International Commercial Arbitration in India would solicit the assistance
of their foreign lawyers. The legal expertise available in India is of
International standard and such foreign companies would not hesitate to
avail the services of Indian lawyers. Therefore, the need to make India
as a preferred seat for International Commercial Arbitration would
benefit the economy of the country.
58. The Supreme Court in a recent decision in Vodafone International
Holdings B.V. vs. Union of India and another, SLP(C) No.26529 of

2010, dated 20.01.2012, observed that every strategic foreign direct


investment coming to India, as an investment destination should be
seen in a holistic manner.
question

involved

importance,

The Supreme Court observed that the

in the said case was of considerable

especially

on

Foreign

Direct

Investment,

public

which

is

indispensable for a growing economy like India. Therefore, we should


not lose site of the fact that in the overall economic growth of the
country, International Commercial Arbitration would playa vital part. The
learned counsel appearing for the foreign law firms have taken a definite
stand that the clients whom they represent do not have offices in India,
they do not advise their foreign clients on matters concerning Indian
Law, but they fly in and fly out of India, only to advise and hand-hold
their clients on foreign laws. The foreign law firms, who are the private
respondents in this writ petition, have accepted the legal position that
the term practice would include both litigation as well as non-litigation
work, which is better known as chamber practice. Therefore, rendering
advice to a client would also be encompassed in the term practice.
59. As noticed above, Section 2(a) of the Advocates Act defines
'Advocate' to mean an advocate entered in any roll under the provisions
of the Act. In terms of Section 17(1) of the Act, every State Bar Council
shall prepare and maintain a roll of Advocates, in which shall be entered
the names and addresses of (a) all persons who were entered as an
Advocate on the roll of any High Court under the Indian Bar Council Act,
1926, immediately before the appointed date and (b) all other persons
admitted to be Advocates on the roll of the State Bar Council under the
Act on or after the appointed date. In terms of Section 24(1) of the Act,
subject to the provisions of the Act and the Rules made thereunder, a
person shall be qualified to be admitted as an advocate on a state roll if

1~,t
he fulfils the conditions

(a) a citizen of India, (b) has completed 21

years of age and (c) obtained a degree in Law. The proviso to Section
24(1 )(a) states that subject to the other provisions of the Act, a National
of any other country may be admitted as an Advocate on a State roll, if
a citizen of India, duly qualified is permitted to practice law in that other
country. In terms of Section 47 (1) of the Act, where any country
specified by the Central Government by notification prevents citizens of
India practicing the profession of Law or subjects them to unfair
discrimination in that country, no subject of any such country shall be
entitled to practice the profession of Law in India. In terms of SubSection (2) of Section 47, subject to the provision of Sub-Section (1),
the Bar Council of India may prescribe conditions, if any, subject to
which foreign qualifications in law obtained by persons other than
citizens of India shall be recognized for the purpose of admission as an
Advocate under the Act. Thus, Section 47 deals with reciprocity. As per
the statement of objects and reasons of the Advocates Act, it was a law
enacted to provide one class of legal practitioners, specifying the
academic and professional qualifications necessary for enrolling as a
practitioner of Indian Law, and only Indian citizens with a Law Degree
from a recognized Indian University could enrol as Advocates under the
Act. The exceptions are provided under the proviso to Section 24(1 )(a),
Section 24(1 )(c) (iv) and Section 47(2). In the light of the scheme of the
Act, if a lawyer from a foreign law firm visits India to advice his client on
matters relating to the law which is applicable to their country, for which
purpose he flies in and flies out of India, there could not be a bar for
such services rendered by such foreign law firm/foreign lawyer.
60. We are persuaded to observe so, since there may be several
transactions in which an Indian company or a person of Indian origin

may enter into transaction with a foreign company, and the laws
applicable to such transaction are the laws of the said foreign country.
There may be a necessity to seek legal advice on the manner in which
the foreign law would be applied to the said transaction, for which
purpose if a lawyer from a foreign law firm is permitted to fly into India
and fly out advising their client on the foreign law, it cannot be stated to
be prohibited. The corollary would be that such foreign law firm shall not
be entitled to do any form of practice of Indian Law either directly or
indirectly. The private respondents herein, namely the foreign law firms,
have accepted that there is express prohibition for a foreign lawyer or a
foreign law firm to practice Indian Law.

It is pointed out that if an

interpretation is given to prohibit practice of foreign law by a foreign law


firms within India, it would result in a manifestly absurd situation wherein
only Indian citizens with Indian Law degree who are enrolled as an
advocate under the Advocates Act could practice foreign law, when the
fact remains that foreign laws are not taught at graduate level in Indian
Law schools, except Comparative Law Degree Courses at the Master's
level.
61. As noticed above, the Government of India, in their counter affidavit
dated 19.08.2010, have stated that the contention raised by the
petitioner that foreign law firms should not be allowed to take part in
negotiating settlements, settling up documents and arbitrations will be
counter productive, as International Arbitration will be confined to a
single country. It is further pointed out that many arbitrations are held
outside India with Indian Judges and Lawyers as Arbitrators where both
foreign and Indian Law firms advise their clients. It has been further
stated if foreign law firms are denied permission to deal with arbitration
in India, then we would lose many arbitrations to other countries and

this is contrary to the declared policy of the Government and will be


against the National interest, especially when the Government wants
India to be a hub of International Arbitration.
62. At this juncture, it is necessary to note yet another submission made
by the Government of India in their counter. It has been stated that law
firms as such or not required to register themselves or require
permission to engage in non-litigation practice and that Indian law firms
elsewhere are operating in a free environment without any curbs or
regulations. It is further submitted that the oversight of the Bar Council
on non-litigation activities of such law firms was virtually nil till now, and
exploiting this loop hole, many accountancy and management firms are
employing law graduates, who are rendering legal services, which is
contrary

to the Advocates

Act. Therefore,

the

concern

of the

Government of India as expressed in the counter affidavit requires to be


addressed by the Bar Council of India.

Further, it is seen that the

Government in consultation with the Bar Council of India proposes to


commission a study as to the nature of activities of LPOs, and an
appropriate decision would be taken in consultation with the Bar Council
of India.
63. After giving our anxious consideration to the matter, both on facts
and on law, we come to the following conclusion :(i) Foreign law firms or foreign lawyers cannot practice the profession of
law in India either on the litigation or non-litigation side, unless they fulfil
the requirement of the Advocates Act, 1961 and the Bar Council of India
Rules.
(ii) However, there is no bar either in the Act or the Rules for the foreign
law firms or foreign lawyers to visit India for a temporary period on a fly

1~4
in and fly out basis, for the purpose of giving legal advise to their clients
in India regarding foreign law or their own system of law and on diverse
international legal issues.
(iii) Moreover, having regard to the aim and object of the International
Commercial Arbitration introduced in the Arbitration and Conciliation
Act, 1996, foreign lawyers cannot be debarred to come to India and
conduct arbitration proceedings in respect of disputes arising out of a
contract relating to international commercial arbitration.
(iv) The B.P.O. Companies providing wide range of customised and
integrated services and functions to its customers like word-processing,
secretarial support, transcription services, proof-reading services, travel
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,

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.

II--r~

h ')

(Pr

the connected

A ,I\} N~\J R p- 2_
j.40
ITEM NO.25

SUP

COURT

REM

SECTION XII

NO.7

o F
E
C 0 U R T
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal


No (s).17150-17154/2012

I N D I A

(Civil)

(From the judgement and order dated 21/02/2012 in WP


No.5614/2010
and MP No.1/2010, MP No.3/2010, MP
No.4/2010 and MP No.5/2010 of
The HIGH COURT OF
MADRAS)
BAR COUNCIL OF INDIA

Petitioner(s)

VERSUS
A.K. BALAJI & ORS.

Respondent(s)

(With appln (s) for exemption from filing c/c of the


impugned Judgment and permission
to place addle
documents on
record
and
PERMISSION
TO
FILE
LENGTHY LIST OF DATES and with prayer
for interim
relief and office report)

Date: 04/07/2012
hearing today.

These Petitions were called on for

CORAM :
HON'BLE MR. JUSTICE R.M. LODHA
HON'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. Arnit Bhandari, Adv. for
M/S. Dua Associates,Adv.
R-10,16,19,26,39
& 40

R-18

Mr. Mukul Rohtagi, Sr. Adv.


Mr. Saurabh Kirpal, Adv.
Mr. M. Rishi Kumar,Adv.
Mr. Mahesh Agarwal, Adv.
Mr. Rishi Agrawala, Adv.
Mr. E.C. Agrawala ,Adv.
Ms. Neeha Nagpal, Adv.
Mr. Nageshwar Rao, Sr. Adv.
Mr. Sakya Singha Chaudhari, Adv.
Mr. Sandeep Das, Adv.

Ms. Poorva

UPON hearing
Following

counsel

Nanawati,

the Court

Adv.

made

the

o R D E R
Issue notice returnable in ten weeks.
Mis. Dua Associates waive service for common
respondent 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 Singha
Chaudhari,
Advoca te , waives
service
for
common
respondent No. 18 in the special leave petitions.
Notice shall only go to the unrepresented
respondents.
Dasti, in addition to the ordinary process, is
permitted.
In the meanwhile, it is clarified that Reserve
Bank of India shall not grant any permission to the
foreign
law
firms
to
open
liaison offices in
India under Section 29 of the Foreign
Exchange
Regulation Act, 1973. It is also clarified that the
expression "to
practice
the profession of law"
under Section 29 of the Advocates Act, 1961
covers
the persons practicing Li,
tigious
matters
as
well
as non-litigious matters other than contemplated in
para 63 (ii) of the
impugned
order and, therefore,
to practice in non-litigious
matters in India the
foreign law firms, by whatever
name called or
described, shall be bound to follow the provisions
contained ln the Advocates Act, 1961.

(Rajesh Dham)
Court Master

(Renu Diwan)
Court Master

IN THE SUPREMECOURT OF INDIA


CIVIL APPELLATEJURISDICTION
LA. NO.

OF 2015
IN

SPECIAL LEAVE PETITION (CIVIL) NO.

OF 2015

IN THE MATTER OF:


...PETITIONER

Global Indian Lawyers


VERSUS

...RESPONDENTS

Bar Council of India & Ors

AN APPLICATION FOR PERMISSION TO FILE SPECIAL LEAVE


PETITION AGAINST IMPUGNED ORDER DATED 16/12/2009
PASSED 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
Supreme Court of India.
The humble application of the
above 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 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. 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 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
Advocates Act.

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 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.

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 based out 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


DUTY BOUND SHALL EVER PRAY.

AS IN

Filed by:-

VIKASH SINGH
Advocate for the Petitioner
New Delhi

IN THE SUPREMECOURT OF INDIA


CIVIL APPELLATEJURISDICTION
LA. NO.

OF 2015
IN

SPECIAL LEAVE PETITION (CIVIL) NO.

OF 2015

IN THE MATTER OF:


Global Indian Lawyers

...PETITIONER
VERSUS

Bar Council of India & Ors

...RESPONDENTS

APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPy


OF THE IMPUGNED JUDGMENT AND ORDER
To
Hon'ble the Chief Justice of India
and his companion judges of the
Supreme Court of India.
The humble application of the
above named Petitioner
MOSTRESPECTFULLY
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 Advocates Act, 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 DUTY


BOUND SHALL EVER PRAY
Filed by:VIKASH SINGH
Advocate for the Petitioner
New Delhi
Dated:
-OJ, '""'< OJ S"

L6

IN THE SUPREMECOURT OF INDIA


CIVIL APPELLATEJURISDICTION
I.A. NO.

OF 2015
IN

SPECIAL LEAVE PETITION (CIVIL) NO.

OF 2015

IN THE MATTER OF:


Global Indian Lawyers

...PETITIONER
VERSUS

Bar Council of India & Ors

AN APPLICATION

...RESPONDENTS

FOR CONDONATION OF DELAY IN FILING


SPECIAL LEAVE PETITION

To
Hon'ble the Chief Justice of India
and his companion judges of the
Supreme Court of India.
The humble application of the
above 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

profession of law in India, a foreign

held that
law firm

to

practice

the

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 passing of 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 Resolution dated 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.

1~&

8. It is on this account that certain delay of


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


DUTY BOUND SHALL EVER PRAY.

AS IN

Filed by:-

VIKASH SINGH
Advocate for the Petitioner
New Delhi
Dated: 16 --0 ~ - ?. 0 If"'

VIKASH SINGH

ADVOCATE-ON-RECORD
B-51 204, LGF, Safdarjung Enclave
New Delhi-110029, Ph No: 8826534801

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 for
the Petitioner above-named 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.
That the registry has raised defect No. 17 stating non-filing of resolution dated
12/2/2006 and copy of the writ petition. It is stated that the resolution and Writ
Petition so mentioned is not relevant and necessary for filing of the present
Special Leave Petition. That if required, the said resolution and Writ Petition shall
be produced at the time of the hearing of the Special Leave Petition. Kindly
registered Ilist the matter at my own risk.
Thanking You,
(VIKASH SINGH)

(Advocate-on-Record for Petitioner)


Registration No. : 1886